Licence Appeal Tribunal
FILE: 5297/ONHWPA
CASE NAME: 5297 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- Lancaster Homes Added Party
REASONS FOR DECISION AND ORDER
ADJUDICATOR: JANE WEARY, Vice-Chair
APPEARANCES:
For the Applicants: APPLICANTS, self-represented
For the Respondent: SCOTT KIRKPATRICK, Counsel, representing Tarion Warranty Corporation
For the Added Party: ADELINO RIBEIRO, Agent, representing Lancaster Homes
Heard in Toronto: October 20, 21, 22, 24, 26, 27, 28, 29, 2009 and February 3, 4, 5, 8, 9, 10 and 12, 2010
DECISION AND ORDER
This is an appeal by the Applicants from the Decision Letter of Tarion Warranty Corporation (TWC) dated December 16, 2008 respecting claims of breach of warranty in the construction of their home by Lancaster Homes, (Added Party), pursuant to Section 14(3) of the Ontario New Home Warranty Plan Act R.S.O. 1990, c.O.31, (ONHWPA or Act). The Applicants’ names are not referred to in this decision. They are referred to as “male Applicant” and “female Applicant” and jointly as “Applicants”.
BACKGROUND:
Initially the Applicants were very pleased with the purchase of their new bungalow from the Added Party in November 2006. On more than one occasion they expressed appreciation to the Added Party’s staff for their efforts and attention, particularly concerning specifications the Applicants requested both prior to and during the construction.
From the beginning the Applicants had been involved in the building process. They frequently attended at the site where, amongst other forms of engagement, they installed soundproofing to certain walls during construction. Further, they were cognizant of both consumer and builder protections, rights and obligations, having participated in a course offered to new home buyers by TWC. They had also researched the Added Party’s business reputation by discussing with prior purchasers consumer satisfaction with the finished product and service. Apparently well-educated, clearly articulate and well-informed, they ensured that their sales contract was reviewed by a lawyer, resulting in a number of amendments, including additions to the standard features offered.
The Added Party is an experienced new home builder. It has operated for approximately 16 years in the Toronto environs. Recently it has built over 600 homes in three major developments, including the area north of Toronto where the Applicants’ home is located. It is owned and run by Mr. Adelino Ribeiro.
Problems commenced soon after the Applicants moved in and they began to complain of flooring and furnace issues. The flooring manufacturer reviewed the complaints. The parties were unable to agree as to the extent of the problem and thus the extent of any repair required under warranty. The Applicants’ complaints escalated. In time TWC became involved.
At the same time, furnace and expert climate control companies were consulted, building plans and specifications were reviewed, and the municipal Building Department and the furnace manufacturer were called in to review the Applicants’ complaint that the initial furnace was too small for the floor space; the Added Party disagreed. Heating consultants retained by TWC in November 2007 sided with the homeowners. On that basis, TWC warranted the complaint and, prior to the commencement of a new heating season in the fall of 2008, funded the purchase of a new furnace by the Applicants. Throughout the above, relations between the Added Party and the Applicants deteriorated significantly. With TWC’s involvement, the tension escalated.
ISSUES:
This is a hearing into the Applicants’ appeal from TWC’s initial rejection of 189 out of 204 Warranty claims on their year-end list as filed with TWC in November 2007. While a large number of these claims were either withdrawn or resolved by the pre-hearing, six primary areas of complaint remained comprising 20 separate items claimed in the Appeal. The items included the flooring, the outside trim and molding, window/pillar sills slope, window condensation (in the master bedroom) and window air leakage (generally), floor joist inadequacies and basement rim joist moisture. As the evidence progressed, the flooring complaint was settled and, on February 10th, the rim joist complaint was withdrawn by the Applicants. This Decision and Order is thus determinative of only the remaining five elements in dispute.
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.
Because of the length of the hearing and the history of the relationships, costs were sought by both TWC and the Added Party, and will be dealt with later in this Order.
WITNESSES:
The hearing lasted 15 days. Numerous exhibits were filed and ten witnesses testified. Of these, three were presented as experts on various aspects of home construction; two others were the design architect of the home and the professional engineer responsible for joists. The remaining witnesses consisted of the two Applicants, the Added Party, the TWC Field Representative who denied the claimed Warranties, and the window manufacturer’s technician.
EVIDENCE
The evidence will be discussed under the headings of the claims made and referred to by the numbering in the TWC Decision letter.
(a)_Outside Trim and Molding (items 3, 4 and 5):
The Applicants relied on their photographs1 taken in the fall of 2007, prior to submitting their Year End Warranty Claim with TWC. These photographs show a number of gaps between the surface of the exterior stonework and the soffits. The Applicants called a pest control company in order to verify and assist in the removal of rodents and insects which the Applicants believed had entered the attic from these gaps. The female Applicant testified to at least four wasp nests in the attic at that time and to evidence of mice. The pest company removed the wasp nests and left poison for the mice. Despite advising the Added Party of the concern, the Applicants stated nothing has been done to ameliorate the problem.
To support their claim of Warranty breach the Applicants relied on the following sections of Part 9 of the Regulations under the Building Code Act, 19922(“OBC”):
9.19.1.2. (5) Vents shall be designed to prevent the entry of rain, snow and insects.
9.27.2.1. (1) Exterior walls shall be protected with cladding…..to restrict the entry of rain and snow into the wall assembly.
9.32.2.2(1) Openings for natural ventilation other than windows shall be constructed to provide protection from weather and insects.
The female Applicant testified that the addition of frieze board trim would solve the issue and provide the aesthetic design she expected and desired. She pointed to what appeared to be such trim on the sales brochure for the particular model home selected by the Applicants3, as well as to the drawing found in Schedule “P” to their Agreement of Purchase and Sale (“APS”) entered into by the Added Party and the Applicants in May of 2006. The fact that this frieze board was not on the home was, in her view, an omission by the Added Party, and not a minor change. The APS contained a clause providing that “minor” changes, as deemed by the Added Party’s architect, could occur without purchaser approval. She did acknowledge receipt of the Added Party’s architect letter advising that the frieze board was only a minor design issue4.
The Applicants provided evidence that placing the frieze board on the home now would require either removal and replacement of the exterior stone cladding, or its grinding and re-surfacing in order for the trim to adhere to the surface area. Either would be costly. The Applicants filed cost quotes for removing and either reworking or replacing the stone of $3,700.00 and for removing and replacing the soffit and adding frieze board of close to $2,000.00. The Applicants were of the view that application of sealant to the J-mold would not be an acceptable repair as it would be unsightly. A double J-mold was also rejected as a repair option on the ground that it could not completely fill the gaps, given the uneven surface area presented by the stonework. Nor would either of these alternatives answer the issue of the alleged missing frieze board.
Stephen Hunt was the design architect retained by the Added Party for this development. Over the past twenty-five years he has designed over 100 different model homes annually and is involved in municipal permit applications for over 1000 homes each year. He is the past director of the Greater Toronto Home Builders’ Association, and has previously been qualified as an expert in Ontario Municipal Board hearings. His client base includes owners of private million dollar homes as well as builders and developers.
Mr. Hunt explained that the rough stone surface on areas of the Applicants’ home was a design feature. The provision of frieze board trim is purely decorative and he personally is aware of other homes where such trim appears in some of the design drawings but is not placed on the finished product as a consequence of builder and/or purchaser choice. As concerns this development, Mr. Hunt recollected discussions with the Added Party culminating in their decision to leave the issue of frieze board to Mr. Ribeiro’s discretion. It was Mr. Hunt’s opinion that the existence of frieze board on this home would have no effect on its value in the marketplace.
On reviewing the photographs in evidence, he observed that the installer of the molding had clearly made every effort to meet the stone surface as closely as possible. He also noted that the stone cladding does reach behind the soffit thereby providing the requisite protection to prevent the entry of rain and/or snow. There is no need for any frieze board where such surface material abuts the soffit edge. Any vents within the soffit itself seem to be properly meeting the legislative requirement. It was Mr. Hunt’s belief the existing stone could not be ground flat without significant damage to its integrity.
He testified that deviations from his design drawings as filed with and approved by the municipality typically occur during construction without any requirement for either his, or Building Department, approval. Such deviations include minor design issues such as this, or other modifications deemed needed due to site conditions. Only where such changes result in a “material” effect, is approval required.
Mr. Adelino Ribeiro is the President of the Added Party. He testified that the gaps and frieze board were not raised as a concern by the Applicants when they first took possession; nor was it raised on their 30 day deficiency form as filed with TWC. It first appeared on the Year End Warranty Claim and was, in his opinion, only added as a consequence of the Applicants’ decision to pursue every possible warranty deficiency they could discover against the Added Party in reaction to the Added Party’s dispute of their alleged furnace defect during the first winter of possession.
Mr. Ribeiro stated that the frieze board was never a part of the home’s design as he had determined that it was unattractive on the model elevation chosen by the Applicants. As a consequence there was no such trim on any of the homes in the development of a similar elevation, including the model home. He acknowledged that it did appear on the sales brochure sketches (which include a waiver as to exact replication), as well as Schedule “P” to the APS, itself a copy of the brochure sketch. The Added Party relied on the APS disclaimer set out in Schedule “B” which reads:
The Vendor further reserves the right to make minor changes or modifications in the plans and specifications at its sole discretion. The determination of whether or not same are minor shall be made by the Vendor’s Architect….Actual elevations will be similar to Artist’s conception but may not be exactly the same. 5
Mr. Ribeiro also disputed the Applicants’ reliance on the OBC sections quoted above. He noted that the frieze board was neither a vent nor a unit for ventilation. There was no suggestion that the soffits, which do include vents, were not properly attached and manufactured. As to the issue of cladding, he reiterated Mr. Hunt’s testimony that the stone cladding did meet the intention of the legislation. Nonetheless, in an effort to satisfy the Applicants he had offered to have additional sealant placed on areas where the gaps were noted. This offer had been refused. The Applicants had advised that they wanted the frieze board for aesthetic reasons and would not accept a sealant remedy.
Mr. Ribeiro testified that, given the home’s location abutting open fields, there was a high likelihood that rodents and insects can and will gain entry whatever action is taken, as homes have many openings necessary for ventilation.
