E.D. v. Tarion Warranty Corporation, 2018 CanLII 100200

Date: 2018-06-01

Appeal from a decision of Tarion Warranty Corporation under the Ontario New Homes Warranties Plan Act, R.S.O. 1990, c. O.31 to deny a claim

Between:

E.D. Appellant

and

Tarion Warranty Corporation Respondent

and

Forest Grove Homes Limited Added Party

DECISION AND ORDER

Adjudicator: Laurie Sanford, Vice-Chair

Appearances: For the Appellant: Frank Feldman, Counsel For the Respondent: Ted Weredynski, Counsel For the Added Party: Joseph Villeneuve, Counsel

Place and Date of Hearing: Toronto, Ontario June 28, 29 and 30, 2017 February 23 and 26, 2018 April 19, 2018

REASONS FOR DECISION AND ORDER

OVERVIEW

1The appellant, E.D., appeals from a decision of Tarion Warranty Corporation (“Tarion”) denying her claim for warranty coverage under the Ontario New Home Warranties Plan Act, R.S.O. 1990, c.O.31 (the “Act”). E.D. is claiming warranty coverage under section 15 of Regulation 892 to the Act (the “Two Year Warranty”).

2The parties agree that water is penetrating E.D.’s great room periodically. Tarion and the builder of the home in question, Forest Grove Homes Limited (“Forest Grove”), dispute E.D.’s entitlement to a claim for warranty coverage for this water penetration on several grounds, including her failure to properly maintain the home to avoid leaks.

3For the reasons set out below, I find that there are breaches of the Two Year Warranty and that E.D. is entitled to certain repairs, specifically repairs to the insulation in a section of her attic, repairs to the eaves protection on a section of her roof and the installation of a starter strip for the shingles on a portion of her roof.

SUMMARY OF ISSUES

4E.D. took possession of a two-storey house in March, 2013. A year later, in March 2014, she observed water leaking across part of the ceiling and down the wall in her great room. Three experts, one retained by Tarion and two by E.D., testified at the hearing about either the state of the roofing components, the possible causes of the water penetration or both.

5The issues in this case are whether there has been a breach of the Two Year Warranty and, if so, whether E.D. is entitled to a remedy under the Act. To address these issues, the questions I must decide may be summarised as follows:

1. What is the general cause of the water penetration into E.D.’s great room?

2. Is E.D. precluded from claiming warranty coverage under the Act?

a) Is ice damming warranted in the Two Year Warranty?

b) What is the consequence of E.D.’s failure to maintain the attic and roof of her home?

3. What, if any, warranty coverage is E.D. entitled to under the Two Year Warranty?

ISSUE 1 – What is the general cause of the water penetration into E.D.’s great room?

6As noted above, the parties agree that water penetrates E.D.’s great room periodically. One of the challenges E.D. faces in asserting her claim for warranty coverage under the Act is that she is unable to identify the source of the leak. The Tribunal, by Pre-hearing Order dated May 16, 2016, directed E.D. to “arrange for the inspection of the house by a qualified engineer to determine the cause of the water leakage”. E.D. was to grant access to Tarion and Forest Grove to attend at the inspection. E.D. did not comply with this Order. By Pre-hearing Order dated October 12, 2016, E.D. was given the option to “do further inspection of the roof to determine the cause of the water leakage”. She declined this option. E.D. testified that she chose not to do a detailed inspection of the cause of the leak because she was advised that it would include destructive testing, that is the penetration of parts of her drywall, attic and roof.

7E.D. testified that she moved into her home on March 1, 2013. She first noticed a puddle by her great room door in November, 2013. E.D. requested a Tarion inspection of her home in the summer of 2014 because she had “continuously” seen water entering her great room in that spring. E.D. testified that she has seen water penetration in March of 2014, September, 2014, March and April, 2015 and October, 2015, during a torrential rainfall. However, E.D. said that heavy rainfall does not always lead to leaks. E.D. testified that she emailed both Tarion and the builder to report that there was no ice but there was leakage into her home. The water staining starts in the south west corner of the ceiling of her great room, spreads across the ceiling and down the drywall.

