8293 v. Tarion Warranty Corporation, 2015 CanLII 38756

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2015-05-28

FILE:

8293/ONHWPA

CASE NAME:

8293 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 Claims

Appellants

Appellants

-and-

Tarion Warranty Corporation

Respondent

-and-

Baywood Golf Developments Inc.

Added Party

ORDER

ADJUDICATOR:

Laurie Sanford, Vice-Chair

APPEARANCES:

For the Appellants:

“SB”, representing himself and the second Appellant

For the Respondent:

Gena Argitis, Counsel

For the Added Party:

Tony Astolfi , Agent

Heard in Toronto:

August 20, 21, November 19, 20, December 3, 8, 2014, March 9, 18, April 8, 22, 2015

ORDER

The “Homeowners” appeal to this Tribunal from a decision of the Tarion Warranty Corporation (“Tarion”) dated August 1, 2013 denying the Homeowners’ claims and eligibility for coverage under the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31 (the “Act”). The Homeowners’ names will not be used in this Order to preserve their privacy. SB is the homeowner who appeared and gave evidence at the hearing.

The Homeowners made a number of claims for compensation with Tarion and these claims will be dealt with by subject matter in this decision. The reference to “Claim Numbers” refers to the claims dealt with in Tarion’s Decision Letter.

At issue in each claim is whether or not the Homeowners are entitled to compensation under the Act. In order to establish their claims, the Homeowners must prove that there has been a breach of warranty and that they have suffered damages as a result of the breach. If they are claiming damages, they must be able to quantify them and if they are proposing the defect be repaired, the Tribunal needs to understand, through the evidence, the scope of the repair. The specific warranties at issue in this hearing are contained in section 13 of the Act and provide that the home is to be built in a workmanlike manner, free from defects, fit for habitation and in compliance with the Ontario Building Code (“OBC”).

Foundation and Basement Claims – Claim Numbers 1, 2, 3, 4, 10, 12, 13, 21

Facts

The Homeowners have several concerns about their basement. The most serious is persistent wetness in the walls behind the insulation. At times, there has been visible pooling of water on the floor in isolated locations. More usually, the insulation is wet when pulled from the wall and the wall itself shows wet and damp spots.

Initially, Tarion took the position that the dampness had been caused by several leaks through cracks in the walls and through tie rod holes which had not been sealed. Baywood Golf Developments Inc. (“Baywood”), the builder of the home, identified and sealed several of these cracks and holes. Tarion then took the position that the remaining moisture in the basement was the result of excessive humidity, which Tarion stated was the Homeowners’ responsibility.

The Homeowners commissioned three inspections of their basement and foundation. Two of these inspections resulted in reports. The first of these reports was prepared by Mike Holmes Inspections (the “Holmes Report”). The report makes the general disclaimer that it is general in nature and does not purport to be written with specific expertise. The Holmes Report addresses a number of concerns the Homeowner identified, including dampness in the basement.

The Holmes Report was prepared in August, 2013 and identified dampness and elevated moisture levels at various locations towards the base of the south, east and north walls. The Holmes Report concluded that the water is entering from around the footings and that the weeping tile appeared to have been compromised or obstructed, probably during construction. The Holmes Report also noted damaged or loose foundation wrap, in this case “dimpleboard”. The Holmes Report recommended further investigation of the dampness issue. Tarion received this report but elected to take no action on the grounds that the report recommended further investigation. Tarion took the position that despite the initial findings that the weeping tile was compromised, the Homeowner was responsible for conducting the further investigation.

The Homeowners then retained a firm to do a “scope” of the weeping tile by running a camera into the weeping tile O-ring. The scope was unable to penetrate very far into the O-ring because spikes and nails protruded, blocking the camera. Mr. Bruce Martin, a Tarion Warranty Service Representative testified that he viewed the video of this scoping exercise. However, he elected to take no action as a result because he saw water in the O-ring and saw no debris or obstacles beyond the spikes and nails. He appears to have concluded that the weeping tile system was functioning acceptably on the basis of this evidence.

In December, 2013, a second report was produced for the Homeowners by Ainley & Associates Limited, consulting engineers and planners (the “Ainley Report”). The Ainley Report was written by Mark Milne, a Senior Structural Engineer. Prior to Mr. Milne’s inspection of the foundation walls, the Homeowners had a portion of the south wall excavated to the foundation fittings. Mr. Milne inspected the property in November, 2013 and noted that the ground was saturated at grade during the inspection. The poured concrete foundation walls were also saturated. Mr. Milne detected several issues with the damp proofing, weeping tile and grading around the home. The sump pump did not come on very frequently, which suggested to Mr. Milne that there was an issue with the weeping tile system. Mr. Milne also viewed the spikes and nails which had been driven through the O-ring during installation. Mr. Milne was of the opinion that these spikes compromised the structural integrity of the drainage system, allowing soil to enter the system and providing obstacles to proper drainage. Mr. Milne noted that the damp proofing dimpleboard had not been properly installed, was not fastened at the top and did not extend to the top of grade. The granular cover, or gravel, over the weeping tile system was not compliant with the OBC, inhibiting the operation of the system, in Mr. Milne’s opinion. Mr. Milne speculated that the moisture might be entering the basement in one of two ways. Either it was coming in under the dimpleboard and up the foundation walls and through porous material or unsealed tie rod holes or it was coming in over the top of the inadequately fastened dimpleboard and down the foundation wall.

