Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2014-10-20

FILE:

8300/ONHWPA

CASE NAME:

8300 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-

Castle Oaks Developments Limited

Added Party

REASONS FOR DECISION AND ORDER

ADJUDICATOR:

Mary Ann Spencer, Member

APPEARANCES:

For the Appellants:

One Appellant, self-represented

For the Respondent:

Gena Argitis, Counsel

For the Added Party:

Alexandra Lewin, Agent

Heard in Toronto:

September 18, 2014

REASONS FOR DECISION AND ORDER

This is an appeal by the Appellants to the Licence Appeal Tribunal (the “Tribunal”) from a Decision Letter of Tarion Warranty Corporation (“Tarion”) dated August 7, 2013 in which Tarion denied the Appellants’ claim with respect to a new home purchased from Castle Oaks Developments Limited (the “Added Party”).

The items under appeal were set out in the Tribunal’s Pre-Hearing Order March 13,, 2014 and numbered:

1. Water drops on insulation in basement walls

2. Staircase: colour of stairs is different

3. Walls, doors and windows on first floor not soundproof

4. First floor hallway floor chipped

5. Family room floor chipped

6. Carpet not smooth in bedroom four

7. Walls, doors and windows on second floor not soundproof

As a preliminary matter, the Appellant indicated that Item 16 in the Decision Letter, “Wall is not smooth/straight” in the first floor hallway, had not been withdrawn at the pre-hearing. He confirmed that he had received the Tribunal’s Pre-Hearing Order but was unable to provide an explanation as to why he had not notified the Tribunal of the discrepancy at that time. However, after a brief recess, Ms Argitis and Ms Lewin indicated they had no objection to the inclusion of the item. The Appellant then indicated that he wished to withdraw a number of the above noted items. The Tribunal clarified the appeal process with the Appellant after which he confirmed that he only wished to withdraw Item # 1 relating to water drops on insulation in the basement walls.

The hearing then proceeded. However, after the parties had presented their evidence, the Appellant indicated he was feeling too unwell to continue and requested an adjournment. Rather than set a further date to hear closing statements, the parties agreed to prepare written submissions.

FACTS AND EVIDENCE

The evidence of the Appellant comprised his testimony and photographs entered into evidence as Exhibit 3. Tarion’s evidence comprised documents entered into evidence as Exhibits 4, 5 and 6 and the testimony of Tarion Warranty Services Representative Vincenzo Vaccaro. Mr. Vaccarro has held that position since November, 2008. Before joining Tarion, he was a general contractor. Mark Roccatagliata, the senior customer service manager for the Added Party, testified on its behalf.

Item 6: Staircase: colour of stairs is different

Referring to three photographs of the oak staircase in his home in which the steps have been numbered (Exhibit 3 -1, 3 -2 and 3 -3), the Appellant stated that the stain on the bottom stairs varies in colour intensity, with Step 2 being noticeably lighter and Steps 4, 7 and 11 being noticeably darker. He also indicated that the varnish on other steps is very rough. He stated that while the builder did complete a repair, the repair “did not come out appropriately”.

On cross-examination, the Appellant agreed that in the pictures he provided, Step 2 appears lighter than Step 1 and Step 4 appears darker. He also agreed that there is significantly more wood grain visible in Step 4 and that Steps 3 and 4 had been repaired. Ms Argitis referred the Appellant to pictures of the staircase taken by Tarion on January 23, 2014 (Exhibit 4, Tab 1). She asked the Appellant if he agreed that in those pictures, the colour of the steps corresponding to his numbers 6 to 9 appears to be uniform, although darker than others. The Appellant agreed and added that other steps in the Tarion photographs appeared lighter. He then reiterated that Steps 4, 7 and 11 were those at issue.

Mr. Vaccaro testified that he conducted an inspection on May 28, 2013, at which time he assessed the condition of the staircase. The Appellant advised him that the Added Party had repaired the bottom stairs but that he was not satisfied with the repair. Mr. Vaccaro stated that he did note that Steps 4, 7, and 14 appeared to be darker than the others but that the wood grain was tighter on those. He then referred to Tarion’s Construction Performance Guidelines with respect to floor finishing which indicate there will be variations in the finish on a natural wood product, noting these would apply to the staircase. His assessment was that the colour variations were acceptable and that there was no defect. He conducted a reassessment on January 23, 2014 and reached the same conclusion.

