7165 v. Tarion Warranty Corporation, 2013 CanLII 51144

Licence Appeal Tribunal

DATE: 2013-08-08

FILE: 7165/ONHWPA

CASE NAME: 7165 v. Tarion Warranty Corporation

An Appeal of a Decision of Tarion Warranty Corporation under the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O. 31 – to Disallow a Claim

Applicant: 7165

-and-

Respondent: Tarion Warranty Corporation

-and-

Added Party: 695059 Ontario Inc.

REASONS FOR DECISION AND ORDER

ADJUDICATOR: Simon Dann, Member

APPEARANCES:

For the Applicant: Self-Represented

For the Respondent: Ellie Choi, Counsel

For the Added Party: Brian Campbell, Counsel

Heard in Toronto: October 24, 25, 2012 and May 7, 8, 2013

REASONS FOR DECISION AND ORDER

This is an appeal by the Applicant (“the Applicant”) to the Licence Appeal Tribunal (the “Tribunal”) from Decision Letters of Tarion Warranty Corporation (“Tarion”), with respect to a new home purchased from 695059 Ontario Inc., (the “Added Party”), in which Tarion denied the Applicant’s claims as follows:

Claims denied from the Tarion Decision Letter dated December 21, 2011:

• that the flooring installed was oak hardwood instead of maple “as per contract”;
• that the kitchen gable does not extend depth of fridge “as per contract”;
• that the jets in the Jacuzzi tub in the master ensuite were installed as white plastic jets instead of chrome “as per contract”;

Claims denied from the Tarion Supplementary Decision Letter dated March 23, 2012:

• that there are paint “splatters” on cabinetry in the kitchen which need to be cleaned up;
• that the interior staircase wood posts, railings and caps are not properly stained and there are rough edges causing splinters.

As a preliminary matter, a request for the exclusion of witnesses was granted.

The Applicant’s request that documents just received from the Respondent and Added Party not be allowed as evidence in the hearing was also granted.

The parties agreed that the issues before the Tribunal were only items 2, 4, 7, from the Tarion Decision Letter of December 21, 2011, and items 1, 3 from Tarion’s March 23, 2012 Decision Letter. The staircase claim item noted in the Tarion Decision Letter of May 1, 2012 would not be included.

As a preliminary matter on the second day of the hearing, the Applicant referred to the RONA quote on the basis that she would like to include the staircase in the hearing.

Counsel for Tarion and for the Added Party objected arguing that the staircase was covered by the May 1, 2012, Supplementary Decision Letter from Tarion (Exhibit 6). This Decision Letter was issued after the Decision Letter dealing with the complaints already noted for this hearing.

Tarion’s counsel agreed that subject to the outcome of this hearing, the Applicant could choose to file a Notice of Appeal. Despite the late date of such an appeal, both Ms. Choi and Mr. Campbell agreed they would not object.

The exhibits entered for reference through the hearing will be found in the Appendix to this Decision.