Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2011-04-29
FILE:
5816/ONHWPA
CASE NAME:
5816 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-
Empire (Binbrook Estates) Ltd. Added Party
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
TERRANCE SWEENEY, Vice Chair
APPEARANCES:
For the Applicants:
THE APPLICANT, representing himself and the other Applicant
For the Respondent:
DANIELLE PECK, Counsel, representing Tarion Warranty Corporation (“Tarion”)
For the Added Party:
DUNCAN C. BOSWELL, Counsel, representing Empire (Binbrook Estates) Ltd. (the “Added Party”)
Heard in Toronto:
July 5, 6, 7, 9 and August 11, 2010
REASONS FOR DECISION AND ORDER
This is an appeal by the Applicants under section 16 of the Ontario New Home Warranties Plan Act (the "Act") from a decision of Tarion in a Decision Letter1 dated November 9, 2009.
ISSUES
There are 13 issues outstanding among the parties which are summarized as follows:
a. The shower tub makes noise.
b. Ensuite/noisy floor.
c. Basement/bumps and cracks.
d. Basement floor not thick enough.
e. Exterior and Foundation/weeping tile is clogged and not weeping.
f. The delta membrane is overlapping the weeping tile.
g. The stairs are noisy.
h. Gouge in vinyl in the kitchen.
i. Living Room: heat vent at front door to be relocated to carpet area.
j. Basement: the foundation is lower than it should be.
k. Interior: All subfloors where carpet is installed should be painted with water based paint coat, prior to the installation of the carpet.
l. Exterior: The water from the roof of the porch leaks beside the house.
m. The elevation of the house is lower than it should be which allegedly created the following problems:
wet basement
bumps
sump pump runs most of the time because it is too close to the water table
grading is not to the Ontario Building Code
pipes from the furnace are very close to the ground
the exterior foundation is not insulated up to the ground
the house must be raised
the basement windows are half covered with grading
the cold room vent is too close to the ground
water stays between the Applicants’ house and their neighbour's house
PROVEN FACTS
There are a number of facts that are not in dispute. The Tribunal, accordingly, finds the following to have been proven:
The Applicants, on November 5, 2005, executed an Agreement of Purchase and Sale for a new home with the Added Party.
The Applicants took possession of the home on March 27, 2007.
The Applicants had a number of complaints in respect of the home and filed the required forms with Tarion listing those complaints.
Tarion conducted a number of inspections and issued six Warranty Assessment Reports.
Westlake Inc. Consulting Engineers prepared a "Standard Grading Certificate”, dated September 17, 2007,2 which certified that the grading for the home "conforms to the overall and detailed approved grading plan for the subdivision and the City's standards within acceptable the [sic] tolerance level".
Tarion hired Unlimited Building Solutions (“UBS”) to inspect the excavation at the Applicants’ home. UBS reported on December 2, 20083 that there were some problems and recommended how they should be addressed. The Added Party corrected the problems.
Tarion hired Carmazan Engineering Inc. (“Carmazan”) to conduct a site visit of the Applicants’ home and follow up on the UBS report. Carmazan filed its report dated May 26, 2009.4 It found the following:
a. There were low areas in the side swales and several low spots in the backyard of the Applicants’ house.
b. There was less than 15 cm. between the brick cladding and the finish grade which was not in accordance with the Ontario Building Code (“OBC”).
They recommended replacing the brick for those areas with concrete blocks at the required elevation.
c. The elevation of the garage floor of the Applicants’ house gave the proper drainage and elevation with respect to the sidewalks and centre of the road.
- The Added Party retained MTE Consultants Inc. (“MTE") for a lot grading review of the Applicants' house. MTE reported on May 6, 20105 and found, among other things, that the two side yard swales needed to be re-graded and re-sodded and that there was a minor settlement at the rear of the house that should be repaired.
THE CASE FOR THE APPLICANTS
The Applicants are husband and wife. The Applicant husband (the “Applicant”) was the sole witness for the Applicants.
He is a lay person with no training or experience in engineering or house construction. Nevertheless, he went over each of the issues listed above and described the alleged breaches by the Added Party and how he wanted them fixed.
