Licence Tribunal Appeal d'appel en Tribunal matière de permis
DATE: 2010-09-28
FILE: 5851/ONHWPA
CASE NAME: 5851 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 Applicants
-and-
Tarion Warranty Corporation Respondent
-and-
Boyes Homes Inc. Added Party
REASONS FOR DECISION AND ORDER
ADJUDICATOR: KEN SELBY, Presiding Member
APPEARANCES:
For the Applicants: THE MALE APPLICANT appeared on his own behalf and on behalf of the female Applicant
For the Respondent: NEIL ABBOTT, Counsel, appeared on behalf of Tarion Warranty Corporation
For the Added Party: DAVID BOYES, Agent, appeared on behalf of Boyes Homes Inc. the Added Party
Heard in Toronto: April 29 and 30, May 27 and 28, June 14, 15, 17 and 30, 2010, Written closing arguments were to follow on July 14, July 28 and August 11, 2010
Amended DECISION AND ORDER
BACKGROUND
This is an appeal by the Applicants to the Licence Appeal Tribunal (the “Tribunal”), from a written decision of Tarion Warranty Corporation (“Tarion”) dated December 21, 2009, wherein the claim of the Applicants was denied.1 This appeal is with respect to the Applicant’s claim of a Major Structural Defect (“MSD”).2 The male Applicant, who represented both Applicants and who testified during the hearing, will be referred to as the Applicant.
The issue to be addressed is the adequacy of the hydronic system which is used to heat the Applicant’s home during the winter months. It should be noted that the construction of the home was started in October of 2002 and completed in May of 2003. Much of the construction work was performed in very cold winter conditions. The home was first occupied on May 27, 2003.
EVIDENCE
Evidence of the Applicant
The builder failed to provide the Applicant with the Homeowners’ Information Package which outlines the responsibilities of the parties. As well the mandatory Pre-Delivery Inspection never occurred.3 These appear to be two of the minimum standards required by Builder Bulletin 42. The Applicant’s evidence, which was never challenged, was that the builder never advised him of any warranty provisions.
On February 17, 2004, during the first winter, serious concerns relating to the heating system of the home were first made known to Tarion’s then Customer Service Representative, Joyce Taylor.4 Over five years later, on August 17, 2009, an investigation was underway when Tarion first attended the site for an inspection and it is noted that the in-floor heating system:
“had been disconnected in order to run the test to the system as ordered by the ongoing litigation process between the homeowner and the builder.” 5
The first winter in the house the Applicant found it was difficult to maintain the heat above 60°F. The shower water was often too cold to be used. Washing dishes was also a problem. The home involved a hydronic heating system with hot water circulating through hePEX ("PEX") tubing which is located in the concrete floor. This home was a single storey with a concrete slab-on-grade. Portions of the floor were warm while other parts were much colder. This caused the occupants to wear slippers despite the fact that radiant heat typically produces warm floors. This heating problem became so severe that it caused the Applicant’s wife and child, who have health problems, to move in with her parents who lived many miles away.
On 23 December 2003 the Applicant called the heating contractor, David Liles, left a message and did not get a return call. Mr. Liles later testified that he never received any calls. The Applicant, who is now a licenced technician who installs boilers, attempted to understand what was happening to his heating system. He observed in winter that snow melted for a couple of feet around the perimeter of the home. This melted strip was much wider in front of the garage doors. He also observed that there was no insulation visible at the slab edge in front of the garage doors.
The Applicant was also concerned about the amount of propane which the home was consuming. One possible explanation for excessive heat loss could be a very high water table. He had an excavator dig several trenches totalling about 100 feet in length around the home. These trenches were about six feet deep, several feet wide, and they remained open for a number of days. Despite some rain these trenches revealed that there was not a high water table since they remained dry. While the excavator was on property the Applicant had the slab edge beside a garage door excavated to expose the insulation.6 The top foot of the slab edge had no insulation despite R10 being specified. Below that there was two inches of Styrofoam (a blue Dow product with R10). Under the footing was one inch of CodeBord (a pink Owens Corning product with R5). There was no evidence of any rFoil exposed under the edge of this garage slab. This seems to be consistent with the photograph of small pieces of CodeBord that appear to have floated up in the garage floor.7 He concluded that this insulation level of R5 was typical for the entire home while the engineering design called for R12 (as noted on drawing S- 1).8
The builder suggested that rFoil was placed over the one inch of CodeBord to act as additional insulation and when all of the joints of the rFoil were taped it also acts as vapour retarder. The manufacturer's literature for this product states:
It is a sheet of aluminum laminated between two layers of ultra strong polyethylene bubbles.9
The witness provided a Natural Resources Canada document entitled Frequently Asked Questions.10 On page 7 it refers to a Canadian Mortgage Housing Corporation investigation on actual homes which found that the insulating value of this rFoil product is only RSI of 0.4 (RSI is the metric equivalent designation which converts to an R value of 2.27).