To address these problems, Mr. Milne recommended replacing the weeping tile system around the house by excavating the soil, removing the damp proofing dimpleboard, sealing the tie rod holes to the standard of the OBC and applying a tar based damp proofing behind the dimpleboard if this had not previously been done. Mr. Milne recommended that new dimpleboard be installed to the level of grade and properly fastened at the top.

Mr. Milne identified the grading of the property as a contributing factor to the water issues. The grading, in his opinion, was not allowing the water to drain away from the building. The slope did not appear to be the required 2%. He noted higher elevation properties adjoining this one, adding to the drainage requirements. He recommended revising the grading of the property. If increasing the slope of the ground was not an option, then Mr. Milne recommended installing French drains on the north and south side of the property. Mr. Milne noted that special permission would be required from the local municipality to connect these drains to the storm sewer.

Mr. Milne did not testify at the hearing. Mr. Martin, testifying for Tarion, said that Mr. Milne did not perform a water test, which Mr. Martin appears to have viewed as a shortcoming in the Ainley Report. Mr. Martin did conclude that the concerns about site grading, damp proofing, the dimpleboard and drainage would be warranted and a “Warranty Assessment Report” to this effect was issued by Tarion on February 5, 2014. The Warranty Assessment Report is vaguely worded and does not address the issue of whether the weeping tile system was compromised and needed replacement. Rather, it was left to Baywood to review the Ainley Report, determine which portions of it were being referred to in the Warranty Assessment Report and conduct the necessary repairs. Mr. Martin testified that he spoke with Mr. Milne, the author of the Ainley Report, who suggested an alternate method of repair. SB rejected this alternative as involving toxic material and Mr. Martin agreed. Despite his agreement, it was Mr. Martin’s evidence that Tarion concluded that a dispute had arisen about the scope of repair that would be required.

Mr. Martin testified that in order to determine the scope of repair involved, Tarion commissioned a report from Norman Lee & Associates Ltd. (the “Lee Report”). The Lee Report is much narrower in scope than the Ainley Report. It does not address the question of the damp proofing dimpleboard, the rod tie holes or the grading issues identified in the Ainley Report. Mr. Lee, the author of the report, inspected the property in May, 2014. The Lee Report states that the “purpose of the inspection was to water test the weeping system and to observe the moisture content in the affected foundation wall.”

Mr. Lee conducted water tests on the south and east walls and found problems on each of those walls. On the basis of these tests, the Lee Report concluded that there were problems with the weeping tile system and recommended that the weeping tiles along the perimeter of the foundation walls be replaced. Mr. Lee testified that the fact that spikes went through the O-ring was not a breach of warranty. His testimony was that on viewing the scope pictures of the O-ring, he saw no sign that the “sock” which sits over the O-ring and protects it from dirt penetration had protruded into the O-ring. Mr. Lee conceded that he had never before seen an O-ring secured in this way. The Lee Report made an important note that the new weeping tile O-ring should be free of obstructions such as spikes and nails. The Lee Report also recommended that while the foundation walls are exposed, existing damp proofing and drainage boards should be inspected and repaired as required. Mr. Lee, in his testimony, clarified that his proposal is to replace the weeping tile system on three sides of the house: the north, south and east. He testified that he did not test the north wall but is proposing to replace the weeping tile on that side based on the results of the two walls which were tested. He is not, however, proposing to replace the weeping tile on the west side. Instead, he is proposing to test the west side weeping tile system when the adjoining sides are excavated. His evidence was that there is no evidence of leakage into the west side. Further, because the west side weeping tile is internal and flows under the porch and garage, replacing it will be much more expensive than the proposed replacement on the other three sides of the house. Mr. Lee also proposed replacing the weeping tile first and seeing if the moisture problems in the basement persist.

The Homeowner SB testified to at least two incidences of water penetration into the west wall, neither of which Mr. Lee was made aware of. In October, 2014 and at the request of the Homeowner, Mr. Martin conducted a water test of the front porch, which is on the west side of the house. The porch slab has a crack in it. SB testified that two Tarion representatives separately home told him that the porch crack was “normal shrinkage”, superficial and would not cause a leak. The water test resulted in what SB describes as a “waterfall” down the southwest wall of the basement. SB believes that there are cracks on the foundation wall under the porch. Mr. Martin in his testimony reiterated Tarion’s position that the crack is “normal shrinkage” and not related to “the foundation issue”. However, Mr. Martin also confirmed that water was flowing through the crack and down the interior basement wall. In Mr. Martin’s testimony, this is because the design of this house has the porch floor abutting the wood framing for the basement. The wood framing sits on the foundation. The water flows through the framing into the basement. Mr. Martin did not testify as to whether he has reached this conclusion as a result of information he received from Baywood or whether this is his opinion. Tarion now takes the position that the Homeowners are out of time to claim this as a breach of warranty. Baywood has offered to repair the crack by injecting it with a waterproof sealant.

The second leak was observed by SB in November, 2014 after a sudden thaw of snow against the northwest corner of the house. SB observed and photographed moisture on the floor in the corner. When he removed the insulation on the west side of the corner, he observed and photographed moisture on the wall and on a spot around a tie rod hole. Baywood’s witness, Mr. Astolfi, identified the spot around the tie rod hole as the sealant used to seal the hole, not moisture. That leaves the moisture on the wall unexplained.

