Licence Appeal Tribunal
Appeal en matière de permis
FILE: 7189/ONHWPA
CASE NAME: 7189 v. Tarion Warranty Corporation
An Appeal of a Decision of Tarion Warranty Corporation under the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O. 31 – to Disallow a Claim
Applicants: 7189
Respondent: Tarion Warranty Corporation
Added Party: Sugardale Homes Limited
AMENDED REASONS FOR DECISION AND ORDER
ADJUDICATOR: Elizabeth Sproule, Vice-Chair
APPEARANCES:
For the Applicants: Self-represented
For the Respondent: Danielle Peck, Counsel
For the Added Party: Vernon Balaban, Counsel
Heard in Toronto: August 8, 2012
REASONS FOR DECISION AND ORDER
This is an appeal by the Applicant(s) to the Licence Appeal Tribunal (the “Tribunal”) from a Decision Letter of Tarion Warranty Corporation (“Tarion”) dated January 5, 2012, (the ‘Decision Letter’), with respect to a new home purchased from, Sugardale Homes Limited (the “Added Party”), in which Tarion denied the Applicants’ claim.
THE LAW
The relevant provisions of the Act are as follows:
Warranties
- (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;
Exclusions
(2) A warranty under subsection (1) does not apply in respect of,
(c) normal wear and tear;
Powers of 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.
FACTS
The Decision Letter under appeal addresses a number of items of complaint. The evidence and the findings of the Tribunal have been organized according to the items as numbered in the Decision Letter, and have been grouped where it made sense to do so.
Claims 1 and 2, relating to glass shower in the master bedroom
The Applicants reported a small chip at the top outside edge of the glass shower door as well as a few scratches in the top portion of the glass wall panels, on their year end form. The glass shower was not installed at the time of the Pre-Delivery Inspection Form (PDI) so there was no possibility for inspection of the shower at that time. The Applicant testifying indicated that the glass shower was installed at the time of possession on May 17, 2010. Neither the chip nor the scratches were noted on the 30 day form, although there were 31 items listed. The Applicant was unable to testify when exactly the damage was noted; sometime after 30 days of possession but before 120 days.
Mr. Ryan Haley, the Tarion Field Claim representative who inspected the complaints, testified that the chip at the top of the door was approximately two to three millimetres and the scratches were faint and difficult to see. Mr Haley took photographs of the damage complained of. The Applicant made use of these photographs in providing his testimony without taking any issue with the accuracy with which they portrayed the damage. In the pictures, the damage is indicated by the tip of a pen. The Tribunal noted that the chip did not appear to be larger that the tip of the pen.
Under Section 13(1) of the Act, every vendor of a home warrants to the owner (a) that the home is (i) is constructed in a workmanlike manner and is free from defects in material. Tarion’s reason for refusing the claim is that there is no way to determine the cause of damage and that the damage was of such a minor nature that it did not amount to a defect in work or materials. As the glass shower was not installed at the time of the PDI, that document is of no use in establishing whether the damage/defect pre-existed the Applicants taking possession. However, the fact that it was not indicated on the 30 day form is persuasive that either it was not in existence at that time, or that it is so minor that it was not readily noticeable to the Applicants. Based on this fact, together with the Tribunal’s observations of the photographic evidence, the Tribunal finds that this is not a warrantable item as either a defect in material or poor workmanship.
Claim 10, relating to a chip on a cabinet door in the laundry room
This item of damage was not noted on either the PDI (the cabinet was installed at the time) or the 30 day form completed by the Applicants. The Applicants have argued that the inspection giving rise to the PDI was not a thorough inspection and that it had been signed under pressure. The Applicant also testified that the inspection took about two hours. There were some items noted on the PDI relating to the laundry room, in particular, a scratch on the middle cupboard door below the sink was noted. On the 30 day form, there are no notations regarding the condition of the laundry cupboard, although there are two items of complaint relating to the water hook-up to the washing machine. Both the Applicant and Tarion provided a photograph of the chip. The chip can only be described as tiny.
The item of damage being complained of appears to the Tribunal to in line with normal wear and tear. Given that it was not noted at the time of the PDI, when that area was inspected, or when the Applicants submitted their 30 day form, the Tribunal concludes that it is more likely than not as a result of wear and tear and therefore is excluded from warranty under section 13(2)(c).
