Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2010-07-13
FILE:
5482/ONHWPA
CASE NAME:
5482 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-
Southpointe Homes Inc.
Added Party
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
TERRANCE SWEENEY, Vice-Chair
APPEARANCES:
For the Applicants:
THE APPLICANT, unrepresented
For the Respondent:
DANIELLE PECK, Counsel representing Tarion Warranty Corporation
For the Added Party:
RONALD PUGH, Agent representing Southpointe Homes Inc., the Added Party
Heard in Toronto:
June 8, 2010
REASONS FOR DECISION AND ORDER BACKGROUND
The Applicant appealed from a Decision Letter of Tarion Warranty Corporation (“Tarion”) dated May 5, 20091, denying the Applicant’s claim in respect of cracks in the floor of each of the basement and garage of a new home purchased by her on August 10, 2007.
In order to protect the privacy of the Applicant, her name will not be used.
The Case for the Applicant
The Applicant solemnly affirmed and testified that as soon as she took possession of her home she noticed cracks in the floors of the basement and garage which got worse over time. She complained to Tarion which, in due course, inspected her home and denied her claim by the aforementioned Decision Letter.
She produced 22 colour photographs taken by her daughter2, which she said show the cracks clearly. She took the Tribunal through most of the photographs emphasizing the nature of her complaint. She said that the Added Party had its contractors come to her home on February 25, 2010. They sanded, repaired and painted her basement floor. She said that “it looks a lot better now”, but expressed her concern that the cracks would reappear. She also maintained that the cracks in the garage floor remained and that the contractor had not repaired them.
Ms. Peck cross-examined the Applicant. The Applicant admitted that she has no formal training in house construction and, significantly, had no estimates as to the cost of repairing the floors in the basement and garage.
The Case for Tarion
Crystal Gardiner
She solemnly affirmed and testified that she is a Field Claims Representative for Tarion. It was she who inspected the Applicant’s house on March 2, 2009, and issued the Decision Letter.
She has taken courses on the Ontario Building Code for residential homes and has been employed by Tarion since May of 2004.
She referred to her Decision Letter and dealt with each of the garage and basement floors.
Garage Floor
There were small cracks but the widest were only 2mm wide, which is well below the 6mm mandated by the Construction Performance Guidelines as unacceptable. She detected no defect in the concrete slab which cracks are typical when the slab moves and pulls away from the wall. She found no evidence of water penetration or “heaving” of the concrete.
Basement Floor
She noted that there were cracks but the widest was only 1mm. She saw no “lifting” of the concrete, no flaking or any other evidence of poor workmanship.
In summary, she denied the claim of the Applicant, as the cracks were well within the limits of the Construction Performance Guidelines and, in her opinion, were the result of normal “shrinkage” of concrete.
The Case for the Added Party
Mr. Ronald Pugh solemnly affirmed and said that he is the secretary of the Added Party. He attended at the Applicant’s home a number of times. There were “more cracks than I would have liked but they were not that bad”. There was no settling or lifting of the concrete slab in the basement. The Applicant had contacted him about three weeks previously and he inspected the garage. There were minor cracks but no lifting or settling of the concrete slab.
THE LAW AND ADMINISTRATIVE PRACTICE
The onus is on the Applicant to prove her case on a balance of probabilities. The
Ontario New Home Warranties Plan Act3 (the “Act”) is the governing statute.
Subsection 13(1) of the Act gives a warranty to the buyer of a new home that, among other things,
“the home is constructed in a workmanlike manner …”.
Subsection 13(2) of the Act excludes certain items from the warranty: paragraph 13(2)(d) excludes
“normal shrinkage of materials caused by drying after construction”.
Paragraph 14(3)(b) of the Act provides, in part, as follows:
“…. an owner of a home is entitled to receive payment out of the guarantee fund for damages resulting from a breach of warranty if the person has a cause of action against the vendor or builder, as the case may be, for damages resulting from the breach of warranty”.
The Ontario New Home Warranty Program issued its Construction Performance Guidelines in 2003. They are used, as guidelines to assess whether or not a condition is covered by the statutory warranty.
Clause 1.5
“CONCRETE BASEMENT FLOOR IS CRACKED … cracks resulting from normal shrinkage are acceptable; cracks in excess of 6mm in width are not acceptable”.
Clause 14.2
“CONCRETE GARAGE FLOOR IS CRACKED … cracks resulting from normal shrinkage are acceptable; crack width in excess of 6mm is not acceptable”.
APPLICATION OF THE LAW TO THE FACTS
The Applicant adduced no evidence to establish a breach of warranty or estimates as to the cost of repairs. She did not retain or call an expert to assist her. Her case was based solely on her observations as a lay person with no experience in house construction.
The Tribunal and all parties agree that there were cracks in the floor of each of the basement and garage. The Tribunal, however, accepts the evidence of Ms. Gardiner and Mr. Pugh that this was “normal shrinkage” for which no statutory warranty is available.
Accordingly, the Applicant has failed to meet the onus on her, and her appeal is hereby dismissed.
ORDER
B y virtue of the authority vested in it under section 16(3) of the Act, the Tribunal directs Tarion to deny the Applicant’s claim.
LICENCE APPEAL TRIBUNAL
Terrance Sweeney, Vice-Chair
RELEASED: July 13, 2010