Date: 2017-09-27

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

Between:

S.J.

Appellant

and

Tarion Warranty Corporation

Respondent

and

Remington Oakville Preserve Inc.

Added Party

DECISION AND ORDER

Panel: Mary Ann Spencer, Member

Appearances:

For the Appellant: Self-represented

For the Respondent: Ted Weredynski, Paralegal

For the Added Party: Carol Street, Counsel

Place and dates of hearing: Toronto, Ontario on August 15, 16, 23, & 25, 2017

REASONS FOR DECISION AND ORDER

Overview

1This is a hearing before the Licence Appeal Tribunal (the “Tribunal”) of an appeal by S.J. (the “appellant”) of a decision of Tarion Warranty Corporation (“Tarion”) under the Ontario New Home Warranties Plan Act (the “Act”). In its Decision Letter dated March 29, 2017, Tarion denied the appellant’s claims with respect to alleged defects in a new home he purchased from Remington Oakville Preserve Inc. (“Remington”).

2The appellant has appealed Tarion’s decision on 16 items which he submitted on his 30-Day claim form. During the hearing, he advised that he wished to withdraw his appeal of item # 125.

3For the reasons below, item # 69 is warranted. The appellant’s claims with respect to the other 14 items under appeal are denied.

PRELIMINARY MATTERS

4S.J. advised that he had photographs which he intended to rely upon during the hearing. These had not been disclosed to the other parties and both Mr. Weredynski and Ms. Street objected to their admission into evidence, advising that disclosure requirements had been discussed in detail at the case conference held in this matter. However, because the Tribunal’s May 29, 2017 Case Conference Order does not include any reference to disclosure, I admitted the photographs into evidence. S.J. later advised that he also had documents which he intended to rely upon. After providing Mr. Weredynski and Ms. Street the opportunity to review the documents, I admitted into evidence those which did not duplicate the submissions of the other parties.

ISSUES

5The issues to be determined in this appeal are:

(a) whether there has been a breach of warranty, and,

(b) whether the appellant has suffered damages as a result of the breach.

If it is established that there is a breach of warranty and that the appellant has suffered damages as a result of the breach, the Tribunal must determine the appropriate remedy.

LAW

6The warranties applicable to the appellant’s 30-Day claims are set out in section 13 of the Act:

s.13 (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.

(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.

7Regulation 892 sets out the warranties with respect to substitutions:

18.(1) Every vendor of a new home warrants to the owner that the vendor shall make no substitutions in those items of construction or finishing for which the purchaser is entitled to make selection pursuant to the purchase agreement without the written consent of the purchaser.

19. Every vendor of a new home warrants to the purchaser that, where the vendor makes a substitution with respect to an item that is referred to in the purchase agreement that is not an item that is to be selected by the purchaser, the item will be of equal or better quality than the item referred to in the purchase agreement.

8With respect to remedy of a breach of warranty, the Act states:

14. (3) Subject to the regulations, an owner of a home is entitled to receive payment out of the guarantee fund for damages resulting from a breach of warranty if,

(b) the person has a cause of action against the vendor or the builder, as the case may be, for damages resulting from the breach of warranty.

9Section 16 of the Act sets out the powers of the Tribunal with respect to a decision of Tarion:

16. (3) Where a person or owner gives notice in accordance with subsection (2), the Tribunal shall appoint a time for and hold the hearing and may by order direct the Corporation to take such action as the Tribunal considers the Corporation ought to take in accordance with this Act and the regulations, and for such purposes the Tribunal may substitute its opinion for that of the Corporation.

EVIDENCE and ANALYSIS

10The evidence of S.J. comprised documents, photographs taken on August 11, 2017, and his testimony. S. J. manages properties he owns for a living. He testified that he has no construction experience and does not have a working knowledge of the Ontario Building Code (the “OBC”).

11Senior Warranty Services Representative Roger Boyd testified on behalf of Tarion. Mr. Boyd has worked conducting warranty assessments for Tarion for twelve years and has prior home building experience.

12Heidi Scheibmayr and Scott Rowand testified on behalf of Remington. Ms. Scheibmayr is the Customer Relations Manager at Remington where she has worked for 23 years. Ms. Scheibmayr has training in Part 9 of the OBC. Mr. Rowand is Tarion’s Manager of Stakeholder Relations. Before joining Tarion, he was a building inspector with a large municipality. He described his primary role as providing education with respect to Tarion’s processes and the warranties contained in the Act.

