Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2012-11-19
FILE:
7560/ONHWPA
CASE NAME:
7560 v. Tarion
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
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Jim Kennelly, Member
APPEARANCES:
For the Applicants:
Self-represented
For the Respondent:
Montgomery Shillington, Counsel
Heard by teleconference:
October 15, 2012
DECISION AND ORDER
BACKGROUND
The Applicant took possession of his home in May 2010. A 30 day form was received and reviewed by Tarion following which Decision Letters were issued on or about March 3 and March 18, 2011 and June 11, 2012.
Tarion issued decision letters on the various items. The Applicant claims he did not receive two of the letters and as a result missed the date for appealing. Specifically, the Applicant filed a Notice of Appeal with the Tribunal on July 23, 2012 with respect to a March 19, 2011 Decision Letter. As the appeal of that decision was not filed within the prescribed 15 days, the Tribunal, by letter dated August 7, 2012, notified the Applicants that they must seek leave by way of an extension of time to file the appeal. The Applicants did so by way of the Notice of Motion received by the Tribunal on August 22, 2012. Tarion opposes this motion.
EVIDENCE
The male Applicant (“the Applicant”) stated that he did not receive two decision letters sent by Tarion dated March 3 and April 4, 2011. He told the Tribunal that he did receive a letter dated June 11, 2012.
He is still unhappy as a number of items were not resolved to his satisfaction.
In correspondence with Tarion, the Applicant felt Tarion staff members were not sure of the decision letter dates as different dates had been provided.
The Applicant did not appeal each decision letter as he expected there would be a letter with a complete list of the decisions. He did not want to pay $100 for an appeal of each decision letter.
He told the Tribunal that he did not ask Tarion or the Tribunal to group his appeals.
The Applicant stated that “technically it could be my fault” for “not understanding the law as such.”
Regarding the confusion about dates, Mr. Shillington noted that some of the dates mentioned were the actual date on the letter and other dates were the dates on which the letters were mailed.
Counsel for Tarion reminded the Tribunal that decision letters come at the request of the homeowner. Further, Mr. Shillington noted this Applicant has appealed to the Tribunal on a previous occasion and should know the procedure. In his submissions, Mr. Shillington provided a listing from Canada Post of letters delivered and signed for by the Applicant.
M. Shillington provided an affidavit from his colleague Madeline Heuther stating the letter of March 3, 2011 was sent out March 9, 2011 by registered mail and, according to Canada Post, signed for and picked up by the Applicant on March 16, 2011.
The same affidavit stated the letter of April 4, 2011 was delivered and signed for on April 25, 2011.
Mr. Shillington noted that the Applicant is requesting a motion allowing a late appeal of the March letter. Mr. Shillington noted the Applicant had also missed the appeal submission date for the June11, 2012 letter.
LAW
According to the Ontario New Home Warranties Act
Under the 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. R.S.O. 1990, c. O.31, s. 16 (1).
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. R.S.O. 1990, c. O.31, s. 16 (2).
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. R.S.O. 1990, c. O.31, s. 16 (3).
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. R.S.O. 1990, c. O.31, s. 16 (4).
Section 7 of the Licence Appeal Tribunal Act provides:
Despite any limitation of time fixed by or under any Act for the giving of any notice requiring a hearing by the Tribunal or an appeal from a decision or order of the Tribunal under section 11 or any other Act, if the Tribunal is satisfied that there are reasonable grounds for applying for the extension and for granting relief, it may,
(a) extend the time for giving the notice either before or after the expiration of the limitation of time so limited; and
(b) give the directions that it considers proper as a result of extending the time.
ANALYSIS
In the Court of Appeal decision, Frey v. MacDonald, Blair J.A. stated:
“..Usually time for an appeal or taking any steps within an appeal is not extended unless the appellant has maintained a firm intention from the beginning to appeal and the failure to observe the time limits is reasonably explained. This, however, is subject to the broader rule that extensions should be granted if the “justice of the case” requires: see Miller Manufacturing and Development Co. v. Robert J. Alden et al (1979) 13 C.P.C. where authorities are collected.”
[The decisions] reveal that a number of considerations are viewed as important, the emphasis given to them in each case varying with the circumstances. They include the existence of a bona fide intention to appeal, the length of the delay, prejudice to the other party, whether it can be compensated by costs and the merits of the appeal.
The Tribunal will therefore consider the following as constituting “reasonable grounds” for assessing this request for an extension of time in which to file an appeal:
the existence of a bona fide intention to appeal;
the length of the delay;
prejudice to the other party, and;
the merits of the appeal.
All four aspects of the test need to be considered with no one aspect necessarily having ascendance. Further, the premise is that an extension should not be granted if the appellant is not reasonably able to explain why he failed to observe the limitation unless “justice of the case” requires otherwise.
On weighing the evidence, it seems clear that the Applicant received the Decision Letters. He may have wanted to wait for a summary letter with one complete list, but he did not ask for such a consideration from Tarion.
The Decision Letters clearly outline the process necessary for an appeal, stating that the homeowner must mail or deliver the notice within 15 days of receiving the decision. The Applicant cannot claim unfamiliarity with the process as he completed a Tarion appeal on a previous occasion.
With two decision letters in the spring of 201 , the Tribunal has difficulty, given the lapse of time, in concluding there was a bona fide intention to appeal a March 2011 Decision Letter. An appeal was not filed until July 23, 2012 which was out of time even for the June 2012 Decision Letter, for which in fact, there has been no appeal though the Applicant agreed that he had received that letter. His inactivity over an extended period of time does not support him having maintained an intention to appeal during any of the various appeal periods.
Further, no credible explanations for the delay, no extenuating circumstances, have been offered by the Applicant.
With respect to the third factor to be considered, the prejudice to the other party, Tarion, the Tribunal considers the current 15 day period for filing an appeal to be reasonable.
The Applicant did not present any evidence to demonstrate that there was some “merit to the case”. The Tribunal does not find that the “justice of the case” requires an extension of the appeal time requirements.
For the reasons cited above the Applicant's motion seeking an extension for filing an appeal is dismissed.
LICENCE APPEAL TRIBUNAL
Jim Kennelly, Presiding Member
Released: November 19, 2012