Licence Tribunal
Appeal d'appel en Tribunal matière de permis
DATE: 2013-07-04
FILE: 7871/ONHWPA
CASE NAME: 7871 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
Applicant Applicant
-and-
Tarion Warranty Corporation Respondent
-and-
John Bruce Robinson Construction Ltd. Added Party
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Keith Penner, Member
APPEARANCES:
For the Applicants: The Applicant’s Sister, as Agent
For the Respondent: Marshall Reinhart, Counsel
For the Added Party: Suzanne Pare, Agent
Heard in Toronto June 3,4,5 & June 11,12,13, 2013
REASONS FOR DECISION AND ORDER
This is an appeal by the Applicant to the Licence Appeal Tribunal (the “Tribunal”) from a Decision Letter of Tarion Warranty Corporation (“Tarion”) dated January 10, 2013, with respect to a new home purchased from, John Bruce Robinson Construction Ltd., (the “Added Party”), in which Tarion denied (in part) the Applicant's claims.
PRELIMINARY MATTERS
The Applicant filed a Notice of Motion with the Tribunal dated March 24, 2013, seeking to exclude certain evidence from the hearing. At the hearing, the motion was amended so as to exclude only the testimony of Mr. Wes Henry of Safetech Environmental Ltd. and that of Mr. Tim Evans of Tarion Warranty Corporation. Additionally, the motion sought to exclude the contents in Tab # 10 of the Book of Documents of the Added Party.
In support of the motion, the Applicant argued that neither of these witnesses had ever attended the home and consequently had no direct knowledge of the situation. Further, it was argued that Mr. Tim Evans of Tarion had not authored the Decision Letter now under appeal.
Regarding Tab # 10, the Applicant noted that references were made to settlement discussions that had occurred during the Pre-hearing. It was argued by the Applicant that any such discussions were meant to proceed without prejudice.
The Tribunal, in ruling on the motion to exclude the testimony of Mr. Wes Henry and Mr. Tim Evans, took into consideration the likely relevance of the evidence to be given by these witnesses against the possible harm or prejudice that may be caused to the Applicant.
The Tribunal considered the testimony of Mr. Henry and Mr. Evans to be pertinent to a fair hearing. Any concerns of the Applicant about harm, could easily be overcome by way of posing appropriate questions to these witnesses during cross examination. Under S.15 of the Statutory Powers Procedure Act, the Tribunal may admit any oral testimony and any document that is relevant to the subject-matter of the proceeding. As to whether the proposed witnesses have attended the home or have direct knowledge of the matter is a question of weight to be given to the evidence.
As to the exclusion of the contents of Tab # 10, the Tribunal upheld the motion and agreed with the Applicant that settlement discussions during a Pre-hearing are without prejudice and any reference to them at a hearing is inadmissible. The Tribunal, in encouraging such settlement discussions, deems it essential to protect the integrity of the process.
Neither the Respondent nor the Added Party argued to the contrary with reference to Tab #10.
BACKGROUND
The Applicant took possession of the home on May 20, 2011. The claims for warranty were made within the appropriate time period.
Tarion inspected the home on November 26, 2012 and a Warranty Assessment Report was issued on December 26, 2012.
A Decision Letter was requested by the Applicant on January 7, 2013 and was subsequently issued on January 10, 2013. The Notice of Appeal with respect to this Decision Letter is dated January 22, 2013.
ISSUES
The issues to be decided in these proceedings are:
Following extensive mould remediation work done in the home, is there still residual mould on the Oriented Strand Board (OSB) subfloor of the first floor exposed in the basement and on some of the beam joists? If there continues to be some mould in the basement, is it microscopic mould which may impact on the air quality within the home? Is the home now or has it been since the date of possession, unfit for habitation?
Even if any residual mould is determined to be dormant, should further remediation be done to assure the Applicant that the basement can be fully utilized without concern that this mould may become re-activated?
Related to the mould issue, the Tribunal must also determine whether the Applicant, after taking possession of the home, failed in his duty to mitigate, by not adequately attending to the home in order to ensure that humidity levels were such that further mould growth did not occur.
If residual mould is determined to be present in the Applicant’s home, is it a warrantable item under the terms of the New Home Warranties Act?
