Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2012-11-28
FILE:
7207/ONHWPA
CASE NAME:
7207 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
- and -
Tarion Warranty Corporation
Respondent
- and -
Arista Homes (Vaughan Valley Estates) Inc.
Added Party
DECISION AND ORDER
ADJUDICATOR:
D. Gregory Flude, Vice-Chair
APPEARANCES:
For the Applicants:
Self-represented
For the Respondent:
Gena Argitis, Counsel
For the Added Party:
Nat Brioschi and Ron Protocky, Agents
Heard in Toronto:
November 19, 2012
REASONS FOR DECISION AND ORDER
The Applicants appeal from the decision of Tarion Warranty Corporation (“Tarion”) set out in a Decision Letter dated January 16, 2012 to deny their claim for warranty. The vendor of the home, Arista Homes (Vaughan Valley Estates) Inc. (“Arista”), 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 a phenomenon whereby soap suds bubble up in one of the double sinks in the kitchen when soapy water drains from the other sink is a warranted defect. It is not in issue that the phenomenon occurs. The Applicants assert that the phenomenon is the result of some unspecified defect in construction or a blockage. Tarion and Arista assert that the condition is common in double sink installations and does not represent a defect in materials or workmanship that attracts warranty coverage under the Ontario New Home Warranties Plan Act, R. S. O. 1990, c. O.31 (the Act”). Nor is the sink drain installation in breach of the Ontario Building Code (“OBC”).
FACTS
The Tribunal heard from three witnesses, one of the Applicants, Donald Butwell, the Tarion Field Claims Representative who inspected the installation and determined there was no warranty coverage and Vito Marinaccio, Arista’s plumbing contractor supervisor, who conducted an inspection of the Applicants’ complaint and determined that there was no defect. Because the Tribunal finds that the Applicants have failed to present any evidence to satisfy the onus on them that the soap bubble phenomenon represents a defect in work or materials or a breach of the OBC, it will not go into the witnesses’ evidence in great detail. A brief summary of the evidence will suffice.
The Applicant presented evidence that the phenomenon is present, largely by showing two videos of water running into an empty sink and soap suds filling the drain in the bottom of the dry sink when dishwashing detergent was squirted into the running water. By comparison, he showed two videos of the same experiment at his parents’ home, albeit using different soap, where the phenomenon did not occur. Both Mr. Butwell, a former City of Toronto Building Inspector with over 13 years experience in applying the Ontario Building Code to residential home construction and Mr. Marinaccio, a plumber with 16½ years experience, agree that there is no defect in work or materials or breach of the OBC; that the phenomenon is not unusual; and it is caused by the physics of drain construction. Water flowing down the drain displaces air which vents back up. Where suds are present they escape as a result of the venting and flow up the drain of the unused sink. Mr. Butwell stated that the reason the phenomenon did not happen at the Applicants’ parents home is because the drains are slightly longer so the suds do not reach the plug hole.
The Applicants’ concern is that the suds may carry bacteria or food particles from the drain. They have used one sink to dry dishes in a drying rack and the suds may contact the lower edge of some plates thereby contaminating them. They now dry dishes on the counter, but they did not think of using the plug in the sink to prevent the suds from reaching the plates.
ANALYSIS
S. 13(1)(a) sets out the applicable statutory warranties:
- (1) 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,
(ii) is fit for habitation, and
(iii) is constructed in accordance with the Ontario Building Code;
S. 14 (3) (b) establishes entitlement to compensation for breaches of warranty:
- (3) Subject to the regulations, an owner of a home is entitled to receive payment out of the guarantee fund for damages resulting from a breach of warranty if,
(b) the person has a cause of action against the vendor or the builder, as the case may be, for damages resulting from the breach of warranty.
The onus on the Applicants set out above was neatly paraphrased by Vice-Chair Sweeney in Ontario (5816-ONHWPA-Claim (Re) [2011] O.L.A.T.D. at paragraph 42:
42 The Applicants bear the onus of proving on a balance of probabilities that:
a. There was a breach of warranty by the Added Party;
b. Damages flowed from that breach; and
c. The quantum of those damages.
Proof of the breach of warranty engages the provisions of s. 13 set out above. The Tribunal needed evidence from the Applicants to establish that there was a defect in work or materials or a breach of the OBC. It is insufficient for the Applicants to rely on subjective supposition, as they did in this case, without evidence to back those up. Put simply, the Applicants failed to provide the Tribunal with any evidence whatsoever that the soap bubble phenomenon is anything but the result of the normal operation of a properly installed double sink drainage system.
The Applicants must also fail on the grounds that the observed phenomenon creates no damages. It has been addressed by them by draining dishes on the kitchen counter rather than the unused sink. It might have been solved by the simple expedient of putting the drain plug into the sink while the water drained away.
ORDER
For the foregoing reasons, the Tribunal directs Tarion to deny the Applicants’ claim for warranty.
LICENCE APPEAL TRIBUNAL
D. Gregory Flude, Vice-Chair
Released: November 28, 2012