The radiant heat layout involved 16 loops which had been designed by Uponor Wirsbo (“Uponor”) a firm specializing in designing such systems as well as the manufacturing the PEX tubing. The tube layout and associated specifications are seen on this Uponor drawing which is dated 14 November 2002, a short time before the concrete floor was to be placed.11 The Applicant noted that three separate manifolds are shown on this diagram but do not exist in these three locations in his home. Rather two manifolds were located side by side each with eight loops attached to each.12 The builder stated that the Applicant requested this change. The Applicant said that he did not request or approve any change in this design layout. This change would cause some of the loop lengths to grow in length and tube spacing to be changed from the Uponor drawing.
These changes would have a negative implication on the heating of the home.
The Applicant remarked that the floor was uneven in spots. For example, the floor rose 3 to 4 inches in front of the refrigerator. As well the garage floor sloped toward the house which created a problem when a car parked with melting snow.
The boiler was requiring 4 to 6 litres of make-up water daily long before the boiler was replaced. This caused the pressure to be dropped from 15 psi to 10 psi which in turn reduced the flow in the tubes. Normally this is a closed system that should rarely, if ever, need to receive make-up water. This water requirement tended to suggest some leakage in the tubes. Indeed some water came up through a crack in the middle of the garage floor indicating failed tubes in this area.13
The Applicant produced some infrared pictures to examine variations in the slab temperature.14 Where the PEX tubing is functioning properly the tube location is clearly observed and the colour can be used to roughly establish the floor temperature. On page two the tube location is obvious and the spacing is quite irregular. On other pages, such as page six, one can see a dark area representing reasonably uniform temperatures which are much lower. The Applicant said that this represents a leak in the PEX tubing and the leaking water has spread out underneath the slab. It was indicated that this, like a high water table, would represent a significant heat loss.
The Applicant was concerned that the main header was a ¾ inch copper pipe. He believed the diameter should have been at least a 1 inch pipe. He subsequently confirmed this on a recorded conversation with a Canadian Baxi representative.15 The Baxi boiler was tending to short cycle which tends to lead to a drop in water temperature. In the very cold weather the boiler would shut down. The Applicant had to go up on the snow laden roof and chip hoar frost off the combustion air intake in order to restart the boiler. David Liles later indicated that both he and Rob Boyes had even been involved in some hoar frost removal. Rob Boyes, brother of David Boyes, said he had no recollection of this. Once the hoar frost was removed the boiler would run for a few hours before shutting down again. This means that the boiler was only operating a fraction of a 24 hour day. In addition the diverter valve did not close properly causing considerable noise as well as a drop in domestic hot water temperature. It was also discovered that two of the thermostats were wired incorrectly.16
Dale Tebby, a HVAC specialist visited the subject home. He pointed out that the system had inadequate make-up air. As well the expansion tank, which was located in the attic, would likely create a condensation problem with the weather in this area. After experiencing the heating in this home he concluded that there was either no insulation in the floor or some PEX loops were leaking.
In order to maintain heat and reduce propane consumption the Applicant supplemented the heating system with a wood burning stove located in the garage and added fans to circulate the warmer air. By February 2006 the Baxi boiler had been condemned by the regulating authority so it had to be replaced quickly. Now the home was left with little heat or hot water. Tarion was informed before this replacement took place but failed to get involved. The Applicant felt he had no option but to act. He concluded that some of the ice forming on the vent had damaged the Baxi boiler when ice chips fell down the exhaust pipe. It appears that this caused rust which destroyed the circuit board.
At a pre-trial, in the civil litigation between the applicants and the builders, the judge ordered that a test be set up to assess the PEX loops for any leakage. The heating system installer, David Liles, and a heating technician from Dale Tebby’s firm would represent each side of the dispute and they were to conduct pressure tests. The test procedure was approved by Uponor. The test results for two consecutive days (May 25 and 26, 2009) were consistent and seven of the sixteen loops were found to be leaking.17 Two in the garage went from 60 psi down to 0 psi very rapidly. The Applicant associated this to the water on the garage floor and the major snow melting in front of the garage doors.
