Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE: 2011-07-04

FILE: 6302/ONHWPA

CASE NAME: 6302 v. Registrar, Ontario New Home Warranties Plan Act

Appeal from a Proposal of the Registrar under the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O. 31 - To Refuse Registration

Applicant

Applicant

-and-

Registrar, Ontario New Home Warranties Plan Act

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: ELIZABETH SPROULE, Vice-Chair

APPEARANCES:

For the Applicants: MOHAMMAD ASLAM GORAYA, Self-Represented

For the Respondent: DANIELLE PECK, Counsel representing the Registrar under the Ontario New Home Warranties Plan Act, (the “Act”), Respondent

Heard in Toronto: May 18 and 19, 2011

DECISION AND REASONS BACKGROUND

This is an appeal of a Notice of Proposal to refuse the registration of the Applicant as a Builder and Vendor under the Act, dated August 24, 2010. There were two grounds stated for the proposal, one relating to the Applicant’s past conduct and the other relating to the Applicant’s lack of technical competency. Only the latter ground was addressed by the Registrar during this proceeding.

EVIDENCE and FACTS

The evidence of the Registrar consisted of documentation and the testimony of Andrew Ferguson, a Tarion client service representative and Girish Sharma, the Director of Licencing and Underwriting.

The evidence of the Applicant consisted of documentation, his testimony and the testimony of Witness A, a friend of and acquaintance of the Applicant. He also provided a number of video clips to demonstrate his understanding of proper building methods.

The following is a summary of the relevant evidence.

The Applicant applied for registration under the Act in 2002. At that time he wrote and passed the required technical test and was registered. In 2007 the Applicant began the construction of a home and realizing his registration had expired he submitted an application for registration. The Applicant did not provide all the documentation required and therefore the Registrar issued a Notice of Proposal to refuse registration which was not appealed. The Applicant did not complete a technical competency test in 2007. In June of 2010 the Applicant again applied for registration.

As part of the registration process the Applicant was required to attend an interview with Mr. Ferguson and write a technical competency test. The purpose of the interview was to assess the risk level the Applicant posed as a registrant. To determine this the Applicant was assessed in 5 categories, his anticipated construction, background, project team, marketing strategy, contractual documents and customer service plan. Mr. Ferguson reviewed the Applicant’s scores in each area and the reasons those scores were given. The Applicant’s score was 8, which was considered below average.

The Applicant was also required to write the technical competency test. The purpose of the test is to ensure that applicants have knowledge of the minimum standards set out in the Ontario Building Code (the ‘Code’). A number of changes were made to the Code in 2006/07.

The Applicant wrote the technical competency test on June 28, 2010. It had three sections, one involving multiple choice questions, a second involving the identification of code compliance given a cross-section diagram of a wall assembly, and a third section involving construction problems and questions as to how to solve them. Applicants are provided with a copy of the Ontario Building Code for their reference during the exam.

The Applicant scored 27 percent on the June 2010 test. Anything below a score of 70 percent is considered by the Registrar to be below average. The Applicant requested and was granted an opportunity to re-rewrite the test, although he was urged to take a course prior to attempting it again. He chose to go ahead and attempt the test on August 10, 2010. His overall score did not improve, it remained at 27 percent although his scores in the different sections varied. Parts of the August test were administered orally to assist the Applicant. English is not the Applicant’s first language. Mr. Ferguson testified that he did not have any recollection of the Applicant requesting a translator. The Applicant indicated to the Tribunal that he can read English.

The Applicant was granted a third opportunity to write the technical competency test on February 28, 2011. His score on this third attempt was 36 percent.

Mr. Sharma testified that Mr. Goraya is free to apply again provided there has been a material change in circumstance, which he indicated in this case might be for Mr. Goraya to partner with someone with the technical knowledge required or for Mr. Goraya to successfully complete a course on the Code. The concern of the Registrar is that a registrant has the technical competence to supervise a project and this cannot be assessed without a written test.

