Licence Tribunal

Appeal d'appel en Tribunal matière de permis

DATE: 2013-03-01

FILE: 7395/ONHWPA

CASE NAME: 7395 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

-and-

Tarion Warranty Corporation Respondent

-and-

Namcon Limited Added Party

ADJUDICATOR: Kenneth W. Koprowski, Vice-Chair

For the Applicants: Self-represented, by one of the Applicants

For the Respondent: Ellie Choi, Counsel

For the Added Party: Nuno Machado, Agent

Heard in Toronto February 7, 2013

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 11, 2012, with respect to a new home purchased from Namcon Limited (the “Added Party”), in which Tarion denied the Applicants’ claim.

BACKGROUND

On July 6, 2009, the Applicants took possession of a house constructed by the Added Party. Beginning three to four months later, in the fall of 2009, the windows in the house failed in that water appeared in between the panes and created a haze or steam-like appearance that remained permanently, but less so in warmer months. The haze interfered with the view through the windows. The Applicants informed Tarion, the Added Party and the manufacturer of the windows soon after the defect appeared, and well within the first year after the Applicants took possession. The Added Party or the manufacturer replaced the defective windows from time to time. Some of the replaced windows provided by the manufacturer also had to be replaced.

The defective condition creating the collection of water in the windows continued and was still a problem as at the date of this hearing.

The Applicants did not list the defective windows in their 30-day form, submitted in July, 2009, because the problem started only during the cooler parts of that year. The problem was listed in the year-end form as it related to windows specified in that form. The problem continued unabated so that the Applicants listed the problem in the second-year form, but as it related, in that form, to different windows. Throughout the period during which the Applicants submitted the various forms, the Added Party and the manufacturer replaced the windows and Tarion was kept informed of the problem. No one involved in this matter was caught off-guard by the nature of the defect. All the parties were well aware of the situation from the beginning.

The Applicants kept Tarion, the builder and the window manufacturer aware of each window failure, from the time each one arose, on a regular basis. Approximately 88 per cent of the windows installed by the Added Party had to be replaced.

In the meantime, the window manufacturer has gone bankrupt. The Added Party has refused to replace any more windows and the Applicants have had to expend their own funds to replace windows that continued to show the symptoms of the defect. The windows that the Applicants had replaced by another company are now problem-free. The Applicant wishes to recover his expenses for having to replace the windows by a different installer as well as for the estimated amount to replace 5 additional originally-installed windows that he feels will show the defect in the future, although they have not exhibited the problem to date.

Tarion has denied the claim on the ground that the windows listed in the second-year form were not the windows that were properly listed in the first-year form, so that they are a new claim and, since no water was entering the house through the windows, the newly-listed windows were not subject to a second-year, water penetration claim.

The Applicants appealed to the Tribunal.

FACTS

The facts are not in dispute.

Of the two Applicants, who are husband and wife, only the husband testified at this hearing. He is referred to as the “Applicant” in these reasons.

The Applicants prepared and filed as Exhibit #4 a chronological timeline summarizing the dates on which the defective window problems appeared and the remedial actions that the manufacturer or the builder took and the remedial action the Applicants took. It also sets out the amounts that the Applicants spent to correct the problems when the manufacturer and the Added Party could no longer be counted on to replace the defective windows. The Respondent accepted the timeline as the evidence of the Applicants. The Added Party took no position concerning the timeline’s accuracy. Neither the Respondent nor the Added Party provided any evidence to challenge or contradict the contents of the timeline. The Tribunal, therefore, accepts the timeline as an accurate summary of the facts contained in it.

On July 6, 2009, the Applicants took possession of their house.

There was no controversy at this hearing as to whether the Applicants submitted the various claim forms to Tarion on time. Counsel for the Respondent informed this Tribunal that the Respondent agreed that the Applicants filed all forms within the limitation periods specified in the legislation.

On July 31, 2009, the Applicants submitted their 30-day claim form (Tab 3 Exhibit #3). No windows were listed in this form as being defective. The problem had not yet appeared.