The Tribunal will deal only with a few of the issues to illustrate the thrust of his evidence.
- Ensuite/The shower tub makes noise. Tarion warranted this item. The Added Party agreed to foam in the underside of the tub by cutting through the ceiling of the dining room. The Applicant refused to allow this. At a pre-hearing on March 15, 2010, the Tribunal asked the Applicants to consider allowing the Added Party to resolve the matter by going through the ceiling below. The Applicant remained unmoved.
3 Exhibit #4, Tab 14
4 Exhibit #4, Tab 17
Kitchen/gouge in vinyl. Tarion verified this claim. The Added Party said they wanted to repair the damage but the Applicant insisted that the floor be replaced which the Added Party was not prepared to do. The Applicant denied access to the Added Party. The Tribunal, in a Pre-Hearing Order dated March 23, 2010, asked the Applicants to consider four possible options to resolve this issue. The Applicant rejected all of the options. He told Tarion and the Added Party "to replace or go away".
The main thesis of the Applicant was that his house was lower than it should be which caused most of his problems. He alleged that the Added Party had made a mistake and had corrected it by changing the plan after the house was built. He produced the city plan and tried to show that the Added Party had changed the grading at his house.
On cross-examination by Counsel for Tarion and Counsel for the Added Party, the Applicant conceded that he denied access to the Added Party to fix the grading and to paint the landing on the stairs which Tarion had warranted. He wanted all of the floors to be repainted around the edges of the carpet to the walls. He also agreed that he repeatedly refused to allow the Added Party to remove the brick from part of his foundation and replace it with concrete block as recommended by Carmazan.
THE CASE FOR TARION
Tarion filed two books of documents6 and called two witnesses.
Tarion retained Pretium Engineering Ltd. (“Pretium") in May 2010 to investigate the claim of the Applicants that the elevation of their home is lower than it is supposed to be which led to the alleged problems, set out above under Issues.
Pretium's report7 is dated June 14, 2010. It was principally authored by David Allan Moore ("Mr. Moore") and signed by Mr. Moore and Mr. Louis Reginato, P. Eng., a vice president of Pretium.
Counsel for Tarion called Mr. Moore as an expert in building science. He is a graduate in Architectural Science from Ryerson Polytechnic University (Building Science Option). He has been registered as a Certified Engineering Technologist since 1999. He is currently the Manager of Projects and Business Development at Pretium. He specializes in the building envelope and is responsible for evaluation, design, administration and review. He testified that he has done over 200 building condition reports.
The Tribunal accepted Mr. Moore as an expert in building science and Pretium as expert in construction engineering.
6 Exhibits #4 and #5
7 Exhibit #5, Tab 3
Prior to delivering his report, Mr. Moore and his assistant reviewed the findings of UBS, Carmazan and MTE on this question. Pretium inspected the site and conducted all necessary tests to determine if the Applicants’ claim could be confirmed and, if so, what problems flowed therefrom.
Pretium found that:
The actual site grading is lower than the revised grading plan. Despite this, there does not appear to be any foreseeable performance problems resulting from the home being constructed at its current elevation in relation to grade.
Mr. Moore, in his report, dealt with each claim by the Applicants and the Tribunal summarizes its findings as follows:
Wet Basement Floor
There was a record rainfall in the summer of 2009 in the city where the house is situated. Notwithstanding this, Pretium found no evidence of an active water problem through the floor slab at cracks or perimeter joints.
Basement Floor Slab
Pretium did find that the average thickness of the slab was somewhat below OBC requirements for slab thickness. But Pretium found no problems in the house as a result.
Bumps in Basement Floor; Floor is not Level
Pretium said that bumps in the floor slab would not be the result of the house being too low. There were very minimal "bumps" in the floor slab.
Sump Pump
The sump pump is operational and performing its intended function. Grading
Pretium recommended that the grading be modified at the swales at the rear and sides of the house.
In addition, the grading along the foundation wall at the rear and south side of the home needs to be raised to provide slope away from the building walls where settlement has occurred.
