Licence Tribunal
Appeal d'appel en Tribunal matière de permis
DATE:
2013-06-26
FILE:
7865/ONHWPA
CASE NAME:
7865 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
Applicants
Applicants
-and-
Tarion Warranty Corporation
Respondent
-and-
Fernbrook Homes (Alton 2007) Limited
Added Party
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Mary Ann Spencer, Member
APPEARANCES:
For the Applicants:
Self-represented
For the Respondent:
Marshall Reinhart, Counsel
For the Added Party:
Stacey Peticca, Agent
Heard in Toronto:
May 29 and 30, 2013
REASONS FOR DECISION AND ORDER
This is an appeal by the Applicants to the Licence Appeal Tribunal (the “Tribunal”) from a Decision Letter of Tarion Warranty Corporation (“Tarion”) dated January 8, 2013 in which Tarion denied the Applicants’ claim with respect to a new home purchased from Fernbrook Homes (Alton 2007) Limited (the “Added Party”).
At the pre-hearing on February 26, 2013, the parties agreed that items 1 and 7 in Tarion’s Decision Letter and items 21 and 22 from the Applicants’ Year End form were the issues being appealed. By letter dated February 29, 2013, the Applicants wrote to the Tribunal to request that items 3 and 4 in the Decision Letter be added to their appeal. The Applicants advised the Tribunal that, on reflection, they realized they should not have agreed at the pre-hearing to drop these items. Mr. Reinhart objected to their inclusion. Because the Applicants wrote to the Tribunal almost immediately after the pre-hearing at which they were self-represented, and given that Mr. Reinhart confirmed that Tarion had received disclosure on these items for the purposes of that pre-hearing, the Tribunal added items 3 and 4 to the issues under appeal.
The items under appeal are numbered and set out in the Decision Letter as follows:
Basement: Wood frame sill plate partially on concrete foundation 2/3 of sill plate width, all around basement area;
Basement: Smoke black marks on pink isolation (sic) around ducts on joists and on ducts;
Garage: Missing J anchor bolts to secure garage sill plate wood frame to concrete foundation on the right side of the garage close to the garage entrance; and
Outside house: Bricks overhang the concrete foundation over 30mm right side of the house.
In addition, there are two items from the Applicants’ Year-End Form under appeal:
Left side garage door doesn’t close properly;
Garage doors frame trims nailed in wrong position, door does not open and close properly.
FACTS AND EVIDENCE
The evidence of the Applicants, who are husband and wife, comprised the testimony of the husband (the “Applicant”) and documents and photographs entered into evidence as Exhibits 4 to 11 and 13, including reports from Hellyer Engineering Limited and Kurkjian Engineering. The Applicants indicated they did not intend to call Mr. Hellyer as a witness and Mr. Reinhart therefore objected to the admission of the Hellyer Engineering reports. The Applicants indicated their intent to call Raymond Kurkjian as a witness and stated they believed his testimony would validate Mr. Hellyer’s reports.
The Tribunal admitted the Hellyer reports but advised the Applicants that the weight they would be assigned would reflect the fact that Mr. Reinhart would not have the opportunity to cross examine Mr. Hellyer.
For ease of reference, the engineering reports will be referred to as follows:
“2011 Kurkjian report”: December 6, 2011 General Review Report by Kurkjian Engineering to Fernbrook Homes (Exhibit 4, Tab 5).
“2012 Hellyer report”: February 13, 2012 Building Inspection Report by Hellyer Engineering to the Applicants (Exhibit 4, Tab 2).
“2012 Kurkjian report”: June 5, 2012 Kurkjian Engineering Field Review Report to Fernbrook Homes (Exhibit 4, Tab 6).
“2013 Hellyer report”: April 25, 2013 Building Inspection and Document Review Report by Hellyer Engineering to the Applicants (Exhibit 4, Tab 3).
“2013 Kurkjian report”: May 8, 2013 Kurkjian Engineering Field Review Report to Fernbrook Homes (Exhibit 5).
Tarion’s evidence comprised a book of documents (Exhibit 3), a letter from the City of Burlington (Exhibit 12), the testimony of Tarion Field Claim Representative Anthony Krimmer, and the testimony of former City of Burlington Supervisor of Inspections Terry Hewitson. In addition, Stacey Peticca testified on behalf of the Added Party.
The Applicant testified that there was a fire in the Applicants’ home two weeks before they were due to take possession. There was significant damage in the house and he contends that repairs were neither properly undertaken nor were they inspected or approved by the City of Burlington. He would like the items under appeal to be warranted and repaired. In addition, the Applicants are seeking reimbursement of the $1,851.79 paid in fees to Hellyer Engineering (Exhibit 4, Tabs 9 and 10).