8E.D. called two experts to testify on her behalf, Mr. Shawn James and Mr. Stephen MacDougall. Both Mr. James and Mr. MacDougall commented on the design of the roof of E.D.’s home. The home faces west. There are two gables on the front of the roof. The southern gable is over the front door of the house. The northern gable is over the great room. The southern gable extends further out from the house and has a steeper slope than the north gable, according to Mr. MacDougall.¹ The two gables face each other across a narrow valley, which Mr. James said was about a foot across at its edge. According to both experts called by E.D., the design of the roof line and eaves troughs means that this valley funnels a large portion of the water drained from the front of the roof. Mr. James concludes, “This creates a very demanding drainage design which will require optimal performance of the roof covering system in this area to prevent water leakage during times of precipitation or snow melt. The effect of an ice dam in this area will be increased by the large amount of water drainage forced through this area by the roof design.”² The two experts agree that the water which penetrates E.D.’s great room most likely originates one or more of the following areas:

1. the north gable over the great room;

2. the junction of the north gable with the valley; and

3. the valley between the two gables.

9Mr. James, in his report dated June 11, 2017 (Ex. 3, Tab 1) wrote, “. . . I believe that the roof leaks are a result of winter time ice damming conditions as opposed to the warm weather roof leak.”³ Mr. James explained that ice damming occurs when heat escaping from the attic of a home, or coming from the spring sun, melts snow and ice on a roof causing it to flow down to the roof edge. When the water reaches the roof overhang, where the roof is not as warm, then water may re-freeze at the edge of the roof. This creates an ice dam, behind which water may accumulate. This water may seep under the edges of the shingles. When the pool of water behind the ice dam backs up past the overlay of the rows of shingles, it will seep into the roof sheathing and from there into the home.

10Mr. MacDougall, the second of the experts called by E.D, referred to the fact that E.D. had reported leaks into her great room in warmer months. However, he does not specifically find that there is a cause for the warm weather leaking that is separate from a cause for the leaking during colder weather. Instead, his report concludes, “Based on the information available, it is likely that the leakage experienced is a result of inadequate detailing of the roofing components at the base of this valley, allowing water to enter the building envelope during normal precipitation as well as during ice damming conditions.”⁴ He also notes that there may be further, concealed causes for the leaking that will not become apparent until the repairs he recommends are completed.

11Both Forest Grove and Tarion take the position that the sole cause of the leaks into E.D.’s great room is ice damming. Forest Grove submits that if ice damming is permitted to recur without repair or proper maintenance, then the action of the ice and water may damage the roof to the point where it will leak during warmer weather.

12Tarion had a roofing expert, Mr. Murdock Brooks, testify to an inspection of the roof done jointly with a company called Genteck Roofing. This inspection was done in September, 2015. Mr. Brooks testified that the roof seemed to be “in very good condition”. Mr. Brooks reported that the shingles appeared to be correctly sealed, the flashings were in good shape and the workmanship seemed to be up to industry standards. Mr. Brooks concluded that the leak was possibly due to an ice dam.

13While E.D. testified that she experiences leaks in the warmer weather, one of her own experts, Mr. James, characterised the leaks as being caused by ice damming. The second of her experts, Mr. MacDougall, noted that E.D. had told him of leaking in warmer weather but drew no conclusions from it. In detailing the specific possible causes of the leak, Mr. MacDougall observed that a metal flashing had been bent upwards⁵ exposing the wood sheathing of the roof. He noted that he could not conclude whether the flashing was bent during or after the installation of the roof. The bent flashing is in the area suspected of being the source of the water leaking into the house.

14Mr. MacDougall inspected the house in June, 2016. I accept the conclusion of Genteck Roofing, from an inspection in the fall of 2015, that the flashing was in “good shape”. This is evidence that the bent flashing seen and photographed by Mr. MacDougal was caused between the September, 2015 inspection by Genteck Roofing and Mr. MacDougal’s June, 2016 inspection. Mr. MacDougall’s evidence was that the bent flashing, which exposed the unprotected wood sheathing of the roof is a possible source of water leaking into the house. Mr. James initially rejected as unreasonable the idea that ice damming could cause leakage from secondary sources. However, he did subsequently acknowledge that if the damage to the roof were serious enough, that could lead to secondary leaks.

