Licence Tribunal / Tribunal d'appel en matière de permis
FILE: 8149/ONHWPA
CASE NAME: 8149 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 Applicant Applicant
-and-
Tarion Warranty Corporation Respondent
-and-
Cannon Homes Ltd. Added Party
DECISION AND ORDER
ADJUDICATOR: D. Gregory Flude, Vice-Chair
APPEARANCES:
For the Applicant: Donald Lamb and Sandra Black, Paralegals
For the Respondent: Montgomery Shillington, Counsel
For the Added Party: Sherri Cannon
Heard in London: January 7, 2014
DECISION
1The Applicant appeals the decision of Tarion Warranty Corporation (“Tarion”) to deny her claim for warranty set out in a Decision Letter dated May 29, 2013. The Added Party, Cannon Homes Ltd. (“Cannon”), is the builder and 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 Applicant. It supports Tarion’s position in this matter.
2There are three issues in dispute: improperly installed siding, basement water penetration and poor paint finish on some surfaces. Two other items set out in the Decision Letter were resolved prior to the hearing. The Tribunal heard evidence from the Applicant, Dean Hickey who is the Tarion Warranty Services Representative dealing with the Applicant’s home, Henry Kielstra, the owner of the contractor that installed the siding and Sherri Cannon, a co-owner with her husband of the builder, Cannon. While there were references in the evidence to a wider range of issues than those before the Tribunal, particularly by the Applicant and Ms Cannon, the Tribunal will deal only with the matters in issue.
3The Applicants’ 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
- (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.
Term of warranty under subs.(1)
(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.
4The Applicant testified that the siding on the house is wavy. She has noticed that in some areas she could see the starter course on the siding. She has also heard the siding slap on the east side of the building in high winds. In her view the siding was improperly installed. Because of the waviness and improper installation, the Applicant is of the view that rain is penetrating the siding and draining down into the basement walls. She has noted that on hot summer days the siding appears to be wavier and that when it rains on warm summer days the vapour barrier is wet. If she pushes on the strapping that separates the upper insulation blanket and vapour barrier from the lower, water will drip. Tarion takes the position that a certain degree of waviness is normal and necessary. According to both Mr. Kielstra and Mr. Hickey siding needs to be loosely nailed to permit expansion and contraction. Mr. Kielstra stated that it will expand and contract as the sun shines directly on it or is covered by cloud, as well as with diurnal and seasonal temperature changes. Loose nailing may cause it to make a slapping sound in high winds. Mr. Hickey pointed to the Construction Performance Guidelines (“CPG”), the Tarion issued manual that outlines building inspection standards for consumers, builders and Tarion representatives. The CPG recognizes that a certain degree of waviness will occur in siding and sets a 20mm deflection standard. Mr. Hickey could not measure the actual deflection of the Applicant’s siding because of its height above the ground, but on a visual inspection he concluded that it met the standard. The Applicant produced no evidence concerning the measurement of the siding deflection.
5With respect to the Applicant’s theory that water penetrating loose siding was draining into the basement and causing the wet vapour barrier, Mr. Kielstra, Mr. Hickey and Ms Cannon all testified about the structure of building walls and how they shed water. Specifically they testified about the structure of the Applicant’s wall and the Applicant’s belief that the siding starter course was exposed in certain areas. There are two types of cladding on the Applicant’s home. The lower layer is brick and the upper layer is vinyl siding. Inside that cladding is a waterproof layer. One common material goes under the trade name “Tyvek” and is frequently seen on buildings under construction. Thus, water penetrating the cladding is kept from the building interior by the Tyvek or equivalent layer. In the case of the upper vinyl siding in the Applicant’s home, in some areas the upper and lower frames of the house line up flush and the siding may be installed without modification. In other areas, the upper frame protrudes slightly. In those areas Mr. Kielstra’s company installed flashing along the top of the brick masonry layer to force the water to flow outwards. It is this flashing that the Applicant has mistaken for the starter course of the siding. In addition, it is Mr. Kielstra’s practice to install a further waterproof layer of tar paper under the siding. At the bottom of the masonry layer, where it meets the top of the basement wall, a waterproof layer deflects any water that is inside the masonry out through weeping holes in the bottom of the brick.
