Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2012-10-31
FILE:
7425/ONHWPA
CASE NAME:
7425 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
Applicants
-and-
Tarion Warranty Corporation
Respondent
-and-
Windemere By the Lake Phase II Incorporated
Added Party
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Alex McCauley Member
APPEARANCES:
For the Applicants:
Self-represented
For the Respondent:
Neil Abbott, Counsel
For the Added Party:
K. Pakkidis Agent
Heard inToronto
October 10, 2012
REASONS FOR DECISION AND ORDER
This is an appeal by the Applicants to the Licence Appeal Tribunal (the “Tribunal”) from a Decision Letter of Tarion Warranty Corporation (“Tarion”) dated May 9, 2012 with respect to a new home purchased from, Windemere By the lake Phase II Incorporated (the “Added Party”), in which Tarion denied the Applicants’ claim.
At the commencement of the hearing, the Applicants and the Added Party were advised of their right to legal counsel; both waived that right.
Pursuant to the Tribunal’s pre-hearing order dated August 1, 2012, the Applicants were to provide an interpreter for this hearing. However, the Applicants attended the hearing without an interpreter and stated that they wished to proceed without the assistance of one, to which there was no objection despite the term in the pre-hearing order.
The following exhibits were admitted into evidence. Exhibit 3A & B, letters, and Exhibit 6 A to F, a series of photos, were submitted by the Applicant. The Respondent entered exhibit # 4 Books of Documents and Exhibit # 5 Supplementary Book of Documents.
Applicants’ Evidence
Ms. J.G.Z. is an owner of the property in question. The unit was completed for occupation on September 20, 2010. The witness listed her areas of appeal. These were documented on the Notice of Appeal and also within the body of the Decision Letter found in Exhibit #4 tab 15 pages 2 to 9. For simplicity, the margin numbers in Exhibit 4 will be used to identify the problem areas and their related claims as follows:
Claim related to kitchen,
Claim related to kitchen
Claim related to corridor and closet door
Claim related to bedroom and closet door (Similar to #4)
Claim related to washroom
Claim related to living room hardwood.
Claim related to living room ceiling.
17-19. Claim related to balcony.
The witness referred to a photograph depicting the damaged handle on the stove ( page 2 of Ex. 5). She stated the defect was detected after her mother injured herself on the handle. She was advised by persons at NXT which is the marketing arm of Windemere to enter this on the one year warranty report. This item was also listed on the Deficiency History submitted to Windemere (Ex. 4 Tab 12).
The second complaint of the witness as documented dealt with scratches to cabinetry in the kitchen. This was documented on an NXT pre-delivery inspection report dated Sept. 2, 2010 (Ex. 4 tab 2).
The matters in Claims 4 and 10 were a missing screw in the bars for closet doors. There was no problem with the doors; she was simply concerned that it appeared a screw was missing in the track.
The witness claimed that the colour of the cabinet in the bathroom, as illustrated in Exhibit 5, pages 13, 14, 15, and 19, was fading, showing the base colour. It is noted that the photographs were taken by the Tarion Inspector on July 25, 2012. The Applicant also had a photo taken in the month of September 2012. Occupancy was on September 20, 2010.
The witness further claimed damage to the hardwood floor, claiming that in the living room there were cracks or holes (Claim #15 ex. 4, tab 15).
The Applicant outlined her complaint in regards to the ceiling in the living room. She stated that there were lines or shading in the finished texture of the ceiling and it appeared bumpy in spots. Exhibits 4 and 6 show photos of the ceiling area.
The Builder, as stated in the letter at Ex. 4 tab 10, was prepared to put a new finish on the ceiling in question on March 23, 2012. The witness denied the builder access. When asked by the Tribunal for her reason for denying access, she stated that it was a matter of trust and further, at that time, she was pregnant.
In cross examination, the witness agreed that she was a signatory on the agreement to purchase the dwelling in question. The document is part of Ex. #4 tab 1. She agreed that she signed and initialled the contract.
The witness agreed that she signed the “Year end form” at tab 6 of Ex. 4. The document, Ex. 3a, was written by the witness’s father but signed by her and dated October 14, 2010. The witness regarded this document as supplementary to the prescribed forms or the “ Thirty Day form”.
Respondent’s Evidence
Donald Butwell
The witness is a Field Claim Representative for Tarion. In this capacity, he performs inspections regarding claims and has been employed by as such for 5 years. He carries out approximately 30 to 40 home inspections per month.
Mr Butwell has been previously employed by the City of Toronto as a Building Inspector. The witness also holds other professional designations regarding inspections and the building construction profession.
In the matter before the Tribunal, the witness conducted what is referred to as a conciliation inspection.
There are procedures in place to ensure that matters requiring attention by the builder are adhered to. Tarion warrants for the builder; in other words, ensures that the builder complies with their obligations. In order to facilitate this, there are several inspection phases.
There is a pre-delivery inspection. This takes place just prior to occupancy. In this case, the homeowner points out to the builder observed defects, and they attempt to correct these matters to the satisfaction of the parties. This form is in Ex. 4 tab 2 and is dated September 2, 2010.
The next important report is the “ Thirty Day report” and finally, the ”Year End Report”. The Year-End Report is found at Ex. 4 tab 6 and was signed and dated August 22, 2011. There was no “ Thirty Day report” submitted or in the file.
The crucial form that is missing is the Thirty Day form. This is a prescribed form on which the homeowner lists defects. This form goes to the Builder and Tarion. The document submitted by the homeowner as Exhibit 3a in this matter is not a Thirty day form as required.
