Licence Appeal Tribunal
Tribunal d'appel en matière de permis
DATE: 2015-02-12
FILE: 9026/ONHWPA
CASE NAME: 9026 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
Appellant Appellant
-and-
Tarion Warranty Corporation Respondent
-and-
The Acorn Development Corporation Added Party
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Mary Ann Spencer, Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Danielle Peck, Counsel
For the Added Party: Deniz Jeronimo, Agent
Heard in Toronto: February 10, 2015
REASONS FOR DECISION AND ORDER
This is an appeal by the Appellant to the Licence Appeal Tribunal (the “Tribunal”) from a Decision Letter of Tarion Warranty Corporation (“Tarion”) dated July 23, 2014, in which Tarion denied the Appellant’s claim with respect to a new home purchased from The Acorn Development Corporation (the “Added Party”). The sole item under appeal is:
Interior- Floor 02- Bedroom – Floor - bedroom # 2 floor squeaks when walks (sic) on the floor
The Decision Letter and the Appellant’s Notice of Appeal were entered as Exhibits 1 and 2 respectively.
FACTS AND EVIDENCE
Appellant’s Evidence
The Appellant testified that the floor in the second bedroom of his home squeaks excessively and provided the Tribunal with a letter dated November 13, 2014, from Professional Home Inspections Inc. (Exhibit 3). The letter, signed by Yves Desjardins, states:
After visually inspecting and walking on the floors of bedroom 2 and 5 on the second floor I confirm and agree with my client...that the floors in those bedrooms located on the second floor of the house are excessively or more squeaky than usual for a house that is just 2 years old.
I base these observation (sic) on my experience of 7 plus years as a full time certified home inspector. I Got (sic) my certification from Humber College.
The Appellant indicated that he had a videotape recording of the squeaky floors. However, the Tribunal did not enter this into evidence because it had not been disclosed to the other parties.
The Appellant testified that the Added Party tried to fix the floors three or four times. On April 8, 2014, the floor was inspected by Tarion Warranty Services Representative, Anthony Krimmer, and a warranty assessment report was issued on May 1, 2014. Mr. Krimmer did not assess the squeaky floor as warranted. The Appellant then reported his continuing concern to Tarion, and, on May 9, 2014, Mr. Krimmer sent an e-mail to the Appellant (Exhibit 4) in which he wrote:
Your builder representative has been contacted and is willing to schedule a review with the floor joist supplier and or manufacturer to determine if there is a defined problem or root cause in the floor structure.
For clarity, the floor structure is designed as related to live load, dead load and deflection of the joist system. If there is a root cause or defect discovered in the review of the structure, that may be further assessed for the purpose of the builder’s statutory warranty obligations.
On June 6, 2014, the Appellant received an e-mail from the Added Party:
As discussed with Tarion – we have contacted joist manufacturer and they are willing to provide literature on the joist characteristics, function, etc.
Acorn has agreed as a good will gesture – to attempt a third time to see if anything can be done further to the floor – please advise when you can remove all furniture from the room and we will send our carpenter and serviceman.
The Appellant then read a further e-mail from the Added Party dated January 13, 2015, indicating the Added Party would like to check the floor based on the Appellant’s inspection report.
The Appellant submitted that these three e-mails indicated that the Added Party was aware that there were defects with the floor. He repeated that, notwithstanding Tarion’s decision, he believed the floor was defective and this would adversely affect the resale value of his home.
On cross-examination, the Appellant agreed that he had no experience building homes and no training in construction or the Ontario Building Code (“OBC”). He also agreed that the e-mails from Tarion and the Added Party to which he referred did not state that there was a problem with the floors but only indicated that there was a willingness to investigate. He also agreed that while the home inspector’s report refers to two bedrooms, the claim he submitted to Tarion was only in respect of one.
Respondent’s Evidence
Anthony Krimmer has been employed by Tarion as a Warranty Services Representative for thirteen years and has completed a three year college program in construction engineering technology. Before joining Tarion, Mr. Krimmer worked for the City of Waterloo in a variety of capacities, ending his career there in the role of Chief Building Official. In his current role, he conducts conciliation inspections to assess warranty claims. Mr. Krimmer explained that when he assesses claims, in addition to his own experience, he uses Tarion’s Construction Performance Guidelines (Exhibit 5), the OBC, and the homeowner’s Agreement of Purchase and Sale.
