Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2014-11-21
FILE:
8678/ONHWPA
CASE NAME:
8678 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-
Jaylaura Construction Ltd.
Added Party
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Terrance Sweeney, Vice-Chair
APPEARANCES:
For the Appellants:
Self-represented
For the Respondent:
For the Added Party:
Heard in Toronto:
Gena Argitis, Counsel
Gillian Gondosch, Student-at-Law
Cory Libfield and Jack Marcoccio, Agents
November 6, 2014
DECISION AND ORDER
This is an appeal by the Appellants under Section 16 of the Ontario New Home Warranties Plan Act (the “Act”) from a decision of Tarion Warranty Corporation (the “Respondent” or “Tarion”) in a Decision Letter1 dated February 18, 2014.
ISSUE
The Appellants claimed damages of $150 per day, for a total of $7,500, in respect of an alleged breach of warranty for delayed closing under subsection 14(3) of the Act and Regulation 165/08 to the Act.
DECISION
The Appellants have failed to discharge the onus on them of proving their case on a balance of probabilities. Their claim is, therefore, dismissed for the reasons which follow.
EVIDENCE FOR THE APPELLANTS
The Appellants are spouses. Their names will not be revealed in order to protect their privacy. One of the spouses (Appellant A) was the sole witness.
The Appellants entered into an agreement of purchase and sale of a home with the Added Party on December 30, 2011. The Tarion Addendum, Freehold Form (Tentative Closing Date) was attached to the agreement. The Statement of Critical Dates sets out a First Tentative Closing Date of March 12, 2013, a Second Tentative Closing Date of July 10, 2013, and a Firm Closing Date of August 12, 2013.
Appellant A testified that although all the appliances for the home were delivered on August 12, 2013, the range hood for the stove was not installed until September 30, 2013. As a result, the Appellant’s family was forced to take their meals and spend a number of days staying with relatives after August 12, 2013. Appellant A presented evidence2 to show that he complained to the Added Party in this regard and argued that his family had suffered through the incompetence of the Added Party.
On cross-examination, Appellant A conceded that he had received a written notice, dated November 15, 2012, setting out a Second Tentative Closing Date of July 10, 2013 and another written notice, March 28, 2013, setting a Firm Closing Date of August 12, 2013.
Title to the property was transferred to the Appellants on August 12, 2013. They moved into the house on August 19, 2013. The Appellants further acknowledged that the City of Toronto, on July 17, 2013, had issued an occupancy permit3 for the house.
EVIDENCE FOR THE RESPONDENT
Irene Swain
Ms. Swain is a Warranty Service Analyst (“WSA”) at Tarion. She has worked at Tarion for 26 years, 20 of which have been a WSA where she deals with delayed closing claims.
She wrote and signed the Decision Letter denying the Appellants’ claim. She referred to Regulation 165/08 to the Act and, in particular, to The Freehold Home Addendum (Tentative Closing Date) (“the Addendum”).
The Addendum is a 7-page document and describes, in detail, the critical dates which form part of the delayed closing warranty. A vendor of a home is free to extend the closing dates of a transaction provided that written notice thereof is given to the purchaser at least 90 days before those dates.
She testified that in this case, the Added Party (the “Vendor”) gave the purchaser more than 90 days written notice of each of the Second Tentative Closing Date and the Firm Closing Date and that the transaction closed on the Firm Closing Date, August 12, 2013.
She also noted that the City of Toronto had issued an occupancy permit for the home on July 17, 2013. In these circumstances, she had no choice but to deny the Appellants’ claim. She said that the Appellants should have pursued their claim through the regular review processes of Tarion.
APPLICATION OF THE LAW TO THE FACTS
Subsection 14(3) of the Act, Regulation 165/08(5) and the Addendum provide a complete code to determine if there has been a delay in occupancy beyond the Final Closing Date to support a claim of breach of warranty.
The evidence establishes that the Vendor gave timely written notices to the Appellants of the Second Tentative Closing Date and the Final Closing Date. Indeed, the transaction closed on the Final Closing Date of August 12, 2013.
In these circumstances, Tarion was right to reject the claim of the Appellants. There was no breach of warranty and the appeal of the Appellants must fail.
ORDER
For the reasons above and by the authority vested in it by subsection 16(3) of the Act, the Tribunal dismisses the appeal of the Appellants and orders Tarion to reject their claim.
LICENCE APPEAL TRIBUNAL
Terrance Sweeney, Vice-Chair
Released: November 21, 2014