Licence Tribunal
Appeal d'appel en Tribunal matière de permis
DATE: 2013-08-02
FILE: 6957/ONHWPA
CASE NAME: 6957 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 Applicant
-and-
Tarion Warranty Corporation Respondent
-and-
Braemore Wood Developments Inc. Added Party
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Mary Ann Spencer, Member
APPEARANCES:
For the Applicant: Self-represented
For the Respondent: Jillian Siskind, Counsel
For the Added Party: Theodore B. Rotenberg, Counsel
Heard in Toronto: July 15 and 16, 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 August 31, 2011 in which Tarion denied the Applicant’s claim with respect to a new home purchased from Braemore Wood Developments Inc. (the “Added Party”).
The items under appeal are set out in the Tribunal’s Pre-Hearing Order dated January 22, 2013:
Noise from the residence’s party wall (Item 11 in the Decision Letter);
Squeaky stairs (related to item 12 in the Decision Letter); and
Mould stains in the basement (related to item 17 in the Decision Letter).
FACTS AND EVIDENCE
In her opening statement, the Applicant stated that she has been suffering anxiety and depression as a result of the purchase of her home. Noise transference from her neighbour’s house has meant she is living in a “communal dwelling”. Further, mould was discovered in her home and she suffered from extended exposure before it was remediated. She fears that her house is now known as a “mould house” and that it has been significantly devalued. She also alleges that her human rights have been violated.
The evidence of the Applicant comprised books of documents entered into evidence as Exhibits 3 and 4, her testimony and the testimony of six witnesses.
Tarion’s evidence comprised books of documents entered into evidence as Exhibits 5, 6 and 7 and the testimony of Tarion representatives Andrew Wilson and Daniele Conde and expert witnesses Alex Lorimer and Michael Chymycz. The evidence of the Added Party comprised books of documents entered into evidence as Exhibits 8 and 9 and the testimony of Edward Millian of Braemore Wood Developments Inc. and Dominic Condo from Weston Flooring.
1. Noise from the residence’s party wall
The Applicant took possession of her home on January 28, 2010. She testified that after her neighbours moved into the adjoining townhouse, she could hear them walking and talking and could hear their television through the common or party wall. Referring to photos in Exhibit 4, Tab 11, she stated that the wall has not been constructed in accordance with the plans submitted to the municipality: the electrical outlets on the wall are sealed (Photo 29); there is only a 5/8” instead of a 1” air cavity (Photo 26); and, both sides of the wall are insulated with fibreglass. She submitted that noise transference is resulting because the wall is not constructed in accordance with the Ontario Building Code (the “Code”).
On cross-examination, the Applicant agreed that the City of Brampton had confirmed in a letter dated August 14, 2012 and in prior e-mails (Exhibit 9, Tab 4) that the party wall was built in accordance with the Code and that fibreglass insulation was acceptable. She also agreed that acoustical testing indicates that the wall meets Code requirements but stated that Tarion representative Andrew Wilson should have been inside the house when testing was conducted in order to validate the results.
Witness H.K., the Applicant’s daughter, lives with the Applicant. She testified that when she and her mother initially moved into their home, they could hear construction noise from the adjoining townhouse. When their neighbours moved in, they could hear walking and talking although this is less noticeable on the home’s second floor.
Witness J.D., a neighbour of the Applicant’s, testified that he has noise in his home. Counsel for both Tarion and the Added Party objected to the testimony. The Tribunal instructed the Applicant to limit her witnesses’ testimony to their knowledge of the issues in her home.
Witness K.D., a friend of the Applicant’s daughter, testified that he visits the Applicant’s home at least twice a week and hears the Applicant’s next door neighbours every time. He stated he can hear their daily activities including their footsteps and their television.
Witness J.A., a friend of the Applicant’s daughter, testified that she visits the Applicant’s home two to three times a month and can hear footsteps and the television in the adjoining townhouse. She indicated that she has been in many townhomes but has never heard similar noises.
Witness J.R., a neighbour of the Applicant’s, testified that she had been in the Applicant’s home the night before the hearing and that she could hear noises coming from the adjacent townhouse.
On the first day of the hearing, the Applicant advised the Tribunal that because she and the neighbour who owns the adjacent townhouse have a bad relationship as a result of the noise issue, the neighbour would not attend the hearing, notwithstanding the fact he had received a summons. At the beginning of the second hearing day, the Applicant advised that the neighbour was present and she wished him to testify. Both Counsel for Tarion and the Added Party objected given the Applicant had completed presentation of her case. Because the Applicant was self-represented, the Tribunal allowed the witness to testify.
