Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2010-08-25

FILE:

5188-5457/ONHWPA

CASE NAME:

5188-5457 v. Tarion Warranty Corporation

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

Applicant

Applicant

-and-

Tarion Warranty Corporation

Respondent

-and-

Master Custom Homes Inc.

Added Party

REASONS FOR DECISION AND ORDER

ADJUDICATOR:

DOUGLAS R. WALLACE, Vice-Chair

APPEARANCES:

For the Applicants:

APPLICANT, unrepresented

For the Respondent:

SOPHIE VLAHAKIS, Counsel for the Respondent, Tarion Warranty Corporation

For the Added Party:

SHADI NASSERI, Counsel for the Added Parties, Master Custom Homes Inc. and Amirili Nasseri.

Heard in Toronto:

October 8, 9, 15, 16, 2009

January 18, 19, 20, 21, March 2, 3, 4, 5, 12,

April 9, 20, 21, 2010

AMENDED REASONS FOR DECISION AND ORDER BACKGROUND

This is an appeal under S.16 of the Ontario New Home Warranties Plan Act (the "Act").

Amirili Nasseri (the “Vendor”), one of the Added Parties, sold a home built by Master Custom Homes Inc. (the Builder) to the Applicant (the Homeowner) with a date for possession of October 1, 2007, as stated in the Warranty Certificate issued by Tarion Warranty Corporation(Tarion). The home had many deficiencies that were brought to the attention of Tarion and the Builder in a 30-Day Claim Form and a Year-End Claim Form.

Thirty of the 54 claims eventually found their way into three Decision letters dated November 18, 2008, December 16, 2008 and April 30, 2009. Of the remaining 24 claims, many were resolved by the Builder prior to the issuance of Decision Letters, four were not resolved in the conciliation process but inexplicably failed to be included in

a Decision Letter, and a number that the Homeowner intended to appeal, were not identified in his Notice of Appeal.

Of the 30 Claims in the three Decision letters under appeal, 12 were resolved by agreement between the parties or reassessed as “warranted” before the end of the hearing, leaving the Tribunal with only 18 items to decide. Evidence on these 18 items was heard from 13 witnesses over 16 days of hearings. The oral evidence was supplemented by five books of exhibits, a video tape, many photographs and 35 individual exhibits.

A summary of the items under appeal in the three Decision Letters is as follows: DECISION LETTERS

Nov.18/08

(Exhibit .A.15)

Dec.16/08

(Supplementary) Exhibit A26

April 30/09

(Exhibit B.37) (Year-End)

1

Iron railing

Slate tiles **

Gap between walls & brick in driveway ● 2

2

Fencing

Flooring on driveway ●1

Walkway step ●

3

Deck

Driveway too steep

●1

10

Walkway on W/S

4

Edge of hardwood

Walkway on E/S

11

Walkway on E/S

12

Run-off pipes

5

Ceramic tile in

bathroom

Stucco uneven ● 2

6

GFSI

Missing stones near driveway 2 *

Uneven bricks in driveway *

7

Wires in furnace room

13

Missing light in backyard

8

Countertop

Alarm fell off ceiling *

9

Cold room3

14

Lock on main door

Fireplace*

15

Exit door frames in den

16

Window frames (1) dent

(2) west corner sill-crack

(3) east corner sill crack

Fireplace *

Door btn basement & garage ● 2

17

Colour of hdwd floor

• Withdrawn prior to Decision

1Reassessed byTarion (Boyd) Nov.5/09

** Resolved during Hearing

2Reassessed byTarion (Boyd) Nov.6/09

• Reassessed Cct.7/09

3Partially reassessed Oct.7.09, Nov.5.09

As indicated, all items were found to be “unwarranted” in the Decision letters except for the five items in the April 30, 2009 Decision which are shown as having been withdrawn prior to the Decision letter.

PRELIMINARY MATTERS

During the course of the Hearing, the Tribunal heard and ruled upon a number of procedural motions.

Motion by John Kirec (witness)

Mr. Kirec brought a motion at the opening of the hearing requesting that a summons requiring him to attend the Hearing, issued at the request of the Homeowner, be quashed. The grounds for the motion were that Mr. Kirec had received payment for an inspection of the Homeowner’s floor and the statutory witness fee with the Summons, but had no agreement with the Homeowner with respect to professional fees for his attendance before the Tribunal. The Tribunal ruled that a failure to reach agreement on fees for attendance to give evidence was not a sufficient reason to quash a summons properly served on a witness with relevant evidence but the Tribunal would nevertheless, with the parties’ consent, accommodate the witness by hearing his evidence as the first witness at the hearing.

Motion by the Respondent

The Respondent moved to quash a Summons issued at the Homeowner’s request to secure the attendance of two inspectors who had been retained by the Respondent to inspect the Homeowner’s property, but whom the Respondent did not intend to call as witnesses. Having heard the submissions of all Parties, the Tribunal ruled that it had jurisdiction under S. 11 of the Tribunal’s Rules of Practice and S. 25.0.1 of the Statutory Powers Procedure Act to quash the summons issued in this matter and that it should do so on the basis that any evidence the witnesses might give would be covered by the recognized principle of litigation privilege as recently defined in Blank v. Canada (Minister of Justice), [2006] 2 SCR 319, 2006 SCC 39. The Tribunal also relied on subsection 15 (2) of the Statutory Powers Procedure Act.

Motion by the Respondent

During his evidence in chief, the Homeowner often referred to items included in his two Claim forms but not included in any one of the three Decision Letters. Much of this evidence was adduced prior to the admission into evidence of the Decision Letters. That evidence was often helpful in shedding light on the history of relations which existed between the parties over the course of the two years preceding this hearing and was admitted for some time without objection from the Respondent or Added Parties. When the Respondent did object to the evidence being given of this nature, the Tribunal sustained the objection on the grounds that the Tribunal’s jurisdiction is found in s.16 of the Act. This section limits the Tribunal’s jurisdiction to cases where Tarion has issued a Decision under section 14 of the Act. While other matters may be in dispute, and possibly in the conciliation process, the appeal process is limited to making a ruling on those matters which have actually been the subject of a final decision by the Tarion. The Tribunal further limited evidence to items judged “unwarranted” in the Decision letters and which Tarion still judged “unwarranted” at the beginning of the Hearing. Evidence on items judged “warranted” at the time of the Hearing or indicated by all parties as being “no longer in dispute” was excluded. In one case, involving the quality of slate used on the landing of the entrance porch, the status was only changed from “unwarranted” to “warranted” once evidence had been obtained during the course of the hearing. When that evidence was obtained and the item judged “warranted”, no further evidence was heard on this major item.

Motion by the Respondent

The Respondent brought a motion at the opening of the Hearing on January 18, 2010 asking that a Summons issued and served at the request of the Homeowner to Mario Vella of M.& O. Renovations & Contracting, be quashed on the basis that he had been retained by the Respondent to give evidence in this matter. The Respondent advised that it was still its intention to call Mr. Vella as its witness. In light of this undertaking by the Respondent, the Tribunal ordered that the Summons to Mr. Vella to appear and remain in attendance until called, be quashed.

