Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2010-05-19
FILE:
5610/ONHWPA
CASE NAME:
5610 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
-and-
Tanis Woods Development Inc. Added Party
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
CHRISTINA BUDWETH-MINGAY, Vice Chair
APPEARANCES:
For the Applicants:
MARK WIFFEN, Counsel, appeared on behalf of the Applicants
For the Respondent:
SCOTT B. KIRKPATRICK, representing the Tarion Home Warranty
Corporation under the Ontario New Home Warranty Program
For the Added Party:
D. DI MEO, appeared representing the Added Party, Tanis Woods Development Inc.
Heard in Toronto:
March 22, 23, 25, 26, 29, 30, 31, 2010
REASONS FOR DECISION AND ORDER
BACKGROUND:
This is an appeal to the Licence Appeal Tribunal (the “Tribunal”) by the Applicants (the “Applicants”) from a Decision Letter dated July 30, 2009 by Tarion Warranty Corporation (“Tarion”) under the Ontario New Home Warranties Plan Act, R.S.O. 1990 c. O.31 (the “Act”) to deny a portion of the Applicants First Year Statutory Warranty claim as well as items from the Second Year Statutory Warranty claim. Both Applicants appeared at the hearing and gave evidence. To preserve their privacy, the names of the Applicants will not be used and they will be referred to as the male and female Applicant respectively.
Under the Act, Tanis Woods Development Inc. (“Tanis Woods” or the “Builder” or “Added Party”) warrants to the Applicants that their home is constructed in a workmanlike manner and is free from defects in material. These warranties are subject to certain exclusions and procedural requirements as set out in the Act. Tarion is empowered under the Act to determine whether these warranties have been breached and, if so, to pay to the Applicants the cost of repair, among other remedies open to it.
Mr. D. Di Meo, the brother of the principal of Tanis Woods, testified on behalf of the Builder and acted as its representative throughout.
Tarion called several witnesses in support of its position. Kate Harvie is a Field Claims Manager with Tarion and Rika Tokue is a Field Claim Representative. Ms. Tokue is a licensed architect.
The Applicants took possession of the home (“the Home”) on September 12, 2006. The Applicants noted and reported a number of deficiencies in the Home on their 30-Day Form, their Year-End Form and their Second-Year Form. Discussions and conciliations between the Applicants, Tarion and the Added Party resulted in the resolution of a number of complaints. On the first day of the hearing, eleven (11) items remained outstanding between the parties. Following further negotiations, three (3) additional items were resolved.
Of the items that remained at issue, three (3) were warranted but the parties could not agree on the manner or extent of the appropriate repair. In regard to the remaining items, Tarion denies that these items are warranted and took the position that Tanis Woods has attended to any defects to the satisfaction of Tarion.
It was the position of Tanis Woods that the Builder has done all it can to address any defects in the Home complained of by the Applicants and that no further work is required.
To allow for a clearer understanding of the evidence, the outstanding items are set out below, both by item number and brief description:
Item #1: Front Door Replacement (Warranted); Item #2: Kitchen Cabinets (Warranted);
Item #3: Man Door from Garage to House; Item #4: Chipping of Bricks;
Item #5: Cracking of Bricks and Mortar;
Item #6: Eaves Trough Repairs (Warranted); Item #7: Bathroom Vents;
Item #8: Wheelchair Accessible Toilet.
Item #9 Foundation Repair (Resolved at Pre-Hearing but the Subject of some Evidence)
THE LAW:
Section 13 of the Act provides a homeowner with certain warranties as follows:
Warranties
- (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;
(b) that the home is free of major structural defects as defined by the regulations; and
(c) such other warranties as are prescribed by the regulations.
