Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2010-04-15
FILE:
5767/ONHWPA
CASE NAME:
5767 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-
Urbandale Construction Limited Added Party
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
GENEVIEVE BLAIS, Presiding Member
APPEARANCES:
For the Applicants:
APPLICANT, representing himself and the other Applicant
For the Respondent:
GRAHAM RAGAN, Counsel representing Tarion Warranty Corporation
For the Added Party:
CANDY KING, Agent representing Urbandale Construction Limited, the Added Party
Heard in Ottawa:
March 16, 2010
DECISION AND ORDER
This is an appeal by the Applicants to the Licence Appeal Tribunal (the “Tribunal”) from a Decision Letter of Tarion Warranty Corporation (“Tarion”) dated November 3, 2009 with respect to a home they purchased from the builder, Urbandale Construction Limited (the “Added Party”), in which Tarion denied in part the Applicants’ claim.
Tarion is the corporation that administers the Ontario New Home Warranties Plan Act (the “Act”). Through prescribed processes, Tarion investigates, conciliates, and, where necessary, provides compensation to a homeowner for breaches by the builder of the Act’s construction warranties.
The Applicants are husband and wife. Only the husband attended at the hearing. Therefore, throughout this Decision, the term Applicant refers to only the husband and not his wife. The term “Applicants” refers to both. The Applicant’s appeal concerns faulty boards in the hardwood floor of his new home. The claim states that there are more than 100 defective floor boards resulting from a faulty installation. The Applicant disagrees with Tarion and the Builder’s assessment of the damage, the proposed method of repair and the compensation offer of $1,800. He will rely on an expert’s report that states the flooring is defective and is not properly installed. The claim is for an amount of $12,656.72 to repair the damaged floor. The Applicant also submits an alternate claim for an amount of $17,754.33 to replace the entire hardwood floor as he views the proposed method of repair as unacceptable as it could lead to future problems.
The Builder’s position is that the hardwood floor is installed properly. Fifteen boards need replacement and with a proper touch up of 100 boards the offer of $1,800.00 is sufficient. The method of repair is accepted in Tarion’s Construction Performance Guidelines and throughout the industry. The expert evidence on which the Builder will rely is that the assessment of faulty boards and boards requiring touch up is accurate. The proposed method of repair meets industry standards for workmanship and the amount offered to the Applicant is reasonable.
Tarion’s position is that item number 9 of the claim is warranted and item number 17, although not warranted, will be included in the total settlement offered. The amount of $1,800.00 is an appropriate compensation for this complaint and requests an order of the Tribunal under Section 16 (3) to that effect.
PRELIMINARY MATTERS
At the commencement of the hearing four matters were raised as preliminary issues. The first matter raised by the Applicant, concerned the receipt of a disclosure document involving expert witness qualifications. He received this document two days later than required by Section 6 of the Rules of Procedure of the Tribunal. The Applicant is asking the Tribunal to not consider Tarion’s expert witness report and findings. Counsel for Tarion objected stating that disclosure of the expert witness’ name and the report and findings were disclosed prior to the pre-hearing held on February 3, 2010. The curriculum vitae which includes the qualifications of the expert witness was mailed twenty days prior to the hearing and in accordance with the rules of disclosure. The two day lateness in receipt of the document is related to the postal delivery.
The second matter, raised by Counsel for Tarion, concerned the Applicant’s disclosure of an expert witness report, which was received late by four days. Furthermore, the Applicant did not have his expert witness available at the hearing to testify and be cross examined. The Applicant stated that he experienced difficulty hiring a local expert inspector and resulted in hiring a person from outside of the area. He offered no specific reason as to why the expert was not available at the hearing.
The third matter was raised by the Applicant who wished to withdraw his appeal on item number 7 of the Tarion Decision Letter. He now feels that this item is not related to the issues involving the hardwood floor. He acknowledges that if the item is withdrawn at this time, it will no longer be considered as part of his appeal.