15I conclude that it is more probable than not that a cause of the water leaking into E.D.’s great room is ice damming. None of the experts testified to an independent, second cause of the water penetration. I find that E.D. has not demonstrated a second cause of the leaks that is separate from and not the result of damage caused by the ice damming.

ISSUE 2 – Is E.D. precluded from claiming warranty coverage under the Act?

Issue 2a – Is Ice Damming warranted under the Two Year Warranty?

16Forest Grove submits that ice damming is not warranted in the Act as it is a naturally occurring phenomenon. All three of the experts testifying about the roof, Mr. James, Mr. MacDougall and Mr. Brooks, agreed that ice damming can occur with no fault of the home builder. Both Mr. James and Mr. MacDougall agreed with Forest Grove that it is a naturally occurring phenomenon due to the accumulation of snow on Canadian roofs and the melting of this snow in spring or during thaws.

17Mr. MacDougall acknowledged that it is not economically or practically feasible to eliminate ice damming. However, he testified that some measures may be taken during the construction of the home to minimise the consequences of it. Some of these measures are set out in the 2006 Ontario Building Code (“OBC”), according to Mr. MacDougall. Of these measures, the ones relevant in this case will be discussed in detail below but may be summarized as follows:

1. Attic insulation and exterior ventilation⁶;

2. Eaves protection⁷; and

3. Roof Detailing, including roof flashing and starter strips⁸.

18The Act sets out the general warranty given by Forest Grove to E.D. in Section 13. What is relevant in this case is the warranty that the home will be constructed in a workmanlike manner and in accordance with the 2006 OBC. Additionally, the warranty includes other warranties as prescribed in the regulations.

19Section 13 also sets out exclusions to the warranty, including exclusions for damage resulting from improper maintenance.

20The specific warranty applicable in this case is the Two Year Warranty set out in Regulation 892 to the Act (the “Regulation”) In subsection 15(2) Forest Grove warrants to E.D.:

(a) that the home is constructed in a workmanlike manner and is free from defects in materials including windows, doors and caulking such that the building envelope of the home prevents water penetration: . . .

(d) that the home is free from violations of the Ontario Building Code . . . affecting health and safety, including but not limited to fire safety, insulation, air and vapour barriers, ventilation, heating and structural adequacy . . .

21It will be seen from the above that the Act does not expressly include or exclude a warranty for ice damming. The Tarion “Construction Performance Guidelines”⁹, which do not have the force of law, provide:

Ice dams can cause water leakage during the winter. This condition is warranted only if the ice dam results from a demonstrated defect in work or material supplied by the builder. The homeowner must take immediate steps to prevent damage to their property and report any losses to their home insurance provider. (emphasis in original)

22I conclude that the issue is not whether ice damming as a condition is warranted or not. The issue in this case is whether there are breaches of the Two Year Warranty that have caused or contributed to the water penetration into E.D.’s home and, if so, whether E.D. is entitled to claim a remedy for any of these warranty breaches.

23Forest Grove submitted that the Two Year Warranty ought to be read strictly, that is that the warranty for both workmanship and materials ought to be restricted to “windows, doors and caulking”. However, to read it in the manner would exclude a warranty for the roof and attic. In a warranty that is designed to address water penetration into the home, among other things, that reading would undermine a purpose of the warranty. It is important to recall that the Act is consumer protection legislation and is to be interpreted liberally. The reading of the Two Year Warranty that is consistent with a liberal interpretation is, “that the home is constructed in a workmanlike manner . . . such that the building envelope of the home prevents water penetration.”

24Concerning the warranty that the home be free from violations of the OBC affecting health and safety, I find that water penetration into the home is an issue of health and safety. It is well known that water penetrating a home can lead to mould. Further, if there is a violation of the OBC that is due to poor workmanship, that would be a violation of both the warranties of compliance with the OBC and of workmanship.