Witness R.B. lives in the townhouse which adjoins the Applicant’s. He testified that he hears the Applicant’s television well as the Applicant and her daughter walking and talking and the noise interferes with his and his father’s sleep. He indicated that he and the Applicant are constantly fighting, banging on the party wall to attempt to get the noise to stop.
Andrew Wilson is currently a Warranty Services Representative with Tarion and was formerly a Senior Field Claims Representative responsible for conducting conciliations and assessing claims for warranty coverage.
On July 26, 2011, Mr. Wilson conducted the inspection of the Applicant’s home following receipt of her year-end form (Exhibit 5, Tab 4). With respect to noise transmission through the common wall, Mr. Wilson testified that the Applicant was concerned that the gap between the walls of her unit and the adjoining unit was less than that on the drawings submitted to the municipality; that there was insulation on both sides; and that outlets had no acoustic sealant.
Mr. Wilson testified that he spoke to the municipal building inspector who confirmed the Code requirement for a common wall as set out in section 9.11.2.1(1) is for a sound transmission class (STC) rating of at least 50. The Supplementary Standards of the Code, which contain laboratory tested STC ratings for various types of wall assemblies, indicate that the transmission ratings for walls with one side and with two sides of insulation are 54 and 57 respectively. Referred to a letter from Cromwell Construction (Exhibit 4, Tab 10), which states that the measurement between the walls of the Applicant’s and her neighbour’s homes is 5/8” instead of the 1” shown on the drawings, Mr. Wilson stated that this was not significant; to confirm, he spoke to the municipal building inspector who stated the STC would be over 50, and to the instructor of a Code course he was taking who confirmed that the determining factor for noise transmission was that the structural components not be touching. Finally, he testified that the Supplementary Standards do require that outlets be sealed but that he did not believe this was an issue in the Applicant’s home because the common wall had double insulation. Mr. Wilson did not warrant the item.
Alex Lorimer is a professional engineer employed by HGC Engineering and specializing in acoustics who has extensive experience related to residential construction. Mr. Lorimer, a member of the Acoustical Society of America and the Canadian Acoustical Association, was ruled to be qualified as an expert in the area of acoustics.
HGC Engineering was retained by Tarion to perform testing in the Applicant’s home to determine if the STC rating of the party wall in the Applicant’s home is in compliance with the Code. The testing was conducted on November 29, 2012 in accordance with the test standard set out in the Code.
Mr. Lorimer noted that the Code sets standards for airborne but not for vibration noise which could result from a television mounted on a wall, for example. He also indicated that the noise transmission levels can be affected by furniture placement in a room and noted that the test includes measuring the ambient noise level.
Mr. Lorimer explained that the Code states that the construction separating dwellings must have an STC rating of 50 or more. This can be tested in either a laboratory or in the field. The Code Supplementary Standards include a list of compliant wall assemblies, which include laboratory tested STC ratings for each assembly. He noted that the Supplementary Standards indicate that acoustical sealant is to be used around outlets but stated that if an assembly meets the rating of greater than 50, it is compliant. Mr. Lorimer noted that the standard does not mean that no airborne noise is transmitted and indicated that relative sound also matters; for example, a loud source would make a larger impact in a very quiet room.
Mr. Lorimer testified that the measured STC rating of the common wall in the Applicant’s home was 56, which is in compliance with the Code (Exhibit 7, Tab 2). The testing he performed would have a margin of error of approximately 2 points. He noted that he did not observe any significant flanking or leaking paths in the wall during the test and explained that flanking occurs when sound travels around a wall and leaking occurs through the wall if there are openings. Asked what would typically be heard through a wall with an STC rating of 56, Mr. Lorimer stated very loud speech or shouting would be heard.
Mr. Lorimer testified that fibreglass is a reasonable insulator and that there would only be a one or two point difference in the STC rating if mineral fiber insulation was used. He also noted that typically, the more insulation used, the better the sound absorption.
The Applicant asked Mr. Lorimer why he had not asked her to move furniture away from the wall if this could inflate transmission of sound. Mr. Lorimer noted that the test is designed to test the actual conditions experienced. He stated that representative sampling is the standard way to perform the test. In the Applicant’s home, he conducted the test on the first floor because he had been told the problem was greatest there.
The Applicant showed Mr. Lorimer photographs of unsealed outlets in the party wall and asked if he was aware of these before he tested. Mr. Lorimer indicated that checks for leaks are done during the test and that while unsealed outlets are potential acoustical paths, he repeated that he observed no leaking during the testing. Asked if a 5/8” or 1” gap between walls would make a difference, Mr. Lorimer indicated that separation of the wall plates was the important factor. The Applicant then asked why Mr. Lorimer had not performed an “ICC” test. Mr. Lorimer explained that this test is not required by the Code and that in fact it tests sound transmission between floor and ceiling partitions. The Applicant then asked Mr. Lorimer why she would still be hearing sounds if the party wall met Code requirements. He responded that she might be hearing vibration noise which the Code does not cover.
