Licence Appeal Tribunal
FILE: 6510/ONHWPA
CASE NAME: 6510 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 -and- Tarion Warranty Corporation Respondent -and- Forestside Estates Inc. Added Party
REASONS FOR DECISION AND ORDER
ADJUDICATOR: LAURIE SANFORD, Vice Chair
APPEARANCES:
For the Applicants: THE APPLICANTS, self-represented
For the Respondent: DANIELLE PECK, Counsel, representing Tarion Warranty Corporation
For the Added Party: PAUL M. COOPER, Counsel, representing Forestside Estates Inc., the Added Party
Heard in Toronto: November 24, 25, 2011
DECISION AND ORDER
This is an appeal to the Licence Appeal Tribunal (the “Tribunal”) by two Applicants from a decision of the Tarion Warranty Corporation (“Tarion”) denying their claim for compensation due to a delayed closing under the Ontario New Home Warranties Plan Act, R.S.O. 1990 c. O.31 (the “Act”). To preserve their privacy, the Applicants will not be identified. The individual Applicants will be referred to as “Ms. RD” and “Mr. YA”.
The issue to be decided in this matter is whether the builder of a new home gave proper notice of a delay in the closing date of the transaction to the Applicants, who had purchased the home. By way of background, Ontario Regulation 165/08 to the Act mandates that a purchase agreement for any home registered under the Act, which includes the home in question, must contain one of two addenda which address the subject of the closing date. Where, as here, the builder wishes to have the option to delay the closing date, the parties must include a standard form “Delayed Closing Warranty”.
In the following findings of fact in this matter, credibility was an issue. The Applicants gave confused and contradictory evidence on key points and, as will be detailed below, on at least one occasion the Applicants actively attempted to deceive the Tribunal. The Tribunal finds that the testimony of Ms. RD lacks credibility and the Tribunal does not accept her testimony unless it is independently corroborated or is an admission against interest. The Tribunal also finds, again for the reasons given below, that the testimony of Mr. YA, must be approached with extreme caution.
On May 28, 2009, the Applicants entered into an Agreement of Purchase and Sale with Forestside Estates Inc. Forestside Estates Inc. is a member company of the marketing group Royal Pine Homes and will be referred to as “Royal Pine”. The Agreement of Purchase and Sale contained the Delayed Closing Warranty. This addendum provides that the builder, in this case Royal Pine, may delay the closing date of a new home by up to 16 months if proper notice is given to the purchaser. The “First Tentative Closing Date” was set at March 31, 2010. If Royal Pine wished to extend this date, it was obliged to give written notice of this to the Applicants by December 31, 2009. Under subparagraph 3(c) of the Delayed Closing Warranty, a failure to give the obligatory notice would have the effect of turning March 31, 2010 into a firm closing date. Under paragraph 15 of the Delayed Closing Warranty, the address to which this notice was to be sent was the mailing address of the Applicants supplied in the Agreement of Purchase and Sale unless the Applicants gave written notice of a change of address.
The Applicants sold their existing home and moved sometime in the fall of 2009. Mr. YA testified that he took a handwritten notice of change of address to their realtor in September, 2009, in the belief that their realtor was an agent for Royal Pine and would pass the new address on to the company. Mr. YA testified the realtor entered the new address into his computer. The realtor denies this meeting took place. He also denies receiving a handwritten notice or entering a new address into his computer system. Ms. Mary Palumbo of Royal Pine testified that she had no notice of a change of address by the Applicants. Given the lack of credibility of Ms. RD and substantially lowered credibility of Mr. YA, the Tribunal prefers the testimony of the realtor and Ms. Palumbo. The Tribunal finds that Ms. RD and Mr. YA did not give written notice of a change of address to Royal Pine in September, 2009, either directly or through their realtor. The Applicants provided documentary evidence that they notified Canada Post of their new mailing address in the fall of 2009 and the Tribunal accepts this evidence.
On December 4, 2009, Ms. Palumbo sent a registered letter advising the Applicants that the First Tentative Closing Date was being extended from March 31, 2010 to July 29, 2010. Ms. Palumbo sent the registered letter to the Applicants’ address specified in the Agreement of Purchase and Sale. The Tribunal finds that Royal Pine had no reason to believe that the Applicants’ address had changed when this registered letter was sent. Under the provisions of paragraph 15 of the Delayed Closing Warranty, notices sent by registered mail are deemed to have been given and received on the fifth business day following the date of sending.