Cold Room Vents and Furnace Pipes
Pretium investigated and concluded that they were adequately located above grade. Masonry Too Close to Grade
The foundation wall appeared to meet OBC requirements. Pretium recommended that the bottom course of clay brick masonry at the rear of the house and adjacent to the basement window of the south elevation be replaced with concrete block or concrete brick. Also, the clay brick at the entrance porch could be replaced.
Sandro Nevicato ("Mr. Nevicato")
He is a Field Claims Representative employed by Tarion. He has been employed by Tarion for four years. He is a graduate of Mohawk College and knows the OBC. He assessed the Applicants' claims and wrote the Decision Letter. Counsel for Tarion took him through the disputed items listed in the Decision Letter. The Tribunal will only outline here the parts of his testimony which augment testimony already described above.
Ensuite Shower
He confirmed that the Applicants would not allow the Added Party to go up through the ceiling below to fix this properly.
Gouge in Vinyl
This should have been a simple problem to fix. One needed only to replace the vinyl square. The Applicants, however, wanted to have the whole floor replaced. The Applicants did not allow the Added Party in to repair the vinyl and they rejected the four offers made to settle the issue.
Added Party to Paint All Floors Prior to Carpet
The Applicant agreed that all the floors had been painted with the exception of some of the edges at the walls. Tarion warranted the landing to be painted by the Added Party. The Added Party agreed to do so, but the Applicant refused entry to the Added Party.
Wet Basement Floor
Mr. Nevicato said that he was at the Applicants' home at least six times and never saw any water. He conducted a water test and observed that no water penetrated the basement.
Grading
Mr. Nevicato testified that the OBC requires only that the building site be graded so that water will not accumulate at or near the house. In his Decision Letter8, he stated:
It is the municipality's responsibility to determine if final site grading beyond the perimeter of the house complies with municipal requirements.
Brick Replacement
Mr. Nevicato confirmed that the Added Party was always prepared to replace the bricks at the foundation with concrete block and parging. He said that this would be an appropriate repair but that the Applicant would not allow it.
THE CASE FOR THE ADDED PARTY
The Added Party filed a book of documents9 and called one witness.
Adele Acchione ("Ms. Acchione")
She is the customer service manager of the Added Party. She knows the OBC and has dealt with warranty claims on more than 2,000 homes. She tries to negotiate repairs on warranted items and deals with the trades.
She testified that she had problems with the Applicant from the beginning. She visited the home at least 30 and perhaps as many as 50 times.
The Added Party made numerous attempts to resolve the issues with the Applicant. She said that the Applicant was a very difficult person with whom it was impossible to negotiate. He would seemingly agree to a proposal but when she came back to settle the issue, he would change his mind.
The Applicant has been aggressive with her and she is now frightened of him. Ms. Acchione reviewed, in detail, the attempts to settle the various issues. She focussed on the Applicant’s refusal to accept the repairs proposed by the Added Party and the Applicant’s denial of access to the Added Party. This has been attested to by previous witnesses and the Tribunal will not repeat her testimony here.
One example will suffice to show the problems the Added Party had with the Applicant. In a letter, dated September 26, 2007, the Added Party wrote to Tarion, in part, as
follows:
8 Exhibit #4, Tab 1, p. 17
9 Exhibit #6
[The Applicant] has also not allowed the builder to remove a course of brick to the front and right side of the home and replace with block and parge brick to [sic] too close to grade. This is an acceptable method of repair and in accordance with the Ontario Building Code.
In a letter dated July 29, 2009, the Applicant wrote to the Added Party and said, in part:
I do not accept any brick to be removed from the house.
THE LAW
The Act:
- (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;
(b) that the home is free of major structural defects as defined by the regulations; and
(c) such other warranties as are prescribed by the regulations.
(2) A warranty under subsection (1) does not apply in respect of,
(c) normal wear and tear;
(d) normal shrinkage of materials caused by drying after construction;
(h) subsidence of the land around the building or along utility lines, other than subsidence beneath the footings of the building;
(4) A warranty under subsection (1) applies only in respect of claims made thereunder within one year after the warranty takes effect, or such longer time under such conditions as are prescribed.