The fourth matter, raised by Tarion, concerned item number 2 of the Tarion Decision Letter which dealt with no inlet in the kitchen for the heat recovery ventilator (HRV). Tarion advises that this issue remains outstanding despite the Pre-hearing Order issued by the Tribunal on February 3, 2010. Tarion advises that the representative of the manufacturer has not attended the Applicant’s home to date. The Applicant insists that it is only a matter of scheduling a mutually convenient time for a visit. He will accept whatever expert advice is rendered on the item during the visit as stated in the Pre- Hearing order.
After a short recess, the Tribunal ruled that disclosure requirements concerning an expert report were met in principal by both the Applicant and Tarion. Information concerning the use of an expert witness was reviewed and discussed at the pre- hearing. The few days of lateness by both parties are not sufficient to disallow the evidence. The Tribunal will specify in the decision the weight given to the Applicant’s expert report in light of the fact that the author of the report is not present to testify at the hearing. Item number 7 is considered withdrawn from the Applicant’s appeal.
Items number 9 and 17 of the Tarion Decision letter are still in issue.
EVIDENCE
The evidence of the Applicant consisted of documentation and oral testimony of the Applicant only. The author of the expert report entered as evidence did not attend the hearing.
The evidence of Tarion consisted of Mr. Perry Harkin, Tarion’s senior field claim representative, Mr. Yvan Jacques, the Builder’s flooring contractor from Athens Flooring and Mr. Robert Hanna, expert and certified wood floor inspector. The Added Party’s witness consisted of Mr. Sean Martin of Websters, a heating and cooling company responsible for the installation of the ventilation system in the Applicant’s home.
The following is a summary of the relevant evidence.
According to the Applicant, on the date of possession of their new home on November 12, 2008, the Applicants conducted a pre delivery inspection (PDI) with the Builder’s representative. During the inspection, the Applicant stated that he noticed discoloration on the hardwood, broken pieces and cracks throughout the floors. He expressed concern about the floor condition to the Builder’s representative who offered no comment. The Applicant stated that he accepted and signed the PDI1 as submitted in evidence but added that he felt rushed through the process. However, the Builder’s representative, at the Applicant’s urging, added a general comment at the end of the report that noted that all the floors be checked for repair and touch up.
On December 9, 2008, the Applicants noted the concerns about the floor areas as deficiency items on the statutory 30 Day Warranty claim form filed with Tarion.
The Applicant stated that, in late January 2009, Mr. Hanna of Westboro Flooring & Décor, attended his home. He was there to only inspect the unevenness at the top of the stairs and not the entire floor. The Applicant brought to Mr. Hanna’s attention some unevenness or “cupping” on the main floor, but he was told it was part of the drying process. In May 2009, Mr. Hanna returned with the Builder’s flooring supplier representative who was there to perform an inspection and prepare a report of the items identified on the claim form. At the same time Mr. Hanna did some touch up of boards in certain areas. The Applicant expressed great disappointment with the touch up work and described it as a poor colour match and an unacceptable repair.
In June 2009, the Applicant received a letter from the Builder’s flooring representative and a cheque in the amount of $1,800.00 from the Builder. The Applicant found the letter to be brief and full of excuses. He described it as a cover up by the Builder and a prolonged delay to avoid repair. He felt that both the scope of the work and the method of repair recommended by the flooring representative were unacceptable. In his opinion, the installation of the hardwood was not a professional job.
The Applicant, upset with the settlement offer, requested a meeting with the Builder and the flooring representative. The meeting never occurred and the Applicant refused to accept any repair. He rejected the settlement offer and returned the cheque to the Builder.
In August 2008, Mr. Harkin, Tarion’s field representative attended the Applicant’s home to perform an inspection of the hardwood floor. The Applicant stressed his dissatisfaction with the floor installation. The Applicant stated that he did not agree with Mr. Harkin’s assessment of the number of faulty boards and the method and scope of repair. He was encouraged by Mr. Harkin to obtain his own estimates for repair and a re-inspection could occur. According to the Applicant, Mr. Harkin commented on the high humidity in the home and the effect this could have on hardwood floors.
