Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2015-03-17

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

MOTION 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 writing:

March 17, 2015

MOTION 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.

The hearing of this appeal began on September 23, 2014. Prior to the hearing proceeding, there were a number of preliminary motions which needed to be determined. In total, there were 13 preliminary motions to be dealt with. 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 June 19, 2014. Those five motions, along with the Respondent’s motion filed August 28, 2014, were heard on September 5, 2014, and the hearing then commenced on September 23, 2014.

From September 23, 2014 to January 8, 2015, there have been a total of 15 days of hearing to date. On January 8, 2015, the Appellants rested their case and the hearing was adjourned to 9:30 a.m. on March 18, 2015, at which time the Respondent was to call its first witness.

On March 10, 2015, the Appellants filed a Notice of Motion seeking the following relief:

1. An investigation into the missing recordings of their hearing.

2. Authorization for them to audio and video record the remainder of the hearing.

3. A review of the Order of December 8, 2014.

4. A determination to be made of whether the Presiding Member has a reasonable apprehension of bias that is not required to be determined by the Presiding Member, and also that the consequences for finding a reasonable apprehension of bias are not punitive or prejudicial to them and their case.

5. Recourse to the Appellants’ feeling bullied which is not punitive or prejudicial for them and their case. This resolution may or may not be related to item 4, above.

6. A requirement that all of the motion requests they have included with this motion request, along with previous motion requests in this case be included in the case files available for consideration by the adjudicator to make a decision and for those who would conduct a possible appeal or review of their case.

7. A requirement that all of the documentary evidence disclosed by all parties for this case, including motion materials, are available for consideration by the adjudicator to make a decision and for those who would conduct a possible appeal or review of their case.

8. A requirement that Tarion provide an explanation about what inspector Ryan Haley’s actual role was in making the decisions with the Appellants’ warranty and in authoring the Decision Letters filed for the appeal.

The Tribunal has considered the Notice of Motion filed, as well as the supporting documents, including a statement by the Appellant J. F., sworn on March 10, 2015, and the response letter dated March 12, 2015, from Brent Arnold, counsel for the Respondent Tarion, and the response e-mail dated March 13, 2015, from Daniel McConville, counsel for the Added Party Polmat Group Inc. The Presiding Member notes that she had not received any information about the previous correspondence between the Appellants and the Tribunal in January and February 2015, which is included in this motion’s supporting materials. The Presiding Member first became aware of this motion and this previous correspondence on March 13, 2015.

The motion is dismissed for the following reasons, which are numbered corresponding to the eight points in the Appellants’ Notice of Motion:

1. It is, indeed, very unfortunate that there is not a complete recording of this proceeding to date. On November 27, 2014, immediately upon return from the lunch recess, the Appellant, J.F. referred to communications with the Associate Chair over the lunch break. The hearing had not formally resumed before he made that statement, and as such, the recording had not yet been started by the Presiding Member which is why the Appellant’s statement was not recorded. Regardless of the exact words used by the Appellant, his statement raised sufficient concerns that the Tribunal immediately recessed, and then returned to deal with the possible bias concerns that were raised. Despite the Appellant’s continuing concerns over this gap in the recording, he has not provided any basis for the Tribunal to consider this matter further.

2. On more than one previous occasion, the Tribunal has denied the Appellants’ request to have their own recording of this proceeding. None of the parties should be recording the proceedings when the Tribunal is doing so – there should be only one official record. The Presiding Member has requested that arrangements be made for staff to assist in this proceeding by beginning or resuming the recording at the start of each segment of the hearing, and pausing or stopping the recording during each recess or at the end of the hearing day. This should resolve any difficulties that have been encountered and ensure a complete recording of the proceeding.

3. If the Appellants believe that that the Order of November 28, 2014, released on December 8, 2014 or any other ruling by this Tribunal, is incorrect, their recourse is to appeal. They have been told this many times during this proceeding.

4. The issue of bias has already been determined. Indeed, that is the subject matter of the Order made November 28, 2014. The Appellants’ current motion does not raise any new basis for making a different finding on this issue. When asked to make submissions on the issue on November 28, 2014, one of the Appellants, A.F., the Respondents and the Added Party all stated they did not have any apprehension of bias. The Appellant, J.F., would not say whether he did or did not have an apprehension of bias. As stated in the Order on November 28, 2014, based on the submissions received, this Tribunal could not find there was a reasonable apprehension of bias.

The Tribunal notes that any finding of a reasonable apprehension of bias would lead to the consequence of starting the hearing from the beginning before a new panel. The Appellants cannot raise the issue of bias and at the same time state that they do not wish to suffer from the consequences of starting a new hearing if their bias motion is successful.

In terms of procedure and who decides a bias motion, the Tribunal notes that there are numerous court cases that have determined that a bias motion should be decided by the same judge or tribunal member against whom that bias is alleged. That bias ruling may be appealed subsequently to a higher level, but the initial decision is made by the presiding adjudicator. For example, see the lengthy discussion of various cases by the Newfoundland and Labrador Court of Appeal in Communication, Energy and Paperworkers Union of Canada Local 60N, 2008 NLCA 4.

5. The Appellant J.F.’s complaints about bullying were made against this Tribunal and Mr. Arnold, solicitor for Tarion and Mr. McConville, solicitor for Polmat Group Inc., after J.F. had been cross-examined and many of his objections to questions, while being cross-examined, were not sustained. This issue was addressed on November 28, 2014 and in the Order made, and released on December 8, 2014. Again, if the Appellants take issue with the Order, their recourse is to appeal to the court

6. It is not clear what is being requested in this paragraph of the Notice of Motion, however, all materials filed by the parties form part of the file and are available to be reviewed by anyone who is entitled access to the file. This would include any Tribunal member other than the current Presiding Member.

7. Again, it is not clear what relief is being sought in this paragraph but documentary evidence filed with the Tribunal by the parties forms part of the appeal file, and will be accessible to any other Tribunal member.

8. The Appellants will have the opportunity to cross-examine Ryan Haley, who Tarion counsel has advised, will testify.

In summary, the within motions raise no new issues. The issue of bias has been dealt with. At the same time, the allegation of bullying was addressed. The parties made submissions and a determination was made pursuant to the Order of this Tribunal released on December 8, 2014. The materials and submissions provided by the Appellants in this motion do not provide a basis for any further consideration of these same issues. For these reasons, the motion is dismissed.

This hearing shall continue as previously scheduled, with the Respondent Tarion to call their first witness on Wednesday, March 18, 2015.

COSTS

The Respondent Tarion has raised the issue of costs, and this Tribunal will entertain any such submissions on March 18, 2015 when this hearing resumes.

LICENCE APPEAL TRIBUNAL

Patricia L. Cassidy, Vice-Chair

Released: March 17, 2015