Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2013-07-11
FILE:
7995/ONHWPA
CASE NAME:
7995 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-
Arista Homes (Boxgrove) Inc.
Added Party
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Patricia McQuaid, Vice-Chair
APPEARANCES:
For the Applicant:
Self-represented
For the Respondent:
Gena Argitis, Counsel
For the Added Party:
Ron Protocky, Agent
Heard in Toronto:
June 10, 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 March 12, 2013 with respect to a new home purchased from Arista homes (Boxgrove) Inc. (the “Added Party” or “Arista”), in which Tarion denied the Applicant's claim for compensation for delayed closing.
BACKGROUND
The Applicant entered into a purchase agreement with Arista on December 2, 2010. The Tarion Addendum Freehold Form (Tentative Closing Date), the “Addendum”, was attached to and formed part of the agreement. In the Statement of Critical Dates for the Delayed Closing Warranty, the first date set out is September 22, 2011. This was the date by which Arista anticipated the home would be completed and ready for occupancy by the Applicant.
Changing a closing date requires written notice to the homeowner. The Addendum states that notice of a delay beyond September 22, 2011 – the first tentative closing date, had to be given no later than June 24, 2011, 90 days before the first tentative closing date. Failing proper notice, Arista is liable to pay to the Applicant $150 per day for living expenses for each day of the delay, to a maximum of $7500. No receipts are required to substantiate the daily rate.
Arista sent written notice to the Applicant, by registered mail, extending the closing date to November 22, 2011. The letter was dated June 9, 2011. The Applicant did not receive that letter until June 28, 2011, four days after the requisite notice date. It is not disputed that there was a postal strike at the material time which caused the late delivery of that letter.
The Applicant has made a claim for delayed closing, asserting that he did not receive the notice as required in the Addendum. Tarion denied the claim, deciding that Arista had fulfilled its obligations under the terms of the Addendum.
At issue in this appeal is whether any of the communications between the Applicant and Arista representatives, either by telephone or by email on June 17 and 20, 2011, constitute “notice” as required by the Addendum. For the reasons that follow, the Tribunal finds that notice was given to the Applicant in such a way as to satisfy the requirement of the Addendum and therefore confirms Tarion’s denial of the claim for delayed closing.
EVIDENCE
The chain of events commences, for the purpose of this hearing, on June 17, 2011. On that date, Elaine Campbell, a project administrator with Arista, received a phone call from the Applicant. She had been communicating with him throughout the period of construction. Ms Campbell stated in her testimony that the Applicant told her in that phone conversation that he was aware that the deadline for notice of delayed closing was fast approaching and asked her how he would be notified of a delay, given the postal strike. She responded that she would make inquiries and get back to him. When questioned about her recall of this conversation, Ms Campbell stated that the circumstances raised a “red flag” for her in that the Applicant indicated that he knew that if he was not notified, he would be entitled to a claim for delayed closing.
The Applicant, in his testimony, did not disagree with Ms Campbell’s recounting of this phone call. He did initiate the call to Ms Campbell. However, he did not recall that she followed up with a phone call later that day and advised that the closing date would in fact be delayed, to November 22, 2011. He did agree that she told him that Maor Schpans, Arista’s Sales and Marketing Manager would get back to him though he was not clear whether she said there would be an email from Mr Schpans.
Arista has produced an email from Maor Schpans to the Applicant dated Monday, June 20, 2011 (Exhibit 4, tab 8). The subject line of the email reads: ”REVISED CLOSING DATE – Lot 0127DL Plan #65M-4161 Arista Home (Boxgrove) Inc. Phase 4”. The email reads as follows:
“Hi (Applicant’s name),
Please be advised that your NEW CLOSING DATE will be November 22nd, 2011.
Attached is letter that was sent out be registered mail on June 9th, 2011. We will be re-sending
the letter out again.
Thanks”
The Applicant denies receipt of this email. He states that if sent, there was no follow up call by Arista to confirm receipt of the email nor is there any email delivery status notification produced by Arista, hence no proof that the email was actually sent successfully to his email address.
The Applicant did provide his email address to Arista as early as March 30, 2011 (see Exhibit 4 tab 7). Arista has provided, in its book of documents, numerous emails between it and the Applicant regarding a variety of issues. Nat Brioschi, as Arista’s ‘Home Care’ Manager, in his evidence, stated that he had counted at least 80 emails between himself and the Applicant, from November 2011 to 2013 when they were dealing with issues immediately before and after closing. The Applicant, too, has produced emails between himself and Ms Campbell for the period April and July 2011 regarding the brick colour and the exterior front porch stairs. He has also produced emails between himself and the Tarion Ombudsperson. There is no indication in the evidence that any of these emails from Mr Brioschi, Ms Campbell or the Ombudsperson were not received by him.
The Applicant asserts that he used email for general purposes. He did not give his email address for the purposes of ‘official’ notice. For example, he did not give his email address on the Addendum. There, his address and phone number are provided. The first three paragraphs of section 15 of the Addendum state:
- Time periods, and How Notice Must Be Sent
(a) Any written notice under this Addendum may be given personally or sent by email, fax, courier or registered mail to the Purchaser or the Vendor at the address/contact numbers identified on page 2 or replacement address/contact numbers as provided in paragraph (c) below. Notices may also be sent to the solicitor for each party if necessary contact information is provided, but all notices in all events must be sent to the purchaser and vendor as applicable.
