Licence Appeal Tribunal
FILE: 10079/ONHWPA
CASE NAME: 10079 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 Claims
Appellant: 10079 -and- Respondent: Tarion Warranty Corporation -and- Added Party: Lifetime Yorkville Residences Inc.
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Laurie Sanford, Vice-Chair
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Luke Johnston, Counsel
For the Added Party: Neil Wilson, Counsel
Heard in Toronto: September 8, 2016
REASONS FOR DECISION AND ORDER
OVERVIEW
The Ontario New Home Warranties Plan Act, R.S.O. 1990 c. O.31 (the “Act”) establishes a statutory set of warranties extended by builders/vendors to purchasers of new homes in Ontario. In the present case, the warranties are given to the Appellant (the “Homeowner”) by Lifetime Yorkville Residences Inc. (“Lifetimes Residences”). Tarion Warranty Corporation (“Tarion”) is the corporation which administers the Act. It is Tarion’s responsibility to assess the validity of claims of homeowners for warranty coverage. Homeowners dissatisfied with Tarion’s decision may appeal to the Tribunal.
Under subsection 13(1) of the Act, Lifetime Residences warrants to the Homeowner that his condominium unit is “constructed in a workmanlike manner and is free from defects and materials” and “is constructed in accordance with the Ontario Building Code”. Under subsection 13(2), the warranties do not apply to “alterations, deletions or additions made by the owner”.
To succeed in this appeal, the Homeowner must demonstrate, on a balance of probabilities, that one or more of the available warranties have been breached, that he has suffered damages as a result, and that the specific warranty or damages the Homeowner is claiming are not excluded under the Act.
In this case, the Homeowner claims that his master bedroom is smaller than required in the Ontario Building Code (“OBC”), a breach of warranty under the Act. The Homeowner also asserts that the transition from his hall laminate floor to his bathroom tile floor is defective because the difference in height is too great, because there is a “void” under the laminate floor at the transition point and because the transition strip is improperly installed. These defects, the Homeowner asserts, cause the floor to give way underfoot and the transition strip to “spring” or flex. In a Decision Letter dated March 1, 2016, Tarion denied both claims. The Homeowner appeals to this Tribunal from this decision.
Tarion and Lifetime Residences take the position that the size of the master bedroom complies with the OBC. They also assert that the transition to the bathroom is within Tarion’s Construction Performance Guidelines. Moreover, Tarion and Lifetime Residences allege that the Homeowner voided any warranty for the transition by undertaking repairs or “alterations” of the transition strip that spans the abutment of the two floor surfaces.
For the reasons below, the Tribunal finds that the Homeowner has not demonstrated that either of his claims constitute a breach of warranty under the Act and accordingly dismisses the appeal.
ISSUES AND ANALYSIS
Preliminary Matters
The Homeowner introduced a letter to support his claim that the master bedroom is too small. He characterised the letter as the opinion of an expert. However, he did not include any credentials or a résumé to support the expertise of the author, as required by the Tribunal’s Rules of Practice. Both Tarion and Lifetime Residences objected to admission of the evidence as opinion evidence on the grounds that the expertise of the author had not been established. The Tribunal told Mr. Johnston, counsel for Tarion, that the better course of action, when dealing with a self-represented homeowner, would be to raise any objections to the documentary evidence directly with the homeowner prior to the commencement of the hearing. The Tribunal ruled that the letter would be admitted but that submissions as to the weight that ought to be given to it would be considered.
The Homeowner did not produce any supporting evidence of the quantum of damages he is claiming. The Tribunal offered the Homeowner a choice. The hearing could adjourn to permit him to repair the deficiencies in his evidence or he could elect to proceed with the hearing. Citing the stress of the hearing and the effect the stress is having on his diabetes, the Homeowner chose to proceed with the hearing.
Does the size of the master bedroom meet the OBC requirements?
The parties differ on how to interpret the OBC measurement requirements and, as a result, on how to measure the floor area of the master bedroom in the Homeowner’s condominium. The Homeowner believes that his master bedroom is less than the minimum space required in the OBC. Article 9.5.7.2(1) of the OBC states that one bedroom in a home must have a floor area of at least 8.8 square meters, or 95 square feet, where, as here, there is a built-in closet. All other bedrooms may have a footprint of 6 square metres, or 65 square feet, where a built-in closet is provided. In terms of how to measure the floor size, the OBC says that measurements will be from finished wall to finished wall. Minimum floor areas do not include built-in closets. Apart from this guidance, the OBC is silent on how the measurement is to be done.