The Applicants’ home was completed for possession on June 21, 2010. All of the items under appeal were reported on the Year-End Form submitted to Tarion on June 21, 2011 (Exhibit 3, Tab 7). On January 5, 2012, Tarion Field Claim Representative Anthony Krimmer, accompanied by representatives of the Added Party including Ms. Peticca, conducted an inspection, and a Warranty Assessment Report was issued on January 19, 2012 (Exhibit 3, Tab 8).
The Applicant confirmed that after he received the Warranty Assessment Report, he directly approached the Added Party who told him that if he had an engineering report indicating there were violations of the Ontario Building Code (the “Code”), the Added Party would both address the issues and reimburse the Applicants for the costs of the report. When asked when he provided the 2012 Hellyer report to the Added Party and/or to Tarion, the Applicant said he could not recall.
The Applicant then stated that he did ask Tarion to re-inspect the items which were not warranted. He referred the Tribunal to his March 5, 2012 e-mail addressed to Ginette Bowen (Exhibit 8) in which he noted he did not agree with the Warranty Assessment Report and requested that the items numbered 1, 3, 4, 21 and 22 in this appeal be reviewed again. On April 11, 2012, Tarion conducted a further inspection.
The testimony of the Applicant, Raymond Kurkjian and Anthony Krimmer is set out below under the title of the item under appeal.
Item 1. Basement: Wood frame sill plate partially on concrete foundation 2/3 of sill plate width, all around basement area
The Applicant testified that there is a significant defect in the basement and read a section of the 2012 Hellyer report which states that the sill plate overhangs the foundation “by more than two inches in several locations” and “in some areas the plate is supported by wood shims in direct contact with the concrete foundation and there is no mortar bed to provide uniform support under the bottom plate”. The report states that under the Code section 9.23.11.2 (2), the bottom plate in an exterior load bearing wall shall not project more than 1/3 the width of the plate over the support and that areas that project more than 1.833 inches in the Applicants’ home are in violation of the requirement. The Applicant then referred to the 2012 Kurkjian report which indicates that non-shrink grout should be used where possible to fill the gap between the wood plate and the foundation or that steel shims should be used where the gap does not permit use of the grout. The report further suggests that a ledger be bolted to the wall under the overhanging plate.
The Applicant testified that the builder did proceed with repairs but because they were not completed, Mr. Hellyer was asked to inspect again. The 2013 Hellyer report states that the design engineer, Mr. Kurkjian, should have provided verification that the work was done to the approved design. Mr. Hellyer goes on to note some anomalies: the wall is out of plumb by approximately 1” due to the wall plate appearing to have moved inward; wall sheathing is separated from studs in the area due to the movement; and, new anchor bolts are embedded less than the minimum depth specified by the manufacturer. The Applicant then referred to the 2013 Kurkjian report which states that some anchor bolts need to be re-drilled or replaced to embed them to the minimum depth. The Kurkjian report also notes that a cavity, at a missing portion of the foundation wall adjacent to the walkout door jamb, should be filled with non-shrink grout.
The Applicant stated that repairs are still needed, that the load of the house is breaking the concrete foundation and he fears there is a risk of future damage. The Applicant indicated he had no estimate of the cost of repair.
Raymond Kurkjian studied structural engineering at the University of Toronto, graduating in 1973. Following his graduation, Mr. Kurkjian was employed as a structural engineer with the Ministry of Transportation, among others, and before his retirement was a professor of structural engineering at Ryerson University. Mr. Kurkjian currently provides consulting services on residential applications and was retained by the Added Party to respond to the Hellyer Engineering reports. Mr. Kurkjian described structure as “the members of a building which hold it in place” and indicated that when he inspected the Applicants’ home, he only addressed structural issues.
Mr. Kurkjian testified that the Code allows an overhang of one third of the width of a plate. In the case of the Applicants’ home, the allowed overhang would be approximately 1.8”. Asked by the Applicant why his report suggests adding a ledger under the overhanging plate, Mr. Kurkjian responded “to make you happy”, and explained that he could see no areas where the projection exceeded the allowable one third; that the sill plate was adequate to support the Applicants’ house; and that he recommended the addition of the ledger only to respond to the Applicants’ concerns.