On October 21, 2009, Tarion conducted a re-inspection and reviewed the estimates the Applicant had obtained from two flooring suppliers2. While both were in the $12,000 range before taxes, only one actually specified the area to be repaired: 908 square feet. Tarion, in its Decision letter of November 3, 2009, found the estimate to be in excess of the damaged areas, and concluded with its previous findings and the original compensation offer.
The Applicant concluded his evidence in stating that the humidity levels in his home are not the cause of his problems with the hardwood floor deficiencies. He maintained that the deficiencies result from a faulty installation. He referred to the expert report he commissioned from Elliott and Associates3. Mr. Tom Elliott wrote that approximately 200 pieces of hardwood have a variety of issues. The report concluded that some damage occurred during the installation in the operation and adjustment of the nailer and the use of defective pieces of hardwood. The Applicant relied on this report and pictures taken by the inspector to conclude that the floor was improperly installed and a new installation is necessary.
Counsel for Tarion objected to the Applicant reading from Mr. Elliott’s report on the primary grounds that the author of the report was not available for cross-examination.
Under cross-examination, the Applicant acknowledged he had no experience in the building industry nor did he have any certification in construction in Ontario. Counsel for Tarion showed the Applicant the PDI report which was signed by the Applicants and showed that the flooring in most areas was acceptable. The Applicant accepted the document as shown, but testified that he was rushed and under pressure to sign on the day of possession. He felt that it was impossible for an average person to see all the defects in such a short time. For that reason he insisted the Builder’s representative write “to check the whole house”4 on the report.
On further cross examination, Counsel for Tarion focused on the original two estimates and two additional estimates submitted by the Applicant since October 2009 to address the floor repairs. The two new estimates were prepared in February 2010 by a third flooring supplier. These estimates were submitted by the Applicant as evidence5 for this hearing. One is to remove and repair 150 square feet of hardwood boards and supply an additional 200 square feet of prefinished Red Oak for a cost of $11,944 before taxes. The last estimate is to remove and dispose of 1261 square feet and supply 1340 square feet of new wood at a cost of $16,154 before taxes. The Applicant confirmed that this would constitute a new floor installation.
When asked to explain the variance in the square footage between his original estimate of 908 square feet and his third estimate, the Applicant was unable or unwilling to provide any explanation. When asked why his third estimate is so significantly higher than the Builder’s, the Applicant speculated that the difference is in the repair and removal process. He believes that more wood is required to replace and match boards properly. He has provided an estimate for a new installation as he is concerned about the likelihood of future problems with the floor.
Throughout his evidence, the Applicant wavered between having his floor replaced in its entirety to repairing the faulty and damaged areas. He continued to disagree with the Builder and Tarion’s assessment of damage and costs. He stated that his last estimate for repair is a closer reflection of the scope of work to repair the damage. However, he provided no explanation as to the absence of any witness at the hearing to speak to the estimates, or to provide the missing detail on the scope of work required or address his concern about possible future problems with the floor.
Mr. Perry Harkin was the first witness to testify for Tarion. Mr. Harkin is the acting field claim manager for Tarion and has twenty-one years of experience with the company. He is qualified as an architectural technologist, has previously built a number of custom and commercial homes and was a building official for the City of Ottawa. In his twenty- one years of experience with Tarion, he has conducted over three thousand home inspections.
Mr. Harkin confirmed that he conducted two inspections on the Applicants’ home in August and October 2009. He also wrote the Decision Letter dated November 3, 2009. During both inspections the Applicant was present. Mr. Harkin noticed small green pieces of painter’s tape in various areas of the floor. These were put into place by the Applicants to mark the boards they were not happy with. He discussed with the Applicant replacing fifteen boards using the box of boards on hand and doing touch up repairs on other boards. In the reinspection in October, he saw no evidence to support the Applicant’s estimate to replace more boards. To do so would be excessive and unnecessary. He observed and noted to the Applicant that the floor was more uneven or “cupped” than usual. However, cupping was not the issue when performing the inspections. Mr. Harkin used the industry standard for the region in calculating the compensation. He concluded in his Decision letter that the amount of $1,800 was appropriate.