SB testified that he was concerned about the possibility of mould behind the basement insulation because of the persistent moisture there. In his testimony, Mr. Martin stated that Tarion would remove the insulation on all the walls of the basement where the insulation had been installed. If there was mould, then Tarion would assess it and determine the scope of the work. Mr. Martin explained that there are four levels of mould. If the mould is categorised as “Level 1”, then Tarion would request the Homeowners or Baywood to clean it. If “Level 2” mould is found, then Tarion would arrange for its removal by a qualified person. If mould at “Levels 3 or 4” were discovered, then Tarion would cause an expert to isolate and remediate the mould. In closing submissions, Ms. Argitis offered a modification to Mr. Martin’s testimony. Tarion would, in Ms. Argitis’ submission, only agree to remediate the mould if Tarion were ordered to carry out any work involving the foundation or weeping tile system. If the Tribunal ordered Tarion to pay the Homeowners and for them to arrange for their subcontractors to do the weeping tile, foundation wrapping and other work related to the foundation then Tarion would neither do nor pay for mould remediation.

Mr. Martin testified that Tarion would replace the insulation in the basement. A dispute arose between the parties about the grade of insulation which should be used to replace the insulation originally installed. Mr. Martin testified that the OBC requires insulation to be replaced with a grade that is at least equivalent to that which is being removed. The insulation originally required was R12 and that is what Tarion is proposing to use to replace the insulation removed from the basement. SB wants insulation at the current grade, R 16, used.

SB wants the recommendations of the Ainley Report implemented. Mr. Martin takes two apparently conflicting positions. First, he testified that he supports the initial conclusions of Tarion. That is, after the initial cracks and tie rod holes were repaired, the remaining problems are being caused by the Homeowners’ failure to maintain the proper humidity in the basement of the home. By this logic, the basement moisture is not warranted. At the same time, Mr. Martin testified that Tarion will repair or cause the foundation and basement to be repaired as follows. Tarion will cause the exterior foundation walls across the entire north, east and south sides of the house to be excavated to the footings of the foundation and the dimpleboard will be removed. The foundation walls will be “tarred” with a dampproof sealant. At one point in Mr. Martin’s testimony, he said Tarion would seal any tie rod holes with a separate aqua cement. However, he later testified that the tar sealant would also repair any cracks discovered on the exterior of the house, including any tie rod holes which had not been adequately sealed. New dimpleboard will be installed from the footings to above the current grade. A new weeping tile O-ring will be installed, without the use of spikes or nails, and supplemental gravel will be put around it to the depth required by the OBC. The excavation will be backfilled. Then Tarion would cause Baywood to re-grade the area around the foundation, raising the grade at the foundation to ensure drainage away from the house. While the excavation is open, Mr. Lee will inspect the weeping tile on the west side of the house. If it is not functioning to Mr. Lee’s satisfaction, then Tarion will replace it. This will involve supporting the porch while the porch floor is removed, removing the garage slab, excavating to the footings, replacing the weeping tile using the same procedure proposed for the other three walls, re-tarring and installing new dimpleboard, backfilling the excavation and replacing the slab in the garage. For the porch, Mr. Martin proposes introducing a grid of re-bar to reinforce the porch and to help prevent future shrinkage cracks. Tarion is proposing to use Baywood and its foundation subcontractors to repair the source of any leaks on the west wall. SB wishes to use his own contractors.

Mr. Astolfi testified for Baywood. His testimony is that the Tarion proposal goes well beyond what Baywood would do. He testified that Baywood would isolate the source of the blockages in the weeping tile system and excavate only in those areas. Mr. Astolfi did not explain how Baywood proposed to isolate the blockages when, because of the spikes through the O-ring, scoping the O-ring for blockages is not possible. Mr. Astolfi submitted in closing arguments that Baywood should have the right to employ their subcontractors to do the work. Otherwise, in Mr. Astolfi’s submission, the subcontractors would avoid their warranty responsibilities to Baywood.

Decision

Based on the evidence above and for the reasons set out below, the Tribunal concludes that Tarion will be directed to dig up and replace the entire weeping tile system, including the weeping tile surrounding all four perimeter walls. In the process, Tarion will address the damp proofing, grading, porch and insulation and potential mould issues as will be detailed below.

There appears to be no scientific method involved in Mr. Lee’s proposals to fix only the weeping tile system on three sides of the house and not on the fourth or in his proposal to fix only the weeping tile system and then see if the leaks in the basement persist. Indeed, Tarion rejects the later recommendation and proposes fixing the foundation wrapping and grading as part of the initial excavation of the foundation. Mr. Lee concluded the weeping tile on the north side of the house would need replacement without conducting a water test on that side of the wall. So there appears to be no reason why he would need to conduct a water test on the west wall. It is Mr. Lee’s testimony that the weeping tile forms a single system. There is no evidence that the weeping tile was installed in any way differently on the west wall than on the other three walls. Mr. Lee testified that the west wall was sheltered from the elements by the porch and garage. We have seen that the porch floor, far from sheltering the basement, is a source of water into it. Further, the Tribunal is not persuaded that the weeping tile on the west wall, being part of an overall drainage system, should be treated differently than the rest of the system. Mr. Lee’s rationale for delaying the replacement of the weeping tile on the west wall is to potentially reduce costs. This is a legitimate objective. However, there are other policy objectives which need to be considered. This hearing has been proceeding since last August. The parties are entitled to an end to the proceeding and to some certainty about the outcome.

