Court File and Parties
CITATION: Payne v. Tarion Warranty Corporation, 2012 ONSC 3847
DIVISIONAL COURT FILE NO.: 533/10
DATE: 20120627
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, WILTON-SIEGEL AND CORBETT JJ.
BETWEEN:
MATTHEW AND SANDRA PAYNE Applicants (Respondents)
– and –
TARION WARRANTY CORPORATION Respondent (Appellant)
Brian M. Campbell, for the Applicants (Respondents)
Brent J. Arnold, for the Respondent (Appellant)
HEARD at Toronto: June 27, 2012
Oral Reasons for Judgment
SWINTON J. (orally)
[1] Tarion Warranty Corporation (“Tarion”) appeals a decision of the Licence Appeal Tribunal (the “Tribunal”), dated November 16, 2010. The Tribunal upheld a claim by the respondent homeowners that the radiant floor heating system installed in their new home was a major structural defect under the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31.
[2] The Tribunal ordered Tarion to undertake remedial work such that the new floor heating system complied with the Ontario Building Code, plus named engineering drawings and specifications. The evidence from the respondent’s expert was that the repairs would cost $245,000 with a variance of 25%.
[3] Tarion appeals with respect to the order only, arguing:
(i) that the Tribunal erred in law in failing to take into account the $100,000 cap in compensation for major structural defects found in s.6(3)(a) of Regulation 892, R.R.O. 1990, and
(ii) that the order is too vague and improperly orders specific performance.
[4] We do not agree that the Tribunal’s order was vague. It identified the standards to be met in making the repairs, and it did not order the builder to do anything.
[5] However, we are satisfied that the Tribunal erred in law in failing to take into account that the maximum compensation payable for the repairs was $100,000, given s.6(3)(a) of Regulation 892 and the Tribunal’s finding that the house was occupied in May 2003 (see the Tribunal’s reasons, page 1). Even if the standard of review were reasonableness, this decision is unreasonable, because it fails to consider the limit on compensation in the Regulation in the face of evidence that the costs of repairs would substantially exceed the cap.
[6] Therefore, the appeal is allowed and the order is set aside. The matter is remitted to the Tribunal for a rehearing on the issue of remedy alone. The matter may go back to the member who made the original decision.
COSTS
[7] I have endorsed the Appeal Book, “This appeal is allowed for oral reasons given in Court today. The order of the Tribunal is set aside, and the matter is remitted to the Tribunal for a rehearing on the issue of remedy alone. In the circumstances, and in view of the fact that this does not finally resolve the issues between the parties, there shall be no order of costs.”
SWINTON J.
WILTON-SIEGEL J.
CORBETT J.
Date of Reasons for Judgment: June 27, 2012
Date of Release: July 3, 2012
CITATION: Payne v. Tarion Warranty Corporation, 2012 ONSC 3847
DIVISIONAL COURT FILE NO.: 533/10
DATE: 20120627
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, WILTON-SIEGEL AND CORBETT JJ.
BETWEEN:
MATTHEW AND SANDRA PAYNE Applicants (Respondents)
– and –
TARION WARRANTY CORPORATION Respondent (Appellant)
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: June 27, 2012
Date of Release: July 3, 2012