Licence Tribunal
Appeal d'appel en Tribunal matière de permis
DATE: 2014-09-09
FILE: 8549/ONHWPA
CASE NAME: 8549 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
-and-
Tarion Warranty Corporation Respondent
-and-
Polmat Group Inc. Added Party
ORDER
ADJUDICATOR: Patricia L. Cassidy, Vice-Chair
APPEARANCES:
For the Appellants: Self-represented
For the Respondent: Brent Arnold, Counsel
For the Added Party: Daniel McConville, Counsel
Heard in Toronto: September 5, 2014
ORDER
This is an appeal by the Appellants to the Licence Appeal Tribunal (the “Tribunal”) from Decision Letters of Tarion Warranty Corporation (“Tarion”) dated December 20, 2013, and May 28, 2014, with respect to a new home purchased from, Polmat Group Inc., the Added Party, in which Tarion denied the Appellants’ claim, in part.
Prior to the hearing of this matter proceeding, there were a number of preliminary motions which needed to be determined. The Appellants filed a Notice of Motion, dated June 18, 2014, on June 19, 2014. That Notice of Motion actually contained eight separate motions which were considered, in part, on July 14, 2014, when the Respondent requested that they be adjourned to the first day of the hearing. Pursuant to the Order of Vice-Chair McQuaid, the Respondent’s request for adjournment was granted and the motion(s) were adjourned to be heard at the commencement of the hearing.
On July 23, 2014, the Appellants filled another Notice of Motion which actually contained four separate motions, all of which were, essentially, contained in the Notice of Motion dated June 18, 2014. On August 28, 2014, the Respondent also filed a Notice of Motion, which, on its face, had to be determined before the commencement of the hearing.
In total, there were thirteen preliminary motions outstanding which had to be dealt with before the hearing of this matter could commence. The parties agreed to combine some of the Appellants’ motions and proceed with the four motions contained in the Appellants’ Notice of Motion dated July 23, 2014, as well as one of the motions contained in the Appellants’ Notice of Motion dated filed June 19, 2013. Those five motions, along with Respondent’s motion filed August 28, 2014, were heard on September 5, 2014. Those motions are dealt with separately below, in the order in which they were argued on September 5, 2014.
THE MOTIONS:
MOTION #1
The Appellants seek an Order directing “…Tarion to offer a cash settlement for Item #109 which reflects a fair market value in accordance with the requirements of the Act and the contract Tarion made on…November 22, 2013.”
Simply put, the Appellants want the Respondents to pay them a cash settlement. The facts are that the Respondent prepared a Conciliation Report, dated August 23, 2013, which included Item 109 as a warranted item on the basis of an unauthorized substitution. On November 22, 2013, the Respondent advised the Appellants that once quotes were received, they would be considered, a repair cost determined reflecting fair market value and that amount would be offered to the Appellants as a cash settlement. The parties did obtain quotes but no offer for a settlement was ever made by the Respondent.
The Respondent’s position is that this motion seeks to pre-empt the normal process of dispute resolution whereby the issue of proper compensation for a breach of warranty would be argued before the Tribunal in the event the parties could not come to an agreement. Furthermore, the Respondent argues that this motion is, essentially, a motion for summary judgment with regard to Item #109 and the Tribunal’s Rules of Practice (the “Rules”) do not make provision for summary judgment. The Respondent asserts that this matter ought to be determined in the course of the hearing and not summarily, by motion.
The Added Party takes the position this motion is unreasonable and improper and ought to be dismissed.
ORDER regarding Motion #1
It is neither practical nor proper to divide a case up into a series of mini hearings. Further, there is no provision in the Rules which contemplates summary judgment by the Tribunal on an issue such as this. More significantly, this matter needs to be determined on its merits, which necessitates the receipt of evidence from the parties and a full hearing. In addition, a party cannot be ordered to settle a matter or be forced to consent to an outcome. Just because the Respondent warranted the item does not mean damages are necessarily established and, absent a full hearing on the issue, it would be impossible to determine the quantum of damages, in any event. Consequently, this motion is dismissed.
MOTION #2
The Appellants seek an Order requiring “…the Added Party to disclose to all parties prior to the hearing all documents related to house construction as listed below…”
a. All Added Party correspondence including contracts with the architect about all custom features as per the Agreement of Purchase and Sales (APS) before applying for the building Permit and after.
b. Appellants’ approvals with original signatures and dates for all colour and material selections and all selected features as per the APS including diagrams for all items in schedule Z.
c. All Added Party agreements with all contractors and subcontractors confirming the Appellants’ approval for colour and material selections and all custom features as per the APS including diagrams for all of the items in schedule Z.
d. All Added Party invoices for all custom materials and fixtures.
e. All Added Party invoices for labour confirming the minimum qualification and licensing of all trades.
f. All Added Party correspondence with Appellants on the progression of construction for how the house should be built in all phases of planning, design, construction and finishing.
