An appeal of a Decision of Tarion Warranty Corporation under the Ontario New Home Warranties Plan Act to Disallow a Claim
Between:
York Region Standard Condo Corp. 1145 c/o The Management Group
Appellant
-and-
Tarion Warranty Corporation
Respondent
DECISION ON MOTION
Adjudicator: Marisa Victor, Member
APPEARANCES:
For the Appellant: Mike Guida, Agent
For the Respondent: Danielle Peck, Counsel
For the Builder: John Chris, Counsel
Heard by Teleconference: July 25, 2018
REASONS FOR DECISION ON MOTION
Overview
1The appellant appeals the Decision Letter dated December 6, 2017, issued by the respondent, Tarion Warranty Corporation (Tarion), in relation to common element deficiencies claimed in the condominium residence built by Springside Garden Estates Corp. (Springside or the Builder).
2Tarion has brought a motion to add Springside as a party to this appeal. The motion was supported by Springside and contested by the appellant.
3At the end of the motion hearing I requested written submissions from the appellant, who had been unprepared to argue at the motion hearing, and allowed Tarion to submit further written submissions by way of reply. Both the appellant and Tarion provided those additional written submissions according to the timeline set out in the order.
4I find that the evidence establishes that Springside has a significant interest in the appeal and is therefore added as a party to the appeal.
ISSUES
5The issue is whether Springside has a significant interest in this particular appeal.
LAW
6Section 16(4) of the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31 (the Act), names homeowners and Tarion as parties. The section also provides that “such other persons as the Tribunal may specify” may be added as parties but does not state the test for determining this.
7Rule 3.6 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice & Procedure, Version I (October 2, 2017) (the Rules) sets out that to add a party, that party must have a significant interest in the proceeding (emphasis added).
EVIDENCE
8Tarion provided evidence and argument as the moving party of the motion. Tarion’s position is that Springside should be added because:
a. Springside provides warranty coverage on the condominium project;
b. Springside has been active in making repairs and resolving items;
c. Springside is responsible for any payment ordered by the Tribunal under the warranty program;
d. Springside should be added as a party to protect its own interests;
e. Adding Springside would promote early settlement;
f. Springside has unique and specialized knowledge that would be beneficial to the proceedings by contributing to a more complete evidentiary record;
g. Natural justice requires the Tribunal to add Springside to the proceedings; and
h. Springside could face possible reputational risk as a result of the hearing.
9Tarion, in its written submissions, further argues that Springside has a significant interest because, in this case, the alleged defects in the common elements of the condominium project could amount to a significant sum of money.
10Tarion also presented case law that established that the right to be heard is a principle of natural justice and fundamental to all hearings. Further, depriving a party of the right to be heard could affect the fairness of a proceeding and a decision made in breach of that right cannot stand.
11Springside adopted Tarion’s oral submissions. In addition, Springside made additional submissions including that:
a. It wants an opportunity to be a full party at the hearing so that it has the ability to be represented by its own counsel, present evidence and cross-examine witnesses, and bring out points regarding the construction background of the project; and
b. It estimates that if the appellant were completely successful on all of the alleged deficiencies, the cost of the repairs could reach $100,000, all of which would have to be paid by Springside.
12The appellant submitted that the appellant’s Board of Directors opposes the motion on the basis that:
a. Springside has not been able to successfully resolve the remaining issues in the past; and
b. It would rather deal directly with Tarion to streamline the timing and expenses during the proceeding.
ANALYSIS
13The decision to add a party is a discretionary one. However, one factor to be considered, pursuant to Rule 3.6, is whether Springside has a significant interest in this particular proceeding. I find that Springside has a significant interest in the appeal and should therefore be added as a party for the following reasons.
14Tarion has made numerous arguments that would apply in general to any builder appearing in relation to warranty matters before this Tribunal. This does not assist in determining the proposed added party’s significant interest in this particular proceeding. The only evidence specific to this appeal provided by Tarion is that:
a. Springside has been active in making repairs and resolving items; and
b. Repairing the alleged deficiencies in the common elements of the condominium project could amount to a significant sum of money.
15Springside added that the potential value of the appellant’s appeal is approximately $100,000, which is a significant sum of money.
16While the appellant opposed the motion, it did not refute the possible cost of the repairs that might result from the appeal or dispute that Springside has a significant interest.
17Furthermore, through the course of this case conference and a subsequent case conference, it became apparent that the narrowing of the issues before the hearing was dependant on input from Springside together with the appellant’s consultant. Without the specific information provided by Springside, it is unlikely that Tarion could have effectively narrowed the issues prior to the hearing. Whether this leads to early settlement is unclear; however, from the perspective of the Tribunal, the narrowing of the issues should create a shorter and therefore more cost-effective hearing.
18By being added as a party, Springside will be provided all the procedural rights of a party including the ability to be represented by counsel, the ability to call witnesses and cross-examine witnesses, the ability to submit evidence including potential expert evidence, and the ability to make submissions.
ORDER
19The motion to add Springside as a party is granted.
LICENCE APPEAL TRIBUNAL
Marisa Victor, Member
Released: August 31, 2018