Due to an error, Canada Post did not forward the registered letter from Royal Pine to the Applicants’ new mailing address. Instead, Canada Post returned the registered letter to Royal Pine on December 18, 2009, that is, after the delivery was deemed to have occurred. When Ms. Palumbo received the returned registered letter, she telephoned Ms. RD to determine why the letter had not been delivered. According to Ms. Palumbo, Ms. RD informed her that the Applicants had moved but that rather than receiving mail at their new address, they preferred to receive mail at a mailing address, which Ms. RD provided. Ms. RD’s testimony regarding this telephone conversation is contradictory. During her cross-examination, Ms. RD testified that the phone call had never occurred and that she never gave her new address to Ms. Palumbo orally. At another point during her cross-examination, Ms. RD testified that after the phone conversation with Ms. Palumbo, she went to Canada Post to ask why the registered letter had not been forwarded to her. In her evidence-in-chief she testified that in January, 2010, she received a written apology from Canada Post for their failure to forward the registered letter. In cross-examination, Ms. RD testified that she received the apology from Canada Post in February when she went to collect the mail. Both parties had tracking information from Canada Post which supports the timetable given by Ms. Palumbo. In light of the contradictory evidence of Ms. RD and her general lack of credibility, the Tribunal prefers the evidence of Ms. Palumbo, who was a credible witness and who gave her evidence in a straightforward and convincing manner, even when her testimony was against the interests of Royal Pine.
The issue of the correct mailing address for the Applicants emerged as important during the hearing. According to Ms. RD, the mailing address of the Applicants began with the numbers 6-6150. The first 6 in the address was the building prefix which identified the correct building in the complex. In evidence were a series of change of address forms completed by Ms. RD to file with Canada Post. In these forms, Ms. RD uses the building prefix which is consistent with her testimony. However, there is other evidence that will be discussed below that leads to a different conclusion.
When Ms. Palumbo received this address, she told Ms. RD that she was sending a notice of delayed closing. Ms. Palumbo does not recall if she provided details of the new closing date. It was agreed that this second attempt at mailing the notice should be done by regular mail. Ms. Palumbo then went online to the Canada Post web site. She was unable to find an address beginning with the numbers 6-6150 at the postal code she had been given. There was some evidence that Ms. Palumbo had recorded the address as beginning with 66150, that is, without the hyphen between the building prefix and the balance of the street number. However, it does not appear that anything turns on this distinction because of what Ms. Palumbo did next. After cross checking the postal code, Ms. Palumbo concluded that she had misunderstood the address and deleted the building prefix. She did not consult either of the Applicants in making this change. She then re-mailed the notice of delayed closing by regular mail to an address which began with the numbers 6150 on December 18, 2009. This letter was not returned to Royal Pine and Ms. Palumbo assumed it had been delivered. As noted above, the Tribunal found Ms. Palumbo to be a credible and convincing witness. The Tribunal accepts Ms. Palumbo’s testimony about her actions and concludes that the correct mailing address for the Applicants, as given on the Canada Post web site, did not include the building prefix.
Ms. RD testified that she did not receive the re-mailed letter notifying the Applicants of the delay in closing date. Mr. YA testified at one point that he could not recall whether they received the notice or not and on another occasion that they did not receive a notice in January. Mr. YA testified that he approached his real estate agent in December, 2009 to ask whether the house would be completed on time. Mr. YA testified that he again talked to his realtor on January 10, 2010, and in this conversation his realtor told him that he was going to get a notice of delay very soon. The realtor cannot recall this conversation but does not deny it took place. It was not clear from Mr. YA’s testimony whether his realtor was advising him that the closing would be delayed or whether he was told that if the closing was to be delayed, he would receive notice of the delay shortly. Mr. YA also testified that at some point during these December and January conversations, the realtor told him that he would be surprised at how quickly Royal Pine could complete the homes once they started. The Applicants testified that in February, Ms. RD investigated the status of the development with local authorities and learned that building had not yet been approved for the beginning of construction. Ms. RD produced no documentation from the local municipality to support her testimony and she does not appear to have approached Royal Pine with this information. In fact, in written submissions made on January 1, 2012, Ms. RD took the position that the Applicants did not have any knowledge of the delay in closing until after April 15, 2010. While written submissions are not testimony, this submission is in direct contradiction to her testimony.
After some consideration, the Tribunal concludes that the Applicants have not demonstrated that they did not receive the second notice of delayed closing date. The Tribunal recognises that there are inherent difficulties in demonstrating a negative but in this case there are several reasons for concluding that the second letter was received by the Applicants. The first reason relates to the address to which this second notice was sent. There is evidence of a subsequent letter mailed to the same 6150 address which Ms. RD testified that she received.