On cross-examination Mr. Harkin restated that the whole floor is not damaged. He maintains that the disagreement with the Applicant has been on the method of repair and not on the number of faulty boards. As the Applicant was so unwilling to allow the Builder to perform any repair, he encouraged him to obtain his own estimates. The recommended method of replacing boards by cutting out and replacing one defective board with another prefinished unit by cutting the lower groove and gluing the new board in place is accepted throughout the industry.
He acknowledged that more boards may be required for repair at this time. However, Tarion’s warranty responsibility extends only to those items reported on the 30 Day Warranty form.
Mr. Yvan Jacques from Athens Rug testified as the second witness for Tarion. Mr. Jacques is certified as a professional floor installer and has twenty-seven years of experience in the management of residential housing contracts. He has seventeen years of experience in the installation and repair of hardwood floors.
Subsequent to Tarion’s Decision Letter, and at the request of the Builder, Mr. Jacques attended the Applicants’ home in late November 2009. He inspected, with the Applicant, every area where green painter’s tape was present. Each area was examined either for repair or touch up. He observed some swelling or cupping of the hardwood in some areas of the home.
He testified that between the Applicant and himself they arrived at approximately 27 boards that needed replacement and 135 boards that required touch up. Mr. Jacques regularly adds a few more boards in his estimates as more boards may be required in doing the repair. He stated that the damages on the hardwood are all fixable and such repairs and touch ups are common to hardwood floors. He concluded that no area needed to be entirely replaced. His report concludes with a price of $2,400 plus G.S.T. to do the repairs.6 . He added that the Applicant fully participated in the inspection and discussion on the required scope of repair, a statement the Applicant disagreed with.
In cross-examination Mr. Jacques testified that when he examined the hardwood floor with a magnet, he concluded that the floor was sturdy and very well nailed. He disagreed with the Applicant’s suggestion that much of the damage to the edges of the hardwood boards resulted from improper use of a nailer by the installer.
Tarion’s final witness was Mr. Robert Hanna, who testified as an expert witness. He is a Legally Certified Wood Floor Inspector, licensed through the National Wood Flooring Association (“NWFA”)7. Mr. Hanna prepared a report8 based on an examination of the Applicant’s flooring complaint. The Applicant accepted him as an expert witness in the installation and repair of hardwood floors.
Mr. Hanna testified that in May 2009 he attended the Applicant’s home for Westboro Flooring along with a representative from the wood supplier who was asked by the Builder to inspect and recommend a scope of repair for the areas identified by the Applicants. From a standing position, few deficiencies were evident. He stated that the presence of splits and cracked boards is not uncommon and often result from weakness in the grain and humidity changes. He added that if there is a moisture imbalance boards will swell. This is not an installation or product defect and is not a permanent condition. Wood suppliers replace boards as a normal procedure and follow the recommended repair method endorsed by the NWFA.
On December 12, 2009, at the request of the Builder, he conducted a two hour inspection in the Applicant’s home. The Applicant was present throughout the examination which included a walk around inspection of the floor boards under normal light conditions, a closer inspection of the floor while on hands and knees, measuring gaps and inspecting chipped edges, performing relative humidity tests and observing the maintenance of the floor.
Mr. Hanna found very few gaps along the sides or ends of boards, minimal splintering and some missing stain on the bevel edge of boards. However, he noticed that many of the floors were cupped and his tests revealed elevated moisture content, more than expected. His inspection found the substructure sound. He added that once a floor becomes cupped, the edges are raised and subject to more wear and tear. The grain can also open up and can splinter. He added that floors fluctuate with moisture levels.
They can flatten in the dry season which would allow for damaged boards to be replaced.