Items 10 and 26: walls, doors and windows on first and second floor not soundproof

The Appellant testified that when Tarion conducted its conciliation inspection, a vehicle on the street could be heard from inside his home. He stated that he has no evidence but believes that there is either insufficient insulation in the walls of his home or the windows are not of good quality. On cross-examination, he confirmed that he had no expert opinion in this regard.

Mr. Vaccaro testified that when he inspected the Appellant’s home, the Appellant informed him that his children were being disturbed by cars while they were studying. In Mr. Vacarro’s opinion, it is common to hear outside sounds from within a home. He noted that the Ontario Building Code does not address sound transmission in single family homes; rather, it has standards only with respect to shared party walls. It was Mr. Vaccaro’s assessment that there was no defect in the Appellant’s home and the item was therefore not warranted.

Item 14: first floor hallway floor chipped

The Appellant testified that there was a chip in the wood flooring in the first floor hallway that had not been repaired. The Appellant did not have a photograph of the chip. He advised the Tribunal that he had sent photographs for the purposes of the pre-hearing and understood the Tribunal would have these on file. The Tribunal’s records, however, indicate that all documents disclosed for purposes of the pre-hearing had been returned to the parties.

On cross-examination, the Appellant agreed that he had not reported this item on the Pre-Delivery Inspection Form (the “PDI”) (Exhibit 5, Tab 1) and stated that he had not done so because he was unable to inspect all of the floor because it was partially covered by a roll of carpet which was to be installed on the second floor of his home. He noted that similarly, he had not reported Item 20, the rough patch on the carpet, on the PDI. On cross-examination, he agreed that his testimony at this hearing was the first time he had advised Tarion of the fact that he had not been able to inspect the complete floor.

Mr. Vaccaro testified that when he conducted the May 28, 2013, conciliation inspection there were a number of visible chips in the hallway floor in the high traffic area in front of the stairs. Because they were not reported before the year-end report, he did not warrant them. He also testified that he had heard nothing about carpet blocking the view of the floor until the Appellant’s testimony at this hearing.

Item 16: hallway wall is not smooth/straight

The Appellant stated the wall on the left side of the entrance door (when facing the house) is not straight and provided photographs to support his claim (Exhibit 3 -4, 5,6 ,7). He placed parallel measuring tapes at each end of the wall and measured a 2.5 centimeter difference in the distances from the two points on the wall to the first tile grout line. He indicated that this difference exceeds Tarion’s specified tolerance level.

Ms Argitis asked the Appellant if he had pointed out the east wall to Mr. Vaccaro at the time of the May 28, 2013, conciliation inspection. Initially, the Appellant indicated he “could not say” it was the east wall but agreed that it was the wall on the right side of the entrance which was then determined to be the east wall. He agreed that the photographs he submitted are of the left side and then added that he was “saying that my hallway is not straight”. Asked if he had pointed out the area in the photographs during the inspection, he stated “no, I never mentioned any area”. He then stated that he did point the area out but this may have happened at the second year claim inspection rather than the first. Ms Argitis then asked the Appellant if he had pointed out the area in the photographs at the time of the re-inspection on January 23, 2014. He stated he had not but that he had told the Tarion represenative that his hallway was not straight.

Mr. Vaccaro testified that at the May 28, 2013, conciliation inspection, the Appellant identified the east wall of the entrance hall as not being straight. Mr. Vaccaro observed a visible bow in the wall. However, he was unable to measure it because the Appellant asked the builder’s representative to leave and the measurement technique requires three persons. After the first pre-hearing in this matter, Mr. Vaccaro conducted a further inspection on January 23, 2014, (Exhibit 4, Tab 2, Item 17). Using the methodology set out in Tarion’s Construction Performance Guidelines, the wall was measured from a point which was identified by the Appellant as having the greatest distortion. The variation in the plane of the wall was determined to 3 mm, less than the tolerance of 15 mm set out in the Construction Performance Guidelines. The Appellant did not point out the area in the photographs filed as Exhibit 3 -4, 5, 6, 7 to Mr. Vaccaro at either inspection. However, he did raise this area, the wall with the front door, on his Second Year Form. Mr. Vaccaro conducted a conciliation inspection on June 9, 2014 (Exhibit 6), at which time he did not warrant the item because it did not fall within the second year warranty.

