Licence Appeal Tribunal

Safety, Licensing Appeals and Standards Tribunals Ontario

Tribunal d’appel en matière de permis Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Date: 2017-11-27

An Appeal of a Decision of Tarion Warranty Corporation under the Ontario New Home Warranties Plan Act to Disallow a Claim

E.C. and H.S. Appellants

-and-

Tarion Warranty Corporation Respondent

-and-

206 Bloor Street West Limited Added Party

REASONS FOR DECISION AND ORDER

ADJUDICATORS: Patricia McQuaid, Vice-Chair Barbara Hicks, Member

APPEARANCES:

For the Appellants: Self-represented

For the Respondent: Zahir Ali, Counsel

For the Added Party: Rachel Pilc, Counsel

Heard in Toronto: March 1, 2 and 3, 2017 May 29 and 30, 2017

DECISION AND ORDER

OVERVIEW

1The appellants have appealed a decision of Tarion Warranty Corporation (“Tarion”) issued on May 27, 2016 denying the claim for warranty as set out in the appellants’ Year End Form. The added party (“206”) is the vendor/builder of the appellants’ home (a condominium unit) and may be liable to either effect repairs or to reimburse Tarion for the cost of repairs in the event that the claims are found to be warranted.

2There were six items on the Year End Form. The second item which related to the kitchen hood fan was resolved prior to the hearing. At the outset of the hearing on March 1, 2017, the added party stated that it would do the repairs for items #3 (the bathroom fan), #5 (the fridge door handle) and #6 (the toilet door lock).

3The items remaining were #1 - the wood flooring issues, and #4 - marble and granite “cracked in bathroom hallway and countertop”. The issues for determination by the Tribunal are whether either or both of these items are warranted under the Act, and if so, what is the appropriate remedy.

PRELIMINARY MATTERS

4On February 15, 2017, 206 requested an adjournment of the hearing, which was consented to by Tarion, but opposed by the appellants. The adjournment was denied by the Tribunal. 206’s concern was that its hardwood flooring expert was not available on the scheduled hearing days.

5Both the appellants and 206 filed expert reports for the hearing related to the flooring issue. When 206 renewed its request at the commencement of the hearing on March 1st, the appellants advised that they would not be calling their expert to testify because of the cost associated with doing so. The Tribunal again denied the adjournment, stating that the hearing would proceed without the oral testimony of the experts; their respective reports would be admitted into evidence, although the Tribunal explained that the expert reports would be given less weight than if the expert testified at the hearing. The Tribunal explained to the appellants that they have the burden of proving a breach of their warranty on a balance of probabilities at the hearing, and that expert evidence may assist in this regard, which they stated they understood, but nevertheless wished to proceed to the hearing without having their expert present.

6The hearing was originally scheduled for three days (March 1-3, 2017), but was not completed on March 3rd. 206’s Counsel advised at that time that she would likely call their expert witness, Drew Kern, if he was available, at the resumption of the hearing. The appellants were made aware of this possibility and were told that even though their evidence had been completed, the Tribunal would consider a request by them to call their expert when the hearing continued. The appellants repeated that they did not anticipate that they would call their expert.

7Prior to the first day of hearing, the appellants requested a French language interpreter for the female appellant (referred to as “H.S.”). The interpreter attended at the hearing on March 1-3, 2017. On March 3rd, the appellants indicated they might retain a Mandarin speaking interpreter for the assistance of the male appellant (referred to as “E.C.”) for the balance of the hearing. At the resumption of the hearing on May 29, 2017, H.S. did not attend. E.C. did not retain an interpreter to assist him as had been discussed at the conclusion of the hearing days in March and stated that he wished to proceed without the assistance of an interpreter.

8Further, E.C. confirmed at the outset of the first hearing day in May that he would not be calling his expert to give evidence.

9By the end of the day on May 30, 2017, all of the evidence was heard. Given the length of the hearing, the parties stated that their preference was that closing submissions be provided to the Tribunal in writing rather than presented orally as that would necessitate another hearing date. The last of the written submissions were received on July 14, 2017.

RESULT

10This is a case in which credibility of the parties became a significant issue at the hearing. The Tribunal is tasked with hearing the parties’ evidence and assessing credibility, all the while mindful of the burden of proof: the appellants must prove that an item in dispute falls within the warranty protections of the Act and that damages result from that breach of warranty.