With respect to the Appellant’s home, Mr. Krimmer noted that it has been constructed with engineered trusses and that the construction must meet both the OBC requirements and the manufacturer’s specifications.
Mr. Krimmer then referred the Tribunal to section 2.4 of the Tarion’s Construction Performance Guidelines which addresses floor squeaks. This states the following as “Acceptable Performance/Condition”:
Some squeaking resulting from normal shrinkage of materials after construction is acceptable however; floors shall be reasonably free from squeaks caused by movement in the floor system connections under normal seasonal indoor humidity and loading conditions.
The Construction Performance Guidelines note that loose connections causing floor squeaks should be repaired.
On April 8, 2014, accompanied by Mr. Jeronimo, Mr. Krimmer inspected the Appellant’s second bedroom floor. To conduct his inspection, Mr. Krimmer walked across the floor and then went to the first floor of the home while the builder’s representative also walked across the floor. He testified that he did hear “noises and creaks” which in his opinion were typical of homes with wood frame construction. He noted that noises caused by shrinkage are not covered by the Tarion warranty. Rather, there must be a loose connection. In this regard, he also noted that he relied on the builder’s report of its two previous assessments which had included removal of both the carpet cover and the subfloor but had revealed no construction defect. Finally, Mr. Krimmer noted that municipalities require inspection of framing and that were a defect discovered, there would be a report of this which would be reported to the homeowner at the time of the home’s closing. He then stated that he was not aware if such a report had been made with respect to this home.
Mr. Krimmer summarized that, in his opinion, there was no defect with the second bedroom floor and therefore he did not warrant the squeaks.
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
The onus is on the Appellant to prove, on a balance of probabilities, that there has been a breach of warranty. In making its decision, the Tribunal has relied on the evidence of the parties and has considered the authorities submitted by Counsel for Tarion.
The evidence of both the Appellant and Mr. Krimmer is that the floor of the second bedroom in the Appellant’s home does squeak. What is at issue is whether these floor squeaks are the result of a warrantable defect in the floor assembly.
Mr. Krimmer, who has training in construction engineering technology and many years of experience both as a municipal building official and with Tarion, testified that, in his opinion, the bedroom floor squeaks were typical of those heard in wood frame construction. He based this opinion on his own observation and on the repair history provided to him by the builder.
The Appellant did retain a home inspector to inspect the floor and the inspector’s November 13, 2014, letter states that the floors are “excessively or more squeaky than usual.” However, the Tribunal cannot accept this letter as expert evidence with respect to the floor’s condition. The home inspector did not testify at the hearing and the Tribunal does not know what specific expertise in floor construction, if any, that the inspector may have. Further, the Tribunal notes that the letter does not state that the squeaks are the result of a defect in the floors nor does it suggest any type of needed repair.
Ms Peck referred the Tribunal to 5188-5457-ONHWPA-Claim (Re) [2010] O.L.A.T.D. No. 190 in which, at paragraph 49, Vice-Chair Wallace notes:
A number of prior decisions of this Tribunal and its predecessor have pointed out that the standard to be applied in interpreting the warranty provisions of the Act is not one of perfection. Indeed, no home, old or new, would ever meet such a standard.
The Tribunal acknowledges that the Appellant is not satisfied with the squeaking condition of the bedroom floor in his home. However, notwithstanding the fact that the home inspector’s letters describe the squeaks as “excessive”, the Appellant has failed to provide any evidence to support his claim that the squeaking is the result of a warrantable defect and is not the result of normal shrinkage following construction, which Tarion’s Construction Performance Guidelines describes under the heading of an “Acceptable Performance/Condition” and which the Tribunal notes section 13(2)(d) of the Act specifically excludes from warranty coverage.
ORDER
Pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs Tarion to deny the Appellant’s claim.
LICENCE APPEAL TRIBUNAL
Mary Ann Spencer, Member
Released: February 12, 2015