Edward Milian is employed by the Added Party as a project manager. Mr. Milian testified that the plans for the party wall in the Applicant’s home (Exhibit 8, Tab 2) show that the STC rating for the assembly, with one side of insulation, is 54. He also noted that the plans state that fill on one side of the stud cavity should be processed from “rock, slag or glass” and that fibreglass was used on both sides of the stud cavity in the Applicant’s home. He further testified that the checklists on the back of both the Applicant’s and the adjoining home’s building permits (Exhibit 8, Tab 3) indicate that building inspectors signed off on the relevant structural framing and fire separation items.
2. Squeaky Stairs
The Applicant indicated that after the floor of the landing in her home was fixed, the stairs began to squeak and that no repair has been made even though the stairs have been investigated more than once. Asked by Ms Siskind if the noise was seasonal, the Applicant stated it was not. Mr. Rotenberg referred the Applicant to an e-mail sent to the Added Party on August 8, 2012 (Exhibit 9, Tab 2) in which she wrote:
The hardwood flooring should not be address (sic) in the summer. I will allow you to take a look at the problem when it is the right time to do so.
Mr. Rotenberg then asked the Applicant if she recalled that the Added Party had difficulty obtaining access to her home. He referred her to a September 10, 2012 letter from the Added Party to Tarion on which she was copied (Exhibit 9, Tab 9) and to her response to Tarion dated September 11, 2012 (Exhibit 9, Tab 10) in which she wrote:
I have never denied Braemore Construction access to my home to investigate the stairs. The stairs is a seasonal item that must be addressed during the right season. The flooring company has indicated that due to the humidity in the summer months it is not the ideal time to address the problem. Mr. Millian is aware of this so I am not sure why he is trying to gain access to my home at this time. The stairs can be addressed in the fall when the weather is much cooler and you are able to hear the squeaks.
Asked about a letter written by Mississauga Stairs & Railing Inc. on February 12, 2013 (Exhibit 9, Tab 11) in which the author sets out that the homeowner called the company upset because a serviceman had been at her home, the Applicant stated that the letter was inaccurate. She stated that she had not been expecting anyone from Mississauga Stairs and the builder was disrespectful in not advising her someone from that company would be at her home with Weston Flooring that day.
Asked if she was saying that the builder did not care about her problem, even though they had sent both Mississauga Stairs and Weston Flooring to investigate it, the Applicant said “exactly”. Finally, she acknowledged that her September 11, 2012 letter repeats what she had been told by Weston Flooring with respect to seasonality but stated that the stairs now squeak “24/7/365”.
On the second day of the hearing, after her case had closed, the Applicant asked to submit a video which she indicated recorded the squeak of the stairs. Counsel for Tarion and Counsel for the Added Party both objected. Because the video had not previously been disclosed to the other parties, the Tribunal did not allow it to be entered into evidence.
With respect to the stairs, Mr. Wilson testified that he initially understood the issue was squeaking on the landing, item 12 in the year end form, which the builder has repaired. The homeowner then reported that the stairs were squeaking as a result of the repair. On November 29, 2012, when Mr. Wilson was at the Applicant’s home for acoustical testing, he tested the stairs, and, by applying weight, was able to produce a squeak. Tarion’s Construction Performance Guidelines (Exhibit 5, Tab 9) require that a floor be “free of squeaks caused by movement in the floor system connections under normal loading conditions”. Mr. Wilson did not observe any evidence of loose connections. He noted that the Applicant told him the squeak was sporadic and he considered that humidity changes could be the cause.
Dominic Condo is the customer service manager at Weston Flooring, the company which installed the floors in the Applicant’s home. He testified that he investigated the stairs on February 12, 2013. To test for squeaks, he both walked normally and then applied pressure. He reported to the Added Party that no squeaking was evident (Exhibit 9, Tab 11).
Item 3: Mould Stains in the Basement
Referring to photographs filed as Exhibit 4, Tab 3, the Applicant testified that shortly after moving into her home in January 2010, she noticed water stains on a living room wall (Photo 2). After she contacted the Added Party, the wall was patched. However, after the stain reappeared, she again contacted the Added Party and, after receiving no response, contacted Tarion. The Added Party subsequently called her and, four days later, a representative came to her house. Two areas of drywall were cut from the bulkhead and a leaking pipe was discovered (Photo 3). This was repaired using PVC pipe and glue. Evidence of mould was visible on the removed pieces of drywall which the Applicant testified were left on her living room floor until she boxed them and moved the box to her garage (Photos 4 to 6). The Applicant stated that mouldy drywall should not have been left in her living room and that she tried unsuccessfully for some months to have the box containing the debris removed by the builder.