6Mr. Hickey inspects 110 houses each year. He has seen occasions where, despite the Tyvek and waterproofing measures, there are rips or tears and water penetrates the walls. A characteristic of this type of water penetration is that the water damage in the basement in highly localized. It creates significant pooling. He noted no such localized water penetration issues in the Applicant’s home. What he noticed was that there was evidence of dampness on the vapour barrier along all of the outside walls, and particularly in the lower insulated area. The only explanation for the staining pattern Mr. Hickey observed was, in his opinion, condensation. He explained that, in the summer, with the air conditioner operating the vapour barrier in basement is cool and the outside wall is warm. Curing cement may put out significant moisture for several years and this moisture condenses on the inside of the vapour barrier and may run down to the bottom. The remedy for this condition is time but the use of a dehumidifier also helps. Ms Cannon echoed this evidence and stated that she has this problem in every home she builds. It arises out of the building code requirement that basements be insulated and have a vapour barrier and cannot be avoided until the concrete fully cures.
7Both Mr. Hickey and the Applicant agree that at oblique angles in certain light conditions it is possible to see roller marks on the wall of the foyer. Mr. Hickey stated that these marks are not apparent when viewed perpendicularly to the plane of the wall and the Applicant did not disagree. Rather it was her position that the marks should not ever be visible. Ms Cannon testified about the paint used in the Applicant’s home. She stated that she used paint with an eggshell finish. It is the nature of an eggshell finish that sometimes from oblique angles roller marks are visible. In addition, in the Applicant’s home touch up work was done to the foyer wall and this will invariably make the brush marks visible from oblique angles. Mr. Hickey identified the CPG standard for paint. It provides that there shall be no apparent brush marks from a normal viewing position, defined as not less than 1500mm perpendicularly from the surface, and in normal light conditions. It also provides that areas that are touched up will match the original “as closely as possible” thereby allowing some minor variation.
8Mr. Hickey warranted the paintwork in the walk-in closet in the master bedroom. He viewed one other closet, in bedroom #3 and found poor finish on the inside of a “nib” wall. As this wall surface was hidden from view, he did not warrant it. The Applicant testified that she had similar poor finish problems in all of her closets and the pantry. She stated that she pointed out all of the problem closets except the pantry to Mr. Hickey, a fact Mr. Hickey denies. Mr. Hickey was not pressed about the extent of his closet inspection in cross-examination, and the Tribunal accepts that he only inspected the master bedroom and bedroom #3 closets.
ANALYSIS
9It is trite law to state that in proceedings under the Act the burden of proof lies on the Applicant. The Applicant must prove that an item in dispute falls within the warranty protections in the Act. It is insufficient to simply allege a defect. The Applicant must prove the existence of such a defect and how the defect falls short of the acceptable standard. With respect to the items in dispute in this matter, the Applicant has failed to provide the necessary proof. Her theory concerning water leakage appears to be internally consistent. There is waviness in the siding; water may penetrate through the gaps; and the water will drain into the basement. She has not taken the nature of building construction into her calculations. She has not considered that the cladding is a first defence to water penetration but that the actual waterproofing comes from the material inside the cladding and not from the cladding itself. She has also provided no evidence of the extent to which the siding deflects so the Tribunal has no objective evidence that the siding is improperly installed. From the nature of the staining on the lower vapour barrier, the Tribunal accepts the position of Tarion that it is likely caused by condensation rather than leakage from outside the building envelope.
10The Tribunal accepts Mr. Hickey’s evidence that he was shown only two closets, one of which he warranted and the other of which he did not warrant because the defects was cosmetic in nature and would never be seen from a normal viewing position. It also accepts Mr. Hickey’s evidence that the brush strokes and roller marks in foyer are visible only from an oblique angle under certain light. The Tribunal finds that the CPG standard for paint finish is reasonable and applies it in this circumstance.
10Building construction is not a science calculated by computer to fine tolerances. There will be gaps, cracks, twists and bends as a house is built. Tarion has published the CPG to establish a starting point for determining when the inevitable imperfections attract warranty coverage. It is not law but this Tribunal has recognized that it is a good starting point and uses it with the application of common sense to determine if a particular condition attracts warranty coverage. It cannot do its analysis of applicable standards in a vacuum. The Applicant had to put evidence before the Tribunal to show how the standard was breached or why it should not apply. It is clear that she is dissatisfied with some of the construction in her home, but that is an insufficient basis upon which to grant relief.
ORDER
23By virtue of the authority vested in it by the Act, the Tribunal orders Tarion to deny the Applicants’ claims for warranty with the exception of the previously warranted item in the master bedroom walk-in closet.
LICENCE APPEAL TRIBUNAL
_________________________
D. Gregory Flude, Vice-Chair
Released: January 23, 2014