Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2010-11-08
FILE:
6134/ONHWPA
CASE NAME:
6134 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-
Arista Homes (Boxgrove) Inc. Added Party
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
KEN SELBY, Presiding Member
APPEARANCES:
For the Applicants:
THE APPLICANT, Self-represented
For the Respondent:
DAVID OUTERBRIDGE, Counsel, representing Tarion Warranty Corporation
For the Added Party:
RON PROTOCKY, Agent, representing Arista Homes (Boxgrove) Inc., the Added Party
Heard in Toronto:
October 12, 2010
DECISION AND ORDER
This is an appeal to the Licence Appeal Tribunal (the “Tribunal”), by the Applicant, from a decision of Tarion Warranty Corporation (“Tarion”) set out in the Decision Letter dated June 4, 2010 which denied the request for a conciliation inspection. This appeal is instituted under the authority of section 16(3) of the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31 (the “Act”).
With prior notice, Tarion brought a motion to dismiss the Applicant’s appeal on the basis that the Applicant’s request for conciliation was statute barred by s. 4.3 of Regulation 892 under the Act.
This decision will only deal with Tarion's motion to dismiss the Applicant's appeal.
BACKGROUD
The home of the Applicant was first occupied on the 15th of January 2008. A Year-End Form, which listed a number of claims of the homeowners, was delivered to Tarion in December 2008.1 The builder dealt with most of these items within the 120 day period required by s. 4.3 of Regulation 892 under the Act. The colour of the brick used in the home was the one item that remained outstanding. Brick colour is the only item which the Applicant was appealing at this hearing.
On May 15, 2007, the Applicant completed a Client Exterior Colour Package Preference which indicated the homeowner’s first, second and third choices for brick colour.2 The Applicant believes that she was assured by Ange, an employee of the Added Party, that it was not too late to choose the brick colour for their home. On September 5, 2007, over three months later, the homeowners discovered that bricks other than any of those they chose were being installed on their home.
EVIDENCE
The Applicant ultimately requested a conciliation inspection by Tarion regarding the brick colour. The Homeowner Information Package as well as two letters from Tarion made it clear that homeowners have one month following the 120 days that the builder has to deal with the items listed on the Year-End Form. Both of these letters indicate that the Applicant must request a conciliation inspection between May 16, 2009 and June 15, 2009, if Tarion was to become involved.3
The evidence was that the Applicant made a telephone call to Tarion about one week after the deadline while the Respondent indicated that the written request for a conciliation inspection was about two months late.
THE LAW
Sections 4.3(8), 4.3(9) and 4.3(10) of the regulation 892 read as follows:
(8) Subject to subsection (9) and section 5.1, if a home has a date of possession on or after September 1, 2005 and if an owner submits a year-end form to the Corporation with respect to the home during the year-end claim period, the vendor shall have until the end of the 150th day after the first anniversary of the date of possession to repair or resolve the claim items that are listed on the form that are covered by a warranty. O. Reg. 483/05, s. 5; O. Reg. 9/09, s.4.
(9) If the vendor does not repair or resolve all of the claim items listed on the year-end form mentioned in subsection (7) by the end of the 150th day after the first anniversary of the date of possession, the owner may request a conciliation by contacting the Corporation at any time from the 121st day to the 150th day, both inclusive, after the first anniversary of the date of possession. O. Reg. 483/05, s. 5.
(10) If the owner does not request conciliation under subsection (9) or if the owner cancels the conciliation requested under that subsection, the owner shall be deemed to have withdrawn all claim items listed on the year-end form that the vendor does not repair or resolve by the end of the 150th day after the first anniversary of the date of possession. O. Reg. 483/05, s. 5.
DECISION
The Applicant did not request a conciliation inspection within the prescribed time limit required by the Act. Pursuant to the authority vested in it by section 16(3) of the Act, this Tribunal orders that the Applicant’s claim is out of time.
LICENCE APPEAL TRIBUNAL
Ken Selby, Presiding Member
RELEASED: November 8, 2010