On cross-examination by Mr. Reinhart, Mr. Kurkjian stated that he agreed that the wood frame sitting on concrete did violate section 9 of the Code and he had recommended using grout or steel shims to fill the gap between the frame and concrete. Asked about the anomalies noted in the 2013 Hellyer report, Mr. Kurkjian stated that it was “hard to say” if they resulted from the repairs and speculated that perhaps Mr. Hellyer had missed them on his initial inspection. Asked if any of the anomalies were structural issues, Mr. Kurkjian stated that in one area, a “chunk of wall” had fallen off and noted that, in his 2013 report, he recommended that the area be filled with non-shrink grout to provide full bearing. He also recommended that some of the anchor bolts used to attach the ledger be re-drilled. He then estimated that two persons working one day would be required to finish the repairs but was unable to provide a cost estimate.
Anthony Krimmer has been employed by Tarion as a Field Claim Representative for twelve years. Before joining Tarion, Mr. Krimmer studied construction engineering and was employed by the City of Waterloo, ending his career there in the role of Chief Building Official. Mr. Krimmer inspects reported deficiencies and assesses claims for warranty coverage based on his observations, his experience, Tarion’s Construction Performance Guidelines and the Code.
Mr. Krimmer testified that at his January 5, 2012 inspection, he observed that the wall was visibly askew on the foundation. In particular, in one corner, the projection of the wood frame over the foundation exceeded what is allowed. Mr. Krimmer stated that he looked at both the inside and outside finishes and saw no movement. He also looked at the ceramic floor above the area and saw no damage, noting that ceramic is sensitive to movement and resultant cracking. He therefore assessed the item as unwarranted.
Mr. Krimmer stated that the builder offered to make repairs as a courtesy. Asked what would happen if a defect resulted from the repairs, Mr. Krimmer indicated that if it was reported on another form, he would reassess it. He then noted that the Added Party had hired their own engineer and that would “take this outside of the scope of what Tarion’s involved in.”
Item 3. Basement: Smoke black marks on pink isolation (sic) around ducts on joists and on ducts
Referring to the 2012 Hellyer report, the Applicant testified that there is some visible smoke residue on basement surfaces which could impact the resale value of the home. He indicated that the visible smoke stains are a defect in materials and referred to the 2012 Kurkjian report which states “Replace the insulation if possible or go with your suggestion to use stain klean or paint the wood”. The Applicants want the item to be warranted and the repairs to be formally documented. In this regard, the Applicant provided a quote dated January 16, 2013 in the amount of $837.33 to clean and spray the affected areas with smoke treating solution and to treat smoke particles which he suggested were a health and safety issue. On cross-examination, the Applicant testified that no tests were performed with respect to air quality and agreed that no health and safety issues were raised in any of the reports.
Mr. Kurkjian provided no direct testimony with respect to this item. However, on cross-examination, when asked if it would be normal for a structural engineer to comment on an item such as smoke damage, he stated that it would be unusual unless there was structural damage.
Mr. Krimmer testified that the builder had replaced the insulation and that the Applicants, who were present at the January 5, 2012 inspection, said further work was not required. Mr. Krimmer observed nothing significant and he therefore noted the item was resolved.
Item 4. Garage: Missing J anchor bolts to secure garage sill plate wood frame to concrete foundation on the right side of the garage close to the garage entrance
The Applicant read the 2012 Kurkjian report which recommends that a bar be tied to the sill plate to anchor it to the foundation. He then referred to the 2013 Hellyer report which notes that the repair had not been completed and recommends that either an anchor bolt or the connector recommended by Mr. Kurkjian be installed and that a building permit be obtained. The Applicant stated he wished the item to be repaired but provided no estimate of the cost.
Mr. Krimmer testified that the garage had been finished with drywall when he inspected on January 5, 2012 and that he could not make any direct observations. He testified that he saw no ancillary damage reflective of J bolts not being installed and did not warrant the item.
Item 7. Outside house: Bricks overhang the concrete foundation over 30mm right side of the house
The Applicant read the 2011 Kurkjian report which proposes that a steel angle be placed on the underside of the brick veneer on the left elevation of the Applicants’ home which projects more than the maximum permitted amount under section 9.20.8.5 (1) of the Code. The Applicant then read the 2012 Hellyer report which states the brick overhang exceeds the permitted allowance. This report also notes other issues with respect to improper weep holes, flashings and excessive mortar joint thickness.