Motion by the Respondent

Counsel for the Respondent advised at the opening of the Hearing on January 18, 2010 that she had been served within the past several days with a copy of a new expert witness report prepared on behalf of the Homeowner. She requested a ruling on its admissibility and advised that she would require an adjournment to consider the impact of the report on her case if the report were to be ruled admissible. The report dealt with the important issue of the quality of the slate at the entrance to the Homeowner’s home—an issue on which, the Tribunal had already heard considerable evidence. A further investigation and report appeared likely to either substantiate or refute the previous evidence heard on the subject. Its admission at this time would be a serious breach of both section 6.4.3 of the Tribunal’s Rules of Practice requiring service of expert witness reports a minimum of 30 days prior to the commencement of a hearing, and also contravene the express ruling by Vice-Chair Macklin at a pre-hearing conference directing that all reports be served no later than March 16, 2009. Further, no satisfactory explanation was offered for the delay in producing the report.

Submissions by the Parties satisfied the Tribunal that the report, although in clear violation of the Tribunal’s Rules, must be admitted as it would establish the validity of a previous expert’s conclusions regarding an important issue at the hearing. The Tribunal was also satisfied that the report could be admitted into evidence without serious prejudice to the Respondent or Added Parties, if sufficient time were allowed for these parties to reassess their position on this issue prior to the resumption of the hearing in March. In the circumstances, the Tribunal exercised its discretion under section 5.4 of the Statutory Powers Procedure Act to allow the Homeowner to call this witness as part of his case on the resumption of the hearing in March. The break in the hearing dates would allow the Respondent and the Added Parties an adequate opportunity to review the report and obtain their own expert advice, should they deem it necessary. On resuming in March, the Parties advised that the evidence of the expert witness had, indeed, been determinative of the issue and that the item of the slate tile was now admitted to be warranted.

Motion by the Homeowner

The Homeowner moved at the opening of the Hearing on January 18, 2010 for an order excluding counsel for the Added Parties on the grounds that the representative was not a member in good standing of the Law Society of Upper Canada. The Tribunal dismissed the motion on reading the Representation Declaration signed by Ms. Nasseri indicating that she was a member of the Bar.

Motion by the Homeowner

The Homeowner moved on April 9, 2010, to introduce as evidence a series of invoices respecting costs he incurred as a result of the alleged defects in his home. Tarion objected to the introduction of this evidence at this time on the grounds that (1) it had not been disclosed in accordance with the Tribunal’s Rules of Practice or the order at the Pre-Hearing Conference and, (2) much of the content dealt with indirect damages not within the Tribunal’s jurisdiction. The Tribunal upheld the objection on these grounds and on the ground that to admit these documents well after the close of both the Homeowner’s case and Tarion’s case would seriously prejudice Tarion.

ISSUES

The issues in this case may be simply stated as follows:

1. Do the conditions which were found to exist with respect to each of the items listed in the Decisions above constitute a breach of the warranty provided in the Act?

2. If so, what is the appropriate remedy?

3. Should costs be awarded?

THE LAW

The relevant warranties and exclusions from warranty coverage are set out in section 13 of the Act, as follows:

Warranties

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. O.31,s. 13 (1).

Exclusions

(2) A warranty under subsection (1) does not apply in respect of,

(a) defects in materials, design and work supplied by the owner;

(b) secondary damage caused by defects, such as property damage and personal injury;

(c) normal wear and tear;

(d) normal shrinkage of materials caused by drying after construction;

(e) damage caused by dampness or condensation due to failure by the owner to maintain adequate ventilation;

(f) damage resulting from improper maintenance;

(g) alterations, deletions or additions made by the owner;

(h) subsidence of the land around the building or along utility lines, other than subsidence beneath the footings of the building;

(i) damage resulting from an act of God;

(j) damage caused by insects and rodents, except where construction is in contravention of the Ontario Building Code;

(k) damage caused by municipal services or other utilities;

(l) surface defects in work and materials specified and accepted in writing by the owner at the date of possession. R.S.O. 1990, c. O.31, s. 13 (2).

WITNESSES

The witnesses who testified at the Hearing were as follows: The Homeowner

The Homeowner’s evidence with respect to each item in the Decision Letters is set out in the discussion of each item which follows. In many cases there is no direct conflict between his evidence and the evidence of the other parties or their experts. The parties generally agreed as to the existence of a condition which gave rise to a claim. They seldom agreed on the seriousness of the condition or the important question of whether a deficiency was covered by a warranty. The Homeowner professed no specialized knowledge in the field of construction.

John Kirec

Mr. Kirecis certified as a flooring installer and inspector by the National Wood Flooring Association (NWFA) and has worked in the flooring industry inspecting, installing, teaching and running his own flooring company for close to 20 years. His qualifications were not disputed and he was accepted byte Tribunal as an expert in flooring installation practices and standards

Nader Tadros

Mr.Tadros graduated from the University of Toronto as an engineer in 1991. He has been working as a professional engineer since his graduation and is currently employed as Manager of Engineering at Pyramids Engineering Inc., a major consulting engineering firm. He has extensive experience in industrial, commercial and residential construction. He was called by the Homeowner to give evidence on three items, two of which (“flooring of driveway” and “driveway too steep”) had been warranted by Tarion by letter dated October 7, 2009 and one, the slate tile issue, which was withdrawn by Tarion during the hearing.

Dan Timothy

Mr. Timothy is a general contractor with seven years experience as a construction manager and then as owner of his own company, Rhino Home Improvement. He listed the items pointed out to him by the Homeowner and indicated a lump sum cost to correct each item. He had no knowledge of the condition of the premises at any time prior to his visit, and did not know whether the items listed in his report constituted a breach of any warranty under the Act.

Michael Fournier

Mr. Fournier has five years experience as a residential home inspector. He is a member of the National Association of Home Inspectors and is currently employed by City Wide Home Inspectors. He visited the home once, on September 5, 2007, for two to three hours and performed a Pre-Delivery Home Inspection. He is not certified under the Ontario Building Code (OBC) but is familiar with matters which should be reported under the Act. He compiled the Building Deficiency List of 54 items which later acted as a basis for the Homeowner’s 30-Day Claim. Mr. Fournier did not indicate, either in the Deficiency List or in his testimony, that any of the deficiencies noted in his report were breaches of either the OBC or the warranties provided under the Act. Under cross- examination, he agreed that there were a number of matters he either had not seen on his inspection or may have seen but did not view as defects. These items include any problem with the slate tile (subsequently warranted), the fence at the rear of the Homeowner’s property (not part of his inspection), the space below the deck, the hardwood floor, the absence of a light fixture on the rear exterior wall, ceramic tile in the master bedroom ensuite bath, wires in the furnace room, down spouts, the kitchen counter in the basement, and the bricks on the side walkways. His report included nine pages of photographs.

Marc Roy

Mr. Roy is a third generation stone mason. He is Guild Certified and has completed over 100 houses. He owns his own company and employs four other stone masons and three full-time labourers. He has worked both as a general contractor and sub- contractor. He attended the Homeowner’s house on three occasions; twice in early 2009 and once, two weeks prior to testifying.