Exclusions
- (2) A warranty under subsection (1) does not apply in respect of,
(a) defects in materials, design and work supplied by the owner;
(b) secondary damage caused by defects, such as property damage and personal injury;
(c) normal wear and tear;
(d) normal shrinkage of materials caused by drying after construction;
(e) damage caused by dampness or condensation due to failure by the owner to maintain adequate ventilation;
(f) damage resulting from improper maintenance;
(g) alterations, deletions or additions made by the owner;
ISSUES:
At the outset, it is helpful to the understanding of the evidence to clarify the positions of each of the Parties.
Item #1: The Applicants are of the view that Tarion should reimburse them for the majority of monies spent to replace the front door which, admittedly, suffered a squeaking problem from time to time. In the view of Tarion, changes to the door by the Applicants resulted in/or exacerbated the squeaking problem; however, they are prepared to accept it as a warranted item because of the Builder’s efforts to repair it. Tarion has made an offer to off- set some of the Applicant’s costs.
Item #2: The entirety of the cabinets in this kitchen were replaced shortly after the Applicants took possession of the Home as a result of a manufacturing defect. The Applicants are of the view that the kitchen cabinets currently exhibit areas of wear on the sharp edges to such an extent that a further replacement or re-finishing of the cabinets in the entire kitchen is required. Tarion has taken the position that the areas of wear indicated by the Applicants are few in number and that the current condition of the cabinets is due to ordinary wear and tear. This refused as a warranted item.
Item #3, the Applicants are concerned with the functioning of the automatic closure which operates the man door between the garage and the Home. Their position is that it is malfunctioning and should be replaced or adjusted by the Added Party. Tarion has taken the position that any problem with the door can be rectified by the Applicants through regular homeowner maintenance. This is refused as a warranted item.
Item #4, the Applicants are of the view that the rough brick which covers three (3) sides of their home has been the subject of excessive chipping on the edges. Tarion relies on the Construction Performance Guidelines to refuse this claim as a warranted item.
Item #5, the Applicants allege that the mortar and bricks of the home show evidence of excessive cracking. Again, Tarion relies on the Construction Performance Guidelines as a basis for denying this claim.
Item #6, the eaves troughs at the front of the home have been repaired as a warranted item. The Applicants are concerned that the eaves may still be leaking and seek an assurance or “permanent solution” to the eaves issue. Tarion takes the position that the area of repair is still under warranty and that no further warranty or intervention by Tarion is appropriate.
Item #7, the Applicants are seeking an extended warranty for work conducted on the bathroom vents. The original problem involved snow blowing in through the vents both into a washroom and into the attic space. The problem was resolved by a replacement of several vents by the Builder. The Applicants seek an extension of the warranty for that work on the basis that the winter of 2009/2010 saw a lower than average snowfall. They claim that while there was no problem with the vents this year, a problem might arise in a year with a greater snowfall. Tarion takes the position that the original complaint was remedied to the Applicants’ satisfaction, that the warranty has run its course and that any further problems regarding this item are the responsibility of the Applicants.
Item #8, the Applicants maintain that their building contract specifies a wheelchair accessible washroom in their home. Their complaint is that while the washroom itself is accessible, the particular toilet installed in the room is difficult to access for a person with a disability of the magnitude that is suffered by their family member. Tarion takes the position that the Builder supplied a wheelchair accessible washroom and that the Applicants failed to provide the Builder with specifics regarding fixtures. Tarion takes the position that under Ontario law there is no particular fixture specified for residential use in wheelchair accessible washroom facilities and that this is not a warranted item.
Item #9, a repair has been made by the Builder to the foundation in an area where some leaking occurred. As a result of a consent Pre-Trial Order, the Builder attended to perform a water test of this area in December 2009. The Applicants refused to allow the water test to be performed, stating that the temperatures were too low and that to allow the test would expose the foundation to possible further damage.
EVIDENCE:
The male Applicant. He testified that while the couple were happy in the home they had occupied for almost 25 years, they contemplated a move in 2004 as a result of his father- in-law’s stroke because it was their intention to have his in-laws live with them to facilitate the caretaking of his father-in-law.
