Peel Standard Condominium Corporation Plan No. 833 v. Tarion Warranty Corporation, 2012 CanLII 83861

Licence Tribunal

Appeal d'appel en Tribunal matière de permis

DATE: 2012-12-21

FILE: 6337/ONHWPA

CASE NAME: 6337 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

Peel Standard Condominium Corporation Plan No. 833 Applicant

• and -

Tarion Warranty Corporation Respondent

• and -

Real-T-Building Inc. Added Party

DECISION AND ORDER

ADJUDICATOR: Ken Selby, Presiding Member

APPEARANCES:

For the Applicant: Wolfgang Pazulla, Counsel

For the Respondent: Greg Banks, Counsel

For the Added Party: James Diamond, Counsel

Heard in Toronto: January 9, 10, March 1, September 24, 27, 28, and November 1, 2, 5, 6, 26, 2012.

DECISION AND ORDER

BACKGROUND

This hearing relates to an appeal by Peel Standard Condominium Plan No. 833 (“PSCP 833”) of a Tarion Warranty Corporation (“Tarion”) Decision, dated November 1, 2010 (Ex 1). This is a townhouse condominium development in Mississauga, Ontario which was built by Real-T-Building Inc. (“Real-T”) The Applicant is claiming a breach of warranty in the construction of their condominium pursuant to Section 14(3) of the Ontario New Home Warranty Plan Act R.S.O. 1990, c. O.31. (“Act”)

The project was designed by RSM Architects Inc. with the structural design being performed by Ireland Engineering Associates Ltd. These plans can be seen at Ex 6. The City of Mississauga issued a Building Permit on October 20, 2006, based on these plans.

There are two buildings on this site and they are called Building A (which has 7 townhouse units) and Building B (with 3 units). Together these ten units form one condominium corporation, referred to as PSCP 833.

The appeal relates to Building A and more specifically it deals only with the decks associated with these seven units. These decks represent a common element with exclusive use. Therefore, these decks are the responsibility of PSCP 833 rather than individual owners. Items 4, 5, 6, 7, and 8 of the Decision Letter (Ex 1) are being appealed. These items match Reference Numbers 24, 26, 27, 28 and 29 of the Performance Audit (Ex 7).

EVIDENCE

Construction of this project started in late 2006 and ended in July of 2008. The evidence of the Construction Manager for Real-T, Mr.Bray, was that the units had an occupancy permit in 2007 before the decks were completed. The support structure for the decks of Building A was started in the fall of 2007 with the actual decking being installed in May of 2008. After the decks were completed, the stairs were built, apparently being finished in June.

These decks are at the second floor level on the east side of Building A and cars drive under them so owners can access their respective parking spots. Individual owners access their deck by way of a second floor sliding glass door and proceed to ground level by a flight of stairs. These decks are for exclusive use as they were separated by privacy fences between units. There was undisputed evidence that major differences occurred between the approved plans (Ex 6) and the actual construction of these decks.

Clearly, what was built was more expensive than the decks shown on the approved plans. The permit plans showed decks which were open and level, therefore rain water would have passed through the spaces between the 2” x 6” deck planks and fall to the pavement below. What Real-T constructed were decks with very low slopes which were placed over a structural system of beams and joists which was covered by 3/4” plywood sheathing and a 2-ply modified bituminous membrane. It was expected that any water would run off these decks on the east side, away from the house. Free standing pressure treated decks were constructed on top of the membrane. The evidence was that the major reason for this change from the approved plans was that Mr. Gilmour, who owned Real-T, could drive his convertible car to his parking spot without any concern about being dripped upon from the decks.

In addition, tempered glass panels were added to the railing so owners using the decks would have an improved view. The height of this railing had to be revised after construction. There was no evidence of owner complaints relating to these glass panels.

These major changes were made to the deck structure without revising the approved building permit or even applying for such a revision, before the building was turned over to the Condominium Board of Directors (the “Board”). The turnover meeting was April 30, 2009, almost a year after the decks were completed. The evidence was that several items that the Condominium Act, 1998 (“Condo Act”) required to be turned over were not provided for the Board. The missing items, relevant to this hearing, included the warranties for the roofing and the pressure treated decks as well as the as-built drawings.