Duane Grady

Mr. Grady is the president and owner of Contigo Living Interior Concepts Ltd., a corporation engaged in the business of general renovation and construction. He has over 25years of experience as a contractor in all areas of residential home renovations and construction. He has had training in the OBC and is familiar with Tarion’s procedures and guidelines. He spent approximately six hours at the Homeowner’s premises, spread over three visits in 2009.

The Respondent called the following witnesses: William Romasanta

Mr.Romasanta has been a Field Claims Representative with Tarion for four years. At the time of joining Tarion he had 15 years experience as a general contractor. He is naturally familiar with Tarion’s claims handling procedures and has received on the job training in Part IX of the OBC. In his four years with Tarion he has probably inspected close to 1,000 homes. He conducted the first conciliation or Warranty Assessment of the home in question on September 23, 2008.

Roger Boyd

Mr. Boyd was a Field Claims Representative for 5 years prior to being promoted to Senior Field Claims Representative in 2009. Prior to joining Tarion, he owned a building construction company where he built two houses. He has received training in both Part IX (small buildings) and Part XII (health and safety) of the OBC, and has a certificate in estimating the cost of housing repairs. He conducted a warranty reassessment of this property on November 21, 2008. The re-inspection report consisted for the most part of a repetition of the earlier inspection by Mr.Romasanta.

Steven Vasconcelos

Mr. Vasconcelos is certified as an inspector with the National Wood Flooring Association. (NWFA) and has received his Advanced Installation Certification through NWFA. He is President of The Floor Studio Inc. and co-owner of Madeira Hardwood Floors Ltd. He has 14 years experience in the hardwood flooring industry involving installation, refinishing, sales, service and inspection and is very familiar with Tarion’s procedures, including the application of the Construction Performance Guidelines. He attended the premises for the first time in August, 2009.

Mario Joseph Vella

Mr. Vella has been the owner, operator and manager of his own business, M & O Renovations & Contracting since 1988. He has over 20 years experience as a superintendent, construction manger and construction business owner. He is familiar with Tarion’s operations and is certified under Parts IX and X of the OBC.

The Added Party Amirili Nasseri (Vendor) also appeared on his own behalf. He has a number of years experience in the construction industry, having built 11 homes for himself and another 20 for others.

FINDINGS OF FACTS AND ANALYSIS

1. Rust on iron railing

Rusting on rod iron railing in front of house. (30 Day Claim Form)

A rod iron railing borders the landing and stairs at the front of the Homeowner’s home. It had been installed by the manufacturer three months prior to the Homeowner taking possession in October 2007.

Photographs taken by the a building inspector conducting a Pre-Delivery-Inspection, in the Fall of 2007, show a few spots of rust on the top railing approximately three to four feet above the surface of the landing. On the first visit by Tarion’s Field Claims Representative in September 2008,the Homeowner advised that the spots mentioned in his 30-Day Claim had been repainted by the Vendor, but the bottom rung and footings of the railing were now showing clear signs of rusting on exposed surfaces.

Counsel for both the Respondent and the Added Parties submitted that the Homeowner’s own witness, Mr. Timothy, admitted that it was normal to see some rust on surfaces such as this after only two years, especially where there was ponding and salt. They also adduced a great deal of evidence to support their position that the reason the paint job did not last was a failure by the Homeowner to properly maintain the railing. In particular, they alleged that he applied too much salt to melt snow on the landing or that he hit the railing and chipped the paint while shovelling snow. In the alternative, they submitted that potted plants hanging from the railing had some detrimental effect on the paint job.

The Tribunal notes that the Vendor, a witness for the Homeowner (Marc Roy), and a witness for Tarion (Mario Vella) were all of the opinion that a proper exterior paint should last for between three and five years, whereas one witness for the Homeowner, Dan Timothy, stated that you might see rusting earlier than that. The Tribunal has considered all the evidence on this question and is unable to say with any precision when rust might first be observed on a properly painted surface such as this. It is confident, however, in finding that a good quality exterior rust paint applied to a properly prepared surface should last for a minimum of a year even in these conditions, and that this railing was showing obvious signs of rusting well within this period. The fact that the paint job did not last even for this minimum length of time leads the Tribunal to conclude that, either the paint was of poor quality, it was applied on a poorly prepared surface, or both.

In short, the Tribunal finds that the Homeowner has satisfied the onus resting on him of showing that the Vendor was in breach of the warranty provided under clause13(1) (a)

(i) of the Act, in selling a home that was not “constructed in a workmanlike manner and free from defects in material”. The Homeowner’s witness, Marc Roy, estimated the cost to repaint the railing at $500.00.

2. Fencing

Fencing in the north and east sides of the backyard is not completed. (30-Day Form)

The Homeowner gave evidence that at the time of sale there was a chain link fence at the rear of his property. This fact is verified by the video tape taken by the Homeowner on March 18, 2008, and filed as an exhibit. The Homeowner found that there was a one to two foot gap in the fence on each side of a hydro pole on the rear property line. He was worried that children could not play safely in the yard which contained this gap. He accordingly decided to correct the situation by adding a wooden fence just inside the existing chain link fence at the rear of his property and along one side.

The Vendor testified that the gap in the fence was left intentionally so that “the cable guy” could service a pole located on the rear lot line. Counsel for Tarion submitted that the lack of any mention of a gap in the fence in the List of Deficiencies prepared by Mr. Fournier prior to possession was evidence that this inspector did not consider this item to constitute a warrantable defect. She also noted that the new fence was constructed without prior notice to Tarion or an opportunity to inspect the original fence.

The Tribunal does not consider it to be poor workmanship to leave a gap in a fence for what would appear to be sound reasons. It is further concerned that the steps taken by the Homeowner to rectify what he considered to be a defect went far beyond the scope of work required to correct this minor defect. In the circumstances, the Tribunal does not find that the Homeowner has established any breach of the warranties provided under the Act

3. Unenclosed space below deck

The deck has not been properly secured to prevent wild animals from living underneath it, resulting in damage to the building and trauma to children. (30-Day Form)

The Homeowner gave evidence that he was very concerned that the omission of an enclosure between the ground and the bottom of the deck at the rear of his home constitutes a danger to his children as it allows wild animals to gain access to the crawl space under the deck. The existence of a gap is clearly seen in his video. In light of his concern, and the Vendor’s failure to rectify the situation, he constructed at his own expense, a lattice wall around the opening under the deck.

The Respondent’s Field Claims Representative, Mr. Romasanta, testified that there was no requirement in the OBC that the area under decks be enclosed. The Homeowner’s Pre-Delivery Inspector, Mr. Fournier, also testified that there was no such requirement, and that he personally thought that an enclosure would do more to encourage animals to go under the deck than to keep them out.

The Tribunal accepts the evidence of Tarion’s inspector and the Homeowner’s inspector and finds that this item does not constitute evidence of poor workmanship or any breach of the OBC. It is accordingly not a breach of the warranties provided in the Act.

4. Edge of hardwood

Edge of the hardwood and the ceramics in the kitchen area are chipped, cracked, and broken (30- Day Form).

The Homeowner gave evidence that the edge of the tile in the kitchen adjoining the hardwood floor was chipped, cracked and broken. His video confirms that some damage existed in this area on March 18, 2008. Furthermore, the existence of some damage in this area may be assumed from the comments made by Mr. Romasanta under the heading “Observations” in his Warranty Assessment Report of October 7, 2008, when he says: “This item is considered an item of damage that must be previously documented on the Pre-Delivery Inspection form”.