Mr. Dave Cecatini inspected the Applicants’ complaints of warranty deficiencies and drafted the Decision Letter from which this Appeal is taken. Although now Manager of Field Claims for TWC, he was the Field Claims Inspector responsible for review and determination of their Claim. Since 2006, he has inspected roughly 18 to 20 homes monthly for compliance issues. Unlike many of his colleagues in TWC, he is certified in Part IX of the OBC dealing with residential construction. He has built his own home and was raised in a family involved in the construction industry.
Due to the large number of items which the Applicants claimed, his Claim inspection took three days in the spring of 2008. Of the 204 items claimed, 24 were determined warranted. Seventeen others were placed under further investigation. The remainder were deemed not warranted. He did not warrant the missing frieze board and/or the gaps. Mr. Cecatini stated that the mold appeared to him to have been attached in a workmanlike manner as required under the ONHWPA, as it was clear the installer had carefully attempted to follow the stone cladding as tightly as possible given its rough surface. Nor was there anything to suggest it was failing in its purpose which is to support the soffit.
Mr. Cecatini concluded from his review of the APS that the frieze board was a design item and not therefore warrantable. Nonetheless, he suggested the Added Party could add sealant to the area to fill in some of the apparent gaps in order to reassure the homeowners that rodents and insects would not easily penetrate. The male Applicant made it clear, however, that any such effort would be torn down, as the only remedy acceptable to the Applicants was the addition of frieze board.
(b) Window pillar/sills slope (item 17):
The Applicants relied on their photographs6 of various window sills on the home’s exterior - as well as the sill portion of decorative stand-alone pillars on the property - to demonstrate their claim that the Added Party had breached its new home warranty by contravening the OBC. It was their position that s. 9.7.2 of the OBC mandates that windows must comply with CAN/CSA – A440 – M (the “CSA 440 Standard”). The latter in turn requires that sills have a minimum 6% slope to the exterior to ensure no water buildup can seep into the cladding of the home. The photographs illustrate a number of basement windows, and one master bedroom window. On one of the basement windows the photograph shows a level held against the masonry sill with the bubble located toward the exterior of the sill. The male Applicant testified that only one of the windows and none of the pillar sills, were sloped to the required 6%.
When asked whether the homeowners had suffered any damage as a result of the alleged contravention, the Applicants noted one area under the basement window where there was evidence of water staining, although this area was beneath a window, the sill of which did measure the required 6% slope. They had not shown this water staining to the TWC representative who investigated their Claim and had never arranged for a water test to verify leakage. The male Applicant conceded other reasons may have caused the water stain, including his observation that the home had been open to the elements during construction. He further agreed that this item of the Claim had only been raised after their relationship with the Added Party had broken down.
The Applicants provided estimates from two separate contractors they had contacted to reslope the window sills of their home. These estimates provided costs of between $2,100.00 and $1,800.00 plus taxes7.
The Added Party denied any breach of warranty in the installation of the window sills. Mr. Ribeiro testified that the CSA Standard is not an agreed industry standard and thus the 6% slope is not a requirement. Rather, the purpose of the need for a sill slope is reflected in the OBC requirement to ensure moisture can not enter the interior of the living area. Given no living area in decorative pillars, it was his position that there is therefore no requirement that sills on decorative pillars be sloped.
As concerns the sills under the master bedroom, the OBC requirement of a slope is only triggered where there is no “concealed flashing” which would direct any such moisture to the exterior of the home. In the master bedroom, there is no evidence that such flashing is missing. With regard to the basement window sills, Mr. Ribeiro noted these are part of the foundation of the building and, as a consequence, not subject to the requirements of the OBC section.
The Added Party further noted that the measurements relied upon in the Applicants’ photographs are taken from the improper location of the upper surface of the sill, in direct contrast to the wording of the OBC.
Mr. Cecatini stated that there had been no evidence of any relevant damage shown to him by the homeowners during his inspection. His measurements of the sills slope led him to conclude it was unlikely any snow or rain would seep into the cladding of the home from the sills. He noted the photographs in evidence demonstrated some snow accumulation on the ground, but no moisture buildup on the sills. He concluded that the claim was only raised following minute scrutiny by the Applicants of possible technical breaches made in the home’s construction.
(c) Window seals and adjustments and (d) condensation (items 33 and 56):
The male Applicant claimed there were defects in the home’s window seals as supplied by the window manufacturer. The manufacturer had attended at the residence on more than one occasion to perform repairs to the seals; however, the homeowners remained concerned that excessive air infiltration entered the home from the windows in general, but particularly from the large master bedroom windows which, on occasion, had exhibited condensation. The Applicants concluded that improper installation of these windows by the Added Party had exacerbated the original faulty seals resulting in their claim of excessive air leakage.
In part, they relied on the fact that, after complaining to the Added Party that one of the home’s windows opened from an awkward side, the Added Party had the window re-installed and, in doing so, had simply drilled new drip holes in what then became the bottom. The homeowners believed this was an unworkmanlike installation which indicated all windows in their home were improperly installed.
The Applicants also relied on the earlier referenced report from the independent heating company retained by TWC to assess their 30 day Claim of a faulty heating system. This report had concluded their original furnace was too small and that air infiltration tests should be performed on all window, door openings and electrical boxes. As earlier noted, a new furnace was eventually installed at the behest of TWC. When the Applicants continued to complain of air infiltration in the master bedroom, the Added Party requested access to perform the air infiltration test. The Applicants denied this access, claiming TWC should provide the testing in an impartial and independent fashion. TWC did not do so. The Applicants determined the procedure was too costly for them to fund. Instead they relied on their own pencil smoke test, evidenced by video, as well as the Report and testimony of Mr. J. Quackenbush, which is outlined below.
In 2008 warranty repairs to the window seals were performed by the window manufacturer. Photographs taken by the male Applicant demonstrated that these repairs resulted in overlaps to some of the seals. The Applicants believed this repair was improper, but further efforts to have the window manufacturer remedy their complaints proved fruitless. In March, 2009 the window manufacturer reviewed the Applicants’ concerns and determined no further action was required as the windows were all performing in accordance with specifications8.
The Applicants claimed that on the day the manufacturer’s employees re-attended to review their complaint in 2009, there was no wind and therefore no evidence of excessive air infiltration. As a consequence they arranged for Mr. Quackenbush to review their windows for suspected inadequacies. He attended their home some weeks later. He and the male Applicant took numerous measurements and removed the casing on one of the bedroom windows.
The Applicants relied on the window manufacturer’s sticker placed on the windows stipulating compliance with the installation requirements set out in CSA 440 Standard9. It was their conclusion, however, that the installation exhibited numerous contraventions of standards set out in CSA 440 Standard pertaining to the use of shims, screws, and insulation, as well as requirements that measurements be level and square. Their photos of the destructive removal of the window casing demonstrated a failure to meet the requirement in the CSA to provide a “continuous bead of sealant” as well as evidence that insulation in the frame was 1-11/2 inches in a plane depth of over 4 inches. One photo demonstrated a window frame had been nailed as opposed to the requirement in the CSA that it be screwed; another illustrated no shims.
As proof of improper installation, the Applicants gave evidence on condensation occurring on the master bedroom window. They conceded this was the only window in the home which exhibited the condensation. It was the window where the casing was removed during the visit by Mr. Quackenbush. The Applicants produced photos dated November, 2007 they had showed to Mr. Cecatini during his conciliation inspection of 2008. They also produced photos showing condensation taken more recently in January, 2009. They further had Environment Canada Weather Reports for both dates showing the temperature and relative humidity morning readings at the time.
The female Applicant provided her own video evidence of the alleged air infiltration. It did illustrate air currents and movement around the window seals of various windows on a number of dates in the spring of 2009.
It was conceded that this evidence, being based on the utilization of a smoke pencil at the window frame edges, could not provide evidence as to the quantity of air movement and therefore could not demonstrate whether the amount of air infiltration exceeded the tolerance allowed in the OBC10.
The female Applicant advised that Mr. Cecatini had re-attended the home with M&O Construction to perform a thermal imaging test following the Applicants’ Notice of Appeal in February 2009. The results concluded there was no defect with the windows and no evidence of excessive air infiltration. She believed that this was false information based on bad faith by Mr. Cecatini in administering the test.
The Applicants’ position is that the homes’ windows were not installed correctly and require replacement. They provided quotes for the cost of this replacement at between $31,956.64 and $55,000.00 11.
In cross-examination the male Applicant conceded that the CSA A440 Standard is not an industry requirement, but, in this case, was recommended by the manufacturer.12
Mr. J. Quackenbush gave evidence. He is a member of the Ontario Association of Home Inspectors, a certified inspector with the Window/Siding Association of Canada and the WindowWise Program. He explained the latter was a voluntary Program available to window manufactures promoting best practice in window design and installation standards which, he acknowledged, went “above and beyond” the current industry standard. He was accepted as an expert witness by the Tribunal on window installation requirements with the noted exception that he was not an expert concerning air infiltration testing performed on the home.
His Report and photographs13 were entered as exhibits. Mr. Quackenbush stated that his measurements of various windows in the home demonstrated what he concluded were multiple deficiencies involving numbers exceeding the tolerances for plumb and square causing window sash drag. He further found evidence of inadequate shim placement and inadequate insulation on the bedroom window when he assisted the male Applicant remove the window casing. Finally, he found drainage ports on windows installed at the side rather than the bottom where they are required and improper seal repairs. In his opinion, where installation errors are found on one window, they will occur on others.
He conceded that the smoke test employed by the female Applicant did not pretend to establish whether the air movement which was observed was, in fact, within the OBC tolerance. It was his opinion, however, that the pencil test demonstrated a potential for excessive air infiltration. He conceded that there could be errors in the test results given the effect of normal air convection movement in the home.
In cross-examination Mr. Quackenbush allowed he was not experienced in framing or in weather tightness of windows. He agreed that as long as a window stops air penetration to the measure provided in the OBC, it is considered acceptable.
He admitted that he had not used any tools to measure the square/plumb of the windows other then the level and/or square seen in the photographs. He agreed it was a “rudimentary” inspection. He conceded that the industry tolerance for bowing was ¼ inch over a 2 foot span and acknowledged that not one of his measurements exceeded this tolerance. This tolerance was not, however, acceptable for either the CSA or WindowWise standard, which, he agreed, were more stringent than the OBC. He admitted that what he deemed were cracks in the corner welds of the window units would likely not have occurred at installation, but would rather have occurred at manufacture.
