Date: 2018-06-19

Appeal from 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:

A.E. and M.E.; Mu.E. and M.E.

Appellants

and

Tarion Warranty Corporation

Respondent

and

Royal 7 Developments Ltd.

Added Party

DECISION AND ORDER

Adjudicator: Avril A. Farlam, Vice-Chair

Appearances:

For the Appellants: A.E., M.E. and Mu.E., Self-represented

For the Respondent: Michael Owsiany, Counsel

For the Added Party: Joseph Derocchis, Agent

Heard in Toronto, ON: May 17, 2018

REASONS FOR DECISION AND ORDER

A. Overview

1For two separate condominium residences, the appellants claim compensation for breach of delayed closing/delayed occupancy (“delayed closing”) warranty provided for in the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31 (“Act”) and regulations. Both claims were denied as set out in the November 21, 2017 decision letters from Tarion Warranty Corporation (“Tarion”) because the appellants did not submit their claims within one year from the warranty start date. Appellants say they could not make their claims within one year because of extraordinary circumstances. Tarion requests that if the claims are allowed, they be referred to Tarion for assessment.

2At the hearing a Turkish interpreter assisted appellants M.E. and Mu.E. A.E. did not require the assistance of the interpreter at that hearing.

B. ISSUE:

3The issue to be determined is whether the appellants are entitled to make a claim for delayed closing.

C. CONCLUSION:

4I find that the appellants’ evidence fails to support a finding that the appellants are entitled to make a claim for delayed closing.

D. LAW AND ANALYSIS:

5Section 6 of Ontario Regulation 165/08 under the Act incorporates into all condominium sales agreements made between July 1, 2008 and October 1, 2012 the Tarion Condominium Form - Delayed Occupancy Warranty which sets out the critical dates and obligations of the builder in the event of the delayed closing or delayed occupancy. Section 6(2) of the Act provides that the builder warrants to the purchaser that it will comply with the requirements applicable to the home that are imposed in the warranty. Section 8 of the Regulation contains a similar provision for condominium sale agreements made after October 1, 2012 (“warranty”).

6The warranty starts on occupancy date of the units and the appellants had one year from the warranty start date to make their claims under s. 13(1)(c) and (4) of the Act.

7The Tribunal owes no deference to Tarion’s decision. Following a hearing, the Tribunal may, pursuant to s. 16(3) of the Act, order Tarion to take such action as the Tribunal considers Tarion ought to take in accordance with the Act and the regulations, and the Tribunal may substitute its opinion for that of Tarion.

8Although the Act is consumer protection legislation and should be given a liberal interpretation, the onus is on the appellants to prove on a balance of probabilities that they made their claims with one year from the warranty start date, or alternatively, that the one year time limit does not apply to their claims.

Are the appellants entitled to make a claim for delayed closing?

9I find that the appellant’s evidence fails to support a finding that the appellants are entitled to make a claim for delayed closing because they filed their claims later than one year from the warranty start date and Tarion is not authorized under its governing legislation to extend the time line in these circumstances.

10It is undisputed that the appellants purchased two condominium units from the added party, occupied both units on July 18, 2016, and submitted delayed closing warranty claims after the deadline of July 18, 2017 through a third party tax consultant. Tarion also admits that the health issues of the appellant A.E. constitute extraordinary circumstances.

11The appellant, A.E., is the daughter of the appellants, M.E. and Mu.E, and was the only appellant who testified. The two condominium units were purchased from the added party jointly by A.E. and her parents. A.E. is no longer an owner of unit 305 but remains an owner of unit 304. She said that the appellants submitted other warranty claims, specifically 30-day Tarion warranty claims, for both units on time with the help of her English-speaking sister and brother-in-law who also own a unit in the same building and with whom the appellants are still in contact.

12A.E. said that she was not aware of the deadline for the delayed closing warranty until the end of July, 2017 when she was told this by M.P., a tax consultant. A.E. admitted that she sent M.P. all the papers at the end of July, after the one year period had expired, and M.P. sent the claim to Tarion on August 10, 2017.

13The appellant A.E. testified that she was in a car accident in March, 2016 and this has caused serious health problems and suffering which prevented her and her parents from filing the delayed closing claims on time.

14Patricia Lutz, Director of Customer Service at Tarion, wrote the decision letters. She explained that the delayed closing warranty is for purchasers of condominium units whose occupancy or closing has been delayed beyond what is set out in the Statement of Critical Dates. The maximum compensation is $7,500.00 per claim. A homeowner has one year from occupancy to submit a claim for delayed closing. Every homeowner is made aware of this time limit in the Homeowner Information Package and on the Tarion “My Home” portal. Homeowners are advised that the Tarion addendum forms part of each agreement of purchase and sale and that the addendum contains the Statement of Critical Dates. Ms. Lutz identified the Statements of Critical Dates signed by the appellants M.E. for unit 304 and Mu.E. for unit 305.

15Ms. Lutz testified that Certificates of Completion and Possession for both units show both were first occupied July 18, 2016. This is the start date of the warranty. On occupancy the homeowners of unit 304 were the appellants A.E., M.E. and another person, but unit 304 was transferred to A.E. alone on June 19, 2017 when coverage for the delayed closing warranty was still available. On occupancy the homeowners of unit 305 were the appellants M.E. and Mu.E. and the unit was transferred to them on June 6, 2017 when coverage for the delayed closing warranty was still available.

16Ms. Lutz testified that warranty claims for alleged construction defects were submitted in English on-line through “My Home” portals on August 17, 2016 for both units. These warranty claims were submitted on time. Ms. Lutz said the delayed closing claims could also have been submitted at the same time or at any time between July 18, 2016 and July 18, 2017 but were not. When the appellants’ claims were received by Tarion on August 11, 2017 by email from M.P., Tarion responded that the claims had been submitted late.

17Tarion accepts that A.E. has submitted proof of medical issues which establish extraordinary circumstances, but her parents have not. Ms. Lutz said Tarion has no discretion under its governing legislation and the Regulation to accept late claims for delayed closing, even in extraordinary circumstances.

18Ms. Lutz said Tarion has no record of the appellants or anyone on their behalf seeking assistance or accommodation for language or disability until October, 2017 after the delayed closing claims had been submitted late. Tarion has policies and can provide help and accommodation if such requests are submitted before the deadline for submission of warranty claims has passed.

19I find that Tarion cannot, as a matter of law, extend the deadlines for delayed closing for any reason. The appellants made no submissions as to the legislative authority of Tarion. Tarion’s counsel submits Section 5.10 of Ontario Regulation 892 under the Act that allows Tarion to extend or abridge times specified in sections 4.1 to 4.6, 5.1, 5.2, 5.5 to 5.7 and 5.9 (“applicable sections”) if it determines that the warranty claim involves extraordinary circumstances does not apply to delayed closing warranty. I accept this submission. On a plain reading of the applicable sections, all appear to address claims other than delayed closing warranty claim. Under its legislative mandate, Tarion cannot extend the deadlines for delayed closing for any reason including the appellants’ circumstances in this case. I decline to substitute my opinion for that of Tarion in view of the legislative mandate of Tarion. It does not matter whether the appellants missed the deadline for filing their claims because of A.E.’s health or because they were unaware of the deadline.

20I find that the appellants’ evidence fails to support a finding that the appellants are entitled to make a claim for delayed closing.

ORDER:

For the reasons set out above, I find that the appellants are not entitled to make a claim for delayed closing.