Tarion’s submission is that the absence of any mention of this item in the Pre-Delivery Inspection, report coupled with Mr. Fournier’s oral testimony that he would have noted any such damage if it had existed, is conclusive proof that no such damage existed prior to delivery of possession.

The Tribunal accepts the Respondent’s position that the tile was only damaged after the Homeowner took possession. This however, does not conclusively determine the matter. The question is not whether damage existed and was recorded prior to the Homeowner taking possession; rather it is how, and more importantly, why, did this damage arise? This involves a consideration of the extent of the damage and expert opinion on whether the damage could arise without any defect in workmanship or material.

It is difficult for the Tribunal to determine the extent of the damage. No oral evidence was given by the Homeowner to describe the damage shown in his video. In particular, the Tribunal does not know to what extent the zoom feature on the video camera used by the Homeowner exaggerated the appearance of the damage. Similarly, we do not know from Mr. Romasanta’s oral evidence whether his photographs accurately depict what could be seen with the naked eye. In spite of extensive testimony from flooring experts, we also do not know whether reasonable quality tile would chip in this manner under normal wear and tear, or whether a transition strip would have prevented this chipping. If the chipping was the result of normal wear and tear and could have been prevented by the use of a better quality tile or a transition strip, perhaps good quality workmanship would require their use. But this is all hypothetical. It is up to the Homeowner to prove that the damage that arose was the result of poor quality tile or the failure to use a transition strip, if this is the case. Without some evidence to support such a theory it would be dangerous for the Tribunal to make this assumption. There are just too many other possible causes of the damage.

In the absence of some evidence by the Homeowner as to the extent of the damage or how it could have been avoided, the Tribunal finds that this item is not warranted.

5. Ceramic floor tile in master bedroom bath

The ceramic floor of the bathroom has been damaged and has marks (30-Day Form)

There is little disagreement on the facts with respect to this item. The surface of one tile in the bathroom attached to the master bedroom contains a swirl mark, in all probability placed there by the marble supplier while using a power polisher or saw. There is no doubt that it is a manufacturer’s defect. The only issue is whether the defect is sufficiently visible to constitute evidence that the floor was not constructed “in a workmanlike manner” and “without defects in material”.

A number of prior decisions of this Tribunal and its predecessor have pointed out that the standard to be applied in interpreting the warranty provisions of the Act is not one of perfection. Indeed, no home, old or new, would ever meet such a standard. As said in the case of Teitelmann (1987) 16 CRAT 178.

Floors and stairs will squeak, wood will shrink and warp, cracks will appear and paint will peal. All that can be done is to keep these imperfections at reasonable levels. The limited warranty provided by the Ontario New Home Warranties Plan Act recognizes these facts, and this Tribunal is obliged to make findings in accordance with the statutory provisions and not otherwise.

Whether slight defects, occasionally referred to as “cosmetic”, meet the test of warrantability or not has sometimes been referred to as “keeping defects to a reasonably acceptable level”.

In this case no one testified that the swirl mark in question spoiled the appearance of the bathroom floor. Indeed, the defect is not visible in a series of large scale photographs taken by Mr. Romasanta on September 23, 2008. Mr. Romasanta testified that even the Homeowner had to get down on his hands and knees for three to four minutes in order to locate the defect and point it out to him. It certainly was not visible from a normal standing position anywhere in the bathroom, the test suggested by the CPG.

On this evidence, the Tribunal finds that this defect, standing alone, does not indicate that the bathroom floor was not constructed in a workmanlike manner, free of defects in material.

6. GFCI

No operating GFSI in the laundry room (30-Day Form)

In an amendment to the Agreement for Purchase and Sale the Vendor agreed to install an electrical outlet for a washer and dryer in a small space in the basement the Homeowner decided to use for this purpose. There was no room in the small space for a sink, and none was provided. It was the position of the Homeowner that the electric outlet the Vendor provided was defective as it did not contain a Ground Fault Circuit Interrupter (GFCI).

There was no evidence that a GFCI was called for in the agreement between the parties. Nor is there a requirement in the OBC or CPG that electrical outlets have a

GFCI unless they are within reach of a sink. The electrical outlet provided was not within reach of a sink. In the absence of any requirement in law or good practice that this outlet contain a GFCI, the Tribunal finds that the Homeowner has not shown a warranted defect under the Act.

7. Wires in furnace room

All the wires in the furnace room have loosened. They are supposed to be in their boxes. (30-Day Form).

The evidence was uncontested that there were a good many loose wires hanging down from the ceiling in the furnace room. The evidence was also clear that most, if not all, of these wires were installed by service providers at the Homeowner’s request following the date of possession. Both Mr. Romansanta and the Homeowner’s own inspector, Mr. Fournier, testified that there was no legal requirement in the OBC for these wires to be enclosed. Section 3.1.4.3 of the OBC does not apply to residential properties.

In the absence of a contractual requirement to provide boxes for the wires, and in the absence of any evidence of a breach of the OBC or generally accepted standards of good workmanship, the Tribunal finds that there is no breach of a statutory warranty in the Act.

8. Basement Countertop

Countertop is too think [sic] and flimsy and is broken. It needs to be removed and replaced with a proper one. (30-Day Form)

The Homeowner gave evidence that he made an agreement with the Vendor prior to closing the purchase of his home, whereby the Vendor was to do certain work in the basement of the home after the Homeowner had taken possession. To ensure completion of this work, the parties to the agreement agreed that the Homeowner would withhold $10,000 from the purchase price. The general nature of the work to be done was set out in the written agreement amending the Agreement for Purchase and Sale. There were, however no details as to the size, location or quality of the additional improvements to be made and no express clause to indicate that release of the holdback would constitute acceptance of the work. One item of work to be performed pursuant to this agreement consisted of the construction of a countertop in the kitchen being built in the basement.

The countertop provided by the Vendor was not as thick or as sturdy as the Homeowner considered normal in a kitchen and he alleged that a corner broke or cracked some time during the first six months following possession. The Homeowner attributes the break or crack to the poor quality of the material used in the countertop. Tarion and the Vendor submit that Homeowner’s allegation that the countertop broke or cracked is unsubstantiated by the evidence of any witnesses other than the Homeowner and cannot be detected in the only photograph of the countertop entered as an exhibit. They point out that even the Homeowner, who was the only one to testify as to the alleged damage, did not clearly describe the nature of the alleged damage in his testimony or describe how the damage occurred.

14

Counsel for Tarion and the Vendor also submit that the release by the Homeowner of the final $10,000 of the purchase price to the Homeowner constitutes evidence that the Homeowner agreed that the Vendor had satisfactorily completed his obligations under the Amendment to the Agreement of Purchase and Sale. Not surprisingly, the Homeowner has a different interpretation of the reason for releasing the holdback. He says that the $10,000 was only released to the Vendor on compassionate grounds and to secure the Vendor’s promise to quickly complete all the remaining work covered by the Agreement.