He conceded there was no determination as to whether shims were placed in the master bedroom window where the destructive testing took place. His conclusion they were omitted was only an assumption. It was his evidence such shims are necessary to keep a window level in the frame; however, he also conceded that where the garage window had no shims, there was no evidence of any resulting bowing or distortion.
He acknowledged that his review took place two and a half years after possession by the Applicants and that in all cases the windows operated, although one demonstrated some sash drag. He concluded that in all of the cases where he noted a failure to meet the WindowWise and/or CSA 440 Standard, the appropriate remedy would be adjustment and none of the windows required actual replacement.
He further admitted that on the window where he observed side frame drip holes, he had observed other holes had been drilled on the horizontal edge as required although this observation was not included on the caption for the photograph he took of the window. He testified that the Applicants must have added the captions to the photographs following his Report. He remained concerned this modification could negatively impact the original manufacturer’s product with the result that the CSA rating for the window was no longer being met. He had similar concerns with the weather seals repairs which he had understood had also been performed by the Added Party. When informed the former had been drilled with the approval of the manufacturer and the seals had been repaired by the manufacturer, he acknowledged he could no longer conclude the windows would fail to meet the certification standard.
With reference to the insulation, Mr. Quackenbush conceded it was “next to impossible” to get the pink insulation right through the gap which was the reason why the Window Wise program recommended using foam insulation. He agreed that foam insulation was not required as an industry or OBC standard. He testified that what he considered inadequate insulation would contribute to a cooler window frame temperature, but allowed it was sufficient to stop air infiltration.
Finally, on cross-examination, Mr. Quackenbush acknowledged that the CSA standard requiring screws in the window framing related to the portion of the frame which is vinyl or aluminum whereas the nails illustrated in the his photos of the Applicants’ windows appeared on the wooden portion of the casing.
Mr. Gordon Cooke was called by the Added Party as its expert for the window issue. Qualified as a professional engineer by the University of Toronto in 1980, Mr. Cooke is President of Air Solutions Inc. and Building Knowledge Canada. He has operated his own business for 22 years in residential heating and air quality. He is a trainer for the Canada Housing and Mortgage Corporation (CHMC) Indoor Air Quality Program and currently teaches courses for the organization on mould remediation. He is also chair of the CSA Standard Housing committee currently reviewing the CSA requirements. He is one of only 20 qualified individuals performing energy star program testing on homes for compliance with the standard. He was accepted by the Tribunal as an Expert in air leakage and air movement issues within the home.
Mr. Cooke advised that the single most common cause of heat loss in a home is the surface area of the room. The second most common contributor is air leakage which is largely reflective of the amount of glass in the room, the direction the glass is facing and its R value. While new home walls generally have an R value of R20; new windows are usually only R2.
The geographic distance of the room from the heat source is also a factor impacting on room temperature. In the Applicants’ floor plan he measured the master bedroom as the furthest room from the furnace, a distance of some 52 feet. It is also the room with the most surface area of glass in the home. The master bedroom windows exhibiting condensation have a northern exposure which is where most Canadian winter weather originates. They also look out over open exposed fields. All of these factors would contribute to the room being cooler in temperature than are others.
To determine excess air leakage in a room, Mr. Cooke advised that the ASTM E283 referenced in s. 9.7.1.7 of the OBC is the only test which differentiates air leaking from outside with that of normal air movement within. As window surfaces are cooler than the ambient air, warm air inside the home will rise and move along the surface of the window when it makes contact. The pencil or smoke test can not distinguish whether the air movement which it tracks is the result of leakage or interior convection currents.
Mr. Cooke testified that consumer concerns of condensation are frequent. He has, however, never observed condensation as a consequence of poor window installation. Rather his opinion is that condensation occurs more frequently in today’s construction as a consequence of better weather tightness in buildings, as well as a tendency to oversize furnaces, both of which, in his opinion, are the case in the Applicants’ home.
The Added Party contracted Mr. Cooke in January 2008 requesting he review the basis for TWC’s decision to install a larger furnace in the Applicants’ home. He concluded the information upon which TWC had proceeded was based on out-dated formulas for heat loss calculations now being reviewed “..because research by CHMC, Natural Resources Canada and HRAI (Heating Refrigeration and Air Conditioning Institute of Canada) shows they all result in significantly oversized heating system designs.”14 He recommended the ASTM air leakage test be performed before the furnace was replaced and was later hired by the Added Party to attempt to perform the ASTM test on the Applicants’ home in order to verify the allegation of excessive air infiltration. As has been noted, access to do so was denied. He did, however, perform the test on the Added Party’s model home which revealed that the model was tighter than the average new home construction
In his opinion the condensation on the Applicants’ window reflected in the two photos dated November 2008 and January 2009 is not attributable to dry outside air entering the home but rather to moist and humid interior air meeting the window surface. When advised that earlier testimony had demonstrated the Applicants’ home has interior humidity levels maintained at between 42% to 58% to properly acclimatize their hardwood, Mr. Cooke advised that such interior humidity will necessarily lead to condensation15. On average, Canadian windows can not withstand relative humidity higher than 30-35% without exhibiting some condensation. He listed numerous factors which trigger condensation, including that the Applicants did not set back their thermostat at night, that the window was a bay window and not flush with the wall, and that the master bedroom had an adjoining ensuite. He noted the complaint concerned the only window in the home which was both deep-set and exposed to northern weather.
Mr. Cooke testified that the CSA 440 Standard is a requirement for window manufacturers in producing windows for construction. It is a requirement of the OBC that windows meet its standards for weather tightness, etc for certain window classifications specified. The evidence revealed the Applicants’ window classification was not so specified.
He testified that installation requirements set out in the Standard are not OBC mandated, but may be recommended by a window manufacturer in an effort to maintain adherence to their performance rating. Mr. Cooke advised that the CSA Standard is further a factory standard and windows are not expected to perform to the same level in the field. WindowWise is an independent member organization with its own standards for window installation including a reduced tolerance for measurements and foam insulation. Neither it nor the CSA standards, in his opinion, are necessarily recommended. For example, his ten years of study of the foam insulation recommended by WindowWise has led him to conclude it causes bowing of windows and should not be recommended. A similar controversy exists in the industry with respect to the use of shims specified in the Standard. Many manufacturers don’t promote their use because they have the effect of preventing the window from moving with the natural settling of the home.
In cross-examination Mr. Cooke stated that all doors and windows leak air to some extent. Recognizing this, the OBC allows for a tolerance that is quantifiable16. Further, there is movement in a home as it settles and windows/doors must be installed to allow for some flexibility of movement. That flexibility has been determined in the industry at a tolerance of ¼ inch over a 2 foot span. If a window measures outside this perimeter, then there may be an issue.
Mr. Cooke found that insulation at a depth of ½ inch was sufficient. He concluded that stuffing greater insulation into the air pocket (itself necessary for air movement) would be more problematic.
Tajinder Singh has worked for the window manufacturer for more than eight years. For five of those he was a service technician dealing in consumer complaints. For the last one and a half years he has been the lead hand in this service department. He attended the Applicants’ home as part of his employer’s effort to respond to their concerns.
Mr. Singh first worked on the Applicants’ windows in August 2008, following complaints of improper weather seals on the window units allowing air infiltration. Given that the seals are welded at the factory, the only repair available on site after installation is to overlap replacement stripping. He and a colleague performed this repair on all offending windows by overlapping the stripping, which he stated was a standard repair and does not void the manufacturer’s warranty coverage. Mr. Singh reviewed the photographs of the overlapped seals, as produced by the Applicants and referenced by Mr. Quackenbush, identifying them as illustrating the repairs performed by himself and his colleague. They had completed the repairs, checked to ensure no sash drag existed on any window, and concluded all windows were properly operational. If any window had been defective or required replacement, they were authorized to perform the replacement there and then and did not require pre-approval to do so. The female Applicant had signed off on the Work Order that all “work was completed fully”. She was granted a further year warranty extension17.
Mr. Singh testified that drill holes can be placed on additional portions of a window unit in the event installation requirements involve a change in the manner of installation by the builder on site. This is not uncommon and only requires a capping of the original holes. He could not recollect the Applicants ever complaining to him that one of their windows had not been properly drilled or capped.
Mr. Singh re-attended with his manager in March 2009 in response to the Applicants’ continued complaints of air leakage. They were taken to the windows in the kitchen and master bedroom where they verified the weather-stripping on the units were making the appropriate contact and that the windows fit tight. Every window identified by the Applicants was reviewed. All operated as designed without any abnormality, although Mr. Singh agreed there was not much wind.
In cross-examination Mr. Singh stated he never thought he would be called back to the home after the first repairs in August 2008, given the original corrections performed. He remembered this particular home because it was unusual to have an extended conversation with homeowners over possible air leakage concerns. He also remembered putting his hand against the master bedroom window seal and feeling nothing unusual. He acknowledged that he had worked on the building exterior while his colleague was on the interior - stating that this was the normal procedure when checking seals and weather-stripping to ensure contact is verified from both angles. Various photos taken by the Applicants were put to him, which he agreed might demonstrate minor and normal settlement best remedied by simple adjustment if required. Cracks in corner seals were, he stated, best remedied with sealant. Any drag on a sash, if it now does exist, would also most properly be remedied by adjustment, as this too is a normal condition arising as the house settles. Nothing shown to him by the Applicants during either of his attendances at the home led him to conclude a replacement or readjustment might be necessary.
Mr. Ribeiro corroborated Mr. Cooke’s evidence that the CSA 440 standard is not a requirement for builders on installation. He acknowledged that the manufacturer’s labels on the Applicants’ windows did recommend installation in accordance with this standard, but re-iterated that the builder’s obligation under the Act is to OBC and industry requirements, not CSA standards.
Were the CSA in fact the appropriate standard, it was Mr. Ribeiro’s position that the Applicants’ photographs failed to demonstrate that the installation did not meet CSA requirements. For example, photos attempting to demonstrate windows out of square illustrated a level placed against the window sash, which Mr. Singh testified is adjustable, and not against the frame where the measurement should be taken. Further, the measurements are taken from the exterior. As windows are installed from the interior, any plumb/square measurement should properly be taken from the interior. Finally, window units are rigid when received from the manufacturer. To have significant bowing of the window, there would need to be some severe bend in the frame on installation. In fact, as Mr. Cooke testified, manufacturers anticipate some reasonable settling and movement and therefore do not want a window unit to be installed too tightly since that would cause pressure which, in turn, can lead to cracked window panes.