It is the Appellants’ position that they require disclosure of these documents to fully prepare their case.
The Added Party states that they will produce the documents they intend to rely upon and, if the Appellants require further disclosure they ought to produce a list specifying what they want but that the list provided in this motion is too vague and amounts to a “fishing expedition.”
The Respondent, Tarion, takes no position with regard to this motion
ORDER regarding Motion #2
The Appellants are or ought to be in possession of correspondence addressed to them. They should also be aware of what selections they made and approved for their home. The Appellants have failed to establish any grounds for requiring another party to confirm what they themselves signed and approved. The requests contained in paragraphs b, c, e and f above are vague and the Appellants have failed to establish the relevance of the material sought. Consequently, this motion is allowed, in part. Specifically,
i. the Appellants shall provide the Added Party with a list of the custom fixtures and appliances which they require invoices for and the Added Party shall, on or by September 17, 2014, provide the Appellants with copies of those invoices, and
ii. the Added Party shall, on or by September 17, 2014, also provide the Appellants with copies of any correspondence to or from the architect regarding all custom features listed in the Agreement of Purchase and Sale.
MOTION #3
The Appellants seek an Order “that Tarion and the Added Party disclose to all parties a Certificate of Impartiality for any expert and non-expert witness and inspection report that is intended to be relied upon at the hearing.”
The Appellants argue that they suspect certain witnesses of bias and believe they are not impartial.
The Added Party takes the position that the Rules do not provide for the relief being sought. Counsel for the Added Party stated that if this proceeding were governed by the Rules of Civil Procedure which do provide for such a form, his client would provide one but, given the Rules governing this hearing do not contemplate such a declaration, neither he nor his client know what the Appellants are looking for.
Counsel for the Respondent also takes the position that there is no requirement under the Rules that such certificates be provided or filed.
ORDER regarding Motion #3
The Tribunal’s Rules of Practice do not require any witness to complete a Certificate of Impartiality. It is up to the Tribunal member receiving the evidence at the hearing to determine the credibility of a witness and, in the case of an expert witness, to determine how fair and impartial their evidence is. Consequently, this motion is dismissed.
MOTION #4
The Appellants seek an Order that “…details of all reports, inspections and other documents concerning the assessment of Item #109 by all parties after August 23, 2013, be withdrawn from any disclosures made for the hearing, This includes any documents in the Decision letter for Item #109 issued by Tarion on May 28, 2014.”
The Appellants assert that there is no reason to have any reports or evidence on the assessment of item #109 dated after the Conciliation Report dated August 23, 2013, including the expert reports obtained by the parties. They assert that Reg. 892, s. 5.1 (2) of the Act specifies a time frame of 30-60 days to settle warranted items and the Act contemplates the consideration of only one report.
The Added Party resists this motion and argues that it is absolutely necessary that the expert reports be in evidence; that the Tribunal needs all relevant and available evidence to determine the matter of Item #109.
The Respondent argues there is no legal basis for this motion and asks that it be denied.
Order regarding Motion #4
The Appellants seek to suppress the expert reports obtained by the parties on the basis that they believe the Conciliation Report dated, August 23, 2013, ought to be the last word on the subject of Item #109. They deny there is any need for a full hearing on the issue and assert there is no requirement for any expert reports. The Appellants have failed to establish any basis for suppressing or refusing to receive any particular documentary evidence for the hearing. Issues of admissibility may arise during the full hearing and will be determined at the appropriate time. There is no basis, in law, for this motion and, accordingly, it is dismissed.
MOTION #5
The Appellants ask for an Order “…to remove the admissibility and disclosure of the TTMAC report provided by Tarion for the hearing.”
The Appellants assert that the inspection and subsequent report by TTMAC is “illegal” pursuant to the provisions of the Act and that it is deficient because the authors were directed to exclude essential elements from the report and other essential elements were also not included in the report. They argue that the pre-hearing order of Vice-Chair Flude, dated May 14, 2014, was improper in allowing Item #109 to become an item of the appeal.
The Added Party takes the position that since the Pre-hearing Order of May 14, 2014, was never appealed, it cannot now be set aside or ignored. They argue there is no basis for this motion.