The Applicant was concerned that mould remained in the bulkhead and reported the item on her year-end form. However, Tarion representative Andrew Wilson did not warrant the item at his initial inspection. The Applicant testified that both she and her daughter began to have health problems which she believed were the result of exposure to mould and so she again contacted Tarion. Tarion representative Daniele Conte conducted a further investigation, accompanied by mould specialist Mike Chymycz. Air quality testing was conducted and evidence of mould was discovered in the bulkhead and in the basement. On a subsequent visit, after a large opening had been cut in the bulkhead to reveal the pipe, Tarion agreed that the pipe repair had been improperly completed (Photo 10) and warranted the item.
The mould was remediated but the process took thirty days during which the Applicant had no access to her basement, living room or kitchen areas (Photos 15, 16). The remediation process in the basement resulted in ‘shaving’ of the joists and staining (Photos 21, 22) which the Applicant, having obtained an independent home appraisal (Exhibit 4, Tab 14), believes potentially has created structural issues and has devalued her home.
After the remediation, Tarion contacted the Applicant and offered to address the staining in the basement area with a new product that had recently become available. The Applicant indicated that she did not trust Tarion and therefore refused the offer.
On cross examination, the Applicant agreed that when she requested conciliation from Tarion, the leaking pipe was fixed. She also agreed that when Tarion representative Andrew Wilson originally looked at the wall, there was no visible water staining but that Tarion did come back after she continued to express concern. Air quality testing was performed and mould was also discovered in the basement. The Applicant also agreed that Tarion did send in the remediation company and that air quality testing was also completed after remediation. Finally, the Applicant agreed that she did not have any medical letters stating that mould was responsible for any health problems but stated she believes it is “100%” responsible.
The Applicant’s daughter, H.K., testified that approximately one month after moving in, a water leak was noticed on the living room wall. The builder’s representative suggested that the leak was coming from H.K’s bathroom through a vent. When a representative did come and cut into the bulkhead to repair the pipe, mould was visible in the debris and H.K. assumed that there was additional mould in the bulkhead because the cut had been made at random. She testified that she sometimes sleeps in the basement and experienced health issues as a result of mould although she also stated that her doctor did not confirm this was the cause.
Mr. Wilson testified that when he inspected the Applicant’s home on July 26, 2011, he understood her major concern to be that mouldy drywall that had been removed from the bulkhead had been kept in her garage. He indicated that he could neither see nor smell any evidence of mould in the living room and stated that he did not consider opening the bulkhead because this would be destructive testing which only the Applicant can approve.
Daniele Conte is employed by Tarion as a Warranty Service Representative. He has experience in construction, having worked as a renovator and having studied construction engineering technology. He has specific experience with mould, having handled a number of cases involving mould and having written a staff guide on how to address it.
Mr. Conte testified that he was assigned to the Applicant’s file after she had notified Tarion about health issues she believed were caused by mould. He conducted his initial inspection on June 28, 2012, accompanied by Michael Chymycz, whom Tarion had retained to conduct sampling. Nothing was visible at the bulkhead area and the Applicant was asked to make a small hole to permit air testing. On a second visit, tape lifts were conducted after the Applicant had cut a significantly sized hole in the bulkhead. Because Mr. Chymycz’s inspection identified mould in the basement, air and tape lift samples were taken there. Mr. Conte noted that mould in the basement had not been identified or claimed previously by the Applicant who was asked to submit a Major Structural Defect form to Tarion to enable it to address the issue.
Mr. Conte testified that while the air quality test results were good, lab results indicated mould was present and Tarion warranted the item. Mr. Conte also noted that when the bulkhead had been opened, he was able to view the pipe repair and this item was also warranted.
Tarion retained Mr. Chymycz to perform mould remediation which involved removing drywall and cleaning the studs in the living room and cryo-blasting in the basement. The homeowner is responsible for moving items to prepare for the process. In this case, however, after learning that the Applicant was going to cancel the remediation because she did not have anyone to help her move her belongings, Mr. Conte asked Mr. Chymycz to assist her. Mr. Conte also noted that remediation does not extend to cleaning personal property because the Act does not cover secondary damages.
After remediation, Mr. Chymycz conducted a further inspection and testing. Mr. Conte testified that although the homeowner expressed concern with staining on the joists and subfloor in the basement, this is not warranted because it is not a defect. Asked by Mr. Rotenberg if cryo-blasting affects the structural integrity of the joists, Mr. Conte stated that to his knowledge, it does not.