The male Applicant testified that he did a lot of research regarding builders and was particularly concerned to find a builder who had experience in building handicapped accessible homes. He also stated that the fact that Tanis Woods used a higher grade fixture for its standard fixtures was a factor that was taken into consideration when choosing the Builder.
His evidence was that he had a negative impression of Tanis Woods and the Home even before moving in because there was a five (5) month delay in taking possession. During discussions regarding the delay, he maintains that he told the Builder that he would rather wait a little longer rather than face deficiencies. He stated that this made the problems in the Home even more pronounced in his mind.
The male Applicant testified that there were a number of substantial problems with the Home on possession. This evidence was not challenged. There were issues with: condensation; the heating system; dry wall imperfections; and the original kitchen which was replaced in December 2006. The evidence was that the Applicant and Tanis Woods were not able to resolve the issue of the furnace and a third party was retained to prepare a report, paid for by Tarion, to assess the problem. The report contained conclusions that supported the Applicant’s complaints and the heating system was repaired.
In assessing the evidence and the credibility of the parties, their state of mind and the interaction between the parties prior to attending before the Tribunal is useful. The male Applicant testified that during the course of attempting to resolve deficiencies they interacted with eight (8) different employees of Tarion. While the evidence of Tarion went some way to providing an explanation for the involvement of the various employees, clearly the involvement of so many individuals gave the Applicants the impression that no one was ever really focused on their complaints. This view cannot help but have informed their level of dissatisfaction with the decisions made by Tarion and its representatives.
The male Applicant also testified that while the lines of communication between the Builder and themselves remain open, the relationship has become strained. He particularly noted a serious breakdown in confidence when it was necessary for Tarion to retain an expert regarding the HVAC system and its eventual replacement.
Item #1
Much evidence was led regarding the numerous attendances at the home to attend to the squeaking and binding front door.
The Applicants testified that the squeaking of the doors began before the inserts went into the doors in late October 2006. The Builder attempted to fix the squeak on many occasions. In January 2009, the Builder’s door supplier, Brown’s Windows and Doors (“Brown’s”) replaced the hinges on the front doors but this solution only temporarily fixed the problem. They testified that on June 21, 2009 the door was loose on its hinges and almost fell off. The evidence was that this final problem prompted them to begin the inquiry process for purchasing new front doors.
Only after all of the evidence on this point was received, did it become clear that the real issue about this item was not whether it should be warranted or whether the changes made to the doors by the Applicants somehow voided the warranty. Rather, the issue is whether Tarion should be required to pay for the entirely new front doors or whether their offer to contribute the amount of money they say would have been required to repair the doors is sufficient.
Tarion’s position is that this should never have been a warranted item because of the change in the inserts. However, it became warranted because of the Builder’s intervention in attempting to adjust the doors to relieve the squeak. They refuse to pay for the new doors.
The Applicants testified that they bought the new doors from Home Décor, a company they were referred to by Pinnacle Door, a supplier to the Builder. They testified that Home Décor refused to attempt to fix the existing doors because the frame was not level and the threshold was incorrect. They maintain they only purchased the new doors because of this.
Exhibit 4, Tab 2 Page 33 contains a quotation for new doors in the exact configuration as the existing doors. The quotation is dated June 17, 2009 which is four (4) days prior to the date on which the Applicants each testified that the door almost fell off its hinges onto them upon their return from a family wedding. A deposit on the doors was paid by the Applicants on June 17. The quote for replacing the doors includes free garage door caps and new upgraded hardware. Exhibit 6, Tab 2, page 34 is a quotation dated July 15, 2009 to replace the existing doors with substantially different front doors. The transom has been removed to make the doors bigger in height. Upgraded hardware is also included but the garage door caps are not referred to. The evidence of the Applicants was that the individual from Home Décor told them that the taller doors would look better and cost exactly the same as replicating the old doors.
The Applicants failed to provide a letter from Home Décor stating that it was necessary to replace the front doors in order to rectify the problems that they were experiencing.