Both Mr. Martin and Mr. Lee testified about their perceptions of weaknesses or gaps in the Ainley Report. However, Tarion has essentially adopted the recommendations of the Ainley Report concerning the weeping tile and damp proofing on the north, east and south foundation walls. The Tribunal accepts Mr. Milne’s conclusion that the entire weeping tile system was compromised by the installation method that included driving spikes through the O-ring. It is telling that Mr. Lee, while asserting that spiking the O-ring was not a breach of warranty, nevertheless specified in his recommendations that a replacement O-ring should not be secured by driving spikes through it. Further, while Mr. Lee saw nothing that would affect the structural integrity of the O-ring, it seemed clear to the Tribunal that bits of fabric had been driven into the interior of the O-ring by some of the spikes. This fabric is presumed to be the “sock” which covers the O-ring and protects it from dirt penetration. Alternatively, if Mr. Lee is correct and the sock has not penetrated the O-ring, this can only be because the sock was punctured by the spikes which would obviously compromise the sock’s function. Either way, the observations of the O-ring are consistent with Mr. Milne’s conclusion that “the observed spikes that have been driven through the entire length of this drainage system compromise its structural integrity, allow soil to enter the system and provide obstacles that prohibit the system to drain.”

The Tribunal is not persuaded that the Ainley Report is faulty because no water testing was done. Mr. Milne had the advantage of an excavation trench from which he observed saturation of the foundation wall. Moreover, he observed that despite the wetness of the soil, the sump pump was operating infrequently. The effect of Mr. Lee’s water tests was to permit Mr. Lee to reach the same conclusion that the sump pump was operating infrequently. It was on this basis that Mr. Lee concluded, as had Mr. Milne before him, that the weeping tile system was defective.

Mr. Milne recommended sealing the rod tie holes in accordance with the OBC before applying a tar based damp proofing. This appears to differ from Tarion’s recommendation that a tar coating be applied to both provide a under layer of damp proofing and seal any cracks and open tie rod holes. As noted above, Mr. Martin also testified that Tarion would seal tie rod holes separately with an aqua cement. Tarion did not provide any evidence that Mr. Milne’s approach is faulty or not compliant with the OBC. The Tribunal prefers the recommendations of Mr. Milne to the somewhat contradictory evidence of Tarion in this regard and will direct Tarion to seal both tie rod holes and any cracks found in the foundation with an appropriate sealant prior to applying the tar coating and dimpleboard.

Concerning the porch slab, there is no evidence that the Homeowners relied to their detriment on the advice of Tarion that the porch leak was superficial and would not cause a leak into the basement. However, it would have been comparatively simple for Tarion to ask Baywood if the porch abutted directly on the wood framing of the basement or if the foundation was protected by damp proofing from cracks in the porch floor. It sits badly on Tarion now to be denying this claim, which is otherwise legitimate, on the grounds that the Homeowners are out of time in making it. It is not necessary for the Tribunal to decide if the porch crack is warranted despite the delay because, given that the weeping tile system under the porch will need to be replaced, the porch itself must be removed and rebuilt. The question is how best to do this.

Tarion is proposing to insert reinforcing bar, or rebar, into the porch floor to help prevent further cracks. The Tribunal accepts this proposal. However, it fails to address a significant issue. When a crack did form in the porch, the water flowing into that crack penetrated the basement. If one accepts Mr. Martin’s explanation that the water is flowing through the wood framing for the basement that sits on top of the foundation, then it follows that this wood framing has either not been damp proofed or has been inadequately damp proofed. It was also not clear from Mr. Martin’s testimony whether the wood framing is sitting above or below grade. There are specific provisions in the OBC governing damp proofing requirements for wood that is acting as part of the building envelope for the purposes of water penetration and for wood that sits below grade. Neither Tarion nor the Homeowners introduced those provisions in this hearing and it is appropriate that a foundation expert review the situation when the porch is removed and make recommendations as to the appropriate method to protect the basement from leakage. By the same token, when the garage floor has been removed, the damp proofing of whatever material abuts the garage slab should be assessed for compliance with the OBC and remediated as required.

Concerning the possible mould, the Tribunal accepts Mr. Martin’s proposal for remediation if mould is found when the insulation is removed. Mr. Martin did advise that if mould remediation were required, the basement would be sealed off from the rest of the house for safety reasons. The Tribunal also accepts Tarion’s proposal to remove the insulation and replace it with insulation that is rated R12. SB requested that he be compensated for the costs of removing his possessions from the cellar to permit the work to be done. Tarion agrees that the Homeowners will be required to clear the basement to permit the work to be done. However, the Act does not provide for compensation for this expense. The same is true for any possessions of the Homeowners which they will be required to remove from the porch or garage.

Both Tarion and Baywood wish to use Baywood’s sub-contractors. SB wishes to use his own. The Tribunal found Mr. Astolfi’s closing submission that avoiding the use of Baywood’s subcontractor’s would permit them to evade their warranty obligations persuasive. However, given the inadequate job these subcontractors did in the initial installation of the weeping tile system and the damp proofing, those subcontractors are going to require day-to-day specialised supervision to protect the interest of the Homeowners and to minimise the possibility of further foundation issues. Mr. Martin has extensive general contracting experience and might be suitable to provide day-to-day supervision were it not for the fact that the Homeowners do not want him to return to the premises, for reasons that will be discussed in the “HVAC” section below. Tarion has agreed to provide someone from their organization with equivalent experience. This would meet the need for day-to-day supervision.