The Applicant asked Mr. Conte what type of allowances Tarion provides for homeowners during remediation. He indicated that nothing is provided if the home is habitable, but that discretionary payments of up to $150 a day could be provided if it is uninhabitable. Asked if there is a certificate that states a house is mould free, Mr. Conte referred the Applicant to the post-remediation report prepared by Mr. Chymycz. Asked if he believed he had treated the Applicant fairly during the remediation, Mr. Conte stated that based on Mr. Chymcyz’s assessment, he did not believe the Applicant had to leave her home.
Michael Chymycz, formerly a manager at Gemco Engineering and Environmental Services, is an inspector certified by the National Association of Mould Professionals and is certified as a microbial investigator by the American Council for Accredited Certification. Mr.Chymycz was ruled to be qualified as an expert in the area of mould identification and remediation.
Gemco was retained by Tarion to determine if there was mould contamination in the Applicant’s home. Mr. Chymycz testified that he visited the Applicant’s home twice. At the first visit, air samples were taken from each floor and from within the bulkhead. All samples showed indoor mould levels significantly lower than control samples from the exterior air which he stated generally means there is no mould contamination and that the home is “clean”. He saw no evidence of mould on the main floor of the Applicant’s home but did see mould on the joists and subfloor in the basement. This was sampled, analyzed and identified as being at moderate to abundant levels.
Mr. Chymycz testified that the humidity level of wood needs to be 20% or higher to support mould growth. The level in the Applicant’s home was lower; the mould in the Applicant’s basement was not active. He then indicated that mould growth often happens during construction due to humid environments resulting from concrete curing and new building materials drying and stated that it was likely that mould in the basement was established a significant time before his testing. He also noted that it is not unusual to find mould on new wood when it is purchased.
At his second visit, Mr. Chymycz was able to take samples from pieces of drywall which the Applicant had cut from the bulkhead. Mould was present but because the sample areas were dry, he determined it was either dormant or dead. He indicated that the mould found in the basement and in the bulkhead were unlikely to be related, stating that very little mould would be able to escape from the bulkhead into the general environment.
Mr. Chymycz recommended that the basement and bulkhead areas be decontaminated. For the bulkhead, the area was contained, a Hepa filter was installed, drywall was removed and the wood framing was manually cleaned and treated with a fungicide. In the basement, the mould was cryo-blasted with dry ice. Asked if this method affects structural integrity, Mr. Chymycz indicated that he is not an engineer but noted that cryo-blasting is recommended in insurance restorations to remove soot. It can leave residual staining and he stated that he did see some evidence of this in the basement, which he described as ‘not significant’. Staining can be removed with bleach, a method Mr.Chymycz does not recommend. However, he noted that a new product has recently become available which appears to be effective although there is no guarantee it would be completely effective.
Mr. Chymycz indicated that for liability reasons, his company does not normally assist in moving household belongings to prepare for remediation. However, in this case, he was asked to help and did so.
Mr. Chymycz conducted a post remediation inspection and sampling of the Applicant’s home. The laboratory results were normal and there was no evidence of mould growth on surface samples (Exhibit 6, Tab 3).
On cross-examination, the Applicant asked if the remediation report could be used to help her sell her home. Mr. Chymycz replied that he has been asked on a number of occasions to inspect homes or provide letters for this purpose. The Applicant also asked if before cryo- blasting, Mr. Chymycz had been aware that the joists in her house were engineered. He indicated that he had not been but that he has cryo-blasted engineered joists before without issues.
Human Rights Complaint
The Applicant testified that she has been poorly treated for eighteen months. She stated her life was “turned upside down” and her home was a construction site during the thirty day period during which the mould was remediated. She and her daughter were left to fend for themselves with the bedrooms being the only usable areas in their home. Tarion made no offer to relocate them even though the home was uninhabitable with no access to the kitchen. She stated that she deserved to be treated like a human being and that Tarion could have provided hotel accommodation and paid for food expenses. She provided invoices for food to Tarion but they would not accept them telling her she would “have to eat anyway”. Further, they received no assistance in preparing for the remediation and had to move furniture themselves. She believes that furniture that remained in the basement is contaminated with mould and no offer has been made to clean it.
The Applicant also testified about a remark made by a representative of the Added Party at a pre-hearing in this matter. The Tribunal notes however that the proceedings at the pre-hearing are without prejudice to the hearing.
On cross-examination, Ms Siskind asked the Applicant if she had raised her human rights concerns with Tarion. The Applicant stated that she had only raised the issue of reimbursement for food because she was more concerned with getting things in her home fixed.
Mr. Conte testified that the Applicant did not ask Tarion to move her and her daughter to a hotel. He noted that the home was habitable because it had electricity and running water. He further noted that the kitchen was accessible and that the Applicant could have asked that the tarps be rearranged. The Applicant did request reimbursement for meal costs but Mr. Conte’s manager did not approve them. He then testified that the Applicant never suggested to him that she was being treated differently or discriminated against because of her gender.