Item 18: family room floor chipped

Referring to a photograph he had taken (Exhibit 3 -8), the Appellant testified that a chip in the floor of his home’s family room had been inadequately repaired, stating that it is a visible defect when viewed from a reasonable distance. On cross-examination, he stated that the Added Party had repaired the chip with wood filler but reiterated that the repair was not well done. He agreed with Ms Argitis that he had difficulty locating the repair to show it to Mr. Vaccaro but stated this was not because it was difficult to see, but because it had been covered by furniture. He indicated that the photograph he took was taken from a standing position, using the built-in flash on his camera.

Mr. Vaccaro testified that when he inspected the Appellant’s home, it took the Appellant approximately 15 seconds to locate the chip in the family room floor. Mr. Vaccaro stated his opinion was that the repair had been completed in an acceptable, workmanlike manner. He noted that the normal method of repair is wood filler because removing and replacing a board can in fact be destructive, resulting in damage to adjacent boards.

Mr. Roccatagliata testified that because the area of damage on the family room floor was very small, wood filler was the appropriate method of repair. He also noted that the flooring in the Appellant’s home is no longer being manufactured.

Item 20: carpet not smooth in bedroom four

The Appellant noted that the carpet is not smooth in a ‘small portion’ of one bedroom. On cross-examination, he repeated that this item was not reported on the PDI because the carpet had not been installed at the time the PDI was completed. He agreed that the area of the carpet at issue is approximately four square feet and does not appear visibly different but noted that it feels rough to the touch.

Mr. Vaccaro testified that he saw no visible difference in the carpet upon inspection but he could feel a difference in texture in the area pointed out by the Appellant. He noted that a manufacturing defect, which could occur if a carpet spins off a roll, would have resulted in a straight line pattern. However, the area in the Appellant’s home is irregular and is consistent with a spill. He suggested that a clear drink with sugar could have been the cause. Therefore, he concluded that the item was not warranted.

THE LAW

The applicable provisions of the Act are as follows:

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.

(4) A warranty under subsection (1) applies only in respect of claims made thereunder within one year after the warranty takes effect, or such longer time under such conditions as are prescribed.

APPLICATION OF LAW TO FACTS

The onus is on the Appellant to prove, on a balance of probabilities, that there has been a breach of warranty. In making its decision, the Tribunal has relied on the evidence of the parties and has considered the authorities submitted by Counsel for Tarion.

Item 6: Staircase: colour of stairs is different

The Appellant agreed that the stairs had been repaired by the Added Party but stated that the repair was not adequate and expressed his concern with the appearance of a number of specific steps in the oak staircase. He submitted that the staircase should be re-stained.

Both the Appellant and the Respondent entered photographs of the staircase into evidence. The Appellant agreed that the specific steps which appear darker and lighter differ in the two sets of photographs. The Tribunal notes that the appearance of an object in photographs can vary considerably based on the camera, the amount of natural light, and whether a flash is used. The adequacy of the repair therefore cannot be determined from the photographs.

Mr. Vaccaro testified that because the stairs are a natural wood product, there would be variance in its appearance and he referred to Tarion’s Construction Performance Guidelines with respect to wood floors which note that the finish would have variation.

The Appellant may well not be satisfied with the appearance of the staircase. However, it has been well established at this Tribunal that the standard of repair is not perfection. Vice Chair Laurie Sanford wrote in Miandro (Re) [2007] O.L.A.T.D. No. 498, a case which also involved a claim with respect to the appearance of stain on a staircase:

Aesthetics are one criterion by which the results of the builder’s work may be judged but the standard to be used is what may be reasonably expected from a workman who is competent to perform the job. The standard is not perfection.

The Appellant offered no independent evidence to support his claim that the repair was inadequate. Because he has not proven there is a defect in materials or workmanship, the claim is denied.

Items 10 and 26: walls, doors and windows on first and second floor not soundproof

The Appellant testified that he had no evidence to substantiate his claim that either inadequate insulation or faulty windows were responsible for his ability to hear outdoor sounds inside his home. He submitted that the Tribunal should order Tarion to conduct an inspection of the doors, windows and wall insulation. However, the onus is on the Appellant to demonstrate that there is a defect. He failed to do so. Therefore, the claim is denied.