The City of Mississauga Inspectors recognized that the actual deck construction was not within the scope of the approved set of building plans and an Order to Comply, dated 2010-02-25, was issued jointly to REAL-T-BUILDING INC. and PSCP 833 (Ex 5 Tab 15 pg. 2). Mr. Obelienius of the Mississauga Planning and Building Department stated in the Order that the parties should:

1. “Comply with the act and code before 2010-05-25

2. Obtain a Revision to the Building Permit or Revise Construction

or construct within the scope of the approved set of building plans”

Since this Order to Comply occurred months after the condo turnover meeting, it was necessary for Real-T to have the Board, which now represented the individual owners, sign off on any attempt to satisfy this Order.

ISSUES

The Owners of Building A had a number of complaints regarding their decks and the Board was concerned that the changes which had been made to these decks would result in a significant increase in maintenance and repair costs in the future. In addition, the Board had concerns about the workmanship, especially as it related to the membrane and the pressure treated decking. As a result, the Board was not prepared to sign off on any attempt to satisfy the Order to Comply as there was a belief that the City of Mississauga might approve it without the Board’s concerns being addressed. It should be noted that on November 1, 2010, Tarion had indicated that most of the owners’ deck concerns were allowable substitutions by an item which is “of equal or better quality than the item referred to in the purchase agreement.”(Ex 2) This was based on paragraph 15 (f) of the Agreement of Purchase and Sale (“APS”) which can be seen in Ex 13 and states:

“ 15. (f) The Purchaser acknowledges that the Vendor may, from time to time, substitute such other materials utilized in the construction of the Property, the common elements of the Condominium, (or for any shared amenities), from those specified or contemplated in the aforesaid plans or specifications, provided that the quality of any substituted material(s) is equal or better than the material(s) originally indicated in said plans or specifications.”

Tarion’s position that this change represented an improvement was in conflict with the advice given to the Board in its Performance Audit which was prepared by Mr. Pichler P.Eng. This Performance Audit was submitted to the Board on June 24, 2009 (Ex 7).

It should be noted that Mr. Pichler did not have as-built drawings, as they did not exist, at the time of the Performance Audit. Substitution was never in doubt, however, the Board seriously questioned that the existing decks were even equal to, let alone better than, what was called for on the permit drawings. Each side had an engineering expert who attempted to compare the life-cycle costs, of the permit open deck design with the as-built design, over a 72 year period. The results can be seen in the following table.

Life Cycle Costs for 72 years	Permit Design Open Deck	As-built Deck with Membrane	Difference Col 2 – Col 3	Reference
Mr. Murray, P.Eng. of Morrison Hershfield (PSCP)	$204,043	$458,116	-$254,073	Applicant Expert Ex 19
Mr. Gurunlian, P.Eng of Halsall Associates (Tarion)	$256,173	$217,867	+$38,306	Tarion Expert Ex 25

There is a major difference between these estimates of the life-cycle costs of the as-built deck over 72 years. Predicting future costs is not an exact science, however, a difference of over $292,000 is extreme. The Tribunal strongly believes that the truth lies between these two values. The main difference relates to the expected life of the pressure treated decking and the membrane. For example, Mr. Murray assumes a deck life of 6 years while Mr. Gurunlian assumes 12 years. Mr. Murray uses a reduced life to recognize some ponding water after rains, wet sleepers, missing seal gaskets and decking with excessive cupping and warping. It is about 4.5 years since the deck was constructed and the membrane leaking and ponding continues. This leaking means that some plywood, joists and inadequately protected steel are wet when they have been designed to be dry.

It should be noted that one cannot prepare, overlay or replace the modified bituminous membrane without replacing much of the decking. Even removing and reinstalling the same deck board significantly reduces its life unless major efforts are made to find new screw locations and protect the old holes from damage due to water.