All the photographs on which the Applicants relied, as well as the measurements of the windows taken by the male Applicant, were taken in the summer of 2009, almost three years after possession. If in fact some windows are out of square, it would not be abnormal nor an indication of poor workmanship or building deficiency. Were either of these the cause, this would have been apparent at possession and certainly by the time of Mr. Singh’s inspection in the summer of 2008.
As regards the Applicants’ evidence of condensation, Mr. Ribeiro advised that of the approximate 1600 homes he has built over the last 6 years, condensation is often an issue. He noted the complaint is so widespread that TWC, CHMC and other industry players have all issued consumer publications addressing the issue. All conclude the number one cause is humidity levels in the home especially for the first few years after construction while building materials dry out. The CHMC publication recommends interior humidity levels of less than 30% during colder weather18.
Unique factors of each homeowner’s living conditions must also be considered in reviewing probable causes for condensation. As noted by Mr. Cooke, the Applicants’ windows which show condensation are those furthest from the furnace. Ninety feet of ductwork is in place between the location of the bungalow’s furnace and these windows. The distance was due, in part, to the homeowners not wanting the furnace located in the centre of the basement. The windows are in the master bedroom which faces north and the closest adjacent home is over 400 feet away. The windows are exposed to the prevailing winds. There are three large windows in the room, one with three panels. Given all these factors, there is no doubt that the room is cooler than others in the home. Further, there is an ensuite tub and shower and Mr. Ribeiro continues to believe that the new furnace is over-sized based on three separate reports he commissioned concluding the original sized furnace was appropriate. The evidence demonstrates further that the Applicants do not set back the thermostat at night and do maintain high humidity levels throughout the home, the lowest in evidence being 41%.
If condensation was a result of poor window installation, as alleged, then it should be apparent on more of the 30 plus windows in the home. It is not. The evidence of condensation is restricted to only the one window in the master bedroom and only on two cold weather occasions.
Nonetheless, in response to ongoing complaints, TWC arranged to conduct thermal imaging tests of the bedroom surfaces in February 2009. The results of this independent review established some cold air spots in room walls but not around the windows. All of the affected areas were repaired by the Added Party. The Applicants remained dissatisfied and, in June of 2009, conducted the destructive testing on the master bedroom window and brought in Mr. Quackenbush as part of their ongoing efforts to establish builder deficiency.
Mr. Cecatini testified his first inspection in May/June of 2008 revealed no evidence of the condensation alleged by the Applicants. However, given that homeowners often complain about condensation, he checked the window operation and seals observing no evidence of any operational deficiency. He was aware that the manufacturer had performed repair service to the seals and concluded there was no warranty issue. He also checked for excessive air infiltration, finding it non-existent. He determined there was no need to arrange for an air infiltration test. Mr. Cecatini advised the homeowners that some air infiltration is expected, particularly on windy days with exposure such as theirs. The Applicants showed him the video of their pencil smoke test. He noted the pencil against the window seal, the heat registers beneath the windows and the large panes on the windows. He concluded the movement as illustrated was most likely convection currents, was not alarming and did not cause him to be concerned that the tolerance of air allowed in the OBC was in any way breached or exceeded.
He was also shown photos taken by the Applicants of the condensation they found on their master bedroom window in the morning of January 24 2009. He noted it was early morning on a cold winter day. He was aware of the heat registers under the windows and the ensuite shower and bath. He advised the homeowners about the effect of relative humidity and that condensation is a normal condition which must be controlled through the environment as explained in the CPG19. He was not concerned enough to take temperature or humidity readings. He concluded the Applicants’ windows were properly installed and were fulfilling their purpose and denied their claim.
In response to continued complaints by the Applicants, he re-attended after issuing the Decision Letter in the winter of 2009 to conduct thermal imaging on the bedroom walls. TWC concluded this was the appropriate test to conduct since the Applicants’ claim was of excessive cold in the bedroom from numerous areas including walls and outlets as well as windows. Only thermal imaging could pin point areas to determine whether there was a temperature differential suggesting a problem. The results of the test concluded there was no abnormal or unusual air leakage from the window areas. Mr. Cecatini noted that the wall in question is comprised of 90% window which results in little insulation and explains the 10 degree difference in the imaging test temperature readings moving from top to bottom of the window pane.
Mr. Cecatini denied the female Applicant’s suggestion that he instructed the M&O employee conducting the test to exclude any areas – and testified that the fact that the images did not encompass window corners was not intentional.
Mr. Cecatini was not present for the later destructive testing undertaken by the Applicants and Mr. Quackenbush, but nothing in evidence at the hearing led him to alter his earlier conclusion there was no warranty breach by the Added Party in installing the windows. He was never advised by the Applicants of any complaint concerning measurements, and therefore did not check whether the frames were square, plumb and level. Nonetheless, the OBC intention is to ensure windows operate without drag or friction and his own observations, supported by the window manufacturer, demonstrated the Applicants’ windows did so.
In cross-examination Mr. Cecatini denied ever refusing to conduct a blower test. It was his conclusion it was not necessary and would not have been helpful as it does not isolate windows but rather rates the room as a whole for air infiltration. He noted the Applicants had never raised this as an issue during his inspection of their claims.
(e) Floor joist inadequacies (items 48, 57, 58, 59 and 60):
After possession the Applicants noticed a floor vibration. Their subsequent investigation revealed the following concerns with the floor joists installed by the Added Party:
(i) not in accordance with contract, unauthorized substitution and inferior (items 48 and 60):
In contrast to the architectural drawings they had reviewed prior to signing the APS, the Applicants discovered that the joists installed in their home were not AJS 15s. Part of the Applicants’ investigation included their requesting the permit approved architectural plans of their home from the municipality building office. On receipt, they found the plans were not of their elevation design. The municipality issued a Compliance Order to the Added Party in March of 2007 for the correct plans. These were provided20 and reviewed by the municipality in June 2007. They show AJS 15 joists are contemplated. However the joists installed in the home are rather AJS 20 and QFS B310. The Applicants claim both have reduced strength characteristics from the AJS 15 as indicated in reports from the National Research Council and Minister Rulings21.
The female Applicant testified she requested additional plans from the lumber company responsible for the joists22. These plans were also provided to the municipality by the Added Party by fax in May 200723. They do reference both the AJS 20 and the QFS B310 joists. The Applicants submit these plans are also improper, however, as they do not include the engineer’s stamp.
(ii) Insufficient number of joists (item 58):
The original plans submitted to the municipality did not truly reflect the joists installed. While the architectural plans illustrated joists in certain areas installed at 12 inches off centre, the male Applicant stated his measurements demonstrated that joists were actually placed 16 inches off centre. The Applicants concluded this had resulted in weaker support to the flooring than that contemplated by the architect.
(iii) Insufficient blocking/bridging (Item 57):
A further issue was that the architectural plans called for blocking which was not provided. In one area it has since been added in response to TWC finding of a warranty breach. However the Applicants allege that this work was improperly performed. The Applicants rely on the fact that they can place a sheet of paper between one of the added blocks and the subfloor24. They also allege the blocking in another area fails to actually abut the joists, thereby failing to prevent the joists shifting25.
The Applicants also claim that blocking as mandated under the OBC in Part IX, section 9.23.9.9 has been breached with respect to non-load bearing walls running perpendicular to joists. They rely on their photographs illustrating nails protruding adjacent to the joists under the foyer/ living room and foyer/library walls. It is their position that the nails indicate the walls are perpendicular to, and not resting on, the joists.26
The Applicants also contend that the bridging envisioned by the architect under the ceramic kitchen floor has been omitted in the construction in contravention of the OBC27.
(iv) Dropped header/warp (item 59):
A header joist illustrated above a window in the architectural plans in reality consists of two 2x4 pieces nailed together.28 Another joist appears warped and the Applicants claim it should be reinforced.
The Applicants also rely on a photograph of a basement window to illustrate a further complaint that a cross joist has dropped. The Applicants believe this drop may explain problems in the master bedroom flooring above. In cross-examination they admitted there was no sign of any distress in the wood, no pulled nail or splintered material, and that it was possible the header had been installed at a slight height difference from one end to the other. The cross joist was measured during the TWC inspection and a difference in height at one end was noted at 3/8 inch. Nevertheless TWC denied any Warranty coverage.
Other than allegations of a vibration felt when walking over areas of the flooring and a dip in the master bedroom hardwood, the Applicants had no evidence of any damage resulting from the alleged deficiencies. In cross-examination, the female Applicant suggested she had also noted some vibration when a neighbouring community centre held dances. She conceded that, despite their having inspected the ceramic tile application on the main floor in some detail, there appeared no indication of cracks or grouting issues; she had, however, heard the ceramic mortar cracking.
The Applicants provided an estimate for $1,869.00 to add joists every 4 linear feet in order to compensate for the inadequate joist strength installed. A further cost of $488.00 was estimated to add a joist under the library. Since the Added Party had provided blocking to the west wall, no claim was included for that area. Blocking under the non-load bearing wall was estimated at a price of $414.00 and replacement of the warped joist under the master bedroom was priced at $210.00. There was no estimate for the repair of the alleged deficient header.
The architect Mr. Hunt explained that the plans he created for the design of the Applicants’ home were initially drafted in 2005 and last updated in the spring of 2006 before the Applicants’ home was constructed. These plans were filed with the municipality prior to the APS between the Applicants and the Added Party.
Mr. Hunt noted the specific disclaimer on his plans as filed with the municipality that structural elements are set out in separate engineering plans. Mr. Hunt is not an engineer and therefore his design comprises the lay-out/elevation only. While he acknowledged that he had referenced AJS 15s on his drawings, choice of joist is always subject to final approval by the structural engineer, hence the disclaimer on the plan. Often a builder will change suppliers of joist material or, based on site conditions, alter numerous design elements. It is only where such an alteration impacts the integrity of the design or has OBC implications, that the engineer’s or architect’s approval is required. Mr. Hunt and his company no longer specify a type of engineered joist on plans because of the frequent changes in these products by builders.
Edwin Fok received his professional engineering qualifications from the University of Toronto in 1982. He is registered to provide engineering services in Alberta and Manitoba as well as Ontario. Since 1990 his primary work has been in timber design. His engineering company was responsible for the engineered joists in issue as provided to the Added Party by the lumber company. The lumber supplier is itself a major player in the provincial field having supplied material to over 10,000 new homes.