The Applicant testified that the Added Party did undertake repairs. Referring to drawings prepared by Kurkjian Engineering (Exhibit 4, Tab 7) which specify a 4” x 4” x ¼” steel angle, he noted that the steel angle installed was 3” x 5” x ¼” (Exhibit 4, Tab 8). He then stated that he believes that a building permit and approval must be obtained from the City of Burlington to ensure the repair is in compliance with the Code. In this regard, he referred the Tribunal to an e-mail dated January 31, 2013 which he sent to the City of Burlington asking if a building permit would be required. The response from Michelle Walker states that a permit would be needed (Exhibit 4, Tab 4). The Applicant also noted that in his 2013 report, Mr. Hellyer stated that a building permit and inspections were required. In that report, Mr. Hellyer noted the structural issues may have been resolved provided Mr. Kurkjian approves the installed design but that the overhang still exceeds that allowed by the Code. He then suggests the wall be cement parged to bring it back to the maximum overhang the Code allows. In this regard, the Applicant provided an estimate dated January 17, 2013 in the amount of $3,390 (Exhibit 8). On cross-examination, the Applicant agreed that the estimate addresses not only parging but also straightening the foundation.
Mr. Kurkjian testified that as stated in his 2013 report, the change in the size of the angle from 4” x 4” x ¼” to 5” x 3.5” x 1/4” is not significant. He also noted that he consulted with the Applicants’ engineer on this change and Mr. Hellyer had no issues with it. Mr. Kurkjian then testified that he agreed with Mr. Hellyer’s recommendation that the foundation wall be parged.
On cross-examination, Mr. Kurkjian testified that he has inspected the repair and is satisfied with it.
Mr. Krimmer testified that he inspected the brick veneer twice. He observed no cracking or other damage and therefore assessed the item as not warranted.
Items 21 and 22: Left side garage door doesn’t close properly; Garage doors frame trims nailed in wrong position, door does not open and close properly.
The Applicant read the 2012 Hellyer report which under the heading “New Item 2” states that the centre wall between the garage doors is out of plumb and is likely the cause of the garage door not closing properly. The report further notes that a section of the foundation under the wall had been broken off and not replaced. The Applicant then read the 2013 Hellyer report which notes that the foundation has been repaired but that numerous cracks are visible in the mortar joints of the stonework above the garage doors which should be repaired in order to restore the weather resistance of the cladding. In this regard, the Applicant provided an estimate dated January 17, 2013 in the amount of $1,695.00 to re-point the area at the front of the garage.
The Applicant also testified that he believes the repair required a building permit and referred the Tribunal to an e-mail from Joel Smithson at the City of Burlington (Exhibit 4, Tab 4), which states that a building permit would be required “to replace the column and footing supporting the column in the centre of the garage door opening.”
Mr. Kurkjian testified that he did not address the issue of whether the wood frame was out of plumb in his report. He stated he was satisfied with the foundation repair which involved cutting the stud at the bottom and putting in a new concrete pad. With respect to the cracked mortar joints, he stated he did not address it in his report because it was a cosmetic issue although he noted that there could be potential implications with respect to water penetration.
Mr. Krimmer testified that he understood the garage door to no longer be an issue when he conducted his warranty assessment inspection although he is unaware of how it was specifically resolved. He did not review the items relating to the door because they were not included in the field notes which Tarion provides to him. He indicated that this could be for a number of reasons, including that the homeowners advised Tarion the issue was resolved.
General Testimony
Following the testimony on specific items, Mr. Reinhart asked Mr. Kurkjian to summarize the issues addressed in his reports which remain unresolved. Mr. Kurkjian stated that the only unresolved issues were re-drilling or replacing anchor bolts attaching the ledger in the basement and parging the area under the exterior brick veneer. He added that he did not consider the cracks in the mortar above the garage to be a structural item because the wall is not load bearing.
Mr. Reinhart asked the Applicant how many of the items under appeal the Added Party had addressed. The Applicant responded that the smoke stains had not been repaired. He then stated that he had a letter from the Added Party’s representative, Stacey Peticca, which indicated the stains would be addressed but he was unable to produce it. He then stated that the missing anchor bolts in the garage had also not been addressed.
Asked if the Added Party contacted him to arrange a date for repairs with respect to the items set out in the 2013 Kurkjian report, the Applicant repeated that the Added Party has said nothing about the smoke stains, the anchors for the garage or the cracks in the mortar above the garage. Asked again if he had permitted the builder to do the repairs recommended by Mr. Kurkjian, the Applicant responded “I did not deny the repairs.” Asked if he’d seen an e-mail dated May 13, 2013 from Ms. Peticca with respect to arranging a date for the repairs, the Applicant did not reply directly but responded saying “Mr. Hellyer had said the wall was out of plumb.” The Applicant then agreed that Mr. Kurkjian’s reports did not address this particular issue, and that none of the reports referred to this as a structural issue. Asked again, the Applicant agreed that the builder had offered to complete the repairs but the Applicants had not scheduled an appointment. He stated they want full and complete repairs and that their preference is for a third party to undertake them because they have lost confidence in the builder.