Mr. Gurunlian testified that his life-cycle cost analysis did not account for any maintenance of the membrane or the deck. Since this represented seven decks for seventy-two years the present value of this cost would likely more than offset the anticipated benefit of $38,308 which he had calculated. Several photographs show leaves and organic materials in the small space under the deck boards (Ex 18, photos R2, R4 and R6). These are difficult to remove and these materials tend to retain moisture. This strongly suggests that the as-built deck is not equal or better than the open deck which was designed in the permit drawings.

Mr. Bray wrote a letter to Mr. Gurunlian dated April 6, 2011 (Ex 4 Tab19). Paragraphs 5 and 7 are copied below.

“5. As seen by the water test the deck drains quite well. The leak we saw is at a 4 x 4 post. This is a maintenance issue. The decks are 3 years old and the caulking should be checked yearly and the condo board has done no maintenance.

7. Real-T-Building Inc. warrants the deck structure for 10 years from the date of substantial completion. Note that the decks are over 3 years old. Yearly maintenance must be performed by the condominium corporation and reported to Real-T-Building Inc.”

This is interesting in that the evidence provided by Mr. Gilmour the developer, was that the membrane had a 10 year warranty and the pressure treated decking had a 20 year warranty. The Condo Board never received any warranties despite a requirement in the Condo Act requiring such warranties be turned over to the Board. Mr. Gurunlian noted more than one membrane leak on the only deck which he examined.

Tarion issued a Supplementary Decision Letter on January 3, 2012 (Ex 3 Tab 14) no longer claiming the as-built deck was a substitution but still claiming it was equal or better than what was referred to in the APS. Finally, Tarion indicated that there was no specific information regarding the deck in the APS other than there was to be a wood deck. As Mr. Hicks, Tarion’s Field Claim Representative, testified, “the owners were supposed to get a wood deck and they got a wood deck”.

The owners find it difficult to believe the decks are better as they are seeing rusting steel, a leaking membrane, water stained plywood and detaching deck boards within a few years from when the deck was constructed. The Board expressed serious concerns about the longevity of these decks and the adequacy of the repairs which have been made.

The Board President, Mr. Beard, indicated that the Board had to have a Performance Audit conducted according to the Condo Act. He stated that the Board would be irresponsible not to address any concerns expressed in this audit. The Board wished to appeal the Tarion decision to the Licence Appeal Tribunal before addressing the Order to Comply issued by the City of Mississauga.

Mr. Schmaus, the Treasurer of the Board, had indicated several concerns regarding his deck on his Tarion 30-Day Form (Ex 15). However, these related to the stairs, the fence, the railings and light fixtures. In Ex 17, Mr. Schmaus expressed some concerns relating to the slope of the deck. Since his Statutory Warranty Form was dated 2008/02/25, it was not a good time of the year to assess the sufficiency of the slope. Attached to his APS was Schedule “I” Revised Plans for Unit 1, Gilmours Glen (Ex 14). This plan included several notes relating to changes in this unit. As well, the second floor plan showed the deck. The only note on the deck was “WOOD DECK”. The evidence was that his was the only drawing which any of the owners had received prior to signing their sales agreements. Since the deck was a common element, the Board had the responsibility to address any such deck concerns to Tarion rather than the individual owners.

Mr. Furlong, the Board Secretary, noted that he resided in Building B where 2” x 6” decking noted in the plans was replaced by 5/4” x 6” decking and supported on joists which were on 16” centres and these decks appeared to be preforming well. His major concern was that the Building A decks were anticipated to require excessive maintenance and replacement costs according to the Performance Audit and he questioned the fairness of Building B residents having to pay the increased cost associated with this change in the Building A decks.

The Board sought to have the existing decks removed and replaced by an open deck as shown on the plans which had been approved by the City of Mississauga. Mr. Gilmour continued to believe that the construction of the decks represented an improvement. Meetings became quite adversarial and in February 2010, Mr. Gilmour initiated a lawsuit against the Board (Ex 5 Tab 49). The Board’s defence can be seen in Ex 5 T50.