Concerned that others were suggesting that the boiler changes contributed to the leaks which were noted, the Applicant had the PEX evaluated by the tube manufacturer. Tebby Air Conditioning & Heating Ltd., an Uponor installer, took the samples from the supply side of the manifold and also the return side as these locations experience the most extreme temperatures. The Uponor investigation revealed that there had been no damage to the PEX tubing caused by the boilers.18 Incidentally it was noted that the tests were done under another PEX user's name because Uponor would not have become involved if they knew that litigation was involved.
The Applicant encountered many people who were reluctant to get involved with his heating problems once they realized that a lien or litigation existed. He stated that a number of Tarion representatives also indicated that they could not become involved when the builder had a lien pending. He provided as evidence a recorded telephone conversation in which Michelle Yantha changed her position regarding a benefit after consulting with her manager.19 This conversation also seemed to indicate that Tarion could not find all the relevant records submitted by the Applicant to Joyce Taylor the Customer representative soon after the home was first constructed.
The Applicant made it very clear to Tarion that he was very upset with the performance of his heating system. He did not want the builder on his property. On his lawyer's advice he did not wish to have Tarion inform the builder of any of his concerns.
Evidence of the Applicant`s Father
He visited the site about five times while it was under construction. A number of deficiencies were noted:
the attic insulation was less than half of what was specified (R19 versus R40),20
the kitchen floor sloped upward about 3 inches causing hollow areas under the tiles,
there was no drain in laundry room,
the front entrance is not heated as designed, and
he observed pink insulation but not the rFoil (bubble wrap) nor any red Tuck tape.
Evidence of Dale Tebby – expert witness
Dale Tebby has 42 years experience in the Heating, Ventilation and Air Conditioning Industry. For the past 21 years he has owned Tebby Air Conditioning & Heating Ltd.
Mr. Tebby has numerous credentials relating to: Baxi boilers, Uponor Wirsbo installations and he is designated as a designer – Ontario Building Code etc. He has installed 70 to 80 Baxi boilers with very few problems.
In May 2004 the Applicant asked Dale Tebby to discuss the heating system in this home. He was quite familiar with Baxi boilers and explained the cause of the hoar frost that had been shutting down the boiler during the winter.21 At the hearing Mr. Tebby explained that this is caused by recycling. More specifically some of the moist hot air being vented out the exhaust is drawn into the intake where it condenses causing ice to form. He was aware of this on several other Baxi installations over the last few years.
Those homes that vented through the side wall rather than the roof do not experience this problem.
On his initial walk through the house, in stocking feet, he rapidly concluded that the home either has a leaking tubes or no insulation under the slab. As well Mr. Tebby demonstrated that the system did not have enough make up air to run properly. He agreed to have his technician check out the boiler. This was done and the boiler checked out as satisfactory in May 2004; yet the house was remaining colder than expected.
The system was losing water, 4 to 6 litres daily, and this should never happen. Virtually the only place it could go is under the slab. It was suggested that the PEX loops should be pressure tested for 24 hours with suitable representatives from both the installer and the homeowner. There would be an engineer and a technician representing each side. The installer, David Liles, agreed to this test procedure. As previously mentioned this test was conducted in May 2009 and it revealed 7 of 16 loops were losing pressure.22
Mr. Tebby indicated that the normal approach was to pressurize, with air, the PEX loops to 100 psi overnight followed by a concrete floor pour the next day. Only if this test is successful the lines can be filled with liquid.
Following the pressure tests the tube ends were tested. This was done to make it clear that no damage had occurred by the addition of a wood boiler. Tube pieces from loop ends were sent to Uponor who conducted the testing. Uponor would also test for any UV damage related to excessive exposure to sunlight. Uponor carried out a variety of tests and reported the tube samples showed no signs of a manufacturing or material defect.23 This means that any changes to the heating system have not affected these PEX loops.
On cross examination Mr. Tebby indicated that Baxi got a fix for the hoar frost problem about three years ago.
Evidence of Tim Kieffer – expert witness
Tim Kieffer has been offering structural engineering services continuously since 1981 when he completed a master’s degree in Civil Engineering. His practice primarily deals with multi-million dollar industrial or commercial projects.