Mr. Fok stated that the Applicants’ reliance on Part IX of the OBC was not appropriate in this instance as the engineered joists in their home were instead subject to Part IV of the OBC. Part IX OBC protection, written for conventional wood products, is not the relevant standard when this product is used.
He recollected being telephoned by a lady concerning the Applicants’ home who had questioned him about the need for blocking under ceramics and the kitchen area. His opinion was that the blocking requirements set out in Part IX of the OBC are not required because the engineered joist product used in the home is built to withstand greater weight than the joists envisioned in the OBC. In response to the homeowner’s concern, he had written a letter to the lumber producer expressing the above opinion in March of 200929.
He had never been advised there was an allegation of an interior non-load bearing wall not supported by a joist. If such a wall was not properly supported, then blocking as set out in Part IX would be required.
Mr. Fok corroborated Mr. Hunt’s evidence that architectural plans initially provided to the municipality are subject to the professional engineer’s approval for structural elements. He opined that his structural plans in evidence did not bear his professional stamp because not all the package appeared to have been reproduced by the Applicants. Nevertheless, he identified the 2007 filed engineering plans30 as his own approved Plans noting they reference both AJS 20 joists and QFS B310 joists. He testified that the engineered joist products had been altered from the architectural sketch due to the fact that the AJS 15 as called for in Mr. Hunt’s 2005 drawings were no longer being produced when this home was being constructed in late 2006.
Mr. Fok advised that AJS 20 and QFS B310 are appropriate alternatives to the defunct AJS 15s. Mixing of joists is normal in construction and even conventional and engineered joists can be used in the same building structure. While the QFS B310 does not share the same strength characteristic as the AJS 20 at the same span, it is equivalent at spans of 14 feet or less. The engineer stressed that support strengths of a joist are only determinable based on the joists’ span or length. The Applicants’ drawings demonstrate that the QSF B310 only exists where the original design called for joist spans shorter than 14 feet. Those installed are consequently appropriate and he is satisfied meet all structural requirements. In fact, Mr. Fok believed that the Applicants’ suggested remedy of adding of extra joists would be of no benefit and might trigger future problems.
Mr. Fok compared the Applicants’ drawing of the actual joists in the home with his own approved plans concluding that the only change was that the installer had apparently added extra joists on either side of the cold cellar, as they had been placed at 12 inches off centre as opposed to his design which had called for placement at 16 inches off centre. Mr. Fok’s opinion was that this would have the effect of strengthening the floor. He queried whether the consumers had perhaps paid extra for the upgrade.
As early as 2007 the lumber company advised Mr. Fok of the Applicants’ concern that different joists were used in the home than appeared on the architectural plans. Mr. Fok had responded in writing to confirm the above information31.
Mr. Fok testified that the perception of floor vibration is subjective. Some vibration is to be expected as, in fact, some tolerance and movement is necessary. It is therefore necessary to look to other evidence to determine whether a vibration complaint actually indicates a deficiency. His view of the Applicants’ photographic evidence was that the allegedly warped header apparently continued to make direct contact with the subfloor and would consequently not be the cause of any increased floor vibration.
Mr. Ribeiro denied that the architect plans and/or engineer floor plans were part of the APS contract of the Applicants and the Added Party. He referred to Schedule A32 of the APS which in the first clause limits the builder’s obligation to construction built in accordance with those plans “already examined”. He noted that Mr. Fok’s structural floor plan was never examined in advance of the APS by the Applicants.
Mr. Ribeiro further relied on Schedule B of the APS which only referenced “engineered” joists with no model code or number particularized. The Applicants had received such engineered joists.
According to Mr. Ribeiro, municipal Orders to Comply are not uncommon in the construction of a new home. It is therefore important to consider the substance of the Order issued and not merely the fact that one was issued. Here the evidence demonstrated an oversight in the filing of certain documentation with the municipality which was immediately rectified once the Added Party was informed of the error in the spring of 2007. It was the Added Party’s evidence that this omission was a paper oversight only and did not indicate was any structural error or omission in the construction. Indeed, the home had been subject to all the normal municipal inspections and permits throughout the building process and no issues had arisen as a consequence. Further, once made aware of the paper omission the municipality had been satisfied with the late filing of the engineer’s floor plans and Mr. Fok’s letter of March 2007, with the result that no further Orders to Comply were issued.
Mr. Ribeiro denied any deficiency in the header which was alleged to have dropped, noting that there was no evidence of any material distress which would be a factor if there was a failure in the support.
He also denied the Applicants’ allegation of repair failure as demonstrated by the paper fitting between the blocking and the subfloor and joist ends. He explained that the blocking was intended to provide additional support for lateral movement between joists and was not meant to add support to the subfloor. He also noted that of the dozens of blocks which the Added Party had added in order to appease the Applicants, this was the only one the Applicants had photographed.
Finally, as concerns the allegation that the Added Party had failed to provide blocking under a non-load bearing wall which was not placed directly over a joist, Mr. Ribeiro’s evidence was that this was improbable. He concluded that in the Applicants’ photographs of the nails on the side of the joist, the nails were not established as being used to support the non-load bearing wall. Rather, the staples seen in the same evidence support the more likely case that the nails indicate the placing of the hardwood flooring. Even if the nails were indicative of the wall as alleged, it was Mr. Ribeiro’s testimony that the blocking which is in place provides sufficient support. Following the pre-hearing in the spring of 2009 the Added Party had expressly instructed its trades to carefully go through the basement and add blocking wherever there was even a possibility it was needed. They had done so in cases where it was not needed and yet had not done so in this location. Mr. Ribeiro added that the Applicants had never expressly advised him, his trades or TWC that they had a concern with this area of the construction.
Mr. Cecatini corroborated Mr. Ribeiro’s testimony on this point. At no time had he ever been made aware that the Applicants were concerned a non-load bearing wall was improperly supported and further blocking was thus required. In fact, he also noted that the reason the municipality had ordered engineering plans be provided in March 2007 was because the building inspector had been at the home at the Applicants’ request to inspect what they believed were inadequate and improper joist supports. No issue of non-load bearing walls had been raised.
When Mr. Cecatini completed his inspection of the home in 2008, he was aware that the municipality had already reviewed this aspect of the claim in some detail. From his review of building plans proffered by the Applicants as well as the APS, he concluded there was no warranty breach, given that the contract specifically limited the joists to “engineered floor joists” only. In order to satisfy himself that the engineered joists provided were structurally sound he asked the Applicants to provide a sketch of what they actually received. When he compared this sketch to that of the engineer’s floor plan, he believed there was only one area of missing blocking on the west wall which he ordered the Added Party to install. They did so and he concluded that they did so properly.
Mr. Cecatini advised he had assessed the claim of the dropped basement header. He observed no evidence of any drop in the manner of splintered wood or other failure. His measurements revealed a 3mm difference in the height of one of the headers over the other, which he concluded was minimal and posed no threat to the integrity of the unit. He concluded that there was no failure and that, assuming the header had been installed at the slight variance exhibited, there was no reason to assume this should be warranted.
THE LAW:
The Act includes the following provisions:
Warranties
s.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;
(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. R.S.O. 1990,c.0.31, s. 13(1).
14(3) Subject to the Regulations an owner of a home is entitled to receive payment out of the guarantee fund for damages resulting from a breach of warranty if,
(b) the person has a cause of action against the vendor or the builder, as the case may be, for damages resulting from the breach of warranty. 1998, c. 19, s.185 (1); 2000, c. 26, Sched. B, s. 15 (3, 4).
Powers of Tribunal
16(3) Where a person or owner gives notice in accordance with subsection (2), the Tribunal shall appoint a time for and hold the hearing and may by order direct the Corporation to take such action as the Tribunal considers the Corporation ought to take in accordance with this Act and the regulations, and for such purposes the Tribunal may substitute its opinion for that of the Corporation. R.S.O. 1990, c. 0.31, s. 16 (3).
O. Reg 892
s.18 (1) Every vendor of a new home warrants to the owner that the vendor shall make no substitutions in those items of construction or finishing for which purchaser is entitled to make selection pursuant to the purchase agreement without the written consent of the purchaser. R.R.O. 1990, Reg. 892, s.18 (1).
s.19. Every vendor of a new home warrants the purchaser that, where the vendor makes a substitution with respect to an item that is referred to in the purchase agreement that is not an item that is to be selected by the purchaser, the item will be of equal or better quality than the item referred to in the purchase agreement. R.R.O. 1990, Reg. 892, s. 19.
DECISION ANALYSIS:
The Tribunal’s jurisdiction is set out in s.16 of the ONHWPA which provides the homeowner with a right to appeal to the Tribunal from a TWC decision denying a warranty claim under section 13.
The onus is on the Applicants to prove their claim to a civil standard – being the balance of probabilities – see F.H. v. McDougall, 2008 SCC 53. If a breach of warranty is proved, subsection 14(3) provides that the Applicants are entitled to damages arising from the breach where the homeowners have a cause of action against the builder for that breach.
The Tribunal has authority under s. 16(3) to order TWC to take such action as the Tribunal considers it ought to have taken.
The Act is consumer protection legislation and is to be given a broad and liberal interpretation: Markey v. Tarion Warranty Corporation (2006) OJ No 2929 (On SCDC).
The Tribunal has carefully reviewed the exhibits and the testimony of the witnesses and has reached the following conclusions:
(a) Outside trim and molding:
The Applicants have failed to establish that the Added Party has breached the warranties set out in the legislation on this item.
Contractual claims are not ordinarily within the jurisdiction of the Tribunal whose authority is limited to consideration of the issues in appeal from the TWC decision letter denying warranty coverage to the Applicants. Nor is the Tribunal persuaded that the Applicants were contractually entitled to frieze board. The photograph at the back of the sales brochure, the same brochure containing the artist’s sketches on which they rely, does not include frieze board. Neither does the model home nor other similar elevation homes in the development. Further, the APS contains specific disclaimers providing notice that artistic representations in the brochure and sketches are not to be imported into any contractual term.
The Tribunal finds that the gaps in evidence and/or lack of frieze board do not breach OBC requirements as alleged. Section, s. 9.19.1.2(5) of the OBC speaks to the vents or holes for air circulation. There is no allegation that the soffit vents or any other vents are failing or improperly constructed. More importantly, the Applicants’ claim is not a failure of these venting holes, but rather that the installation of the soffit itself is not completely flush, resulting in the gaps.