Terry Hewitson was the Supervisor of Building Inspections with the City of Burlington until his retirement in 2011. He now works on contract for the City as a building code and policy analyst. Mr. Hewitson testified that there are two ways to achieve compliance with the Code: to meet the prescriptive requirements set out in Part 9; and to rely on Part 4 which is the design and review by a professional engineer. In the latter case, the municipality has the authority to inspect repairs but can also accept a final letter of review signed by the design engineer.
Mr. Hewitson indicated that he had direct contact with the Applicants while he was Supervisor of Inspections and is aware that they have been advised that a building permit is not required for repairs. Mr. Hewitson then testified that on May 22, 2013, the City Manager sent the homeowners a letter (Exhibit 12) which states in part:
...the repairs outlined in the engineer’s report are considered as minor changes and alterations and therefore there is no need to obtain a separate building permit for these revisions. Further, the subsequent engineering reports have been appended to the original building permit file and form a part of the works under the permit issued to Fernbrook.
Mr. Hewitson testified that Ms. Walker and Mr. Smithson, the City employees who sent e-mails to the Applicant indicating permits were required, are building technologists who answer general inquiries as part of their responsibilities and noted that they would generally respond “on the cautious side.”
Mr. Hewitson testified that he considered the issue with respect to the basement wood sill to be structural and stated that the City requires verification from Mr. Kurkjian that the anchor bolts have been repaired in accordance with his design. The City also requires verification that the items set out in the 2013 Kurkjian report have been repaired to his specifications. Mr. Hewitson then added that with respect to the repairs in the area of the garage, the City agreed that the insertion of an angle was needed to increase support and that they were satisfied the work had been done. The City is not concerned about parging. With respect to the mortar cracks, he testified that the City would ask that this be done in order to close off the item. He then reiterated that there was no need for a permit for any of these repairs because the reports would be appended to the original permit file.
Stacey Peticca, the Agent for the Added Party, testified that with respect to the garage door, the Added Party had adjusted the door and repaired the trim. She further stated that the Added Party had sent an e-mail to the Applicants to arrange a time to complete the repairs set out in Mr. Kurkjian’s May 8, 2013 report but had no response. With respect to those repairs, she does believe parging is a cosmetic item and is not required. She also indicated that she understands that the mortar cracks above the garage existed before any repairs were made Ms. Peticca estimated the cost for the Added Party to complete the repairs with respect to the basement wood frame sill to be the cost of two workers for a half a day or $200 to $300; the cost to parge the foundation to be $400 to $500; and the cost of re-pointing mortar cracks to be $300 to $400.
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.
Term of warranty
(4) A warranty under subsection (1) applies only in respect of claims made thereunder within one year after the warranty takes effect, or such longer time under such conditions as are prescribed.
APPLICATION OF LAW TO FACTS
In his closing statement, the Applicant stated that the house still has issues and the Added Party has not completed repairs. He referred specifically to the 2013 Kurkjian report and stated that this report sets out deficiencies. He argued that the Applicants should be compensated for the estimated cost to complete the repairs and for the fees they paid to Hellyer Engineering Limited.
In his opening statement, Mr. Reinhart stated that the Applicants’ complaints are about repairs done by the Added Party and the fact that the Added Party did not obtain building permits for those repairs. Because the dispute is between the Applicants and the Added Party, Mr. Reinhart suggested that in effect jurisdiction had been “ousted” from Tarion and therefore from the Tribunal. In his closing statement, Mr. Reinhart noted that the Applicants did not appeal the items found to be non-warranted immediately after they received the January 19, 2012 Warranty Assessment Report. Rather, they dealt directly with the Added Party who undertook repairs “as a courtesy.” It was only after issues arose with those repairs that the Applicants requested a Decision Letter and filed their appeal. He argued that if a builder decides to satisfy a homeowner by performing repairs on non-warranted items that it does not make policy sense “to drag the builder back” into the scheme under the Act.
The steps in the warranty claim process are set out in R.R.O. Reg. 892. A homeowner is required to submit claim forms by prescribed dates and a builder then has 120 days in which to resolve the claims. If the claims are not resolved within that period, a homeowner may request conciliation and Tarion will make an assessment as to whether or not a claim is warranted under the Act. Consistent with the legislation, Tarion’s “Homeowners Information Package” directs homeowners to send copies of their statutory forms to their builder and advises homeowners to “maintain communication with your builder to assist in resolving deficiencies in your new home.”