About three or four months after taking possession, during the first cold months of the year in about September or October, and as the temperature decreased, water appeared in between the two panes of some of the windows. The Applicant described the appearance as “smokey” or like a “haze.” The Applicant stressed that it was not condensation from humidity in the house. It was actually water between the two panes of glass. The other parties offered no evidence to contradict that testimony. Sometimes the entire pane was covered. Other times, only a portion was covered. The photographs filed as Exhibits 5, 7 and 8, taken by the Applicant, were illustrative of the problems experienced in all the windows that failed. Exhibit #5 was taken in the fall of 2009.The windows were in a vinyl frame and were double-paned.

The Applicant stressed that this condition has lasted since the Applicants took possession. Approximately 88 per cent of the windows have had to be replaced (36 of 41), and some replaced windows had to be replaced because they, too, failed.

Only the sealed glass units had to be replaced, not the entire vinyl window frame.

The Applicant first notified the builder of the problem on January 10, 2010. As each new window failed, the Applicants informed the builder and Tarion. The builder would act, at the beginning, to replace the windows, sometimes on its own, but sometimes only after pressure from either the Applicants or from Tarion.

On June 13, 2010, the Applicants filed the one-year claim form (Tab 4 Exhibit #3) with Tarion. It listed five particular windows as being defective as at the date of the form. The windows were replaced in December, 2010.

There were two other window failures subsequently, in addition to those listed in the one-year claim form, that the manufacturer of the windows replaced, also in December, 2010. The manufacturer replaced only those two windows. The Applicant stated that the manufacturer was a source of much frustration. Eventually, a trustee in bankruptcy called the Applicants and informed them that the manufacturer had gone bankrupt.

The Applicants continued to report the problems to Tarion and to the builder as they saw them.

On December 17, 2010, Tarion’s Field Claim Representative (“FCR”), Ms. Hallett, performed a conciliation inspection at the Applicants’ house in order to prepare a Warranty Assessment Report (“WAR”), found at Tab 5 of Exhibit #3. Ms. Hallett did not warrant the window failures listed in the first-year form because the Added Party and the manufacturer had already replaced the defective windows by the time she did her inspection.

The Applicants submitted their second-year claim form (Tab 6, Exhibit #3) on December 22, 2010, five days after the conciliation inspection, but before the WAR was prepared on January 4, 2011. In the second-year form, the Applicants listed 13 new window failures and one repeat failure of a window that the manufacturer had replaced previously, but which had not been listed on the year-end claim form because it had failed after that form was submitted.

The Applicants actually filed three second-year claim forms because of the continuing window failures. They filed their second form on January 26, 2011 (Tab 8, Exhibit #3). In it, four new window failures were reported as well as three repeat failures. One such repeat failure was a window that failed for a third time. Two others failed for a second time.

On March 5, 2011, the Applicants submitted their third second-year form (Tab 9, Exhibit #3), listing one new window failure.

On June 20, 2011, Ms. Hallett performed yet another inspection and prepared a further WAR (Tab 7, Exhibit #3). That inspection was done in the summer, but the Tribunal notes that the window failures occurred during the fall, winter and spring months, not the summer months. Again, Ms. Hallett declared that the failed windows were not warranted because the manufacturer had already agreed to replace them. On page 2 of her WAR, she states, concerning the failed windows:

The following item(s) are not warranted:

Reason: The homeowner stated the window issues are carried over from the Year End; a few of the windows have yet to be replaced. The homeowner stated that [the manufacturer of the windows] intends on replacing all of the failed windows.

The windows were not inspected during the 2^nd Year inspection.

The builder stated the windows that have failed will be replaced, and the manufacture (sic) is working on getting the windows replaced. There is no water penetration through the building envelope of the home that amounts to a breach of the Two Year Water Penetration Warranty-Building Envelope.

(Bold print is in the original)

On August 8, 2011, Ms. Hallett performed yet another inspection and prepared a WAR (Tab 10, Exhibit #3) dated August 17, 2011. She states in the WAR, based on her inspection on August 8, that no condensation was noted on the particular windows that she inspected. This observation is not surprising, inasmuch as the problem never manifested itself until the cooler months.