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.
Breach of Warranty:
- (3) Subject to the regulations, an owner of a home is entitled to receive payment out of the guarantee fund for damages resulting from a breach of warranty if,
(b) the person has a cause of action against the vendor or the builder, as the case may be, for damages resulting from the breach of warranty. 1998, c. 19, s. 185 (1); 2000, c. 26, Sched. B, s. 15 (3, 4).
(4) Subject to the regulations, an owner who suffers damage because of a major structural defect mentioned in clause 13 (1) (b) is entitled to receive payment out of the guarantee fund for the cost of the remedial work required to correct the major structural defect if the owner makes a claim within four years after the warranty expires or such longer time under such conditions as are prescribed.
Section 6 of R.R.O. 1990, Regulation 892 sets out the limits of liability under the Act. In this respect, it states:
- (6) Liability under subsection (3) or (4) is limited to damage to the home only and liability under subsection (5) is limited to damage to the common elements only and there is no liability for any other damage, direct or indirect.
Section 1 of the Human Rights Code, R.R.O. 1990, c.H.19 states:
Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.
APPLICATION OF LAW TO FACTS
In her closing statement, the Applicant asserted that both Tarion and the builder have been negligent in addressing the issues in her home. There is an ongoing problem with sound transmission through the party wall which she wants to be rebuilt. The stairs require repair to address the squeak and she wants written documentation confirming her home is mould free. She is seeking compensation of $184,795, which includes $150,000 for breach of warranty, $17,479.99 to repair the party wall, $10,000 relating to ongoing health issues and $6,180 representing a cost allowance with respect to the mould remediation period.
The onus is on the Applicant to prove, on a balance of probabilities, that there has been a breach of warranty. In making its decision, the Tribunal has relied on the evidence of the parties and has considered the authorities submitted by Counsel for Tarion.
Item 1: Noise from the Residence’s Party Wall
The evidence indicates that the party wall in the Applicant’s home complies with the Code.
Correspondence from the City of Brampton indicates that the party wall construction specified on the drawings submitted with the building permit documents was an “approved construction assembly” as set out in the Supplementary Standards of the Code (Exhibit 9, Tab 4). Further, the evidence indicates that the structural framing and fire separations were inspected by the municipality (Exhibit 8, Tab 3).
The results of the acoustical testing conducted by HGC Engineering (Exhibit 7, Tab 1) indicate that the STC rating of the Applicant’s party wall is 56, a level which exceeds the Code standard of a minimum of 50. Section 9.11.2.1.(1) of the Code states:
Except as provided in Sentence (2), every dwelling unit and every suite in hotels shall be separated from every other space in a building in which noise may be generated, by a construction providing a sound transmission class rating of at least 50, measured in accordance with Subsection 9.11.1. or as listed in Tables 1 and 2 of Supplementary Standard SB-3.
The Applicant noted that the outlets in the party wall in her home do not have acoustical sealant and provided photographs in this regard. The Tribunal notes that this sealant is stated as a requirement for the assemblies listed in the Supplementary Standards of the Code. However, Mr. Lorimer testified that he observed no sound leakage when he performed his acoustical test and, as noted above, the Code states that the minimum standard of 50 must either be achieved by measurement in accordance with subsection 9.11.1 or as listed in the Supplementary Standard. In this case, the standard has been achieved by measurement. The fact that the outlets are not sealed would be relevant only if the wall’s STG rating was less than 50.
The Applicant also noted that the air cavity in the party wall is smaller than that specified on the drawings and that the wall is insulated on two sides rather than one. Both Mr. Wilson and Mr. Lorimer testified that the important factor with respect to an air cavity is that the structures are not touching. In this case, there is an air cavity of 5/8” of an inch. And, both Mr. Wilson and Mr. Lorimer testified that insulating both sides of the wall would provide better sound insulation.
In its pre-hearing Order dated January 27, 2012, the Tribunal ordered:
The Applicant shall arrange to have the party wall of her home inspected by an independent inspector/expert of her choice prior to the second pre-hearing.
Tarion retained HGC Engineering after the Applicant failed to retain an expert as ordered. Notwithstanding this, the Applicant, in her closing statement, indicated that Tarion should conduct an assessment of the wall, stating “I don’t care how many tests were conducted. We know there is something wrong with that wall”.
The Tribunal does not doubt that the Applicant is hearing some sound transmission through the party wall in her home as she and her witnesses testified. However, the fact that sound can be heard does not mean that there is a warrantable defect in the wall. The obligation of the builder is to build in accordance with the Code. Code standards set a requirement for a minimum airborne sound transmission level but do not guarantee that a home will be soundproof.