Issue 2b – What are the consequences of E.D.’s failure to maintain her roof and attic?

25Mr. Brooks, in testifying for Tarion, stressed the role of homeowner maintenance in managing snow and snow melt, either by removing the snow from the roof in winter or by installing heating cables on the edge of the roof to keep the water flowing down the roof from freezing. I accept that these are reasonable maintenance requirements. E.D. acknowledged that she did neither of these things. She testified that she was unable to find a contractor willing to climb onto her roof to remove the snow, given the steep pitch. She did not say why she had not installed heating cables.

26Forest Grove submits that E.D. is precluded from advancing her claim because of her failure to take preventive measures to prevent the ice damming from backing up into her home.

27It is true that any damages accruing to E.D. due to her failure to maintain her roof, including damages to her ceiling, drywall and floor, are excluded from warranty coverage under the Act. However, E.D. has not forfeited her right to have a home built in compliance with the Two Year Warranty or her right to make a claim for repairs to bring the home into compliance.

ISSUE 3 – What, if any, warranty coverage is E.D. entitled to under the Two Year Warranty?

28Forest Grove submits that the evidence about the specific causes of the leaks that was given by Mr. James and Mr. MacDougall, the experts called by E.D., must be given no weight because in their initial written reports both experts incorrectly referred to the 2012 Ontario Building Code (“OBC”) as applying in this case. In fact, the parties agree that the applicable OBC is the 2006 edition. Mr. MacDougall corrected his report prior to the hearing to refer to the 2006 OBC. Mr. James testified that there was no material difference between the 2012 and 2006 OBC provisions for the purposes of his report.

29In considering the evidence of any OBC violations, I will give no weight to the observations of Mr. James that are based directly on his use of the 2012 OBC. There are differences between the relevant sections of the 2006 OBC and the 2012 OBC and I was not persuaded that these are inconsequential. I will give weight to the discussion of violations of the 2006 OBC that are contained in the report of Mr. MacDougall and in the testimony of both experts.

Attic insulation and exterior ventilation

30Mr. MacDougall identified provisions in the OBC that he said were designed to minimize the effects of ice damming. He identified several areas of the construction of this home that in his opinion were violations of the OBC. One of these areas concerned the attic insulation and the exterior ventilation of the house.

31Mr. MacDougall testified that to minimise the effects of ice damming, the OBC establishes standards for insulation in the attic of a home, including the requirement that there should be at least a 2 ½ inch, or 63 mm gap between the top of the insulation and the underside of the roof sheathing¹⁰. The reason for this gap, according to Mr. MacDougall, is to permit air to flow from the soffits at edge of the roof to vents placed at the top of the roof or part way up the face of the roof. Mr. MacDougall testified that without the vented space above the insulation, there is heat loss into the attic which heats up the roof surface and increases the snow melt, aggravating ice damming. The OBC also establishes minimum standards for the ventilation to be provided on the roof.¹¹

32Mr. MacDougall inspected the attic above the sloped ceiling at the front, or west, side of the great room. The ceiling here is vaulted, which means there is not an open attic. Rather, the attic assembly is what Mr. MacDougall characterised as a “sandwich” construction, meaning that the insulation is sandwiched between the interior ceiling and the roof sheath. Mr. MacDougall testified that where he was able to check from the main attic, the sloped section of the attic above the vaulted ceiling had no apparent gap between the insulation and the wood sheathing.¹² There was no visible means of ensuring such a gap. Mr. MacDougall testified that this is a breach of the OBC. Mr. James also observed that the space between the insulation and the roof sheathing available for “a clear air flow path is minimal if it exists at all”.¹³

33Forest Grove submits that any evidence from either of E.D.’s experts on the attic or the attic insulation must be given no weight. Forest Grove submits that it would be unfair to both the builder and to Tarion to make a finding about the attic insulation when neither of them had the opportunity to inspect the attic. Further, Forest Grove submits that the occupancy certificate that was issued with respect to this home ought to be accepted as prima facie evidence that the home complied with the OBC. Forest Grove submits that neither expert measured the temperature build-up in the attic. Finally, Forest Grove submits that both experts testifying for E.D. conceded that the insulation might have shifted in the time between possession and their respective inspections.

