Licence Tribunal
Appeal d'appel en Tribunal matière de permis
DATE:
2014-11-06
FILE:
8624/ONHWPA
CASE NAME:
8624 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-
Mattamy (Brock Road) Limited
Added Party
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
E. Alan Garbe, Vice-Chair
APPEARANCES:
For the Appellants:
Self-represented
For the Respondent:
Danielle Peck, Counsel
For the Added Party:
Steve Papaikonomou, Agent
Heard in Toronto:
October 30, 2014
REASONS FOR DECISION AND ORDER
This is an appeal by the Appellants to the Licence Appeal Tribunal (the “Tribunal”) from a Decision Letters of Tarion Warranty Corporation (“Tarion”) dated January 13, 2014, with respect to a new home purchased from Mattamy (Brock Road) Limited (the “Added Party”), in which Tarion denied certain of the Appellants’ claims
BACKGROUND
In their Year End Statutory Warranty Form, the Applicants submitted a list of 46 outstanding items with respect to the home which they purchased from the Added Party pursuant to an Agreement of Purchase and Sale dated October 25, 2010. The Appellants appealed the Decision Letter by Notice of Appeal dated February 13, 2014. At the time of the pre-hearing in this matter, the number of items outstanding had been reduced to seven and at the commencement of the hearing it was agreed by the parties that only Claim numbers 10, 15, 29, 41 and 45 would be considered in this appeal. Claim numbers 17 and 38 were withdrawn.
At the commencement of the hearing, the Respondent’s Book of Documents was entered as Exhibit 3, the Respondent’s Book of Documents, Volume 2, was entered as Exhibit 4 and a group of nine black and white copies of photographs submitted by the Appellants were entered as Exhibit 5.
EVIDENCE
The Tribunal heard evidence from one of the Appellants and from Thomas Hollman, the Tarion Field Claim Representative. Their evidence will be reviewed in the context of each specific claim
Claim 10 refers to swelling in the laminate countertop in the kitchen of the home which the Appellant believes should be replaced. The homeowner referred to a picture in Exhibit 5, marked as number 1, as showing the swelling. Due to the quality of the reproduced photograph it was of no assistance to the Tribunal. The Appellant had no other evidence nor did he know the cost of replacing the countertop.
It is the Respondent’s position as stated by Mr. Hollman that the swelling was not visible, but could be felt. This matter had not been identified on the pre-delivery inspection report and therefore is impossible to assess if the swelling was due to the method of installation, and therefore, the claim was denied.
Claim 15 concerns the discolouration of the railing on a staircase which, according to the Appellant, had been re-done, but once again was changing colour. The Appellant asked that the railing be re-stained.
It is the Respondent’s position that the slight differences in the colour of the railing are due to the natural properties of the wood and is acceptable.
Claim 29 relates to a concern that when the clothes dryer is operating, it causes the whole structure to vibrate. The Appellant produced no evidence of this alleged problem and no such vibration was detected by Mr. Hollman when he attended at the Appellant’s residence on October 16, 2014.
Claim 41 refers to the Appellants’ concern that since broken shingles were found in the backyard of the home, there may be shingles missing from the roof of the home. The Appellant could not be sure that any shingles were missing. Mr. Hollman stated that his inspection of the Appellants’ roof indicated that there were no missing shingles. The Added Party stated that the roofing company which shingled the roof had been requested to re-attend at the home to inspect the roof and there was no indication that any remedial work need to be done. As a courtesy to the Appellant, the “Added Party will arrange for the roofing company to provide a letter that there are no shingles missing from the home.”
Claim 45 relates to the quality of the bricks as it is the Appellants view that there are defects in the bricks as evidenced by photographs 2, 3 and 4 in Exhibit 5. The photographs do show shaded areas in certain bricks. It is Tarion’s position that these alleged defects are design features and not defects in the brick
This position is supported by a letter introduced by the Added Party from Hanson Brick Ltd. (Exhibit 6) which states that indentations are intended to give the bricks the appearance of being “reclaimed” and are not defects.
THE LAW
The applicable provisions of the Act are as follows:
Warranties
- (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.
Exclusions
(2) A warranty under subsection (1) does not apply in respect of,
(a) defects in materials, design and work supplied by the owner;
(b) secondary damage caused by defects, such as property damage and personal injury;
(c) normal wear and tear;
(d) normal shrinkage of materials caused by drying after construction;
(e) damage caused by dampness or condensation due to failure by the owner to maintain adequate ventilation;
(f) damage resulting from improper maintenance;
(g) alterations, deletions or additions made by the owner;
(h) subsidence of the land around the building or along utility lines, other than subsidence beneath the footings of the building;
(i) damage resulting from an act of God;
(j) damage caused by insects and rodents, except where construction is in contravention of the Ontario Building Code;
(k) damage caused by municipal services or other utilities;
(l) surface defects in work and materials specified and accepted in writing by the owner at the date of possession.
APPLICATION OF LAW TO FACTS
As indicated above, the Appellants have not presented sufficient evidence, or any evidence at all, to support their claims that there are warrantable defects in their home.
The onus is on the Appellants to demonstrate that there is a defect with respect to each of the claim. They have failed to do so.
In conclusion, the Appellants have failed to satisfy the Tribunal, on the balance of probabilities, that they have claims which are subject to warranty by the Respondent.
ORDER
Pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs Tarion to deny the claims in full.
LICENCE APPEAL TRIBUNAL
_________________________
E. Alan Garbe Vice-Chair
Released: November 6, 2014