7538 v. Tarion Warranty Corporation, 2013 CanLII 98369

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2013-03-12

FILE:

7538/ONHWPA

CASE NAME:

7538 v. Tarion Warranty Corporation

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

The Applicants

Applicants

• and -

Tarion Warranty Corporation

Respondent

• and -

Primont Homes (Heirloom) Inc.

Added Party

DECISION AND ORDER

ADJUDICATOR:

D. Gregory Flude, Vice-Chair

APPEARANCES:

For the Applicants:

Applicants’ Sons, Agents

For the Respondent:

Danielle Peck, Counsel

For the Added Party:

Robert George, Agent

Heard in Toronto:

March 4 & 5, 2013

REASONS FOR DECISION AND ORDER

1The Applicants appeal from the decision of Tarion Warranty Corporation (“Tarion”) set out in a Decision Letter dated July 10, 2012 to deny their claim for warranty. The vendor of the home, Primont Homes (Heirloom) Inc. (“Primont”), has been added as a party to these proceedings and supports the position taken by Tarion. The two issues to be determined relate to a railing or guard around the front porch of the Applicants’ home and the absence of a door between the garage and the sunken laundry room. Tarion and Primont assert that there is no condition that attracts warranty coverage under the Ontario New Home Warranties Plan Act, R. S. O. 1990, c. O.31 (the “Act”), either because of a defects in workmanship and materials or for a breach of the Ontario Building Code (“OBC”).

2S. 13(1)(a) sets out the applicable statutory warranties:

13. (1) Every vendor of a home warrants to the owner,

(a) that the home is,

(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;

S. 14 (3) (b) establishes entitlement to compensation for breaches of warranty:

14. (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.

3The onus on the Applicants set out above was neatly paraphrased by Vice-Chair Sweeney in 5816-ONHWPA-Claim (Re) [2011] O.L.A.T.D. at paragraph 42:

42 The Applicants bear the onus of proving on a balance of probabilities that:

a. There was a breach of warranty by the Added Party;

b. Damages flowed from that breach; and

c. The quantum of those damages.

4Proof of the breach of warranty engages the provisions of s. 13 set out above. The Applicants had to lead evidence to establish that there was a defect in work or materials or a breach of the OBC. It is insufficient for the Applicants to rely on subjective supposition, as they did in this case, without evidence to back those suppositions up. Put simply, the Applicants failed to provide the Tribunal with any evidence whatsoever that there was a breach of the warranty provided under the Act.

5The least complex of the two issues to address is the issue regarding the front porch. On closing, the house did not have a railing around the front porch. Other properties in the neighborhood have railings and the Applicants were of the view that they were entitled to one. Railings are not shown on the plans which have been incorporated into and made part of the Agreement of Purchase and Sale (Ex 3 Tab 3 Schedule “FP”) nor are they added as an extra in the extras list at schedule “PE.” Thus, if Primont has an obligation to install railings, that obligation has to arise out of the provisions of the OBC regarding changes in elevation around porches. It is common ground that the OBC standard is 600 mm. That metric measure translates to 23.62”, and, it appears from Tarion’s witness, Donald Butwell and Primont’s witness, Paul Quintieri, that the construction industry rounds that number up to 24 inches.

6When the Applicants moved into their home in and around September 30, 2011 the lot had rough grading. The height from the porch deck to the rough grading surface was 26 inches. It is the position of the Applicants that this measurement crystallized their rights on the day they moved in and obliged Primont to install a railing because of the OBC requirements. Tarion takes the position that the Applicants were entitled to a temporary solution until final grading was completed. It suggested a temporary barrier. The Applicants did not reply to the email suggesting the temporary barrier so Tarion suggested that the builder increase the rough grade level immediately around the house to bring the rough grading into compliance with the OBC..

7Final grading has now been done in all but one small area, a part of the driveway that will be finished in the spring. While there was some argument addressed to the actual height in the unfinished area, the Applicants failed to present any clear evidence to support their position that the current grade difference in the small impugned area (Ex 4 Photo 10) is in excess of 600 mm. The Tribunal is satisfied on all of the evidence that the height from the porch to the finished grading around the porch is approximately 21 inches; well inside the 23.6 inch standard and that a railing is not required. With respect to the very small borderline area that is in dispute, the condition may pertain for another month or so until the weather warms up and then the final grade level will be brought up to the 21 inch level. The position that temporary construction conditions require permanent solutions advanced by the Applicant is quite simply untenable.

8The second issue raised by the Applicants concerns a door shown on Schedules “FP” and “PE” from the garage, opening inward into a sunken laundry room. In both instances the door is noted as subject to grade. Mr. Butwell explained that the OBC does not permit a door to swing over steps. If steps are needed to reach from the floor of the laundry room to the level of the garage, then a landing is required at the top by the door. There is no room in the laundry room to install a landing. For this reason, the door is marked on plans and extras schedules “where grade permits” or similar wording.

9Both Mr. Butwell and Mr. Quintieri did calculations to show that the grade difference for the door was approximately 10 inches. A 10 inch grade differential to the door sill would require two steps and engage the OBC need for a landing. These calculations were based on the elevations shown in the site grading plan (Ex 9 and Ex 12) and both witnesses assumed a four stair riser difference between the main floor of the home and the sunken laundry room (Ex 7 and Ex. 12). A riser is 0.2 metres or 7.75” Initially the Applicants took great exception to this calculation, appearing to insist that the actual height difference was three stair risers. Mr. Butwell was asked to give his opinion based on a three riser elevation change. He admitted that, in that case, there would only be one step to the door sill and the OBC does not require a landing for one step.

10The Applicants undertook to bring photographs of the laundry room stairs to establish a three riser difference. These were put to Mr. Quintieri on the second day of the hearing (Ex 16). The photographs show clearly that there is a net four riser elevation difference between the main floor and the laundry room floor consisting of five risers from the main floor to the basement door landing and one riser up into the laundry room. The Tribunal is satisfied that both Mr. Butwell’s and Mr. Quintieri’s calculations were based on the actual configuration of the sunken laundry room and the garage floor slab.

11The Applicants’ asserted that both Mr. Butwell and Mr. Quintieri were incorrect in both their calculations and application of the OBC. They did not produce any evidence of their own to contradict these witnesses and confined their evidence to advising the Tribunal that they had been told by a contractor that it was possible to install a door. They produced neither the contractors quote nor his calculations based on actual observed conditions. The Applicants have failed to satisfy the onus of showing that the grade is such that a door may be installed between the garage and the laundry room without violating the OBC.

12When the facts are reviewed in light of Vice-Chair Sweeney’s three step test set out in 5816 above, that the Applicants carried an onus to establish a breach of warranty, that that breach led to damages and the quantum of those damages, it is clear that the Applicants have not satisfied the onus. With respect to the issue regarding the railings, the evidence is clear that there was an initial condition that was in contravention of the OBC. The evidence is equally clear that that condition has been remedied by the final grading of the lot. One area exists where there might be some question of the grade change exceeding the 600 mm standard by 6 or 7 mm as asserted by the Applicants but the remedy for such a condition is not a railing. It is to require Primont to bring the area into compliance. Compliance will be achieved in a few weeks with final grading and the Applicants will suffer no damages. The Applicants failed completely to lead evidence of a breach with respect to the door to laundry room and their claim in that regard must fall at the first hurdle.

ORDER

13For the foregoing reasons, the Tribunal directs Tarion to deny the Applicants’ claim for warranty.

LICENCE APPEAL TRIBUNAL

D. Gregory Flude, Vice-Chair