Licence Appeal Tribunal
FILE: 7506/ONHWPA
CASE NAME: 7506 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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Whitby by the Lake Inc. Added Party
DECISION AND ORDER
ADJUDICATOR: D. Gregory Flude, Vice-Chair
APPEARANCES:
For the Applicants: Self-represented
For the Respondent: Danielle Peck, Counsel
For the Added Party: Margaret Donaldson and Barbara Coccia, Agents
Heard in Toronto: November 8, 2012
REASONS FOR DECISION AND ORDER
The Applicants appeal from the decision of Tarion Warranty Corporation ("Tarion") set out in a Decision Letter dated June 15, 2012 to deny their claim for warranty. The vendor of the home, Whitby by the Lake Inc. ("Whitby"), has been added as a party to these proceedings and supports the position taken by Tarion. The sole issue to be determined by the Tribunal is whether the Agreement of Purchase and Sale ("APS") actually or impliedly incorporates a term requiring Whitby to provide a Kohler brand whirlpool bathtub rather than the Lyons brand whirlpool tub that was actually installed. If the installation of a Kohler brand tub was a part of the APS then, by virtue of the applicable regulations, Whitby was not entitled to substitute a Lyons brand. By way of remedy, the Applicants ask that the Lyons brand tub be removed and a Kohler brand whirlpool tube be installed.
Facts
The Tribunal heard from two witnesses, one of the Applicants and Barbara Coccia, Whitby's Décor Manager with approximately 15 years in that field. Ms Coccia was also the Applicants' décor consultant. The focus of the evidence was on a meeting between the Applicants and Ms Coccia at Whitby's Décor Centre in May or June of 2009. The list of purchasers' extras signed by one of the Applicants is dated May 7, 2009. According to the Applicant who testified, when this meeting occurred the Applicants had already chosen their house and paid a deposit but had not yet signed the APS. Both Ms Coccia and the Applicants agree that many of the tubs on display were no longer available. They also agree that there was no six jet Kohler tub on display. The Applicant's evidence was that in discussions with Ms Coccia, she was asked if the tub would be a Kohler and she confirmed that it would be. Ms Coccia's version of the discussion was the only time the brand name Kohler was mentioned in the discussion was when she expressed her preference for Moen brand faucets over Kohler brand faucets. The Tribunal does not find it necessary to resolve these inconsistent versions of events in order to arrive at its decision.
The APS was signed by the Applicants on September 7, 2009 and accepted by Whitby on September 10, 2009. It incorporates the Purchaser's Extras list signed on May 7, 2009. Item 2 on the list refers to "1 – Plumbing Extras – 5 foot Oval Whirlpool (6 jet Acrylic)." It does not mention a brand. Clause 4 of the APS states:
This Agreement, when accepted by both parties, shall constitute a binding agreement of purchase and sale subject to any statutory rights of recision to the contrary. This Agreement shall not be amended except in writing. The Purchaser releases and absolves the Vendor of any obligations to perform or comply with any promises or representations as may have been made by any sales representative or in any sales brochure, unless same has been reduced to writing herein. It is agreed and understood that there is no oral or written representation, warranty, collateral term or condition affecting this Agreement or the Property, or for which the Vendor or the Owner (or any agent or sales representative) can be held responsible or liable in any way, whether contained, portrayed, illustrated or represented by (or in) any plan, drawing, brochure display, model or any other sales/marketing material(s), displayed or allegedly given other than as specifically set out in this Agreement in writing.
The Applicant forthrightly admitted, both in his evidence in chief and in cross-examination, that there is no written agreement to provide a Kohler tub. He stated his regret that he had not reduced that representation to writing as he now understood the importance of getting it in writing. Of note to the Tribunal is the fact that there was a lapse of many months between the alleged representation and the final execution of the APS in which the Applicants might have raised the issue of the brand of tub. It appears that they never did. In fact, the evidence established that they were unaware of the brand, and by necessary implication, unconcerned, until almost a year after occupancy when remedial work in the bathroom uncovered manufacturing details of the tub. At that point, the brand became an issue.
Not of concern to the witness in his testimony was the fact that the Applicants did not receive a six jet whirlpool tub as set out in the APS; they received an eight jet tub. He conceded that, generally speaking, an eight jet tub is an upgrade from a six jet tub made by the same manufacturer. In fact, Lyons does not make a six jet tub; they make a five jet and an eight jet. On cross-examination the witness agreed that the Applicants' concern was not the number of jets but the brand. They do not want a six jet tub installed made by any manufacturer other than Kohler. The witness also agreed that the number of jets was not raised as an issue within the one year statutory warranty period.
Analysis
There are two sections of, R.R.O. 1990 Regulation 892 that address substitutions, clauses 18 and 19:
(1) Every vendor of a new home warrants to the owner that the vendor shall make no substitutions in those items of construction or finishing for which the purchaser is entitled to make selection pursuant to the purchase agreement without the written consent of the purchaser.
Every vendor of a new home warrants to the purchaser that, where the vendor makes a substitution with respect to an item that is referred to in the purchase agreement that is not an item that is to be selected by the purchaser, the item will be of equal or better quality than the item referred to in the purchase agreement.
The Tribunal accepts the submission of Tarion that, in order to succeed under s. 18, the Applicants must establish on a balance of probabilities that they were entitled to select a Kohler brand whirlpool tub. The Tribunal can find nothing in the APS that establishes that the Applicants were entitled to make such a selection. Clause 4 of the APS sets out a mechanism for making amendments. They must be in writing. The Applicants candidly admit that they have based their whole case on a verbal discussion that was not reduced to writing. Clause 4 expressly excludes any verbal representations such that statements made in the course of finalizing the APS cannot become part of the agreement between the parties by implication or based of a collateral agreement. The Applicants cannot succeed on that ground.
The Tribunal finds that the APS did not give the purchasers the right to select any particular type of whirlpool. The agreement identifies a five foot six jet tub. The item is referred to in the APS but not with sufficient specificity to permit the Applicants to make a selection. The whirlpool tub, then falls under the provision of s.19 and Whitby may make a substitution as long the substituted item is of equal or better quality that the listed item. While the Tribunal finds that the issue regarding the number of jets in the whirlpool was raised after the expiry of the warranty period, nonetheless, the eight jet tub actually installed is, by common agreement, of better quality than the six jet tub listed. The Applicants cannot succeed on this ground of appeal.
Order
For the foregoing reasons, the Tribunal directs Tarion to deny the Applicants' claim for warranty with respect to the installation of an eight jet Lyons brand whirlpool tub.
LICENCE APPEAL TRIBUNAL
D. Gregory Flude, Vice-Chair
Released on: November 14, 2012