The bedroom at issue is configured with a built-in closet on one side. The closet has offset sliding doors which glide along runners fastened to the floor. On the opposite side there is a floor-to-ceiling window with decorative mullions, including one which is 39 inches or 991 millimetres above the floor. The remaining two sides of the room include an interior wall and a fourth wall with a bulkhead enclosing part or all of a heat pump, electrical wiring and a door. A diagram of the room is attached as Schedule “A” to this Decision. It should be noted that the measurements in Schedule A are those of the Homeowner and are in dispute in this hearing.
The Homeowner testified that he believes that the measurement of the room should be taken from the drywall above the built-in closet to the edge of one of the mullions in the window. The Homeowner takes the position that measuring from the drywall above the closet effectively excludes the built-in closet as required by the OBC. The Homeowner also testified to his belief that the mullion establishes the borders of useable space in the room and is the appropriate surface to measure. One reason for this belief is the Homeowner’s interpretation of the OBC that the space under the mullion must be excluded in assessing the floor space. To support this opinion, the Homeowner relies on Article 9.5.3.1(1) and (2) of the OBC. These Articles are headed “Ceiling Heights of Rooms and Spaces” and the articles provide that, “Any part of the room having a clear height of less than 1400 mm (4ft 7 in) shall not be considered in computing the required floor area.”
The Homeowner introduced a letter from a principal of a firm called “Vojo MK”, which the Homeowner testified is a design service company. The author of the letter writes that the dimensions of the room should be measured from the drywall face, not the closet doors. The author also writes that the measurement should end either at the drywall above the window or at the face of the mullion. The author is of the view that because the floor under the lowest mullion has a height of less than 1400 mm, the floor area under the mullion must be excluded from the measurement. The author of the letter signs above the notation “ARIDO Educator-Registered, BCIN [number]”. The Homeowner testified that the “BCIN” number is the “Building Code Identification Number”, a registration number for people who have successfully completed the qualifications to interpret the OBC.
Both Tarion and Lifetime Residences dispute the credentials of the author. Mr. Michael Chymycz, the Tarion Warranty Services Representative, testified that his Google search had shown that BCIN numbers are assigned by the regulator before the examination has been taken and do not, in themselves, demonstrate that the author is qualified to interpret the OBC. The Homeowner offered no evidence about what the balance of the notation below the signature, that is “ARIDO Educator – Registered”, means. As noted above, the résumé of the author was not introduced nor did the author give evidence. Given this uncertainty about the qualifications of the author, the Tribunal can give little weight to her opinion.
The Homeowner also offered as evidence an email chain between himself and a local city official. In the most recent email in the chain, the city official appears to support the Homeowner’s position that the mullion is the finished surface which should anchor the measurement. Tarion and Lifetime Residences objected to the admission of this email chain on several grounds. They submitted that it could not be determined if the city official was aware that the email was going to be used in these proceedings. Nor, in their submission, was it clear that the city official understood that this was a closed permit. This is relevant, in their submission, because the local city had already inspected the size of the room and that fact might have affected the answer. During submissions on the admission of this evidence, the Homeowner acknowledged that he had deleted some emails in the chain because he judged they were “irrelevant”. It is the deletions of these emails which render the email chain as a whole of no utility in determining the matters before this Tribunal. The editing of the chain renders it impossible to assess the whole of the correspondence and to properly interpret the email on which the Homeowner wishes to rely. For this reason, the Tribunal did not admit this incomplete email chain.
Measured from drywall to mullion, the Homeowner testified that the room was between 8.61 square meters to 8.69 square meters. The room, in his testimony, is too small by between 0.2 and 0.3 square meters, or between 2.2 square feet and 3.2 square feet. Article 9.5.1.5 of the OBC provides that areas of a room may be less than the OBC requirement if “it can be shown that the rooms and spaces are adequate for their intended use, such as by the provision of built-in furniture to compensate for reduced sizes”. The Homeowner testified that although the room was only slightly smaller than required, the shortfall has created both hardships and safety risks for him. He says he has had to remove his bedroom door because it hit the end of his bed and could not be opened fully. As well, his testimony is that the size of the room creates a health and safety risk to him. He has a king-sized bed in the room, with a custom mattress frame designed to fit into the room. There is no other furniture in the room. The Homeowner says that the clearance on the window side of the bed is 15 to 18 inches or 38.1 to 45.7 centimetres. On the closet side of the bed, the clearance is about 20 inches or 50.8 centimetres. He testified that he suffers from diabetes and that, if he had a diabetic seizure during the night, his partner might have difficulty administering his medicine given the small size of the room. Further, it was his testimony that if there were a fire, he would have difficulty leaving the room given the small clearance areas between the bed and the walls.
