Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2015-11-20

FILE:

9542/ONHWPA

CASE NAME:

9542 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-

Great Gulf (Toronto 2000) Inc.

Added Party

REASONS FOR DECISION AND ORDER

ADJUDICATOR:

Laurie Sanford, Vice-Chair

APPEARANCES:

For the Appellants:

Self-represented

For the Respondent:

Luke Johnston, Counsel

For the Added Party:

Michael Farace, Counsel

Heard in Niagara Falls:

October 28, 2015

REASONS FOR DECISION AND ORDER

The Appellants (the “Homeowners”) appeal to the Licence Appeal Tribunal (the “Tribunal”) from a Decision Letter of Tarion Warranty Corporation (“Tarion”) dated April 24, 2015, with respect to a new home the Homeowners purchased from Great Gulf (Toronto 2000) Inc. (“Great Gulf”). Tarion has denied the Homeowners’ claim for warranty 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 Decision to protect their privacy.

The Homeowners made second year claims for warranty coverage under the Act and the hearing addressed the claims regarding their staircase. The staircase runs for three flights: the first flight is from the basement to the main floor; the second, from the main floor to a landing, and the third, from the landing to the second floor. The first flight, the basement stairs, is uncarpeted, and the second and third flights are carpeted. The Homeowners assert that their stairs are not level. By this they mean that some of the treads slope and that the risers between the treads are not equal. They believe that both the slope on the treads and the differences in the height between treads are outside the specifications of the Ontario Building Code (the “OBC”). They also claim warranty coverage for their carpet on two grounds. First, they believe the carpet does not comply with the OBC and second, they note that in order to repair the stairs, the carpet will have to be removed and replaced.

Tarion denies the claims on the grounds that the stairs are within the tolerances of the OBC and that the carpet is properly a first year claim, not a second year matter.

FACTS

S.H., one of the Homeowners, testified that the stairs have been an ongoing problem for them. Both S.H. and his wife, the second Homeowner, have fallen on the stairs, injuring themselves badly enough to require medical care.

S.H. testified to the belief of the Homeowners that the stair treads are sloping and the height of the risers between treads is not the same. S.H. also testified that the Homeowners believe the carpet does not meet OBC requirements.

S.H. referred to specific sections of the OBC. First, he referenced section 9.8.4.4 which deals with “Uniformity and Tolerances for Risers and Treads”. Subsection 9.8.4.4 (1) provides:

Except as provided in Sentence (2), risers shall be of uniform height in any one flight with a maximum tolerance of,

(a) 5 mm between adjacent treads or landings, and

(b) 10 mm between the tallest and shortest risers in a flight.

S.H. referred to pictures taken by Tarion at the time his stairs were inspected that appear to show variations in the height between adjacent treads.

S.H. also referred to section 9.8.9.6 which addresses “Finish for Treads, Landings and Ramps”. Subsection 9.8.9.6 (1) provides:

Except as required by Sentence (5), the finish for treads, landings and ramps shall be,

(a) wear resistant,

(b) slip resistant, and

(c) smooth, even and free from open defects.

S.H. testified that when the carpet initially installed on the stairs was removed to enable measurements to be taken, the carpet removal people noted deficiencies in the installation of the underpad and the tack strip.

S.H. testified that the combination of the three factors: the difference in the height of the risers, the slope of the tread and the deficiencies in the carpet, combine to explain why he and his wife have each fallen on the stairs.

The Homeowners are seeking the cost of repair and their expenses in preparing for the hearing.

During cross-examination, S.H. testified that the Homeowners had not measured the height of the risers or the slope of the treads, believing that was properly the job of Tarion. S.H. testified that the Homeowners were relying on the measurements made by Tarion.

Ms. Tiffany Hallatt, a Tarion Warranty Services Representative, testified that she inspected the stairs. Her evidence was that the heights of the risers were all approximately 20 centimetres and within the 5 mm and 10 mm tolerances specified in subsection 9.8.4.4 (1) of the OBC for adjacent treads and flights respectively.

Concerning the individual treads, Ms. Hallatt testified that, while there were slight slopes on several of the stairs, the slopes were within the OBC tolerances. Ms. Hallatt testified that the OBC specifies that the slope of any residential stair tread cannot be more than one in 50. She explained that this tolerance meant that for a tread that was 50 centimetres wide, the maximum slope could be one centimetre. The slopes of the individual treads were, in Ms. Hallatt’s testimony, within this specification. She also testified that she walked up and down the stairs and did not find them to be sloping or difficult to navigate.