Ms. Palumbo testified that she was again in contact with Ms. RD in April, 2010 and this time Ms. RD sent her mailing address to Royal Pine in writing. Ms. RD also gave her e- mail address to Ms. Palumbo. Ms. Palumbo sent an e-mail notification to Ms. RD of a second delay in the closing date, this time until August 12, 2010. The e-mail notification is in the form of a short covering e-mail and a signed conventional letter sent as an attachment. Ms. RD testified that she did receive this April delay notice within five days of its being mailed but that she received the notice by mail not by e-mail. What is important about this testimony is that this letter, like letter re-sent by Royal Pine in December, contains the Applicants’ address without the building prefix. Ms. RD’s testimony is that the post office held it for her and that she picked up there. The letter states that it is being sent by e-mail and there is a covering e-mail note that states that it is an e-mail notification. However, Ms. RD’s testimony is against interest and therefore the Tribunal accepts it. The fact that she received mail addressed to the 6150 address is persuasive evidence that the 6150 street address was the correct one or at least was an address which Canada Post recognised as valid. The letter that was re-mailed in December was therefore sent to a valid address and might be expected to have been delivered.
A second reason for concluding that the Applicants did receive the second December notice of delayed closing is that both their actions and their inactions are consistent with having received notice. According to the Applicants, they took steps in January and February to learn the status of scheduled building of their home. What they did not do was contact the builder. It would be reasonable to expect that on learning from the realtor or from the local municipality that the building was to be delayed, a homeowner would contact the builder. According to Ms. RD’s testimony, the Applicants sold their existing home in the fall of 2009 moved into rental accommodation. Both Applicants’ testified that they had to leave the first rental and rent a second place because of the delay in closing. Ms. RD testified that the second lease began April 1, 2010. If the Applicants had not received the notice of a delayed closing, they would have expected the transaction to close at the end of March and would have had no reason to enter into a second lease. If the Applicants had reason to believe that the construction had been delayed, it is reasonable to expect that they would have contacted the builder to learn the facts before signing a lease. By the same token, Ms. Palumbo told Ms. RD in the December 18th phone call that a notice of delayed closing would be forthcoming and it would be reasonable to expect Ms. RD to follow-up with Ms. Palumbo if she did not receive the notice.
Finally, Ms. Palumbo testified that the re-sent letter was not returned to her. That is consistent with the letter having been delivered. The Tribunal concludes that the Applicants did receive the re-sent December notice of delayed closing that was sent by regular mail to the address beginning 6150.
The Applicants submitted a delayed closing compensation claim form in September, 2010. Royal Pine responded to this arguing that they had sent a regular mail notice to the address beginning with 6150 on December 18, 2009 and therefore owed no delayed closing compensation. Ms. RD prepared a reply to this Royal Pine’s statement in a letter dated November 8, 2010. In this letter, ironically, Ms. RD did what Royal Pine had done some ten months earlier; that is, she omitted the building prefix from her address. What is relevant about this letter is that during her cross-examination, Ms. RD denied that the November 8, 2010 letter was hers. She could not explain how this letter was in Tarion’s file but at the next day of the hearing, Ms. RD produced a second letter which she claimed was the letter she had prepared for Tarion on November 8, 2010. The content of the letter was identical except that this second letter had the building prefix in the address. The font of the letter is somewhat unusual so in order to accept Ms. RD’s testimony, the Tribunal would have to believe that Tarion went to considerable trouble to forge a letter from the Applicants with an arguably incomplete mailing address in it. Moreover, the Tribunal would have to believe that Tarion forged a letter specifically to include an altered address to undermine the Applicants’ claim for compensation. Ms. Marianne McCloud of Tarion testified that she did not alter the first November 8th letter.
She also testified that in 2010 she wanted to help the Applicants prove their claim, if they could. The Tribunal accepts her evidence and finds that Ms. RD’s explanation of the two letters is not credible. The Tribunal finds that Ms. RD attempted to deceive the Tribunal by preparing a second version of the November 8th letter with an altered address during the hearing. This attempted deception irredeemably undermines Ms. RD’s credibility. Therefore the Tribunal does not accept any evidence of Ms. RD unless it is independently corroborated or, as noted above, it is against her interest. Mr. YA signed the second letter and therefore his testimony, too, must be approached with extreme caution.