11It became apparent at the hearing that there may have been challenges for 206 in dealing with the appellants. E.C. took the lead in discussions with representatives of 206 throughout, yet he is often away from Toronto. English is not the first language of either of the appellants and it seems that this gave rise to some communication barriers. For example, as became clear in the evidence, E.C. frequently took a literal interpretation of the exchanges, oral and written between himself and the 206 representative.

12However, the Tribunal is mindful that the Act is consumer protection legislation. It is within this context that the evidence must be considered. After considering the evidence and submissions from the parties, we find in favour of the appellants on the issue of the hardwood floors and we confirm Tarion’s decision with respect to the marble, for the reasons that follow.

THE LAW

13The relevant sections of the Ontario New Home Warranties Plan Act are sections 13 and 15, which state as follows:

Warranties

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. R.S.O. 1990, c. O.31, s. 13 (1).

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. R.S.O. 1990, c. O.31, s. 13 (2).

Condominiums

15 For the purposes of sections 13 and 14,

(a) a condominium corporation shall be deemed to be the owner of the common elements of the corporation;

(b) subject to clauses (c) and (d), if dwelling units are included in the property of a condominium corporation, the warranties on the common elements of the corporation take effect on the date of the registration of the declaration and description;

EVIDENCE

14The timeline of events and the appellants’ complaints will be set out in some detail because of their relevance to our findings.

15The appellants purchased the condominium unit in April 2014. They described it as a luxury condominium and a perfect location for their family. As H.S. stated in her testimony - they love their home. A pre-delivery inspection (“PDI”) was completed in May, 2014. They took possession on June 17, 2014.

16On the PDI form, at item #1, it states: “finish wood floor throughout, fix scratches and gouges.” A 30 day form was completed on July 6, 2014. Again item #1 referred to the floor: “wood floor, fix scratches, rough and glue”. There was no reference to cracked marble in the bathroom in either the PDI or 30 Day forms. The 30 day form refers to marble in the foyer having “scratches and gouges”.

17Mr. Ozzie Rodrigues, the construction manager and representative of 206, testified regarding the work that was done on the floors of the unit before and after the appellants moved in. He explained that the floors in the unit were finished at the time of construction in 2012. The unit was unoccupied before the appellants purchased it, but had been through two heating cycles which resulted in some normal shrinkage of the wood. Some filler was required to fill some gaps before the floors could then be buffed and two coats of polyurethane applied. He also noted a gouge in the floor in the living/dining room which was caused when the dining table, which had been in the unit for staging purposes, was moved. This work was done on May 28 and 29, 2014. Mr. Rodrigues was present on the morning this work started, to review the scope of work with Rosewood Flooring who was doing the work, but then left after 10 -15 minutes. After this work was done, Mr. Rodrigues testified that the floors were covered by paper to protect them while work by other trades was being done in the unit. When the paper was subsequently removed, they noted that there were multiple areas where the polyurethane finish that had been recently applied came off when the tape was removed. In another area, the finish was affected where a chemical cleaning solution was accidentally spilled on it by the cleaning crew, damaging it. As a result, 206 stated that they would sand the floor smooth and apply two coats of polyurethane to the affected areas, to match the existing flooring.

18The appellants were leaving the country for a holiday from July 17th to the beginning of September. It was their understanding that all outstanding repair issues would be taken care of while they were away. When he was asked on cross examination to describe what “gouges” meant in reference to the wood flooring issue identified in the forms, E.C. stated that the floor was “rough”, there were gaps between the wood boards and the glue was visible between the gaps. A representative of the property manager confirmed with E.C. that concierge staff would be able to enter the suite once a week during the family’s absence to do a ‘quick visual check’ of the premises.

19When the family returned from holiday, E.C. testified that he completed a ‘warranty service request’ (“WSR”) dated September 4, 2014 on which he noted: ‘wood floor not repair yet’ and ‘marble are cracked on the floor, counter and bath in the master bathroom. Also some cracked in the hallway.’ E.C. stated that this was submitted to the property manager, Yorkville Corporation (“Yorkville”). The forms are available from the concierge for the building. 206 disputes whether this form was ever submitted because it does not bear a WSR number in the top right hand corner. However, there is no dispute that the request form is on the letterhead for the building, and, but for lacking the number, is similar to a later form which E.C. submitted in April 2015 and for which 206 acknowledges receipt.