13S.J. took possession of his end unit townhouse home on July 28, 2016. A Pre-Delivery Inspection (“PDI”) was conducted on July 26, 2016. S.J. testified that he does not reside in the home. He leases it to tenants who have occupied the home since early August, 2016.

14On August 29, 2016, S.J. filed the 30-Day Statutory Warranty Form with Tarion. A conciliation inspection with respect to 18 of the 142 items listed on the 30-Day form was conducted on March 7, 2017 by Roger Boyd in the presence of S.J. and Remington representatives Heidi Scheibmayr and Jean Docherty. Tarion issued its Warranty Assessment Report on March 16, 2017. Two of the 18 items were warranted. Item # 125, relating to downspout splash diverters, was not assessed and S.J. has withdrawn his appeal on this item. The remaining 15 items, all of which were assessed as not warranted, are under appeal.

15The onus is on S.J. to prove, on a balance of probabilities, that there has been a breach of warranty. In order for his claims to succeed, he must also prove that he has suffered damages as a result of the breach.

16A summary of the evidence and my analysis and decision is set out below using the claim number from Tarion’s March 29, 2017 decision letter. For the purpose of analysis, I have grouped related claims together.

Claim 17: Basement – Windows – all windows in basement dirty and not cleaned. Missing window screens and water leaking though them.

17S.J. testified that Remington has provided window screens and this is no longer an issue. However, the five basement windows are dirty and there is water leakage. He submitted photographs of three of the windows but indicated that his concern with one was only that it was dirty. Referring to photographs of the other two windows, both of which are in the finished recreation room of his home, he indicated that when it rains, water sits on the sill of one. Moisture builds up at the corners of the other.

18S.J. believes that water is accumulating in the exterior window wells and penetrating the windows. He highlighted a brownish discolouration in his photographs and in those taken by Mr. Boyd at the conciliation inspection and indicated that the discolouration is mildew. He also pointed out what he described as visible water on the windowsill in one of Mr. Boyd’s photographs. He expressed his concern that Mr. Boyd did not thoroughly assess the basement windows because he did not bring a ladder to the conciliation inspection. He requests that the outside drains and the basement windows be cleaned of dirt and mould to enable further inspection to determine if there is water penetration.

19Mr. Boyd testified that during the conciliation inspection, S.J. advised him that Remington had previously repaired one of the basement windows. When he asked S.J. if there was water penetration, S.J. stated that he did not know, a statement which S.J. denies making. Mr. Boyd assessed the windows by checking for moisture with his hand and by taking photographs which he later examined. He saw no evidence of water or of water staining. Therefore, he did not warrant the item. He suggested that S.J. continue to monitor Remington’s repair and advised that the Act provides a two year warranty with respect to water penetration.

20Ms. Scheibmayr testified that S.J. reported a broken window on his PDI. A piece of the exterior vinyl frame of one basement window was found to be missing and was repaired before the conciliation inspection. Remington also cleaned the inside windows and provided screens. She noted that there is ongoing construction in the area by other builders and suggested this is likely why the outside of the windows is dirty.

21Ms. Scheibmayr explained that on December 12, 2016, Jean Docherty, a Customer Service Manager who reports to Ms. Scheibmayr, wrote to S.J. noting that the basement window had been repaired to his satisfaction and that S.J. had initialed the item. In a January 20, 2017 e-mail to S.J., Ms. Docherty wrote that the builder had seen no signs of water leakage when the windows were cleaned. She advised S.J. or his tenant to notify Remington if any signs of water were seen. Ms. Scheibmayr testified that Remington did not receive any subsequent notification.

22On January 24, 2017, S.J. responded to Ms. Docherty stating that he “cannot determine if there is any possible leak” because the windows were still dirty. Ms. Docherty responded the same day to advise that on February 2, 2017, she would review the items for which a conciliation inspection had been requested. On February 7, 2017, Ms. Docherty again e-mailed S.J. and noted that no signs of water penetration had been observed during the February 2, 2017 review.