34It is true, as noted above, that E.D. was ordered to conduct an engineer’s inspection of the house to establish the source of a leak and to grant access to both Tarion and the builder to attend during the inspection. E.D. did not comply with this Order in a way which permitted either Tarion or Forest Grove to attend during the inspection. There are consequences to E.D. for her non-compliance. As will be discussed below, her refusal to follow the Order results in her being denied the remedy she seeks. However, it is not accurate to say that either Tarion or Forest Grove was denied access to the attic.

35Mr. Brooks, testifying on behalf of Tarion, gave evidence of the inspection he and Gentek Roofing made of the roof of the home in September, 2015. When asked if he had inspected the attic at that time, Mr. Brooks said it did not occur to him to do so. This is different from being denied an opportunity to inspect.

36It is an accepted practice of the Tribunal that, where a homeowner files an expert report, the Tribunal gives both Tarion and the builder an opportunity to prepare a reply report. The Tribunal will order access to the house to permit an inspection if necessary for the preparation of the reply report. Additionally in this case, in a pre-hearing Order dated October 31, 2014, the Tribunal expressly set out the provisions that would apply if either Tarion or the builder wanted access to the house for inspection purposes.¹⁴ Forest Grove did prepare a reply report but chose not to call the expert who prepared it. Had Tarion or Forest Grove been denied access to the home, then the question of how much weight to give the reports of E.D.’s experts would have been relevant. However, in this case, there is no evidence that either Forest Grove or Tarion requested access to the home to inspect the attic.

37Concerning the argument that the occupancy certificate ought to be accepted as prima facie evidence that the home complies with the OBC, there is nothing in the Act that supports that position. The homeowner bears the burden of proving each element of her claim. The question in this case is, has the homeowner established that there is a breach of the OBC in the spacing of the insulation in her attic?

38The experts called by E.D. did not measure the temperature build-up in the attic but that measurement is not a requirement for determining whether there is the OBC-mandated gap between the top of the insulation and the bottom of the roof sheathing. While the experts did concede that the insulation may have shifted, neither expert changed his opinion that the insulation did not meet the requirements of the OBC.

39I find that E.D. has established that there is an OBC violation regarding the insulation in the attic above the sloped ceiling at the front, or west, side of the great room. I accept the testimony of both Mr. James and Mr. MacDougall concerning the attic insulation. I find that the attic insulation in that front sloped ceiling lacks the requisite space between the top of the insulation and the underside of the roof sheathing. I accept Mr. MacDougall’s testimony that the space is required to ensure air flow from the soffits to the vents at the top or side of the attic and that this venting is designed to lessen the possibility or severity of ice damming. I find that this violation of the OBC was the result of a breach of the warranty of workmanship in that the attic insulation was improperly installed.

40Both Mr. James and Mr. MacDougall also testified to what they saw as breaches of the OBC regarding the number and placement of vents on the roof of the house. However, on cross-examination, both testified that they had not measured the distance between vents, had not counted the vents on the roof and had not performed the calculations required under the OBC to establish that the venting standards had been met. Therefore, I find that E.D. has not demonstrated a breach of the OBC regarding the exterior venting on the roof of her home.

Eaves protection

41Both experts called by E.D. testified that there were violations of the OBC in the way in which the eaves protection was installed in this case. Mr. MacDougall testified that the OBC specifies that “eaves protection” be installed at the edge of a roof where the slope is less than 7.9:12, that is, where the roof rises less than 7.9 units for every 12 units it extends inward toward the roof ridge. The eaves protection is an underlay that sits between the shingles and the wooden sheath of the roof. Mr. MacDougall testified that the purpose of the eaves protection is to prevent the water that does seep under the shingles during the pooling behind the ice dam from coming into contact with the wooden roof sheath and seeping through it. The eaves protection begins at the edge of the roof overhang and extends up the roof either 36 inches or 48 inches. Mr. James identified the purpose of eaves protection as providing moisture protection for conditions such as ice damming.

