Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 8138/ONHWPA
CASE NAME: 8138 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-
Ewan St. Louis Construction Ltd.
the Added Party
PRE-HEARING ORDER
ADJUDICATOR: Geneviève Blais, Member
APPEARANCES:
For the Applicant: Self-represented
For the Respondent: Andrew McKenna, Counsel
For the Added Party: Kenneth Jennings, Counsel
Heard in Cornwall: July 24, 2013
ORDER
A pre-hearing was held in this matter on July 24, 2013 before this Tribunal in the presence of the Applicant, Andrew McKenna, Counsel, representing the Respondent, Tarion, and Kenneth Jennings, Counsel, representing the Added Party, Ewan St. Louis Construction Ltd.
The Applicant filed a Notice of Motion with the Tribunal on July 11, 2013 for a summary judgement and requested that the motion be heard at the pre-hearing. The Applicant’s motion for a summary judgement included a request for an order from the Tribunal reversing Tarion’s denial of the Applicant’s claim in the Decision Letter dated May 27, 2013, and allowing the claim. The Applicant alleged that there are no genuine issues in Tarion’s Decision Letter for the matter to proceed to a hearing.
Counsel for Tarion argued that there are no grounds to grant the Applicant’s request for a summary judgement as there are a number of genuine issues in this matter where certain facts are disputed. The facts in dispute are central to the case and the Respondent must be provided with the opportunity to introduce evidence that contradicts the Applicant’s version of the facts. The Tribunal considered the evidence and arguments from the parties. The Tribunal ruled that the Applicant did not meet the initial burden of showing the absence of a genuine issue for hearing and denied the motion.
The Applicant advised the Tribunal that he had not received the Respondent’s and the Added Party’s disclosure material within the disclosure period provided in the Tribunal’s Rules of Practice. He requested an order for costs under Rule 14. Counsel for Tarion and Counsel for the Added Party stated the disclosure material was filed 13 days before the pre-hearing date and acknowledged that it was one day less than the minimum 10 business days.
The issue of costs was canvassed. The Tribunal’s Rule 14 is specific in limiting the availability of an award of costs to situations where a party’s action attracts a punitive sanction. Thus, only where behaviour can be determined unreasonable, frivolous, vexatious or in bad faith are costs available. The evidence is that the failure to serve the disclosure properly was inadvertent and did not result in undue prejudice or delay to the Applicant. The parties acted in good faith to disclose. All this leads the Tribunal to conclude a cost award is not appropriate.
The Tribunal makes the following Order:
The parties to the hearing are the Applicant, the Respondent and the Added Party.
The hearing in this matter is scheduled to take place on November 4, 5, 6, and 7, 2013 commencing at 9:30 a.m. at Best Western Parkway Inn & Conference Centre, 1515 Vincent Massey Drive, Cornwall, Ontario.
The issues to be addressed at the hearing are as set out in Tarion's Decision Letter dated May 27, 2013 to refuse the Applicant’s claim, and relate to whether defects in material, design or work supplied by the owner and alterations, deletions or additions made by the owner are excluded from warranty coverage as defined in Sections 13(2) (a) and (g) of the Ontario New Home Warranties Plan Act.
The Parties agree that the documents already disclosed by them may remain in the Tribunal’s file and be referred to by the sitting Tribunal member prior to the commencement of the hearing.
If the appeal is resolved before the date scheduled for the hearing in this matter, each of the parties shall advise the Tribunal in writing immediately and the hearing, no longer being required, will be cancelled. If the Applicant is withdrawing the appeal, the Applicant should complete the Tribunal's Notice of Withdrawal, available at www.lat.gov.on.ca, and send a copy of that Notice to the other parties as well as to the Tribunal.
All parties to the hearing shall comply with the disclosure requirements set out in Rule 6 of the Tribunal’s Rules of Practice. In the event that any party intends to call an expert witness to testify, the party relying on the expert witness must comply with the requirements of Rule 6.4.
LICENCE APPEAL TRIBUNAL
Geneviève Blais, Member
Released: July 29, 2013