Analysis and Decision

23S.J. relies on photographs he took on August 11, 2017 to support his claim. While these photographs are somewhat indistinct, there is a small dark-coloured area visible in the bottom left corner of the frame of one of the two windows at issue. Tarion’s March 7, 2017 photographs of the same window more clearly show a brownish deposit in that area. Tarion’s photograph of the second window shows some small dark spots on the windowsill. While S.J. testified that the brown area was either mildew or mould caused by water, he provided no evidence in this regard. Similarly, he provided no evidence to support that the small dark spots were sitting water. Mr. Boyd’s evidence is that he tested the areas with his hand and found dirt.

24S.J.’s testimony at this hearing was not entirely credible. He was often somewhat evasive, repeatedly stating that he did not understand straightforward questions. His evidence was also not always consistent. For example, he testified that he could not know if there was water penetration through the basement windows because he does not live in the house, and, if the windows were cleaned he would be able to determine if there was water leakage. However, he also testified that water drips inside through one of the windows when it rains. I note that the evidence is that he wrote to Remington on January 24, 2017 stating he could not determine if there was water leakage because the windows were dirty.

25S.J. also indicated a number of times that he had documentary evidence which he then was not able to produce. For example, he testified that he reported water penetration through the basement windows on the PDI. However, the only item pertaining to the windows on the PDI is “basement window smashed/cracked” which Ms. Scheibmayr testified was actually a missing piece of the exterior window frame. S.J. testified that he did not accept that he might have initialled this item as having been addressed, as Ms. Docherty wrote in a December 12, 2016 e-mail in which she confirmed the status of his claims. However, he did not dispute that the repair had been made. When he was asked by Ms. Street to confirm that the initials “SJ” on Remington’s copy of the 30-Day Form were his, he stated that he could not because the initials could have been fabricated, the document was produced by Remington, and it was not notarized.

26For the reasons set out above, I prefer the evidence of Tarion and Remington. Mr. Boyd’s testimony is that he saw no evidence of water penetration. Ms. Scheibmayr testified that Remington personnel found no evidence of water damage either when the windows were cleaned or when they were inspected by Ms. Docherty on February 2, 2017. And, Remington received no report of any water leakage from either S.J. or his tenants after asking them for notification if it occurred. In the absence of any other evidence, I accept Mr. Boyd’s testimony that the discoloured areas in the photographs are dirt. The photographs do clearly indicate that the windows are dirty.

27S.J. led no evidence to prove there is water penetration through the basement windows. Dirt on windows does not fall within the scope of the warranty set out in s. 13(1)(a)(1) of the Act. Therefore, I find that claim # 17 is not warranted.

Claim 49: Floor 01 – Doors – Exterior entry double doors do not lock from floor and top. The hinges do not match the lock mechanism, they are not aligned.

28S.J. testified that the latch on the locking mechanism on one side of his entry double doors is damaged and appears to have been hammered. He suggested that one of Remington’s technicians damaged the latch during one of many repair attempts they made. The door does not lock easily and a hammer is needed to press down the bolt. A fork is needed to release the lock. He is requesting that the mechanism be replaced.

29S.J. initially testified that Mr. Boyd did not inspect the locking mechanism but on cross-examination indicated that he could not recall if either Mr. Boyd or a Remington representative did so. Asked about his January 24, 2017 e-mail to Remington in which he wrote “the doors don’t lock until you take a chisel or a hammer to lock it”, he denied that either he or his tenants had done so. He also denied that he told Ms. Docherty on February 2, 2107 that he needed to use a screwdriver and hammer to open the door.

30Mr. Boyd testified that he was able to engage the locking mechanism by hand during his conciliation inspection. Because there is no frame between the two doors, there is some play and the door must be slightly pushed to align the bolts to the bolt holes. He described the mechanism as being in good working order. Ms. Scheibmayr testified that after this item was first reported, Remington used silicone spray to loosen the mechanism, the only repair Remington has on record. Further, Ms. Docherty advised Ms. Scheibmayr that she was able to easily engage the mechanism with her fingers on February 2, 2017.

Analysis and Decision

31The locking mechanism at issue is used to secure one of the home’s two double entry doors. Two bolts, one at the top and one at the bottom, must be inserted into bolt holes in the door frame.