Ms. Hallatt referred to R.R.O. 1990, Regulation 892 of the Act (the “Regulation”). Subsection 15(2) sets out what are commonly referred to as the “second year warranties”. The relevant subparagraph is 15(2) (d) which reads as follows:

Every vendor of a new home warrants to the owner,

(d) that the home is free from violations of the Ontario Building Code regulations under which the Building Permit was issued, affecting health and safety, including but not limited to fire safety, insulation, air and vapour barriers, ventilation, heating and structural adequacy; …

She testified that the carpet was not properly a second year claim as it is not a violation of the OBC. If there were deficiencies in the carpet’s installation, in Ms. Hallatt’s testimony, those deficiencies ought to have been the subject of the Homeowners’ first year claim. Under the Act, the claims which may be made in the first year include the second year claims but also include general workmanship and material warranties.

During her cross-examination, Ms. Hallatt was shown six photographs (Exhibit 6, Tab 11, pp. 13, 14, 15, 18, 20 and 21) that she had taken of her measurements of the heights of the risers. Of the six photographs, only one (Exhibit 6, Tab 11, p. 14) appears to show a measurement of 20 centimetres. Five of the photographs appear to show variations in the heights. Ms. Hallatt offered several possibilities as to why the pictures showed variations, such as the angle at which she had taken the photo relative to the tread or the possibility that some risers had carpeting on the lower tread. She re-iterated that the measurements she took showed the risers to be all approximately 20 centimetres. Neither Ms. Hallatt nor S.H. were able to identify which risers were shown in the various pictures.

Ms. Hallatt was asked in cross-examination about the tools that she had used to measure the stairs. She testified that she had not brought her level but borrowed one from the Homeowners. When asked why she did not use a laser level to measure the slope of the stair, Ms. Hallatt testified that the exact measurements of a laser level are not required to determine whether or not the slope of a tread complies with the OBC. Ms. Hallatt noted that wooden treads, over time, will move, introducing sources of error into any measurement.

DECISION

S.H. did an effective job in his cross-examination of Ms. Hallatt. Her explanation of the photographs showing a variation in heights between risers was speculative, although the possibility that the photographs may have been taken at distorting angles to the treads does seem to be borne out by some of the photographs. It was open to the Homeowners to introduce their own measurements of the risers. Unfortunately, they chose not to perform their own measurements of the stairs or to retain a qualified contractor to measure the stairs on their behalf. No one could identify which risers are shown in each picture or whether separate risers are shown in each picture. Ms. Hallatt testified that her measurements were a more accurate depiction of the true height of the risers than the photographs. S.H. testified that the Homeowners rely on Tarion’s measurements. Given the lack of measurements by the Homeowners and the testimony of Ms. Hallatt, the Tribunal cannot conclude, on the balance of probabilities that the risers are outside the tolerance of the OBC.

It is not for Tarion to prove that the risers are within the OBC. The onus is on the Homeowners to prove that the risers are in violation of the OBC. This is a very difficult distinction for homeowners, in general, to make. However, it is the way in which the Act is structured and the Tribunal does not have the jurisdiction to override that. The Homeowners in this case have not proven that the risers are in violation of the OBC and this part of their claim must fail.

The Tribunal accepts Ms. Hallatt’s explanation of why a standard level is adequate to measure the slope of a tread. Her measurements of the slope were not successfully challenged on cross-examination and the Tribunal accepts them. While the Homeowners challenged the tools and methodology used by Ms. Hallatt, S.H. testified that they accepted Tarion’s measurements. Again, the Homeowners elected not to measure the slope of the treads themselves. The Tribunal finds that the slopes on the treads are within the requirements of the OBC. This part of the Homeowners’ claim must fail.

Concerning the carpet, the Homeowners introduced evidence which might tend to show that the carpet was not installed in accordance with the first year warranty of workmanship. Unfortunately, the Homeowners are out of time to make that claim. There is no evidence on which the Tribunal can conclude that the carpet fails to meet the OBC. This claim, too, must fail.

It is regrettable that the Homeowners have suffered injuries as a result of falls on the stairs. It is natural that they should seek the cause of these falls. However, the Homeowners have not produced evidence that the falls demonstrate violations of the OBC in the risers, tread slope or carpet. Their belief that the falls are the result of the stair construction is subjective. In the absence of objective measurements showing a violation of the OBC, their claims must be denied.

ORDER

Pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs Tarion to deny the Homeowners’ claims.

LICENCE APPEAL TRIBUNAL

_________________________

Laurie Sanford, Vice-Chair

Released: November 20, 2015