Licence Appeal Tribunal
Appeal d'appel en matière de permis
FILE: 7735/ONHWPA
CASE NAME: 7735 v. Tarion Warranty Corporation
Appeal of a Decision of Tarion Warranty Corporation under the Ontario New Home Warranties Plan Act, R. S. O. 1990, c. O.31 to Disallow a Claim
The Applicant Applicant
-and-
Tarion Warranty Corporation Respondent
-and-
Terra View Custom Homes Ltd. Added Party
DECISION AND ORDER
ADJUDICATOR: D. Gregory Flude, Vice-Chair
APPEARANCES:
For the Applicant: Self-Represented
For the Respondent: Gregory W. Banks, Counsel
For the Added Party: Jim McFadzean, Kathy Newman and David Brix, Agents
Heard in Kitchener: June 18 & 19, 2013
DECISION
1The Applicant appeals the decision of Tarion Warranty Corporation, (“Tarion”) to deny his claim for warranty set out in a Decision Letter dated October 20, 2012. The Added Party, Terra View Home Ltd. (“Terra View”), is the vendor of the home and is liable to either effect warranty repairs or to reimburse Tarion for the cost of those repairs in the event this Tribunal finds in favour of the Applicant. It supports Tarion’s position in this matter.
2At the commencement of the hearing, the Parties advised the Tribunal that four issues remained in dispute: two issues relating to floor tiling on the main floor of the Applicant’s home, one issue relating to floor sagging on the second floor of the home and an issue relating to sounds allegedly emanating from the siding on the home during high winds. The tiling issues involve one general concern about all of the tile flooring and one concern about tiling in a main floor powder room. The Applicant testified himself and called one expert witness, Matthew Seiling, a tile flooring contractor. Tarion called its Warranty Service Representative, Anthony Krimmer, to testify and Terra View called three witnesses, Rob Brenchley, a flooring contractor, John Thibaudeau, a structural engineer and Jim McFadzean, its customer service manager. Messrs. Seiling and Brenchley were found to have the requisite qualifications and experience to provide expert testimony on the installation of tile floors, potential defects and the scope and cost of repairs to tile floors. Mr. Thibaudeau was found to be qualified to give expert evidence on structural engineering issues relating to home construction.
3The Applicant’s right to warranty coverage is set out in s. 13 of the Ontario New Home Warranties Plan Act, R. S. O. 1990, c. O.31:
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.
It is a warranty from the vendor of the home and Tarion has the twin role of ensuring that vendors honour the warranty, on the one hand, and when a vendor is unable or unwilling to honour its warranty obligations, of paying for repairs found to be warranted. Numerous decisions of this Tribunal have found that the onus lies on the Applicant to prove that an item in dispute is warranted, so much so that it is now trite law.
4The underlying condition that stimulated the Applicant’s concerns over the condition of his home arose out an error made by Terra View during construction. There is no dispute that Terra View made the error in question and the error itself is not before the Tribunal. The error arose out of the installation of a beam in the basement. When the house plans were submitted to the planning department, the planning department noted a concern on the plans requiring extra reinforcement of the beam. Terra View failed to note the planning department’s concern and constructed the home according to the original plan. When it discovered the error, Mr. McFadzean had discussions with the Applicant about a range of possible solutions. The two most efficacious solutions were either to install a further support from the basement floor to the beam or to reinforce the beam. They decided to reinforce the beam. Since the work involved jacking the beam up, there were likely to be effects on the main floor, especially to the approximately 600 square foot tile floor covering the foyer, powder room, hallway, kitchen and breakfast area. Terra View undertook to repair any floor damage, including replacing all of the tiles in the powder room because of some unevenness.
4Following reinforcement of the beam, Terra View performed extensive repairs to the tile in the foyer and powder room areas. It did not replace the whole powder room floor since the installer discovered the cause of the unevenness and smoothed it over. About half of the tile floor was replaced. Work was also carried out at the entrance to the kitchen from the hallway and in the breakfast area (Ex 4, p. 29). When Mr. McFadzean showed the Applicant the reinforcing work done on the beam, the Applicant asked for an engineering assessment. Terra View retained the services of Stik, Baldinelli and Associates, Civil and Structural Engineers. This firm recommended further reinforcement and Terra View carried out the recommended work (Ex 4 p. 37).