- (1) Subject to the regulations, a person who has entered into a contract to purchase a home from a vendor is entitled to receive payment out of the guarantee fund for the amount that the person paid to the vendor as a deposit to be credited to the purchase price under the contract on closing if,
(a) the person has exercised a statutory right to rescind the contract before closing; or
(b) the person has a cause of action against the vendor resulting from the fact that title to the home has not been transferred to the person because,
(i) the vendor has gone into bankruptcy, or
(ii) the vendor has fundamentally breached the contract.
(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.
(7) The Corporation may perform or arrange for the performance of any work in lieu of or in mitigation of damages claimed under this section.
O. Reg. 892:
- (1) Every vendor of a new home warrants to the owner that there will be no water penetration through the basement or foundation of the home.
(2) The warranty described in subsection (1) applies only in respect of claims made during a two-year warranty period ending on the second anniversary of the date of possession.
- (1) In this section,
“building envelope” means the wall and roof assemblies that contain the building space, and includes all those elements of the assembly that contribute to the separation of the outdoor and indoor environments so that the indoor environment can be controlled within acceptable limits;
“delivery and distribution systems” include all wires, conduits, pipes, junctions, switches, receptacles and seals, but does not include appliances, fittings and fixtures;
“exterior cladding” means all exterior wall coverings and includes siding and above-grade masonry as required and detailed in the relevant sections of the Ontario Building Code under which the Building Permit was issued.
(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;
(b) that the electrical, plumbing and heating delivery and distribution systems are free from defects in material and work;
(c) that all exterior cladding of the home is free from defects in material and work resulting in detachment, displacement or physical deterioration;
(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
(e) that the home is free of major structural defects.
(3) The warranties described in subsection (2) apply only in respect of claims made during a two-year warranty period ending on the second anniversary of the date of possession, in respect of homes that were enrolled, or should have been enrolled, after December 31, 1990.
(4) The warranties described in subsection (2) are prescribed under clause 13 (1) (c) of the Act.
APPLICATION OF THE LAW TO THE FACTS
The witnesses for Tarion and the Added Party gave their testimony in a clear and straightforward manner. Their testimony was supported by documentation. The evidence of each witness corroborated the testimony of the others. Accordingly, the Tribunal accepts the testimony of those witnesses. Insofar as it is inconsistent with the testimony of the Applicant, the Tribunal prefers the evidence of the witnesses for Tarion and the Added Party.
The Applicants bear the onus of proving on a balance of probabilities that:
a. there was a breach of warranty by the Added Party;
b. damages flowed from that breach; and
c. the quantum of those damages.10
The Applicants failed to provide any corroborating evidence such as experts’ reports and written estimates of the damages allegedly suffered by them in order to prove their case. The evidence for the Applicants, such as it was, was merely self-serving statements from one with no experience who persistently made extravagant demands on the Added Party without any support therefor.
The Applicant seemed incapable of recognizing that he was not the sole arbiter of how the few relatively minor problems with the house should be fixed.
The gouge in one piece of vinyl is illustrative of the intransigence of the Applicant. It should have been fixed by simply replacing one square. He insisted, however, against all the evidence, that the whole floor must be replaced. He then rejected the four reasonable options put to him by the Added Party to settle the issue.
The Applicants have failed to discharge the onus upon them to prove damages and an estimate of their damages, and their appeal must fail on this ground alone.
10 Ontario (5213-ONHWPA-Claim) (Re) [2009] O.L.A.T.D. No. 285
There were some problems with the house and all parties recognized them. Tarion and the Added Party attempted to rectify those problems. Yet the Applicant denied the Added Party access to the site. Tarion warned the Applicants against this sort of behaviour in the Decision Letter, but the Applicant blithely ignored the warning and, thus, foolishly hurt his own case.
The Applicants are not entitled to any relief.
ORDER
By the power vested in it under the Act, the Tribunal orders Tarion to deny the claims of the Applicants.
LICENCE APPEAL TRIBUNAL
Terrance Sweeney, Vice-Chair
RELEASED: April 29, 2011