Licence Tribunal Appeal d'appel en Tribunal matière de permis

DATE: 2010-07-16

FILE: 5905/ONHWPA

CASE NAME: 5905 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

Applicants

-and-

Tarion Warranty Corporation Respondent

-and-

Added Party

REASONS FOR DECISION AND ORDER

ADJUDICATOR: E. ALAN GARBE, Vice-Chair

APPEARANCES:

For the Applicants: THE APPLICANTS, unrepresented

For the Respondent: JILLIAN SISKIND, representing Tarion Warranty Corporation

For the Added Party: COREY LIBFELD, Agent representing the Added Party

Heard in Toronto: June 29, 2010

ORDER

This is an appeal by the Applicants from the decision letter of Tarion Warranty Corporation (the “Respondent”) dated January 26, 2010, to disallow the claim of the Applicants made pursuant to the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31, as amended, (the “Act”) with respect to their home built by the Added Party.

BACKGROUND

This matter arises from correspondence received by the Ontario New Home Warranty Program (the “Program”), the predecessor of the Respondent, on June 10, 2004, setting forth an extensive list of alleged defects with respect to their house at [address deleted] (the “Residence”).

The Program responded on June 30, 2004, by requesting in writing a copy of the agreement of purchase and sale, a completed request for conciliation and a cheque for $50.00 for the conciliation fee.

It was acknowledged during the hearing that the Applicants did not provide the requested documentation and, therefore, no conciliation investigation was conducted at that time.

The Tribunal was advised that, as the Applicants’ claims were made under a previous policy, there was no limitation on the length of time between the making of a claim and the conciliation investigation with the result that when the Applicants raised one of the claims again in 2009, a conciliation investigation was still available to the Applicants.

The Applicants’ reasons for postponing the conciliation investigation was that they did not wish to be placed in a confrontational situation with the builder.

ISSUES

The issue for consideration in this hearing is whether or not the sewer smell in the sink in the main bathroom of the Residence constitutes a warrantable claim.

The Tribunal must determine:

(a) whether the Added Party has breached a warranty under subsection 13(1) of the Act in that:

(1) the home has defects in workmanship or material;

(2) the home is not fit for habitation; or

(3) the home was not constructed in accordance with the Ontario Building Code (“OBC”); and, if so,

(b) whether the Applicants have a cause of action for damages against the builder under section 14 of the Act; and, if so

(c) the amount of the damage.

For reasons which will be discussed later in this decision, the Respondent sought costs against the Applicants.

EVIDENCE

At the commencement of the hearing the Respondent’s Book of Documents was admitted as Exhibit 3 in this hearing.

The male Applicant, who was the only one of the Applicants in attendance at the hearing, testified that the sewer smell was first noticed by the Applicants two or three weeks after they took possession of the Residence in June 2003. When the Added Party was contacted about this problem the Applicants were advised to put chemicals down the drain and overflow to clean these areas. The male Applicant stated that he tried this but that the smell remained.

During his cross examination the male Applicant acknowledged that the Applicants had not provided the documentation requested by the Program in the letter dated June 30, 2004. He testified that the Applicants chose not to utilize the conciliation process until late 2009.

The male Applicant acknowledged that a plumber had attended at the time of the conciliation inspection which was conducted on January 22, 2010. The witness confirmed that the plumber had explained that the collection of debris in the U joint or trap was not unusual and that water should be flushed through the drain and overflow regularly to avoid smells coming from the sink.

Gail Risk, a field representative for the Respondent, testified that it is her responsibility to work with clients to resolve issues and to go out and investigate claims where required. It is her role to maintain a neutral position and to assess the claims of a homeowner.

Ms. Risk testified that the letter that was sent by the Program to the Applicants on June 30, 2004 (Exhibit 3, Tab 2) was a standard form which the Program required in order to assist in properly assessing the claim of the homeowner. The witness further stated that at the time the Program was operating under a customer service standard which did not establish a deadline by which a conciliation inspection had to be conducted with the result that a conciliation could take place years later.

With respect to the present matter, the witness stated that the Applicants never provided a copy of their agreement of purchase and sale nor a conciliation request form. However, in an e-mail sent in 2009, the Applicants did request a conciliation. Attached to the Applicants’ notice of appeal (Exhibit 3, Tab 8) there are copies of several e-mails, the first of which is dated November 22, 2009, in which the male Applicant contacted the Respondent to advise that the sewer problem was now a matter of “grave concern”.

The witness testified that the conciliation inspection took place on January 22, 2010, in the presence of the Added Party and a plumber provided by the Added Party. The witness stated that she did detect a smell coming from the sink in the main bathroom and that the plumber was instructed to remove the trap, which contained noticeable debris and was “quite smelly”. The witness referred to the photographs appearing at Tab 5 of Exhibit 3 which she identified and which show that there was hair and soap in the trap. The witness stated that when she checked the lower portion of the pipe coming up towards the sink she could not detected any smell.

The witness also testified that there appeared to be residue in the overflow and suggested that at times the overflow needed cleaning, perhaps using pipe cleaner.

The witness stated that smells in bathroom sinks were a common problem, each house was different, and the prevalence of smells coming from plumbing depended on the soaps and cleaners used by the occupants of the home.

The witness checked the plumbing in the basement of the Residence and confirmed that the plumbing in all respects appeared to be satisfactory. The witness noted that there was no smell in the basement. The witness testified that the claim was denied as not being warranted as it was a homeowner maintenance issue.