The evidence demonstrated that such gaps were a consequence of the uneven stone surface- a design item specifically selected by the Applicants - and not the result of any failure of material or workmanship. Mr. Cecatini found that the soffit and the molding were performing as intended and the exterior wall cladding of textured stone extended behind the molding achieving the restriction of precipitation as required. Nor did any of the vents show a breach of the relevant sections requiring restriction of weather and insects. He concluded that the installer had made every effort to adhere the molding to the stone as closely as possible given its rough texture. The Applicants’ photographs support his conclusion.
Further, although not conclusive of the matter, the fact is that the municipality did indeed pass the home’s exterior inspection in November of 2008, within weeks of the Applicants’ submitting their claim, with no concern or reference to inadequate trim or molding, gaps or potential breaches of the Building Code.
The Applicants rejected the offer made by both TWC and the Added Party to provide additional molding or sealant to reduce the gaps, options that would have the desired effect of minimizing the gaps. It is thus apparent that what they truly desire is installation of frieze board, itself an additional rigid material which could not reasonably be expected to adhere any more closely to the stone than what is currently in place, without extensive and costly destruction of the textured stone surface design they chose when selecting their elevation design. The Tribunal concludes that it is not so much a breach of a requirement of the OBC which motivates their claim, but rather their desire for an item of design which is not a warrantable item.
For all these reasons the Tribunal denies the claim.
(a) window/sill slope:
In considering whether the Added Party has breached a warranty under the Act with regard to the window sills the following sections of the OBC are relied upon by the Applicants:
9.7.2.1. Window Standard
(1) Windows shall conform with CAN/CSA-A440-M, “Windows”, but need not meet air tightness, water tightness and wind load resistance requirements more stringent than those for classifications A1, B1 and C1 in CAN/CSA-A440-M.
9.20.11.5. Cornices, Sills and Trim
(1) Cornices, sills or other trim of masonry material which project beyond the wall face shall have not less than 65% of their mass, but not less than 90 mm, within the wall or shall be adequately anchored to the wall with corrosion-resistant anchors.
9.20.13.12. Drips Beneath Window Sills
(1) Except for wall openings located less than 150 mm above ground level, where a concealed flashing is not installed beneath window and door sills, such sills shall be provided with an outward slope and a drip located not less than 25 mm from the wall surface.
The Tribunal does not accept the Applicants’ position that the CSA requirement as to the sill slope is in fact the appropriate standard. It prefers the testimony of both Mr. Cooke and Mr. Quackenbush, both of whom have extensive experience in residential window construction, who agreed that the purpose of the CSA Standard is to assist window manufactures meet laboratory test design. This is what is specified in the Standard in s.1 as to scope33. Moreover, the Tribunal finds that the Applicants’ contention that the Added Party is bound to comply with the Standard would result in the Added Party having to comply with conflicting standards: one requiring a 6% slope (CSA); and the other only requiring an undetermined slope in the event there is no flashing (OBC). This is not a reasonable interpretation and is rejected.
The Act requires that the Added Party constructs a home in accordance with the OBC. Given there was no evidence of a failed flashing under the main floor windows, the Tribunal concludes that the OBC requirement of s. 9.20.13.12 has not been breached in these areas.
The Construction Performance Guidelines (“CPG”), written in consultation with various Trade and industry groups34, reflects accepted industry standards and has often been considered in determining quality of workmanship under s. 13(1). The CPG sets no specific requirements for window sills, but rather stipulates that no window shall allow for water penetration35. A water test, as described, is referenced to determine the issue of whether the window or other opening is responsible for water leakage36. The Applicants noted water stains, but admitted some were below window wells conforming to the CSA 6% slope standard. They also agreed that water exposure during construction may have caused the staining. They had never complained of water penetration to the Added Party or to TWC and had never performed a water test or requested one be undertaken.
Indeed, despite the on-going refusal of both TWC and the Added Party to recognize this aspect of the claim, the Applicants made no effort to provide independent verification of the alleged deficiency despite attendance at their home by at least two independent professionals with extensive window installation experience - Mr. Quackenbush and Mr. Singh.
Much was made of the manner of measurement undertaken by the Applicants in their conclusion that the sills were not sloped to the exterior. Mr. Cecatini preformed the same measurement method – from the top side. Given the wording of OBC s.9.20.13.12, the Tribunal is not persuaded the measurements were proper. It notes in this respect the photographic evidence of a hand holding the 4 foot level against the 3 inch sill and agrees with Mr. Ribeiro such manual pressure would likely skew the result. Moreover, the male Applicant admitted that only one of the basement sills in fact failed to meet the OBC requirement for outward slope37.
Based on the above review of suspect measurements, no independent verification of claim, admission that only one window allegedly was in breach and no attempt to demonstrate damage, the Tribunal cannot conclude on a balance of probabilities that there exists the improper slope as claimed, nor can it conclude that damages have resulted. If the Tribunal is mistaken, the evidence as to cost of remediation demonstrates de minimus damage, that is, damage that is too minimal to be considered by the Tribunal38
The Applicants’ Claim that an improper slope was built into the decorative pillars, is rejected. There is clearly no window or opening in the pillars. Thus neither the CSA standard of a 6% slope, nor the OBC requirement of outward slope is triggered. If the Applicants intended to base their claim on OBC section, 9.20.11.5, they failed to provide evidence that the Added Party failed to meet those requirements.
(b) window seals/condensation:
The Tribunal is not persuaded by the Applicants’ evidence that the Added Party has breached s.13 warranties in their home’s windows. For the reasons given above, it accepts the testimony of Mr. Cooke and concludes that the CSA Standard is the applicable standard whereby manufactures can expect adherence in the field to laboratory results. It does not follow, however that it is the appropriate standard on which building contractors’ workmanship is to be judged. Even Mr. Quackenbush, the Applicants’ own witness, acknowledged that the appropriate standard for builders is an industry acknowledged one reflected in the requirements of the OBC and the CPG.
Further, section 9.7.2.1 of the OBC references window classifications A1, B1 and C1, thus excluding their windows which the male Applicant advised are classified as A3. On this basis alone, they fall outside the purview of the OBC.
The evidence established that, like the WindowWise program, the CSA Standard sets out a more stringent process than that generally followed in the construction industry. The testimony of Mr. Cooke was very persuasive in this regard, given his current position as Chair of a committee reviewing the CSA Standards for housing. The Tribunal accepts his evidence of there being some significant controversy in the industry regarding a number of the CSA requirements, shims and insulation products being but two examples.
The CPGs sole reference to window installation states that the acceptable performance requires that: windows shall be installed to operate with reasonable ease39. This standard was also the standard used by both Mr. Cook and Mr. Singh who both testified to their testing windows for smooth operation as the indication of whether there existed an installation deficiency.
The Applicants’ evidence as to inadequate shims/insulation rested on their contention that the CSA 440 Standard sets out the builder’s obligations for installation practice. The Tribunal however, has already determined that they are incorrect in this contention.
Mr. Cooke referenced s. 9.25.2 of the OBC which speaks broadly of various forms of insulation and their properties, none of which has been breached in the Applicants’ windows from any evidence presented. It also speaks in s.9.25.3.3 to vapour barrier requirements, specifying that these can be sealed or lapped. The evidence from the photographs was that the vapour barrier in the deconstructed window frame had been lapped and is therefore found by this Tribunal to be compliant.
There is no articulated standard for shims in either the OBC or the CPG. Mr. Cooke’s evidence was that these are to be used where required. Mr. Ribeiro’s evidence was similar; that, where the frame is tight to the installed window unit, such shims are not necessary.
Mr. Singh’s testimony was also persuasive given his years of practical experience in windows, window insulation and their characteristics, having worked for the same manufacturer for a considerable time in customer service. Further, he was independent and had no interest in either party’s position. Most importantly perhaps, he had personally attended the homeowner’s residence mere months before this hearing, to view and inspect the windows. It was his evidence that, notwithstanding the continued complaints, he found nothing wrong in the operation of any of the windows. He found no evidence of excessive air infiltration and no evidence of improper installation. All windows operated as they were designed to operate and continued to do so two and a half years after possession. His view of the photographic evidence tendered by the Applicants was that there was nothing wrong in the windows which could not be rectified by minor adjustment, although he himself had not seen anything requiring such adjustment, despite his authorization to provide it at his own discretion.
Even Mr. Quackenbush conceded that none of his May 2009 measurements indicated any window was out of square or plumb to a degree which could not be rectified by adjustment. Mr. Singh also testified that he was never asked to measure plumb or square nor advised that the Applicants’ had any concerns with the windows installation, notwithstanding his attendance at the home in March of 2009, as the manufacturer’s lead service technician, and his clear finding that the windows operated as designed. Likewise, Mr. Cecatini had never been informed by the Applicants of their concerns with window measurements. Consequently he had never taken measurements or inspected the windows to verify whether they conformed to OBC demands.
Although significant time was taken in evidence purporting to establish that workmanship deficiency caused condensation inside the Applicants’ window, the Tribunal is not persuaded this is the case. Industry publications including CHMC guidelines40and the CPG41, as well as all professional witnesses, spoke to the fact that condensation is a common occurrence when certain factors are present. These factors include several that were established as existing in the Applicants’ home including the size of the windows, the ratio of window to wall in a room, the distance of the window from the furnace, the exposure of the windows, the weather, the interior humidity levels, and indoor temperature settings. Mr. Cook advised that, in his experience, improper installation is never the cause of condensation. Mr. Quackenbush opined that, since other windows in the home did not exhibit condensation, the cause in the bedroom was “most likely window fault”. In cross-examination however, he acknowledged that there were indeed a “whole host” of factors which affect the possibility of condensation.
The Tribunal finds that some air infiltration is not only usual, it is desirable. The OBC clearly provides for it42 , as does the CPG43. The latter specifically notes tolerances provided in the OBC are designed for normal wind conditions. In such conditions, there was no evidence of excessive air infiltration as was evidenced by the Applicants request to Mr. Singh that he return on a “windy day”. Hence, the pencil test video evidence upon which they rely, even if it were the appropriate test, is not persuasive evidence of any deficiency since the videos were filmed on days of high winds. The Tribunal agrees with Mr. Ribeiro that a fair assessment of the condition would be to conduct testing on normal weather days to determine whether the air leakage surpassed the tolerances provided in the OBC. This testing was never done.