In cross examination, Mr. Hanna stated that installers adhere to the NWFA guidelines and are required to stop jobs if products are defective. They avoid prohibitive costs that could result from the installation of defective flooring. If a nailer is overpowered during the installation, it can cause splintering of the wood grain and some indentation to the sides of the boards. He saw no evidence to conclude that this occurred in the installation of the hardwood in the Applicant’s home. In his expert opinion, the tests for the floor moisture content level revealed that the average level has been allowed to increase from the installation day. Given the testing results, he stated that the higher moisture may have contributed to some of the damaged boards. Wood is a living material which will change shape over time and moisture conditions.
When cross-examined on the accuracy of the testing of the moisture content level of the wood flooring, Mr. Hanna assured the Tribunal that his meters are calibrated properly and the possibility of contamination, as suggested by the Applicant, is not likely.
Mr. Hanna concluded in stating that the purpose of the certified inspection was not to address the issue of cupping. His report considered all aspects of the home and product. The method of repair for boards as recommended by the Builder’s contractor does not nullify the manufacturer’s warranty. The warranty is on the product and initial installation. In his expert opinion the Applicants’ claim for damaged flooring can be resolved through the replacement of faulty boards and the touch up of other boards.
The final witness at the hearing was Mr. Martin of Websters, a heating and cooling company. He testified for the Builder. He was responsible for the installation of the heating and ventilation system in the Applicants’ house. He stated that there is no air conditioner or a humidifier installed on the system. There is an auxiliary/portable humidifier present in the basement of the home. He participates regularly in providing orientation sessions to new homeowners on the advantages of mechanically ventilating homes given the air tight construction of the day which limits the natural flow of air. Such a session was provided to the Applicant around the time of possession.
FACTS FOUND PROVEN
The Applicants first noted their concerns with some areas of the hardwood floor in the PDI signed on November 4, 2008.
On December 9, 2008, the Applicants documented their concerns as deficiency items on Tarion’s 30 Day Warranty Form.
On January 20 and May 14, 2009, the Builder’s contractors inspected the Applicant’s floor in the presence of the Applicant and provided an assessment and recommendation of repair and cost.
In June, 2009, the Builder offered to repair the floor and made a settlement offer of $1,800 which was refused by the Applicants.
On August 13, 2009, Tarion conducted an inspection and issued a Warranty Assessment Report. Tarion confirmed item number 9 to be warranted and although item number 17 was not warranted, was willing to coordinate those repairs in the settlement offer. The Builder’s offer of June, 2009 was confirmed and deemed sufficient to resolve the hardwood complaints. Notwithstanding this position, Tarion went further and encouraged the Applicant to obtain his own estimates and submit for a re-inspection.
On October 22, 2009, Tarion did a re-inspection of the Applicant’s claim. Having reviewed the Applicant’s estimates, Tarion confirmed their original findings of August 13, 2009 and reconfirmed the compensation offer of $1,800.00
On November 3, 2009, Tarion issued its Decision Letter denying in part the Applicants’ claim.
On December 9, 2009, the Builder obtained a revised estimate of $2,400 without taxes for the repair of the flooring.
ISSUES
The Tribunal must determine if Tarion’s assessment of repair to the damaged hardwood boards and the amount offered as compensation is the appropriate remedy, and if not, determine what is the appropriate remedy.
THE LAW
The onus of proof, meaning the obligation to prove a particular matter, rests on the Applicant. The standard of proof is the standard by which the Applicant must establish a claim. The standard in proceedings before the Licence Appeal Tribunal is the civil standard, being on a balance of probability.
The Ontario New Home Warranties Plan Act states as follows:
- (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;
- (3) Subject to the regulations, an owner of a home is entitled to receive payment out of the guarantee fund for damages resulting from a breach of warranty if,
(b) the person has a cause of action against the vendor or the builder, as the case may be, for damages resulting from the breach of warranty.
- (1) Where the Corporation makes a decision under section 14, it shall serve notice of the decision, together with written reasons therefore, on the person or owner affected.