Mr. Di Meo testified that because of the height change in the doors from a standard height to custom height an increased price of approximately $800 to $900 would result. He also testified that the raised panels on the bottom portion of the door were an extra which would increase the cost of the door. He stated that the same would hold true for the custom paint colour which is seen in the photographs of the door.
Ms Harvie attended at the Home on or about June 22. During that attendance, despite complaints about the front door by the Applicants, Ms. Harvie stated that she could see no evidence that the door had fallen off its hinges. The door system appeared to her to be completely intact and functioning. Ms. Harvie testified that Tarion stands by its settlement offer of May 8, 2009 found at Exhibit 7, Tab 4, that it will contribute $985.00 towards the new doors which is the amount they determined it would cost to fix the old doors.
Item #2
Only the female Applicant testified about the deficiencies in the kitchen cabinetry. The current complaint about the kitchen cabinets is that the paint or finish comes off of the sharp edges very quickly. After the replacement of the kitchen cabinets in the fall of 2006, the Applicants reported a problem with the cabinets in 2007. The kitchen supplier, Frendell Kitchens (“Frendell”) attended in November 2007. The solution to the perceived problem of wearing at that time was to offer a wax crayon and spray lacquer to touch up the problem areas. This led to a further problem in that spots could be seen where the lacquer was applied. In November of 2008, Tarion warranted this item and in January of 2009, Frendell again suggested that touch ups with a wax crayon was the appropriate treatment for the condition of the cabinets.
A kitchen cabinet door was entered into evidence. The Applicant testified that this door represented “the worst example of wear” of the cabinets. The cabinet shows the most minor wear of stain/paint at the sharp edges. Similarly configured sharp edges on the reverse of the door, where human contact is not regularly made show, no wear. The female Applicant categorically refused to acknowledge that any wear and tear in a kitchen 3 ¼ years of age is acceptable.
In support of their claim that the kitchen cabinets need to be replaced or completely re- stained, the Applicants presented a letter from The Furniture Solution, entered into evidence as Exhibit 4, Tab 4. The author of the letter did not attend to give evidence; accordingly, there was no opportunity for the parties adverse in interest to cross- examination the author on his opinions.
Ms. Harvie testified about the issue of the kitchen cabinets. She stated that Frendell Kitchens are a local and reputable kitchen manufacturer. She testified that in her experience the settlement offer of May 8, 2009, Exhibit 7, Tab 4, Page 3 provides a complete and acceptable remedy for what she notes a minor issue with the Applicant’s kitchen cabinets. She testified that she has seen the kitchen and also looked at the kitchen cabinet marked as Exhibit 20. She noted the slight wearing at the sharp edges and confirmed her evidence that this was not a manufacturing defect. She based her opinion on the fact that manufacturing defects usually present themselves as stain peeling rather than slight wearing. In her view, the letter from Furniture Solutions outlining a price of
$10,080.00 for cabinet re-staining would be enough to buy all new cabinet doors for this kitchen and was excessive.
Ms. Harvie testified in cross-examination that kitchen cabinetry can be damaged within hours of installation because kitchen cabinets are wood and lacquer. She testified that even sunlight can change the look of a cabinet finish within the first year of its life. As well, things such as humidity and the amount of use have an impact on the life of a kitchen. She stated that wear and tear is inevitable and is not indicative of defects.
In testifying about the kitchen doors, Ms. Tokue noted that the door entered into evidence as Exhibit 20 was not one of the warranted doors, nor is it in her opinion one that should be. She stated that re-finishing of the cabinets is not required. She also stated that when the kitchen cabinets are viewed at a normal arms length distance no wear is evident.
Item #3
There was extensive evidence about the history of troubles with the man door from the garage. Initially, the frame was cracked and it was replaced and the frame painted. Later there was a problem with the door not opening correctly which was recorded on the Year- End Form. This problem was also rectified. In November of 2007 an individual in the employ of the Builder attended to replace the weather stripping around this door. When the Applicants complained of the failure of the door to operate properly in the winter of 2008, Brown’s attended to fix the problem but declined to do so once it was evident that the Builder’s employee had previously touched the door. The Applicants take the position that the automatic door closer does not operate properly and that it is necessary to physically pull the door closed to get an airtight seal from the garage. They say that this is a health hazard, possibly exposing them to garage fumes.