The Tribunal has considered which of the two conflicting version of the facts surrounding the release of these holdback funds is most probable. In considering the credibility of the parties, the Tribunal finds that the Vendor was extremely evasive and argumentative in his answers to questions from the Home owner during cross- examination. This may be due in part to the Vendor’s difficulty with the English language. Unfortunately, the Homeowner did not fare much better in cross-examination, denying for example, on one occasion having received a letter from Tarion until his attention was directed to a reply he had written to the letter. Further, when he was having difficulty answering questions posed by Tarion’s counsel, he finally stated that he has a serious memory problem as a result of diabetes and a motor vehicle accident and couldn’t remember things unless he had a note to remind him. In summary, the Tribunal does not find the evidence of either the Homeowner or the Vendor entirely reliable and hesitates to place a great deal of weight on this agreement.

The Homeowner has the onus of proving his claim on the balance of probabilities. In the absence of some evidence describing the size, thickness or material used in the construction of this countertop and how the damage to it occurred, the Tribunal finds that he has failed to meet the onus resting on him of proving that the alleged damage resulted from poor workmanship or material.

9. Cold Room Unfinished

The cold room has not been finished. (30-Day Form)

The Homeowner testified that the amending agreement required the Vendor to convert a space in the basement originally designed to be a cold room to a storage room. He stated that the Vendor failed to install a ceiling, floor covering, drywall or sufficient shelving.

The Vendor denies that he was to do this much. His recollection is that all the Homeowner required was a bit of paint on the walls and a shelf or two. He exceeded this by cleaning the space, painting the walls with concrete paint and installing a number of shelves.

No objective, third party evidence is available to confirm the details of the arrangement between the parties. In the absence of such evidence, the Tribunal finds that the Homeowner has not proven on the balance of probabilities that there has been a breach of warranty with respect to this item.

10. Walkway on west side of house

Uneven brick flooring on driveway leading to back (30-Day Form)

There is a lot of mud and dirt coming out when it rains or snows at both sides of the sidewalk therefore we were forced to use mulch but there is still mud and dirt making it difficult to walk. (Year-End Form).

The Homeowner indicated the pathway on the west side of the house was muddy when wet. He added mulch to soak up the excessive moisture but the area remains muddy. He attributes the muddiness in the area in large measure to the existence of downspouts at the front and rear of each side of the house.

The Respondent submitted that the condition of the walkway must not have been defective when the pre-delivery inspection was carried out, as Mr. Fournier makes no note of this item in his inspection report or list of deficiencies. Nor was it, as suggested by the Homeowner, in an area excluded from inspection by the scope of Mr. Fournier’s review. Mr. Fournier’s inspected and reported on many exterior areas such “gutters & downspouts”, “window frames” and “caulking”.

A number of witnesses, including Mr. Grady, Mr. Boyd and Mr. Romasanta, indicated in their testimony that far from remedying any condition of excessive surface water in this area, the addition of mulch by the Homeowner may have actually exacerbated the condition. In their opinion any problem of excessive surface water can only be cured by addressing the underlying problem of improper grading along the edges of the building.

Having considered the evidence of all witnesses who testified with respect to this item, the Tribunal finds that the most likely cause of the muddy conditions complained of is the failure of the Homeowner to maintain proper grading around the perimeter of his home. Defects arising from such a failure are expressly excluded from warranty coverage by the provisions of clauses 13 (2) (f) and 13 (2) (h) of the Act. (improper maintenance and subsidence of land around a building).

11. Walkway on east side of house

Uneven brick flooring on driveway leading to back (30-Day Form)

There is a lot of mud and dirt coming out when it rains or snows at both sides of the sidewalk therefore we were forced to use mulch but there is still mud and dirt making it difficult to walk. (Year-End Form)

This item was dealt with in both the Supplementary Decision letter of December 16, 2008 and the April 30, 2009 Decision letter.

The Homeowner’s evidence at the Hearing was that the area was uneven to the extent that it was unsafe to walk on.

Tarion’s counsel pointed out in cross-examination, that the Homeowner’s Pre-Delivery Inspector, Mr. Fournier took a photograph of this area during his inspection in September 2007. No uneven bricks can be detected in this photograph and no deficiency was noted in his report at this time. Counsel for Tarion and the Added Parties

also note that this item was inspected by Mr. Romasanta for Tarion on September 23,2008. Mr. Romasanta’s observations, as recorded in the Warranty Assessment report issued two weeks later were as follows

The inspection of the east side confirms that an (sic) interlocking stone steps were installed, with gravel rocks surrounding the stone steps. The grade was observed to have a positive slope away from the house. Minor settlement was observed on the stone steps but not excessive.

The photographs he took at the time confirmed that the walkway, although not absolutely level, did not pose any danger to pedestrian travel.

Both counsel point out that the Homeowner admitted to installing an irrigation pipe under the walkway in the Spring of 2008 and that some settlement could be expected following the excavation required for this installation

Subsection 13 (2) (h) of the Act provides that the warranties in the Act do not cover defects arising as a result of subsidence of the land around the building.

The Tribunal is not persuaded by the Homeowner’s explanation that his Home Inspector, having limited his responsibility to the detection of defects that are “visible and apparent”, and having exempted liability for “minute latent defects”, may have missed this item in his inspection. The Tribunal finds that the walkway could not have been in a dangerous condition at the time of the Home Inspector’s visit without him mentioning it in his report. The relatively good shape of the walkway was confirmed by Mr. Romasanta one year later.

The Tribunal has no hesitation in accepting the evidence of Mr. Romasanta over that of the Homeowner in this matter. It was given in an honest, straightforward fashion without hesitation and without change during cross-examination. In spite of the Homeowner’s unsubstantiated allegations of wrongdoing against Mr. Romasanta during the course of his investigation of this matter, Mr. Romasanta preserved a professional and objective manner while giving his evidence. His oral evidence was confirmed by photographs.

Having considered the evidence and the submissions of the parties, the Tribunal finds that the condition of the walkway was not so defective as to indicate a breach of the statutory warranty provided in the Act. It finds, further, that any unevenness that may have existed was the result of (1) a subsidence of the land around the building, (2) improper maintenance by the Homeowner and (3) subsidence following excavation to install a sprinkler system. Clauses 13 (2) (h) and 13 (2) (f) of the Act apply to exclude warranty coverage.

12. Run-off pipes

The four run-off pipes from the eaves troughs on the roof (on the east and west side of the Property) are attached to a splasher which empties all run-off onto the ground between the Property and the neighbouring homes. I recently found out that the run-off pipes must go into the ground so that the run-off does not go into the other neighbouring properties and cause damage to them. I

have already received a complaint and warning from my neighbour and I don’t want to be sued. (Year-End Report)

The Homeowner gave evidence that this run-off made his walkways too muddy for use and that the end of the pipes should be in the ground.