Mr. Gilmour testified that he relied upon Section 15 (e) ii) of the APS regarding such changes which states:

“The Purchaser acknowledges and agrees that the Vendor may, from time to time in its sole discretion, due to site conditions or constraints, or for marketing considerations, or for any other legitimate reason, including without limitation any request or requirement of any of the Governmental Authorities or any request or requirement of the Vendor’s architect or other design consultants:

ii) change, vary or modify the plans and specifications pertaining to the Property or the Condominium, or any portion (including architectural, engineering, landscaping, grading, mechanical, site servicing and/or other plans and specifications) from the plans and specifications existing at the inception of the project, or existing at the time that the Purchaser has entered into this Agreement, or as same may be illustrated in any sales brochure(s), model(s) in the sales office or otherwise, …”

Which version of the Ontario Building Code governed these decks 1997 or 2006?

Construction started at the end of 2006 when the 1997 Ontario Building Code (“OBC”) was still in effect. The deck construction occurred in late 2007 and early 2008, almost a year after the new, 2006, OBC had become effective. The question was which Code governed the design and construction of these decks given that these changes occurred well after the new Code came into effect and no permit reflected the changes. These two versions of the Code treat this structure very differently.

Mr. Delen P. Eng. Director, Code Consulting & Life Safety of Morrison Hershfield was retained by the PSCP 833 and qualified as an expert on the Code and he testified that the OBC 2006 should govern this revised construction project (Ex 18).

Mr. Hine P. Eng. of David Hine Engineering Inc. was retained by Tarion and qualified as a Code expert and he consulted with the City of Mississauga and concluded that the 1997 Code governed this revised project (Ex 20).

Mr. Nikiforos, Head of Inspectors for the City of Mississauga, testified and confirmed that the City would apply the 1997 OBC because the building permit for this project remained open. He also indicated that any subsequent repairs or replacement of these decks would fall under the 1997 Code as well.

Therefore, on these facts, the Tribunal concludes that the 1997 OBC will be applied in the balance of this hearing.

THE LAW

STATUTORY WARRANTY COVERAGE BY TARION

The One-Year Warranty – A builder warrants that for one year from the date of possession, the home:

1. meets Ontario Building Code requirements;

2. is free from defects in work and materials

In addition,

3. Tarion states that builders should provide homeowners with all warranties.

The Tribunal will address each of these three Tarion warranty provisions.

1. Meets Ontario Building Code Requirements (1997)

The Building Code Act, S.O. 1992, c.23, as amended by S.O. 1997, c.24 and S.O. 1997, c.30, schedule B provides as follows.

(12) Notice of Change. No person shall make a material change or cause a material change to be made to a plan, specification, document or other information on the basis of which a permit was issued without notifying, filing details with and obtaining the authorization of the chief building official.

Clearly, on the evidence, this project involved a material change. These decks were constructed without a revised permit and the City of Mississauga has noted this failure to follow the OBC in the Order to Comply. The developer, Mr. Gilmour, testified that he believed Mr. Bray, his construction manager, and/or Mr. Mangat, the architect, would have obtained a revised permit. Construction of these decks without a permit contravenes the 1997 OBC. Tarion’s Counsel suggested this was a matter for the City of Mississauga and not a Tarion warranty matter.

Provisions of the OBC are addressed as follows.

9.3.2.4. OSB, Waferboard and Plywood Marking

(1) OSB, waferboard and plywood used for roof sheathing and subflooring shall be legibly identified on the face of the material indicating

(a) the manufacturer of the material,

(b) the standard to which it is produced, and

(c) that the material is of an exterior type.

Mr. Price P.Eng., of Morrison Hershfield, noted that several sheets of plywood did not show this required identification. While this violates the OBC it is quite possible that this represents carelessness on the part of the installer rather than the substitution of inferior material. It would seem inappropriate to remove the decking and the membrane roofing so a few sheets of plywood could be turned over if this material which is exposed does not appear to be inferior to those sheets which are properly identified.

9.3.2.5. Moisture Content

(1) Moisture content of lumber shall be not more than 19% at the time of installation.