5The repairs recommended by the engineers required the beam to be jacked up once more. Following this work, the Applicant expressed concerns about the stability of the main floor and pointed to a number of areas where he said the tile or grout was cracking. He filed a year-end report with Tarion and requested conciliation. Anthony Krimmer conducted the conciliation inspection on August 13, 2012. He found:
As reviewed there are cracked and or loose tiles including cracked grout lines located at the family room, at cut floor tile, in kitchen at frig (x7) and at hall (x5). The CPG
[Construction Performance Guidelines] article 12.30. “ceramic tile” etc., was used to reference this item. The examples represent defects and are assessed as warranted.
In dealing with the powder room he stated:
As reviewed there is a variation of 3mm to 4mm in the powder room. The CPG article 12.2. “floor is uneven” was used to reference this item. The variation (ridges or depressions) from the specified plain or floor finish shall not exceed 6mm. The condition of the floor as reviewed does not represent a defect and is assessed as not warranted.
6Notwithstanding that certain defects were found to be warranted, the Applicant remains dissatisfied with Tarion’s findings. He is of the view that there is a wide-spread structural defect in the tile flooring that requires the whole of the floor to be removed, the subfloor to be checked and repaired if necessary and the tile reinstalled. This approach will address his concerns about the uneven powder room floor and his concerns about an inability to match dye lots between existing and replacement tiles. His original dye lot is no longer available, but Mr. McFadzean testified that fifty tiles have been set aside from the repair dye lot and that the Applicant was satisfied with the match of those tiles to the original when the first repairs were carried out.
7In support of his position that there are structural defects, the Applicant drew the Tribunal’s attention to two specific facts. The first is that the screws used to secure the subfloor to the floor joists were 40mm and the Ontario Building Code (“OBC”) mandates the use of 45mm screws.(ex 4. P. 48) The second is that one floor joist has a knot in the bottom of the joist and, from his experience cutting timber as a young man, he knows that an extensive knot such as the one in question effectively reduces the load bearing capacity of this joist from a 2” X 10” joist to a 2 X 6” joist. In his view this joist will be overly flexible and cause floor damage. He determined that this particular joist sags somewhat. (Ex 4. Photos re: claim 3 & 5, 1-4 & 9)
8It was generally accepted that the subfloor had been glued, nailed and screwed down. Mr. Krimmer testified that the OBC requires gluing and nailing or screwing but not all three. Mr. McFadzean agreed with Mr. Krimmer and went on to state that it was the Added Party’s practice to nail and glue the subfloor and then, as an extra measure to eliminate any floor squeaks, have a separate contractor screw it down just before the installation of the finished floor. Both Mr. Krimmer and Mr. McFadzean stated that the subfloor attachment exceeds the OBC requirement. The Applicant did not take issue with the use of three fastening methods, glue, nails and screws and the Tribunal finds that the use of 40mm screws in this case does not represent a breach of the OBC.
9In his cross-examination of Mr. Thibaudeau, the Applicant put to the witness concerns about the strength of the knotty joist. He also pointed to another joist that appears to have a crack running along the bottom.(Ex 4. Claim 3 and 5. photo 5) Mr. Thibaudeau explained that the OBC requires the use of graded lumber, either grade 1 or grade 2. Grading is done by certified lumber mills. During his inspection of the house he determined from stamps on it that grade 2 lumber had been used throughout and that there had been cross-bracing between joists. He observed no major modification of the lumber, neither excessive notching out of the bottom or top to permit passage of ducting or large holes for electrical wiring. These types of modification may impact the load bearing capacity of joists. Having determined that they were not present, he was satisfied with the structural integrity of the joists and confirmed that they were in compliance with OBC requirements.
10Mr. Thibaudeau examined the reinforcement on the basement beam. He determined that it met the structural requirements of the OBC and that the floor joists were compliant.(Ex 4 p.39) The Tribunal heard no other evidence from a qualified structural engineer that might call into question the opinion of Strik, Baldinelli & Associates. The Tribunal is satisfied that there is no structural defect or instability in the main floor that might cause future problems to the tile on the main floor. In making this statement, the Tribunal has considered Mr. Seiling’s comments in his report concerning the adequacy of the steel beam. Mr. Seiling freely admitted that he has no knowledge of structural engineering and, accordingly, his opinion in these matters carries no weight.
11Mr. Seiling and Mr. Brenchley were at odds concerning the standard repair techniques. Both agree that there may be tiles where the underlying mortar does not adhere to the tiles. These tiles, they agree, may be found by a certain hollow sound when they are tapped. Whereas Mr. Seiling is of the opinion that any hollow tile is a problem and requires replacement, Mr. Brenchley stated that even tiles that have generally adhered to the mortar may have areas that are hollow because of an uneven bottom to the tile. It was his evidence that this condition is not unusual in tile flooring. Hollow tiles are only a concern, according to Mr. Brenchley, if the lack of adhesion is such that the tile moves. The first evidence of movement will be cracking and loss of grout around the tile. This may be followed by movement of the tile and finally cracking of the tile itself. Neither Mr. Seiling nor Mr. Brenchley noted any grout loss in areas where they noted a hollow sound, that is, between the kitchen and the dining room and the outside side wall of the breakfast area. They disagreed about the extent of the hollowness: Mr. Seiling stating that is was apparent across the whole width of the identified areas and Mr. Brenchley stating that he noted it on a few scattered tiles.