32I accept the evidence of Mr. Boyd and Ms. Scheibmayr that the mechanism is in proper working order and can be operated by hand without difficulty; Mr. Boyd and Ms. Docherty each tested the mechanism on different dates. With respect to damage to the latch, the photographs which S.J. relies upon are not clear. However, even if the latch is bent, there is no evidence that Remington is responsible for this damage. Notwithstanding S.J.’s testimony that Remington attempted to repair the mechanism many times, Ms. Scheibmayr’s evidence is that the item was addressed only once using silicone spray. S.J. testified that a fork is needed to engage the mechanism. And, the evidence is that he indicated, once in writing and once verbally to Ms. Docherty, that a hammer was needed to operate the mechanism. This persuades me that any cosmetic damage to the latch results from S.J. or his tenants using tools to force the bolt. There is no evidence of a defect in materials or workmanship and therefore I find that that claim # 49 is not warranted.

Claim 69: Floor 02 – Bathroom – Shower – Master bath shower is missing caulking around interior door frame and outer frame and 90 degree joints.

Claim 70: Floor 02 – Bathroom – Shower – Shower in master bath missing trim/tile at exterior edge of shower, shows drywall cuts and unfinished work.

33S.J. testified that there is damage to both sides of the drywall at the exterior sides of the shower threshold in his master bathroom. Referring to his photographs, he highlighted a gap in the caulking on the interior right side where the shower door surround and the raised threshold meet and stated that water travelling through this gap is the cause of the damage to the drywall. He also highlighted a small dark spot on the left side of the interior caulking which he stated could be a hole or could be mould. With respect to claim # 70, he indicated that there should be tile instead of drywall on the exterior wall below the threshold. And, the threshold should extend to align with the outer edge of the vertical surround on the exterior.

34S.J. stated that Remington has repaired the drywall four times and directed the Tribunal to an e-mail from Ms. Docherty dated February 7, 2017 in which she noted a small hole in the caulking, wrote “it would appear our previous repair has failed”, and offered to repair the caulking again. S.J.’s position is this is an admission that the hole is causing water to leak and damage the drywall.

35Mr. Boyd testified that the drywall at the exterior left side of the shower threshold was saturated at the time of his conciliation inspection and crumbled when he touched it. In his opinion, this damage is the result of water being allowed to accumulate on the threshold. Because the shower door swings outward, water is directed onto the threshold. And, there is a small gap between the shower door and frame at the hinge area and a further small gap in the sweeper installed on the bottom of the door. He did not observe the caulking gaps on the interior because S.J. directed him only to the drywall damage. Mr. Boyd stated that homeowners are responsible for cleaning up excess water. He did not warrant claims # 69 and # 70 on the basis that the damage results from improper maintenance.

36Mr. Boyd also noted that there is a fibrous strip attached to the threshold on the outer side of the shower door. Directed by Ms. Street to the shower door manufacturer’s installation instructions, he noted that this strip is not listed among the parts.

37Ms. Scheibmayr testified that Remington addressed S.J.’s original complaint with respect to claim # 69 and repaired the caulking. It also fixed the drywall once as a courtesy repair. She stated that the drywall damage could not be the result of water seeping through the small hole in the silicone caulking because water would have to rise up a number of inches to reach this area. There is a waterproof membrane installed up to the level of the threshold. Remington offered to repair the caulking again only as a courtesy after Ms. Docherty reviewed the conciliation items on February 2, 2017. S.J. acknowledged that Remington proposed multiple dates for the repair which he did not allow.

38With respect to claim # 70, Ms. Scheibmayr testified that the builder repaired the drywall/caulking portion of the item after it was initially reported. The shower is built to standard plan which does not include installing tile on the exterior wall below the threshold.

Analysis and Decision

39With respect to claim # 69, S.J. alleges that a caulking defect has resulted in damage to the drywall on the exterior sides of the shower stall in the master bathroom. He expressed concern that Mr. Boyd did not conduct a water test to determine the source of the exterior drywall damage. However, the onus is on the appellant to prove his case. In this regard, S.J. relied on his photographs of the shower interior as evidence of caulking deficiencies. He relied on Tarion’s March, 2017 photographs of the shower exterior because the drywall damage had been addressed by his tenants when his own photographs were taken in August, 2017.

40Based on the evidence of Ms. Docherty’s February 7, 2017 e-mail to S.J., I accept that there was a small hole in the silicone caulking which required repair when Ms. Docherty reviewed this item on site on February 2, 2017. Therefore I find that the caulking is a warranted item. However, I cannot conclude that this defect in the caulking has caused the drywall damage.