The Applicant is claiming that an incorrect stain colour has been applied to the stairs in his home. The Tribunal must determine whether the stain colour applied by the builder was, in fact, “Gunstock”, when the homeowner specifically requested that the stain colour be “English-Chestnut”. Has the wrong colour been used on the stairs of the Applicant’s home?
A rough-in for the central vacuum system has been installed by the builder in the basement of the Applicant’s home. A separate, dedicated line for the central vacuum system is located in the garage. The Applicant alleges that the rough-in and the line were to be together in the garage and is seeking the cost of having the current rough-in relocated into the garage. The Tribunal must determine whether this is a warrantable item under the terms of the New Home Warranties Act.
In his Notice of Appeal, the Applicant alleges that he was unable to live in the house because of the extensive mould in the basement, caused by the builder’s improper construction methods. As a consequence, he is claiming the costs for not being in the home but having to maintain it. He lists such costs as: accommodation, moving, utilities, mortgage interest, condominium fees, taxes, legal costs, mould report costs and other such items related to being unable to live in the home. The total amount claimed by the Applicant for these listed costs is $ 42,671.91. The Tribunal must determine, in accord with the terms of the New Home Warranties Act and its Regulations, which, if any, of these costs may be awarded to the Applicant.
EVIDENCE:
THE APPLICANT’S EVIDENCE:
The Applicant’s sister, acting as Agent for the Applicant, called two expert witnesses in addition to the Applicant and herself.
Tara Valley:
This witness is a certified mould inspector and currently oversees the staff operating as environmental consultants for the Environmental Services Group (ESG). She qualified as an expert.
Ms. Valley visited the Applicant’s home on February 23, 2012 in order to determine the state of the basement with respect to the presence of any physical mould growth. Her report was given to the Applicant on February 29, 2012 and it indicated areas of concern with respect to microbial mould growth. Mould remediation was recommended and there should be minimal occupancy in the basement. At the time of her inspection, she noted that the relative humidity was below 50% and a dehumidifier was being used.
Counsel for Tarion asked the witness about her statement “mould remediation will be required to consider the home acceptable for general occupancy”. Her response was that the Applicant should not spend too much time in the basement. When further asked about occupancy in the reminder of the home, she replied that it could be lived in, but with limitations with regard to the basement. Questioned as to whether the home was fit for habitation, she replied by saying that mould remediation was recommended for the basement.
Mr. Michael Chymycz:
Mr. Chymycz is the Operations Construction Manager and contract consultant with Gemco Engineering and Environmental Inc. He qualified as an expert. On February 27, 2013, Gemco was retained by the Applicant to perform indoor air quality testing and surface sampling in the Applicant’s home. The Gemco Report was issued on March 7, 2013.
The report indicated that, at the time of the assessment, there was visible suspected mould growth and/or staining in and around the joist/beam pockets along the northwest and northeast walls of the basement. Indoor air quality was reported to be normal in all of the assessed areas.
The Gemco Report stated: “based on the visual, instrumental and laboratory analysis performed, suspect mould contamination was evident in and around joist/beam pockets along the North and North East walls within the basement”. Professional mould remediation was recommended.
On cross examination by Counsel for Tarion, Mr. Chymycz agreed that the residual mould detected by Gemco could be dormant. He explained to the Tribunal that this meant the mould observed was not likely producing spores that could spread throughout the residence. He added that such mould, if disturbed could become active. He repeated that remediation in the area identified was recommended.
Upon further questioning, the witness confirmed that in all areas assessed, the air quality in the home was judged to be normal. He noted that he was not able to say that the home was unfit for occupancy.
The witness added that when mould remedial work is in progress, the home should be vacated by all except for those doing the remediation. The area in which the work was to be conducted needed to be sealed. Mr. Chymycz recommended dry-ice blasting as being the most effective method to remove all of the existing mould. This method had been used by Mouldoff, but the witness explained that special attention is needed when difficult to access areas are being cleaned. It is not always easy for the technicians to get all of the mould in these places.
The Applicant:
The Applicant testified on his own behalf. He indicated that he does not accept the conclusion of Tarion, supported by the Safetech Report, that the basement presently is deemed to be adequately cleaned and satisfactorily remediated of mould growth. He does not accept Tarion’s assessment that the home is entirely and completely fit for occupancy. When asked by Counsel for Tarion why he rejected even the testimony of his own experts that the home was now and previously had been fit to live in, he replied that his own common sense dictated that he not move into a home so long as any mould was present.