The male Applicant testified that he has never done any sort of maintenance on the door closure mechanism since its installation. During cross-examination, the male Applicant denied that the door closure only requires adjustment. He maintains that it needs replacing. However, he did not provide any expert or corroborating evidence that this was the case. Tarion’s position is that the door closure mechanism only requires routine servicing and that this is a homeowner maintenance issue, not a warranty issue.
The photographs of the door closing mechanism, Exhibit 16, show clearly that at some point in time the mechanism was moved. It was in fact the Builder, both in cross- examination of the Applicants and in his own evidence, who raised the possibility that the door closer had been moved. The female Applicant testified in cross-examination that she believes that the door closer mechanism may have been moved either when the door frame was originally fixed or when the Builder’s handyman replaced the weather stripping. This was the only evidence offered as to how or when this mechanism was moved.
Items #4 and 5
These items were dealt with together as they both deal with the cladding of the Home. The front of the Home is stone while the remaining three (3) sides are bricked. Exhibit 4, Tab 10 contains a number of photographs of the exterior of the home. The Applicants take the position that the chipping or spalling of the brick is beyond a weathered patina and falls into the area of defect. The Applicants also say that there are cracks in the mortar which began to show in 2007. They claim that the cracks are expanding from surface cracks to something deeper.
The male Applicant testified that when he chose the bricks for the cladding of the home, no one in the employ of the Builder told him that any chipping at the edges of the brick would occur.
The Applicants have asked that the remedy for what they allege is a defect in the bricks and mortar is to re-brick the home. They further took the position that, as part of the
remedy for this defect, Tarion be ordered to commission an expert to prepare a report making recommendations regarding the condition of the bricks and mortar. The male Applicant further stated on several occasions during examination in chief and cross- examination that he believes an award of $100,000 by the Tribunal would be appropriate to compensate the Applicants for the diminution in value of their home arising from the appearance of the bricks and mortar.
The Builder testified that the Applicants had the opportunity to see samples of the brick which clads their home. A sample of the brick was entered into evidence as Exhibit 19. The Builder conceded that the sample shows less chipping than the bricks on the Applicants home because it has been mounted on the wall of the sales office. His evidence was that he retained the supplier of the brick, Brampton Brick, to attend to do some touch up tinting on some bricks that the Applicants were not happy with and that any other chipping is within acceptable industry standards.
Tarion’s position regarding the brick issue is that the condition of the bricks falls well within the parameters of the Construction Performance Guidelines. In addition, Tarion takes the position that the Applicants have failed to discharge their burden of proof regarding these claims and rejects the contention that Tarion is responsible for providing an expert report to support the Applicant’s claim.
Ms. Tokue testified extensively about the Construction Performance Guidelines (“CPG”) that are applicable to Bricks and Mortar (Article 4.20). She testified that she measured a crack shown to her by the Applicants and noted that homeowners normally show her the worst examples of defects. She recorded that the mortar crack was only 0.15 mm wide and stated that this is absolutely normal for our climate.
Ms. Tokue referred to CPG Appendix 6 regarding Chipped Clay Bricks and noted that, for a Rough Brick finish such as the Applicants have, 85 to 100 % of the bricks can have chips up to ½ inch in from the corner. As well, 85 to 100% of them can have chips up to 5/16 inches in from an edge. There was no evidence before the Tribunal that the chipping of the bricks came anywhere near this degree of allowable chipping; it was much less according to the photographs.
In regard to cracks, she testified that she was directed by the Applicants to cracks and she determined that they did not permeate the veneer. She saw no falling mortar or cracks that would concern her.