In March of 2008, Mr. Kieffer was retained to investigate deficiencies in the subject home. The floor slab was the main focus of his two-page report.24 He noted cold spots on the floor, examined construction photographs and infrared images. Mr. Kieffer observed a number of variations from the design drawings which were produced by Totten Sims Hubicki Associates ("TSH"). He was informed by the Applicant that at least 4 litres of water had to be added to the system each day. Mr. Kieffer noted that the TSH drawings specified that the wire mesh, along with the PEX loops, were to be lifted up about 2 inches to have the appropriate amount of concrete cover. These loops, which were attached to the wire mesh, were not lifted, or supported on supports (called chairs); therefore there was no concrete cover below the tubing at the bottom of the slab. His conclusion was that the entire slab had to be replaced to make it consistent with the design drawings.25
Following the pressure tests that confirmed the failure of the in-floor heating system, Crystal Gardiner from Tarion asked Mr. Kieffer to estimate the costs of the repair process. He concluded that to meet the design requirements the walls would have to be supported while a slab was replaced. His estimate of the renovation cost was $245,000 but said it could easily vary by 25 percent depending on the amount of damage done during the slab replacement.26
Evidence of Chrystal Gardiner
Chrystal Gardiner is the Field Claims Representative, a position she has held since May of 2004. Her job involves judging whether homeowners' claims are warranted or not. Prior to this job she was a building inspector.
The homeowner provided a Contract Home Information Form to Tarion dated 16 March 2004 which referred to separate paperwork related to the claims. The homeowner indicated that the builder was not to be involved at this time. Some of the documents that the homeowner has referred to do not seem to be in the Tarion file for this home.
A Major Structural Defect Form ("MSD") was received on 29 June 2009 regarding the subject home. This indicated that the heating system fails to produce enough heat to occupy the house. Ms. Gardiner indicated that the MSD requires that the defect must be adversely affecting the use for which it is intended. The form indicated that previous notices to Tarion about this problem have not resulted in any action.27
At the time of the Tarion site visit the PEX loops were being tested. The witness stated that litigation would not affect the decision. Ms. Gardiner subsequently indicated that because the system has been altered the claim has been denied.
The pressure tests revealed 7 of 16 loops are leaking and these results were made aware to this witness. Further the Uponor tests indicate that the boiler changes had not affected the PEX tubing. On cross examination Ms. Gardiner was asked, if Tarion is denying the claim used in the alterations, why she asked Mr. Kieffer to quote the cost of repairing the leaks.
Evidence of Jim Fortune
Jim Fortune has been with Tarion for 21 years and is currently Manager Builder Relations.
Mr. Fortune made reference to Section 14 of the Ontario New Home Warranties Plan Act (Act). In general this section deals with the right of a person to recover from the guarantee fund of Tarion, under the stated circumstances. He spoke of a benefit and suggested that Tarion would not pay a claim unless the builder was involved. Refusing to let the builder be involved during a Tarion inspection would lead to denied coverage.
Mr. Fortune referred to Bulletin 42 (Revised). This document explains the Customer Service Standard at that time. As previously mentioned the evidence was that two of these builder requirements never occurred.
Evidence of Howard Coggins - expert witness
Howard Coggins is a self-employed professional engineer with 30 years of experience. Since 1987 he has operated under the name of Kontek Engineering, an incorporated company. Mr. Coggins's experience is mainly in the mechanical area, mostly dealing with commercial and residential HVAC systems.
He has experience in heating systems including placing PEX pipes in slabs. He also has some structural, electrical and project management experience. He is certified to all BCIN requirements of Ontario Building Code ("OBC").
Regarding the R values of the insulation under the slab, Mr. Coggins stated a number of times that he assumed that the R value indicated in the manufacturer's literature (namely that rFoil has an R value of 14.3 downward) was correct. He stated that he had no first hand experience with rFoil. When asked, which of the eleven types of insulation listed in article 9.25.2.3 of the OBC (1997) would include rFoil, following examination of the article, he replied none of them.
Mr. Coggins believes that pressure tests are the best way to establish if loops are leaking. Gauges can leak so soap testing is essential to isolate possible leaks to the slab. He believes a very small drop in pressure may be related to the test equipment. No testing is foolproof so repeatability is important. He believes that the cause of any leaks would not appear be related to the installation as the building inspector checked the construction work.
The witness indicated that any problems with the insulation must be minor as the propane consumption for the 45 day test was less than expected.28
In cross examination Mr. Coggins agreed that moving the manifolds and thereby producing loop lengths, some of which exceeded 300 feet, seemed excessive.