All of the items under appeal by the Applicants were reported on their June 21, 2011 Year-End Form. Tarion Field Claim Representative Anthony Krimmer, accompanied by representatives of the Added Party, inspected the Applicants’ home on January 5, 2012 and issued a Warranty Assessment Report dated January 19, 2012. Four of the six items under appeal were assessed as non-warranted. As Mr. Krimmer testified, the remaining two items, numbered 21 and 22 in the Year-End Report, were not assessed because they were not in his field notes. The statutory framework does not set out a prescribed time in which homeowners must request a Decision Letter. In this case, the Decision Letter is dated January 8, 2013, one year after the warranty assessment inspection with respect to the items under appeal.
After the January 5, 2012 inspection, the Applicants retained Hellyer Engineering Limited and then approached the builder directly with respect to the Hellyer report’s findings. In the 2012 Hellyer report, there are only two recommendations. The first relates to requesting an inspection from the municipality. The second states:
…if there are any unresolved issues which you feel should be repaired by the Builder under the Warranty, then you should let Tarion know, give them the reasons why and ask for a re-evaluation or a decision letter. Be sure to follow the proper procedures and timelines.
The Applicant was unable to say when he provided the Added Party with a copy of the Hellyer report. Although it refers to claims that are not under appeal, the April 11, 2012 Claim Inspection conducted by Mr. Krimmer states the following:
April 24, 2012 the report has been provided to the builder. The builder is obliged to review and respond to the problems with solution and repairs. At this claim appointment, the builder’s representative stated they would review the report, provide options for solutions and complete repairs. April 30, 2012 a meeting at the home was completed with the homeowner, builder’s representative and their P.Eng., to review the inspection report… The homeowner and builder have demonstrated their willingness to work together…
The evidence indicates that a number of repairs have been made to the Applicants’ home. While the Applicant focused on both the fact that the repairs are incomplete and on the lack of building permits in his testimony, he also argued that the items should have been warranted. While the Applicants apparently disregarded Hellyer’s recommendation to go back to Tarion and chose to work directly with the Added Party to attempt to resolve issues on items that Tarion had decided were not warranted, this neither abrogates their statutory right to appeal Tarion’s warranty decisions nor compromises the jurisdiction of the Tribunal.
The onus is on the Applicants to prove, on a balance of probabilities, that there has been a breach of warranty. The Applicants relied on the Hellyer and Kurkjian engineering reports to substantiate their claims, reading portions of the reports into the record. Notwithstanding the Applicant’s specific focus on the 2013 Kurkjian report in his closing statement, he clearly stated in his earlier testimony that he wants all of the repairs recommended in the Hellyer report to be completed.
Mr. Hellyer was not called as a witness at this hearing. His initial inspection of the Applicants’ home took place on January 10, 2012, only five days after Mr. Krimmer’s January 5, 2012 inspection. While the short time between these two inspections allows the Tribunal to reasonably assume that the condition of the Applicants’ home when Mr. Hellyer made his observations was unlikely to have changed substantially from that observed by Mr. Krimmer, the fact that Mr. Hellyer was not available to explain those observations means their evidentiary value is reduced.
Item 1. Basement: Wood frame sill plate partially on concrete foundation 2/3 of sill plate width, all around basement area.
The 2012 Hellyer report indicates that the sill plate “overhangs the foundation by more than two inches in several locations” and that in some areas, the plate is in direct contact with the concrete foundation. Mr. Hellyer noted that these items were in violation of the Code. Mr. Kurkjian testified that he agreed that the maximum overhang permitted was 1.8 inches but he did not observe any areas where it was exceeded. He then stated that the supporting ledger was installed only to address the Applicants’ concern. Mr. Kurkjian did testify that he agreed that the direct contact of the wood with the concrete foundation was a violation of the Code. Mr. Krimmer testified that he observed that the overhang exceeded that allowed, particularly in one corner, but decided that the item was not warranted because there were no visible signs of damage caused by movement. Mr. Krimmer did not provide any testimony with respect to the plate being in direct contact with the foundation.
Mr. Kurkjian confirmed that the issues raised by Mr. Hellyer with respect to the wood frame sill plate were violations of section 9 of the Code. While Mr. Kurkjian stated he did not observe an excessive overhang, Mr. Krimmer’s observations corroborate Mr. Hellyer’s findings. Mr. Kurkjian did corroborate Mr. Hellyer’s finding with respect to the contact of the plate with the concrete foundation and agreed that this was a Code violation. The Tribunal finds that that the overhang of the wood sill plate and its direct contact with the concrete to be a defect in workmanship. Further, section 13.1(a)(iii) of the Act requires that a home be constructed in accordance with the Code. The Tribunal therefore finds that this item is warranted.