42Forest Grove called Mr. Terry Lamonthe to testify about the roof. Mr. Lamonthe provides repair services for the subcontractor which installed the roof. Mr. Lamonthe was not qualified as an expert. Mr. Lamonthe testified that he was aware of the OBC requirement for eaves protection and that he knew the plans for this house called for it. However his testimony was that he did not know why eaves protection was installed. He said it worked to shed water but was of no use in protecting against ice damming.

43I prefer the evidence of Mr. MacDougall about the reason for eaves protection and the purpose it serves. He was qualified as an expert whereas Mr. Lamonthe was not. I note that both gentlemen agreed that eaves protection was required by the OBC and I accept Mr. Lamonthe’s evidence that the plans for this house called for it.

44Mr. MacDougall inspected the north gable and found that there is eaves protection on the south side of the gable but the eaves protection does not extend to the edge of the roof as required by the OBC.¹⁵ Mr. MacDougall’s evidence was that this shortfall results in an unprotected area along the edge of the roof. Mr. James, the second expert called by E.D., also inspected the edge of the north gable and found that the eaves protection extends only 21 to 22 inches up the roofline, rather than the 36 or 48 inches required by the OBC.

45Both Mr. James and Mr. MacDougall agreed that there was no eaves protection on the south gable and that the OBC did not require it due to the steep slope of the south gable. Neither expert was able to determine if there is eaves protection in the narrow valley between the two gables. Mr. James expressed the opinion that it should be there, to complete the protection.

46Forest Grove submits that the evidence of Mr. MacDougall and Mr. James regarding the eaves protection should be given no weight as the experts had not calculated the slope of the roof to determine if it was required by the OBC. However, Forest Grove’s witness, Mr. Lamonthe, testified that the OBC and the plans for this roof called for eaves protection and I accept that evidence.

47Forest Grove also suggested that Mr. James’ measurement of the eaves protection as between 21 and 22 inches should be dismissed because the standard width of the eaves protection underlay is 36 inches or 48 inches. That is not a persuasive argument as it does not follow that because the underlay comes in standard sizes that there was no modification to the width of the eaves protection before it was installed.

48Mr. Brooks, the expert called by Tarion, testified that the roof was in good shape. I prefer the evidence of the two experts called by E.D. on the question of eaves protection for two reasons. First, Mr. Brooks did not inspect the roof. He was reporting on an inspection conducted by Gentech roofing. No representative from Genteck roofing testified. Second, Mr. Brooks acknowledged that he and the Genteck Roofing representative were at the home only for a very short time. While he maintains that the time was sufficient, I see no evidence of a detailed examination of the roof either in the reports filed by Mr. Brooks and Gentech Roofing or in Mr. Brooks’ testimony. There is no reference in Gentech Roofing report to the question of eaves protection. Mr. Brooks refers to the presence of “felt paper at the eaves” but makes no mention of an inspection of the eaves protection for compliance with the OBC.

49I find that E.D. has established that the eaves protection installed on the south side of the north gable does not comply with the OBC. It is less than the width set out in the OBC and it does not extend to the edge of the eaves. This is not only a breach of the OBC but also a breach of the warranty of workmanship as the OBC violation was due to a faulty installation. I also find that E.D. has not established whether there is eaves protection in the valley between the two gables or whether the eaves protection complies with the OBC.

Roof detailing including flashing and starter strips

50Mr. MacDougall identified several violations of the OBC in the roof area above the great room where the leak may be reasonably assumed to have originated. One of these was some flashing that was bent, exposing the wood sheath. While that is a violation of the OBD, Mr. MacDougall could not identify whether the OBC violation was the cause or the consequence of the ice damming. Violations of the OBC which cannot be demonstrated to have occurred until after construction is completed and which cannot be demonstrated to involve a breach of warranty by the builder are not covered under the Act.

51Mr. MacDougall stated that the OBC requires a “starter strip” at the edge of the roof where the shingles begin. The starter strip must extend approximately ½ inch or 12 mm past the eaves to provide leak protection to the roof’s edge.

