9147 v. Tarion Warranty Corporation, 2015 CanLII 38755

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2015-06-11

FILE:

9147/ONHWPA

CASE NAME:

9147 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 Appellants

Appellants

• and -

Tarion Warranty Corporation

Respondent

• and -

Country Green Homes Inc.

Added Party

DECISION AND ORDER

ADJUDICATOR:

D. Gregory Flude, Vice-Chair

APPEARANCES:

For the Appellants:

Self-Represented

For the Respondent:

Ted Weredynski, Paralegal

For the Added Party:

John Barry Eakins, Counsel

Heard in Hamilton:

May 11 & 12, 2015

REASONS FOR DECISION AND ORDER

OVERVIEW

1The Appellants appeal from the decision of Tarion Warranty Corporation (“Tarion”) set out in a Decision Letter dated September 8, 2014, to deny their claim for warranty. The vendor of the home, Country Green Homes Inc., has been added as a party to these proceedings and supports the position taken by Tarion.

2Homeowners may make claims to Tarion for warranty coverage on two occasions during their first year of possession: within the first 31 days after taking possession and during the 31 days immediately preceding the anniversary of the date of possession. The current appeal relates to warranty claims made during the first 31 days.

3There are five items in dispute in the appeal, although one of those items relating to the general condition of the tiles in the home has been broken down into five subcategories, three of which attracted some measure of warranty coverage.

4For the reasons set out herein, the Tribunal finds that there is no warranty coverage for the items in dispute.

5The five items in dispute are (item number on 30 day form in parentheses):

1. In the basement, the ceiling is visibly uneven where the ceiling and wall join (Item 2).

2. In the main bedroom, there was a complaint that the ceiling to wall joint is uneven. This complaint has been resolved but the Appellants are dissatisfied with repair (Item 14).

3. Wall corners uneven above all bathtubs (Item 16).

4. A defective toilet seat where the plastic cover over the bolts holding the seat in place does not stay closed (Item 20).

5. All tiles in the house improperly installed (Item 24).

PROCEDURAL ISSUE

6Item 24 raises a number of concerns. The Appellants’ complaint addresses tiling throughout the house and a general dissatisfaction with the overall level of workmanship. The Decision Letter addresses five specific areas but does not make a determination about the workmanship regarding tile installation throughout the house. The Tribunal was faced with a concern that by limiting the Decision Letter to specific areas the effect was that the Appellants were losing their right to assert an unacceptable level of workmanship in the installation of the tiles. For greater clarity, the Tribunal was concerned that the Decision Letter should have contained wording to the effect that all other tiling issues are found not to be warranted and that the absence of such wording removed the Tribunal’s ability to adjudicate on the full scope of the Appellants’ concerns.

7The Tribunal sought submissions on the above concern. The Decision Letter is the originating document in hearings before the Tribunal. It defines the scope of the issues on appeal and the jurisdiction of the Tribunal to adjudicate on those issues. The Tribunal suggested that a denial of warranty with respect to the whole of the tile installation might be implied from the denial of warranty in two specific instances and in finding several other instances warranted. The Tribunal could then assume jurisdiction arising out of this implied denial of warranty. Tarion noted that the Appellants have raised the same concerns on their year-end claim. It would be preferable, in Tarion’s view, to address the overall tile quality issue in the resolution of the year-end claim and any decision letter that might result from that process. The Tribunal is of the view that Tarion’s suggested approach is preferable to implying jurisdiction. The Tribunal will address only the specific unwarranted issues in the current Decision Letter and leave the general quality of tile workmanship to be resolved at the year-end inspection.

8The Tribunal then heard evidence from the male Appellant and from the Tarion Warranty Claims Representative, Thomas Hollman, who made the initial determination that there was no warranty coverage. In addition, the Tribunal reviewed numerous photographs and other documentary exhibits.

EVIDENCE

9The evidence of the Appellants consisted solely of the oral evidence of the male Appellant and two binders of photographs marked as Exhibits 3 and 4. The Tribunal will review the evidence of each item in the order set out above using the numbers in parentheses to identify each item.

Item #2 – Basement ceiling joint visibly uneven

10The photograph on page 3 of Exhibit 4 shows the joint between the vertical wall and the ceiling. At the extreme left of the joint, it deviates somewhat from a straight line. The photograph was taken by the Appellant at night from approximately 1.5 metres. The Appellant asserts that this deviation is poor workmanship and wishes Tarion to carry out repairs. The repairs he seeks are the addition of further drywall compound, not to remove the deviation but to smooth it and make it less obvious to the eye.

