Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2014-03-12
FILE:
8472/ONHWPA
CASE NAME:
8472 v. Tarion Warranty Corporation
Motion for an Extension of Time to File 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
Applicants
Applicants
-and-
Tarion Warranty Corporation
Respondent
-and-
V & V General Construction
Added Party
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Laurie Sanford, Vice-Chair
APPEARANCES:
For the Applicants:
Zev M. Wise, Student-at-Law
For the Respondent:
Ellie Choi, Counsel
Noah Bonder, Student-at-Law
For the Added Party:
No One
Heard in Toronto :
February 25, 2014
REASONS FOR DECISION AND ORDER
This is a motion brought by the Applicants for an extension of time to file an appeal to the Licence Appeal Tribunal (the “Tribunal”) from a Decision Letter of Tarion Warranty Corporation (“Tarion”) dated April 29, 2013 with respect to a new home being constructed by V&V General Construction (the “Builder”). In the Decision Letter, Tarion denied the Applicants’ claim for financial loss due to non-completion of the home. The Applicants’ names will not be used to protect their privacy.
FACTS
The Applicants contracted with the Builder in 2008 for the construction of their new home. The Builder did not complete the home. The Applicants’ claim for financial loss was received by Tarion on July 9, 2012. Under the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O. 31 (the “Act”), the maximum payable by Tarion under a claim for financial loss due to unfinished work is $40,000. The eligibility for claiming financial loss includes providing Tarion with evidence that a claimant has paid a builder more than the Tarion assessed value of the work completed. In this case, Tarion decided that the home was 89.25% complete and that the Builder had provided $775,375.36 in work and materials. The Applicants provided Tarion with invoices totalling $686,298.21 for the amounts they had paid the Builder. Tarion denied the Applicants’ claim on the grounds that they had not paid more than the value of work and materials they had received.
The Tarion Decision Letter was dated April 29, 2013 and under the Act, the Applicants had 15 days after service of the Decision Letter to require a hearing before the Tribunal. The Applicants received the Decision Letter on May 2, 2013 and thus had until May 17th to advise Tarion that they wished a hearing. The male Applicant attested that he was convinced that he had a valid claim but could not find any more cancelled cheques showing payment to the Builder. The male Applicant consulted a paralegal firm during the 15 day notice period. According to a letter provided by the paralegal firm, they advised the male Applicant that “based on the information he had in possession at the time, he was not in a position to appeal Tarion’s decision.” The male Applicant also consulted a law firm during the notice period. According to the Applicants’ factum, the law firm “advised the Applicants to find proof of other payments to the builder in order to make an appeal.”
In November, 2013, the male Applicant, in the course of preparing for other litigation concerning the construction of the home, found an additional seven cheques totalling over $180,000 paid to the Builder. The male Applicant notified Tarion on November 20, 2013, apparently the same day the cheques were found, that he had found the cheques and wished to proceed with an appeal. Tarion advised him that the file was closed.
The male Applicant, in his affidavit, gave several reasons for the delay in appealing the Tarion decision. His evidence is that he had three different bank accounts, some of them accounts for his business. Sifting through three years of records with three different banks was a task he described as “monumental”. Additionally, he was involved in other litigation and proceedings involving the land and home which consumed time and energy. In the interval between filing the original claim on July 19, 2012 and receiving the Decision Letter on May 2, 2013, the Applicants moved out of their unfinished home, an action which the male Applicant described as “extremely distracting”.
DECISION
The parties do not dispute the Tribunal’s jurisdiction to extend the time to file an appeal in this case. There is case law which sets out the principles which the Tribunal ought to consider in deciding whether or not to exercise its discretion to extend a time limitation. This case law has been reviewed in a number of Tribunal decisions, including the decision of this panel in the case of Lopez Rocco General Contracting Ltd. vs the Registrar, Ontario New Home Warranties Plan Act, released October 31, 2007. The Rocco case was given to the parties for review prior to the commencement of this motion. The decision summarises the law as follows:
Concerning the issue of what constitutes “reasonable grounds” for extending the time in which to file an appeal, the case of Miller Manufacturing and Development Co. v Alden, [1979] O.J. No. 3109, a decision of the Ontario Court of Appeal, canvases the law and concludes:
[The decisions] reveal that a number of considerations are viewed