There is also a requirement for an expert assessment of what remedial action, if any, is required to damp proof the wooden framing or foundation that abuts the porch and to determine if any damp proofing is required for either the foundation or the wood framing that abuts the garage slab. The Tribunal concludes that these assessments and recommendations are best done by an independent expert. In a conciliatory environment, it might have been possible for Tarion to either inspect the framing and foundation wall and make recommendations or to retain a Tarion expert to do the work. However, this proceeding became mutually acrimonious and the Tribunal concludes that an independent expert should inspect the wooden framing and the foundation wall behind the porch and garage slabs and make recommendations about the damp proofing that might be necessary for the wooden framing, the foundation wall, or both. This approach should serve to minimise further disputes.

Either Mr. Lee or Mr. Milne is an obvious candidate to inspect the foundation wall and wooden framing abutting the porch and garage and to make recommendations about damp proofing either or both. The Tribunal prefers that Mr. Milne do the work. Through no fault of Mr. Lee’s, the Ainley Report was more comprehensive than the Lee Report. Additionally, the Tribunal prefers Mr. Milne’s recommendations that all the work be done at once. The Tribunal notes that Tarion has in effect accepted most of the recommendations of Mr. Milne. Tarion objects to Mr. Milne being retained as he is not on the “approved contractor” list of Tarion. The Tribunal will direct that the Homeowners will hire Mr. Milne and that Tarion will pay the costs. Mr. Milne will invoice at his usual rates. If Mr. Milne is not available, then the Ainley Group will provide someone of equivalent expertise. Any reference to Mr. Milne in the Order will include his alternate if one is needed.

Mr. Milne will make a short written report of his inspection findings and recommendations. If any of the parties disagree with Mr. Milne’s recommendations or otherwise objects to the inspection results, then the objecting party may bring a motion to the Tribunal to challenge the expert’s advice which shall be done within 15 days of Mr. Milne’s written report. If the parties accept Mr. Milne’s recommendations, then Tarion will advise the Tribunal of this in writing, which will conclude the matter.

Staircase Claim – Claim Number 5

The staircase between the main and second floor in the house was custom finished after installation. The Homeowners complain that grit and hair from the brushes has been trapped under the finish and that there are defects in the surface of the finish such as “waterfalls” and other uneven surfaces. The Homeowners also took the position at the hearing that the finish used was toxic. However, when given an opportunity to substantiate the claim of toxicity during a break in the proceeding, the Homeowners were unable to and abandoned this aspect of their claim.

SB alleged that Mr. Martin, on inspecting the staircase, told him that the Homeowners would be better off to leave the grit and brush bristles in the finish as these imperfections would prevent the children from slipping on the stairs. SB found this particularly upsetting. Mr. Martin does not recall making these remarks and they do not reflect Tarion’s position.

Mr. Martin testified that there were minute imperfections in the finish but that these were not visible at a normal viewing distance. Mr. Martin produced photographs that he testified were taken from a normal viewing distance and it was impossible to see the imperfections. SB testified that because the staircase is open on one side, “normal viewing distance” should include the angle of viewing as one walks by the steps or the stair. However, even from this angle, the imperfections are very difficult to see. It is not until very close- up photos are taken that the finish imperfections are visible. It has been consistently held by the Tribunal that the standard of workmanship expected under the Act is not perfection. In this case, the imperfections are very minor and not visible under normal viewing conditions. The Tribunal finds that the Homeowners have not established their claim.

Mr. Martin testified that a nail at the top of the staircase had worked loose. In Mr. Martin’s opinion, this would constitute a warrantable item but Mr. Martin was unsure if it had been reported in time. If a finish carpenter were in the home on other business, the Tribunal might direct him or her to tap the nail back into place. However, as will be seen, there is no need for a finish carpenter to be in the home and the defect is too minor to justify a special trip.

Metallic Sounds from the Floor in Family Room Claim – Claim Number 6

The Homeowners complain of “oil caning”, a metallic sound when they walk across their family room floor. However, they were unable to replicate the sound on any of the multiple occasions when either Tarion or Baywood representatives were in the house. The Homeowners were unable to produce any witness to these sounds other than SB and they were unable to produce persuasive objective evidence of a probable cause of the oil caning. The Tribunal finds that the Homeowners have not established this claim.

HVAC System and Draft Claims – Claim Numbers 7, 8, 23

The Homeowners are concerned that Bedroom Number 3 (the “Purple Bedroom”) is very cold in the winter and very hot in the summer. Additionally, the Homeowners claim there is a draft from the plugs on the exterior walls of the Purple Bedroom and a draft through all the top floor plugs.

The Homeowners had three opportunities to prove their claims about the HVAC system during the hearing – in the course of SB’s testimony, after Mr. Martin testified as to what Tarion would need to further investigate the claims and during a Tribunal-directed heating test conducted at the home during the hearing.

Beginning with SB’s testimony, he testified that following initial complaints, Baywood had rebalanced the heating system twice. During the second rebalancing, the Baywood heating contractor closed the basement vents. This, in the testimony of SB, helped but did not solve the problem in the Purple Bedroom and left the basement substantially colder. SB produced a number of temperature readings in various rooms in the house. These readings were taken with a laser pointed at the exterior wall. Mr. Martin testified that the exterior walls may be expected to be colder than the interior of the room. He noted that Tarion’s Construction Performance Guidelines, published on Tarion’s web site, recommend that temperatures be taken at 1.5 meters above the floor in the centre of the room. The Tribunal accepts this evidence. Thus, during his testimony, SB did not establish that there was a heating problem in either the Purple Bedroom or the basement.