The evidence indicates this item has been repaired but the Tribunal notes that Mr. Kurkjian testified that two further repairs including re-drilling anchor bolts and fixing a broken area of the foundation were outstanding. The latter repair addresses one of three anomalies cited in the 2013 Hellyer report. Mr. Kurkjian testified that it was “hard to say” that these anomalies were caused by the initial repair. Given that Mr. Hellyer did not testify, the Tribunal can only accept Mr. Kurkjian’s recommendation that only one of the three needs to be addressed.
Mr. Kurkjian estimated the two repairs set out in his May 8, 2013 report could be completed by two workers in one day. Ms. Peticca estimated that using the Added Party’s contractor, the repairs would take two workers half a day and cost $200 to $300. The range in their estimates is therefore $200 to $600. Recognizing the Applicant would be unlikely to be able to hire a contractor at the same rate as the Added Party, the Tribunal determines a reasonable cost of repair to be $480, the mid-point of the above range plus 20%.
Item 3. Basement: Smoke black marks on pink isolation (sic) around ducts on joists and on ducts
The Applicant relied on the 2012 Hellyer report to support his claim. This report states “...there is remaining visible evidence of fire damage which could adversely impact resale of the home, I strongly recommend that you insist on being provided with written documentation that the repairs were properly done and inspected by the municipality.” The report then states “people will want documented evidence of the extent of the fire damage and repairs.” The Applicant also referred to the 2012 Kurkjian report which states “Replace the insulation if possible or go with your suggestion to use stain klean or paint the wood if that’s acceptable.” Mr. Kurkjian testified that he did not address this issue in his inspections because it was not structural in nature. Mr. Krimmer testified that the insulation had in fact been replaced and that the homeowners advised him during the January 5, 2012 inspection that no further work was required. He therefore noted the item as being resolved.
The Applicant suggested that residual smoke particles were a potential health and safety issue but presented no evidence in this regard other than an estimate to treat the particles. He admitted that no air quality testing had been performed. Further, no evidence was produced to indicate that the surfaces on which the smoke marks remain, which are in an unfinished basement, are failing to perform their function. In fact, the 2013 Hellyer report states “The staining is cosmetic.” The Applicant has not proven that there is a defect in materials or workmanship and the Tribunal therefore finds that this item is not warranted.
Item 4. Garage: Missing J anchor bolts to secure garage sill plate wood frame to concrete foundation on the right side of the garage close to the garage entrance
The Applicant’s evidence comprised the 2012 Kurkjian report which recommends that a bar be used to tie the door side frame sill plate to the adjacent sill plate in order to anchor it to the frame. He then referred to the 2013 Hellyer report which states that “the front wall is not anchored to the foundation in accordance with OBC 9.23.6.1(2).”
Mr. Krimmer testified that the garage area in question was covered with drywall when he inspected on January 5, 2012. He could make no direct observations but he saw no evidence of damage that would result from J bolts not being installed. The Tribunal notes that Mr. Krimmer’s inspection report dated January 19, 2012 states “the builder completed repairs by securing the wood frame wall to the foundation in four areas… the homeowner that (sic) the wall is not secured in the first 12 inches at the front corner by the garage vehicle door.” While Mr. Hellyer’s 2013 report contains a photograph in which the drywall is cut, presumably to show there are no J bolts, the Tribunal notes that the 2013 Kurkjian report contains no reference to this item notwithstanding the fact it states “herewith is our report about structural issues as identified in a report prepared by the owners’ engineer, Mr. David Hellyer, P.Eng., dated April 25, 2013.”
The Applicant did not have Mr. Kurkjian provide any direct evidence on this item. With no direct testimony from either Mr. Hellyer or Mr. Kurkjian, there is insufficient evidence for the Tribunal to determine if the item comprises a structural issue, notwithstanding Mr. Hellyer’s observation quoted above. The Applicant has failed to prove his claim and the Tribunal therefore finds that the item is not warranted.
Item 7. Outside house: Bricks overhang the concrete foundation over 30mm right side of the house
The 2011 Kurkjian report indicates that the brick veneer on the left elevation of the Applicants’ home projects more than the maximum amount permitted. The 2012 Hellyer report also notes the brick overhang exceeds the permitted allowance. The 2012 Kurkjian report states “we are agreed that the projection as built does not meet Code.”
The evidence indicates that the Added Party did undertake repairs by installing a steel lintel to provide extra support to the brick veneer. Notwithstanding the Applicant’s expressed concern that the size of the lintel installed was changed from Mr. Kurkjian’s original specification, the Tribunal accepts Mr. Kurkjian’s testimony that he is satisfied with the repair. However, the 2013 Hellyer report indicates that the overhang still exceeds the maximum allowed by the Code and refers to damage to the foundation as “aesthetic workmanship issues.” Mr. Hellyer then recommends parging the concrete to address both of these items. Mr. Kurkjian testified he agreed with this recommendation, and, in his May 8, 2013 report, wrote “There is a change in the size of the angle ...which in our opinion is not a significant change. We are satisfied that the veneer is adequately supported. We are in agreement with Mr. Hellyer’s recommendation that some damaged portions of the wall be parged for cosmetic reasons.”