The Homeowner acknowledged that Lifetime Residences has offered to move the wall and doors of his closet back so that the room will meet the OBC when measured from the drywall to the mullion. Lifetime Residences believes that moving this wall would cost approximately $600. The Homeowner rejects this offer because he feels that making his closet any smaller would make it useless as a closet. Lifetime Residences has also offered to change the bedroom door so that it swings out into the hallway. The Homeowner rejects this offer because he feels that having the bedroom door swing into the hall would pose a hazard to people in the hallway. The Homeowner wants one of two remedies. Either Lifetime Residences should move the wall containing the bulkhead and door back to meet the OBC requirements or Lifetime Residences should provide him with a new “designer standard” sliding door for his bedroom. Given that the bulkhead contains mechanical and electrical equipment and wiring, the Homeowner estimates that moving it would cost between $6,000 and $10,000. The designer door he suggests as an alternative would cost $2,000.
Lifetime Residences introduced several witnesses to speak to the dimensions of the room. Mr. Michael Pearl is a Vice President of Lifetime Residences responsible for overseeing construction. When the Homeowner first complained that his bedroom was too small, Mr. Pearl was very concerned that there might be a systemic problem which would affect not only the Homeowner’s condominium but also every unit in the stack above and below it. One possibility he considered was that the heat pump equipment had somehow been misaligned so that the bulkhead that covered it protruded into the room beyond the design specifications. He testified that he moved quickly to measure a comparable unit in the stack and found that room measured 96 square feet or 8.9 square meters.
Subsequently, Lifetime Residences measured the Homeowner’s bedroom and found it to be “in the 96 foot range”. Mr. Pearl testified that these measurements were taken from the doors of the closet to the glass surface of the window. In measuring from the sliding doors, both the prominent sliding door and the recessed sliding door were measured. Both the space between the mullion and the glass and the space between the floor runners of the closet and the recessed sliding door were included in the measurement.
Mr. Rudy Wallman, the architect for this building, testified. The Homeowner challenged his qualifications as an expert on the grounds that he lacked the necessary independence. He was not only the architect of this building, but Lifetime Residences was a client of his. Mr. Wallman testified that Lifetime Residences is not his only client. Further, he testified that as an architect who has practiced for 30 years and who heads a firm of 25 architects, he is qualified to speak as to industry standards in interpreting and applying the OBC. The Tribunal qualified Mr. Wallman as an architect with experience in applying the OBC. Concerning his independence, the Tribunal considers that a matter of weight in this case rather than as a matter of qualification. Mr. Wallman’s experience does equip him to address the standard measurement techniques used by architects in applying the OBC.
Mr. Wallman testified that it is industry practice to measure “to the interior faces of the wall”. In this case, there is a floor to ceiling window and the interior face is the glass of that window. He testified that where, as here, there are offset sliding doors to the closet, industry practice is to measure to the “prominent door where it exists and the recessed door where it exists”. Using these practices, a junior colleague of Mr. Wallman measured the room and found the floor area to be 8.86 square meters.
There was a dispute about what this junior colleague measured initially. The Homeowner testified that he saw the junior architect measure to the mullion, only to be told by a representative of Lifetime Residences to measure to the glass “just in case”. Mr. Wallman testified that the junior architect would not have measured to the mullion as that is not the industry practice. Two representatives of Lifetime Residences who were present at the time gave evidence. One testified that he did not hear the direction being given. The man who gave the direction, according to the Homeowner, denied doing so, saying that he would not have interfered with an architect doing her job. The Homeowner insisted that this discrepancy supported his position. The Tribunal concludes that nothing turns on how the junior architect may or may not have initially measured the room. What the Tribunal will consider is the correct or accepted method of measurement.
Concerning the question of whether the space beneath the mullion ought to be excluded from the measurement, Mr. Wallman testified that Article 9.5.3.1 deals with the measurement of heights of a room or space. In providing that areas having a height of less than 1400 mm, the OBC is referring to the measurement of height from floor to ceiling. By way of example, Mr. Wallman cited a bedroom with a sloping ceiling. When the ceiling slopes to the point that the clear height of the room is less than 1400 mm, the space under the slope is considered unusable from that point and is not considered part of the space of the room. The Tribunal accepts this interpretation and concludes that OBC Article 9.5.3.1 does not apply to the area beneath the mullion.