41S.J.’s August, 2017 photographs show a visible gap in the caulking on the interior right side of the shower stall where the door surround meets the threshold. Ms. Docherty’s e-mail did not specify the location of the hole she observed and I cannot determine that this gap is what she observed at her February, 2017 inspection. Even if this was the condition, to cause the drywall damage visible in Tarion’s photographs, water would have to travel the width of the threshold on a horizontal path to the exterior. However, the outer edge of the surround is flush with the threshold and I find it improbable that water would be able to enter the gap between them. I also note that Tarion’s photographs show exterior drywall damage on both sides of the shower but there is no conclusive evidence that there is a break in the caulking on the interior left side. S.J.’s testimony is that he does not know what a small dark spot on that side represents.

42I find it more probable that water is reaching the drywall after it accumulates on the threshold on the exterior side of the shower door. In Tarion’s photographs, the drywall damage is more severe on the exterior left wall. Because the shower door opens outward and is hinged on the front left side, any water on the threshold would be pushed towards the left wall. The evidence is also that there is a small gap where the door is hinged and that the sweep installed at the bottom of the door does not extend its full length. Both conditions create potential areas of water egress to the threshold. After Mr. Boyd testified, S.J. submitted that the gap in the sweep was a defect; however, a gap in the sweep does not form part of S.J.’s claim. Finally, there is a fibrous strip attached to the threshold which the evidence indicates is not part of the shower door assembly. It is unknown what effect this strip might have on water reaching the threshold.

43During cross-examination by Ms. Street, S.J. advised that he had just noticed a crack in a tile below the threshold on the interior of the shower stall which he suggested was another potential source of water leakage. He provided me with his copy of the photograph on which he had highlighted a clear dark vertical line. Because this line was not visible on the paper copy of the photograph entered as an exhibit, I asked to see the photograph he had printed on photography paper. No line was visible. S.J. offered no explanation for this discrepancy and I do not accept this photograph as evidence of a defect in the tile, which I note also did not form part of his claim.

44Section 14(3) of the Act entitles a homeowner to receive payment out of the guarantee fund for damages resulting from a breach of warranty. To succeed with his claim, S.J. must prove not only that there is a defect in the caulking but that the defect has resulted in damages. While I have found there is a defect in the materials and workmanship with respect to the caulking which represents a breach of warranty, S.J. provided no evidence that the drywall damage results from this defect. With respect to claim # 69, the only evidence of damage is the hole in the caulking itself. S.J. provided no estimate of the cost of this repair. I find that $75 would cover the cost of materials, labour and associated taxes to repair the hole in the caulking.

45Claim # 70 relates to missing tile and to drywall cuts on the exterior side of the master bath shower stall. S.J.’s testimony related to the drywall damage discussed above which does not form part of the claim. He did not speak to the drywall cuts mentioned in claim # 70 which Ms. Scheibmayr testified have been addressed. He also provided no evidence to indicate that Remington was required to install tile on the exterior wall below the threshold. Because there is no evidence of any defect in materials or workmanship, I find that claim # 70 is not warranted.

Claim 90: Stairs – Railing(s) – The posts on main stairs were ordered square, the posts are round, not square.

46S.J. testified that although he selected square post caps for the staircase of his home, round caps have been installed. He admitted that he has no documentation to support this claim but stated that both shapes were standard options and this is why the caps do not appear in Schedule Z to the Agreement of Purchase and Sale (“APS”) which sets out “Purchaser Extras” and their cost.

47Mr. Boyd testified that he did not warrant the post caps because he saw no defects in materials or workmanship. The substitution warranty did not apply because the APS does not indicate that square caps were to be provided. Ms. Scheibmayr confirmed that round post caps are standard and that square caps were only available as an upgrade. She noted that stain is the only upgrade relating to the stairs on the “Checklist for Upgrades” signed by S.J.

Decision

48S.J. did not allege that the installed post caps have any defect in materials or are not constructed in a workmanlike manner. His only issue is that they are not square. There is no evidence to support that he is entitled to square post caps. The type of cap to be supplied is not listed in Schedule A to the APS, which sets out what is included in the purchase price. Schedule Z to the APS indicates the only upgrade S.J. chose with respect to the stairs was that the handrail and pickets be stained to match the floors. Therefore, neither of the substitution warranties set out in sections 18 and 19 of Regulation 892 applies and I find claim # 90 to be not warranted.

