Licence Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 7312/ONHWPA
CASE NAME: 7312 v. Tarion Warranty Corporation
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
The Applicants Applicants
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Tarion Warranty Corporation Respondent
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Bojana Woods Home Corp. Added Party
DECISION AND ORDER
ADJUDICATOR: D. Gregory Flude, Vice-Chair
APPEARANCES:
For the Applicants: The Applicants’ Son, as Agent
For the Respondent: Ellie Choi, Counsel
For the Added Party: Peter Salvati, Agent
Heard in Toronto: October 18, 2012
REASONS FOR DECISION AND ORDER
The Applicants appeal from the decision of Tarion Warranty Corporation (“Tarion”) set out in a Decision Letter dated March 13, 2012 to deny their claim for warranty with respect to cupping of the hardwood floor in their new home. The vendor of the home, Bojana Woods Home Corp. (“Bojana”), has been added as a party to these proceedings and supports the position taken by Tarion.
The Ontario New Home Warranties Plan Act, R. S. O. 1990, c. O.31 (the “Act”) provides that each vendor of a new home must extend certain minimum warranties to the purchaser. When a dispute arises between the vendor, in this case, Bojana, and the purchaser, in this case the Applicants, the purchaser may apply to Tarion during statutorily defined time frames, for a conciliation inspection. A Field Claims Representative from Tarion will attend at the home and, in the presence of the homeowner and the vendor’s representative, will view the disputed item and determine if it is warranted. If an item is warranted the vendor is under an obligation to effect repairs and, in default of doing so, Tarion, as a guarantor of the warranty, will deal directly with the homeowner to carry out the repairs or provide compensation. The vendor is then liable to Tarion for the costs of the repairs and may suffer a revocation of its registration should it fail to indemnify Tarion.
This matter deals with an instance when Tarion found that the item in dispute was not warranted. Pursuant to its statutory obligations, on March 13, 2012 Tarion issued a Decision Letter setting out the grounds for the denial of warranty coverage. The Decision Letter also sets out the right of appeal to this Tribunal. On this appeal, the Applicants bear the onus of establishing on a balance of probabilities that the item in dispute falls within one of the statutory warranties set out in the Act. Having listened carefully to the evidence presented by the Applicants, Tarion and the Added Party the Tribunal finds that the Applicants have failed to satisfy that onus.
At issue in this appeal is the application of the statutory warranty set out in s. 13. (1)(a)(i) of the Act which states:
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,
It is the Applicants’ position that there are defects in the workmanship involved in installing the hardwood floors or defects in the floor itself. These defects manifest themselves by cupping of the floorboards. Tarion asserts that there are no defects. It is Tarion’s position that wood is a natural product that absorbs or loses moisture from the air such that it swells in humid air and contracts in dry air. Any cupping, in Tarion’s view, occurred after the Applicants took possession of the house as the result of the failure of the Applicants to properly control the humidity in their home. Tarion further asserts that what cupping is present is of such a minor nature as to engage the maxim “the law does not care about minor things.” Tarion and the Added Party also assert that the cupping that has been observed will resolve itself once the Applicants use proper humidity control in their home.
THE FACTS
The Tribunal heard evidence from three witnesses. The Applicants’ son testified on their behalf. He does not live in the house but he does visit every weekend and is familiar with the state of the floor. He was present at the conciliation inspection. The Tarion Field Claims Representative who conducted the conciliation inspection is Donald Butwell. The Tribunal heard evidence from him on the manner in which he carried out the inspection and the factors he took into account in arriving at his decision. Finally the Tribunal heard evidence from Peter Salvati, the service manager for Bojana. He testified about the handling of the wood flooring prior to installation. He also testified about his observations of the floor at an inspection conducted in May 2012 to determine if a vapour barrier had been installed under the floor prior to installation of the wood.