The pencil test is, however, not considered a proper test so its findings are not sufficient to prove the Applicants’ claim of excessive air infiltration. The video did not even purport to establish either the amount or the velocity of the air movement. In the video, the pencil is directed to the sash areas of the windows, thereby revealing air movement where the seals, described by the Applicants as inadequate, are located.
Based on all the above, the Tribunal rejects their claim of a s. 13(1) breach of warranty under the Act in the installation of the windows.
(c) improper joists:
The Applicants’ claim raised numerous concerns with the floor joists in their home. The Tribunal will consider them in turn to determine whether the Applicants’ claims of warranty breach under s. 13 of the Act are adequately supported by the evidence.
(i) not as contracted and inferior:
The allegation was that the APS was breached by the Added Party in that the joists received by them were AJS 20 and QBSF310, while the architect’s plans which they had reviewed and which were filed with the municipality noted the joists were to be AJS 15. The Applicants say this was an unapproved substitution which thereby contravened the builder’s contractual obligation to provide them a construction as designated in “plans already reviewed” by them.
As noted earlier, the Tribunal’s mandate does not extend to authority over contractual claims outside of what the Act specifies. Under the Act’s regulations Ontario Regulation 892, sections 18 and 19, make provision for substitution of a contracted item of selection (emphasis added) with the requirement that such a substitution by the builder be of “equal or greater value”. The Applicants argue that their evidence of the National Research Council and the Ministers Ruling demonstrates that the substituted joists they received breached this requirement as they are of an inferior quality.
The evidence was that the contract referenced “engineered wood joists” generically which were not an item of selection in the contract. The Tribunal thus finds that Regulation 892 is not relevant to this issue.
While the Applicants submit that the one type of joist is capable of carrying less weight than the other, the testimony of Mr. Fok, the engineer responsible for the design of these joists and the design of the Applicant’s home floor plan, was not contradicted. He advised that the strength of any joist is dependent on its span. In this case, the spans of the substituted joists were entirely appropriate for their use as employed in the support of the Applicant’s home flooring. His letter to this effect had been provided to the Applicants as early as March 2007 in an effort by the joist manufacturer, the Added Party and the municipality to reassure the Applicants their concerns in this area were unfounded.
The Tribunal therefore finds that the change in joist product was not of an inferior item and therefore the Applicants’ claim is not warranted.
(ii) missing blocking/strapping between joists
The claim here was that where the original plans properly required blocking (along the west wall and under the front entrance area) such blocking was missing. This deficiency was warranted by TWC in Mr. Cecatini’s conciliation and the remedial work was provided by the Added Party prior to the pre-hearing. The allegation that this blocking was inadequate was based on a photograph illustrating a paper placed between one block and the subfloor. Another photo showed a gap between the end of the blocking and the floor joist.
The Tribunal prefers the evidence of Mr. Ribeiro supported by that of Mr. Fok in this instance. Both individuals are professionally experienced in building and have significant knowledge of the OBC and the construction requirements. There was no evidence of any relevant background or training by the Applicants who relied for this aspect of their claim on their own reading of the legislated requirements and their own observations. Their evidence was self-serving and unsupported. Both Mr. Fok and Mr. Ribeiro testified that the photos were not illustrative of any deficiency. They explained the purpose of the blocking is not to dampen vibration but rather to ensure the lateral movement of the home from earth pressing along the sides does not impact on the joists’ integrity. It was Mr. Fok’s opinion that the added blocking was achieving this function.
When Mr. Fok was contacted by the female Applicant with further concerns he provided a further letter in March of 2009 prior to the pre-hearing and made available to the Applicants, stating that it was his opinion that additional blocking under ceramics as called for in Part IX of the OBC was not required in this case because the engineered joists as installed in the home, unlike conventional joists, were capable of carrying the loads without blocking. In testimony he went further stating that adding blocking under the ceramics as called for in Part IX s. 9.30.6.4 was not required given that Part IX dealt with conventional joists. It was his opinion that adding the cross-bridging stipulated in the section would actually be detrimental, given the use of engineered joists in the home.
The Tribunal concludes that the blocking which the Applicants contend is wrongly installed and/or omitted is in fact installed appropriately. It finds that Part IX of the OBC clearly requires blocking under ceramics such that the Applicants cannot be faulted in assuming a deficiency when their joists revealed no such blocking. However, having heard and accepted the evidence of Mr. Fok regarding the structural reality of the home, having reflected on Part IX and Part IV of the OBC and considering the evidence that there was no indication of any cracking or failure in the mortar application of the ceramics, the Tribunal concludes that the lack of blocking under the ceramics is indicative of proper workmanship and construction, albeit not in technical compliance with the section. It notes in this respect Mr. Fok’s conclusion that adding blocking to the area would in fact be detrimental.
The evidence concerning the Applicants’ allegation of missing blocking under the non-load bearing wall of the library/foyer was never raised prior to the hearing. Thus neither Mr. Cecatini nor Mr. Ribeiro ever had an opportunity to view and assess the allegation. It is not included in the Applicants’ Appeal and is, therefore, outside the Tribunal’s jurisdiction. However, the Tribunal notes that the evidence established that the floor joists in this home had in fact been subject to investigation and inspection by the original installers, the builder’s contractors on two separate follow up occasions to remedy outstanding issues, two TWC field representatives and the municipal building inspector. At no time did any one of these experienced and professional individuals ever raise any concern about the support of a non-load bearing wall. The Tribunal consequently finds it highly unlikely that the nails photographed by the Applicants which show through the floor indicate the location of the library/foyer wall. The Tribunal accepts the explanation of the Tarion witness that these are flooring nails only.
(iii) missing floor joists:
The only evidence supporting this allegation was that the Applicants’ claimed that some of the joists marked on the architect’s plans were designed to be 12” off centre while the installed joists in these areas are, in fact, 16 inches off centre. However, the male Applicant conceded no measurements had been taken. He just “knew” the gaps were wider than the 12 inches off centre.
According to the layout as actually installed presented by the Applicants44, the only area where the joists are alleged to be 16 inches off centre is where Mr. Fok advised he had called for 16 inches off centre. His evidence was that if the Applicants had in fact received 12inches off centre then this was over and above what he had called for. Therefore they received something better than what engineering specifications required. While this might result in a situation where the product received is not identical to that in the plan, this is no evidence of any breach of the Code or failure of a warranty under the Act.
The Tribunal concludes that there are no joists missing as alleged in the claim.
(v) warped/dropped wood:
Again, the Applicants’ evidence on these allegations is not sufficient to persuade the Tribunal of any breach of warranty by the Added Party. The evidence is more consistent with a finding the header was installed with one end lower – a phenomenon not indicative of any failing. There is no evidence that the beam allegedly warped – if it is –presents any structural concern. Mr. Fok noted that the photograph relied upon by the Applicants also demonstrated direct contact with the sub-floor, thereby proving that the joist is meeting its purpose to minimize normal deflection and vibration from the flooring.
The Tribunal rejects this item of the Claim.
DECISION:
Accordingly, based on the evidence, and by virtue of s. 16(3) of the Act, the Tribunal confirms the decision of TWC to disallow the Applicants’ claims.
SUBMISSIONS ON COSTS:
The Tribunal Rules set out the following provision as to the availability of a cost award:
14 COSTS
14.1 Where a party believes that another party in the proceeding 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:
(a) 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;
(b) 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;
(c) failing 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
(d) 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 to 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.
The Added Party sought its costs for what it claimed was an unnecessarily long hearing. It argued that the Applicants’ refusal to reasonably seek settlement derived from their determination to attribute fault to the Added Party. This had led to over three years of ongoing acrimony culminating in this hearing – itself prolonged by at least ten days due to the Applicants’ approach – all of which has caused the Added Party significant expenditure.
In Mr. Ribeiro’s submission, a part of this excessive hearing time was directly attributable to the Applicants’ unreasonable refusal to provide reasonable access to the Added Party’s employees to (1) perform remedial work already warranted, and/or (2) to conduct testing to determine what, if any, further repair or reconstruction might be required. In this respect, he noted the Applicants’ denial of access to Mr. Cooke to perform the air leakage test.
Mr. Ribeiro also noted that the issue with the alleged rim mold (finally withdrawn by the Applicants on the second to last day of the hearing) could have been laid to rest had the Applicants accepted the results of testing undertaken following the pre-hearing Order of Vice-Chair Cassidy which concluded that there was no abnormal water penetration. Rather, as shown by their reaction to (a) the results of TWC’s imaging for the bedroom temperature complaint, and (b) the window manufacturer’s review of the same complaints, the Applicants consistently rejected independently produced test conclusions.
Their refusal to accept these results led, in turn, to their destructive testing vis-à-vis both the basement rim mold and the windows. It was also Mr. Ribeiro's contention that both actions were motivated by their desire to uncover grounds upon which to impose liability on the Added Party. This desire had first been ignited during the dispute in 2007 over the size of the home’s furnace when the female Applicant had stated she would “get” the Added Party.
Mr. Ribeiro argued that in the Applicants' on-going determination to assign blame led them to act unreasonably and thereby prolonged the hearing process. Examples included their refusal to accept delivery of a new garden door in December 2009 despite their advising Counsel for TWC in the fall of 2009 that the remedy they sought for their continued rim mold claim was replacement of the door. When TWC again offered them installation of a replacement at re-commencement of the hearing in 2010, the Applicants again refused.
Likewise, their on-going refusal to acknowledge that the soffit gaps could be best remedied by additional sealant or molding revealed their real agenda acknowledged by the male Applicant in cross-examination when he stated that, if such were ordered by the Tribunal, he would rip it down as all he would accept was installation of the frieze board. This demonstrated the unreasonable and vexatious character of the Applicant’s approach in Mr. Ribeiro’s view and was also obvious from their continued unrealistic demand for replacement of all their windows in the face of even their own expert’s admission as early as October 28th that simple re-adjustment would solve any possible deficiency.