Under cross examination, the witness confirmed that it was not uncommon to find the amount of material in a drain as disclosed in the photographs when the drain in the Residence was opened. The witness confirmed that she was familiar with this sort of problem.

The witness acknowledged that there was a powerful smell when the trap was removed and stated that when the plumbing was reassembled there was no noticeable smell.

Antonio Tomasone, a plumber with 21 years experience, who works for Vitullo Brothers Plumbing was called and qualified as an expert witness. A copy of the witness’ certificate of qualification was entered as Exhibit 4 in these proceedings and his report together with a summary of his qualifications was entered as Exhibit 5.

Mr. Tomasone testified that he was requested to attend at the Residence to investigate an odour in the main bathroom. Upon arriving he did not detect an odour in the bathroom until he put his head in the sink where he detected a slight odour. When asked what could have been causing the smell, Mr. Tomasone immediately suggested that it could be residue in the plumbing.

The witness stated that he was asked to dismantle the plumbing under the sink in the main bathroom, which he did, and showed the contents of the trap to those gathered at the conciliation inspection.

Mr. Tomasone testified that he discussed with the male Applicant the need to clean the overflow which is part of the sink itself and cannot be dismantled and, therefore, needs cleaning if there is concern about odours coming from the sink.

It was the witness’ opinion that there was nothing unusual with the debris or residue in the trap or overflow and recommended to the male Applicant that the overflow be cleaned.

The witness also expressed the opinion that the sink and plumbing were in proper condition and the prevalence of smells from plumbing depended on the usage and the build up of cosmetics, shampoo, toothpaste, soaps etc.

DECISION

The Applicants’ position that there is a defect in the sink which permits debris or residue to gather in the trap and overflow which creates smells is a defect in materials is unsubstantiated. There is no evidence that the proposed solution of having to clean the drain and the overflow regularly after use is unreasonable. The Applicants did not produce any evidence to support their position.

The Respondent’s position that it is not a defect in workmanship or material is supported by the expert witness who testified that there were no defects and that the smell being experienced by the Applicants is not unusual and can be solved by regular homeowner maintenance.

The Applicants failed to meet the onus placed upon them to establish that their claim falls within those warranted items within the Act and, therefore, the Tribunal must find in favour of the Respondent with respect to this appeal.

ORDER

Accordingly, for the reasons stated above and pursuant to the authority vested in the Tribunal by Section 16.3, the Tribunal confirms the decision of the Respondent to disallow the Applicants’ claim.

REQUEST FOR COSTS

It is the Respondent’s position that the Applicants have been unreasonable in that they have failed to respond as they agreed to at the pre-hearing, that they failed to attend the hearing originally scheduled for June 8, 2010 and failed to provide a medical note supporting the male Applicant’s inability to attend for medical reasons.

There may have been some confusion as to what was requested by the staff member of the Tribunal who contacted the male Applicant at the time of the earlier scheduled hearing as to what the note should contain. The male Applicant did explain during the course of the hearing that he suffered from certain physical conditions which would have made it very difficult for him to attend on the June 8, 2010 date.

With respect to the matter of costs, the Respondent refers to the Rules of Practice of the Tribunal, specifically Section 14 which reads as follows:

“14.1 Where a party believes that another party in proceedings before the Tribunal has acted unreasonably, frivolously, vexatiously, or in bad faith, that party may make a request to the Tribunal for costs, which request shall be made with notice to all other parties to the proceedings and prior to the release by the Tribunal of its final order in the proceedings.

14.2 The Tribunal in determining whether a party has acted unreasonably, frivolously, vexatiously, or in bad faith shall consider all of the circumstances, including, without limiting the generality of the foregoing, circumstances such as a party:

1. failing to attend a hearing before the Tribunal or to send a representative when properly given notice, without contacting the Tribunal and other parties to the hearing;

2. failing to comply in a timely manner with a procedural order or direction of the Tribunal where the result therefrom is undue prejudice or delay to another party or parties in the proceedings before the Tribunal;

3. failure to comply in a timely manner with the disclosure requirements set out in the Tribunal's Rules of Practice, including, without limiting the generality of the foregoing, the disclosure requirements respecting documents, particulars, or constitutional issues; or

4. knowingly presenting false or misleading evidence.

14.3 Where the Tribunal finds that a party has acted unreasonably, frivolously, vexatiously, or in bad faith, the Tribunal may order that party pay the costs of another party or parties to the proceedings subject to Rule 14.4 respecting the amount of costs that may be ordered by the Tribunal panel.

14.4 Where the Tribunal determines that an order for costs may be made under Rule 14.3,

1. the Tribunal when determining the appropriate award of costs shall consider all the circumstances, including without limiting the generality of the foregoing, factors such as the seriousness of the misconduct, the amount of costs incurred by the party requesting costs, or the conduct of the party requesting costs; and

2. the amount of costs shall not exceed,

a. where the Tribunal has not commenced a hearing, the sum of $400.00; or

b. where the Tribunal has commenced a hearing, the sum of $800.00 multiplied by the number of days that the Tribunal conducts a hearing of the matter, with any part day being considered a full day for the purpose of this calculation of costs.”

ORDER FOR COSTS

The Tribunal does not find that the conduct of the Applicants in this matter is of such a degree that an award of costs would be appropriate. Therefore, the Tribunal dismisses the Respondent’s request for costs against the Applicants.

LICENCE APPEAL TRIBUNAL

E. Alan Garbe, Vice-Chair

Released: July 16, 2010