(2) A notice under subsection (1) shall state that the person or owner served is entitled to a hearing by the Tribunal if the person or owner mails or delivers, within fifteen days after service of the notice under subsection (1), notice in writing requiring a hearing to the Corporation and the Tribunal.
(3) Where a person or owner gives notice in accordance with subsection (2), the Tribunal shall appoint a time for and hold the hearing and may by order direct the Corporation to take such action as the Tribunal considers the Corporation ought to take in accordance with this Act and the regulations, and for such purposes the Tribunal may substitute its opinion for that of the Corporation.
Regulation 892 passed under the Act requires:
- (2) Every vendor of a new home warrants to the owner,
(a) that the home is constructed in a workmanlike manner and is free from defects in materials including windows, doors and caulking such that the building envelope of the home prevents water penetration;
(d) that the home is free from violations of the Ontario Building Code regulations under which the Building Permit was issued, affecting health and safety, including but not limited to fire safety, insulation, air and vapour barriers, ventilation, heating and structural adequacy; and
(3) The warranties described in subsection (2) apply only in respect of claims made within two years after the home was completed for possession, in respect of homes that were enrolled, or should have been enrolled, after the 31st day of December 1990.
APPLICATION OF THE LAW TO FACTS
Tarion's role under the legislation is to be responsive to homeowners’ claims of warranty breaches by investigating such allegations and making a determination as to the legitimacy of their claim. When Tarion determines a claim to be without merit, the homeowner has a right of appeal to this Tribunal. At no time is Tarion obliged to adopt either the homeowner or the builder’s evidence, but is rather to act independently of both parties in coming to its own conclusion on the warrantability of the alleged deficiency. The Tribunal is an independent impartial adjudicator with the Statutory power to direct Tarion to respond with respect to Warranty Claims.
The Tribunal will first address concerns raised about the unevenness or cupping issue of the floor. Cupping was not a concern raised in the PDI or in the 30 Day Warranty form or in Tarion’s Decision Letter. Despite several witnesses mentioning the elevated humidity in the Applicant’s home, the Tribunal notes that Tarion and the Builder have agreed to complete the repairs, regardless of their cause. Whether or not there is a relationship between the humidity levels in the home and the floor in need of repair is irrelevant to this hearing.
The Applicant would like to have his entire floor replaced as he disagrees with Tarion’s description of the scope of work and the proposed method of repair. He speculates that there could be potential problems in the future. The evidence he presented in support of his claim was his testimony and a flooring inspection report from an expert, Mr. Elliott. Although the Tribunal acknowledges the report, the Tribunal cannot give any weight to it and agrees with the objection cited by Tarion’s counsel that the expert’s testimony would have value if the expert were present to testify.
Tarion’s counsel cited Hoffer (Re) [2008] O.L.A.T.D. No. 3, released January 8, 2008 which states that in the face of the Applicant’s submission of a flooring report
“The failure to produce an expert for cross-examination has the result that any report presented should be given less weight than the oral testimony of a witness at a hearing because the expert authors cannot be subjected to cross examination”
At the same time the Tribunal notes that the report of the Applicant’s expert, Mr. Elliott, refers to some 200 pieces of hardwood that have a variety of issues. Mr. Elliott’s concluding statement did not recommend the replacement of an entire floor and furthermore it did not offer any recommended actions to address the issues of repair and replacement. The Tribunal is not persuaded by the Applicant’s argument that the entire hardwood needs to be replaced. The Applicant’s own evidence does not support this position. The presence of Mr. Elliott at the hearing could have been helpful to the Applicant in making his case for a new floor; however this did not occur.