20The appellants, from the time they purchased the unit, appear to have had a very positive relationship with Caitlin Moon, a representative of Yorkville. Most of their communication was with her. For example, on August 21, 2014, after explaining that the carpentry and plumbing companies had not completed the work inside their unit yet, and due to the time it was taking for repair, Ms Moon stated that the company would offer them dinner at a local restaurant. On September 8, E.C. sent an email to Ms Moon stating that the “wood floor never repair.” On September 22, Ms Moon responded that “Ozzie has requested to have a floor guy come by to have a look.” On October 6th, E.C. asked Ms Moon “When the floor and window worker start work”. On October 27th, E.C. again wrote to Ms Moon asking: “Will you repair the floor and the window?” Ms Moon responded to this last email saying: “…the floor repair will have to wait until the humidity goes down in the wood- so probably the spring.”

21Though Ms Moon seemed to have been the person who had the most contact with E.C. and H.S., she was not called as a witness by either the appellants or by 206. Mr. Rodrigues did state that she still works for Yorkville.

22In an email dated October 30, 2014, E.C. stated that he would not accept a delay in repair to the floor until spring. He reiterated that the problem “already exist since closing day” and that he would be reporting the matter to Tarion if action on the repair was not taken by November 6. He attached some photos of the floor and stated that: “It is very ugly and scared [sic]the feet from time to time.” Ms Moon responded the same day, stating: “I know it was on your pdi. My boss is looking into what can be done…. ”

23Prior to this email exchange, Rosewood Flooring attended at the unit on October 15, 2014 and found that the relative humidity levels were too high as was the moisture content in the floor itself. These measurements by Rosewood Flooring led to the following mail to E.C. on or about November 11, 2014 from David Hart, the project manager for Yorkville (since deceased):

Regarding your hardwood flooring, I am advised that the PDI deficiencies were corrected when the final finishing coat was applied later that week and protection reinstalled on the floor for your painter. When that protection was subsequently removed we noticed some blistering of the urethane. This was repaired while you were in China. The current problem appears to be that the filler has pushed up out of the joints. This is due to excessive moisture in your unit and the hardwood itself. Recent measurements taken by our Flooring Contractor showed the moisture level in your flooring to be between 12.3 and 13.5 %, whereas it should be maintained at 7.9%. Also, the relative humidity within your unit was measured at between 60.1 and 63.3%. This is really excessive. At this time of year it should be about 35-40%. Room temperature was about 22.4 C which is reasonable. Our Flooring Contractor has advised that it would be pointless to attempt any floor repairs until the moisture content in the wood is below 9%. In order to do this the relative humidity within the unit needs to be reduced and could take 6 months to achieve in the hardwood flooring. Typical causes of excess humidity are not using exhaust fans when cooking and bathing and improper use of the humidifiers incorporated into each heat pump…With your agreement, we will monitor the wood moisture content to see if it is being reduced and determine when repairs can take place.

24With respect to the temperature and humidity settings, it was E.C.’s evidence that at the pre-delivery inspection that took place on May 27, 2014, “Steve”, a representative of the design company used by Yorkville, showed him the dials to set the temperature and humidity levels, and in fact set the controls for him. E.C. testified that he was told that the controls only need to be adjusted one or two times a year and that he did not touch it until another representative attended to change the setting. The Tribunal found E.C.’s testimony on this issue to be consistent with his actions and very credible. When they left for China in July, the air conditioning was on.

25As noted above, a representative of Yorkville confirmed with E.C. at the time of the appellants’ departure that concierge staff will be able to enter their suite once per week during their absence to do a quick visual check of the premises. Mr. Rodrigues testified that he entered the suite on July 21, 2014. He stated that the temperature in the unit was 24 C., warmer than in other areas of the building. He described it as extremely hot and uncomfortable. The air conditioning system was off and the humidifier level was on a high setting. The work in the unit on that date took a couple of hours. He did not touch any of the settings – temperature, a/c or humidifier – because he stated that company policy did not allow him to do so. Mr. Rodrigues testified that he told Mr. Hart about his observations in the suite. However, there is no evidence that any representative of 206 or concierge staff took any action in response, though they were aware that the appellants would be away for the balance of the summer. At the very least, either the concierge or someone from 206 should have informed E.C. about the problem via email and obtained his permission to adjust the settings.

26In response to Mr. Hart’s email referred to above, E.C. reiterated in an email that the problem with the floor was present from day one.