Mr. Martin testified that a Tarion representative had done a heating test in the Purple Bedroom following the second rebalancing and found that the bedroom met the OBC requirement that it be capable of being heating to 22° Celsius. Tarion did not do a heating test on the basement. Tarion initially took the position that the Homeowners were out of time to make a claim about the basement. However, Tarion eventually conceded that if the basement were left too cold as a result of closing the vents during the second rebalancing then that would require a further inspection on the part of Tarion. Mr. Martin specified what Tarion would require to re-open the issue of heating in the Purple Bedroom and the basement and the Tribunal offered SB a period of time during a scheduled break in the hearing to produce the reports Tarion requested. These were new heat loss calculations for the home, mechanical drawings or a floor plan for each floor vent, any suggested defects in duct work design, temperature readings at the furnace and at the floor vents and air flow at each vent. SB did not produce any of the requested reports and chose to rely instead on an earlier heat loss report and the original design drawings submitted to the local municipality. Mr. Martin testified that these reports were inadequate as the location of the vents had changed during installation and the flow of heat from the furnace would be expected to change during as a result of the rebalancing. Mr. Martin further testified that the furnace installed is a larger one than specified in the design drawings filed with the municipality and has a two speed operation which represents an upgrade from the one specified in the drawings approved by the local municipality. The Tribunal concludes that SB did not demonstrate his claim on this second opportunity.

Mr. Martin was unable to demonstrate that Tarion had ever tested the heat in the basement. Mr. Martin’s testimony that the basement was 20° Celsius on a warm day in October, 2014 was not conclusive. The heat loss calculations relied on by Tarion did not include heat loss calculations for the basement. Accordingly, the Tribunal directed Tarion to re-attend at the home in March, 2015 and do a heating test on each of the floors in the home, first with the basement vents closed and second, if necessary, with the basement vents opened as required. Mr. Astolfi of Baywood was in attendance. However, this test collapsed when SB ordered Mr. Martin and Ms. Argitis to leave his home before the test could be completed. SB’s testimony was that Mr. Martin and Ms. Argitis were verbally and physically aggressive towards him to the point that he felt threatened and so halted the test. Mr. Martin’s testimony was that SB attempted to “sabotage” the test. The Tribunal does not accept either account as objective. Both accounts seem exaggerated and the Tribunal takes them as evidence of mutual acrimony. On the balance of probabilities, the Tribunal finds the following as fact about the March, 2015 attempted heating test. On the day before the test, the Tribunal directed SB not to alter the thermostat setting in his home. The Tribunal also advised SB, who was reluctant to permit Tarion and Baywood to open the vents in his basement, that if the basement temperature were below 22° Celsius, then Tarion would have to be permitted to adjust the basement vents to be able to complete the test. If Tarion was not permitted to adjust the basement vents, if required, then the Tribunal would have no option but to conclude that SB had not proved that the basement was inadequately heated.

When Tarion and Baywood arrived at the home, they discovered that the Homeowners had lowered the thermostat setting despite the express direction of the Tribunal. SB testified that his wife had altered the temperature and that he had not heard the Tribunal’s direction. During the test, SB attempted to alter the conditions of the home by attempting to lower the blinds in two rooms and to close the basement door. During the hearing, the Tarion representatives had displayed increasing impatience with SB, bordering on disdain. Therefore, it seems more probable than not that their impatience with SB as he attempted to alter the test conditions became disdainful. However, Mr. Astolfi testified that the physical aggression experienced by SB did not in fact occur and the Tribunal accepts his evidence. While it might have been unpleasant for SB to feel he had been treated with disdain by the Tarion representatives, that was not sufficient grounds for him to halt the heating test. Given that the test was being conducted for his benefit, he might have pursued other options, including leaving the room where the test was being conducted or permitting the test to proceed and then conducting his own test with the conditions he favoured. SB did neither of these things. Instead he ended the test before it could be established what temperatures existed in either the Purple Bedroom or the basement. The Tribunal concludes that the Homeowners have not established their claim regarding the coldness of either the Purple Bedroom or the basement.

Concerning the claim that the Purple Bedroom was very hot in summer, the Homeowners did not request Tarion to make an inspection of this complaint during the summer months. The Homeowners made no measurements of the temperature of the Purple Bedroom in the summer. Therefore, the Tribunal has no evidence on which determine if this complaint is a breach of warranty.

Concerning the draft in the plugs, Baywood originally attempted to deal with this by injecting foam into the plugs on the main floor. However, this was a violation of electrical safety codes and Baywood has removed most of the foam and replaced it with a foam gasket. SB did smoke tests in the Purple Bedroom which appeared to show a draft from a plug. However, both Mr. Martin and Mr. Astolfi testified that when they entered the Purple Bedroom and turned on the light, the ceiling fan came on as well. When they turned the ceiling fan off manually and did a smoke test, there was no sign of a draft from the plug. SB testified that the ceiling fan was off when he did his test. Given that the ceiling fan was set to turn on when the light switch was turned on, the Tribunal accepts the evidence of Mr. Martin and Mr. Astolfi as being more probable and finds that this claim is not proven.

Floor Drain Claims – Claims Number 9 and 11

The Homeowners complain that the furnace drains have been loosely attached to the floor drain and that the floor drain cover is rusting. There is also evidence that water has pooled around the drain at some point. The Homeowners would like a plastic floor drain and they would like the furnace drain either not to drain into the floor drain or do so in a more secure fashion. There are photographs showing the furnace drain pipes tied onto the floor drain and the rust on the drain is visible.

Mr. Martin testified that some water must go into that floor drain on a regular basis to prevent a gas from building up in the drain. The method of attaching the drain pipes to the floor drain is not unusual and the rust on the floor drain is surface rust which does not affect the structure or life of the drain, in Mr. Martin’s opinion.