Evidence of David Boyes
David Boyes has several businesses including: new homes, framing, manufacturing and distributing a concrete repair product, tool and die making, as well as being a licenced pastor. He has been in the building business since 1987.
Mr. Boyes indicated that the first time he was made aware of these heating system concerns of the homeowner was in 2008 or 2009.
Regarding the insulation levels, Mr. Boyes stated he put R10 in the floor, R40 in the ceiling and R28 in the walls. Under the slab is one inch of CodeBord with rFoil on top.29 The rFoil, which is aluminum foilfaced with bubble pack, is taped with red Tuck tape to form a vapour retarder. Mr. Boyes indicated that the insulation under the slab has an R value of 5 for the CodeBord and R14.3 for the rFoil.30 He noted that this exceeded the R10 required by the OBC. He stated that the building inspector saw this being installed and had no problem with one inch of CodeBord under rFoil. Mr. Boyes produced a book of documents.31
When analyzing the homeowners’ propane heating bills, he calculated that they used less fuel than expected during the first 45 days.
Regarding the level of the concrete floor, Mr. Boyes believes that the concrete is all within ±0.5 inches of the desired grade.
Mr. Boyes indicated that the pipes did not leak when the original system was installed. He suggested if they now leak, it must relate to the changes made by the homeowner. He would fix the problem if it was a warranty issue but not if the homeowner had altered the system.
Mr. Boyes indicated that the wire mesh along the PEX tubing remained at the bottom of the concrete slab.
If attic insulation has measured less than the design level of R40, Mr. Boyes suggested the insulation which was blown in must have settled down over time.
Evidence of David Liles
David Liles installed the heating loops and boiler. On one previous occasion he had installed over rFoil. Nobody expressed any concern about using rFoil on this project.
A pressure test for about 10 weeks took place until the boiler was installed in February 2003. The air pressure remained constant. The Applicant felt little glycol had been added to the system to prevent freezing. Mr. Liles and Mr. Boyes discussed this and concluded that a 30 percent propylene glycol solution was added to the water in the system. Imported bottled water was used as the well was not yet in place.
Mr. Liles said hoar frost is a known, but rare, problem. He was never made aware of the heating problem until 2007 or 2008. He has no employees so either he, or his wife, handle all telephone calls. He stated that he saw Rob Boyes, brother of David Boyes, once clear the hoar frost himself.
He indicated that Uponor said it was acceptable to leave the PEX tubing on the rFoil rather than lifting it up in the concrete as specified on the TSH drawings. He noted that hydronic installations which occur in winter take more time to get the home up to temperature. This is because additional heat flows toward the frozen ground.
Mr. Liles basically used the Uponor diagram for the heating zones. It was modified to locate the manifolds for the sixteen loops in one location. A radiant design summary was produced.32 Mr. Liles sought approval from Uponor, for the manifold location changes. He indicated that he received oral approval from an Uponor employee. He agreed that the manifold relocations have changed loop lengths which can be seen on his design summary. Uponor did not update the loop layout diagram.
He agreed that more propane would be consumed if the boiler was short cycling. However he does not recall the boiler short cycling. He believes that the propane use was not exceptional.
THE LAW
A major structural defect is defined in the Act as:
Any defect in work or materials that results in the failure of a load-bearing part of the home's structure or materially and adversely affects its load-bearing function: or
Any defect in work or materials that materially and adversely affects the use of the building as a home.
ANALYSIS
As previously mentioned the builder did not provide the Applicant with the Homeowner Information Package, nor did he arrange for a Pre-Delivery Inspection. Both of these are required by Builder Bulletin No. 42. When heating problems occurred during the first winter the builder had a lien on this property. This lien, which related to alleged extras, appears to have affected the involvement of Tarion. It should be recalled that this is a single storey slab-on-grade home with a hydronic heating system. The cause of the inadequate heat was not easy for the homeowner to establish.
The lien expired; however the parties are still involved in litigation. Tarion was first made aware of the heating problem on February 17, 2004 during the first winter. On the advice of his lawyer the Applicant did not wish the builder to visit the site or gain any information that would affect the pending legal dispute. These factors in combination caused Tarion not to visit the home until after the Applicant provided notice of a MSD claim by letter dated June 30, 2009.