The Applicants then took it upon themselves to have failed windows replaced by a contractor of their choosing. They took this course of action for two reasons. First, Tarion refused to do anything because Tarion’s position was that the window failures were not a second-year issue. Second, the Applicants’ relationship with the builder had sourred. The builder had been chastised by Tarion for not having completed repairs in the house. By the fall of 2011, the Applicants could not work directly with the Added Party or with the manufacturer of the windows. They were no longer being responsive to the Applicants’ calls. The windows, the Applicant stated, were only a part of a litany of problems with the house.

In October, 2011, eight new window failures were replaced at a cost of $2,910.00 (see their receipt, Exhibit #6).

In the fall of 2012, just after the pre-hearing was held in this matter, three new window failures occurred. In response to the request from Tarion, the Applicants provided an estimate for the cost of the replacement of those three windows, found on page 8 of Exhibit #4. The estimate is in the amount of $1,140.00.

The Applicants also obtained an estimate for the replacement of 5 originally-installed windows which had not yet failed. The Applicant stated that he expected them to fail, as well, since all the other windows had failed. The estimate for replacing them is found on page 8 of Exhibit #4, in the amount of $1,790.00.

The Applicant stated that none of the windows replaced by a different contractor had failed.

Both Tarion and the Added Party agreed that there was a defect in the windows. The only issue was whether those failures were covered by warranty under the Act.

In response to questioning from Counsel for the Respondent, the Applicant acknowledged that they could still use the rooms in which the window failures occurred, but the windows were not clear. But, the problem with the windows existed since shortly after the Applicants took possession of the house.

On the second-year forms, the Applicants claimed under the heading “water penetration” because that is what they were told to do when they called the Tarion office. There was water in the window pane, but not anywhere else in the house. The Applicant also acknowledged to Counsel for Tarion that the failures in the second-year form were new failures, but they failed because of the same defect that was in the windows from the beginning. The windows continued to fail and Ms. Hallett, Tarion’s FCR, was aware of that.

Mr. Machado suggested to the Applicant that, when Mr. Machado was in the house, the water mark would disappear as the sun shone on the window. But, the Applicant stated that a haze still remained in the colder months.

To his credit, Mr. Machado, agent for the Added Party, admitted that a defect existed. The only question in his mind was whether that could be classified as water penetration.

Ms. Hallett, as well, admitted that she was kept aware on an on-going basis of the window failures and that the Applicants kept her and the builder informed of the failures.

Counsel for Tarion also informed the Tribunal that there is no dispute that the Applicants provided information to Tarion about the window failures.

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

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;

(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.

If a homeowner makes a claim under the Act, there are specific limitation periods within which the homeowner must submit a claim, failing which, the claim fails for having been submitted too late. The relevant claims that apply to this case are the initial claim (the “30-day claim”), the year-end claim and the second-year claim.

Those limitation periods are defined in section 1 of Part 1 of Regulation 892 R.R.O. 1990, made under the Act.

The initial claim period is defined as follows:

“initial claim period” means the following period with respect to a warranty claim with respect to a home:

The 31-day period beginning immediately after the date of possession, if the home has a date of possession on or after September 1, 2005;

The year-end claim period is defined as follows:

“year-end claim period” means the following period with respect to a warranty claim with respect to a home:

The 31-day period ending on the first anniversary of the date of possession, if the home has a date of possession on or after September 1, 2005;

The second-year claim period is defined as follows:

“second-year claim period” means,

(a) the period beginning immediately after the first anniversary of the date of possession and ending on the second anniversary of the date of possession, in the case of a warranty claim made under section 4.4, ….

Section 4.4 of the Regulation relates to claims made with respect to a house as opposed to a claim relating to common elements in a condominium, the latter being treated separately in section 5.6

ISSUE

The issues that the Tribunal has been called upon to decide are:

Whether the defect in the windows that are the subject of this appeal is a breach of the statutory warranty under section 13(1) of the Act?
Whether the Applicants’ claim fails because they were out of time in making a claim for the defect in the windows after the year-end form had been submitted?

FINDINGS

On the evidence presented to the Tribunal, and for the reasons that follow, the Tribunal finds as follows:

The defect in the windows is a breach of the statutory warranty.
The Applicants’ claim does not fail for having been made out of time.

