Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2014-07-14
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
Appellants
-and-
Tarion Warranty Corporation
Respondent
-and-
Polmat Group Inc.
Added Party
ADJOURNMENT ORDER
ADJUDICATOR:
Patricia McQuaid, Vice-Chair
APPEARANCES (in writing):
For the Appellants:
Self-represented
For the Respondent:
Michael Doyle, Counsel
For the Added Party:
J. Daniel McConville, Counsel
ORDER
The Tribunal received a Notice of Motion from the Appellants on June 19, 2014. The Appellants seek, among other things, an Order from the Tribunal resolving item 109 on a Tarion Warranty Assessment Report before the hearing in this matter which has been scheduled to commence on September 3, 2014, exclusion of certain expert reports and production of further documents. The motion was scheduled to be heard at an in-person hearing before the Tribunal on July 22, 2014.
Counsel for Tarion, on July 9, 2014, filed a request for adjournment. Tarion is requesting that the motion be adjourned to the first day of the hearing. Several reasons for the request are cited, one of which is that the author of the Warranty Assessment Report which deals with item 109 is unavailable due to a previously scheduled vacation and that his evidence will be required in order for the Tribunal to decide the motion.
The Tribunal requested written submissions from the parties regarding this request for adjournment. The Appellants state in their submission that they oppose the adjournment, and provided further reasons and expressed their concerns over delay and alleged non-compliance with previous Tribunal orders. The Added Party supports the adjournment request.
The Tribunal has carefully considered the parties’ submissions, including the Notice of Motion and the previous orders of the Tribunal, namely the orders issued on February 26 and May 21, 2014.
The relief sought by the Appellants is premature at this stage. The Tribunal cannot make a determination on the issue of item 109 without hearing evidence, in accordance with the principles of procedural fairness. The dates for disclosure as ordered by the Tribunal have not yet passed. All parties have time within which to bring themselves in compliance with the order, specifically by August 5, 2014.
In the circumstances, the issues put forth by the Appellants can be fairly addressed by dealing with this motion on September 3, 2014, at the commencement of the hearing. Issues regarding the admissibility of documents, including expert reports can be dealt with by motion, if appropriate, at the commencement of the hearing, as well as any consequences that may flow from that.
The Appellants raised a concern in their submission of July 11, 2014, that Tarion was seeking to disclose certain expert reports that had already been ordered by the Tribunal to be excluded from the hearing, and the Appellants alleged that this was improper and it would also prejudice the Tribunal member conducting the hearing. The Appellants’ submissions referred to a May 14, 2014 order by Vice Chair Flude that was issued in writing on May 21, 2014. The Tribunal has read that Order and it can find no clear decision that these expert reports are excluded. The Tribunal directs that this part of the motion may also be dealt with at the beginning of the hearing on September 3, 2014, but the presiding member should not review any such report until the time when this part of the motion, regarding admissibility is being argued, though the Tribunal notes that a member’s ruling on admissibility of a document does not preclude them from hearing the appeal in its entirety.
The Tribunal therefore makes the following order;
The adjournment request for the motion scheduled for July 22, 2014 is granted. The motion shall be heard at the commencement of the hearing scheduled for September 3, 2014 commencing at 9:30 a.m., or as otherwise directed by the presiding member.
Any documents and reports filed with the Tribunal pursuant to the disclosure obligations as set out in the Tribunal’s Order dated May 21, 2014 shall not be provided to the presiding member prior to the hearing.
LICENCE APPEAL TRIBUNAL
Patricia McQuaid, Vice-Chair
Released: July 14, 2014