11Mr. Hollmann testified that he did not notice the deviation on first entering the basement. It had to be pointed out to him by the Appellant. He measured the deviation using a straight edge and determined that it was minor in nature (Ex. 3, Tab 7 photos 2 & 3). He applied Tarion’s inspection standard, the Construction Performance Guidelines (CPG), which require a noticeable deviation to exceed 12 mm before it is considered to be a warrantable item. He considered this item to be minor in nature and denied the Appellants’ claim for warranty.

Item # 14 – Main bedroom ceiling joint uneven

12The Appellant had complained that the main bedroom ceiling was uneven in a manner not dissimilar from the concern in Item # 2. The Added Party had carried out repairs of this item and the Appellants had “signed off’ on the repairs. The Appellant stated that he was satisfied but that his wife had noted a ridge and a slight paint colour difference arising from the repair. Mr. Hollmann inspected the unrepaired condition of the joint and took measurements. He applied the same test from the CPG as he had applied to Item # 2 and determined that Item 14 was not warranted (Ex 3. Photos 17 – 19). The issue arises whether there is warranty coverage from the repair of an item that was originally unwarranted but has been gratuitously repaired by the Added Party.

13The photographs submitted by the Appellants in support of their contention that the repair is defective (Ex 4. P. 7) lack sufficient clarity to identify the concerns expressed by the Appellants. Furthermore, Tarion inspected the area before the repairs were carried out. It is therefore not in a position to make any ruling on the acceptability of the repair. This repair has been added to the year-end claim. It should be addressed at the year-end conciliation inspection, if any is necessary, and may become the subject of another hearing.

Item # 16 – Wall corners uneven above all bathtubs

14Notwithstanding that this item refers to “all bathtubs,” the Appellants led evidence relating to only two bathtubs (Ex. 4, p.22 and Ex 5 p. 39). Page 22 shows the tiling around an upstairs bathroom. There is a visible deviation from square around the top corner above the showerhead. Mr. Hollmann considered this deviation to be minor in nature and denied warranty coverage. With respect to deviations on vertical walls, he cited the CPG standard of 19 mm over a vertical of 2400 mm. He considered these deviations to fall well within the tolerances allowed by that standard.

15Page 39 is a photograph of the basement bathroom. It shows some bowing of the right wall of the shower stall and what appears to be some deviation along the joint between the back wall and the ceiling. This area has tape added by the Appellants to identify the problem. Mr. Hollmann again found theses deviations to be within acceptable tolerances.

Item # 20 – Defective toilet seat

16The Appellants complain that the toilet seats in all of the bathrooms have been installed with the bolts not centered in the holes. In their view, this is an example of poor workmanship and has resulted in the plastic cover over on a bolt in one toilet seat to fail so it will not snap closed. Mr. Hollmann does not disagree that the observed condition exists, but notes that lack of centering was not mentioned in the pre-delivery inspection, that toilet seats move in normal use and that the Appellants carry an obligation to carry out normal homeowner maintenance. Since he cannot pinpoint the cause of this failure he cannot establish that the failure is something that the Added Party is responsible for. The Appellants estimated that the replacement cost for this item is in the region of $20.00.

Item # 24 – All tiles in the house improperly installed

17The bulk of the photographs in Ex 4 are close-ups of tiles. In some cases, they show voids in the grout or hairline cracks. In others, they show grout lines that vary in width. There are photographs of adjacent tiles that do not line up exactly. It is the position of the Appellants, as discussed above, that all of the tiles were installed without the use of proper spacer to ensure uniform joint width. The Decision Letter currently under appeal found the tile work in two specific areas to be unwarranted and found three other areas to be partially warranted. The Tribunal will confine itself to the two unwarranted areas.

18One of the areas identified by Tarion as unwarranted was the powder room floor. The Appellants tendered a number of photographs which, on closer examination, were admitted to be from areas outside the powder room. There were also photos of areas that the Appellant could not identify. Of those photographs identified as being of the powder room, one indicated a slightly raised floor tile beside the toilet and undulations in the floor tiles along the baseboard. In response to a question from the Tribunal concerning the use of quarter round to finish the bottom of the baseboard, Mr. Hollmann replied that it is quite usual but not required to use quarter round.

19A feature of all of the Appellants’ photographs relating to this issue is the fact that they are taken with the camera placed on the floor. Mr. Hollmann stated that the standard he applies is to view any alleged defects from a normal viewing position. From a normal viewing position he determined that the tiles met the required standard of workmanship and denied the warranty claim.

20The second area of concern was the basement bathroom floor and wall tiles. The Appellants tendered several photographs including one extreme close-up of a hairline crack in the grout and another extreme close-up of some excess grout in one tile joint. Mr. Hollmann stated that he saw no imperfections from a normal viewing position and that, overall, this area met an acceptable standard.