Mr. Boyd and Mr. Vella testified on behalf of Tarion. Their evidence was that not only was it not a breach of the OBC or any by-law, to have down pipes stop at the surface of the ground, the applicable by-law expressly prohibits directing run-off into weeping tiles around the building’s perimeter. They also pointed out that if pounding was occurring it was perhaps because the splashers or down pipe extensions provided by the Vendor had been removed by the Homeowner and the fact that the Homeowner failed to maintain a positive grading in the immediate area. Witnesses Grady, Timothy and Fournier were also in general agreement that any problem with run-off could best be handled through landscaping,

The Tribunal finds that any problem of run-off water flowing towards the neighbouring property is largely the result of improper grading, a municipal concern outside the scope of the warranty provisions of the Act. In this regard it accepts and follows the decision of Vice-Chair Flude in the case of Ontario (3199-ONHWPA-Claim) (Re)[2006]

O.L.A.T.D. No.127.

13. Missing backyard light

In the backyard, there is a space for a light, but the light is missing. (Year-End Form)

The Homeowner testified that there was an area on the exterior of the rear wall of his house where the Builder planned at one time to put a light fixture. He would like a light fixture installed in this area. Without a light fixture in the area intended for it, the wall looks unfinished.

The Vendor testified that he did indeed intend to put an outside light fixture in this location but, upon learning of the requirement for a light over a basement exit, elected to put the fixture in that location instead.

Tarion established through the evidence of Mr. Boyd that it was not a violation of the OBC to have a capped electrical box without a fixture attached.

While accepting Tarion’s evidence that the item does not constitute a violation of the OBC, the Tribunal also accepts the Homeowner’s evidence that the existence of an electrical box in this location covered by plywood when the surrounding area in finished in brick presents an unfinished look to the back wall. The Tribunal finds that the unfinished appearance of the wall constitutes a breach of the Vendor’s warranty in subsection13(1) to provide a home that “is constructed in a workmanlike manner”. Duane Grady estimated the cost of replacing three lights at $300.00.

14. Lock on front door

The lock on the main door of the property recently broke down. On inspection, I discovered that the lock was not working at all when it was installed, but was glued on to the door by the builder. There is a mark on a piece of the lock that shows that it was hastily glued on instead of properly installed. (Year-End Form)

At the time of completing his Year-End Form (September 2008), the Homeowner obviously had a problem with the lock on his front door. In February, 2009, the lock was malfunctioning and the Homeowner was forced to call a locksmith. The locksmith opened the door and carried out certain, unspecified repairs, indicating on his invoice for the cost of his work that the lock had been improperly installed. By the time of Mr. Boyd’s visit in March, 2009, the repairs had already been carried out. The Homeowner reported the matter resolved and withdrew his claim. In the circumstances, Mr. Boyd, saw no need to examine the lock to see if there remained any deficiency and reported the matter resolved. No decision was made by Tarion on the warrantability of the item.

In the absence of an opportunity for Tarion to inspect the alleged defect and to make a decision on it the Tribunal finds that it has no jurisdiction with respect to this matter.

5. Exit door frames from den

The exit door frames in the den are chipped and broken. There are holes in the frame (Year-End Form).

A photograph taken by Mr. Boyd at the time of his March 24, 2009 inspection, shows what appears to the Tribunal to be the filling of two small holes in the centre post between the den doors. The evidence of Mr. Fournier was that these holes certainly did not exist at the time of his pre-delivery inspection or he would have noted them in his deficiency list. They probably didn’t exist in March 2008 either or the Homeowner would have noted them on his 30-Day Form. So, suddenly they appear between March and September, 2008, and the Homeowner has no explanation what caused them.

The Tribunal finds that the Homeowner has not shown that the damage complained of was due to any defect in workmanship or material supplied by the Vendor.

16. The window frames

The window frames are cracked and chipped.

The Homeowner pointed out three areas on Mr. Boyd’s photographs that showed cracks or a dent on window sills. He gave no explanation as to the cause of the apparent damage or the date the damage first appeared.

Mr. Boyd and Mr. Vella were able to provide some information as to the likely cause. Mr. Vella indicated that the damage complained of was not in fact on the window frames but on the window sills. These sills are more decorative than functional. They are constructed out of Styrofoam and come covered with a stucco coating. Although they look fairly solid they are in fact somewhat fragile.

On the first photograph Mr. Vella pointed out a small crack where two rectangular pieces meet. The crack is less than 2mm in width and was caused in his opinion either

by shrinkage or some weight being applied to the sill. The second abnormality noted was described as a pressure dent. Again, he considered two likely causes. The first was that something dropped on it from above, depressing the stucco and compressing the interior Styrofoam. The second possibility was being gripped too tightly at some time prior to or during installation. The third abnormality was a crack running from the window from to the exterior edge of the sill. This crack was in his opinion the result of someone leaning something against the sill or using the sill as a shelf.

The Tribunal finds the first and third abnormality to have been caused by damage following the sale of the house and the third to be within the tolerance for minimal defect, as discussed in relation to the swirl on the ceramic tile above.

17. Colour of hardwood floor

The color of the hardwood has become discoloured and needs to be removed and replaced and in addition, makes a creaking noise when walked upon (especially in the master bedroom I guess that this is due to the low quality of the materials workmanship. (Year-end Form)

The Homeowner gave evidence that there was a wide variation in the colour of the hardwood floor boards in his home and that there was excessive creaking when the floor was walked on, especially in the master bedroom.

His witness, John D. Kirec, supports the Homeowner’s position in certain respects. He first attended the premises on September 21, 2008 and returned the next day to complete his inspection. His comprehensive report, including five pages of photographs, was filed as an exhibit. In his report Mr. Kirec notes the concerns of the Homeowner as being: “floor is not flat, cracks between floor boards, floor squeaks when walked on, floor does not appear to be installed properly, uneven colour of flooring, transition pieces between family room and kitchen and dining room and hallway are not finished properly”. It is noted that the Homeowner’s complaints to Mr. Kirecgo far beyond the complaint made by the Homeowner in his Year-End Form. Mr. Kirec’s findings with respect to the Homeowner’s broader statement of concerns are as follows:

a) The floor had a dip in one location in excess of 3/8¨over a 10¨ span and in another of 5/16¨over 42 1/2¨.

b) Cracks existed between the sides of planks from zero mm to .080 mm. and between the ends of planks of between zero and .035 mm.

c) There were some squeaks on the floor when walked on.

d) The spacing between fasteners holding the planks down was up to 13½¨ apart in multiple locations whereas the manufacturers recommendation was a maximum of 8-10¨.

e) Some colour variation existed between different species of wood used in the transition pieces. The colour variation observed …may be the result of the inherent feature of certain species of wood….and may not have been visible at the time of installation.

His conclusion as to the cause of the conditions was that:

“Without prejudice and based solely on the facts collected at the time of this inspection, the conditions in this floor are due to a combination of improper installation, inherent product characteristics, and site conditions.”

In cross-examination, by counsel for Tarion, the witness agreed that he was aware that the Homeowner damaged a few boards while moving in on October 7, 2008 and that he sanded, stained and repaired the damaged planks himself. The Homeowner also had concerns earlier that the floor wasn’t as shiny as he would have liked so he purchased some gloss finish and applied two coats to the floor in all areas except the master bedroom in order to make it shinier. The witness did not know whether these actions contributed to the complaints the Homeowner noted in his Year-End Report or the extent they may have contributed. Mr. Kirec was not familiar with the warranty provisions of the Act or the tolerances accepted by the Construction Performance Guide (CPG) for a between floor planking. When told, he agreed that the gaps he found were less than the 2 mm allowed under the CPG.