This Code provision is the result of much experience and many research studies. These studies revealed that the origin of many of the dimensional problems in wood such as: warping, splitting, cupping, checking and shrinking, which are sometimes associated with decks, can be directly related to excessive moisture content of the lumber at the time of installation. Once the deck boards are adequately fastened very few additional dimensional problems should be expected.

The evidence of Mr. Bray was that most of this deck construction occurred in April and May of 2008 after a break for winter. The roofing membrane and related structural framing were completed in April and the decks were added on top of the membrane in May with the stairs and fencing being completed in early June after the decking was in place.

In the pressure treating process, chemical preservatives are forced under pressure into the cell structure of the wood while it is contained in a large closed cylinder. The wood pieces are separated so all surface areas are exposed to this process. This treatment results in lumber with very high moisture content. As a result, the treated lumber is typically kiln-dried so the moisture content is reduced to approach the level required by the OBC. The kiln is essentially a well-insulated chamber where the temperature, relative humidity and circulation of air can be controlled and readily changed as required.

The moisture content will vary somewhat after leaving the treatment process where it is bound and shipped still fairly wet to the lumberyard. At the yard, it is often stored outside and may be unprotected until delivered to a job site. It is not uncommon for the suppliers of pressure treated materials to suggest that builders leave the treated wood on site for a few days in order to experience more drying before installation. This is to ensure that the wood does not exceed the 19 percent moisture content limit required by the OBC. If the installer has any concerns about elevated moisture, he should employ a moisture metre in order to check the moisture content of the wood prior to installation. This inexpensive device determines the moisture content of the wood by measuring the electric resistance between two steel pins which can easily be pushed into the wood.

Wood is a hygroscopic material. This means that wood absorbs moisture from, or releases it to, the surrounding atmosphere until it becomes in balance with its environment. This balance is often referred to as the Equilibrium Moisture Content (“EMC”). The moisture in the wood adjusts until it becomes roughly proportional to the relative humidity of the surrounding air. If the environment is dry then the moisture content will be reduced until equilibrium is achieved with the ambient humidity. If the environment where the lumber is stored or placed is very wet, then the moisture content will increase until it eventually reaches the EMC with the surrounding atmosphere. Wood changes its dimensions with these fluctuations in relative humidity. Nominal 1” thick boards, such as the 5/4” x 6” decking used, will adjust to their environment more quickly than thicker pieces of wood. Deck lumber is typically delivered to the site not long before it is to be installed. It should not be unloaded directly onto the ground and ideally delivery should be delayed if it is raining.

Mr. Bray did not know of any special precautions or measurements which were taken relating to the moisture content of the deck lumber. He could not recall the maximum moisture content requirement of the OBC. The actual installer did not testify. The following evidence was not provided at the hearing: an invoice for the decking, the actual date of delivery, any end tags showing both the preservative and use category, any warranty, the pressure treating chemicals used, evidence of the decking being kiln-dried, the actual product used to preserve end cuts, or any relevant weather data.

The dimensional changes which have been experienced in the pressure treated lumber suggest that OBC provision 9.3.2.5 regarding moisture content was not met. The cupping of the deck boards (Ex 3 Tab 7, pg. 9 upper photo) and splitting of the 4”x4” posts (Ex 18 pg. 12 photo S6) tend to indicate excessive moisture content at the time of installation. Deck boards which are moist on the bottom but have reduced moisture content on the top surface because of exposure to the sun and wind can also experience significant cupping. The evidence was that these problems did not occur in Building B which was built with the same 5/4” x 6” used for an open deck which was constructed at a different time of year.

2. Is free from defects in work or materials

It must be appreciated that the major source of information relating to workmanship comes from photographs. A given photo could show a condition which is fairly common or very rare. It could have occurred and subsequently been repaired as many of the photos were taken years ago. Indeed, some conditions could have become worse since the photos were taken.