Royal Pine made two attempts to give notice of the delay in closing in December, 2009. Both Ms. Peck, Counsel for Tarion, and Mr. Cooper on behalf of Royal Pine submit that the first attempt, that is the registered letter sent on December 4, 2009, was sufficient notice. Both Tarion and Royal Pine rely on the deemed delivery provision in paragraph 15 of the Delayed Closing Warranty. The relevant provisions of paragraph 15 are as follows:
(a) Any written notice required under the Addendum may be given personally or sent by email, fax, courier or registered mail to the Purchaser or the Vendor at the address/contact numbers identified on page 2 or replacement address/contact numbers as provided in paragraph (c) below. Notices may also be sent to the solicitor for each party if necessary contact information is provided but notices in all events must be sent to the Purchaser and Vendor, as applicable.
(b) Written notice given by one of the means identified in paragraph (a) is deemed to be given and received: on the date of delivery or transmission, if given personally or sent by email or fax (or the next Business Day if the date of delivery or transmission is not a Business Day); on the second Business Day following the date of sending by courier; or on the fifth Business Day following the date of sending, if sent by registered mail. If a postal stoppage or interruption occurs, notices shall not be sent by registered mail, and any notice sent by registered mail within 5 Business Days prior to the commencement of the postal stoppage or interruption must be re-sent by another means in order to be effective. . . .
(c) If either party wishes to receive written notice under the Addendum at an address/contact number other than those identified on page 2, the party shall send written notice to the other party. . .
Under these provisions the registered letter containing the notice of the delay was deemed to have been delivered before it was returned to Royal Pine on December 18, 2009. So Royal Pine had actual knowledge that the letter had not been delivered but did not have that knowledge until the deemed delivery provisions became operative. Tarion argues that the only express requirement for a builder to re-send a notice is if there has been a “postal stoppage or interruption”, which did not occur there. It was the Applicants’ responsibility to give written notice of a change of address, in the submission of Tarion, and they failed to do this. Tarion submits that a letter returned due to a change of address not communicated to Royal Pine cannot negate the validity of the deemed delivery.
Neither Ms. Peck nor Mr. Cooper cited any authority beyond the Delayed Closing Warranty for their position.
Sullivan on the Construction of Statutes, 5th Edition, by Ruth Sullivan, pp 85 – 91 considers the various uses of the verb “to deem”. These uses include the creation of a legal fiction and the creation of a new rule. Sullivan also notes, at p. 89, that the word “deem” may be used to create a presumption.
The purpose of a presumption is to establish something as a fact without the benefit of evidence. Presumptions are rebutted by tendering evidence that tends to show that the presumption is false. If a presumption is not rebuttable in this way, it is indistinguishable from a legal fiction. It is sometimes difficult to determine whether “deem” as used in a particular provision was intended to be rebuttable or conclusive. As Schultz J.A. wrote in St. Leon Village Consolidated School District v Ronceray,
in deciding whether . . . . the use of the words “deem” or “deemed” establishes a conclusive or rebuttable presumption depends largely upon the context in which they are used, always bearing in mind the purpose to be served by the statute and the necessity of ensuring that such purpose is served.
Acceptable consequences are also an important consideration. In Hopper v. Municipal District of Foothills No. 31, for example, the court was concerned with s. 51 of Alberta’s Expropriation Procedure Act, which declared that a notice of expropriation could be served by registered mail and “shall be deemed to be served on the day it is so mailed.” MacDonald J. interpreted “deemed” to mean “deemed until the contrary is proven”, largely on the basis of the consequences that would follow if the provision were treated as conclusive:
If the word “deemed” is s.51 is taken as “deemed conclusively” a municipality could deliberately wait until the owner was on holidays or out of the province when it would be unlikely that he would receive the notice and be able to make representations. Such an interpretation would permit the intention of the Legislature as expressed in s. 24 [the intention that notice be given] to be flouted.
On the other hand if the word “deemed” is to be taken as “deemed until the contrary is proven”, service of the notice by registered mail is considered effective unless it is proven that the service contemplated by s. 24 was not in fact made. This interpretation, I feel, permits the continued observance of the rule of natural justice . . . . that the owner be given an opportunity to make representations . . . . ”
Thus in considering whether the word “deemed” in this case creates a rebuttable presumption or a conclusive one, regard must be had to both the context of its use and the consequences of the interpretation.