The onus is on the Applicant to prove there is a warrantable defect in the party wall. In this case, the evidence indicates that the party wall was constructed in accordance with and meets the sound transmission standard set out in the Code. Notwithstanding her testimony that she hears noise, the Applicant has provided no evidence to indicate the wall is defective and therefore has failed to prove her claim.
Item 2 – Squeaky Stairs
Squeaking stairs were not listed as an item in the Applicant’s year-end report and are not included in Tarion’s Decision Letter. The Applicant’s claim is that the stairs began to squeak as a result of repairs made on the landing of the Applicant’s home. While the Tribunal did not admit the Applicant’s video recording of the stairs, it accepts Mr. Wilson’s evidence that he was able to produce a squeak by applying pressure to the stairs.
In accordance with Tarion’s Construction Performance Guidelines, Mr. Wilson investigated the stairs to determine if there were any loose connections. None were found.
While the Applicant testified that the stairs in her home now squeak “24/7/365”, Mr. Wilson testified that the Applicant advised him on November 29, 2012 that the squeak was sporadic. The Applicant’s September 11, 2012 letter to Tarion indicates that she herself appears to have accepted Weston Flooring’s opinion that humidity changes were a causal factor. The Applicant produced no evidence to indicate that there is a defect in workmanship or materials in the stairs or any evidence of damages in this regard and therefore has failed to prove her claim.
Item 3 – Mould Stains in the Basement
The evidence indicates that mould was found in two areas of the Applicant’s home and was successfully remediated. Mr. Chymycz testified that cryo-blasting does leave some staining which he described as “not significant” in the Applicant’s home. In the Applicant’s home, the staining is visible on joists and the subfloor in the unfinished basement. Mr. Conte testified that staining was not warranted because it was not a defect in materials.
Mr. Chymycz testified that staining can be removed using bleach, a method he does not recommend. However, a new product has recently become available. Notwithstanding the fact that Mr. Conte did not warrant the staining, the Applicant agreed that Tarion had in fact offered to use this product in her home, an offer she refused because she no longer trusts Tarion.
Although the Tribunal’s pre-hearing Order indicates that mould stains in the basement is the item under appeal, the Applicant provided very little testimony in this regard. Rather, she spoke to the steps she took to have her suspicions that mould was in the bulkhead confirmed and to her belief that she was treated unfairly during the mould remediation process. In addition, she expressed a concern that the prior existence of mould and the evidence of staining could devalue her home on resale. In this regard, she obtained an independent assessment (Exhibit 5, Tab 14) which states the following:
Although the property has since been remediated…it has gotten stigmatized (sic) for a foreseeable period of time. At the time of sale, on a full disclosure which is the law, the home owner/seller is believed to be on the losing end of the negotiations and could suffer some losses. To predict the loss in terms of a percentage of the sale price or a lump sum dollar figure is beyond the competence of the appraiser.
The Tribunal also notes that the Applicant suggested that the cryo-blasting might have affected the structural integrity of the engineered joists in her basement.
Any loss the Applicant might sustain on selling her home in the future is speculative. Moreover, the Tribunal notes that the Applicant has a post-remediation report which indicates the mould which was in her home has been addressed. The Applicant provided no evidence that the structural integrity of the joists in her basement has been affected. With respect to the specific item under appeal, mould stains on the joists and subfloor, she provided no evidence that the stains are a defect in either materials or workmanship and therefore has not proven her claim.
Human Rights Violation
In her written materials entered into evidence as Exhibit 4, the Applicant wrote the following with respect to the way she had been treated:
E. encouraged me to keep fighting and stated that Tarion and Braemore Woods Development Inc. “are trying to take advantage of you because you are a woman. I told her I knew that because I a single parent and a visibility minority (sic) Braemore Woods Development Inc. treated me with indifference, without respect…
In her testimony before this Tribunal, the Applicant did not lead any evidence with respect to differential treatment based on her gender, marital status or race.
Moore v. British Columbia (Education), 2012 SCC 61, [2012] SCC 61, 351 D.L.R. (4th) 451 sets out the test for discrimination:
…to demonstrate prima facie discrimination, complainants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact.
The Tribunal appreciates that the Applicant experienced significant frustration with respect to the length of time it took to have mould positively identified and remediated in her home, a period during which she was convinced the photographs she took during the initial leak repair were being disregarded. There is no evidence before this Tribunal, however, that Tarion treated her differentially. Her home was inspected in the normal fashion by Mr. Wilson after she raised the issue on her year-end report. While the Tribunal acknowledges that Tarion does not undertake destructive testing on its own initiative and shares the Applicant’s question of why Mr. Wilson did not suggest to the Applicant that she open the bulkhead at the time he conducted his investigation, it notes that Mr. Wilson neither saw nor smelled any evidence of mould and that his finding that the item was not warranted was consistent with his investigation.