The Applicant urged the Tribunal to look at the inconsistencies in the number of faulty boards counted by both Tarion and the Builder and the inadequate offer of compensation to do the repairs. He feels he has been unfairly treated and that the Builder’s expert witness has not been fully objective in his inspection. He concedes that his estimate for repair is substantially higher than those of Tarion and the Builder. He supports his position in citing a decision by Vice Chair Sanford in the case 4851- ONHWPA–claim, (Re) [2009] O.L.A.T.D. released on June 24, 2009, and states that his case is very similar. In the Sanford decision, the Tribunal accepted the upper end of the estimate range given by the homeowner’s consultant. The Applicant urged the Tribunal to consider these findings in rendering its decision.
Although the Tribunal acknowledges some similarities in the two cases, it notes that in the cited case the Tribunal had the benefit of hearing oral testimony from the homeowner’s expert consultant to substantiate a higher compensation. This did not occur at this hearing as the Applicant failed to present any witness to substantiate a higher award.
The Tribunal notes that the Applicant testified he has never agreed with Tarion’s number of faulty boards. Notwithstanding this testimony, the Tribunal also notes that the Applicants’ Notice of Appeal form refers to 100 defective boards in need of repair, a number that is not significantly different to the 115 boards identified in evidence by Tarion.
The Tribunal was impressed with the testimony of Mr. Hanna whom it found credible and detailed in both his observations and conclusions. The Tribunal found that his inspection was thorough and there was no evidence of impropriety on the part of the witness. His conclusions were based not only on his many years of experience as a wood flooring installer, but also on his expert knowledge of the industry. His concluding statements concerning the damage and proposed method of repair as recommended by the Builder’s consultant is reasonable and the Tribunal accepts this conclusion.
The Tribunal is left to determine the scope and cost of repair. Three people inspected the floor and arrived at different numbers of boards needing replacement and repair and varying costs. Tarion stated that there are 15 boards requiring replacement and 100 that need touch up. The Builder’s consultant counted 27 boards and 135 that require touch up. The Applicant’s consultant identified 150 square feet needing repair and/or replacement. The Applicant maintains this is equivalent to approximately 150 pieces of hardwood.
Tarion’s position is that the difference in the number of defective boards between their estimate and the Builder’s consultant is marginal. The higher number is consistent with greater wear and tear on the floor in the intervening four month period between inspections. Tarion would accept the consultant’s estimate.
The Tribunal is convinced by the evidence that 115 to 162 boards require repair and touch up.
The costs of repair submitted by Tarion and the Builder are $1,800 and $2,400 respectively. Tarion accepts the Builder’s estimate of $2,400 as they see the ratio of cost to boards as about the same. The Applicant’s uncorroborated estimate is $11,944, which the Tribunal finds as inexplicably excessive.
In this case, Tarion has warranted the items before the Tribunal with an offer to correct the warranted items. Based on the evidence considerable effort has been demonstrated both by the Builder and Tarion, from the time the concern was identified on the PDI to the 30 day Warranty form, to address the Applicants’ issues with their hardwood floor. All parties agree that there are some defective boards that require replacement and others that need touch up. Although the Applicant disagrees with the assessment and cost of repairs, his evidence and the absence of corroborating witnesses present at the hearing has left the Tribunal with only unsubstantiated evidence to support his claim for the higher amount.
The Tribunal must make its decisions based on the Act and its regulations. As the Applicant has the onus of proving, on a balance of probability, his claims, the Tribunal finds:
That as relations between the Applicant and the other parties are somewhat strained, in the best interest of all parties an order for a cash award is appropriate. This will allow the Applicant to carry out the necessary repairs through his own consultant, to his satisfaction and in his own time.
That Tarion and the Builder are agreed, replacement and repair of the faulty hardwood boards are in order, and the estimate of $2,400 plus G.S.T. provided by the Builder’s consultant, is reasonable.
DECISION
Based on the evidence and pursuant to the authority vested in it by subsection 16(3) of the Act, the Tribunal directs Tarion Warranty Corporation to provide the Applicants a payment of $2,400 plus G.S.T. in full and final settlement of the claims contained in Tarion’s Decision Letter dated November 3, 2009.
LICENCE APPEAL TRIBUNAL
RELEASED: April 15, 2010
Geneviève Blais, Member