Steel Framing

The steel was not protected with “Anti-corrosive primer and paint to be applied to all exterior steel” as required on Ex 6 drawing A 9-2. Mr. Rosenberg P.Eng. of Ireland Engineering Associates Ltd. stated, “We are concerned with the rust staining at the top of the beams at the wood plates” (Ex 8 pg. 3). Some type of paint was added much later and only where the steel was easily accessible. Clearly, corrosion is still occurring (Ex 18 photo S9). In addition, two engineers Mr, Rosenberg and Mr. Price, express concern over the power actuated pins, in general, not penetrating the upper flange of the steel in most cases.

This lack of anticorrosive paint was noted in Item 31 of the Performance Audit (Ex 7 T1). The owners, as well as Mr. Price, are concerned with the workmanship associated with the attempted repairs as rusting of these main structural support members is ongoing. Other areas without the any anti-corrosion paint are not visible and could also be suffering from water leaking through the membrane.

Mr. Price pointed out that the simply supported beam connection had been replaced by a connection resisting moments as seen in Ex 18 pg. 10, photo S2. He suggested that the design engineer should examine the significance of this change from his design drawings.

Joist System

Mr. Rosenberg notes; “Further, blocking was not provided between the joists above the steel beams and should be added, at least every 4’ c/c or third joist space” (Ex 8 pg. 3). This omission appears to have been corrected after his observation.

Mr. Price testified that the joist arrangement specified for unit #1 was 2-2” x 8”@12” c/c while only 1-2” x 8”@ 16” c/c was provided (Ex 18 pg. 4). Mr. Bray and Mr. Pichler testified that the joists were 2” x 10”s which appear not to be the case based on the evidence of the engineers, Mr. Price and Mr. Rosenberg. The as-built drawings were reported to be CSK 2-4 which show 2” x 8” joists while drawings D-02 and D-03 show the joists as 2” x 10” (Ex 4 Tab 6). Mr. Rosenberg stamps these (CSK) sketches in November 25, 2009 and includes the following statement which adds to the confusion.

“On the basis of random reviews, it is our opinion that the construction for which we have been appointed structural consultants appears to have been built in general conformity with the design drawings, specifications, design sketches and three site review reports prepared by our firm. The documents were issued under the professional seal of Gary Rosenberg P.Eng. and formed the basis for issuance of the building permit by the local chief building official. “

If Mr. Price is correct then this represents another failure to meet the OBC requirements. If Mr. Bray is correct, then the as-built drawings should be corrected before submitting them to the City for approval.

Membrane

Extensive leaking of the membrane is occurring (Ex 7, Tab 2, pgs. 5, 6 & 7). Photo 3 shows that the slope is small enough that it becomes negative in spots thus the water appears to be returning on the underside of the membrane, onto the plywood and by passing the drip edge. This is inconsistent with the proper application of a two-ply membrane application as the water must pass over the drip edge. Any moisture on this nearby plywood is a significant concern regarding the life of this structure.

Poor membrane details at posts and next to the building were acknowledged. Mr. Murray of Morrison Hershfield also noted a missing membrane on the one stair landing he checked. This would lead to early deterioration of the unprotected plywood at this landing (Ex 18 photo R5). Appreciating the sequence where the stair construction followed the membrane installation on the deck area, this does not seem surprising.

The membrane was to have been protected by 0.25 inch seal gaskets below the sleepers to ensure a reasonable life ( Ex 4 Tab 6 D-03). Mr. Pichler found the gaskets to be missing in many places. He noted they were replaced by 6 mil polyethylene in other spots. The several photos of the sleepers, which are 5.5 inches wide, do not show these gaskets which Mr. Bray testified were 6 inches wide. As well, D-03 shows

1 1/4” x 5.5” sleepers which are either 1 1/4’ x 6” actual or 1” x 5.5” nominal size. It was the Board’s position that the as-built drawings should not be sent to the City with known errors.

Real-T had scheduled a repair of some deficiencies in June of 2011, but access was refused. Mr. Gilmour said in an email: “The installer has stated that the delay could void the warranty.” Once again, the Board does not have access to any of the warranties. The installer did not testify.