Each winter the homeowner has had major heating system problems which he has slowly analyzed. The Applicant, who is a licenced boiler installer, supplemented his original boiler with a wood burning boiler which he located in his garage. He also added fans to circulate the warmer air. The original boiler had major problems primarily because of hoar frost caused by recycling of moist exhaust air into the intake where it froze. Mr. Liles, the heating system installer, testified that both he and Rob Boyes knew about this hoar frosting problem while they were still on the construction site. In winter this ice would soon shut down the Baxi boiler and make it necessary for someone to climb up on the snowy roof in order to chip away the hoar frost which was blocking the air intake. This would allow the boiler to be started up again and run for a few more hours before the cycle was repeated. The Applicant was often at work for the day and would come home to find a cold house and no hot water for showers etc. It should be noted that during the first winter, conditions were so bad that his wife and son had to move in with her parents who lived many miles away.
The Applicant believed that the home used much more propane than he had expected and he began to believe that the amount of insulation could be a problem. Various parties have made calculations of propane consumption during the first 45 days. This consumption evidence does not seem credible as there is only one person residing in the home with very little hot water available and a home which was difficult to keep above 60°F. Even more important the furnace only worked for a few hours after the hoar frost was removed before it turned itself off. As noted by David Liles the first winter would be the worst as the home was built in winter on frozen ground. These propane calculations are of very little value as evidence.
There was some suggestion that the water table was too high and this was causing a very large heat loss. The Applicant arranged for an excavator to dig about 100 feet of 6 foot deep trenches around his home. These trenches remained open for days. Even when some rain was experienced these trenches were soon dry. Clearly the water table can be ruled out as the cause of major heat loss.
The evidence was that in winter the snow melted around the walls of the home for about two feet and significantly more in front of the garage. This caused the Applicant to suspect that the insulation level could be contributing to the larger than expected heat loss. While the excavator was at the home digging trenches some checking of the insulation took place. There is a video taken at the front of the garage which was dug down to the bottom of the edge of the slab. It was noted that only the bottom half of the slab edge had 2 inches of Styrofoam SM (about R10) and there was only 1 inch of CodeBord (about R5) under the slab. The insulation levels had being specified by TSH. The TSH design called for R12 under the slab, R10 at the slab edge and R12 essentially horizontally around the building. This meant that much less than one-half of the required insulation was in place. One photograph shows the floor of the main part of the home shortly before the concrete was to be placed.33 I
t shows an rFoil product, taped with red Tuck tape so the combination would act as a vapour retarder, which was apparently placed on top of one inch of CodeBord. The 1 inch of CodeBord is noted horizontally around the main part of the building. The manufacturer states that rFoil has an R value of 14.3 while a Canadian Mortgage and Housing Corporation investigation of slab insulation alternatives shows a value of R as 2.4 (RSI = 0.4).34 The Ontario Building Code in section 9.25 lists eleven acceptable types of insulation and the builder's expert confirmed that rFoil is not on that list. That means this product has not been approved for use as insulation. Therefore the insulation under the slab is R5 while R12 has been specified. The insulation does not comply with the drawings or the building Code.
In the garage area, the evidence suggests that no rFoil was in place.35 As well there was very little insulation at the edge of the slab in the vicinity of the garage doors. It is not surprising that the pressure test results indicate that two of the garage loops show no pressure remaining after 24 hours. This suggests major leaks in these tubes.
The insulation values in floor, walls and ceiling all affect the loss of heat and therefore the consumption of propane. The walls are constructed with a system that is known as insulated concrete forms (ICF) so these walls are probably close in R value to what was specified. The ceiling on the other hand was measured by an independent firm and it was found to be slightly less than one-half of the specified R40.36 Fortunately this attic was accessible so insulation was added. Clearly it is extremely costly to add insulation under the floor slab.
For several years the Baxi boiler continued to struggle to heat this poorly insulated house. Finally in 2006 the boiler failed and the Applicant was prevented from using it. It appears that some of the ice chips from the hoar frost had fallen into the boiler controls and caused fatal damage. The Applicant called Tarion and three days later with no reply he had a new boiler installed, by Dale Tebby who is a licenced installer, as it was February and time was of the essence. It appears that Tarion employees considered the lien or even the litigation as a benefit and they should not get involved. In addition the Applicant did not want the builder involved. Evidence of one taped conversation where the Tarion representative changes her mind after consulting with management was offered at the hearing.