Mr. Goraya has no formal education but has 25 years experience in the building industry. In the past 10 years he has built 2 houses himself. Mr. Goraya testified that he builds in accordance with approved plans/drawings and to a standard that exceeds the minimal Code standards. He also subcontracts out various aspects of the project to skilled sub-trades. Mr. Goraya is confident that as long as the plans are followed the home will be of quality and consumers will not have complaints. To date there have been no consumer complaints with respect to the 2 houses he has built, although it was noted that one is still under warranty.

When asked whether he had taken any building courses the Applicant replied that he does not need to.

Witness A testified that he has known the Applicant for 25 years and has had him complete 3 or 4 jobs for him, which he did well. He has also observed him building new houses. The Applicant also submitted two letters of support, one from a homeowner who took possession of a home built by the Applicant in 2010 and confirms the home has been built to high standards and there were no warranty issues to date. The other letter was from another builder who has had a working relationship with the Applicant for 15 years and who believes the Applicant has a great deal of knowledge about building residential homes.

ISSUE

Does Mr. Goraya have sufficient technical competence to ensure that he consistently performs the warranties?

LAW

The following is a summary of the relevant parts of section 7 of the Act

Registration of vendors and builders

7(1) An applicant is entitled to registration by the Registrar except where,

(d) in the case of an application for registration as a builder, the applicant does not have sufficient technical competence to consistently perform the warranties.

The following is a summary of the relevant parts of Regulation 894, which sets out the terms and conditions of registration of builders and vendors.

1. The following are conditions of every registration under the Plan:

1.1 The Registrar may require an applicant for registration as a builder to complete a written examination of the technical competence to perform the warranties if,

ii) the applicant has had a previous application for registration refused, or had had a previous registration revoked, or

iii) the applicant has previously been registered and,

A. more than three years have elapsed since the expiration or termination of the registration.

1.2 The Registrar may interview an applicant for registration as a vendor or builder or a registrant with respect to the person’s entitlement to registration if,

ii) the person has had a previous application for registration refused or has had a previous registration revoked, or

iii) the person has previously been registered and,

A. more than three years have elapsed since the expiration or termination of the registration.

ANALYSIS

The purpose of regulating the new home building industry is to ensure that homes are built to the applicable standards and the warranties under the Act are performed. This is for the protection of consumers. Section 7(1)(d) of the Act provides that an applicant is not entitled to registration if they lack the technical competency to consistently perform the warranties. Regulation 894 gives the Registrar the authority to assess the competency of applicants for registration by requiring them to complete a written examination.

The Applicant was given three separate opportunities to write the technical competency test, and to assist him, parts were given to him orally on at least on occasion. There is no evidence that the test was unfair or that the Applicant was not provided with reasonable assistance. Mr. Goraya was previously successful in completing a competency test in 2002: his inability to do so in 2010 suggests to the Tribunal that he simply is not as familiar with the Code, as it now is, as he is expected to be. This is a correctable situation and it is up to him to takes those steps to educate himself to the level of technical competency required or to join forces with an individual who has that requisite level of technical competency.

There is no reason why Mr. Goraya should not be held to the same standard as other registrants, to do so would be to disregard the consumer protection purpose of the Act.

The Tribunal accepts that Mr. Goraya’s reliance on sub trades and on building drawings has worked for him in the past but this approach is not a substitute for a registered builder having technical competency. Problems do arise, variations become necessary and others make mistakes and a registrant needs to be able to properly supervise a project, identify issues and know how to correct them as ultimately they will be the one held responsible.

After carefully considering all the evidence the Tribunal concludes that Mr. Goraya presently lacks the technical competency to ensure that he consistently performs the warranties. The Tribunal therefore directs that the Registrar carry out its Proposal, dated August 24, 2010, and refuse Mr. Goraya’s application for registration.

LICENCE APPEAL TRIBUNAL

Elizabeth L. Sproule, Vice-Chair

RELEASED: July 4, 2011