APPLICATION OF LAW TO FACTS

The evidence before this Tribunal confirms that the Applicants complied with all the requirements to file the necessary claim forms within the time periods set out in Regulation 892 under the Act. The Respondent acknowledged that. The Added Party did not contest the matter.

The Applicants have also proved, on a balance of probabilities, that the breaches complained of are breaches of the warranty that the home is constructed free from defects in material (section 13(1)(a)(i) of the Act). The Added Party acknowledged that. The evidence of the defective windows loudly proclaims that.

However, one of the submissions put forward by Counsel for the Respondent that the Applicants’ claim should be dismissed was that there was no evidence proving there was a failure of each and every window for which the Applicants are making a claim. Counsel relied on the testimony of Ms. Hallett who stated that, when she performed her inspections, she saw no evidence of the defect.

With that submission, the Tribunal disagrees. On the contrary, there is ample evidence to support the Applicants’ claim. The Applicant gave evidence that was uncontradicted and unchallenged.

Ms. Hallett did not see any defect during her inspection on December 17, 2010, because the windows that were reported to have been affected by the defect had been replaced already, either by the Added Party or by the manufacturer of the windows.

Ms. Hallett saw no condensation or other signs of the defect during her two inspections during the summer months of 2011 because, as the Applicant testified, the problem of water between the panes of glass did not manifest itself until the colder months.

The evidence of the Applicant that conflicts with the evidence of Ms. Hallett was based on observations that the Applicants made throughout the year. Ms. Hallett’s time at the Applicants’ residence during her inspections could be measured in minutes, at most, hours. On the other hand, the Applicants resided in the house throughout the entire year. Where, therefore, the evidence of the Applicant is in conflict with that of the Respondent concerning the appearance of water in the window pane, the Tribunal prefers the evidence of the Applicant.

Furthermore, Counsel for the Respondent submitted that the Applicants were too late in reporting the defective windows in the three second-year forms because the defect in those particular windows listed on the forms was reported too late, notwithstanding that the underlying defect in the windows had already been reported in the year-end form. That submission also ignores the unchallenged evidence of the Applicant that the Applicants kept the Respondent, the Added Party and the manufacturer informed about the defect from the beginning and kept them informed about each window as it became affected by the defect. The Applicant reported the defect in the second-year form under the heading “water penetration” because that is what he was told to do by someone at Tarion’s office. That evidence was admissible hearsay because the Applicant proffered it, not to prove the truth of the instructions, but to explain why he filled out the form the way he did.

The uncontradicted evidence from the Applicant is that all parties were aware and were kept aware of the defect from the time it first arose in the first year of occupation. The Respondent and the Added Party were not caught by surprise by the report of the defect in the second-year form. The defect had already raised its ugly head in the house in the first year, it was properly reported in the year-end claim form and the defect continued until the hearing of this matter. The Added Party took steps to replace the windows, thereby recognizing that the defect was legitimate.

In support of the Respondent’s submission that the windows listed in the second-year form were reported out of time, Counsel referred this Tribunal to several Decisions of this Tribunal.

The first case was the case 5031-ONHWPA-Claim [2009] O.L.A.T.D. No. 48, released February 5, 2009. Counsel relied on, among other things, the following passages at paragraphs 15 and 17 of the Decision where the Vice Chair states:

15…Regardless of the wording of the Homeowners' Agreement of Purchase and Sale, the Homeowner Information Package, or the Construction Performance Guidelines, the Tribunal has no legal authority to order Tarion to honour claims for items falling outside the terms of the warranties provided by the Act. See, for example, the case of Chewerda (Re) [1997] O.C.R.A.T.D. No. 49, cited by Counsel for Tarion, where the predecessor of this Tribunal held that the Tribunal cannot extend the time for making a warranty claim even by one day.

17 …Items that are listed only under the provision describing one-year warranties must clearly be made within that period and only within that period.