A number of witnesses gave evidence to support Tarion’s position that the floor was constructed of high quality hardwood and installed in accordance with good workmanship principles. These witnesses included the Vendor, both of Tarion’s Field Claims Representatives, Messrs. Romasanta and Boyd, and Tarion’s expert witness Mr. Vesconcelos. All witnesses found that there was little or no squeakiness evident at the time of their visits. They were also unanimous in their views that:

1. The wood itself was a high end quality product, known for its hardness and beauty.

2. Its beauty was enhanced in the aging process over a lengthy period of time.

Mr. Vesconcelos also gave evidence that:

1. The full colour development of the wood would be adversely affected by the application of any finish such as varnish. This would also void the manufacturer’s warranty.

2. The wood, coming from the Brazilian rain forest was subject to increased shrinkage in low humidity.

3. He did not notice any gaps between boards. The gaps reported by in Mr.

Kirec’s report did not exceed the 2mm tolerance allowed by the CPG used by Tarion.

4. There was no separation of the floor from the sub-floor.

5. A leak onto a hardwood floor for a few days could cause wood to heave and buckle, resulting in the hump observed.

6. Most of the tools and measurements carried out by Mr. Kirec in his inspection were irrelevant to the Homeowner’s original complaint of discolouring and creaking.

Finally, Mr. Vesconcelos concluded that there were no warrantable defects in workmanship or material evident from his inspection.

The Homeowner takes the position that as any competent workman will strive to follow the guidelines accepted by the NWFA and the manufacturer’s installation instructions, the departures from these standards noted in Mr. Kirec’s testimony, is in itself, evidence of poor workmanship within the meaning of the Act. He also submits that Mr. Kirec’s testimony is to be preferred over that of Mr. Vasconcelos as Mr. Kirec brought lots of tools and did lots of measurements during his inspection and Mr. Vasconcelos carried few tools. The Homeowner relies on three prior decisions of this Tribunal for support of his positon: Ontario(2608-ONHWPA-Claim) (Re)[2006] O.L.A.T.D. No. 216, Ontario(4256-ONHWPA-Claim) (Re)[2008] O.L.A.T.D. No. 130, and Ontario(3951- ONHWPA-Claim) (Re)[2007] O.L.A.T.D. No. 296.

Tarion’s position

Tarion and the Added Parties submit as follows:

1. The decision appealed from relates only to discolouration and squeaky floors.

The Homeowner never complained of excessive gaps, dipping or the lack of adequate fasteners.

2. On the issue of discolouration, Mr. Kirec concluded that the colour variation between floor boards could have been the result of inherent differences in the type of wood used for floor boards and transition pieces.

3. On the issue of squeaky floors, Mr. Kirec stopped short of saying the squeaking he heard was excessive. Indeed, evidence from other witnesses indicated that at other times no squeaking was heard whatsoever.

4. On the issue of excessive gaps between boards, Mr. Kirec himself admitted that the size of gap was well within the CPG.

5. Mr. Kirec found no movement between the floor and the sub-floor

6. Guidelines 2.6 and 12.20 of the CPG apply:

1.6.1 Floor Squeaks

Acceptable Performance

Floors shall be free from squeaks caused by movement in the floor system connections under normal loading conditions

Warranty

Squeaks resulting from normal shrinkage of materials caused by drying after construction are excluded from the statutory warranty.

Remarks

Extensive low-humidity indoor environment can cause excessive shrinkage in the wood resulting in loose floor connections. The homeowner must maintain indoor humidity levels to prevent excessive drying of materials. A squeak-free floor may not be attainable.

Acceptable Performance/conditions

Cracks resulting from joints that remain open in excess of 2mm over the length of the strip are not acceptable.

Warranty

Cracks resulting from normal shrinkage of materials due to drying after construction, damage caused by normal wear and tear or improper maintenance is excluded from the statutory warranty.

Remarks

Hardwood and parquet flooring are natural wood products and therefore are highly susceptible to changes in indoor relative humidity, which may cause dimensional changes in the flooring material. To determine the warrantability, the width of the crack should be measured during both the heating and cooling seasons. levels. The homeowner has a responsibility to maintain indoor humidity levels through humidification, ventilation, air conditioning or dehumidification to prevent permanent irreversible damage. A hygrometer can be used to monitor indoor humidity levels. Areas around heat registers and those exposed to concentrated sunlight may be more susceptible. Wood fillers may be used for repairs.

7. Subsections 13 (2) (f) and (g) of the Act apply to exclude damages resulting from improper maintenance or alterations, deletions or additions made by the owner.

Issues

1. Has the Homeowner proven, on the balance of probabilities, a breach of warranty under subsection 13(2) of the Act in respect to the discolouration or squeaking of the floor?

2. Do the complaints concerning the gaps between flooring boards and the distance between fasteners properly form part of this appeal?

3. Does the evidence support a finding of breach of warranty for the two last-mentioned items?

Findings

On the first issue, the Tribunal finds no evidence that the colour of the floor boards departed in any way from the beautiful rich hues for which this wood is justly renowned. The source of this finding is the evidence given by the Homeowner’s own flooring

expert, Mr. Kirec, who had nothing worse to say about it than “upon visual inspection some colour variation was found within the installed areas”. He attributed any colour variations to natural colour variations between the two types of wood used in the transition pieces and the flooring boards and to the natural characteristics for which the Jatoba cherry flooring is known. Both Mr. Boyd and Mr. Vasconcelos testified that colour variations between individual pieces of Jatoba cherry flooring is a well known and highly sought after characteristic of this product. The Tribunal also relies on the evidence of Mr. Vasconcelos in particular, who indicated that the application of varnish voids the manufacturer’s product warranty as it is known to adversely affect the colours which develop in the wood throughout the normal aging process. This evidence brings any complaint with respect to discolouration in this case squarely within the exclusion from the warranty coverage set out in subsection 13 (c) (g) of the Act.

The Tribunal also finds that the squeakiness in the floor noted by the Homeowner and Mr. Kirec was not so extensive as to support a finding that the floor was constructed with improper workmanship or material. This finding is based on the evidence of Mr. Kirec who found some squeaks in the floor, but declined to characterize them as “excessive” and stated that he had not found any separation between the hardwood flooring and the sub-floor. Nor did Mr. Kirec note any defect in the sub-floor itself. The Tribunal’s finding of non-warrantability is also based on the evidence of Messrs. Romasanta, Boyd, and Vasconcelos who all found no squeaking of the floor at the time of their visits.

The Tribunal has considered the two prior cases of this Tribunal relied on by the Homeowner with respect to squeaky floors. Ontario (2608-ONHWPA-Claim) (Re) [2006]

O.L.A.T.D. No. 216, Ontario(4256-ONHWPA-Claim) (Re) [2008] O.L.A.T.D. No. 130.

While the Tribunal is in full agreement with the reasoning in these cases, it finds that the facts in both of these cases are distinguishable from the facts in this case in one very important respect. In both of these cases the Tribunal’s decision was predicated upon a finding that there was excessive squeaking in large areas of the floor indicating movement between the floor and the sub-floor. None of the expert witnesses in this case described the squeaks in this floor as excessive, extensive, or the result of movement between the floor and the sub-floor. On the contrary, most witnesses have attributed the squeaks, if any to normal shrinkage in a product that has abnormally high moisture content.