Sleepers

Mr. Bray noted that the sleepers were 24 inches on centre compared with the 16 inches on Building B. He noted that the sleepers were 5.5 inches wide compared to 1.5 inches with standard joists. He further noted that the span between supports was 24” less 5.5” or 18.5” for this decking versus 16” less 1.5” or 14.5” with the standard joist system. This extra span would significantly increase the deflection caused by a concentrated load. This is doubtless related to the bouncy feeling reported by PSCP.

Standing water was noted by almost all witnesses and this means that some of the decking which is for “above ground use only” is resting in, or very near, water for significant periods of time. Several witnesses noted that the foam gaskets which were to elevate the sleepers a quarter inch above the membrane were often missing. All witnesses who addressed the problem admitted to some ponding and several noted this is expected to reduce the life expectancy of the sleepers and perhaps the membrane as well.

Mr. Gilmour indicated that the ponding was only a couple of millimetres deep and in very few locations. He had previously indicated in correspondence that such ponding areas could have drains installed.

Decking and Fasteners

Mr. Bray agreed that all ends of boards could have been on the centre of sleepers which had a 5.5 inch width. The reason for this was that the sleepers were on 24 inch centres and the decking boards which were the multiple of two foot lengths (14’, 16’ etc.). Ideally, there should be no screws within one inch of the end of boards with these wide sleepers. Many times this has not been achieved and screws are near the end of boards and the edge of sleepers. See Ex 3 Tab 7 pg. 3 upper photo. The side boards each have two screws which are essentially aligned and they appear to be over the centre of the sleeper. The screws on the rightmost board are poorly located if cupping is to be minimized. The two butt ends are poorly aligned and they have been inappropriately fastened near the edge of the sleeper and the ends of the deck board. Excessive cracking is noted and it appears that a poor repair has been attempted as five screws have been used to fasten a single end of one board. Several of the screws have been over torqued and this significantly reduces the withdrawal strength which is already low because of the length of the screws.

Those screws heads which were driven below the deck surface are brown in colour while the others have remained green. This occurs as the depression caused by over driving, or over torqueing, holds water after a rain and rusting is occurring. At Ex 18 pg. 16, the upper photo shows a brown stain around the screw holes. Similarly, on page 17, the lower photo shows discolouration. The next page, page 18, is interesting because the hole surrounded by moisture shows signs of discolouration while the dry hole does not. In addition, the dry hole has split the sleeper because the screw was placed much too close to the edge of the sleeper. If screws are to be within an inch of the end of the board then pre-drilling is encouraged to minimize splitting. The screw locations represent very poor workmanship.

The photo in Ex 22 on page 14 shows a screw which has been removed from a deck. This screw which initially had a green coating has become brown in the threaded portion. The evidence suggests that galvanic action has been occurring. The screws are coated steel and the pressure treating preservative is typically copper based. Galvanic corrosion is an electrochemical process in which one metal (carbon steel) corrodes preferentially to another (copper the main ingredient in most preservatives) when both metals are in electrical contact and immersed in an electrolyte (in this case water). The anode metal (the screw) dissolves into the water and it is deposited nearby (on the pressure treated wood). The presence of water speeds up this corrosion process, which is effectively the rusting of the screws. The sleepers form a wide, slightly sloped, flat or perhaps even a cupped surface for any water to reach the threaded portion of one or more nearby screws. This rusting will doubtless reduce the life of these decks not likely in a few years but perhaps in a decade or so. The free draining decks proposed in the submitted plans would shed water far more effectively so such rusting would be minimized.

Mr. Pichler expressed concern about the short length of the screws. In Ex 22, the length of the screw can be seen. It is nominally a 1-3/4” screw which actually measures 1- 11/16”. The deck boards are nominally 1” inch thick but are slightly more, especially when moist, therefore assume 1-1/16”. The flat head of the screw should be level with the surface of the decking. Subtracting the deck board thickness from the screw length leaves 10/16” or 5/8” to penetrate into the sleeper. Of this 5/8” of penetration the first 1/4” is a conical point that offers very little resistance to withdrawal. This leaves about 3/8” to resistance a screw being pulled out of the sleeper. This is inadequate and good practice is that an absolute minimum of one inch of a screw should penetrate the receiving member. If the sleeper and/or the deck board is/are cupped at the time of installation the effective penetration could be even less.