Claim 21, wood panel at base of kitchen sink bending
The Applicants’ complaint is that the bottom surface of the kitchen sink cabinet is delaminating. They provided a picture of the item which appears to show that the laminated bottom has swelled up and exposed a few millimetres of particle board. They claim that this is an item of damage.
This item was not noted on the PDI or on the 30 day form. Mr. Haley testified that given that this damage was not previously documented and that it was consistent with water damage, which could have easily occurred during the year that the Applicants were living in the home, that he could not conclude it was caused by the builder.
There no documentation of this item of damage pre-existing the Applicants possession of the home. There is also a reasonable and likely alternative cause. The damage is minor, in a confined area, and could easily be the result of a small amount of water being left on the cupboard floor. Given these facts the Tribunal concludes that it is more probable than not that the damage occurred after the Applicants’ possession and find that it is not a warrantable defect.
Claim 25, relating to the uneven ceiling in the family
The Applicants paid an additional sum in order to have a ‘smooth’ ceiling in their family room. According to the Applicant’s testimony there is a bump at the seams where the panels of drywall meet. The Applicants did not take any measurements of the unevenness of the ceiling but testified that the bumps could be felt by brushing a hand over the ceiling. It was also stated by the Applicant that the measurements taken by Mr. Haley were never provided to them.
The photo of the ceiling referred to by the Applicant in his testimony was one of three photos taken by Mr. Haley and included in Tarion’s submissions. It was Mr. Haley’s evidence that he inspected the ceiling twice and on the second time took measurements which where provided to the Applicants in his Assessment Report dated March 26, 2012. He carried out measurements of the ceiling in two locations where the unevenness appeared to be the worst and found that the variation was out 3 mm in one area and 1 mm in another. As the tolerance set out in the Construction Performance Guidelines (CPG), Article 91, is 12 mm, Mr. Haley concluded that this imperfection was well within acceptable standard and was not a defect of workmanship. From a normal viewing position, he felt the ceiling was satisfactory.
It is clear from the Applicant’s testimony that the Applicants believed that in paying for a smooth ceiling, they were entitled to a perfectly smooth ceiling. Perfection however is not the standard and the evidence before the Tribunal is that the ceiling installed, which has smooth versus a rough stucco finish, has some imperfections which are well within the accepted tolerance. There was no evidence submitted by the Applicants that suggested that either the method of measurement followed by Mr. Haley, or the results, were inaccurate. It was suggested that the Applicants had not been given the measurements, but the Tribunal does not find this to be the case. The results of Mr. Haley’s second inspection, including the measurements taken of the uneven areas were included in the Assessment Report sent to the Applicants. The Tribunal was not able to detect the flaws complained of in any of the photos provided.
In the absence of any conflicting evidence, the Tribunal’s accepts Mr. Haley’s evidence that the flaws complained of did not exceed the accepted standard and were not readily noticeable from a normal viewing distance and therefore do not amount to poor workmanship. This item is therefore not warranted.
Claim 45 - 2 concrete slabs chipped/damaged under 2 left columns
The Applicants provided two photos of the chips complained of.1 There is no dispute that there were chips in the column concrete slabs. They were repaired by the builder. The Applicants submit that the fact that the slabs were chipped amounts to poor workmanship given that the size of the chips exceeded those allowed according to Article 4.20 of the CPG. This article relates to ‘Chipped Clay Bricks’ and indicates that the maximum tolerated chip is three quarters of an inch. These chips were bigger.
Mr. Haley testified that repairs were done to the chips in the concrete and were well matched in colour and texture and not noticeable when viewed from a normal viewing position.
The Tribunal reviewed the photos of the Applicant and found that the repairs do not amount to poor workmanship. The repairs appeared to be a good match in both texture and colour even in the close up photos taken by the Applicants. Article 4.20 relied upon by the Applicant relates to chipped clay bricks and arguably is not applicable here, however, even if it did apply and the size of the chips exceeded the tolerance, the CPG does not require that the chipped brick be replaced but may be repaired and the repair is to match as closely as possible when dry. As stated, the repaired areas appear to match very well and the Tribunal in fact found it difficult to distinguish the areas of repair form the remaining concrete slab.