12Mr. Brenchley and Mr. Seiling also differed on the impact of removal of individual tile on the surrounding tiling. According to Mr. Seiling, removal of a tile may cause cracking of the mortar bed under adjacent tiles. Over time, the mortar bed will deteriorate and the adjacent tiles would be become loose. This condition would ultimately spread across the whole of the tile floor necessitating complete removal and replacement at some point in the future. The cracking of the adjacent mortar bed was the result of the need to use a ball peen hammer to smash the first tile and permit access to other tiles to be removed. Mr. Brenchley stated that it is both simple and routine to remove isolated tiles and that this is done without damage to adjacent tiles. He uses a grout grinder to cut away the existing grout and then uses a cold chisel to pop the tile out. He stated that this method is the industry standard method of repair, especially where a customer has dropped something heavy and cracked just one tile.
13The Tribunal accepts the evidence of Mr. Brenchley over that of Mr. Seiling. The upshot of Mr. Seiling’s evidence is that any time a single tile is cracked, whether from accident or inadequate support, the whole tile floor must be replaced. Such a conclusion stretches credibility and applies a standard of perfection and impracticability to tile repair that few could afford or tolerate.
14There were two areas in the kitchen identified as having grout cracking.(Ex 4. P. 29) Mr. McFadzean stated that, when one area was first drawn to his attention he could not see the crack. He got down on his hands and knees and still could not see it. The Applicant brought a flashlight to assist. It did not help. Finally, the area was rubbed with a damp cloth and Mr. McFadzean was able to see the tiniest of cracks along the grout edge where it met the tile. Mr. Brenchley confirmed Mr. McFadzean’s version of events albeit in a little less detail. Mr. Brenchley, Mr. Krimmer and Mr. McFadzean formed the opinion that the crack was the result of grout shrinkage resulting from the use of grout that was too wet.
15Mr. Seiling and the Applicant urged on the Tribunal that the grout cracking was a symptom of the lack of under floor structure and suggested that it proved the likely failure of the whole floor in time. Tarion asserts that it is the result of the use of overly wet grout. Mr. McFadzean stated that he saw the trade as the grouting was being done and mentioned that the mix seemed a little wet. The trade advised him that he thought it would be fine. Considering all of the evidence, the Tribunal concludes that the grout problems identified in the kitchen area are as a result of using grout that was too wet.
16One tile was cracked above the basement beam. Mr. McFadzean testified that it was directly above the point where he had jacked up the beam to carry out the second reinforcing repair. The Applicant is of the view that it results from a general lack of structural integrity requiring the removal of all of the tile, repair of the subfloor and reinstallation. The Tribunal finds that Mr. McFadzean’s explanation is the most likely. The structural integrity of the house having been confirmed by Mr. Thibaudeau and the practice of Terra View of nailing, gluing and screwing the subfloor in place make it unlikely that a single cracked tile in the area of pressure from jacking up the house results from a lack of structural integrity..
17The final tile area of concern to the Applicant was colour match. As stated above, the dye lot of his original tile is no longer available. The dye lot of the tile used to carry out repairs following the first beam repair is available in sufficient quantity. Terra View has offered to use the repair tiling to finish the powder room and salvage tile from the powder room from the original dye lot to replace tiles in more open areas. The Tribunal looked at two photographs of adjacent original and repair tile and the Applicant urged the Tribunal to find a striking difference between the two. There are difficulties with the Applicant’s position. The Tribunal could not see any marked difference between the two dye lots. The Tribunal notes that Mr. Brenchley, with 30 years’ experience in the tiling business, did notice the difference, but to an untrained eye, the difference is not apparent. It is also of note that the Applicant approved the use of the second dye lot in Terra View’s first round of repairs.
18Tarion has established a standard in the Construction Performance Guidelines (“CPG”) to address differing dye lots. Standard 12.30 states:
Variations between dye lots of similar materials within a specified colour or pattern are normal and acceptable provided they are not readily visible. Slight variations in grout colour are to be expected when making repairs.
