5853 v. Tarion Warranty Corporation, 2010 CanLII 100823

Case Summary

The applicants appealed a decision by Tarion Warranty Corporation denying warranty coverage for four issues in their new home: noisy vents, a leaking basement patio door, water ponding on the lakeside patio, and cupping of the hardwood floor. The Tribunal dismissed the claims regarding the vents and the water ponding, finding that the vents met Building Code requirements and the ponding was caused by subsidence, which is excluded from warranty. However, the Tribunal allowed the claims for the basement patio door and the hardwood floor cupping. The Tribunal found that the basement door leaked and should be replaced, similar to the upper patio door. Regarding the hardwood floor, the Tribunal preferred the evidence of the applicants' experts, finding that the cupping was caused by excessive moisture resulting from defective work and an inadequate HVAC system, rather than improper maintenance or an 'unattended house syndrome.' The Tribunal ordered Tarion to pay $17,069.78 for the patio door and $50,846.44 for the replacement of the hardwood floor.

Licence Tribunal

Appeal d'appel en Tribunal matière de permis

DATE: 2010-12-29

FILE: 5853/ONHWPA

CASE NAME: 5853 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-

Springfield Construction Ltd. Added Party

REASONS FOR DECISION AND ORDER

ADJUDICATOR: KENNETH W. KOPROWSKI, Vice Chair

APPEARANCES:

For the Applicants: PAUL HOSACK, Counsel representing both Applicants

For the Respondent: MONTGOMERY SHILLINGTON, Counsel representing Tarion Warranty Corporation, Respondent

For the Added Party: DAVID ECCLES, Agent representing Springfield Construction Ltd., Added Party

Heard in Hamilton: July 13, 14; September 7, 8, 9, 2010

DECISION AND ORDER

This is an appeal by the Applicants to the Licence Appeal Tribunal (the “Tribunal”) from a decision dated December 22, 2009, of Tarion Warranty Corporation (“Tarion”) under the Ontario New Home Warranties Plan Act (the