The Applicant observed some water slowly coming up through a crack in the middle of the garage floor slab.37 Since the water table had been found to be much lower than the house slab the Applicant started questioning the source of this water. Indeed he noted that the heating distribution system required 4 to 6 litres of extra make-water each heating day. This is a closed system that should, rarely if ever, need make up water. This suggested leakage in the PEX tubing which distributes heat throughout the floor slab. PEX tubing is very strong and is considered resistant to freezing. This system was first filled with a solution combining bottled water with propylene glycol as it was the middle of winter and the first winter with frozen ground under the slab would be the most challenging. Evidence was given that it was the worst winter in 30 years with the temperature often reaching minus 30°C. The way that such temperatures are handled is to add propylene glycol to the water in order to make the mixture more freeze resistant. In addition the tubes are lifted to mid slab height so the concrete which surrounds the tubes resists any expansion of the PEX tubing. The Applicant believed that very little glycol solution had been added while the builder and installer testified that 30 percent had been added. It is interesting to note specification no. 11 on the Uponor drawing states:
- DO NOT ALLOW TUBING TO FREEZE’ A 50% PROPOLENE GLYCOL/SOLUTION IS RECOMMENDED
Public information shows that a 30 percent solution freezes at 9° F (-13°C) while a 50 percent solution freezes at -26°F (-32°C). It is not difficult to conclude that some freezing has taken place given minus 30°C temperatures. Why did the surrounding concrete not prevent the tubing from failing? The evidence was that the installer choose not to elevate the tubes to mid slab depth as required by the TSH structural drawing S- 1. In addition, the Uponor specification number 4 states:
- FOR INSTALLATIONS IN CONCRETE FLOORS’ THE MINIMUM COVERING FOR THE PIPE IS 1", THE MAXIMUM IS 3-4".
The replacement boiler is a NTI Trinity Lx. The Installation and Operation Instructions provide several warnings. The following one is of interest:
Immediately repair any leaks in the system plumbing to avoid the addition of make-up water; make-up water provides a source of oxygen and minerals that may lead to heat exchanger failure.
This is interesting as the leaks and make up water may have contributed to failure of the first boiler and it may yet cause the new boiler to need replacement. One can only immediately stop using make-up water by shutting down 7 of the 16 heating system loops or locating and fixing 7 leaks at very big cost and significant delay. The solution of fixing the leaks would not resolve the inadequate insulation or the PEX loops being at the wrong elevation.
The lack of concrete cover means that the tubing is resting on the soft rFoil bubble wrap on the bottom as opposed to being elevated and therefore surrounded by far more load resistant concrete on all sides. As any leakage is replaced by water the percent propylene glycol is further reduced, thereby adding to the likelihood of freezing and even greater leaking.
The system installer, David Liles, stated that he had oral permission from Uponor to make several changes to the Uponor design including: manifold location and thus loop lengths, including several loops over 300 feet long and spacing as well as elevation of PEX tubes in the slab. It is not credible that Uponor gave such permission. For example, in the Radiant Design Summary the tube spacing is shown as 12 inches while the Uponor design calls for many tubes around the building perimeter to have 6 inch spacing. The evidence was the main door vestibule is now unheated while it is loop 4 on the Uponor drawing. The evidence strongly suggests that any Uponor warranty would be void with all these design changes. The homeowners deserve a warranty on this heating system.
In 2009 tests were conducted with representatives (engineers and technicians) from each side present. These tests revealed that 7 of 16 loops were leaking at that time. It should be noted that the problem with the leaking tubes is unrelated to the boiler being used to heat the water. This was proved by having Uponor test the tubing which would be most affected by heat. The tests revealed that the tubing was sound and thereby not affected by any changes that the homeowner made to the heating system.
Why was water seeping up through the garage floor slab? Two loops have failed in this area and there is a crack in the concrete floor. Recall that there is little insulation and even more snow melting at the front of the garage. Since the heat can easily leave the building in this area, freezing is not at all surprising. The R value of the door is lower than the walls, so missing insulation represents an easy path for heat to escape.
There is no evidence of rFoil in the garage. Certainly it is not under the edge of the slab. This product has a sheet of aluminium foil, which is an excellent conductor, between layers of bubble wrap. Where this rFoil represents continuous strips wall to wall, as in the main part of the building, it most likely represents what is known as a thermal bridge. This would facilitate heat escaping around the edge of the building and thus contributing to the extra snow melting which the Applicant observed and photographed.
The Baxi boiler did not function properly as it turned itself off because of hoar frost. During winter in 2006 this Baxi boiler was condemned and had to be replaced.