Keeping in mind always that the CPG is a guide and must be applied with common sense in the circumstances of each individual case, it assists both vendors and consumers by setting out generally acceptable workmanship standards. It takes into account the practical reality of the building industry where perfection is generally not possible. In this case, accepting the Applicant’s position regarding colour variation mandates that the whole of an otherwise well laid floor has to be torn up and replaced, an exercise in economic waste. The Tribunal accepts the CPG standard in this case. No readily visible colour variations were pointed out to the Tribunal.
19The final area of concern to the Applicant regarding his tile floors is the fact that the powder room floor appears to sag. Mr. Krimmer measured the elevation variation at 3mm to 4mm. He applied the CPG standard of 6mm and determined that this item was not warranted. The Tribunal has no evidence of any detrimental impact on the Applicant because of the variation in the floor and can see no reason not to accept the CPG standard.
20Having reviewed all of the evidence the Tribunal finds that the subfloor under the tile is stable and meets OBC standards. There is no general deterioration of the tile floor or subfloor and spot repairs of tile and grout as proposed by Tarion are the acceptable means of repair. Terra View has offered to go beyond the scope of the Tarion repair but that is a private matter between vendor and builder. The Tribunal orders Tarion to carry out the repairs as set out in Claim 3 of the Decision Letter. Nothing in this decision prohibits Tarion and the Applicant from entering into a monetary settlement of these issues.
21The Applicant complains that when the wind is high, he states 60km/h in his Notice of Appeal and suggested a lesser but unspecified amount in his evidence, he hears a clicking sound from his siding from all around the house. He demonstrated the noise using Exhibit 11.Terra View had one of its siding contractors inspect the siding. The contractor found nothing wrong with the method of installation. Similarly, Tarion found no defect in workmanship or materials although Mr. Krimmer did not attend during high wind. Mr. McFadzean testified about his experience with loose or improperly installed siding. He said siding does not click when improperly installed, it tends to squeak. It was his view that the clicking sound is caused by air vent louvers opening and shutting. He stated that the Applicant’s house vents have three louvers. He suggested and offered to install one flap hooded vent outlets. He stated that, while there was no guarantee that it would solve the problem; Terra View has had some success in other homes. He demonstrated the sound the vents make and it was almost identical to the sound the Applicant demonstrated. He testified that the clicking of the opening and closing louvers is magnified by the air vent and can be heard throughout the houses he has looked at. In the end, the Applicant complained of the existence of a condition but provided no evidence that the siding had been installed in an unworkmanlike manner or was defective. His claim for warranty under this head must fail.
22The final claim for warranty arises out of the sagging of the second storey floor in the master bedroom and bedroom #4. They share a common wall and sag towards the common wall. Neither Mr. Krimmer nor Mr. Thibaudeau could detect the sag when they walked on the floor but Mr. Krimmer measured a sag of 3mm-4mm. The Applicant measured the beam across the kitchen immediately under the sag to determine the degree of the sag. At its highest, he measured 24mm/3600mm and there was overall sag across the whole beam of 10mm/3600mm. Mr. Krimmer denied the claim on the basis of a CPG standard of 25mm/3600mm. He did not have the Applicant’s figures as set out below at the time he made that decision. The Applicant does not deny that the elevation change does not exceed the CPG standard. He relies on his interpretation of OBC section 9.4.3.1. It states that deflection of structural members shall be not more than 1/360. There is a proviso in that provision that the calculation should not include “dead loads.” The Applicant did not know what the term dead loads referred to. Mr. Krimmer is a former Chief Building Officer for the City of Kitchener. He stated that deflection refers to a structural calculation and is consider at the design phase of building approval. It does not apply to the ‘as built’ form. Mr. Thibaudeau testified that dead loads include any fixtures supported by the floor such a walls, tiles, carpets, baths. The opposite of dead loads is live loads and includes people and moveable furniture. He measured the deflection on the basement beam. He explained that loads compound down to the lowest structural member and that the lowest level is the proper place to measure deflection. He found a deflection of 4mm of the basement beam and determined that the Applicant’s beam fell within allowable deflection limits. The Applicant tendered no evidence to contradict either Mr. Thibaudeau’s interpretation of the OBC or his finding. Accordingly, the claim for warranty under this head must fail.
ORDER
23By virtue of the authority vested in it by the Act, the Tribunal orders Tarion to warrant the repairs of cracks in tile and grout as set out in claim 3 of the Decision Letter of October 30, 2012 and to deny all other claims for warranty. Nothing in this order prevents the Parties from agreeing a cash settlement in lieu of repairs.
LICENCE APPEAL TRIBUNAL
_________________________
D. Gregory Flude, Vice-Chair
Released: July 03, 2013