Mr. Ribeiro also submitted that the Applicants’ testimony contained numerous false and misleading elements indicating bad faith. He pointed to the relative sophistication of the Applicants which resulted in their request for, and review of, the architect’s drawings prior to completing the sale – an unusual occurrence in new home sales. This sophistication is also evidenced in their bringing in municipal building officials as well as their home’s structural engineer to review their concerns. They had also carefully reviewed the relevant legislation, regulations, CSA publications at some cost, as well as Minister’s Rulings on joist engineering specifications. Such careful and detailed research revealed savvy consumers. Notwithstanding such resourcefulness, Mr. Ribeiro pointed to their having misled Mr. Quackenbush, their expert, as to the existence of drill holes in one window. They also mislead Mr. Quackenbush into believing that it was the Added Party and not the window manufacturer, who replaced and repaired weather seals.
So too the male Applicant, on realizing partway through the hearing that a number of their joist claims were not supported by the evidence, attempted to emphasize a hitherto uncanvassed claim of inadequate support of a non load bearing wall over the library. This deficiency had never been pointed out to the Added Party or its trades, nor was it included on the Applicants’ own drawing of the “as is” floor plan of the home illustrating all the alleged deficiencies45. It therefore represented new evidence of allegations not in the appeal.
Mr. Ribeiro acknowledged that the Act’s mandate is protection of consumers from unscrupulous builders who exist in the industry. His concern was that there existed no corresponding protection from unethical consumers seeking to unjustly enrich themselves or to damage a builder unfairly by engaging in such a lengthy and costly appeal at a filing fee to them of a mere $100.00.
Mr. Ribeiro argued that the Applicants had engaged in a meticulous and exhaustive effort to find fault with the home. Such efforts included measuring basement joists, observing hardwood floor surfaces on hands and knees, listening for mortar cracks, recording measurements for each window, tearing open the framing of windows in the master bedroom and threading papers under blocking added by the Added Party. Mr. Ribeiro concluded such efforts were malicious and vexatious and brought the Applicants within the purview of section 14 of the Tribunal Rules concerning costs.
Mr. Kirkpatrick advised the Tribunal that TWC also sought costs from the Applicants. He submitted the Applicants had flouted rules created to protect consumers by making their unreasonable and, as regards the soffit frieze board and window sills, frivolous claims. In most cases, he argued consumers seek TWC’s assistance when they discover damage in their new home and believe it attributable to improper construction. In this case, however, the Applicants meticulously went through a detailed review of every aspect of their home, including municipal filings and destructive testing, in a clear effort to find fault, although no particular damage was apparent.
Counsel also claimed that, where generally a conciliation inspection by TWC will take one day, in this case it took three days and required repeat visits. In most appeals, one pre-hearing is sufficient; in this case three pre-hearings were required; and, in most cases, hearings are no longer than 4 or 5 days while in this situation 15 days were taken up in the matter. TWC advised it was seeking costs for 10 days of the hearing as it believed the matter had been unnecessarily prolonged to this extent. Despite having legal representation at the start of the process and consulting with lawyers as the matter progressed, generous leeway was given to the Applicants as self-represented litigants. Nonetheless, it was TWC’s position that excessive time had been required as the consumers engaged in a self-education process at the province’s cost. He noted that there is a civil suit in place between the parties.
He too argued that the Applicants were dishonest in their portrayal of the evidence on numerous occasions and cited in particular their captions under photos of the replaced window as “missing holes”. He also referenced the male Applicant’s initial denial of contacting the engineer. He also noted the testimony of Mr. Singh that he had never seen defects in bubble seals to the extent demonstrated in the Applicants’ photos and suggested that the bubble seals were actually “ripped”.
It is rare that this Tribunal would order costs against a party. Subject to the limitations in Rule 14, the Tribunal’s authority to award costs are limited to the precondition that the Tribunal must find the offending party’s conduct to have been” frivolous, vexatious or unreasonable”. The Rules make no pretence of attempting to fully compensate a party: the award, if made, is capped at $800.00 per day – a figure which bears scant relation to the actual expenses of undertaking a vigorous and meaningful litigation - even at the tribunal level.
Parties often appear before the Tribunal as a consequence of a severe deterioration in their relations due to bad faith and suspicion on one or both sides. They are entitled to pursue their claims, or denials, vigorously with whatever evidence is at their disposal. No party can be judged remiss in doing so.
The question for the Tribunal is whether these Applicants exhibited the misconduct particularized in Rule 14. While there is certainly undisputed evidence that there had been utterances made that they intended to “get” the Added Party, these statements were made sometime in the past in frustration over what they perceived as unreasonable refusals by the Added Party to remedy its failure to provide a proper furnace. Much water has passed under the bridge since that time and the Applicants, in their efforts to find fault, truly believed by the time of this hearing that their claims of building deficiencies were valid based on their evidence.
The Tribunal can not conclude from this that they acted frivolously, vexatiously or in bad faith.
The male Applicant appeared at times to be evasive and disingenuous in responding to questions. Examples include his responses to questions put to him concerning measurements of windows, attempts to contact the engineer, and his responses to offers to repair the garden door by the Added Party. There were also the suggestions that the Applicants mis-informed their own expert Mr. Quackenbush on important issues, including who was responsible for the repair of their window seals and the existence of proper drain holes on certain windows. This may have been the result of mis-communication as opposed to evidence of intentional bad faith or vexatiousness. It is equally possible and plausible that the male Applicant’s mistrust of both TWC and the Added Party triggered evasive responses which he might other wise characterize as effective and appropriately terse responses to cross-examination. In the end, these were effectively dealt with by cross-examination and did not unduly prolong the hearing to the extent that cost sanctions are appropriate.
The Tribunal does find that the Applicants were certainly entrenched in their positions on both the windows and the joists, the two items which took up most of the time of the hearing. In the face of consistently overwhelming evidence against their position, their inflexible approach worked to extend this hearing beyond, what might in another instance, have been the case. Despite evidence provided to them as early as 2007 from the lumber company, corroborated by the architect and the engineer upholding the position of TWC and the municipality, the Applicants maintained their lone voice that there was inferior and improper joist support in the home.
Similarly they continued to assert allegations of deficient windows in the face of overwhelming documentation and testimony from industry publications and witnesses otherwise. They continued their claim even after their only witness, Mr. Quackenbush, conceded in October that alleged deficiencies were not breaches of either the OBC or the CPG and their claim for window replacement was excessive.
The question is whether this is unreasonable conduct sufficient to base a cost award against the Applicants. In Baker v. Ontario (Director, Ministry of the Environment) 2009 CarswellOnt 3421 (On Env Rev Bd) the Environmental Tribunal concluded the following is the standard to determine whether conduct is unreasonable:
For conduct to be unreasonable, a party must make an improper decision to act, or fail to act during the course of a proceeding. A decision can only be improper if the impropriety was clear in the circumstances at the time the decision was made46.
The Tribunal cannot conclude from the testimony and demeanor of the Applicants that they believed their on-going insistence on the correctness of their position was unreasonable. Rather, they approached the Tribunal to make that determination. The fact they refused the results of testing undertaken by parties opposed in interest to them is not conclusive of unreasonableness, but is equally consistent with any party’s right to put the other side to proof of their position. It is common knowledge that much civil litigation ends with the poorer party accepting defeat due to the costs of maintaining the action. In this case, the province has seen fit to level the playing field for consumers in disputes with new home builders resulting in a situation which can be expensive for the builder. This is not a consequence of any failing or fault of the consumer.
The Tribunal is not persuaded that the refusal of these Applicants to settle or simply accept what, at the end of the day, proved to be preferred evidence, was so unreasonable as to trigger the cost award sought against them.
In Greenspace Alliance of Canada’s Capital v. Ontario, the environmental review Tribunal again had occasion to consider the issue of costs and enumerated a list of possible conducts which might trigger the award47. This list supports the above finding in its enumeration of improper actions taken “knowingly”. Of those listed, only the introduction of “an issue or evidence not previously mentioned” has been determined to exist in these proceedings. The Tribunal is not convinced that the Applicants’ attempts to found liability for the non-load bearing wall support was improperly or unreasonably motivated. Rather, the evidence suggests they believed the alleged deficiency was properly part of their appeal given the broad nature of their claim of “missing blocking”.
ORDER
The Tribunal dismisses the request of the Added Party and TWC for costs against the Applicants.
LICENCE APPEAL TRIBUNAL
Jane Weary, Vice-Chair
RELEASED: May 4, 2010
Footnotes
- Exhibit 4, Tab 4
- O. Reg. 403/97 repealed December 2006, after the construction of the Applicants’ home
- Exhibit 11
- Exhibit 10, Tab 2
- Exhibit 10, Tab D3
- Exhibit 4, item #17
- Exhibit12 and Exhibit 13
- Exhibit 10, Tab 7
- Exhibit 6, item 56, p.41
- OBC s. 9.7.1.7
- Exhibits 4 and 5
- CSA Standard s.1.2 stipulates its scope as: This Standard provides minimum requirements that will help to ensure the installation of windows in an effective manner, such that the performance of the window as established by testing to the requirements of CSA Standards A440 and A440-2 is not compromised.
- Exhibit 6, Tab 56 and Exhibit 5, Tab 56 respectively
- See Air Solutions Inc. Report dated January 16, 2008, Exhibit 10, Tab B2
- See Construction Performance Guidelines, Appendix A3 “Moisture and Windows”
- Supra, note 11
- Exhibit 10, Tab 8
- Exhibit 10, Tab 12. See also CPG 8.5
- CPG 8.5
- Exhibit 7
- Exhibit 4 and Exhibit 6, Tab 2, respectively
- Exhibit 4, Tab 48
- Exhibit 10, see also Exhibit 16
- Exhibit 6, items 57/458/59 pgs 17 and 19
- Ibid, p. 7
- Ibid, pgs 3,4 and 5
- OBC s. 9.30.6.4(7)
- Ibid, p. 5
- Exhibit 10, letter of E.Fok dated March 23, 2009
- Exhibit 16
- Exhibit 10, letter of Mr. Fok dated March 23, 2007
- Exhibit 15
- Supra, note 12
- See p. 9 CPG
- CPG 4.19
- CPG - Appendix A5
- Exhibit 56, items 56/33, p. 40, top right photograph
- In the realm of $70.00 for the one basement window based on Exhibit 12 quote by B,J, Brickwork Constr. Ltd of $135 for re-sloping and smoothing two basement sills
- CPG 3.3
- Exhibit 10, Tab 12
- Appendix A3
- S. 9,7,1,7, sets out a maximum amount of air infiltration of .775dm/s for each meter of sash
- See 2nd edition, published 2003, article 8.2
- Exhibit 4
- Exhibit 4
- Para 35
- 2009 CarswellOnt 4533