The recommendation from Gemco, that further mould remediation be done in the home, was fully supported by the Applicant. When asked by the Tribunal what he thought such work would cost, he submitted an estimate and work authorization record from Symmetry Contracting Ltd. in the amount of $ 9,314.76, including HST. This estimate was tested by the Respondent, but not dismissed as being inaccurate.
The Applicant indicated that he should be compensated for the costs associated with his inability to live healthily in his new home. He told the Tribunal that there was a precedent from other Tribunal decisions ordering that such cost be paid. He cited the LAT Decision 5853/ONHWPA, where similar costs had, he said, been awarded to that Applicant.
The Applicant, in testifying, with respect to the issue of the stain colour that was applied to the stairs in his home, was adamant that the wrong colour had been used. He noted that he had quite specifically requested “English-Chestnut”, but what was applied to his stairs was unquestionably “Gunstock”. He presented a coloured photo to the Tribunal, in which Minwax samples were placed on his stairs and it was abundantly evident from this picture, he argued, that what he got was not “English-Chestnut” stain but “Gunstock”.
The Applicant further insisted that Mr. Ernie Bodi, when he arrived at the home to do some re-staining, had confirmed that the colour used was not the one asked for by the Applicant.
Counsel for Tarion produced other coloured photos of the stained stairs in question. When shown to the Applicant, Counsel endeavoured to indicate that there could be uncertainty and ambiguity in trying to determine precisely a particular stain colour, using only a photo. Much depended on the quality of the light at the time the picture was taken, the type of camera used and whether or not a flash attachment had been deployed.
Finally, the Applicant told the Tribunal that it was clearly his understanding that the exit point for the central vacuum system would be located in the garage. In his view, it made no sense to have the central-vac rough-in placed in the basement, when the electrical outlet needed to plug in the canister was in the garage.
The Sister of the Applicant:
Although acting as Agent for the Applicant, there was no objection from the other parties to having her provide direct evidence. The Tribunal, accordingly, allowed it.
The witness noted that her brother was excited about moving into his new home but the mould problem in the basement prevented him from doing so. She stated that he was concerned about his health if he did take up residence in the home. Even after the extensive remediation work was completed, she believed, based on the assessment from Gemco that a serious amount of mould remained in the basement of the home. In her view, the home had not been fully and completely remediated from the mould contamination.
In testifying with regard to the issue of the stain colour used on the stairs in the home, the witness stated that the evidence provided by the photo of the Miniwax stain samples placed on the stairs in the home was conclusive. The photo proved, she said, that the wrong colour had been used.
In arguing for the validity of photographic evidence, the witness referred to R. v. Kerr, 2011 ONCJ 492, in which Justice L. Feldman wrote at paragraph [20] that “photographic evidence tends to enhance the objective reliability of the …evidence”.
As well, she confirmed her brother’s testimony that the painter, Ernie Bodi, had agreed, when he was in the home, that the colour used was not the one that had been requested by the Applicant.
On the matter of the compensation being claimed by her brother, the witness referred to Tarion Warranty Corporation v. Kozy, 2011 ONCA, where the court observed at paragraph [13] that …” the Act (the Ontario New Home Warranties Act), to assure public protection, provides warranties… and compensation in the event of loss by a purchaser in dealing with a registrant (builder). In order to effect this purpose, a broad and liberal interpretation of its provisions is appropriate”.
On the central-vac issue, the witness testified that her understanding from the builder was that the rough-in for the system would be in the garage. She agreed with her brother that you could not even install a canister in the basement if the electrical outlet was located in the garage.
THE RESPONDENT’S EVIDENCE:
The only witness for the Respondent was Mr. Tim Evans, who is the Warranty Service Manager for Tarion. Mr. Mark Bodogh, the Warranty Service Representative, who drafted the Decision Letter for this claim, is no longer employed by Tarion and so could not appear. Mr. Bodogh reported to Mr. Evans, who had reviewed the Decision Letter before it was issued.