Item 93: Interior – Builder stated in contract and description of home that it will build the home with “Quality 2’x6’ wood frame construction”, the house is build with 2’x4’ frame mixed with 2’x 6’ framing in basement.

Item 94: Interior - Builder stated in contract and description of home that it will build the home with “Quality 2’x6’ wood frame construction”, the house is build with 2’x4’ frame mixed with 2’x 6’ framing in first floor.

Item 95: Interior - Builder stated in contract and description of home that it will build the home with “Quality 2’x6’ wood frame construction”, the house is build with 2’x4’ frame mixed with 2’x 6’ framing in 2nd floor and roof, including attic rafters and frame.

49S.J. testified that both 2” x 4” and 2” x 6” framing were used in his home’s construction. His position is that all of the framing should be 2”x 6” as set out in Schedule A to the APS which, under the title “Quality Construction”, states “Quality 2’ by 6’ [sic] wood frame construction”. S.J. described this as one of the upgraded features included in the home’s base price which persuaded him to purchase from Remington.

50S.J. explained that on March 17, 2016, while the home was under construction, he sent an e-mail to Remington advising that he had observed that 2”x4” framing was being used in various areas of his home and asking what could be done to rectify the error. Remington’s response on March 24, 2016 was “2” x 6” wood framing construction refers to exterior framing as per industry standards.” S.J. testified that he does not know what the phrase “industry standards” means.

51S.J. referred to an e-mail dated February 3, 2017 from Scott Rowand to Ms. Scheibmayr which indicates “generally within the industry” a reference to 2” x 6” construction pertains to exterior walls and potentially to centralized load-bearing walls. He noted that the wording in Schedule A to the APS does not specify exterior framing. While he agrees that the Schedule does not include the word “all” in the description of the framing, he interprets the description to mean that all framing in the home should be 2” x 6”.

52S.J. testified that his house is built to OBC standards and he does not believe that its framing is defective. He agrees that the 2” x 4” construction of the interior walls of his home is in accordance with the permit drawings, a copy of which he obtained from the municipality. It is his position that he did not receive what he paid for. He testified that he compared the price of 2” x 4” and 2” x 6” lumber at a hardware store. The 2” x 6” cost $3.00 more. Therefore, he believes that 2”x 4” framing is not equivalent to the more expensive 2” x 6” framing. He is seeking reimbursement of $45,000, his estimate of the value of 2” x 6” materials he believes he paid for but did not receive.

53Mr. Boyd testified that he did not warrant this item because he found no defects in the framing which he was able to access during his inspection and because there is no violation of the OBC. In this regard, he contacted the municipality’s building department to confirm that there were no outstanding work orders with respect to the framing. He explained that industry standards are that 2” x 6” framing is used for exterior walls. Interior walls can be framed with 2” x 4”, 1”x 3” or metal studs. He noted that the use of 2” x 6” framing would decrease the size of interior rooms. With respect to the roof trusses, he testified, that, in his experience, 99% of builders purchase and install engineered trusses, as is the case with the appellant’s home.

54Mr. Rowand testified that 2” x 4” framing was a longstanding standard for all framing in the construction industry. However, as insulation requirements have increased, the industry standard has evolved to the use of 2” x 6” framing for exterior walls because its greater depth accommodates the installation of the required additional insulation. He also explained that 2” x 6” framing is not an OBC requirement; in summary, that requirement is that the framing must be able to carry the load. With respect to industry standards, he testified that 2” x 6” framing might be used on interior walls if they are load bearing or if more depth is needed to accommodate mechanical or plumbing runs. Roof trusses are generally engineered, meaning they are designed and built off site. These are generally 2” x 4” but could be 2” x 6”, if required by a larger span, for example a cathedral ceiling.

55It is Mr. Rowand’s opinion that the phrase “2”x6” Quality Construction” relates to exterior walls, consistent with industry standards. In this regard, he indicated that builders generally try to maximize the usable square footage of homes and explained that 2” x 6” interior framing would reduce square footage by 1 square foot for every linear 6 feet of wall.

56With respect to the statutory warranties in the Act, Mr. Rowand testified that 2” x 6” framing would have to be used if a builder had specified this in the APS. However, he noted that a builder has the right to make a substitution as long as the substitution is of equal or better quality. He further testified that there is no quality difference between 2” x 4” and 2”x 6” interior wall construction.