(b) Written notice given by any one of the means identified in paragraph (a) is deemed to be given and received: on the date of delivery or transmission, if given personally or sent by email or fax …or on the fifth Business day following the date of sending, if sent by registered mail. If a postal stoppage or interruption occurs, notices shall not be sent by registered mail and any notices sent by registered mail within 5 Business days prior to the commencement of the stoppage or interruption must be sent by another means if it is to be effective….
(c) If either party wishes to receive written notice under this Addendum at an address/contact number other than identified on page 2, the party shall send written notice of the change of address/contact number on the other party.
As stated in his Notice of Appeal, and expanded upon in his testimony, the Applicant questions the professionalism and integrity of both Tarion and Arista. To illustrate this, he cites the fact that the Warranty Assessment Report that he requested from Tarion was delivered months beyond its due date with little or no explanation from Tarion. Arista completed identified Pre-Delivery Inspection items late. They both failed to meet deadlines in his view. Whether or not Tarion ought to have completed the Warranty Assessment Report (which was requested by the Applicant and for which he paid a fee) on time or whether there are other issues related to the construction of the home by Arista, these are not matters germane to the issue to be decided by the Tribunal, however frustrating these may be for the Applicant.
ANALYSIS
The Applicant very succinctly summarized his position. He received notice of the delayed closing on June 28, 2011, four days late. There was no agreement, pursuant to s. 15 of the Addendum, for delivery of official documents by electronic means. Furthermore, there was no follow up call, or email, from Arista confirming that the email of June 20th was received, nor has Arista produced a delivery status report to confirm that the email was, in fact, sent. There were other means available, for example, courier, or notification to his lawyer which would have provided an “audit” trail. He submitted that the onus was on Arista to ensure that official documents were received by the homeowner. The fact that Tarion then issued its Warranty Assessment Report late (after first sending him the wrong report), thereby failing to abide by its own timeframes, only exacerbated the Applicant’s doubt about the integrity and professionalism of Tarion itself.
Ms Argitis, in her submissions, noted that Arista sent the notice of delayed closing by registered mail on June 9th. The postal stoppage occurred on June 14, thereby requiring Arista to re-send notice as per s. 15 (b) by another means. An email was sent on June 20, and pursuant to s.15(a) , the notice was deemed effective that day, prior to the June 24th deadline. Ms Argitis submitted that even if the notice was not received until June 28th, four days late, the intent of the delayed closing provisions was met, and there is no actual loss. The Tribunal does not accept that argument. Tarion does apply notice provisions strictly and mechanically. The Tribunal does find here, that the strict deadline was met.
It is true that the Applicant provided only his mailing address and phone number on the Addendum. However, based on the testimony of both the Applicant and Ms Campbell, it was understood by each of them, on June 17th, that the September 22nd closing date would not be met. In fact, Arista sent a letter by registered mail on June 9, in compliance with paragraph 15(a) of the Addendum. It was not delivered due to the postal strike. Paragraph 15(b) addresses that possibility: notice must be re-sent by another means in order to be effective. Courier was an option. But here the parties spoke on June 17th and an email followed on June 20th. Whether Ms Campbell told the Applicant, in a second telephone conversation on June 17,that the new closing date would be November 22, 2011, is not essential to the Tribunal’s finding. What is of significance is that an email was sent on June 20. The Applicant says it was not received and in any event, it was not a permitted form of communication.
The Applicant referred the Tribunal to paragraph 15(c) which states that if either party wishes to receive written notice under the Addendum at an address/contact number other than that identified on page 2, they shall send written notice of the change to the other party. This requirement for notice of a change in address extends a level of protection for each of the purchaser and builder, minimizing the possibility of either party evading notice by changing address as the deemed notice provisions will otherwise apply. He asserts that he did not send notice in as he was not seeking to change the address given by him.
Though the Applicant did not give his email address on the Addendum form, he did provide it on the Arista Client Information Form. The Applicant regularly communicated with the builder by email. He continued to use email, for example, on the Tarion Delayed Closing Form, an official document. Arista was required to re-send communication about the delayed closing ‘by another means” and it did so on June 20th, by email and at the address by which it had been communicating with the applicant.
Email communication is deemed to be received on the date of transmission. But the Applicant asserts that in fact, it was not received, and there is no proof it was sent. Though earnest in his conviction that Tarion and Arista failed to follow the strict technical provisions both in the addendum and Tarion’s own policies, and therefore compensation is owed to him, viewing all of the evidence, it is not plausible that the email of June 20 was the only email not received by him.
On these facts, the Tribunal finds that there was actual notice on June 20, 2011. Ironically, in this instance, the homeowner is trying to shield himself from having that knowledge attributed to him, by his reliance on the strict wording of the Addendum. The Tarion program is designed to protect purchasers; the delayed closing warranty is there to compensate purchasers in the event of delay where proper notice is not given. It is not intended to be a punitive measure.
ORDER
Pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs Tarion to deny the claim in full.
LICENCE APPEAL TRIBUNAL
Patricia McQuaid, Vice-Chair
Released: July 11, 2013