27Subsequent to November 2014, 206 retained the services of Drew Kern (Infinity Claims Management Solutions) a certified wood floor inspector and hard surface specialist to investigate the issue with the appellants’ wood floor and to prepare a report. Mr. Kern testified at the hearing and his evidence will be reviewed in greater detail below; however, based on his report, 206 and Tarion concluded that the flooring issues were not builder deficiencies and, as stated by Mr. Hart in an email dated February 17, 2015, ‘if the decision is made by 206 Bloor to carry out further repairs, after the moisture content is normalized, it would be a goodwill gesture.” Mr. Rodrigues stated in his testimony that he did not agree that any such repairs should be made.

28Tarion, in its written submissions, took the position that the appellants consistently rejected all offers by 206 to monitor and attempt repairs on the floor. There is little evidence of such offers, but in any event, the evidence does not suggest that there was a refusal or rejection. E.C.’s evidence at the hearing was simply that he did not want to wait months (until the spring of 2015) for a repair because their feet were being scratched every day due to the floor.

29The appellants continued to email Ms Moon subsequent to Mr. Hart’s email referred to above. Those emails illustrate the appellants’ continued desire to have 206 do the repairs rather than a rejection of any offer to repair. What was consistent was E.C.’s continual emails asking for repair. In a lengthy email to Mr. Hart and Ms Moon on February 24, 2015, he asked if the company would do the repairs, and if so, when and how. In early March, and then in April, he again emailed Ms Moon asking for a reply about the wood repair. E.C. apparently continued to believe, perhaps because of his own misunderstanding, that the floors might be repaired, or perhaps because the added party did not clearly state, without qualification, that it would not be undertaking the repair. Given the number of emails, it cannot be found, as suggested by Tarion in submissions that 206 did not know the nature of the appellants’ complaint or that they had changed, in any significant way, the nature of their complaint regarding the flooring.

30As noted above, the 30 day form was filed with Tarion on July 6, 2014. In an email dated February 24, 2015, from E.C. to Mr. Hart and Ms Moon, E.C. stated that he had been asked by Mr. Rodrigues to cancel the Tarion inspection (with respect to the 30 day form) in the second week of January, 2015. In that email, E.C. stated that Mr. Rodrigues told him that the “company will send the floor guy inspect again and start the repair soon. Otherwise I will not cancel the inspection from Tarion.” E.C. took issue then, as he did at the hearing, with Mr. Kern’s report. He went on to ask, in that email, for a reply to his question: “will your company do the floor repair? If YES, when and how? If NO, please send a letter to accept the rescheduled inspection from Tarion…Or I will put in the YEAR END FORM then do the inspection.”

31The Tarion inspection E.C. referred to was cancelled. In his testimony, Michael Chymycz, the Tarion Warranty Service Representative, stated that the inspection was scheduled for January 16, 2015. It was cancelled by the appellants on January 12, 2015. As a result, Tarion considered any concerns about items on the 30 day form closed and withdrawn.

32In his testimony, Mr. Rodrigues stated that he was quite surprised that the inspection was cancelled by E.C. He testified that he spoke to E.C. a few days before the scheduled inspection and said that it might be in everyone’s best interest to postpone the conciliation inspection because Mr. Kern was preparing a report which they would have to consider. He testified that he did not, however, advise E.C. to cancel the inspection. It appears that neither he nor Ms Moon followed up with E.C. to ask why he cancelled the conciliation inspection or whether his intention was to cancel or to defer it. In the context of this evidence, the Tribunal cannot agree with Tarion’s submission that the appellants ’chose’ to cancel the inspection. Rather, this is more likely another instance where the appellants’ challenges, orally and in writing, with English, lead to further miscommunication. It is also likely that the appellants may not have realized the consequences of cancelling the inspection within the context of the warranty program.

33Subsequent to January, E.C. continued to make inquiries about the floor repair in emails to Ms Moon. On April 9, 2015, E.C. submitted another WSR, and the first item listed was “wood floor, fix scratches, rough and glue.” 206 did not act on this and the Year End form was submitted to Tarion on May 12, 2015. Mr. Chymycz carried out a conciliation inspection on November 12, 2015 at which time he assessed the floors as not warranted.

Credibility Issues

34Before reviewing the expert evidence on the floor and marble claims, we will address specific issues raised by Tarion and 206, both in their evidence and submissions, as these impact our assessment of credibility and, as a consequence, our findings.