In that decision, the Applicants’ claims were dismissed. But, that case can be distinguished from the matter now before this Tribunal. In 5031-ONHWPA-Claim, the matters complained of (condensation and ice on windows) were not reported in the first year. They were contained in the second-year form almost two years after the Applicants took possession. In contrast, in the present case, the Applicants reported the defect, not only in the year-end claim, on time, but also to the Respondent and to the Added Party and to the manufacturer before that form had to be submitted. The Applicants in the instant case were not late in reporting the defect, as the Applicants were in the above case.

Counsel also referred the Tribunal to the case Re: Deneau [2006] O.L.A.T.D. No. 7, released January 25, 2006. That was a situation where the Applicants filed their year-end claim one day past the limitation period. At paragraph 46 of that decision, the Vice Chair states:

46 While the Tribunal recognizes that no real prejudice would befall Tarion if it was ordered to accept a claim that was made on June 20 instead of June 19, as the learned Vice-Chair McIntosh held in the case of Re Metropolitan Condominium Corporation No. 1223 (2001), this Tribunal simply does not have the jurisdiction to extend the time for claiming under the warranty period.

For being one day late in filing a year-end claim form, the Applicants’ appeal in Deneau was dismissed.

However, that case can also be distinguished from the case now before the Tribunal because, in this case, the Applicants were not at all late in submitting the year-end claim form.

In addition, Counsel referred the Tribunal to the case 6428-ONHWPA-Claim [2011] O.L.A.T.D. No. 256, released October 21, 2011.In that case, all claims of the Applicants were dismissed. They had filed their year-end claim form on time. They settled with Tarion on the outstanding claims. The Applicants then submitted a second-year claim form containing some new items that were listed only in that form. Some items in the second-year form were also in the year-end form but those items were not considered to be warranted or were settled or signed off by the homeowners. All the defects for which warranty coverage was claimed were brought forward for the first time long after the expiration of the prescribed period for the submission of first year warranty claims.

At paragraph 20 of the decision, the Vice Chair states:

20 …The difficulty the homeowners face before this Tribunal is that, apart from the items which were brought forward and settled as part of the Year-End warranty conciliation process, all of the defects for which warranty coverage is now claimed, were brought forward for the first time long after the expiration of the prescribed period for the submission of first year warranty claims.

The above case can also be distinguished from the case before this Tribunal. In the instant case, the Applicants reported all the first year warranty claims on time. The foundational defect that caused the water between the panes of glass on the windows was reported in the year-end claim, as it should have been.

But, the Respondent in this case takes the position that, because, in the second-year form, the particular windows that accumulated water had not been reported in the year-end form, the Applicants’ claim was out of time, notwithstanding the fact that the defect that caused the problems in the windows listed in the year-end form was exactly the same defect that caused the problems in the windows that were listed in the second-year form.

The parties in this case must not lose sight of the fact that the Act is remedial consumer protection legislation. Thus, it should be given a fair, broad and liberal interpretation. The cases in support of this principle are cited in a decision of this Tribunal, 5558-ONHWPA-Claim [2011] O.L.A.T.D. No. 246, dated October 20, 2011, beginning at paragraph 237, where it states:

237 It is now well settled that the Act is remedial consumer protection legislation and should be given a fair, broad and liberal interpretation. The Ontario Court of Appeal in Mandos v. Ontario New Home Warranty Program 1995 CanLII 3158 (ON CA), [1995] O.J. No. 3647, in its oral endorsement, states:

The Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O-31 is remedial legislation and should be given a fair and liberal interpretation.

238 Further, in Markey v. Tarion Warranty Corporation [2006] O.J. No. 2929 (Ontario Superior Court of Justice, Divisional Court) it is stated, in paragraph 5 of the decision:

The New Home Warranties Plan Act, R.S.O. 1990, c. O.31 is consumer protection legislation and should be given a broad and liberal interpretation.

239 Also, in Cecilio v. Tarion Warranty Corp. [2007] O.J. No. 1692, (Ontario Superior Court of Justice, Divisional Court) the Court states, at paragraph 28 of the decision, referring to the Ontario New Home Warranties Plan Act as "the ONWHP Act":

The third factor is the purpose of the ONHWP Act. It is clearly remedial consumer protection legislation and should be liberally construed and this court has so held ...

