8711 v. Tarion Warranty Corporation, 2014 CanLII 53668

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2014-08-11

FILE:

8711/ONHWPA

CASE NAME:

8711 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 Appellants

Appellants

-and-

Tarion Warranty Corporation

Respondent

-and-

Greycrest Homes (Oshawa) Inc.

Added Party

REASONS FOR DECISION AND ORDER

ADJUDICATOR:

D. Gregory Flude, Vice-Chair

APPEARANCES:

For the Appellants:

Self-Represented

For the Respondent:

Danielle Peck, Counsel

For the Added Party:

Joseph Ciraco, Counsel

Heard in Toronto:

July 24, 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 March 10, 2014. The Added Party, Greycrest Homes (Oshawa) Inc., 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 are spouses; 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.

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 only item raised by the Appellants concerns the interface between the tile flooring and an interior wall. To understand the issue, a brief description of the ground floor plan at the rear of the house is in order. The family room at the rear of the house extends out from the kitchen/dinette area at 45 degrees. This feature leads to other interior walls in the house aligning at 45 degrees to the longitudinal axis of the house, notably the wall between the library and the family room, the library and the hallway and a downstairs washroom and the hallway. There is a central curved staircase and a wall between the staircase and the kitchen. It is the alignment of the wall between the kitchen and the staircase, and the threshold to the stairs that has created the dispute.

4The original floor design called for the tiles to be installed parallel to the longitudinal axis of the house. The Appellants chose instead to have the tiles installed at 45 degrees, forming a diamond pattern rather than a square pattern. The Appellants explained that they did not want a line of half tiles along the 45 degree walls. With respect to all of the internal walls except the one in dispute, the tiles are parallel to the line of the wall. The difficulty arises out of the fact that the kitchen wall is at 50 degrees to the longitudinal axis and the tiles converge at 5 degrees. The Appellants claim that this divergence means the house was not built in a workmanlike manner and, thus, there is a breach of the statutory warranty. They rely on the provisions of s. 12.3 of Tarion’s Construction Performance Guidelines (“CPG”). For ease of reference, 12.3 is set out in full:

12.3

Condition

PATTERN OF FINISHED FLOORING IS OUT OF ALIGNMENT WITH ADJACENT WALL SURFACES

Acceptable Performance/Condition

Finished flooring shall be installed in general visual alignment with adjacent wall surfaces. Variation greater than 12.5 mm in 1,800 mm is not acceptable when visible in a room used for its intended purpose.

Warranty

One-Year - Work and Materials

Action

Finished flooring not meeting the acceptable condition shall be repaired.

Remarks

This does not apply to angled or curved walls or flooring not designed to be aligned. The method of repair will vary with the type of finished flooring installed.

5There was no allegation that either the wall, as constructed, or the floor, as laid, breach the Ontario Building Code or that the materials used are defective. To succeed, the Appellants must satisfy the Tribunal that, on a balance of probabilities, the wall is not constructed in a workmanlike manner. They assert that the CPG standard establishes the requirements for defining what is constructed in a workmanlike manner and what is not.

6There is no dispute in the evidence that the tile grout lines are not parallel to the wall. There are numerous photographs showing the condition. Crystal Gardiner, the Tarion Warranty Service Representative, denied the warranty claim on two grounds as set out in the Decision Letter:

The variance that exists between the grout lines on the tile flooring and the wall itself is minor…the variance is not readily noticeable when viewed from a normal viewing position. The angle of the wall is dictated by the installation of the basement framing. The guidelines state that this type of variance does not apply to angled walls.

Of the two grounds: not readily noticeable and the angled wall exception, most of the argument addressed the interpretation of the angled wall exception.

7The Appellants did not notice the misalignment of the tiles for several months after they took possession of the house. On the pre-delivery inspection form they noted items in close proximity to the wall, such as a filler strip, missing from the kitchen cabinets. The Appellants suggested that the absence of the filler strip detracted from their ability to see the tile alignment. Again, on the 30 day form, they made claims regarding items in the kitchen. Sometime after moving in, in June or July 2013, friends pointed out the tile issue. Prior to then, the Appellants had not noticed it. This evidence lends support to the evidence of Ms Gardiner who stated that she did not notice the problem until it was pointed out to her. On this basis, Ms Gardiner determined that the issue was “minor” and “not readily noticeable.” In light of the above evidence, the Tribunal must agree with Ms Gardiner’s finding. To be in possession of a home for several months and not notice this variance until it is pointed out by a third party hardly suggests a major problem. It is, of course, human nature that once the variance is discovered it is always noticeable.

8The Appellants point out that the floor plans indicate that the problematic wall should have been built at a 45 degree angle to the longitudinal axis but it is, in fact, at 50 degrees. Tarion argues that nothing in the plans or any other document promises a wall at 45 degrees. The Tribunal finds this argument unconvincing. It is clear from the plans that the intention was to build interior walls that were parallel. All other angled interior walls are at 45 degrees, parallel or at right-angles to the family room footings. This wall was misaligned during construction by 5 degrees. The real issue for the Tribunal is to determine if such a misalignment falls within the range of acceptable variation in new home construction. As stated by Vice-Chair Sandford in Miandro (Re) [2007] O.L.A.T.D. No. 488 at paragraph 11: “The standard is not perfection.” New home construction is neither science nor art. Each structure is custom built with the result that minor variations occur. In this case, that variation is a 5 degree misalignment. There was no evidence before the Tribunal to establish what degree of alignment variation meets acceptable industry standards. The onus was on the Appellants to provide this evidence. In its absence, the claim that the misalignment amounts to unacceptable workmanship, or to use the statutory language, that the home is not built in a workmanlike manner, must fail.

9The Appellants argue that the standard is set by s. 12.3 of the CPG; that is 12.5mm in 1800mm. They argue that the CPG is incorporated into their contract and it should be construed strictly against Tarion and the Added Party. Dimensions in the CPG may appear to set hard standards but they are not determinative. The CPG itself states:

Some items in this document refer to specific dimensions to determine what is acceptable. These dimensions are used to evaluate the identified conditions. If the variation is minor, Tarion may consider whether the variation significantly affects the performance of the item in determining whether the particular guideline has been met.

Thus, Ms Gardiner’s determination that the variation in issue is minor, fully accords with the intent of the CPG. Further, the CPG does not have the force of regulation and is not binding on the Tribunal. In the absence of evidence of a defect in materials or breach of the OBC, the Tribunal is bound by the statutory warranty and the onus on the Appellants to demonstrate that this particular home has not been built in a workmanlike manner. Even accepting the Appellants’ position that the CPG has contractual effect, the evidence indicates that the condition is minor in nature and was not initially noticeable.

ORDER

23By virtue of the authority vested in it by the Act, the Tribunal orders Tarion to deny the Appellants’ claims for warranty.