35The first such issue is the “Warranty Service Request” form. 206 denies receiving the form dated September 4, 2014 which stated “Many items still not done from the PDI and 30 day form” – “The wood floor not repair yet” – “The marbles are cracked on floor, counter and bath in the master bathroom. Also some cracked in the hallway”. Mr. Rodrigues stated he first saw the form when he reviewed the Tarion book of documents and that every WSR form was hand numbered by Mr. Hart to prevent anyone from falsely submitting a form. Forms were available from the concierge desk.

36In submissions, 206 pointed out that this form appears to have all items signed off by E.C. as ‘cleared’ on the same day as the date on the WSR itself, inferring that it could not, in fact, have been submitted. Yet this manner of completion by E.C. was consistent with the April 9, 2015 WSR form submitted and is very consistent with a lack of understanding as to how to properly complete forms. Given his ongoing complaints to Ms Moon, it is unreasonable to suggest that he would ever note the issues as “cleared”. The more reasonable conclusion, in light of the evidence, is that E.C. was confused about how the form was to be completed, consistent with his communication challenges.

37We have cause to question Mr. Rodrigues’ neutrality in recounting events, highlighted by his evidence regarding denial of the added party’s receipt of the September WSR form and his evidence about the appellant H.S.’s English speaking skills. Regarding the WSR form, the first item listed referred to the PDI and the 30 day forms as well as the wood floor repair. Emails with Ms Moon in the days that followed referred to those issues, with Ms Moon scheduling a “walk through” with Mr. Rodrigues and the appellants to go over the 30 day list. In his testimony, Bob Bortolotti, 206’s expert on the marble issues, stated that he was aware that there were two WSR forms from the appellants, dated September 4, 2014 and April 9, 2015, however, he was told by Mr. Rodrigues that the September 4th form was without a number and could not be relied upon.

38Regarding H.S.’s communication, Mr. Rodrigues stated in his evidence that H.S. spoke at their meetings in September 2014, that their interaction was always in English, and that her English was perhaps better than E.C.’s. H.S.’s evidence was that she would say hello and little more. Her first language is Cantonese and her second is French. Mr. Kern’s evidence on this point is that he could not understand H.S. without help. She needed an interpreter to clarify questions, in which case E.C. assisted. In weighing the evidence, the Tribunal prefers the evidence of Mr. Kern, which is in stark contrast to Mr. Rodrigues regarding H.S.’s facility with English.

ISSUES

39We will now deal with the two issues, in turn: first the hardwood floor and then the marble. To reiterate, the issue for determination is whether, having regard to each of the claims made by the appellants, there has been a breach of the statutory warranty under section 13 of the Act and if so, what are the damages and appropriate remedy.

Item 1 on the Year End form: Wood floor. Fix scratches and glue

40At the core of this appeal is the appellants’ assertions that from the beginning, as documented in July 2014, the floor was rough and caused scratches when they walked on it. 206 states that the floor was flat in June 2014 and without issue. Mr. Rodrigues reported to Mr. Kern that he was notified in mid-September 2014 that there was an issue with the floor in that the finish felt rough when walked on. This despite the 30 day form and notably, after the contentious September 4, 2014 WSR.

41206 and Tarion contend that any issue with the floor is the result of the appellants’ lack of maintenance and point, in particular, to high relative humidity during the summer months.

42Mr. Kern prepared a report on this issue. The appellants also retained an expert, John Kirec, but as noted above chose not to call him as a witness at the hearing. They also retained Holley Home Inspections. Mr. Holley was also not called as a witness. Counsel for Tarion acknowledged that Mr. Kirec, like Mr. Kern, has expertise in hardwood flooring issues. However, he was not present to be cross examined about his report. In light of this, counsel for Tarion and 206 submit that his report not be given any weight. Because of his unavailability for cross examination, the Tribunal has given Mr. Kirec’s report little weight. Regarding Mr. Holley, there was no evidence before the Tribunal regarding his qualifications or specialized knowledge and expertise on flooring or marble issues about which he gave an opinion. As a result, the Tribunal also gives his report little weight.

43This leaves us to assess, in addition to the evidence of the appellants and Mr. Rodrigues, the evidence of Mr. Chymycz and Mr. Kern. Mr. Chymycz relied extensively on reporting from Mr. Rodrigues which raises some concerns given the Tribunal’s assessment of Mr. Rodrigues’ evidence. He also found Mr. Kern’s conclusions to be persuasive. Mr. Chymycz stated that he observed ‘cupping’ (which was not a term ever used by the appellants) and a glue-like substance at the edge/seams of the hardwood flooring in numerous locations throughout the suite. But he concluded that there was no installation or manufacturing defect.

