Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2010-11-29

FILE:

6123/ONHWPA

CASE NAME:

6123 v. Tarion Warranty Corporation

An Appeal of a Decision of Tarion Warranty Corporation under the Ontario New Home Warranties Plan Act – to Disallow a Claim.

Applicant

Applicant

-and-

Tarion Warranty Corporation

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR:

KEN SELBY, Member

APPEARANCES:

For the Applicants:

THE APPLICANT, unrepresented

For the Respondent:

SCOTT KIRKPATRICK, Counsel, representing Tarion Warranty Corporation

Heard in Toronto:

November 8, 2010

DECISION AND ORDER

This is an appeal to the Licence Appeal Tribunal (the “Tribunal”) by the Applicant from a decision of Tarion Warranty Corporation (“Tarion”) set out in the Decision Letter dated June 2, 2010, which indicates three items are being appealed.1 Item 3 has subsequently been resolved so only items 1 and 2 are being appealed. This appeal is instituted under the authority of section 16(3) of the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31 (the “Act”).

BACKGROUND

The date of possession of the home was October 24, 2008. The Applicant purchased the home from the original purchaser about 10 months after it was initially occupied. Many items on the Year End list were warranted and have now been resolved. The two items being appealed are (i) seven cracked tiles in the bathroom and (ii) a visible ridge in the hardwood flooring.

1Exhibit #1

FACTS

1. The parties agree that seven tiles are cracked in the bathroom. The cracks appear to be in random locations. The questions are: when did these cracks occur and what caused them?

The Applicant believes that the cracks occurred during the construction process. He noted that the contractor is no longer in business. He spotted a few white spots in the narrow cracks between the two pieces of a given tile. The Applicant speculated that some of the thin set mortar had flowed up between the pieces as the second piece of a broken tile was being installed. In addition, the Applicant noted some colour changes along these cracks, which suggested some remedial work has taken place.

2. The parties agree that there is a noticeable ridge in the hardwood floor.

The Applicant stated that the floor squeaked in this area and referenced section 2.6 of the Construction Performance Guidelines ("CPG"), which deals with floor squeaks. The Tarion representative had not noted any floor squeak.

THE LAW

13. (1) Every vendor of a home warrants to the owner,

(a) that the home,

(i) is constructed in a workmanlike manner and is free from defects in material,

(ii) is fit for habitation, and

(iii) is constructed in accordance with the Ontario Building Code.

ISSUES

Do the cracked tiles and/or the hardwood ridge constitute material defects or poor workmanship?

Many items are covered by the First Year Warranty. The homeowner bears the onus of proving that the claim is covered by the warranty set out in the statute, and he must do so on the balance of probabilities.

EVIDENCE

The Tarion Field Claim Representative noted that these cracked tiles were not noted on the Pre-Delivery Inspection Form. The evidence also was that the Applicant did not note these cracks prior to purchasing the home.

The Tarion representative suggested that the previous owner may have attempted to make these cracks look less obvious prior to selling his home. It appeared that the cracks had received some grout material, which tended to make the cracks less obvious.

Section 12.2 of the CPG states that such ridges or depressions in hardwood flooring are warranted, if and only if, they exceed ±6 mm. The Applicant participated in the test recommended in Appendix 4 of the CPG, which determined that the ridge in question was only 5 mm above the plane of reference.

The Tarion representative indicated that section 2.6 of the CPG relates to floor squeaks associated with poor connections in the floor framing system. There was no evidence of loose connections in the floor framing system.

APPLICATION OF LAW TO FACTS

If the cracked tiles were caused by the builder, they should have been obvious to the original homeowner. One would expect that they would have been noted on the Pre- Delivery Inspection Form. Since repairs appear to have occurred, it seems that the original homeowner was trying to hide these cracked tiles from any potential buyers. The Applicant was unable to meet the onus of proof that the vendor was responsible for these seven cracked tiles.

The ridge in the hardwood floor only measured 5 mm and did not meet the threshold for a warranty repair.

ORDER

For the lack of evidence and pursuant to the authority vested in it by section 16(3) of the Act, this Tribunal directs Tarion to disallow the claims of the Applicant.