The Applicants’ son’s evidence is telling. The Applicants took possession of their new home on July 8, 2010. They moved in on July 15. They did not note any cupping problems with the hardwood floor during the pre-delivery inspection of the home a few days prior to taking possession. They did not note any cupping problems in their 30 Day Form. The reason, according to the witness, was that they were unaware of any such problems until December 2010 when a friend was visiting the home over the holiday period. The friend was in the flooring business and noted that the floor was cupping. Thereafter, the Applicants took no steps to notify Bojana of the floor cupping. They waited until they submitted their Year-End Form to Tarion to make any mention of floor cupping. The Year-End Form identifies the problem as restricted to the family room and states: “Family Room Hardwood Floor Warping.” The description under this heading alludes to warping that was repaired on the staircase but makes no mention of warping or cupping anywhere else in the house. At the hearing, the Applicants asserted that the cupping was widespread throughout the house and that the whole floor requires repairs with the exception of the recently repaired stairs.
The witness did not identify any cause for the cupping. Rather, he took the position that Bojana had refused to give him access to its floor installation person so he was unable to research causes. To put it succinctly, the Applicants’ failure to produce evidence tying the alleged defect to a defect in workmanship or material was the fault of the other parties. It is clear from the pre-hearing order that the use of expert witnesses was contemplated at some point by the Applicants but there was no explanation for Applicants’ failure to produce expert testimony at the hearing. The witness did repeat the phrase “I am no expert...” often in his testimony but took no steps to remedy that shortcoming.
The witness produced no evidence about the impact of the cupping of the flooring on the daily lives of his parents. Indeed, he admitted that they were unaware of any cupping until it was pointed out to them five months after they moved in. He stated that the impact of the cupping is “emotional distress.” He also failed to produce any evidence to guide the Tribunal in determining the cost of repairing the defect, leaving the Tribunal in the dark about the scope any remedy it might order.
Donald Butwell has a degree in Planning from the University of Toronto. He worked for ten years in the concrete restoration business before becoming a building inspector with the City of Toronto, a position he held for eight years immediately prior to moving to Tarion as a Field Claims Representative five years ago. He has certification as a designer and inspector of Part IX and Part III homes from the Ministry of Housing and Municipal Affairs. As part of his Tarion training he has attended seminars put on by the National Wood Flooring Association, a body recognized by all parties to the proceeding as the authority on wood flooring installation and repair.
Mr. Butwell conducted his inspection on February 10, 2012. The wording that Mr. Butwell used to describe the floor as he observed it during the conciliation inspection is curious. He stated:
Tarion reviewed this item as directed and identified by you [the Applicants]. The item identified is the pre-finished hardwood floor that has been installed throughout portions of the first and second floors. Tarion noted that from a normal viewing, and under normal lighting conditions ‘minor’ cupping is evident in the hardwood flooring. Minor in the context that, yes there is cupping, however it cannot be determined if it was worse previously or not. A review of the Pre-Delivery Inspection as well as the previously submitted 30 Day form indicates that this item has not been previously documented. [Ex 3 Tab 7]
The description is curious because of the manner in which it defines minor as a comparison with some earlier state of the wood. The written description is somewhat at odds with Mr. Butwell’s evidence. He stated that he asked the Applicants to identify the worst area of cupping. They showed him an area just inside the living room. In contrast to the written description, he testified that from a general viewing position no cupping was evident. The Tribunal concludes that his evidence related to the specific area to which he was directed. He then placed a straight edge across the board identified as the worst cupped area and took a photograph. [Ex 3 Tab 6 Photo 1]. The photo shows the slightest of cupping. On questioning by Mr. Salvati, Mr. Butwell agreed the gap between the board and the straight edge was less that the thickness of Mr. Salvati’s business card.
Mr. Butwell could not feel the cupping when he slid his foot over the floor. He concluded that the cupping was minor and was, in all likelihood, caused by poor humidity control inside the house. He was informed by the Applicants that they had not used a dehumidifier in the house for two months following possession. He did not take humidity readings during his inspection because of his belief that taking such reading would provide no useful information about the humidity levels in the home in July when the complaint was first advanced.