Tarion offered some hearsay testimony purportedly from a local city official that appeared to support Mr. Wallman’s opinion as to whether the appropriate surface was the window glass or the mullion. However, Tarion was unable to identify the person who expressed the opinion or to provide any evidence of that person’s expertise or any details of the conversation. The Tribunal gives no weight to this evidence.
The OBC is a codification of building standards. Certain provisions of the OBC are highly technical. In this case, the issue is not a technical matter. The dispute centres around the fact that the OBC is silent on details of how floor space measurements ought to be made. The OBC specifically excludes closet space as part of the measurement of floor area. It also specifies that the measurement should be taken between finished walls. Beyond that the OBC is silent. The difference in total floor space between the two methods of measurement used by the parties varies from 0.17 square metres to 0.25 square metres. The question for the Tribunal is which measurement technique is to be preferred.
The industry practices as detailed by Mr. Wallman appear to be self-serving to the construction industry. The average layman would not regard the area between a sliding door runner and the recessed closet door to be part of the floor area of his bedroom. Nor is it obvious that the area between a mullion and the glass of the window is useable space. However, despite the counter-intuitive result, the Tribunal concludes that it prefers the evidence of Mr. Wallman on the question of how to measure the room. Mr. Wallman was clear that the industry practices he testified to are used to design and build condominium units across the city where he practices. To call these practices into question would require more evidence than was before the Tribunal. The Homeowner has not offered a persuasive competing expert opinion on this matter. Both the Homeowner and Mr. Wallman have a stake in this dispute and these stakes do raise questions about their respective independence to give opinion evidence. Having said that, Mr. Wallman is a qualified architect and his testimony as to the industry practice about measuring floor area is to be preferred. The Homeowner has strong opinions but while he identified himself as an interior designer, he presented no qualifications or evidence of expertise in interpreting the OBC. The Tribunal concludes that the floor area of the Homeowner’s master bedroom meets the requirements of the OBC. Given this finding, it is unnecessary to consider the interpretation of Article 9.5.1.5. of the OBC which, as noted above, permits rooms to fall short of the required space if “it can be shown that the rooms and spaces are adequate for their intended use”.
Does the transition area between the hall and the bathroom breach a statutory warranty?
The Homeowner testified that in two areas of his home, Lifetime Residences agreed that there was a void or pocket under the laminate floor. Lifetime Residences repaired both these areas. The Homeowner believes there is a third, similar void or pocket under the laminate floor in the area around the entrance to the bathroom. The Homeowner also believes that the difference in height between the two floors is too great. He estimates that difference at six millimetres. Finally, he told Tarion that the transition strip that spans the two rooms and the two different flooring materials flexes when stepped on.
Mr. Chymycz testified that he inspected the hallway/bathroom transition. He referred to section 12.1 of the Tarion Construction Performance Guidelines (the “CPG”), a reference guide designed to assist builders and homeowners in determining which defects are covered by the Act. Section 12.1 of the CPG deals with transitions between different types of flooring. The CPG states that, “An abrupt change in height where different floor finishes abut is acceptable provided the transition is suitably eased.”
Mr. Chymycz measured the difference in height between the transition strip and the laminate flooring and found it to be less than two millimetres. He concluded that the height difference was too small to constitute a tripping hazard and that the transition strip was “suitably easing” the transition between the height of the two different types of flooring. He did detect a slight void under the laminate floor but he measured it at less than two millimetres and concluded that it was not noticeable or significant. Mr. Chymycz also stepped on the transition strip and on the floor around it and could not detect any flexing.
It should be noted that the CPG is a reference guide. It does not have the force of law and it is open to the parties to introduce evidence to challenge the guidelines.
The Homeowner offered no evidence beyond his testimony of any defect in the transition. The Tribunal concludes that the Homeowner has not demonstrated that the transition is too abrupt or that the transition strip is defective. The Tribunal accepts Mr. Chymycz’s testimony that the transition strip is successfully easing the difference in heights of the two flooring surfaces.
Both Tarion and Lifetime Residences offered testimony that the Homeowner repaired the transition strip and, in doing so, voided the warranty. The Homeowner adamantly denies repairing the transition and testified that a Lifetime Residences’ worker did the repair. In light of the Tribunal’s finding that there is no breach of warranty in the transition, it is not necessary to decide this point.
CONCLUSION
The Homeowner has not met his onus to prove that his master bedroom is too small or that the transition from his hallway to the bathroom is defective.
ORDER
Pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs Tarion to deny the Homeowner’s claims.
LICENCE APPEAL TRIBUNAL
Laurie Sanford, Vice-Chair
Released: October 18, 2016