8410 v. Tarion Warranty Corporation, 2014 CanLII 46352

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2014-07-29

FILE:

8410/ONHWPA

CASE NAME:

8410 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

Appellants

Appellants

-and-

Tarion Warranty Corporation

Respondent

-and-

Briarwood Estates Ltd.

Added Party

REASONS FOR DECISION AND ORDER

ADJUDICATOR:

D. Gregory Flude, Vice-Chair

APPEARANCES:

For the Appellants:

Self-Represented

For the Respondent:

Gena Argitis, Counsel

For the Added Party:

Domenic Di Genova, Agent

Heard in Barrie:

July 10, 2014

DECISION

1The Appellants appeal the decision of Tarion Warranty Corporation (“Tarion”) to deny their claim for warranty set out in a Decision Letter dated September 27, 2013. The Added Party, Briarwood Estates Ltd., is the vendor of the home and is liable to either effect warranty repairs or to reimburse Tarion for the cost of those repairs in the event this Tribunal finds in favour of the Appellants. The Added Party supports Tarion’s position in this matter. The Appellants also appealed Tarion’s Decision Letter dated November 25, 2013 consisting of three items. They withdrew two of the items at the hearing and the third item settled. The Appellants are spouses of each other and the Tribunal heard evidence from the male Appellant. Throughout these reasons, the Tribunal will refer to the Appellants when referring to the Appellant husband’s evidence. The Tribunal will deal with each of the issues appealed by the Appellants in the order in which they appear in the Decision Letter, using the Letter’s numbering system.

2The Appellants’ right to warranty coverage is set out in s. 13 of the Ontario New Home Warranties Plan Act, R. S. O. 1990, c. O.31 (the “Act”):

Warranties

13. (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.

3The first item raised by the Appellants was item # 5, the lack of a fan on the gas fireplace in the living room. The Appellants take two positions. First they assert that a fan is standard in gas fireplaces to pump warm air around the room. Second, they assert that, if the Added Party was going to provide a gas fireplace without a fan, they should have specifically advised the Appellants and given them the option of purchasing a model with a fan. The Agreement of Purchase and Sale specifies only that a direct vent gas fireplace shall be installed. It makes no mention of make, model or features. It is a fact that a direct vent gas fireplace was installed. The Appellants’ complaint addresses a specific feature that the installed model lacked. There is no evidence of a breach of the Ontario Building Code (the “OBC”) or that there is a defect in either workmanship in the installation or materials. The claim that they should have been advised and given the option of having a fan installed falls outside the statutory warranty scheme. This ground of appeal must fail.

4Item # 6, concerns the lack of reinforcement of the living room wall above the fireplace to support a television wall mount. The Appellant testified that when he attended the house during construction he noted that the wall studs were 24” apart. He raised this with the site supervisor and it was agreed that the Added Party would install studs with 16” centres into which the Appellants could screw the wall mount. It is clearly contemplated that the television would be installed above the fireplace as evidenced by the cable and power outlets. Rather than install studs with 16” centres, the Added Party nailed studs onto the pre-existing 24” studs. The Appellant described a visit from the Added Parties’ carpenter where the carpenter told him he thought that he had installed the extra studs but ultimately agreed that they were not there. There is no documentation supporting the agreement and it appears that nothing extra was paid for this feature. Tarion takes the position that in the absence of a written agreement specifying the type of reinforcement, there is no breach of warranty. Having 24” studs does not violate the OBC and there was no defect in workmanship or materials. Tarion also asserts that reinforcement was installed. It was just too widely spaced for the Appellants’ particular wall mount.

5In the absence of a written agreement or a breach of the OBC, in order for the Appellants to succeed, they must satisfy the Tribunal that construction in a workmanlike manner in an area where installation of a television wall mount is contemplated requires studs centred on 16”. Other than the Appellants’ assertion that it should be so, they led no other evidence. The Appellant admitted that he had no experience in construction or house design and therefore he was not in a position to speak to normal building practices. The lack of evidence leaves the Tribunal without any basis upon which it can find in favour of the Appellants on this issue. Accordingly, this ground of appeal is denied.

6The Appellants’ concern with respect to item # 9 is that the fans in the upstairs bathrooms are wired into one of the light switches. The Appellants agreed that there is no breach of the OBC or electrical safety codes. It is their view that best construction practises would put fans and lights on separate three way switches so that they can be turned off and on from either entrance to the bathrooms. The statutory warranty does not address best construction practices. It sets out a minimum standard. No evidence was led to suggest that the current wiring scheme does not meet that minimum standard. Accordingly, this ground of appeal must fail.

7Item # 9 addresses defects in one of the upstairs shower stalls. The original plan for the main bedroom en suite bathroom was for a corner tub to abut a shower stall along one wall. Between the end of the shower stall and the end of the wall there was to be a space with an option to install shelving. The Appellants did not opt for the shelving and stated that they wanted the space to be left clear. What they did want was a bench inside the shower stall opposite the shower head. The final, as-built bathroom eliminates the space and expands the shower stall into that space. The result is that the bench is now too far away from the shower head for the water to reach. The Appellants allege that this arrangement constitutes an “illegal” substitution. Builders may make substitutions of items that are not specifically selected in the Agreement of Purchase and Sale provided the substitution is of equal or greater value. In the current case, the empty space at the end of the wall is now part of an enlarged shower stall. The Added Party and Tarion were of the view that this was an improvement. The Appellants are of the view that it has rendered the bench useless since they cannot sit on it and have a shower. No evidence was led to establish that the change is of lesser value, although it might be argued that it is of lesser utility, a different concept. In the absence of such evidence, this part of the Appellants’ claim must fail.

8The last two items, items # 15 and # 16, are related. They spring from the fact that the currently installed garage door appears to be approximately 4” too large for the door opening. The Appellants assert that garage doors come in standard sizes. This particular door is 8 feet. If it does not fit the garage opening that means the opening is too small, in their view. Their explanation of this phenomenon is that the garage floor was poured too high by the amount of the discrepancy. Tarion, on the other hand, states that it is normal practice to size the door after construction to fit the size of the as-built garage opening. The OBC gives a minimum and maximum range for garage openings and Tarion found that the opening was in compliance with the OBC. Tarion warranted the fact that the windows on the garage door are too high against the framing. The proposed method of repair is to reduce the size of the three centre door panel to bring the windows down to the proper height. The Added Party offered to carry out this modification but the Appellants remained concerned that the garage floor pad was too high.

9The Tribunal finds that the Appellants have misconstrued the facts. They have reasoned that an improperly sized garage door is indicative of improper construction. Construction proceeds from the bottom up; from raw materials to finished materials. The failure of the Added Party to properly size the finished material does indicate that there has been poor workmanship, breach of the OBC or defective materials in an early stage of construction. It indicates nothing more than an improperly sized door. The repair suggested by Tarion with respect to items # 15 and 16 will bring the garage into full compliance with the warranty. The Tribunal orders Tarion to effect such repairs to the garage door as set out in its original warranty finding.

ORDER

Except for the warranty on the garage door, by virtue of the authority vested in it by the Act, the Tribunal orders Tarion to deny the Appellants’ claims for warranty The proposed method of repair is to reduce the size of the three centre door panel to bring the windows down to the proper height. Pursuant to the Act, Tarion or the Added Party may carry out the proposed warranty work or make a lump sum payment to the Appellants so they may carry out the necessary work.