It seems obvious that best practice would dictate that a plastic drain pipe cover be used in a place where water is going to be flowing into the drain regularly. It would also seem prudent to insert the drain hose directly into the floor drain if there is a risk of flooding in the area. However, the standard in the Act is not “best practice”. There is no evidence that the standing water stains around the drain are recent or recurring. There is no evidence that the rust on the floor drain cover is shortening the life of the cover. The Tribunal is sympathetic to the concerns of the Homeowners but can find no evidence of a breach of the statutory warranty.

Exterior Cracks in Brick and Mortar; Poor Installation of Brick – Claims Number 14, 17, 18, 19, 20

The Homeowners complain of numerous cracks in their brick work and the mortar between the bricks. They also assert that a “soldier course” of brick about the garage door is uneven.

Tarion and Baywood concede that there are numerous hairline cracks in the brick but Mr. Astolfi testified that this is typical of the particular type of brick which the Homeowners chose. Both Mr. Martin and Mr. Astolfi testified that these cracks do not penetrate the brick and will not affect the function or life of the brick.

Concerning the mortar, Mr. Martin and Mr. Astolfi testified that there were cracks in the mortar which they characterised as normal shrinkage cracks. Mr. Martin and Mr. Astolfi testified that the Construction Performance Guidelines that have been developed by Tarion to conciliate claims set out that to be defective, shrinkage cracks in the mortar must be greater than 2 millimetres in width to be warrantable and none of the cracks in the Homeowner’s exterior mortar exceed that threshold.

Tarion acknowledges that the soldier course above the garage goes from about 6 millimeters in advance of the surrounding brickwork on one side of the garage to about 12 to 15 millimeters on the other side. However, Tarion’s position is that this does not affect the water shedding ability of the soldier course.

Moreover, Mr. Martin and Mr. Astolfi testified that the cracks in the brick and mortar and the slight difference in the soldier course are not visible from the normal viewing distance of 6 meters. The Tribunal has carefully examined the photographs produced by both the Homeowners and Tarion and concludes that the imperfections in the brickwork and mortar are not visible from the normal viewing distance. The Tribunal accepts the evidence of Tarion and Baywood that the normal cracks in the bricks and mortar will not affect the function or life of the exterior of the house. Accordingly, these claims are denied.

Eavestroughs Bent on South Side of Porch Claim – Claim 15

The Homeowners originally complained of a dent in the eavestrough on the south side of the porch. Tarion denied the claim because it was not on the 30 day form and Tarion was unable to determine who caused the dent. However, Baywood attempted to fix the dent, on one occasion by “popping” the metal back into place with a clamp. Mr. Martin testified that the appropriate method of repair would be to replace that section of the eavestrough. During the hearing, SB produced photographs taken in the spring of this year showing that the dent had recurred.

Tarion objected that it was not clear that the dent was in the same place as the earlier defect and it was not clear what had caused the defect. Tarion also objected that they had not been given an opportunity to inspect the dent.

The Tribunal viewed the photographs and is satisfied that the dent is in approximately the same place as the previous attempted repair. The Tribunal accepts SB’s testimony that Baywood attempted a repair using a method which Tarion agrees is not appropriate. While it is helpful, it is not essential that Tarion investigate every claim. In this case, the Tribunal finds that there is sufficient evidence of a defective attempt at a repair. It is a policy of Tarion that repairs are usually warranted for a year and there is evidence that the repair was done within that period. SB wants the work done by his contractor but the Tribunal again accepts Mr. Astolfi’s submission that denying Baywood the chance to use its own contractors would be to permit them to evade their warranty obligations. However, here as in the foundation work, these contractors will require supervision by Tarion to ensure that the work is being properly done, given the inappropriate repair attempted earlier. The Tribunal directs Tarion to cause Baywood to use a qualified eavestrough repair person to replace the dented section of the eavestrough. Tarion will oversee the repair, which may be done at the same time as the foundation work to avoid multiple visits by Tarion.

Gap in Siding above Porch Claim – Claim number 16

The Homeowners are concerned about a gap between the siding and the frieze board under the soffit along the garage roof on the same side of the house as the front porch. The Tribunal has reviewed the photographs and accepts Mr. Martin’s evidence that the gap is caused by the fact that the siding and the frieze board are at two different angles and by the fact that the siding is contoured in this section and the frieze board is straight. Mr. Martin testified that the soffit protects the gap from water penetration.

SB produced a quote from a contractor for closing the gap but the Tribunal, after viewing the photographs, accepts as more probable the explanation of Mr. Martin that the gap is a result of two different shaped materials meeting. There is no evidence of water penetration in the area of the gap, which is slight. There is no evidence of a defect in workmanship and accordingly the Tribunal denies this claim.

Support Beam Bent and Rusted Claim – Claim Number 22

The Homeowners are concerned that a support beam in their basement in dented and scraped, with some rust showing in the area of the scrape. Mr. Martin and Mr. Astolfi testified that the dent is minor and does not affect the structural integrity of the support beam. It was also their evidence that while the dent and scrape is unsightly, the beam sits in an uninhabited part of the basement. If the basement were to be finished, this support beam would be enclosed in a more formal beam casing, such as a wooden column. SB attempted to show that the dent was in violation of the OBC but the Tribunal was not persuaded that this is the case.