The Tribunal also notes that after the Applicant later complained of health problems to Tarion, Tarion sent both a representative with significant experience with mould related issues and an expert to investigate and undertake testing. In fact, it was the expert, not the Applicant, who identified mould in the basement, an area about which the Applicant had raised no issues or concerns. Mr. Chymycz testified that the mould within the bulkhead was contained and was not the source of the basement mould. Testing indicated the air quality in the Applicant’s home was superior to the exterior air and that the mould found in the basement and the bulkhead was dormant and/or dead. Tarion facilitated the mould remediation by having the Applicant file a Major Structural Defect claim. Moreover, Tarion had the remediation company assist the Applicant in moving some of her furniture, a service not normally performed, in order to ensure the Applicant did not cancel the remediation.
There is no evidence before this Tribunal that the Applicant was treated differentially because of a characteristic protected from discrimination nor is there any evidence that she experienced any adverse impact with respect to the provision of Tarion’s services.
Compensation
The Applicant indicated that she made sacrifices in order to be able to purchase her home. Throughout the hearing, she expressed considerable frustration with sound transmission from her party wall, the length of time it took to identify and remediate mould in her home, and the fact that she was not offered discretionary payments by Tarion during the remediation. The Applicant contended that both the Added Party and Tarion had been negligent.
The Applicant has requested compensation totaling $184,795, which includes $150,000 for breach of warranty, $17,479.99 to repair the party wall, $10,000 relating to ongoing health issues and $6,180 representing a cost allowance with respect to the mould remediation period. In addition, the Applicant requested reimbursement of the fees paid to register her home with Tarion and to file her appeal with this Tribunal.
The Applicant appears to have misunderstood the provisions of the Act with respect to breach of warranty. She mentioned “damages” a number of times and appears to understand that the Act provides for the payment of general damages. This is not the case. Payments in respect of breach of warranty are specific to damages to the home stemming from the breach and generally represent the cost of repair. Liddiard v. Tarion Warranty Corporation, 2009 CanLII 65801 (ON SCDC), [2009] O.J. No. 4912; 99 O.R. 3(d) 656 (Div. Ct.) at paragraph 52, sets out what is covered by the warranty and is relevant to this case in that it addresses the potential loss of a home’s value on resale:
What is conferred by the warranty is the right to have done that which should have been done correctly in the first instance or a sum of money to purchase the labour and materials to do so. Any loss or damage that is derivative of the failure to construct in accordance with s. 13(1) is secondary and therefore excluded. Even assuming that causation can be shown, loss of value on sale of a property is derivative and secondary and excluded.
In this case, the Tribunal has found that the Applicant has failed to prove any of her claims. Therefore, she is not entitled to either the $150,000 requested as compensation with respect to breach of warranty or the $17,479.99 requested to repair the party wall which the Tribunal has found meets the standards set out in the Code.
The warranty under the Act is limited. Section 6(6) of the Act specifically excludes secondary damages. The Tribunal therefore has no authority to order payments as compensation for health issues which would be considered secondary to the damage in the home. Moreover, in this regard, the Tribunal notes that neither the Applicant nor her daughter provided any medical documentation to indicate that health issues they may have experienced are the result of exposure to mould in the home. Nor was any information provided to support the quantum requested by the Applicant.
Finally, with respect to $6,180 requested as a cost allowance with respect to the mould remediation period, the Tribunal notes that the Applicant lived in her home during the remediation and advised the Tribunal that the quantum is based on her canvass of local hotel costs. The Applicant did not actually incur this expense.
The Tribunal notes that the evidence with respect to the habitability of the Applicant’s home during the mould remediation period is inconclusive and therefore it cannot conclude that relocating the Applicant and her daughter was an intrinsic component of the repair. Mr. Conte testified that he relied on Mr. Chymycz’s assessment that the Applicant’s home was habitable during remediation. While the Applicant testified that she could not access her kitchen, both because it was tarped off and because it was filled with furniture relocated from the area being remediated, Mr. Conte noted that the Applicant could have requested the tarps be moved. In these circumstances, the payment of living expenses elsewhere would be discretionary. The Tribunal has no authority to order Tarion to issue such payments. Nor does the Tribunal have authority to order the reimbursement of fees paid in respect of registering her home with Tarion or filing her appeal with this Tribunal.
ORDER
Pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs Tarion to deny the Applicant’s claims.
LICENCE APPEAL TRIBUNAL
Mary Ann Spencer, Member
Released: August 2, 2013