Mr. Evans outlined the Tarion process for dealing with warranted items. He noted that the Applicant, in his 30-Day Form, dated June 20, 2012, had itemized the mould growth on the underside of the subfloor, exposed in the basement, and on some of the joists.
In the Year-End Form, dated May 28, 2012, the Applicant indicated again that the OSB subfloor was contaminated with mould fungus. Tarion engaged Doug Dupuis of Micro Mould Inspection and Remediation Organization to investigate. The findings, in a report dated July 17, 2012, noted visible mould on the floor sheathing and floor joists in the basement area. The initial cause for this mould was deemed to have occurred during the time of construction.
The vendor of the home then retained Mouldoff Inc., to undertake remediation work in the basement of the home. This remedial work was done during three visits by this company to the Applicant’s home. A post-remediation inspection was conducted by Safetech Environmental Ltd., and, as stated in the Decision Letter, the remediated basement was deemed to have been adequately clear of mould growth and the home considered fit for occupancy.
Mr. Evans, in his testimony, reiterated the view that there was no reason to believe that the home was not fit to be occupied. He added that even during the time that the remedial work was being conducted, the home could have been used, except when those doing the remediation were actually on the premises. When all the remediation work was completed, Mr. Evans was of the opinion that the home could be lived in, except for minimal activity in the basement. It was his view that the mould concerns had been substantially and satisfactorily resolved.
Referring to the site visit on October 30, 2012, when the Applicant pointed out some dark areas deep in the joist pockets, Mr. Evans testified that Tarion was of the opinion that what was observed was not the presence of mould, but rather some staining that had remained.
Mr. Evans spoke to the compensation issue indicating that Tarion did make discretionary payments to homeowners in emergency situations where the residence was deemed to be unfit for occupancy. These payments were quite limited in scope and the practice of Tarion in this regard had no applicability to this Applicant or his home.
On the central-vac issue, Mr. Evans noted that the rough-in for such a system is usually located in the basement and the piping installed can easily be re-directed to the garage by a central-vacuum installer.
The matter of the central-vac was a contractual issue between the home buyer and the builder. There was no defect in workmanship involved here and no question of substitution. The item was not a warrantable one, in accord with the New Home Warranties Act.
Mr. Evans noted that the Applicant had paid an additional amount in order to have an upgrade to maple wood stairs in the home. This cost included having the stairs stained. In his view, the Applicant got the colour he selected.
EVIDENCE OF THE ADDED PARTY:
Ms. Suzanne Pare, Agent for the Added Party, called eight witnesses. Ms. Pare led the questioning of the witnesses and each was cross examined by the Applicant and the Respondent.
Mr. Dave Hope
Mr. Hope is a registrant in good standing with the Institute of Inspection Cleaning and Restoration Certification (IICRC). He is currently an employee with Mouldoff Inc., a firm which is certified by IICRC. He inspected the Applicant’s home and began the mould remediation work in August, 2012. The methods used for the remedial work included vacuuming, hand scrubbing and dry-ice blasting. When the remediation was completed, it was tested by Safetech and, in due course, the work done was approved.
Mr. Hope, in his testimony conceded that some spots could be missed when using the dry-ice technique for the remediation of mould. Some tight spaces are difficult to access and the blow-back from the dry ice often reduces visibility. He also noted that this method of cleaning may result in some staining that remains. He concluded that that there could be human error and dry-icing may need to be repeated if tests indicated that mould was still present in and around the joists of a home.
As for his work and that of Mouldoff, Mr. Hope stated that they relied on Safetech to assess the results. With respect to the Applicant’s home, Mr. Hope stated that the inspection that was carried out showed no further remediation was required. If Safetech had decided otherwise, Mouldoff would certainly have done the additional work.
Mr. Hope’s opinion was that no microbial mould growth remained in the home. What did remain following remediation was either stain or possibly dormant mould that posed no threat to the occupants.
Mr. Philip Coleman Robinson
Mr. Coleman Robinson is the Vice-President of John Bruce Robinson Construction Ltd., the Added Party. He testified that when he was called into the home of the Applicant in August of 2011, he noted particularly the very high level of condensation on the vapour barrier blanket on the south wall of the basement. He stated, with certainty, that this moisture did not come from a leak in the foundation. The detected crack in the basement wall had already been repaired. There was no pooling of water on the basement floor which would result from a leak.