52There was some confusion in Mr. MacDougall’s testimony on this point, including a confusion on his part between a starter strip, which Mr. MacDougall testified was a requirement of the OBC, and a drip edge flashing, which he testified is not. However, he clarified his remarks during his re-examination and I accept Mr. MacDougall’s evidence that a starter strip is an OBC requirement and that it must extend approximately ½ inch beyond the edge of the eaves.

53Mr. MacDougall testified that when he lifted the shingles at the edge of the valley between the gables, he did not find a starter strip. None of the other witnesses who inspected the roof appear to have lifted the shingles along the valley edge.

54Forest Grove submitted in closing arguments that Mr. Lamonthe, who testified on its behalf, said that he did not understand the purpose of a starter strip. I understood Mr. Lamonthe to be saying that the choice between a shingle starter strip and a metal one was cosmetic and thus of no practical effect. However, if he did say that he did not understand the purpose of a starter strip, then I prefer the evidence of Mr. MacDougall on this point as he was qualified as a roofing expert and Mr. Lamonthe was not.

55I prefer the evidence of Mr. MacDougall to the evidence of Mr. Brooks on this point. Mr. Brooks report makes no reference to an inspection of the starter strip.

56I find that E.D. has demonstrated that the shingles along the edge of the valley between the two gables lack a starter strip, a violation of the OBC. This OBC violation is also a violation of the warranty of workmanship as it resulted from a faulty installation.

57Mr. MacDougall identified a number of steps that are taken to help minimise the damage from ice damming that are not OBC requirements but are what he characterised as “standard industry practices”. Mr. James also testified to what he regarded as usual practices in the roofing trade. These steps include the use of upgraded attic insulation, bonded shingles, drip edge flashing and “ice and water shields” as underlays for the shingles on the facing sides of the gables and across the valley. However, neither expert identified the lack of these features as evidence of poor workmanship or a defect in materials. The Act does not provide a warranty to the standard of either industry or “best” practices. Therefore, the industry standard measures identified by Mr. MacDougall should be regarded as opportunities for E.D. to upgrade her roof rather than as warrantable claims under the Act.

58I find that E.D. has demonstrated breaches of the Two Year Warranty with respect to the insulation in parts of her attic, the installation of the eaves protection on parts of her roof and the absence of a starter strip on the edge of part of her roof. These are both violations of the OBC and breaches of the warranty of workmanship.

Remedy

59E.D. requested that Tarion be “directed to ensure that necessary repairs be completed to correct the water penetration problem”. Obviously, in order to “correct the water penetration problem”, E.D. is proposing that Tarion first determine the causes of the problem. The experts she retained were unable to fully accomplish this because they were unable to do sufficient testing. To support her claim for this remedy, E.D. cited the case of 6834 & 6836 v. Tarion Warranty Corporation, 2012 CanLII 71132 (ON LAT), where an order was issued directing Tarion to identify and correct a problem. E.D. also cited the case of Cecilio (Re) [2008] O.L.A.T.D. No. 1, a 2008 decision of the Tribunal ordering the builder to do the necessary testing to determine if there was a violation of the OBC.

60E.D.’s case is distinguishable from both of the above cases on its facts. Here, E.D. was specifically directed by the Tribunal to retain an engineer, do the testing required to determine the cause of the leak and to permit Tarion and the builder to be present during the inspection. E.D. cannot profit from her failure to follow the Order of this Tribunal by requiring Tarion to carry out what she declined to do.

61E.D. is entitled to have those violations of the Two Year Warranty that she has demonstrated repaired. Whether or not this fully addresses the issue of water penetration into her home is unknowable due to her failure to determine the cause of the problem.

62I will direct Tarion to carry out the repairs of the OBC violations that E.D. has proven. I will order that the insulation in the attic above the sloped ceiling at the front, or west, side of the great room be modified to include a 63 mm gap between the insulation and the wood sheathing of the roof as required by the OBC. However, I note that Mr. James suggested in his report that this might involve lowering the ceiling in the great room. That would involve a significant remodeling of the house that is not proportional to the OBC violation. Therefore, I will direct that if Tarion determines that it is not possible to create the necessary gap, then Tarion will offer E.D. alternate remedies which will include: an upgrade to her insulation; increased venting on the roof of north gable, or the installation of baffles to create and maintain a gap in the insulation. E.D. may select one of these options or she may negotiate an alternative remedy or she may elect not to have the OBC violation of her attic insulation addressed.