Item #6
The problem with the eaves troughs began in 2007. Originally, Tarion ordered the Builder to fix the problem and the Builder did so in April 2009. The Applicants maintain that the problem has re-surfaced and in support of their position provided photographs from January 2010, Exhibit 4, Tab 12. The photograph shows a small icicle on the lower portion of the eaves. Also shown is some water on the concrete of the front porch: However, it is not possible to determine from the photographs whether that water is as a result of melted
snow on the porch or water from above. The Applicants stated that they told the Builder of their concern about the eaves trough not being properly repaired in May 2009 and gave evidence that the Builder refused to attend to fix the problem. The female Applicant did concede that during a water test conducted by Tarion on or about June 22, 2009 there was no evidence of water penetration through the eaves.
It was the Builder’s evidence that the Applicants did not just complain about a deficient repair, but rather they demanded he install heating cables around the roof, something which he is not prepared to do. He further testified that it is his opinion that the small icicle apparent in the photograph of the eave is a result of snow melting on the roof causing a small ice dam which cascades over the eaves rather than a penetration of water through the eaves.
The parties are all in agreement that there is an existing warranty on the eaves trough repair of April 2009 and in cross-examination the female Applicant stated that she would be satisfied for the Builder to attend at the Home under the terms of the existing eaves trough warranty to assess the eaves and to make any further repair that appears to be necessary.
Item #7
The male Applicant testified that during the winter of 2008 his son drew his attention to the fact that it was snowing in his bathroom. In fact, snow was entering the room through a bathroom vent. Upon inspection, he determined that the attic crawl space had a swath of snow four (4) inches wide and ten (10) feet long as well. The Applicant testified that the Builder did attend to fix the problem on Christmas Eve but that solution was not satisfactory; accordingly, in January 2009, the roofing company installed new vents which are substantially taller and bulkier. The male Applicant maintains that he has seen some condensation in the crawl space on the vent stacks and has asked for new and more appropriate roof vents. The male Applicant agreed in cross-examination that the attic space is heated and that the warm air in the vent stack must pass through the cold air of the attic in order to escape to the outside. He also agreed that the few water droplets that he has seen vary in character from the problem previously experienced.
Item #8
The reference to a wheelchair accessible washroom is found in the Agreement of Purchase and Sale between the parties, Exhibit 4, Tab 1, page 8. The contract specifies:
Bed 4 to be wheelchair acces. With large flush shower stall Complete with grab bars in shower & at w/c
There is no reference in the contract to a toilet of a particular height or other specifications. The Applicant does not allege that the washroom is not wheelchair accessible. She also admitted in cross-examination that she did not discuss any details of the fixtures in this room with the Builder.
The female Applicant testified that the toilet in the wheelchair accessible washroom is too
low for easy use by her father. The toilet is 14 inches high. She testified that in order to use the toilet she must slide her father down a board from his wheelchair which is 17 inches high. She stated that moving him up to the wheelchair again is difficult because of the height difference. The Applicant agreed that even if the toilet was higher it would be impossible for her father to manoeuvre himself to use it without assistance. Her position is that the use of the toilet would be easier for her if it was taller. The Applicants want to have the current toilet replaced with one that is mandated for wheelchair accessible toilets in commercial applications. The evidence was that this toilet would cost $580.44.
The evidence of the Builder was that the Applicants specified various upgrades to the Home and visited regularly. Examples of items in which they had input were faucets and bathroom tile. The Builder testified that there was no discussion of the fixtures in the wheelchair accessible washroom. The Builder also testified that he has only built two other wheelchair accessible bathrooms, one in Markham and one for the Applicants’ neighbours. Each of these washrooms has a standard toilet.
The evidence of Ms. Harvie was that there is no Building Code standard for residential wheelchair accessible washrooms. In her view, the parties to a building contract should refer to an architect for assistance with items necessary to meet the needs of the end user of a residential wheelchair accessible washroom.
Item #9
This issue was dealt with in a Pre-Trial Consent Order in which the parties agreed that a water test would be performed in non-freezing temperatures.
