Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
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
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: April 7, 2015
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.
BACKGROUND
On April 2, 2015, when it became apparent the hearing date of April 8, 2015 would have to be vacated because the Respondent had no witnesses available to testify on that date, the Appellants asked for an Order for costs for the lost date. They did not give any reasons for the request other than the fact that the hearing would be delayed by the loss of the day.
SUBMISSIONS
Mr. Arnold, Counsel for Tarion, submitted that Tarion’s schedule of witnesses had been disrupted by the conduct of the Appellants in unreasonably prolonging the cross-examination of the Respondent’s witness, Ryan Haley. He elaborated that the Respondent would have had an expert witness available to give evidence on April 2nd, as was the plan which the parties and the Tribunal knew, but for the fact that April 1st hearing day was essentially lost.
THE DECISION
It is relevant that the only witnesses the Respondent has left to call are expert witnesses. The Tribunal is mindful of the fact that expert witnesses are not clients; they are witnesses who have other commitments and attempts are made to accommodate their schedules in order to receive their evidence. Mr. Arnold had advised the Tribunal, quite some time ago, that he had made arrangements for his expert witnesses to testify, commencing the beginning of April 2015. That was not possible and it is sufficient to note that the Appellants were ordered to pay Tarion’s costs for April 1, 2015 in the maximum amount permitted by the Tribunals’ Rules of Practice. In the end, the Tribunal ultimately declared the cross-examination of Ryan Haley concluded on April 2, 2015. But for that ruling, it is doubtful that the cross-examination would have concluded before the hearing was adjourned for the Easter weekend of April 3-6, 2015 inclusive.
Rule 14.5 of the Rules of the Licence Appeal Tribunal states that a request for costs shall set out the reasons for the request and the particulars of the other parties’ conduct that is alleged to be unreasonable, frivolous, vexatious, or in bad faith. The Appellant, J. F., did not plead or state any particulars of Tarion’s conduct that would give rise to a cost sanction when he made his request for costs. Further, given the facts of where we find ourselves at this point in the evidence, I cannot find any basis to order Tarion to pay costs for having to vacate April 8th, 2015. I cannot find, on the facts, that their inability to have an expert available on that specific date constitutes conduct that is unreasonable, frivolous, vexatious, or in bad faith. The Appellants’ request is denied.
LICENCE APPEAL TRIBUNAL
Patricia L. Cassidy, Vice-Chair
Released: April 8, 2015