In his view the excessive amount of moisture on the barrier blanket could only be explained by very high humidity in the home. He said that what the home badly needed at this time was some air flow through the place, a dehumidifier and an air conditioner.
He was shown the dark stains on the OSB by the Applicant and he said that the matter would be referred to the service manager and that there would be a follow up visit.
Mr. Jordan Garneau
Jordan Garneau works for the Added Party in the departments of construction and service. When asked if he had any doubt at all that the stain colour of “English-Chestnut” had been applied to the stairs in the Applicant’s home, he replied “none whatsoever”.
Mr. Tim Garneau
Tim Garneau is the Service Manager for the Added Party. He was asked by Coleman Robinson to look at the suspected mould on the OSB in the basement of the Applicant’s home. He stated that he used a spray obtained from Mouldoff Inc. to treat the suspected area. Later, during a further examination of the treated area, he noticed that the situation had become worse. Looking for an explanation for this problem, he concluded that the house was too warm and that it was closed tight. No one seemed to be living there. He, also, took note of the condensation in the basement and believed that the humidity level was much too high. He stated, “this was not the way to maintain a home”.
As for the issue of the stain colour on the stairs, Mr. Garneau testified that he brought into the house a stain sample on solid maple and another on maple veneer used for the risers. These were shown to the Applicant and he said that there was agreement all around that the colour of “English-Chestnut” had been used on the stairs in this home. These samples were provided to the Tribunal as exhibits.
Mr. Wes Henry
Mr. Henry is the Principal and Senior Occupational Hygienist for Safetech Environmental Ltd. His education and professional standing qualified him as an expert witness.
It was Mr. Henry’s opinion that after the remedial work done by Mouldoff was completed, the home was entirely safe for habitation. He stated that air samples taken in the home, following remediation, were at more than acceptable levels and the residence was safe to live in and presented no health risks.
Cross examined by the Applicant with reference to the Gemco Report, Mr. Henry replied that remedial techniques could not guarantee 100% results. When using the dry-ice technology, he admitted that mould in some difficult to access areas could be left.
When asked specifically regarding Gemco’s recommendations, he replied that it was a matter of opinion and professional judgment. As previously noted, he explained again that some beam/joist pockets were difficult spots to clean. Despite this admission, he remained of the opinion that the air samples clearly indicated that there was no cause for concern in this home. He went on to say that he doubted that further remediation, as recommended by Gemco, would yield any better results. He added that any visible mould around the joists at this time was most likely to be dormant.
Or re-examination when asked for his opinion as to why a small amount of mould could increase significantly in a home, he mentioned such factors as high relative humidity, condensation build up and moisture that was present in building materials.
Mr. Henry was asked whether during mould remediation work in a home the residents would be required to leave. His answer was that occupants of the home only had to vacate the premises when the work was actually being done. There was no need, he added, to seal off the entire home, but only the area being treated.
Ms Toni Glazier
Ms. Glazier is a professional interior designer who does contract work for the Added Party. She said that she became acquainted with the Applicant when inquiries were being made about a possible purchase of a home.
Ms. Glazier’s testimony was on the central-vac issue. She testified that it was standard to have the rough-in for the central-vac in the basement. If a purchaser wanted the rough-in to be in the garage, that was an extra and the cost was about $ 250.00, including HST.
She stated that she was quite certain that this upgrade feature had been mentioned to Applicant at the time that he was a potential purchaser. She had no recollection that any such upgrade had been requested by the Applicant.
Mr. Ernie Bodi
Mr. Bodi has been a professional painter for sixteen years. During the past nine years, he has worked as a contract painter for the added party.
When asked whether in all of his years as a professional painter he had ever made an error with respect to colour, he replied “never”. Asked as to what stain colour he had applied to the stairs in the Applicant’s home, he replied, “English-Chestnut”.
Why was he so sure that he had not used “Gunstock”, he was asked. His reply was that he had not used “Gunstock” stain on any occasion during the past ten years. This stain colour was no longer in style and he did not even carry that stain in the stock that he regularly used.
He told the Tribunal that using stain was complicated by a number of different factors, including the type of wood on which the stain was being applied, that is, whether the wood was solid or veneer. The moisture content of the wood also had to be taken into account. He noted that when he was in the Applicant’s home to do some re-staining, he found the stairs to be somewhat damp.