On cross-examination, Mr. Butwell admitted that large areas of the family room and living room floors were covered by furniture and carpet. He did not look under the carpet or move furniture. He had asked the Applicants to identify the worst areas and relied on them to move whatever was necessary to uncover problems. He did look under one couch that was blocking a heating vent. In the area under the couch where heat was being trapped, he noted gapping in the floor boards. He considered this to have been caused by a drying of the wood due to excessive heat buildup. He discussed humidity control with the Applicants and pointed out the gapping and its possible cause.
Mr. Salvati testified about his visit to the home in May 2012 to conduct an inspection regarding the use of a vapour barrier. He visited the basement and noted two facts. The first was that, despite the fact that it was mid-May, the furnace humidifier was still in winter mode providing humidified air to the house. The second fact was that the dehumidifier was unplugged in a corner well away from any power outlet. The inspection that Mr. Salvati attended involved the removal of one board on the main floor. This board was introduced as an exhibit. Mr. Salvati testified that he placed a straight edge over this board and noted that there was no cupping. It is his view lower humidity in the home has reduced or eliminated cupping and that continued humidity control would eliminate cupping altogether.
Mr. Salvati testified about the handling of wood flooring. Wood flooring is stored by the manufacturer in a climate and humidity controlled warehouse. It is delivered to local suppliers in covered trucks. He has visited his local supplier’s warehouse and noted that the wood flooring is again stored in climate and humidity controlled conditions. When a floor is to be installed it is delivered to the site by the installer in a closed truck and installed immediately after delivery. There is no point in the pre-installation handling phase when the flooring could be exposed to excessive moisture.
Analysis
There is agreement among the parties that cupping is present in the wood flooring. To succeed, the Applicants must prove, on a balance of probabilities, that the cupping results from the failure of the Added Party to install the floor in a workmanlike manner or that the flooring is defective. While the Applicants did introduce evidence to suggest that installation of a wood floor on a wet substrate may result in permanent cupping, they candidly admitted that they do not know the conditions in existence in the home when the wood flooring was installed. Further, the Applicants were totally unaware of the existence of the cupping until five months after moving into the home. It had to be pointed out to them. They did not note it on the Pre-Delivery Inspection or on the 30 Day Claim Form leading to an inference that it was not present at those times.
Tarion and the Added Party assert that the cupping that was observed resulted from poor humidity control inside the home. There is evidence in support of this position. The Applicants advised Mr. Butwell in February 2012 that they did not use the dehumidifier until several months after they moved into the house in July 2010. The Applicants’ son testified that the Applicants did not use the dehumidifier until late July or early August 2011 when the Added Party’s serviceman attended the home to deal with their complaint on the Year-End Form. The serviceman noted high humidity levels on both of his visits. Mr. Butwell discussed humidity controls with the Applicants during his visit in February 2012 yet the Applicants still had the furnace humidifier operating in May 2012 with the dehumidifier stored in the corner. Both Mr. Butwell and Mr. Salvati were of the position that the minor cupping that was observed resulted from poor humidity control. Mr. Salvati went on to suggest that the cupping is now disappearing, presumably as the construction materials in the house mature and give off less moisture.
Given the lack of evidence to pinpoint a definitive cause for the cupping, the Tribunal concludes that the Applicants have failed to prove that their complaint arises out of a defect in materials or the floor was not installed in a workmanlike manner. Accordingly the Applicants’ claim must fail.
One last point needs to be addressed. The Applicants at the hearing advanced a claim with respect to the whole of the hardwood flooring throughout the home. The Year-End Form claims only defects in the family room. Given the scope of the statutory warranty, any claim for defects in the hardwood flooring in areas other than the family room was made outside of the one year warranty period. Accordingly, these claims are denied on that basis.
Order
For the foregoing reasons, the Tribunal directs Tarion to deny the Applicants’ claim for warranty with respect to cupping of the hardwood flooring.
LICENCE APPEAL TRIBUNAL
D. Gregory Flude, Vice-Chair
Released on: October 29, 2012