Item 14: first floor hallway floor chipped

The Appellant produced no evidence, including any pictures, to support his claim that chips in the first floor hallway floor are a warrantable defect. The Tribunal notes that this item was not reported on the PDI Form. In spite of the fact that two pre-hearings were held in this matter, it was not until this hearing that the Appellant advised that he was unable to inspect the floor at the time he completed the PDI Form because it was covered by a roll of carpet. The Appellant could have made a note to this effect on the PDI but did not. Mr. Vaccaro noted that the hardwood floor does have a number of small chips in the high traffic area in front of the stairs but that he could not assess when the damage occurred or who caused it. The fact that the damage was not noted on the PDI and that no mention of the fact the floor could not be fully inspected at that time was made before this hearing, persuades the Tribunal that it is unlikely the damage was caused by the builder. The Appellant has not proven that the floor was damaged by the Added Party. The Tribunal therefore denies his claim.

Item 16: hallway wall is not smooth/straight

At this hearing, the Appellant produced photographs of a corner of his front hallway (Exhibit 3 -4,5,6,7). Mr. Vaccaro agreed that he observed the photographed area was not square when he conducted his second year warranty assessment. However, the evidence indicates that the item which was initially pointed out by the Appellant was a different area, the east wall in the hallway. At the initial inspection on May 28, 2013, Mr. Vaccaro was unable to measure this because the builder was asked to leave. When Mr. Vaccaro conducted a re-inspection on January 23, 2014, it was measured, found to be within the acceptable tolerance range, and therefore not warranted. The Appellant initially denied that he had specified any area of his hallway as being of specific concern when Mr. Vaccaro attended at his home. Ms Argitis asked him a number of times whether the wall he had identified was the east wall. Before he confirmed it was, the Appellant initially did not directly answer, stating he did not know how one could determine which wall was east. Mr. Vaccaro confirmed that it was the east wall which the Appellant indicated was not straight and it was that wall which was measured.

The area in the Appellant’s photographs is not the item specified in the Appellant’s Year End Form which reads “wall is not smooth/straight”. While the item reported on the form does not specify which wall, it stretches credulity that the Appellant would not have indicated the specific area of concern to Mr. Vaccaro at the time of his first two inspections. In his closing submission, the Appellant wrote “I have clearly and explicitly mentioned that my hallway wall is not smooth/straight. When Tarion did the inspection, I repeated this point. How to measure it is their responsibility.” In that submission, the Appellant indicated that he subsequently requested someone else to come and measure after Tarion inspected and that is how he discovered how to measure for the pictures he entered into evidence. The Tribunal notes that this is evidence he did not provide during the hearing. Further, the Tribunal notes that two pre-hearings were held in this matter and the second inspection of the Appellant’s home was conducted after the first of those pre-hearings. The Appellant had more than sufficient opportunity to clarify what was at issue. The Tribunal concludes that the specific item in the photograph was raised outside of the first year claim period to which the warranty for defects in materials and workmanship applies. Therefore, the Appellant’s claim is denied.

Item 18: family room floor chipped

It is the position of the Appellant that a chip in the family room floor was inadequately repaired with wood filler by the Added Party. The Appellant entered a photograph (Exhibit 3 -8) into evidence to support his claim. Mr. Vaccaro testified that when he inspected the repair, it took some time for the Appellant to locate the area. He also testified that filling such chips with wood filler is the standard repair because removing and replacing boards could cause damage more extensive damage. Mr. Roccatagliata testified that the repaired area was small and that wood filler was the normal repair method. The Tribunal notes that in the Appellant’s photograph, the area in question is brightly illuminated by a circle of light and therefore it cannot assess how the repair would appear in normal viewing conditions.

As noted above, the standard of repair is not perfection. The Appellant presented no independent evidence to support that the repair of the floor chip is inadequate. The Tribunal therefore denies the claim.

Item 20: carpet not smooth in bedroom four

The Appellant produced no evidence to support that the rough textured area on the carpet is a defect in materials. Mr. Vaccaro’s evidence is that there is no visible issue with the carpet and that the irregular shape of the area of roughness suggests that something has been spilled on it. He testified that if the carpet roll had slipped during manufacturing, the resulting damage would have been a straight line on the carpet. The Appellant produced no independent evidence to support his position that the carpet is defective. The Tribunal therefore denies the claim.

ORDER

Pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs Tarion to deny the Appellants’ claims.

LICENCE APPEAL TRIBUNAL

Mary Ann Spencer, Member

Released: October 20, 2014