44Regarding Mr. Kern, the appellants took issue, as noted, with his fact finding and reporting of conversations and there may be some merit to their concerns. However, the Tribunal found Mr. Kern to be straightforward, fair and balanced in his testimony. He was tendered to the Tribunal, and accepted by it, as an expert in the installation, maintenance, inspection, sanding and finishing, and sale of hardwood flooring.

45Mr. Kern did accept the report from Mr. Rodrigues and Rosewood Flooring that the floors were flat and in good condition in July 2014 and Mr. Rodrigues’ statement that he was notified in September 2014 that there was an issue with the floor in that the finish felt rough when walked on. He also accepted Mr. Rodrigues’ observation that it was hot and humid in the unit in July and concluded that the floor was subjected to high humidity levels in July and August 2014. He reviewed the moisture readings taken by Rosewood Flooring in October 2014 and agreed they were high.

46When he attended at the unit, he observed areas on the floor where raised edges could be seen between the board edges. The temperature and moisture readings were within an acceptable range when he was at the appellants’ unit. The floors were observed to have a cupped appearance when looking across the boards. In his testimony, Mr. Kern described cupping as occurring when the edges of the floor boards are higher than the centre, which usually occurs when there is an imbalance in moisture levels. Wood is a hydroscopic material so will take on ambient moisture and expand its dimensions when moisture levels are high for example. This expansion can cause filler and finish to be pushed up between the boards. He observed a raised edge between some of the board seams. These raised edges were comprised of finish deposits and a substance that was consistent with that of a wood filler, which in some spots was cracked and separated. The Tribunal notes that these observations are in turn consistent with the description of some of the work undertaken by Rosewood Flooring in May and July 2014.

47Mr. Kern testified that floors are designed to go through seasonal ranges in temperature. Changing temperatures can affect the relative humidity levels. He stated that it can take several days or weeks for the flooring to absorb moisture with adverse effect. In his evidence, he stated that based on the timeline made known to him, his observations were consistent with the floor being exposed to high moisture conditions during the summer months, which, he noted, is the traditional time of higher humidity levels. Mr. Kern concluded that it was most likely that the problems with the appellants’ floor occurred after it was sanded and finished by Rosewood. When asked how he would define the term “rough”, which has been used by the appellants, he stated, not smooth, with higher and lower levels between the boards.

48The reasonable conclusion drawn from this can only be that the conditions which Mr. Kern observed and on whose expertise Tarion and 206 rely, is that the conditions giving rise to the issues with the floor occurred during the summer when the appellants were away and 206 was present and/or Yorkville was checking on the unit. This was not a time when the appellants had possession, care and control of the unit in any real sense. As noted by Tarion in submissions, concierge staff entered the unit once a week when the appellants were away. To assert, as Tarion has done, that this is a homeowner maintenance issue in light of all of the evidence is disingenuous.

49The Act is consumer protection legislation. This is not a situation such as that in 5485 v. Tarion Warranty Corporation 2013 CanLII 29850(ON LAT) where the homeowners failed to take proper action to control the humidity in their home after installation by the builder. The builder, in this instance, 206, had control of the home through the summer months when the appellants were absent. Moreover, 206 was aware that humidity levels were high and chose to do nothing to correct the situation and mitigate damage to the work recently completed by them. The assertion by Mr. Rodrigues that representatives of 206 advised the appellants on multiple occasions about the maintenance of hardwood floors, even if true, is irrelevant when, as found by Mr. Kern, the problems with the floor most likely occurred in the summer months when the appellants were in China. Their absence, which was known by 206, cannot be said on these facts to extinguish their claim.

50Based on the foregoing, we find that item 1 on the Year End form is warranted. We find that the work was not completed in a workmanlike manner by 206 and there is, as a result, a breach of the warranty provided in s. 13(1)(a)(i) of the Act that the home shall be constructed in a workmanlike manner.

51Having found that there is a breach of the warranty, the Tribunal must then determine damages that follow. Section 14 of the Act authorizes Tarion to make a cash settlement or to carry out repairs. The Tribunal has the power to order Tarion to take any action that Tarion is permitted to take under the legislation.