The Tribunal is sympathetic to the Homeowners’ concern. Obviously, it is preferable that a support beam not be dented. A visible scrape is also not desirable. The dent is only visible from certain angles and it appears to be surface in nature. The Homeowner introduced no evidence measuring the extent of the diameter of the beam that is dented. Visually, it appeared that the dent affected less than 5% of the diameter. There was no persuasive evidence that the structural integrity or load bearing capability has been affected by the dent. Therefore, the Tribunal concludes that the Homeowners have not established their claim.

Siding Noise Claim – Claim Number 24

The Homeowners are concerned that the siding outside the Master Bedroom is making noise. They hired a contractor who recommended that the siding be removed and re-hung to be tighter to the house. The contractor was able to make the siding move by pressing on it. The contractor did not testify or produce a report beyond the quotation.

Mr. Martin testified that when he attended in October, 2014, it was a windy day but he did not hear any noise from the siding. He testified that the Homeowner’s siding is vinyl which does deflect when pressed as it needs to be flexible. It was his testimony that a visual inspection would not be sufficient to determine if the siding was hung improperly. He testified that some of the siding would have to be removed to see if there were gaps in the pattern of siding nails or screws. This destructive testing would only be warranted, in Mr. Martin’s testimony, if the siding were banging or moving in moderate or high winds. Mr. Astolfi also testified that he had not witnessed any movement or noise in the siding during his visits. The contractor might have offered different evidence but he was not called. Therefore, the Tribunal concludes that, in the face of the evidence of Tarion and Baywood, the Homeowners have not established their claim.

Order

The Tribunal orders as follows:

Foundation and Basement Claims – Claim Numbers 1, 2, 3, 4, 10, 12, 13, 21

1. Tarion will cause the area around the foundation walls of the Homeowners’ home to be excavated on all four perimeter walls to the foundation footings. This will involve supporting the porch and removing the porch slab and removing the interior garage slab. Tarion will cause the dimpleboard to be removed.

2. Tarion will cause the current weeping tile O-ring to be removed and replaced with a new O-ring which will not be secured by driving either nails or spikes through it.

3. Tarion will cause any cracks or tie rod holes to be sealed from the exterior with an appropriate aqua cement.

4. Tarion will cause a tar coating to be applied to all foundation walls that will be below grade.

5. Tarion will cause new dimpleboard to be installed.

6. Tarion will cause gravel to be placed around the O-ring to a specifications set out in the OBC.

7. Tarion will cause the excavation to be back filled. On consent of Baywood, Tarion will cause Baywood to adjust the grade to be higher that is currently the case on the south, east and north walls to permit proper drainage.

8. Tarion will cause the insulation on the basement walls to be removed and will check for mould. If mould is discovered, then Tarion will direct the appropriate remediation. When any mould is removed, then Tarion will cause the new insulation, at the R12 density, to be installed.

9. Tarion will provide day-to-day supervision of the work and will use a Tarion representative or contractor of equivalent qualifications to those possessed by Mr. Bruce Martin. The Homeowners will provide the Tarion representative or contractor with access to the premises for these purposes.

10. The Homeowners will contract with Mr. Milne or with someone of equivalent expertise at The Ainley Group to perform the following work. When the porch slab and the garage slab have been removed, Mr. Milne will inspect the area abutting these slabs. If these abutting areas are not, in Mr. Milne’s opinion, damp proofed in accordance with the OBC, Mr. Milne will make recommendations to Tarion, the Homowner, and Baywood as to what damp proofing is required.

11. After the inspection specified in paragraph 10 above, Mr. Milne will produce a brief written report of his inspection and his recommendations, if any. Copies of these reports will be provided to the Homeowners, Tarion, and Baywood.

12. In making any of the recommendations in paragraph 10 above, the standard of work required to be met is that set out in section 13 of the Act. Any work done in paragraphs 1 to 9 above and any remedial work done to comply with the recommendations in paragraph 10 above will be done to the standard set out in section 13 of the Act.

13. Mr. Milne will invoice the Homeowners for the work he does under paragraphs 10, or 15 of this Order at his usual rate for such work. Tarion will reimburse the Homeowners for the amounts paid on these invoices.

14. Tarion will either accept the recommendations set out in paragraphs 10 above and comply with them or will, within 15 days of the written reports being made, bring a motion before this Tribunal to have the recommendations or any of them reviewed. Any other party make object to the recommendations in which case they may bring a motion to the Tribunal for a review of the recommendations within 15 days of the written report.

15. If Tarion moves to have any of Mr. Milne’s recommendations reviewed, then the Homeowners may call Mr. Milne to give evidence, to produce a report explaining his recommendations or both. If the Homeowners or Baywood are objecting to Mr. Milne’s recommendations, then the objecting party will pay for any expenses incurred by Mr. Milne during the review.

16. If the parties accept Mr. Milne’s recommendations, then Tarion will notify the Tribunal of this acceptance.

17. Nothing in this interim Order prevents Tarion from retaining an expert of their choice to attend the Homeowners’ premises at the time that Mr. Milne is there and the Homeowners will provide the Tarion expert with access to the premises.

Eavestroughs Bent on South Side of Porch Claim – Claim 15

18. Concerning the claim 15 of Tarion’s Decision Letter that the eavestrough is bent on the south side of the porch, Tarion will cause the dented portion of the eavestrough to be replaced by a qualified eavestrough specialist. Tarion will supervise the work and the Homeowners will provide Tarion with access to the premises for this purpose.

Other

19. All other claims in this appeal are denied.

LICENCE APPEAL TRIBUNAL

Laurie Sanford

Vice-Chair

Released: May 28, 2015