Analysis and Decision

57There is no dispute that the appellant’s home is constructed in accordance with OBC standards and S.J. is not alleging that the framing in his house is defective. Rather, he contends that the purchase price he paid for his home included a premium for 2” x 6” wood frame construction throughout his home. Therefore, the issue to be determined is whether or not there is a breach of the substitution warranty set out in section 19 of Regulation 892.

58Schedule A to the APS does not specify to what “Quality 2’ x 6’ [sic] wood frame construction” applies. The parties agree that S.J.’s home has been built in accordance with the plans submitted to the municipality, which S.J. acknowledged include 2” x 4” interior framing. I find it improbable that Remington marketed the home based on anything other than those plans. Mr. Boyd and Mr. Rowand, both of whom have significant experience in the construction industry, testified that industry standards with respect to 2” x 6” framing are that it is used for exterior and internal load bearing walls.

59All of the items listed in Schedule A to the APS are included in the home’s base purchase price. Their individual cost is not itemized. The only evidence S.J. led with respect to a premium he paid is his testimony that 2”x 6” lumber costs $3.00 more than 2” x 4” lumber at a hardware store. To estimate the premium he believes he paid for 2” x 6” framing, he used the plans to his home to estimate the number of studs used. However, I note this methodology assumes that the number of larger 2” x 6” studs that would have been used equals the number of 2” x 4” studs that were actually used. There is no evidence to support this assumption.

60Even if I found that S.J. was entitled to receive all 2” x 6” framing, the substitution warranty set out in s.19 of Regulation 892 would only apply if Remington had failed to provide an item of equal or better quality. S.J. described the 2” x 4” framing as “an inferior product which costs less.” However, a price difference for products of different size is not evidence of a quality difference. S.J. provided no independent evidence to indicate that the interior framing in his home is not meeting its intended function equally as well as it would have had it been of “2 x 6” construction. I accept Mr. Rowand’s testimony that there is no difference in quality between 2” x 4” and 2” x 6” interior wall construction. And I note that had 2” x 6” framing been used for interior walls, that the usable square footage of the home would have been decreased.

61The evidence does not support a finding that the reference to “Quality 2” x 6” wood frame construction” in Appendix A to the APS refers to all framing in S.J.’s home. There is no evidence that the base purchase price paid included any premium for wood frame construction that S.J. did not receive. There is also no evidence that the 2” x 4” materials used in the home’s construction are not of equal or better quality to 2” x 6” materials. The substitution warranty set out in s.19 of Regulation 892 has not been breached and therefore I find that claims # 93, # 94 and # 95 are not warranted.

Claim 101: All 4 sides of home is [sic] missing grading and Sod.

Claim 138: Lot/Property Yard – Yard – Front – Grading/Sodding – No grading installed or sod installed.

Claim 140: Lot/Property Yard – Yard – Back – Grading/Sodding – No grading installed or sod installed.

Claim 141: Lot/Property Yard – Yard – Side – Grading/Sodding – No grading installed or sod installed.

62S.J. testified that sod has been installed at his home. His concern is that an area approximately 1’ by 3’ in size has been damaged by what he described as vehicle tracks. He does not know when the damage occurred or who is responsible for it. It is his position the sod was laid on soft soil and therefore he asks that the area be repaired. S.J. did not speak to any other grading issues.

63Mr. Boyd testified that grading is a municipal responsibility. Tarion only inspects grading if there is an issue relating to the OBC. For example, it would inspect the area immediately around a home’s foundation to ensure there was proper drainage.

64Analysis and Decision

65S.J.’s claims that sodding and grading were missing have been addressed. His concern is that an area was subsequently damaged. However, he provided no evidence to support either that Remington is responsible for the damaged area of sod or that the damage occurred because the soil is soft. The warranties set out in the Act do not cover grading, which is the responsibility of the municipality. Therefore, I find that claims #101, # 138, # 140 and # 141 are not warranted.

Claim 104: Missing privacy fence, contract states builder will provide fence for corner for privacy in rear yard.

