9858 v. Tarion Warranty Corporation, 2016 CanLII 9444

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE: 2016-02-03

FILE: 9858/ONHWPA

CASE NAME: 9858 v. Tarion Warranty Corporation

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

The Appellants Appellants

-and-

Tarion Warranty Corporation Respondent

-and-

Brookfield Homes (Ontario) Ltd. Added Party

REASONS FOR DECISION AND ORDER

ADJUDICATOR: D. Gregory Flude, Vice-Chair

APPEARANCES:

For the Appellants: Self-represented

For the Respondent: Scott Seabrooke, Student-at-Law

For the Added Party: Katarina Rodgers and Brian Loder, Agents

Heard in Hamilton: January 20 2016

DECISION AND ORDER

1Pursuant to the Ontario New Home Warranties Plan Act, R. S. O. 1990, c. O.31 (the “Act”), the Appellant appeals the decision of Tarion Warranty Corporation (“Tarion”) to deny the claim for warranty set out in a Decision Letter dated August 18, 2015. The Added Party, Brookfield Homes (Ontario) Ltd., is the vendor of the home and is liable to either effect warranty repairs or to reimburse Tarion for the cost of those repairs in the event this Tribunal finds in favour of the Appellant. The Added Party supports Tarion’s position in this matter.

2The only issue raised in the Decision Letter, and the basis for the denial of coverage, is Tarion’s assertion that the Appellant did not make a claim for a conciliation inspection within the requisite time period set out in O/Reg 892/90. In the first year of possession, there are two opportunities for homeowners to raise concerns with their vendor and Tarion. The first is during the 30 day period immediately following possession, referred to as a 30-day claim, and the second is the 30 day period immediately preceding the anniversary date of possession, referred to as a year-end claim.

3After the homeowner files a claim, O/Reg 892/90 places duties on the vendor to complete warranty repairs within 150 days of receiving a claim form. If the vendor fails to do so to the satisfaction of the homeowner, or if there is dispute whether any specific item is warranted, the homeowner may request Tarion to conduct an inspection and conciliate the dispute. The regulation places a duty on the homeowner to contact Tarion and request a conciliation inspection during the 30 day period ending on the 150th day from the filing of the 30 day form or year-end form, as appropriate.

4The consequence set out in O/Reg 892 for failing to request a conciliation inspection is that the warranty claim is deemed to be withdrawn. It is common ground that the Appellants did not request conciliation within the regulatory time period. Tarion argues that the Appellants are deemed to have withdrawn their claim and have no further right to warranty coverage for items claimed in the 30 day and year-end forms. On the clear wording of the regulations and the facts admitted by the Appellants in the hearing, the Tribunal agrees with Tarion’s submission. The Appellants’ claim for warranty coverage is denied.

5The facts of the matter become clearer if they are approached chronologically. The Appellant’s home was completed for possession on January 11, 2011. They completed and submitted a 30 day claim form within the prescribed period. As part of the closing documentation, the Appellant was given a Homeowner Information Package (HIP), which sets out in great detail the statutory warranty scheme and the consequences of failure to make a claim for a conciliation inspection in a timely manner.

6As stated above, the statutory warranty scheme allowed the Appellants to file two warranty claims within the first year of possession. They did so and Tarion acknowledged receipt by letters dated February 8, 2011, and January 17, 2012. The letters have identical wording but the dates differ. The 30 day claim acknowledgement letter advised them of the following:

Thank you for submitting a [30-Day or Year-end Form as applicable]. We are accepting this form based on the Date of Possession of record for your home January 11, 2011.

What Happens Next

Your builder should resolve the items that are covered by the warranty by June 13, 2011…

If Your Items Are Not Resolved

If your items are not resolved by the above date, you must contact us between June 14, 2011 and July 13, 2011 to request a Tarion inspection of your home to assess the situation. If you do not request an inspection during this time period, Tarion will consider all items listed on your form to have been withdrawn and will not be able to resolve the situation. [emphasis added]

7The Appellants acknowledge receipt of the HIP and the two confirmation letters. They made frequent visits to the Added Party’s construction site office. The Added Party carried out some repairs, but the Appellants state that the repairs were ineffective. Rather than contact Tarion, they continued to deal with the Added Party in an attempt to resolve their claims. They were of the view that the Added Party would advise them of the appropriate steps to advance their claim. There was no evidence that they told the Added Party of this expectation or that the Added Party undertook the duty of advising them of the rights previously communicated to them in Tarion’s documents.

8The first communication with Tarion was by email in March 2014. By this time, the deadline for requesting a conciliation inspection was approximately 10 months in the past. Tarion did not respond to this email. They then contacted a lawyer who sent a letter on their behalf in August 2014. Again, Tarion did not respond. When Tarion finally did respond in March 2015, it denied the claim on the basis that no request for a conciliation inspection had been made in a timely manner

9In its evidence, Tarion pointed out to the Tribunal that there is a provision in O/Reg 892 that allows for the extension or truncation of the regulatory time limits under s. 5.10. S. 5.10 states:

5.10 The Corporation may, in its sole discretion, extend or abridge any time specified in sections 4.1 to 4.6, 5.1, 5.2, 5.5 to 5.7 and 5.9 if it determines that,

(a) the vendor is unable or unwilling to repair or resolve the claim items covered by a warranty;

(b) the warranty claim,

(i) relates to items involving health and safety, seasonal repairs or an emergency, or

(ii) involves other extraordinary circumstances; or

(c) the specified times begin in, end in or span the period from December 24 of one year to January 1 of the following year, both inclusive.

10In reviewing this section, Tarion pointed out that no evidence had been advanced to bring the Appellant’s actions within its terms. The Added Party worked with the Appellant and was always able and willing to carry out warranty repairs. The issues did not address health and safety or emergency repairs that required an immediate response from the Added Party or involvement of Tarion at a time earlier than the claim timetable.

11Tarion’s witness, Patricia Lutz, who is Tarion’s Director of Customer Services, told the Tribunal that she might consider an extension of time if there was evidence that the homeowner had been hospitalized or subject to some trauma around the time for making a claim that prevented the making of a claim in a timely manner. She stated that would need clear evidence of the problem and she would also need the claim to be made soon after the problem was resolved. In reply evidence, the Appellants’ son testified that his mother had been in hospital for several months. He was unsure of the dates. He also had no explanation why he or his father could not contact Tarion to request a conciliation inspection. The Tribunal finds there is no evidence of extraordinary circumstances. The Tribunal agrees with Tarion’s analysis. It can find no grounds for ordering Tarion to exercise its discretion under s. 5.10.

ORDER

23By virtue of the authority vested in it by the Act, the Tribunal orders Tarion to deny the Appellants’ claims for warranty.