52The appellants did not present any evidence on the scope or cost of repair (other than what may have been referenced in the Kirec or Holley reports). However, the Tribunal does have before it, evidence from Tarion and from 206, through Mr. Kern, on the cost to repair the floor.

53When questioned, Mr. Chymycz estimated, based on his experience, that the cost to sand and re-finish the floor (based on approximately 1900 square feet of hardwood flooring) could be approximately $15000. Mr. Kern stated, based on his expertise, that to correct the problems, the floors would need to be re-sanded and re-finished. His estimate of cost is $3.50 to $5.00 per square foot. The evidence from both the appellants and 206 is that the unit has high-end finishes. Relying upon Mr. Kern’s extensive expertise in both the pricing and installation of hardwood flooring, we prefer his evidence on the cost of sanding and re-finishing the floor. Therefore, assuming the cost to be at the higher range of Mr. Kern’s estimate, the cost for 1900 square feet is $9500.

54We have considered whether we should order Tarion to complete the repairs. In this instance, due to the length of this dispute and the appellants’ changing relationship with 206, with some distrust developing, it is in the best interests of all parties that a cash settlement be ordered. This will allow the appellants to carry out the necessary repairs to their satisfaction and in their own time. We therefore order a payment in the amount of $9500 plus HST for this warranted item.

Item 4 on the Year End Form: The marble and granite are cracked in the bathroom, hallway, and countertop

55There are two areas where claims are made for cracked marble: the hallway or foyer of the unit and in the bathroom.

56The appellants retained Mr. Holley to examine the claim for cracked marble, but for the reasons noted above, the Tribunal gives little weight to his conclusions. E.C. took it upon himself to investigate the issue, taking measurements and photographs. Though E.C. can provide his observations regarding the marble, he is in no way qualified to give expert opinion evidence about whether there were cracks or fissures, as he purported to do. The only expert evidence before us is that of Mr. Bob Bortolotti, a technical consultant with the Terrazzo Tile and Marble Association of Canada. Mr. Bortolotti worked in the tile industry for 49 years. For over 30 years, Mr. Bortolotti was president of York Marble and Tile, a major contractor of tile, terrazzo and stone work. He was tendered and accepted as an expert in the area of terrazzo tile and marble inspection. Mr. Bortolotti was retained by 206. The appellants tried to retain him, but Mr. Bortolottii had to decline given his prior retainer by 206.

57We will first address the cracks in the hallway. The appellants assert that there are three cracked marble floor tiles within the front entrance hallway.

58Scratches and gouges to the tile in this area, not cracks, were noted on the 30 day form. In his testimony, Mr. Chymycz stated that there appears to be stress cracks caused by movement, possibly due to shrinkage of the concrete under the tile. However, this could not be determined without destructive testing, that is, removal of the tile. Further complicating matters is the fact that the concrete in a condominium is part of the common elements of the condominium corporation and thus not a claim that can be asserted by the appellants.

59Mr. Bortolotti attended at the appellants’ unit on January 24, 2017. He also observed and examined the crack in the foyer tile. He testified that it runs directly across three tiles. From his inspection, it did not appear to be caused by the installation of the tile nor because of the tiles themselves. The tiles were not loose and there was no obvious defect in the tiles. His conclusion was that it appears to be a stress crack caused by movement. However, without being able to verify the condition of the concrete slab underneath, a specific cause cannot be determined.

60Mr. Bortolotti states in his report that the damaged tile could be replaced if matching tiles were available. But before replacing any tiles, the mortar bed and slab underneath must be examined to determine the underlying reason for the crack. Remedial measures would have to be undertaken to correct any issues before any new stone was installed. Investigation of that nature is not within his expertise.

61Tarion expressed concern at the hearing as to whether the Tribunal would order, given the evidence of an identifiable crack in the foyer, investigation by Tarion. Tarion cited the case of Cecilio v. Tarion Warranty Corp. [2007] O.J. No.1692 in which the Divisional Court ruled that Tribunal erred in placing an evidentiary burden on Tarion to establish the claim against itself. In light of that jurisprudence, the Tribunal will not order that Tarion incur the cost of an inspection and report which is what Mr. Bortolotti suggested would be required.

62Based on the evidence before us, the likely cause of the crack in the marble in the foyer is movement of the material - the concrete underneath - which is excluded from the warranties under section 13(2)(d) of the Act. However, as noted by Tarion, this could be a defect relating to a common element (the concrete slab construction of the condominium) in which case any claim would have to be made by the condominium corporation under section 15 of the Act.