While the Tribunal notes that Mr. Krimmer testified that he observed no cracking or other damage and therefore assessed the item as not warranted, the Tribunal is persuaded by Mr. Kurkjian’s corroborating evidence that the addition of the steel lintel was necessary to provide adequate support to the veneer cladding and to meet the requirements of the Code. The Tribunal therefore finds that this item is warranted but notes that it has been repaired and that only the need for concrete parging remains at issue.
Mr. Hewitson testified that the municipality had no concern with whether or not the parging was completed, considering it to be non structural. Mr. Hellyer referred to both Code and “aesthetic” issues and Mr. Kurkjian recommended the “damaged portions of the wall be parged for cosmetic reasons.” The 2013 Hellyer report has a photograph which shows the damaged portion is directly below the bricks, where the lintel was inserted. While it is not entirely clear that the damaged portions were solely the result of the addition of the lintel, the Tribunal finds that the parging should be carried out in order to complete the repair and to bring the overhang to within the limits permitted by the Code. In this regard, the Applicant provided a non-itemized repair estimate in the amount of $3,390.00 for work including the parging and straightening the foundation. The Tribunal can therefore not determine the estimate for parging alone. Ms. Peticca estimated that the cost of parging by the Added Party’s contractor would be $400 to $500. The Tribunal determines a reasonable cost of repair to be $540, the mid-point of Ms. Peticca’s estimate, with the addition of 20% to reflect the fact the Applicants will not be able to negotiate the same as can the Added Party.
Items 21 and 22: Left side garage door doesn’t close properly; Garage doors frame trims nailed in wrong position, door does not open and close properly.
The bulk of the testimony presented with respect to the garage doors was related to the fact that a section of the foundation had been broken off under the wall and had been repaired by the Added Party. The Applicant noted that the 2013 Hellyer report contains the observation that following the repair, numerous cracks are visible in the mortar joints of the stonework above the garage doors. In this regard, the Applicant provided an estimate dated January 17, 2013 in the amount of $1,695.00 to re-point the stonework.
While he did not make it explicitly, the Applicant’s argument appears to be that the garage doors did not function properly because the wall was out of plumb; the foundation repair was undertaken to rectify the wall; and, the foundation repair damaged the mortar joints in the stonework above the garage.
The Applicant presented no direct evidence about the functioning of the garage door(s), the item actually under appeal. Rather, he referred to the 2012 Hellyer report which, under the title “New Item (2) Front house wood frame out of plumb”, includes the comment “this is likely (emphasis added) the primary cause behind Item 21 and 22 on the Year-End Report.” The Tribunal notes that the Hellyer report does refer to the doors later when it states:
if you use the two outer garage door walls to measure the specified planes, the limit is greatly exceeded which explains the trouble in fitting the doors. The warranty for this is one year and it was not reported on the Year-End Form except indirectly under Items (21) and (22).
While the wall might have been out of plumb and, given it was repaired, a section of the foundation clearly was broken, these items are not those under appeal. The Tribunal notes that “trouble fitting the doors” does not necessarily mean that the doors are not working properly. Mr. Hellyer was not called as a witness and the comments in his report cannot be substantiated. Mr. Krimmer testified that he did not assess the garage door in January, 2012 because it was not in his field notes. He indicated that this would normally mean the item was no longer at issue. Finally, Ms. Peticca testified that the Added Party had adjusted the doors and repaired the trim, the actual items under appeal.
The Applicant has not proven his claim. The Tribunal therefore finds that Items 21 and 22 on the Year-End Report are not warranted.
Finally, the Applicants have requested compensation totalling $1,879.59 in respect of the fees paid to Hellyer Engineering Limited, which the Applicant testified the Added Party had promised to pay. Not only does the Tribunal have no authority to enforce a private agreement between the parties, but Section 6(6) of R.R.O. Reg. 892 limits liability to damages to the home and provides for no liability for other direct or indirect damages such as engineering fees. Therefore this claim cannot be granted.
ORDER
Pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs Tarion to warrant Items 1 and 7 and to pay to the Applicants a total of $1,020.00 with respect to their repair. The Tribunal further directs Tarion to deny all other items in the Applicants’ claim.
LICENCE APPEAL TRIBUNAL
Mary Ann Spencer, Member
Released: June 26, 2013