240 The case to which the Court in Cecilio refers in making that pronouncement is the case Grudzinski v. Ontario New Home Warranty Program 1997 CanLII 16252 (ON CTGD), [1997] O.J. No. 291; 32 O.R. (3d) 376, a decision of the Divisional Court of the Ontario Court (General Division) as it was then known.

Giving the legislation a fair, broad and liberal interpretation in the instant case, the Tribunal holds that the Applicants reported the defect in time. The particular windows that were affected by the defect were reported beyond the year-end time period, but the ultimate cause was the defect that was noted and reported in proper time.

To deny the Applicants their remedy in this case because they lacked the prophetic insight as to when a particular window might succumb to the defect that arose in the first year and remained thereafter is, in the circumstances of this case, unreasonable and antithetical to the consumer protection nature and character of the legislation.

As well, the nature of the defect does not fall within any of the exclusions in section 13(2) of the Act.

The Tribunal notes that the Tribunal decision in Deneau, released January 25, 2006, pre-dated the decisions in Markey [dated July 11, 2006] and Cecilio [dated April 12, 2007].

The Vice Chairs in the Tribunal decisions 5031-ONHWPA-Claim, released February 5, 2009, and 6428-ONHWPA-Claim, released October 21, 2011, did not have the benefit of having cited to them, or at least did not refer to, either the Markey or Cecilio cases or the Mandos decision [dated November 29, 1995] or the Grudzinski decision [dated January 29, 1997].

Previous Tribunal decisions are not binding on this Tribunal, although they may be persuasive. Every case must be decided on its particular facts. The instant case is very fact-specific. The defect in the windows was reported on time in the year-end form. All other windows reported were subject to the same defect and, although the Applicants could not foresee which particular window would fall prey to the defect, or when the windows would manifest the defect, the fact remains that the defect was the subject of the claim, and the claim was reported on time. Applying a fair, broad and liberal interpretation to the legislation, it is the defect that was reported on time, and that was the substance of the claim.

Therefore, the Tribunal allows the Applicants’ claim for the windows that have been replaced and the three windows that have been identified as now having to be replaced in the total amount of $4,050.00 ($2,910.00 plus $1,140.00).

This finding should not be taken to mean that the Applicants’ claim is open-ended. There comes a point in time when finality of litigation must be reached and, in this case, the Applicants have reached that point, at least in relation to proceedings before this Tribunal on this appeal. They have listed the windows that are the subject of this appeal. The Tribunal may consider only those items under appeal. The finding made by this Tribunal has been based on the specific facts and circumstances of this case and the allowance of the Applicants’ claim is restricted to this particular fact situation. Each case must be decided on its own merits, as mandated by section 2 of the Statutory Powers Procedure Act R.S.O. 1990 c. S.22 that reads as follows:

This Act, and any rule made by a tribunal under subsection 17.1 (4) or section 25.1, shall be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits.

(Emphasis is added)

Having said that, the Tribunal does not accept the Applicants’ claim for damages for the five windows that might yet be affected by the defect. The Tribunal accepts the claim for the windows that have shown the effects of the defects. The defect in those windows can be and has been proved. As for the remaining five windows, they were the original windows. They have not fallen prey to the defect and, therefore, the Applicants have not proved, on a balance of probabilities, that those windows represent a breach of the warranty under section 13(1)(a)(i) of the Act., as they have been able to prove with respect to the other windows. To say that the five windows might need replacing after this length of time is speculative only. There is no evidence that they will need replacing. In the absence of such evidence, the Tribunal dismisses the Applicants’ claim for the amount of $1,790.00 relating to the five windows not affected by the defect.

ORDER

For the reasons stated above, and pursuant to the authority vested in it by section 16(3) of the Ontario New Home Warranties Plan Act, the appeal is allowed. The Tribunal substitutes its opinion for that of Tarion and directs that the Applicants’ claim is warranted and that Tarion pay to the Applicants the sum of $4,050.00 (plus HST on the the amount of $1140.00 if applicable).

LICENCE APPEAL TRIBUNAL

Kenneth W. Koprowski Vice Chair

Released: March 1, 2013

7395 v. Tarion Warranty Corporation, 2013 CanLII 11905

Case Summary