63We therefore deny the claim for the marble in the foyer.

64The appellants’ greater concern, as it related to the marble, appeared to be the marble in the bathroom. The evidence of H.S. was that she noticed cracks in the bathroom, primarily on the marble on the vanity counter, floor and in the tub area. These were noticed after their return from China in September 2014. Specifically, she recounted seeing a tradesperson cutting wood, on a machine that he had placed in the bathroom. She surmised that carpenters were using the bathroom in this manner during the summer when they were away and this was the cause of the cracks.

65Both Tarion and 206 questioned whether this had in fact occurred and Tarion noted that this alleged occurrence was not disclosed until after the case conference which took place on August 2016. Given our findings below, specifically that the alleged “cracks” in the marble are in fact “fissures”, and therefore not a defect in workmanship, it is not necessary that we determine whether 206 tradespeople were using the bathroom to cut wood.

66We find Mr. Bortolotti was fair and balanced when giving evidence. As noted above, he has extensive experience and expertise in marble products and installation. He explained that he examined the marble in the bathroom to determine whether the ‘cracks’ which the appellants complain of were cracks, fissures or veins as these are defined by industry standards. Fissures and veins are naturally occurring within the stone. A fissure may appear as a mark on the stone or a slight depression to the touch. A vein shows as a different colour in the material but may not be apparent by touch. A crack in the stone will go right across it, from left to right. It is a break in the stone caused by the material being mishandled in some way, perhaps on installation.

67Mr. Bortolotti examined the tile and the grout around it. As he noted in his report, there were a number of surface irregularities, some of which were discernable to the touch. He determined that the marble was a ‘silver white’ marble from Turkey. He went to the Toronto supplier and inspected the same material. It showed the same markings that he observed in the tile in the appellants’ bathroom. Based on his on-site investigation and his inspection of the same tile at a supplier location, he concluded that the marks in the tile were fissures, not cracks.

68The witness explained that there is no standard depth to a fissure. There are surface depressions and these will vary with the stone. At E.C.’s request, a video taken by him was viewed by Mr. Bortolotti, and this panel, at the hearing. E.C. asked Mr. Bortolotti what his opinion was with respect to each marking which E.C. asserted was a crack. E.C. suggested that if a credit card could be caught in the ‘crack’, it could not be a fissure, but had to be a crack caused by 206 trades. The video was viewed carefully, a couple of times. In each example shown in the video, Mr. Bortolotti confirmed his assessment of a fissure or a vein, pointing out that a fissure could catch a credit card if the naturally occurring depression is deep enough.

69Mr. Bortolotti explained that marble is a natural product and has much variation. The amount of variation in the product may not appeal to everyone and if a more uniform appearance in the product is preferable to a homeowner, this type of marble may be the wrong product for them.

70Based on the evidence before us, we find the markings in the marble tile in the bathroom are not cracks and therefore are not warranted. While the marble’s appearance may not be aesthetically pleasing to the appellants, it does not reflect faulty workmanship or materials.

COSTS

71206, in their written submissions, sought costs in the event that Tarion and 206 were successful.

72There has been divided success in this appeal. The success of a party is not a determining factor when considering whether costs ought to be awarded in matters before the Tribunal. Costs may be awarded when a party has acted unreasonably, frivolously, vexatiously, or in bad faith. It cannot be said that the appellants’ pursuit of their appeal was unreasonable or in any way frivolous. There is no question that the patience of Tarion and 206 may have been tested over the five days of this hearing, but a self-represented party is more likely to find rules and processes confusing; their questions in cross examination may seem repetitive. The added party in this instance may feel that they incurred unnecessary legal fees due to delays caused by the conduct of the self-represented party. However, in the context of this hearing, we find the appellants’ conduct did not result in an excessively lengthy hearing. There is, in this instance, no order as to costs.

ORDER

73For the reasons given, and pursuant to the authority vested in it by section 16(3) of the Act, the Tribunal directs Tarion Warranty Corporation to pay the appellants the sum of $9500 plus HST for item 1 on the Decision Letter dated May 27, 2016 and disallows the remaining outstanding claim - item 4 on the Decision Letter.

LICENCE APPEAL TRIBUNAL

________________________ Patricia McQuaid, Vice-Chair

_________________________ Barbara Hicks, Member