The Respondents assert that if the Appellants don’t like the impugned report, they can cross-examine the author at the hearing but there is no reason to exclude the report.
Order regarding Motion #5
As with Motion #4 above, the Appellants have failed to establish any basis for suppressing or refusing to receive any particular documentary evidence at this time. The issue of admissibility can be raised at the hearing and the author of the report can be cross examined and a determination made with regard to what weight, if any, ought to be given to the report in question. There is however no basis to remove the report from the disclosure made to date. This motion is dismissed.
MOTION #6
The Respondents seek an Order quashing the summons of Howard Bogach, the President and C.E.O. of Tarion Warranty Corporation, which was issued August 1, 2014, on the basis that Mr. Bogach has no relevant information on any relevant issue before the Tribunal in this proceeding. They further assert that the summons amounts to an abuse of process.
In support of their motion, the Respondents filed an affidavit sworn by Carol Metcalfe, a Director in the Warranty Services Department of Respondent Corporation. Ms. Metcalfe’s evidence is that the Appellants created a petition at Change.org., wherein they asked people to sign a petition to “Make Tarion Accountable”. Each time somebody new signed the petition, it would generate an email to high ranking Tarion and government officials, including Mr. Bogach. As a result of those emails, Mr. Bogach inquired about the Appellants’ file and was advised by Ms. Metcalfe that the matter was being addressed by the appropriate Tarion staff. Ms. Metcalfe’s evidence is that Mr. Bogach does not have any firsthand knowledge about the Appellants’ claim and has not made any of the decisions relative to it. In addition, Ms. Metcalfe’s evidence is that at the Annual Public Meeting which Tarion is obliged to host, the Appellants, along with friends and family, attempted to engage Mr. Bogach in discussing the Appellants’ case but that he repeatedly advised he could not answer their questions.
The Respondents rely on the case of Franco (Re), [1996] O.C.R.A.T.D. No. 53 as authority for the proposition that the test the Appellants must meet to successfully resist this motion is that they must establish that Mr. Bogach can give evidence which is relevant to an issue this Tribunal has to decide. Further, the Franco decision also provides that, “Another test is whether it is reasonable in all the circumstances to require the attendance of a witness.”
The Added Party took no position with regard to this motion.
The Appellants ask that this motion be dismissed and rely on the affidavit of A.F., one of the Appellants,, sworn September 2, 2014 wherein she deposed that she was present at Tarion’s 2014 Annual Public Meeting when Mr. Bogach told her and her husband, J.F. the other Appellant,, that their flooring item was going to be resolved soon and estimated it would be within two weeks. The Appellants also rely on the affidavit of W. F. (a family member), sworn on September 2, 2014, who deposes, at paragraph of 39 of his affidavit, that he witnessed Mr. Bogach promise to resolve the Appellants’ claim at Tarion’s Annual Public Meeting held on April 30, 2014. The Appellants also rely on paragraph 14 of the affidavit of J. F (brother of one of the Appellants) , sworn on August 29, 2014, wherein he alleges he spoke with Mr. Bogach about specifics of the Appellants’ case but he does not state what those “specifics” were. He goes on to describe Mr. Bogach’s answers to his questions as “indirect” and “circular” and that ultimately Mr. Bogach stated he would not answer any further questions and moved away.
The evidence falls short of meeting the test set out in Franco. On the evidence, Mr. Bogach cannot be deemed to have had any direct involvement in the Appellants’ claim. The fact that he has become aware of the case and has satisfied himself that staff at Tarion is dealing with the matter is not sufficient to meet the threshold required. On the evidence, it is not possible to find that Mr. Bogach has any relevant evidence on any issue to be determined by this Tribunal The overwhelming evidence is that Mr. Bogach has not had any direct involvement, whatsoever, in this matter. Consequently, this motion is allowed and the summons of Mr. Bogach, issued August 1, 2014, is herewith quashed.
COSTS
There will be no order for costs on the motions heard September 5, 2014.
This matter is adjourned to September 23, 2014, at 9:30 a.m. at which time the hearing will commence. In addition to the date of September 23, 2014, the following dates have been agreed upon by the parties and set by the Tribunal for the hearing of this matter: September 25, October 7 and 8, October 20, 21, 22 and 23, 2014.
The summons to witnesses, properly served, for the hearing which was to commence on September 3, 2014 remain in effect for the hearing which will now commence on September 23, 2014.
LICENCE APPEAL TRIBUNAL
Patricia L. Cassidy, Vice-Chair
Released: September 9, 2014