In addressing the question of the context of the Delayed Closing Warranty, Tarion submits “notice provisions set out in the Addendum of necessity are applied strictly and mechanically, to both vendors and purchasers to eliminate the need to determine credibility issues where notice is disputed.. . . . Accordingly, Tarion submits, with respect, that asking whether the deeming provision is rebuttable oversimplifies the issue and ignores the context and consequences of negating the efficacy of a properly sent notice. The question to be asked is not whether the Applicants had actual notice of the delay or whether the Applicants are deemed conclusively or presumptively to have received the notice. The question is whether Royal Pine gave notice of the delay in accordance with the terms of the Addendum.”
Tarion notes that there is no mechanism in the Delayed Closing Warranty to set or re- set critical dates by reference to actual notice and, apart from postal stoppages, no obligation imposed on the builder to attempt re-delivery if the builder learns that the first attempt failed. Tarion states, “Although we feel a vendor should thereafter attempt to communicate the change as best it can, it is not workable to impose a re-delivery obligation on the vendor. Any re-issued notice will almost certainly be out of time.”
Mr. Cooper adopts the arguments of Tarion and argues that requiring actual knowledge of a notice of a change in a critical date “creates a new, separate and greater onus not envisioned in the legislation.”
Considering the context, the Tribunal notes that the provisions in question are contained in a legislatively mandated addendum to a Purchase and Sale Agreement under an Act that is designed as consumer protection. As consumer protection legislation, the Act – and by extension, its legislatively mandated inclusions in private contracts - must be given a liberal interpretation. This principle argues against Tarion’s proposed strict and mechanical interpretation of the notice provision and would seem to support the more liberal interpretation that the delivery presumption is rebuttable.
Concerning the consequences of interpreting the delivery provisions as creating a rebuttable presumption, Tarion submits that imposing an obligation on a builder to attempt to correct an address on a returned registered letter notice would have negative consequences in the industry. It would potentially expose builders to liabilities for fundamental breach and for termination of the sale transaction, in addition to any liability for delayed closing compensation, with no fault on their part. It would also ignore the obligation of the homeowner to provide proper notice. Tarion submits that it would be unfair not to hold the parties to the agreement they signed and in this case, would have the effect of “rewarding” Ms. RD and Mr. YA for their failure to update their address.
Mr. Cooper supports Tarion’s position and adds that requiring that the Applicants’ have actual knowledge of a delayed closing would impose a “a new onus of Actual Knowledge which would vitiate the notice rules as articulated in section 15 of the Addendum.” Mr. Cooper adds that the Act creates certainty with the notice provisions and specifically establishes the rights and obligations of each party to the Delayed Closing Warranty. He argues that the Delayed Closing Warranty, taken as a whole, sets out a framework with benefits to and obligations on both parties. He contrasts this with the situation in the Hopper case, cited above, where without the interpretation that the delivery presumption was rebuttable, “one party would have had an upside or unfair advantage.”
The Tribunal does not regard the consequences of this decision as being as broad as either Tarion or Royal Pine suggest. An important underlying assumption in the arguments of both parties is that interpreting the delivery presumption as rebuttable necessarily means that it is rebuttable regardless of when actual knowledge of a failed delivery is gained. Tarion and Royal Pine seem to assume that if a builder receives actual notice of a failed delivery after the deadline for notice has passed, then the builder is faced with serious potential liabilities for failure to perform the contract with no ability to recover by re-setting critical dates. The Tribunal agrees with both Tarion and Royal Pine that such an interpretation would essentially re-write the provisions of paragraph 15 of the Delayed Closing Warranty. However, it does not follow that because a presumption is rebuttable, it is rebuttable at any time or regardless of whether critical deadlines have passed.
It is important to note in this case that the registered letter was returned in time for Royal Pine to send a second notice within the required delivery period. It is therefore not necessary to decide what the effect of the deemed delivery provisions would be if the registered letter had been returned too late to be re-sent or if it had been returned after the deadline for delivery, that is, after December 31, 2009. The expiration of a notice deadline would be a material distinguishing fact.
.Ms. Palumbo acted responsibly and properly on December 18, 2009 when she responded to the returned registered letter by telephoning Ms. RD to find out why the letter had not been delivered. Ms. RD then gave notice of a change of address orally and Ms. Palumbo accepted this new address. Ms. Palumbo and Ms. RD then agreed that the notice would be sent by regular mail, a mode of delivering notice that is not set out as proper notice in paragraph 15 of the Delayed Closing Warranty. One way to view this telephone conversation is to consider that Ms. Palumbo in effect waived the requirement for written notice by accepting the oral change of address and Ms. RD waived her right to a particular form of written notice in order to have a regular letter delivered to a mailing address. Mr. Cooper argues that the parties cannot waive these requirements or contract out of provisions designed as consumer protection. The Act in subsection 13(6) specifically provides that the general warranties of workmanship cannot be waived or contracted out of but it does not establish the principle that no provision of the Act can be waived. In this case, both parties stood to benefit from the waivers and there appears to be no impediment to their waiving their respective notice entitlements.