Any warranty of pressure treated wood requires the application of one or sometimes even two coats of preservative at any end cuts. The preservative container indicates that the cut ends must be clean and dry at the time of application so that it will be absorbed into the previously untreated wood. Mr. Pichler testified that he saw no evidence of end preservation having been applied. Mr. Gilmour said he saw the preservative container on the deck and it was being used while construction was underway. Furthermore, he indicated that it was a clear wood preservative which was employed. This would be more difficult to observe than the typical green preservative.

Mr. Gilmour argued that the details of the deck construction were not known by purchasers at the time of their purchase, therefore, the test of equal or better is not relevant. This seems to invalidate the answer of Tarion to four of the Applicant’s five complaints that it “is an allowable substitution…” “The substituted item is of equal or better quality than the item referred to in the purchase agreement.” The Added Party argued that the equal or better test is not even relevant in that the purchasers did not know any details of the deck construction at the time of signing their APS.

The Performance Audit states that the spacing of the planks is not uniform. There may be a few local alignment problems, however, the recently taken photos in Ex 26 and Ex 27 show reasonable alignments of the deck boards on these decks.

Floor decking boards many of which are split, warped and cupped, split 4” x 4” posts, a leaky membrane and badly rusting steel, clearly do not represent a project that is “free from defects in work and materials”.

3. Warranties

Real-T though the sole proprietor, Mr. Gilmour, has provided both oral and written evidence that the membrane roof has a ten year warranty and the pressure treated decking material has a twenty year warranty. Despite both the Condominium Act requirement and the Tarion recommendation, the evidence of the Condo Board is that no warrantees regarding the common elements have been received to date. This lack of transfer has increased the length of this hearing as the materials used and the associated details of the warranties are not always known. Mr. Gilmour testified at the hearing “any problems with the decks I will fix them.” He has previously put in writing that Real-T who apparently holds these warranties, is a shell company with very limited assets. This apparent contradiction causes concern for the Condo Board.

ORDER

After considering the evidence and submissions, and pursuant to the authority vested in it under the Act, the Tribunal orders as follows.

The Performance Audit (27) noted the modified bitumen membrane was not properly secured at a number of locations. There was considerable evidence noting this concern including some by Mr. Gurunlian, Tarion’s expert.

Therefore, as soon as practical, the following warranty repairs of the membrane shall be completed; at fence posts, a cap sheet at the wall, at stair landing(s), and at drip edges until all water reaching the plywood sheathing has been eliminated. All work shall be consistent with the Membrane Manufacturer’s Guidelines.

Real-T shall provide the Condo Board with a copy of the written warranty for this membrane for a minimum period of 10 years from substantial completion.

A Board representative shall receive a demonstration of any required maintenance to ensure the membrane warranty remains in effect.

The Performance Audit (items 24, 26 & 29) expressed concern about: wet sleepers, poorly fastened planking, missing seal gaskets, inadequate screw length, the corrosion of screws, split fence posts, excessive cupping and lifting boards of deck boards from the sleepers. There was evidence supporting all of these concerns.

Following the repair of the membrane leaks and the installation of any missing seal gaskets the above mentioned concerns with respect to the exposed pressure treated decking material shall be corrected without any defects in work or materials.

Real-T shall provide the Condo Board with a written copy of the 20 year warranty for the pressure treated wood.

The parties shall cooperate in expediting as-built drawings to the City of Mississauga for building permit purposes.

Tarion will warrant the above membrane and deck repairs for one additional year.

Counsel for PSCP indicated at the hearing that the Applicant intends to seek costs associated with this appeal, which issue would be addressed by the parties subsequent to release of this decision. The Tribunal will therefore deal with the issue of costs upon the request from the parties, however, any such request must be made within 20 days of the release of this decision.

LICENCE APPEAL TRIBUNAL

___________________________

Ken Selby, Member

RELEASED: December 21, 2012