Much of this evidence was hidden from the Applicant and therefore not obvious. It was only revealed by examining the building behaviour and court mandated pressure tests, followed by six days of testimony before this Tribunal. The following clearly differ from both the expectations of the homeowner and design specifications:
Let us indicate some of the defects in work or materials that have been revealed:
the insulation value, recognized by the OBC, under the slab is only R5 while R12 is specified and this represents about 42 percent of the requirement,
the slab edge in the area of the garage door is missing even more insulation both vertically, horizontally and under the door resulting in excessive melting,
the attic insulation was one-half of the level specified and now has been repaired,
the rFoil represents an excellent conductor which would act as a thermal bridge,
the three manifolds are not located as in the Uponor design,
the loop pressure was lowered to reduce leakage further reducing the heat,
the elevation of the wire mesh and attached tubing is not as specified by TSH,
the propylene glycol solution was much less than recommended resulting is a freezing point of 9°F (-13°C) while the evidence was the temperatures got down to -22°F (-30°C) while the building was being constructed,
the required make-up water further reduces the percent of propylene/glycol in the water and may well have contributed to past or even future heat exchanger failure,
the heating loops are not located as they were specified by Uponor,
some of the loops are longer than the design requires thereby reducing the heat,
the loop spacing is stated as 12 inches where design calls for 6 inches in spots
thermal imaging reveals much variation in the distance between adjacent tubes,
the likelihood of Uponor warranting this heating system is very remote,
regarding the cause of the leaking: it is most likely that these leaks occurred in the first winter which was very cold and the ground was initially frozen, and
the court ordered tests which were conducted jointly by both parties, recently revealed 7 of 16 loops are now leaking.
This series of defects in work and materials have materially and adversely affected the use of the building in the following ways:
the home was so cold that the wife and son of the Applicant had to move out during the first winter,
the homeowner had to climb up on the snowy roof to make the boiler function during the time when the Baxi boiler was installed,
there was often no hot water for showers, dishes or laundry,
the Applicant had to add a wood stove to make the home warm enough to get through the winters and this represents on-going labour and giving up part of the garage until these heating problems are addressed,
seven of sixteen loops which were designed to heat the home are not working according to court ordered testing,
the vestibule of this new home has no provision for heat,
the operating instructions advise against using make-up water because of damage to the existing boiler heat exchanger, therefore 7 loops should be taken out of service at this time,
parts of the home above the seven leaking loops should be turned off and therefore be cold while the other nine loops attempt to heat the areas above them despite inadequate insulation,
the owners have to wear slippers because of the cold portions of their floor.
DECISION
For the reasons stated above, and pursuant to the authority vested in it by section 16(3) of the Act, this Tribunal makes the following order. The Tribunal orders that Tarion's decision to disallow the Applicant's claim be set aside and the Tribunal directs Tarion as follows:
Tarion is directed to perform the following remedial works to remove the faulty heat distribution system and deficient insulation. The Applicants should receive, properly installed in the home, a replacement heating distribution system together with insulation as specified that complies with the Ontario Building Code, the Totten Sims Hubicki engineered drawings as well as the specifications and drawing of Uponor for the radiant heat layout. This system should be constructed so it will provide adequate heat to the entire home and be capable of receiving an Uponor warranty. The Builder has indicated that it is willing to do any work which is the warranted, and as necessary consequence bear the costs. For the reasons above, the Builder should be willing to provide the funds needed, but in view of the ongoing litigation between the parties, Tarion should respect the wishes of the Applicants that an independent third party be hired to do the actual remedial work.
The Applicant provided notice to the parties of his intention to seek costs according to section 14 of the Tribunal's Rules of Practice. The Tribunal dismisses the claim.
This order does not deal with secondary damages that may be suffered by the family while extensive slab replacement and installation of the remedial works occurs.
RELEASED: September 28, 2010
Footnotes
- Exhibit 1The Added Party placed a lien on the subject home shortly after it was completed alleging that a number of extras remain unpaid. The Applicant disputed that these were extras. This lien expired two years later as it was never perfected. Subsequently the Added Party initiated a lawsuit against the Applicant. This case has not been completed.
- Exhibit 6
- Exhibit 34
- Exhibit 8 Tab 16
- Exhibit 52
- Exhibit 41
- Exhibit 22
- Exhibit 24A
- Exhibit 39 Tab 1
- Exhibit 24A
- Exhibit 39
- Exhibit 36
- Exhibit 24A
- Exhibit 30