Claim 48 – 1 brick chipped/damaged above left garage
The Applicants rely upon Article 4.2 of the CPG as referred to above, to argue that the chip in a brick above the garage exceeded the tolerance. This brick was repaired. This large chip was, in the Applicants’ opinion, a breach in workmanship. Mr. Haley testified that the repairs were done to industry standards and involved a well known masonry tint/touch up company. Photos taken both close-up and at a normal viewing distance were submitted into evidence.
The CPG provides that chipped bricks are to be repaired and to be matched as closely as possible. Having reviewed the photographic evidence, the Tribunal finds that the repair to the chipped brick was a close match when viewed from a normal viewing position and did not amount to a breach of warranty of good workmanship.
Claim 56 – garage door frames poorly installed, stoppers rubbing against doors
The Applicant testified that one of the two garage doors is difficult to lift and close because the framing is not installed properly. The Applicants provided two estimates as to the cost to correct the problem. Mr. Haley observed that the track was slightly out of square, but that this did not seem to affect the doors operation. During the conciliation, the door was opened and closed several times and did not bind on the track nor did the track inhibit the door’s operation. However, Mr. Haley noted that the door was difficult to open the first time, as if the door had not been opened for some time.
The observations of Mr. Haley that the track was out of square and that the door was initially difficult to open supports, in the Tribunal’s opinion, that Applicants’ complaint that the door is not functioning as is should and finds that this item should be warranted. The evidence does not support that the problems with the door are so severe so as to require replacement, but that some repair would suffice. The Applicants submitted a quotation for repairs in the amount of $350 which the Tribunal accepts.
Claim 60 – 4 bricks around rear door have holes
The four bricks initially complained of were replaced, however, the Applicants are not satisfied that the replacement bricks blend in sufficiently and believe the repair was not done in a workmanlike fashion. The Applicants rely upon Article 4.21 of the CPG relating to bricks that are different colours. Article 4.21 describes what is an acceptable condition: “Brickwork may contain bricks from different dye lots, provided they are dispersed throughout the wall to produce a generally uniform appearance when viewed from 6 m under normal lighting conditions”. The Applicants submitted two close-up pictures of the bricks in issue2 In the remarks section under Article 4.21, it is indicated that professional brick tinting methods are acceptable to adjust colour.
In his observations set out in the Decision Letter, Mr. Haley notes that a well known masonry tint-touch up company carried out the work, that the repairs matched very well and that overall there was uniformity to the wall. Pictures of the wall in which the bricks were located, taken at two different distances which were more in line with normally viewing distances, were provided to the Tribunal.3
The CPG require that when there are different brick colours that there must be a general uniform appearance. Had the repaired bricks not been specifically pointed out to the Tribunal, they would not have been detected in the photos of the wall in which they are contained, taken at a normal viewing distance. The Tribunal finds that the repairs meet the standard required and therefore there has not been a breach of warranty of good workmanship.
Claim 67 – Driveway is not paved, finished coat
It is the Applicants’ position that their asphalt driveway was poorly finished and as a result there are rough patches and pitting. They provided two close-up pictures of the asphalt, one showing an edge abutting grass. 4
Mr. Haley’s evidence was that there was no loose aggregate or significant depression in the driveway and that the area of roughness pointed out to him by the Applicants were generally minor in nature. Mr. Haley took a number of pictures of the driveway, from the standing position and from varying distances. 5
The Tribunal finds that the photographs and the testimony of the Applicant are insufficient evidence for the Tribunal to conclude that there has been a defect in workmanship. The asphalt driveway has the usual appearance of an asphalt driveway and the defects complained of are not readily apparent. The Tribunal concludes that this is not a warrantable item.
CONCLUSION
Having reviewed all the evidence and considered the arguments of the Applicants, the Tribunal finds that only one item of breach of warranty has been proven, and that a reasonable cost of its repair is $350. Given that the Applicant’s have not been satisfied with repairs carried out by the builder, although found by the Tribunal to have been done in a workmanlike manner, it is the Tribunals opinion that the payment of funds rather than directing work be done on the warranted item, is most appropriate in the circumstances.
ORDER
Pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs Tarion to allow the claim with respect to Item 56, the garage door, and pay $350.00 to the Applicants and, on proof of payment for said repairs, reimburse the Applicants any HST paid up to $45.50.
LICENCE APPEAL TRIBUNAL
Elizabeth Sproule, Vice-Chair
Released: November 2, 2012