Licence Tribunal
Appeal d'appel en Tribunal matière de permis
DATE: 2015-02-02
FILE: 9028/ONHWPA
CASE NAME: 9028 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-
2073737 Ontario Inc. Added Party
REASONS FOR DECISION AND ORDER
ADJUDICATOR: E. Alan Garbe, Vice-Chair
APPEARANCES:
For the Appellants: Self-represented
For the Respondent: Ellie Choi, Counsel
For the Added Party: Ottavio Tassone, Agent
Heard in Toronto: January 13, 2015
REASONS FOR DECISION AND ORDER
This is an appeal by the Appellants to the Licence Appeal Tribunal (the “Tribunal”) from a Decision Letter of Tarion Warranty Corporation (“Tarion”) dated July 24, 2014, with respect to a new home purchased from 2073737 Ontario Inc., carrying on business as “Highcastle Homes” (the “Added Party”), in which Tarion denied certain of the Appellants’ claims (the “Decision Letter”).
BACKGROUND
In the 30-Day Form, dated May 23, 2013, the Appellants submitted a list of 50 items which required attention with respect to the home which they purchased from the Added Party. In the Warranty Assessment Report issued after an attendance at the Appellants’ residence on December 5, 2013, seven of the claims were found not to be warranted and the remainder of those claims still outstanding were withdrawn.
The Decision Letter denied four items, numbers 23, 30, 36 and 48, for the reasons stated in the Decision Letter. The Appellants appealed the Decision Letter by Notice of Appeal dated August 7, 2014.
At the hearing, the Appellants withdrew items 23 and 48 leaving only the matter of the crack in the granite countertop (item 30) and the issues with the main stairs (item 36) for the hearing.
At the commencement of the hearing, the Respondent’s Book of Documents was entered as Exhibit 3, the Pre-Delivery Inspection Form dated May 1, 2014, was made Exhibit 4, a group of photographs, originally attached to the Notice of Appeal, was made Exhibit 5, and a second Pre-Delivery Inspection Report submitted by the Added Party was entered as Exhibit 6.
EVIDENCE
The Tribunal heard evidence from both of the Appellants, Thomas Hollman (the Tarion Warranty Services Representative) and the Agent for the Added Party. Their evidence will be reviewed in the context of each specific claim.
Item 30 refers to a crack in the granite countertop in the kitchen, which was an upgrade. The Appellants argued that the countertop must be replaced. The Appellants referred to the pictures in Exhibit 5 at Page 4, which disclose a crack in the countertop running from the outside edge of the countertop to the inside edge at one of the two sinks. The Appellants paid approximately $5,000.00 for the upgraded countertop and took the position that the crack in the countertop constituted a defect in material and must be replaced.
The Appellants had discussions with the Added Party about replacing the kitchen countertop and a bathroom countertop and the Added Party proposed that the Appellants pay one third of the cost of replacing the countertops and the Added Party would pay the rest. The Appellants rejected this offer on the basis that they had paid for the countertops once and were not going to pay again. The Appellants pointed to areas shown in the pictures in Exhibit 5, which purportedly showed where the countertop had been buffed as if in an effort to reduce the visibility of the crack.
It is the Respondent’s position, as stated by Mr. Hollman, that the crack in the countertop is minor, is not visible at all from a normal viewing position and can only be seen when up close to the sink or when light reflects off the countertop from a certain angle. The crack was not easily felt. The same applied to the buffed area where a slight change in the sheen of the granite could be detected, only in certain light. For these reasons the claim was denied.
It is with respect to this claim that the matter of the Pre-Delivery Inspection Reports become an issue.
It is the Appellants’ position that the purchase of this home was scheduled to close on April 24, 2013, and a Pre-Delivery Inspection was started. As the house was not completed on that date, the closing was postponed until May 2, 2013. On May 1, 2013, the house was still not ready, but the Appellants felt pressured to close and, as the Pre-Delivery Inspection Report was required in order to obtain the necessary bridge financing, they signed off on the report (Exhibit 4) without actually doing an inspection. The Appellants were comfortable with this approach as they did not intend to move in for another two weeks, which gave the Added Party ample time to finish the interior work.
The Respondent takes the position that as this matter is not on the Pre-Delivery Inspection Report, the Respondent is unable to determine who caused the damage.
The Added Party produced another Pre-Delivery Inspection Report (Exhibit 6) which it claims is the operative Pre-Delivery Inspection Report. This report also does not make reference to a crack in the granite countertop.
Item 36 is with respect to the need for another coat of varnish, touch up and sanding to the main staircase. The Added Party had done some remedial work to the stairs but the Appellants’ claim there still remains what is described as “ripples” and the need for touch up. The Appellants were not very precise in what they claimed was required nor did they provide any cost with respect to the work they wanted done.
THE LAW
The applicable provisions of the Act are as follows:
Warranties
- (1) Every vendor of a home warrants to the owner,
(a) that the home,
(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;
(b) that the home is free of major structural defects as defined by the regulations; and
(c) such other warranties as are prescribed by the regulations.
Exclusions
(2) A warranty under subsection (1) does not apply in respect of,
(a) defects in materials, design and work supplied by the owner;
(b) secondary damage caused by defects, such as property damage and personal injury;
(c) normal wear and tear;
(d) normal shrinkage of materials caused by drying after construction;
(e) damage caused by dampness or condensation due to failure by the owner to maintain adequate ventilation;
(f) damage resulting from improper maintenance;
(g) alterations, deletions or additions made by the owner;
(h) subsidence of the land around the building or along utility lines, other than subsidence beneath the footings of the building;
(i) damage resulting from an act of God;
(j) damage caused by insects and rodents, except where construction is in contravention of the Ontario Building Code;
(k) damage caused by municipal services or other utilities;
(l) surface defects in work and materials specified and accepted in writing by the owner at the date of possession.
APPLICATION OF LAW TO FACTS
Whichever of the two Pre-Delivery Inspection Forms should be viewed as the correct form, there is no reference to the crack in the countertop. This is not determinative of the matter. The uncontested evidence of the Appellants is that the Added Party made an offer to resolve the matter of the cracked countertop on or about the time the Appellants took possession of the house. The reasonable conclusion drawn from this evidence is that the Added Party recognized that there was a crack in the countertop which existed at the time of installation, which constituted a defect and that the defective countertop should therefore be replaced.
The Tribunal finds that the granite countertop is a warranted item and is to be replaced.
With respect to the Appellants’ issues with the main staircase (item 36), there was a lack of evidence regarding this claim in that there was insufficient detail about the existence of a defect, or of work that was not done in a workmanlike manner. The Appellants have not proven, on a balance of probabilities, that there is a breach of warranty that relates to the staircase, therefore this claim must be denied.
ORDER
Pursuant to the authority vested in it under the provisions of the Act, the Tribunal allows the appeal of the Appellants as it relates to the granite countertop and finds that it is a warranted item and directs that the granite countertop in the Appellants’ home be replaced.
The Tribunal directs Tarion to deny the claim of the Appellants with respect to the main staircase.
LICENCE APPEAL TRIBUNAL
E. Alan Garbe, Vice-Chair
Released: February 2, 2015