63I will direct Tarion to install eaves protection in accordance with the OBC on the south, valley-facing side of the north gable. This will involve removing some rows of the shingles on the north gable. If E.D. wishes to upgrade the quality of the eaves protection, then Tarion will allow her a credit equal to Tarion’s cost of the eaves protection it would have installed and Tarion will install the upgraded eaves protection. Tarion will also work with E.D.’s contractors to schedule any other work they need to do on the roof before it is re-shingled.

64I will direct Tarion to install a starter strip on the edge of the valley between the two gables on E.D.’s roof in accordance with the OBC. This will involve removing some rows of shingles on the edge of the valley. If E.D. wishes to upgrade the quality of the starter strip, then Tarion will allow her a credit equal to Tarion’s cost of the starter strip that Tarion would have installed and Tarion will install the upgraded starter strip. Tarion will work with E.D.’s contractors to permit them to do any other work around the edge of the valley before it is re-shingled.

ORDER

I order as follows:

65I refer the parties to Exhibit 3, Tab 4, p.10 showing the insulation in the attic of E.D.’s home above the sloped ceiling at the front or west side of the great room. Tarion will modify the insulation in that part of the attic to include a 63mm gap between the top of the insulation and the underside of the roof sheathing, in accordance with the OBC.

66If Tarion determines that it is not possible to create the 63mm gap referred to in paragraph 65, then Tarion will offer E.D. an alternate remedy. This alternate remedy may include an upgrade to her attic insulation in the area referred to above, increased venting on the north gable, or the installation of baffles to create and maintain the required gap between the insulation and the roof. E.D. may choose one of these options, may negotiate an alternative remedy or may elect not to have the OBC violation of her attic insulation addressed.

67I refer the parties to the photograph in Exhibit 3, Tab 4, p. 6. Tarion will install eaves protection in accordance with the OBC on the south, valley-facing side of the north gable. This will involve removing some rows of the shingles on the north gable. If E.D. wishes to upgrade the quality of the eaves protection, then Tarion will allow her a credit equal to Tarion’s cost of the eaves protection it would have installed and Tarion will install the upgraded eaves protection. Tarion will also work with E.D.’s contractors to schedule any other work they need to do on the roof before it is re-shingled.

68Tarion will install a starter strip on the edge of the valley between the two gables on E.D.’s roof in accordance with the OBC. This will involve removing some rows of shingles on the edge of the valley. If E.D. wishes to upgrade the quality of the starter strip, then Tarion will allow her a credit equal to Tarion’s cost for the starter strip that Tarion would have installed and Tarion will install the upgraded starter strip. Tarion will work with E.D.’s contractors to schedule any other work the need to do around the edge of the valley before it is re-shingled.

Footnotes

1. 1Exhibit 3, Tab 4, p. 8
2. 2Exhibit 3, Tab 1, p. 8
3. 3Op.Cit. p. 8
4. 4Op. Cit. p. 10
5. 5Exhibit 3, Tab 4, p. 8
6. 6Exhibit 3, Tab 4 p. 10: OBC Div. B – 9.19.1.3(1); OBC Div. B – 9.12.1.2
7. 7Op. cit: p. 6: OBC Div. B – 9.26.5.1
8. 8Op. cit. pp. 8, OBC Div. B – 9.26.1.1(1); OBC Div. B – 9.26.2 (1)
9. 9Exhibit 3, Tab 8
10. 10Exhibit 3, Tab 4, p. 10: OBC Div. B – 9.19.1.3 (1) 7(3)
11. 11Op. cit. p. 9: OBC Div. B – 9.19.1.2
12. 12Op. cit. p 10
13. 13Exhibit 3, Tab 1, p. 9
14. 14Exhibit 5, Tab 12, p. 2
15. 15Exhibit 3, Tab 4, p. 6: OBC Div.B – 9.26.5.1