On the second issue, the Tribunal finds that complaints relating to the gaps in the floor and the spacing of fasteners have not been the subject of a decision by Tarion. As section 16 of the Act only gives the Tribunal jurisdiction to hold a hearing and make an order where Tarion has made a decision under section 14 of the Act, the Tribunal does not have jurisdiction to consider these matters.

Should the Tribunal be wrong in narrowly interpreting its jurisdiction under the Act, the Tribunal has considered the third issue of whether a breach of the standards set out in the hardwood floor installation instructions and the NWFA guidelines demonstrates a breach of the Act’s warranty. In considering this question, it finds the approach followed by Vice-Chair Flude in Ontario (3951-ONHWPA-Claim) (Re) [2007] O.L.A.T.D. No. 296 to be particularly useful. When faced with a conflict between the requirements of the

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NWFA and the CPG, Vice-Chair Flude held that a breach of standards such as those set out in the CPG or the NWFA is only one factor (albeit an important one) that Tarion should take into account in determining whether an item complained of constitutes a breach of the statutory warranty found in section 13 of the Act. In cases such as this, he held that the proper approach is to look at and assess the total effect of any departures from accepted standards in the industry to determine whether the work constitutes a departure from the statutory standard set out in the Act.

The Tribunal finds, adopting this approach that the proven departure from the manufacturer’s installation instructions or the NWFA’s standards did not seriously affect the overall quality of the work and materials which the Builder was obliged to provide under the Act. It finds, considering the evidence as a whole, that the Homeowner has not shown on the balance of probabilities that his floor was not “constructed in a workmanlike manner, free from defects in material”.

18. Uneven back lawn

In the backyard, the soil and grass in uneven in a few spaces due to removal of trees by the builder. My kids can not play in backyard, therefore landscaping will be required to rectify this. (Year-End Report)

The Homeowner stated that there were several holes in his backyard that might cause injury to children playing in the area. He believed the holes were caused by trees which the Vendor had removed prior to construction. He produced no photographs to illustrate the extent of the depression; however, his witness, Mr. Timothy, confirmed his evidence as to the unevenness of the ground. Mr. Timothy’s evidence was that there was a sunken area of ground about 6” deep in front of the play structure in which he almost rolled his ankle.

The Vendor denied removing any trees from the property but neither he nor the Respondent denied the fact that the backyard had a number of holes or depressions. Their submission was that the depressions were due to the addition of either a play structure or a shed by the Homeowner. In this regard, they relied on the exclusions from warranty set out in Section 13(2) of the Act, and in particular on clauses (c) normal wear and tear, (f) damage resulting from improper maintenance and (g) alterations, deletions or additions made by the owner,

Having considered all the evidence the Tribunal finds as follows:

1. There were depressions in the yard that could pose a safety hazard to the Homeowner’s children or others in the yard.

2. There is insufficient evidence to support the parties’ suggestions that the depression was caused either by the removal of tree roots or by the Homeowner’s additions to the yard.

3. In the absence of any convincing evidence as to the cause of the depression, the Tribunal finds that the depressions came about as the result of natural settlement

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and the failure of the Homeowner to provide proper maintenance. As such, they are excluded from warranty by the provisions of subsection 13 (2) of the Act.

THE APPROPRIATE REMEDY

Payment out of the Guarantee fund

The Homeowner requested in his closing submissions, that should the Tribunal find any or all of the items appealed to be warranted, it make an order for payment out of the guarantee fund rather than the usual order requiring Tarion to carry out repairs.

The power to make such an order is found in subsection 14 (3) of the Act.

(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,

(a) the person became the owner of the home through receiving a transfer of title to it or through the substantial performance by a builder of a contract to construct the home on land owned by the person; and,

(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.

The Homeowner bases this request on the fact, which is not disputed, that the relationship between himself and both Tarion and the Added parties is acrimonious to say the least. He refers in his submission to several previous Tribunal decisions which appear to base a decision to make such an order on this ground.

This Tribunal acknowledges that this remedy has often been followed in the past when acrimonious relations between the parties suggest this as a method of avoiding further conflict and accedes to the Homeowner’s request. In this regard.

Punitive damages

Damages for personal injuries Out –of-pocket expenses

The Homeowner has asked that punitive damages be assessed against Tarion and the Added Parties and that he be awarded damages for personal injuries and out of-pocket expenses.

The Tribunal is not a court of law and has no jurisdiction to award damages such as those requested. Its powers are limited to those expressly set out in the Act giving it authority to conduct a hearing. In this case “secondary damage caused by defects such as property damage and personal injury” are expressly excluded by subsection 13 (2)

(b) of the Act and subsection 6 (6) of Regulation 892 which specifically limits payments out of the guarantee fund to “damage to the home only”.

COSTS

All parties have asked for an order for costs.

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The Tribunal’s power to make such an order and the appropriate factors to consider can be found in Rule 14 of the Tribunal’s Rules of Practice. This Rule provides as follows:

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 there from 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.

14.4

Where the Tribunal determines that an order for costs may be made under Rule 14.

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

(2) the amount of costs shall not exceed,

(a) where the Tribunal has not commenced a hearing, the sum of 400.00; or

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

The Tribunal saw nothing in the conduct of the Respondent or Added Parties that could conceivably be described as unreasonable, frivolous, vexatious or in bad faith. Indeed, counsels are to be commended for their professionalism throughout this lengthy and emotional proceeding.

The grounds advanced for the award of costs against the Homeowner are more compelling. They include an almost total disregard of the Tribunal’s Rules and the order of a Vice-Chair of this Tribunal respecting the disclosure of documents, the issuance of summons to compel the attendance not only of his own witnesses but of witnesses for Tarion, an unsubstantiated attempt to have counsel for the Added Parties removed, threats of lawsuits against his own witness prior to him taking the stand, and very serious and unsubstantiated allegations of wrongdoing against Tarion’s Field Claims Representatives. Although some acrimony between the parties in these cases has

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regrettably become almost the norm, the conduct in this case exceeded anything which should be tolerated and contributed to the length of the hearing.

The hearing took 16 days. A proper, cooperative attitude by the Homeowner with full and open and timely disclosure as required by the Rules would no doubt have resulted in a much shorter hearing. This became impossible due entirely to the vexatious conduct of the Homeowner. The Tribunal accordingly orders the Homeowner to pay costs to both Tarion and the Added Parties (one counsel fee) in the amount of $800 each.

ORDER

Having considered all of the evidence and the submissions of the Parties, pursuant to the authority set out in subsection 16 (3) of the Act, the Tribunal orders that the Homeowner be paid the sum of $800.00 out of the guarantee fund established pursuant to section 14 of the Act on account of the breach of warranty with respect to items 1 and 13 and that Tarion disallow warranty coverage for the balance of the claims asserted in this appeal.

The Tribunal further orders that the Homeowner pay costs to Tarion and the Vendor in the amount of $800 each. Payment of the amount of $1,600 shall fully discharge the Homeowner’s obligations under this order.