He was shown the Miniwax samples on the stairs photo and he agreed that what looked like “Gunstock” was not necessarily so, because the samples were on Rosewood veneer and it was difficult for even a professional painter to draw any definite conclusions regarding stain colour from a photo.
Mr. William Sanger
Mr. Sanger is the Building Manager for the Townhouse Condominium in which the Applicant’s unit is located.
He testified that originally there was no mould at all in the basement. It was only after the Applicant took possession of the home that some spotting on the OSB was observed.
Mr. Sanger noted that, during the construction phase, great care is taken to avoid excessive humidity. A dehumidifier is kept on, the furnace fan is run and windows remain partly opened to ensure a good flow of air. This all helps to reduce the risk of mould from the concrete or any other building material.
When Mr. Sanger was asked how so much mould could have developed in the Applicant’s home, his response was that it was caused by humidity and the resulting condensation.
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
(c) such other warranties as are prescribed by the regulations.
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;
(c) normal wear and tear;
(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.
Regulation 892
6(6) Liability…. Is limited to damage to the home only and…there is no liability for any other damage, either direct or indirect.
APPLICATION OF LAW TO FACTS
In its analysis of the evidence presented at the hearing, the Tribunal will reverse the order and begin with the issue of the central vacuum and then examine the dispute regarding the stain colour used in the Applicant’s home. There will follow a look at the Applicant’s claim for compensation and end by dealing with the mould issue.
The Central –Vac Issue:
During the hearing, an inordinate amount of time was devoted to this matter which, in the end, became largely a non-issue in so far as Tarion, the Act and its Regulations are concerned.
The Purchase Agreement at Schedule “E” makes reference to “Equipped with a rough-in for a central vacuum system”. Ms. Glazier testified for the Added Party that it was standard to have this rough-in placed in the basement. To have it in the garage was an “upgrade”. No written agreement for such an “upgrade” was provided at the hearing.
The Added Party submitted a letter from Multi-Werx Electric stating that “as a courtesy to John Bruce Robinson, the builder and the future homeowner, we will supply a separate line for a central vacuum system in garage, whether or not the central vacuum contractor supplies a rough-in to the garage”. It appears, then, that the Applicant got a bonus with a dedicated circuit for the central-vac and could now decide where he wanted the canister to be positioned – basement or garage. It was entirely up to him and whoever was to be his central-vac contractor.
The Tribunal agrees with Tarion that there is no question here of either a defect in workmanship or of substitution. This matter is entirely a contractual issue between the Applicant and the Added Party. The Applicant may well have had a different understanding of what he was to receive, but the Tribunal is unable to regard this item as warrantable.
Accordingly, this claim by the Applicant is denied.
The issue of the stain colour applied to the stairs in the Applicant’s home
The Applicant relied heavily on photographic evidence in an effort to prove that the wrong stain colour had been applied to the stairs in his home. The Applicant cited R. v. Kerr, (ONCJ 492), in arguing for the value of photographic evidence. The Tribunal accepts the view of Justice Feldman that photos can often enhance the reliability of evidence, but not in all instances.
Certainly, the exception here is the use of photos to prove that a certain stain colour was or was not used. Counsel for Tarion ably demonstrated to the Tribunal the ambiguity and uncertainty of any conclusions that may be drawn from coloured photos of wood stain. There are just too many variables involved. During the hearing, the Applicant, the Respondent and the Added Party all presented photos in trying to make a point about the stain colour that was used in the Applicant’s home. The Tribunal rejects the photographic evidence as being inconclusive.
The compelling evidence regarding the stain issue came from Mr. Tim Garneau and from the professional painter who applied the stain, Mr. Ernie Bodi.
Mr. Tim Garneau presented the Tribunal with an actual sample of the wood stain on maple wood. This was convincing evidence.
Mr. Bodi’s evidence was that he knew his stain colours .He had applied “English-Chestnut” to the stairs in the Applicant’s home. During the past ten years he had never used “Gunstock” stain. In fact, he did not even stock that stain colour in his truck.
