An appeal of a Decision of Tarion Warranty Corporation under the Ontario New Home Warranties Plan Act to Disallow a Claim
Between:
A.T.L.
Appellant
-and-
Tarion Warranty Corporation
Respondent
DECISION ON MOTION
Adjudicator: Marisa Victor, Member
Appearances:
For the Appellant: Self-represented
For the Respondent: Zahir Ali, Counsel
For the Builder: Jeffrey Shankman
Heard by Teleconference: July 5, 2018
REASONS FOR DECISION ON MOTION
Overview
1The appellant appeals to the Licence Appeal Tribunal (the Tribunal) from the Decision Letter issued by Tarion Warranty Corporation (Tarion) on April 6, 2018 in relation to deficiencies claimed in regard to his kitchen floor.
2His home was built by Geranium Homes (Bloomington Woods) Inc. (GH or the Builder).
3Tarion has brought a motion to add GH as a party to this appeal.
4All parties consented to the motion. Despite the consent of all parties to the motion, I am still required to satisfy myself that the added party has a significant interest in the proceeding.
5During the motion hearing, I advised the parties that I would take into consideration the recent decision in M.W. and D.W. and Tarion Warranty Corporation, 2018 ONLAT ONHWPA 11020 (the MW decision). In that case, the Tribunal rejected a motion to add a builder to an appeal even though all parties consented to the motion.
6At the end of the motion hearing I requested written submissions and case law from all parties and GH should they wish to submit anything further. Tarion and GH provided additional written submissions in the week following the motion hearing.
7I find that the evidence establishes that GH has a significant interest in the appeal and is therefore added as a party to the appeal.
ISSUES
8The issue is whether GH has a significant interest in this particular appeal.
LAW
9Section 16(4) of the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31 (the Act), deems 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.
10Rule 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
11Tarion provided evidence and argument as the moving party of the motion. Tarion’s position is that GH should be added because:
a. GH is ultimately responsible and liable for the statutory warranties;
b. Adding GH would promote early settlement;
c. GH has unique and specialized knowledge that would be beneficial to the proceedings; and
d. Natural justice requires the Tribunal to add GH to the proceedings.
12Tarion argues that GH had a significant interest both because of the monetary consequences it could face as a result of Tribunal decision, and also because it faced possible reputational risk as a result of the hearing.
13Secondly, Tarion argues that natural justice required adding GH as a party. Tarion 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.
14GH adopted Tarion’s oral and written submissions. In addition, GH made new submissions as to its significant interests, including evidence arising out of statements and submissions made by the appellant and other facts particular to the appeal, including that:
a. 18 limestone tiles had been fully replaced by GH prior to the appeal and Tarion did not accept the appellant’s position that these tiles did not match the rest and had scratches;
b. The appellant is seeking replacement of the entire floor and not just the 18 tiles in question, greatly increasing the potential value of the appeal;
c. The appellant alleges GH cheated him; and
d. The appellant wishes to submit email exchanges between himself and GH which he says demonstrates the poor character of GH.
15GH argued that the evidence before the Tribunal distinguishes the case from the decision in the MW decision in that:
a. GH made independent submissions in this motion, unlike the builder in the MW decision;
b. The appellant in this case is putting forward arguments beyond workmanship and material claims that have the potential to damage the reputation of GH;
c. The claim has been expanded beyond the value of the 18 tiles; and
d. The appellant will be obtaining and introducing an expert report on the tiles.
16The appellant submitted that:
a. He had paid $27,000 for the tiling work and that it was not done;
b. He had given GH many chances to repair the problem but that GH had failed to do so; and
c. He stated he wants GH added as a party.
ANALYSIS
17In the MW decision, the Tribunal was asked to determine whether a builder should be made an added party. All parties consented to the motion. The Tribunal heard argument in order to satisfy itself that the builder had a significant interest. The motion was moved and argued by Tarion and the appellant and builder made no submissions of their own. Tarion made arguments based on policy reasons (better chance of settlement, natural justice, the builder is responsible for statutory warranties, etc.). However, the Tribunal held that the lack of specifics of the case at hand meant that the builder had no significant interest beyond generic policy reasons. In the course of the decision, the Tribunal canvassed the legislative scheme and purpose of the added party regime before this Tribunal.
18I am not bound by the MW decision, however, I find it instructive. Nevertheless, in this case, I find that there are significant differences between the facts in the MW decision and the facts before me such that the MW decision is not persuasive. These differences establish that GH has a significant interest in the appeal. They are that:
a. GH has made independent submissions over and above those of Tarion that provide evidence of a significant interest specific to the case before me;
b. The value of replacing the entire floor, which is what is sought by the appellant, could cost $27,000. I find that this amount of funds qualifies as a significant interest; and
c. The appellant has called into question the ethics and character of the GH beyond regular workmanship and material claims that put the reputation of GH at risk and form a significant interest.
19In addition to the above, I find that natural justice would be undermined by not allowing GH to be added as a party given the evidence of its significant interest.
20By being added as a party GH 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.
21Finally, the motion had the consent of all the parties, and I find that this is another factor which weighs heavily in favour of adding GH as a party to this appeal.
CONCLUSION
22I find that GH has a significant interest in the appeal and should therefore be added as a party.
ORDER
23The motion to add GH as a party is granted.
LICENCE APPEAL TRIBUNAL
Marisa Victor, Member
Released: August 30, 2018