The Year-End report is completed by the homeowner and submitted to Tarion and the Builder. There are prescribed time limits and then the parties can request a Conciliation Inspection which in this case was conducted by the witness.
On March 30, 2012, the Conciliation Inspection took place and a report was filed on April 3, 2012 (Ex. 4 tab 14) and a copy sent to the builder and homeowner. The Decision Letter was sent to the homeowner on May 9, 2012.
The witness reviewed the complaints outlined by the homeowner and his responses are detailed in the Decision letter (Ex. 4 tab 15). In summary, he advised that the balcony issues are not warranted items. These are common areas, similar to hallways, stairways etc. in condominium units. If there are concerns, then these matters are to be addressed with the Condominium Corporation.
The tracks on the doors in the closet were proper. The doors worked well and the tracks were not loose. The ceiling showed little colour distortion in various light situations and in his view any stipple was well within the guidelines as stated within the construction performance guidelines.
The hardwood damage was never identified previously on the pre-delivery form.
In cross examination, the witness stated that it is very easy to obtain a Thirty Day Report package. They can be obtained from Tarion and on line. The prescribed forms are strictly adhered to. There is only one Thirty Day form that can be submitted.
The added Party declined the opportunity to put evidence before the Tribunal.
Submissions
The Applicant stated that the defects pointed out are still present.
The Respondent stated that the burden of proof is on the homeowner to show entitlement to the warranty. The items referred to in claim 16, 17, 18 are what are referred to as common items. These items are not warrantable and are matters to be dealt with by the condominium corporation.
Further, the Respondent asserted that the homeowner made no reference to damages such as the cabinet scratches or the handle on the kitchen oven. These defects, if they existed, should have been listed on the pre delivery document. They were not. The photos in Exhibit 3 were taken in September of 2012. The occupancy was 2010.
Regarding the material allegedly fading on the bathroom cabinets, there is no evidence that the homeowner requested a special material to prevent this. Further, the minor scratching, it is submitted, is normal wear over the ensuing two years since occupancy of the unit.
The stipple to the ceiling, in the opinion of Mr. Butwell, is minor and easily conforms to the Construction Performance Guidelines (Ex 4 Tab 16 ).The track items on the closet doors are not defective. The sliders work properly. Finally, the alleged damage to the hardwood floor was not identified on the pre- delivery form.
THE LAW
The applicable 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;
(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.
Exclusions
(2) A warranty under subsection (1) does not apply in respect of,
(a) defects in materials, design and work supplied by the owner;
(b) secondary damage caused by defects, such as property damage and personal injury;
(c) normal wear and tear;
(d) normal shrinkage of materials caused by drying after construction;
(e) damage caused by dampness or condensation due to failure by the owner to maintain adequate ventilation;
(f) damage resulting from improper maintenance;
(g) alterations, deletions or additions made by the owner;
(h) subsidence of the land around the building or along utility lines, other than subsidence beneath the footings of the building;
(i) damage resulting from an act of God;
(j) damage caused by insects and rodents, except where construction is in contravention of the Ontario Building Code;
(k) damage caused by municipal services or other utilities;
(l) surface defects in work and materials specified and accepted in writing by the owner at the date of possession.
Notice of decision under s. 14
- (1) Where the Corporation makes a decision under section 14, it shall serve notice of the decision, together with written reasons therefor, on the person or owner affected.
Notice requiring hearing
(2) A notice under subsection (1) shall state that the person or owner served is entitled to a hearing by the Tribunal if the person or owner mails or delivers, within fifteen days after service of the notice under subsection (1), notice in writing requiring a hearing to the Corporation and the Tribunal.
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.
Parties
(4) The Corporation, the person or owner who has required the hearing and such other persons as the Tribunal may specify are parties to proceedings before the Tribunal under this section.
APPLICATION OF LAW TO FACTS
The Tribunal has concluded that the Applicants have not met the burden of proof that rests on them: they did not present sufficient evidence to establish, on a balance of probabilities, that there has been a breach of warranty by the Added Party.
The Tribunal accepts the evidence of Mr. Butwell who gave his evidence in a clear and concise manner. He stated that there is a strong requirement on the homeowner to follow the prescribed process established by Tarion. In this case, the homeowner missed a critical step that being the submission of the Thirty Day Report. Having said that, the Tribunal does not believe that even with the submission of the Thirty Day report, its decision would have been different.
The homeowner had an opportunity to indicate the alleged defects in the pre-delivery document, defects such as the hardwood issue and damage to the handle in the kitchen. This was not done.
The Tribunal agrees that Exhibit 3a, prepared October 14, 2010, cannot be considered as a Thirty Day Report. The Tribunal is also of the view that the Applicants were astute enough to know how to obtain the proper documents and to properly complete them in a timely manner.
After hearing the evidence and reviewing the exhibits, the Tribunal agrees that the common areas such as the balconies are not warrantable. The closet door sliding tracks do not present as defective.
The Tribunal infers from the evidence that there is some discord between the Applicants and the builder. This was indicated by the Applicant JGZ when she denied the builder access to attempt to respond to her concern about the ceiling. There seemed to be a lack of co-operation from this Applicant in addressing some of her issues which could have alleviated some of her concerns.
The Tribunal accepts the evidence as presented by Mr. Butwell that the ceiling texture conforms to acceptable industry standards as stipulated in the Construction Performance Guidelines. Further, the Tribunal in viewing the submitted photographs of the ceiling was at a loss to observe any defects.
ORDER
Pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs Tarion to deny the claim in full.
LICENCE APPEAL TRIBUNAL
_________________________
Alex McCauley, Member
Released: October 31, 2012