He told the Tribunal that using stain was complicated by a number of different factors, including the type of wood on which the stain was being applied, that is, whether the wood was solid or veneer. The moisture content of the wood also had to be taken into account. He noted that when he was in the Applicant’s home to do some re-staining, he found the stairs to be somewhat damp.
He was shown the Miniwax samples on the stairs photo and he agreed that what looked like “Gunstock” was not necessarily so, because the samples were on Rosewood veneer and it was difficult for even a professional painter to draw any definite conclusions regarding stain colour from a photo.
The onus was on the Applicant to prove, on the balance of probabilities, that the wrong stain colour was applied to the stairs in his home. The Applicant was unable to meet the test with respect to this issue.
Accordingly, this claim is denied.
The Compensation Issue
The Applicant is seeking compensation in the amount of $42,671.91 for a wide variety of expenses that he deems were incurred because he was unable to live in the house due to the presence of mould in the basement. In support of this claim, the Applicant cited authorities: LAT 5863/ONHWPA and Tarion v. Kozy, (2011 ONCA 795).
The first citation (5863), relates to a decision where it was ordered that an entire floor be replaced in the home. Here, the Tribunal awarded costs to the Applicant for packing, moving and cleaning. In so doing, the Tribunal decided that these costs were integral to and not secondary to the repairs being done. It is not possible to replace a floor unless the furniture is first moved.
In the matter at hand, the only similarity would be the costs incurred for the hydro used during the mould remediation work in the basement. The Tribunal has neither a claim nor an estimate for this specific cost, Hence, no award can be made.
Regarding the second cited case (Tarion v. Kozy), the Tribunal notes that at paragraph [13], the reference is to compensation for repairs under a warrantable obligation and not for any secondary damage.
The Ontario New Home Warranties Act at Section 13(2)(b) provides:
A warranty under subsection (1) does not apply in respect of secondary damage caused by defects, such as property damage and personal injury.
Regulation 892 in the section dealing with limitations to the compensation available under the Act, stipulates in section 6(6):
Liability…is limited to damage to the home only and…there is no liability for any other damage, either direct or indirect
The Tribunal is governed by the Act. Thus, the compensation sought by the Applicant, being secondary in nature, cannot be awarded.
Accordingly, the claim for compensation by the Applicant is hereby denied.
The Mould Issue
In its analysis of the mould issue, the Tribunal needed to carefully consider and attempt to balance a number of key factors, including:
The remediation work done in the Applicant’s home by Mouldoff Inc.
The assessment by Safetech of the work performed by Mouldoff Inc.
A consideration of how a small amount of mould, created during the construction phase, increased to a significant extent following possession of the home by the Applicant.
The Gemco Report and its recommendation that the residual mould in the basement, following remediation, even if dormant, ought to be removed on the basis that it could be re-activated if the basement were to be more fully utilized.
The evidence was clear that Mouldoff performed excellent work in the basement of the Applicant’s home. Under the direction of Safetech, Mouldoff was in the home on three different occasions to conduct mould remediation.
The Tribunal accepts the assessment of Safetech that the home is now fit for habitation. It can be lived in without any threat to the health of the occupant.
The Tribunal finds the evidence to be compelling that, to some extent at least, the Applicant was lax in his duty to mitigate the mould situation in his home. More attention should have been given to regulating the humidity and providing for more air flow throughout the house.
Gemco’s recommendation also commanded the attention of the Tribunal. Good work was done with the remediation efforts undertaken. Both Mouldoff and Safetech admitted in evidence, though, that, with the methods used, including dry-ice blasting, some difficult to access areas, such as around the beam/joists, could be missed.
The Tribunal accepts the view, advanced by Gemco that the work is almost done, but not quite. An additional effort in the places identified in the basement must be remediated, if that part of the house is to be used, without any concern that the remaining mould may be re-activated.
Accordingly, the Tribunal has determined it to be fair and reasonable that the cost for the remaining remedial work required, should be apportioned. Tarion will pay one-half of the estimated cost (as per the Symmetry estimate) to finish the mould remediation work in the basement of the Applicant’s home.
ORDER
Pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs Tarion to pay the Applicant $ 4,657.38, this amount being one-half of the Symmetry estimate of $ 9314.76, referred to above.
LICENCE APPEAL TRIBUNAL
Keith Penner, Member
Released: July 04, 2013