Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2013-11-27
FILE:
7904/ONHWPA
CASE NAME:
7904 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-
Altone Pillar Developments Limited
Added Party
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Elizabeth Sproule, Vice-Chair
APPEARANCES:
For the Applicants:
Self-represented
For the Respondent:
Gena Argitis, Counsel
For the Added Party:
Alex Lewin, Agent
Heard in Toronto
November 7, 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 January 28, 2013, and a Supplementary Decision Letter dated October 15, 2013, with respect to a new home purchased from, Altone Pillar Developments Limited (the “Added Party”), in which Tarion denied the Applicant's claim.
The Decision Letter of January 28, 2013, identifies five claim items. At the outset of the hearing the Applicant identified only two of the claims as being the subject of this appeal. They included Claim 6A relating to the honey combing of the concrete foundation wall and Claim 6B relating to a crack in the southwest corner of the foundation.
FACTS
The Applicant took possession on June 30, 2010. He submitted a 30-Day Form to Tarion on July 28, 2010. Neither the honey combing of the concrete (6A) or the crack in the southwest corner of the foundation (6B) were mentioned at that time.
The Applicant submitted a Year End form on May 30, 2011. Claim 6B was described as follows: “back/sidewall corner, concrete foundation wall is crack (sic). Repaired by contractor, still hair line crack is there. Concrete is hollow at corner (under observation).” As a result of the builder having repaired the crack the Applicant cancelled the conciliation he had previously requested.
The Applicant submitted a Second-Year Form on June 4, 2012. Under the section of the form entitled ‘exterior wall coverings, including siding and above grade masonry’, the Applicant made note of both Claims 6A and 6B.
The Applicant testified that the honeycombing of the foundation has been addressed by the Added Party by the application of some sort of parging. According to the Applicant this has been done on more than one occasion. The Applicant stated that his neighbour(s) have not had to have this done to their foundations.
The concern of the Applicant about the maintenance of the parging is tied to what the Applicant believes is an unresolved problem with respect to the grading around his home which will lead to water flowing from his neighbour’s property to his foundation and that this will cause the premature deterioration of the parging and it will be an ongoing maintenance issue. He feels that he should not have to deal with this. The Applicant provided numerous colour photos of the area of concern and the presently appear.
The Applicant brought his concerns that the grading was not in compliance with the Ontario Building Code to the attention of the municipality in which his home is built in February of 2013. To remedy the issue the Added Party raised the level of the soil around the concrete foundation in June of 2013. The Applicant raised the concern to the municipality that as a result of the remedial work the amount of foundation above finished ground level now did not meet the Ontario building Code 2006 (9.15 O.B.C.) requirement of 150 mm. This fact was acknowledged by the municipality and led to further remedial work to the north wall of the home from the end of the garage wall (the garage is built at the front of the house) to the back end of the house. The ground between the houses at this part is covered with sod. The area from the end of the garage wall towards the front of the garage is covered with gravel.
The Applicant is not satisfied that the work done properly corrects the code violation complained of. He testified that there is an area on the north wall where bricks were removed and a cinder block inserted then covered with parging to create the appearance of more foundation. He also indicated that there was a portion of a brick(s) where a cement compound had been applied, in an attempt to have more foundation above ground. These facts were not denied by the witness for the Added Party.
Following the remedial work on the Applicant’s property described above, the property was inspected by the Chief Construction Inspector for the Municipality and the Applicant was advised by emails on October 18, 2013 and October 28, 2013, that both he and the City’s Building Department were satisfied that the work done was acceptable. 1 The Applicant takes the position that these emails are making reference only to the sod area and not the gravel area at the north side of his home.
In cross-examination the Applicant was asked if there has ever been any water penetration of his home through the foundation and he indicated that there had not.
The Applicant was asked by the Tribunal what remedy he was seeking for the items complained of and he indicated that he was not the expert and he was relying on Tarion to determine what should be done to remedy the issues.
With respect to claim 6B the plaintiff provided the Tribunal with photographic evidence of the hairline crack in the repair at the southwest corner of the foundation. The Plaintiff expressed concern that the repair has not been done with the appropriate compound, as evidence by the hair line crack.
Ms. Karin Gaupholm was the Tarion Warranty Service Representative who dealt with the Applicant’s claim. She has been in that position for 8 years. Ms. Gaupholm testified that honey combing is a one year warranty item only as a foundation is not considered exterior cladding, which is covered in the second year form. She also testified that honey combing is not uncommon and does not indicate a defect in the strength of the concrete; rather it is a cosmetic issue. The repairs to the honey combing in the concrete was completed before Ms. Gaupholm attended the property and therefore she did not get an opportunity to see the extent of it. It was her evidence that if it had been a defect, the repair was acceptable.
With respect to the hair line crack in the repair to the southwest corner of the foundation, it was Ms. Karin Gaupholm evidence that it appeared to be a normal shrinkage crack and did not exceed the Construction Performance Guideline of 6mm wide. It was a cosmetic issue and unless there was water penetration it would not be warranted.