The arguments that Tarion advances concerning the consequences to the industry by making the deeming provisions rebuttable by actual knowledge of a failed delivery are important but these consequences are not necessarily triggered by this decision. If a builder has actual knowledge of a failed delivery of notice in sufficient time to rectify the situation and if that builder does send written notice to the homeowner at the corrected address, then the builder would be able to rely on the deemed delivery provisions with regard to the second notice and the consequences of concern to Tarion would not ensue.
In this case, Royal Pine was not entitled to rely on the deemed delivery provisions of paragraph 15 of the Delayed Closing Warranty because the letter was not sent in a way specified in that paragraph. No argument was made about the presumption of delivery of a letter sent by regular mail to a valid address but the Tribunal has found that this re- sent letter was delivered.
An interpretation of paragraph 15 that creates a presumption of delivery rebuttable by timely knowledge that the delivery was unsuccessful does not impose on Royal Pine any obligation beyond that which a conscientious builder would undertake and which Royal Pine did undertake in this case. That is, an obligation to make reasonable attempts to contact the homeowner and learn why the delivery failed and what means of re-delivery exist and an obligation to make reasonable attempts to effect the re-delivery within the deadline.
If the presumption of delivery is conclusive, there would be consequences for both parties that must not be overlooked. In this case, Royal Pine would have been within its rights to simply file or destroy the returned registered letter and rely on the deemed delivery provisions. This interpretation would have significant consequences for homeowners. People who live at some distance from their new homes may be dependent on the formal notice of delayed closing to advise them of the building status. They may have no other means of learning that the building has been delayed. This lack of knowledge might lead to extra expense in securing temporary housing and storage after the closing. In an extreme case, the lack of knowledge might result in temporary homelessness. These consequences are potentially serious and ought to be considered in interpreting the notice delivery provisions.
Having regard to both the context and the consequences, the Tribunal concludes that on the facts of this case Paragraph 15 of the Delayed Closing Warranty ought to be read as creating a presumption of delivery that was rebutted when Royal Pine received timely knowledge that the delivery had failed. Royal Pine’s second attempt at delivery succeeded.
Tarion argues that issues of when the Applicants had actual knowledge of the delay, including the proposed new closing date, do not advance the analysis. The Tribunal agrees. There is no evidence that the Applicants waived their right to some form of written notice of the delay in closing and of the new tentative closing date. Nor was the notice in April of a further delay in closing effective notice of the first delay in closing. Under the Delayed Closing Warranty, the relevant notice period was December, 2009, not April, 2010.
The Tribunal does not accept that a result of this decision is to “reward” homeowners for failing to notify builders of their current address as Tarion argues. No sensible homeowner would risk missing important information by deliberately neglecting to send a change of address to the builder. Nor is there an element of a reward in reimbursing qualifying homeowners for some part of the expenses incurred due to a delay in closing of which they had no knowledge.
The Tribunal concludes that Royal Pine’s first attempt to give notice by registered mail on December 4, 2009 was unsuccessful. There are several important elements in this finding. First, the Tribunal considers that Royal Pine cannot rely on the deemed delivery provisions of the Delayed Closing Warranty in the face of actual knowledge that the delivery had not occurred. Second, in this case, although the actual knowledge was gained after the date of deemed delivery, the knowledge came in sufficient time to permit a second delivery attempt. Third, Royal Pine, using reasonable means, was able to determine the Applicants’ new address. Royal Pine’s second attempt to give notice, by regular mail, on December 18, 2009 was successful and did constitute proper notice under the Delayed Closing Warranty. There was a second delay, for which the Applicants also received proper notice. The Applicants are therefore not entitled to compensation for the delay in closing.
ORDER
By authority of subsection 16(3) of the Act, the Tribunal directs Tarion to disallow the Applicants’ claim for delayed closing compensation as set out in their claim dated September 9, 2010.
LICENCE APPEAL TRIBUNAL
Laurie Sanford, Vice-Chair
RELEASED: February,17, 2012