66S.J. testified that Remington committed to provide a privacy fence for his end unit townhome. He is asking that the fence be installed. To support his claim, he referred to Appendix X to the APS which states that acceptance of siting and grading by the municipality constitutes acceptance by the purchaser. He then indicated that he had documentation from the municipality which proved he was entitled to a fence. After reviewing the previously undisclosed document, Ms. Street and Mr. Weredynski both objected to its admission because it was a generic document that was not relevant to S.J.’s home. S.J. confirmed that the document did not reference either his subdivision or his address. Therefore I did not admit it into evidence.

67Ms. Scheibmayr testified that there is no reference to the provision of a privacy fence in Schedule A to the APS and there is no requirement to provide one in S.J.’s subdivision’s agreement.

Analysis and Decision

68I find claim # 104 to be not warranted. There is no evidence that the appellant is entitled to receive a fence.

Claim 107: Rear hose bib for water is loose and it needs to be tight, potential risk of damaging hose.

69S.J. testified that the hose bib at the rear of his home is loose. Remington repaired the item but the repair was inadequate. He fears that over time the condition will worsen, the pipe could freeze, and he will be responsible for the resulting damage. He indicated that the technician who repaired it advised him “it could rupture”. He also stated that Mr. Boyd did not test the item.

70Mr. Boyd testified that he checked the pipe by shaking it during his conciliation inspection Ms. Scheibmayr confirmed she witnessed Mr. Boyd’s test. Mr. Boyd indicated that the hose bib had been repaired at the wall with putty and was secure with no evidence of damage. He explained that because the putty is a flexible material, there was some slight movement in the water pipe.

Analysis and Decision

71S.J. provided no evidence to support his claim that there is a defect in the hose bib/pipe. His concern that the pipe may freeze and cause damage in the future is speculative. The evidence is that the slight movement in the pipe is due to the nature of the material used in the repair. There is no evidence of a defect in materials or workmanship. Therefore I find that claim # 107 is not warranted.

Claim 135: Garage – Wall – Paint/primer missing on cinderblock wall of garage interior. Paint/primer also missing in 2 drywall sides of interior of garage.

72S.J. requests that the interior of his garage be primed and painted. He explained that while two of the garage walls and the area above the garage door have been drywalled and taped, neither these areas nor the fourth cinderblock wall have been primed or painted. He acknowledged that he has no documentation to support this work should be done.

73Both Mr. Boyd and Ms. Scheibmayr testified that there is no indication in the APS that the concrete block wall is to be finished. Both also explained that the OBC requires that garage spaces which are adjacent to living spaces must be gas-proofed by drywalling and applying one coat of mud. Painting is not required. Ms. Scheibmayr explained that the concrete block wall in S.J.’s garage is the party wall to the garage of the adjacent townhouse and therefore did not require gas-proofing.

Analysis and Decision

74There is no evidence to support a finding that the appellant’s garage was to be primed and painted and no evidence of a defect in workmanship or materials. Therefore, I find claim # 135 is not warranted.

CONCLUSION

75The appellant submitted no independent evidence to support his claims during this hearing. He called no witnesses, including the tenants who reside in the home and might have more direct knowledge of items such as water leakage in the basement windows or the master bath shower. He relied on photographs taken over a year after the date of possession and on his own testimony, which, as noted above, was often evasive or inconsistent and therefore not entirely credible.

76The warranties set out in the Act are provided by the builder which is obligated to respond to claims submitted by the homeowners. If a builder does not respond, a homeowner may request a conciliation from Tarion. In this case, I note that after S.J. requested a conciliation inspection, Remington conducted its own review on February 2, 2017 and then offered to make further repairs, which Ms. Scheibmayr described as a courtesy, to items # 69 and # 107. E-mails setting out these offers were sent on February 7, 9, 13 and 14, 2017. While Remington was not prepared to address all of the appellant’s claims, it is unfortunate that he rejected their offer.

77With the exception of claim # 69, I have found no breach of warranty in any of the appellant’s claims and therefore they must be denied. With respect to claim # 69, I have found that there is a defect in the caulking and therefore a breach of the warranty set out in s.13(1)(a)(i) of the Act. However, in the absence of any proof of damages resulting from the caulking defect, I have also found that the only compensation the appellant is entitled to receive from the guarantee fund is $75 to repair the caulking itself.

ORDER

78Pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs Tarion to pay the appellant $75 (which includes HST) with respect to the repair of warranted claim # 69. All other claims in this appeal are denied.