21Throughout his testimony, Mr. Hollmann referred to the CPG. He identified the CPG as a document created by Tarion in consultation with experts and organizations in the building industry to try to encapsulate normal building standards. Tarion trained Mr. Hollmann in the contents of the CPG and it is that standard that he has applied throughout his 8 year career with Tarion doing many hundreds of inspections. Prior to joining Tarion, Mr. Hollmann qualified as an architectural technologist and worked for a number of years in the various aspects of the construction industry.

22The Appellant testified that his construction experience has been limited to helping out as a younger person on construction in Europe where construction methods differ significantly from North America. He has also renovated the basement of an older home he used to own.

THE LAW

23S. 13(1)(a) of the Ontario New Home Warranties Plan Act, R. S. O. 1990, c. O.31 (the “Act”) sets out the applicable statutory warranties:

13. (1) Every vendor of a home warrants to the owner,

(a) that the home is,

(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;

24In this appeal, there are no allegations about habitability or violations of the Ontario Building Code. With the exception of a possible finding that the toilet seat is defective, only the “workmanlike manner” provision of s. 13 (1)(a)(i) applies. There is no definition of the term “workmanlike manner” in the Act so it has been left to the Tribunal to interpret it. Numerous decisions of this Tribunal have held that the correct interpretation of the term is that the workmanship meets industry standards [see Mark Teitlman (1987) 16 CRAT 179, Saporita (re) [1999] O.C.R.A.T.D. No 166, released July 28, 199, Hoffer (Re) [2008] O.L.A.T.D. No. 3. The onus, then, is on the Appellants to establish on a balance of probabilities that the standard of workmanship falls below the industry standard.

25Industry standards are not self-evident. It is not sufficient for appellants to bring evidence of areas of construction with which they are dissatisfied and expect the Tribunal, in the absence of any other evidence, to conclude that workmanship does not meet industry standards simply because the appellant alleges it is so. There must be some objective evidence before the Tribunal defining the industry standard and identifying the manner in which the complaint falls below that standard.

26Notwithstanding the Appellants’ submission that Tarion applies no objective standards, it was Mr. Hollmann’s evidence that Tarion has developed the applicable standards set out in the CPG following consultation with a wide range of industry experts. The CPG is readily available to both vendors and homeowners as a guide to help them resolve warranty disputes without the need for Tarion’s intervention. Where that intervention becomes necessary, the CPG standards are applied to the problem to determine warrantability. This Tribunal has recognized the CPG as a starting point for considering whether construction is workmanlike. In 8149 v. Tarion Warranty Corporation 2014 CanLII 86273 (ON LAT), 2014 CanLII86273 (ON LAT) the Tribunal stated at paragraph 11 (due to mis-numbering it is marked as a second paragraph 10):

Building 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.

27In determining whether an item is warranted, according to Mr. Hollmann, it is first viewed from a normal viewing position, a position defined in the CPG as normal for the use of the room, i.e. sitting in a dining room or standing in a hallway (Ex. 3 Tab 11). In the absence of structural concerns, it is clear that the CPG applies an aesthetic approach to issues such as drywall finish and tiling. If it looks acceptable from a normal viewing position, then the CPG does not mandate a close inspection. It was in this area that the Appellants’ evidence differed markedly from Tarion’s with respect to the tiling complaints in item 24. The Appellants took close-up zoomed-in photos showing very small areas of the tiling surface with all of the blemishes magnified or floor level shots. Mr. Hollmann looked from approximately 1.5 metres and determined that any imperfections were minor in nature.

28With respect to items 2, 14 and 16, both Mr. Hollman and the Appellants took photographs from approximately 1.5 metres from the walls. With these particular issues the CPG sets a measurable standard and Mr. Hollmann measured and found that the wall deviations fell within that standard. The Appellants disagree but have advanced no evidence to show that the actual industry standard differs in some manner from the CPG standard.

29On its face, the issue with the toilet seat suggests a defect in materials. A flap that is supposed to clip and stay in place will not do so. In fact, the Appellants have characterized the condition as one of poor workmanship by alleging that the toilet seat was improperly centered in the first place and that poor workmanship caused the failure. Other than alleging poor installation, the Appellants have tendered no objective evidence to show the seat was improperly aligned at any time. Nor have they given evidence why, if it was misaligned they took no steps to carry out the simple procedure of loosening the bolts and realigning the seat themselves. In his testimony, the Appellant showed a great familiarity with the installation of toilet seats and adjustment requires no special skills. The Tribunal agrees with Tarion, in the absence of evidence to the contrary, that adjusting the toilet seat in the event of misalignment falls into the category of homeowner maintenance.

ORDER

30For the foregoing reasons, the Tribunal directs Tarion to deny the Appellants’ claim for warranty as set out in the Decision Letter dated September 8, 2014.