The Builder testified that he attempted to perform a water test to ensure the efficacy of the foundation repair. The female Applicant admitted that she refused the water test but stated it was because of cold temperatures. She also testified that there has been no evidence of water penetration in the foundation.
The Builder provided documentary evidence regarding the temperatures on the days before and after his attendance (Exhibit 18), which showed that the temperature was at least several degrees above freezing.
FINDINGS:
Item #1
The doors purchased by the Applicants in the summer of 2009 from Home Décor differ in a number of significant regards from the front doors which they replaced. The replacement doors are significantly higher as a result of the removal of the transom. The Tribunal accepts the evidence of the Builder that the difference in height would result in a increased cost. The Applicants were provided with the benefit of free garage door caps in conjunction with the door replacement. The Tribunal accepts the Builder’s evidence that
this has the value of approximately $200 per garage door. In addition, it is clear from the photographs that the Applicants also received the benefit of substantially upgraded paint.
In addition, the Tribunal finds the evidence of the Applicants regarding the condition of the door on June 21st to be exaggerated. One of the quotations for the new doors was dated June 17, clearly the Applicants were intending to purchase a door at least as at that date.
The Applicants are not entitled to choose a substantially upgraded door and expect Tarion to pay for it under the auspices of a warranty claim. The Tribunal accepts the evidence of Tarion that that door squeaking issue could have been remedied by further adjustments. The Tribunal awards to the Applicants the $985.00 which has previously been offered by Tarion in full settlement of the claim for this item.
Item #2
The Tribunal is satisfied on the basis of the physical evidence before it, that the almost imperceptible wearing of the edges of the kitchen cabinets is a result of ordinary wear and tear of a kitchen that was installed in the Applicants’ home in December of 2006. The Applicants have failed to adduce any evidence of or to prove defects in the material or workmanship of the cabinetry. This claim is denied.
Item #3
The photographs supplied by the Builder clearly show that the automatic closing mechanism of the garage man door has been moved from its original position. The Tribunal has no difficulty whatsoever in reaching the conclusion that the Applicants did not have any part in moving the mechanism. The closing mechanism of this door has proven to be troublesome from the date on which the Applicants took possession of the Home. They are entitled to a door that is properly functioning. This claim is upheld.
Items #4 & #5
After a careful review of all of the photographic evidence taken together with a reading of the Construction Performance Guidelines for rough brick cladding of homes, the Tribunal finds that the chipping and cracking of the bricks is not significant and falls well within the allowable limits set out in the Guideline. This claim is denied.
Item #6
There is no evidence of current water penetration of the eaves. At the date of the conclusion of the hearing there existed a valid warranty regarding repair to the eaves trough. Accordingly, the Applicants should pursue the valid and existing remedy of warranty that is open to them.
Item #7
While there was previously a clear penetration of the Home by precipitation through the roof vents near a washroom on the Home, there is no evidence of water penetration at this time. This claim is denied.
Item #8
The washroom supplied by the Builder in the basement of the Home is a wheelchair accessible one. There are no Ontario Building Code specifications regarding toilets in such a washroom; nor did the Applicants turn their mind to the issue of the toilet until they moved into the Home and discovered that it was more difficult to assist their father with his intimate habits than they had initially thought. There is no defect in the material provided by the Builder; nor is there a breach of contract which would attract a remedy. This claim is denied.
Item #9
This item was previously dealt with by way of a Consent Order between the parties.
DECISION:
It is the Applicants’ onus to prove their allegations of warranty breach by the Builder and their resulting financial losses. For the reasons set out above and pursuant to the authority vested in it by Section 16(3) of the Act, the Tribunal upholds the decision of Tarion to disallow the Applicants’ claims except in so far as the specific items noted above, being the front doors and the garage man door closure.
LICENCE APPEAL TRIBUNAL
Christina Budweth-Mingay Vice Chair
Released: May 19, 2010