Lastly, Ms. Gaupholm testified that a defect in grading is not a warrantable item unless there was, for example, a low spot abutting a home that was permitting water to pool and the defect was reported to Tarion on the appropriate form. There was no evidence before the Tribunal that there was water pooling at any point around the foundation of the Applicant’s house.
Mr. Mark Roccatagliata is the Senior Customer Service Manager with the Added Party. His previous employment included 20 years with Tarion. His evidence as to what remedial work was done to the Applicant’s property did not differ in any material way from that of the Applicant. He testified that the material put on the area where the bricks were removed and replaced by cinder-block, and where a portion of the brick was covered over, was a ‘cementous’ material that repels water.
Mr. Roccatagliata made reference to the description of the Two Year Warranty provided to new home buyers, which the Applicant included in his materials2, pointing out that it covers violation of the Ontario Building Code affecting health and safety and that the grading issue that the Applicant had raised does not fall into this category.
THE LAW
Ontario New Home Warranties Plan Act, R.R.O., 1990, Regulation 892, Administration of the Plan
- (1) Every vendor of a new home warrants to the owner that there will be no water penetration through the basement or foundation of the home. O. Reg. 9/09, s. 7.
(2) The warranty described in subsection (1) applies only in respect of claims made during a two-year warranty period ending on the second anniversary of the date of possession. O. Reg. 9/09, s. 7.
General
- (1) In this section,
“building envelope” means the wall and roof assemblies that contain the building space, and includes all those elements of the assembly that contribute to the separation of the outdoor and indoor environments so that the indoor environment can be controlled within acceptable limits; (“envelope”)
“delivery and distribution systems” include all wires, conduits, pipes, junctions, switches, receptacles and seals, but does not include appliances, fittings and fixtures; (“réseaux de distribution”)
“exterior cladding” means all exterior wall coverings and includes siding and above-grade masonry as required and detailed in the relevant sections of the Ontario Building Code under which the Building Permit was issued. (“habillage extérieur”) R.R.O. 1990, Reg. 892, s. 15 (1).
(2) Every vendor of a new home warrants to the owner,
(a) that the home is constructed in a workmanlike manner and is free from defects in materials including windows, doors and caulking such that the building envelope of the home prevents water penetration;
(b) that the electrical, plumbing and heating delivery and distribution systems are free from defects in material and work;
(c) that all exterior cladding of the home is free from defects in material and work resulting in detachment, displacement or physical deterioration;
(d) that the home is free from violations of the Ontario Building Code regulations under which the Building Permit was issued, affecting health and safety, including but not limited to fire safety, insulation, air and vapour barriers, ventilation, heating and structural adequacy; and
(e) that the home is free of major structural defects. R.R.O. 1990, Reg. 892, s. 15 (2); O. Reg. 697/92, s. 1.
ISSUES
Should Claim 6A, the honey combing of the concrete foundation, be warranted?
Should Claim 6B, the crack in the repair of the foundation, be warranted?
APPLICATION OF LAW TO FACTS
Claim 6A – Honey combing of concrete foundation.
The Claim 6A set out in the Applicant’s second year form was identified as relating to honey combing in the concrete foundation. It is the Applicant position that this claim is tied to a grading problem. There is no suggestion that the grading problem caused the honey combing but that the grading may lead to ongoing problems maintaining the repair to the honeycombing.
Based on the evidence provided by all the parties the Tribunal finds that the honey combing, if it had amounted to a defect, was repaired in a workmanlike manner and therefore is not a warranted claim at this point. The Tribunal appreciates the Applicant’s disappointment that his foundation had honeycombing and his neighbours did not, however, imperfections occur and the Added Party has the right to execute repairs. There was no evidence to suggest to the Tribunal that this item of complaint was more than a cosmetic issue. There was no evidence that the repairs were failing at the time of the hearing. The Applicant suggested that the remedial work done to the foundation honey combing was not done properly but provided no particulars to why this was the case. The onus is on the Applicant to prove that there is a defect in the work and materials relating to the honey combing and/or its repair, and it is the Tribunal’s opinion that he has failed to do so. Although the Applicant has express the concern that there is a grading issue that may cause future repeated repairs of the foundation, the evidence before the Tribunal, provided by the Applicant, is that the grading has been inspected by the appropriate officials and the remedial work completed was found to be acceptable.
Claim 6B – Crack in foundation repair.
The Applicant believes the hairline crack in the foundation repair, at the southwest corner of his home, is evidence that the repairs done on that corner were not done with the appropriate compound. There were no particulars given as to why the manner or the material used in the repairs were inappropriate or defective other than the fact that a hairline crack had appeared after the repairs were completed. The Tribunal accepts the evidence of Ms. Gaupholm that the hairline crack is a result of normal shrinkage and does not exceed the Construcion Performance Guidelines of 6 mm for such cracks. The Tribunal finds therefore that this claim item is not warranted.
ORDER
Pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs Tarion to deny the claim.
LICENCE APPEAL TRIBUNAL
Elizabeth Sproule, Vice-Chair
Released: November 27, 2013