Appeal of 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:
S.J.
Appellant
and
Tarion Warranty Corporation
Respondent
and
Remington Oakville Preserve Inc.
Added Party
RECONSIDERATION DECISION
Before: Linda P. Lamoureux, Executive Chair
Written Submissions By:
For the Appellant: S.J.
For the Respondent: Ted Weredynski, Paralegal
For the Added Party: Carol Street, Counsel
OVERVIEW
1On September 27, 2017, the Licence Appeal Tribunal (the “Tribunal”) issued its decision in S.J.’s appeal of the decision of Tarion Warranty Corporation (“Tarion”) to deny his claim for compensation with respect to alleged defects in the new home he purchased from the added party, Remington Oakville Preserve Inc. (“Remington”). The Tribunal granted S.J. compensation in the amount of $75 to repair a hole in the caulking in his shower, but dismissed his appeal in relation to his other claims.
2S.J. requests that I reconsider the Tribunal’s decision pursuant to Rule 18 of the Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 1 (April 1, 2016) (the “Rules”). S.J. requests reconsideration on two grounds in Rule 18.2(a) and (b):
(a) The Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness by not allowing S.J. to submit additional evidence after the commencement of the hearing.
(b) The Tribunal made a significant error of law or fact by failing to mention part of the testimony of three witnesses.
3Tarion and Remington have each provided responding submissions to S.J.’s request for reconsideration. In addition to responding to the grounds for reconsideration raised by S.J., Tarion submits that as it has not been provided with a copy of the transcript it did not have a meaningful opportunity to respond to the request for reconsideration,. Remington submits that S.J. has failed to comply with the requirements of Rule 18.1, as he did not specify the remedy he was seeking.
4For the reasons that follow, I dismiss S.J.’s request for reconsideration.
Jurisdiction and procedural fairness
5S.J. submits that he was not permitted to submit any additional evidence related to his case after the first day of the hearing. He submits that, in doing so, the Tribunal exceeded its jurisdiction and breached procedural fairness. I disagree.
6The adjudicator who heard this matter explained in her decision that she allowed S.J. to file evidence late, after considering the objections of Tarion and the added party. The decision states:
S.J. advised that he had photographs which he intended to rely upon during the hearing. These had not been disclosed to the other parties and both Mr. Weredynski and Ms. Street objected to their admission into evidence, advising that disclosure requirements had been discussed in detail at the case conference held in this matter. However, because the Tribunal’s May 29, 2017 Case Conference Order does not include any reference to disclosure, I admitted the photographs into evidence. S.J. later advised that he also had documents which he intended to rely upon. After providing Mr. Weredynski and Ms. Street the opportunity to review the documents, I admitted into evidence those which did not duplicate the submissions of the other parties.
7It is clear from the Tribunal’s reasons that all evidence put forward by S.J. was admitted unless it was duplicative. Thus, I am not satisfied that the alleged breach of procedural fairness occurred. Nor does S.J.’s submission satisfy me that the Tribunal acted outside its jurisdiction.
Alleged error of fact or law
8S.J. also submits that the Tribunal made a significant error of fact or law by failing to refer in its decision to parts of the testimony of three witnesses that favour S.J.’s position. S.J. submits that the reasons omitted to refer to:
evidence of Roger Boyd, a Tarion representative, that there was a “defect in design” with respect to the shower frame and evidence that Remington accepted fault for the defect;
evidence of Heidi Scheibmayr, a customer relations manager at Remington, that a sweep in the shower door was “cut short”; and
evidence of Scott Rowand, Tarion’s manager of stakeholder relations, that 2” x 4” framing is “not sufficient enough as the same quality as” 2” x 6” framing.
9I am not satisfied that the Tribunal made a significant error of fact or law. I have reviewed the Tribunal’s summary of the testimony of Mr. Boyd, Ms. Scheibmayr, and Mr. Rowand. The evidence of these witnesses is set out in detail in the Tribunal’s reasons. Reasons are not meant to be an exhaustive transcript of everything that each witness said, and the Tribunal is not required to refer in its reasons to every piece of evidence before it. In my view, the Tribunal’s reasons meet the standard of allowing for an understanding of why the tribunal made its decision and whether the conclusion is within the range of acceptable outcomes: Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, at para. 16.
10Additionally, as pointed out by Tarion in its submissions, I do not have evidence before me that the alleged statements raised by S.J. were in fact made by the witnesses in question. It is not clear, whether Mr. Boyd in fact stated that there was a “defect in design”, and if he did, how that the omission of that statement resulted in a factual error. With respect to the sweep in the shower door being cut short, this evidence was referred to in the Tribunal’s reasons, although not specifically attributed to Ms. Scheibmayr. With respect to the alleged evidence of 2” x 4” framing being of lesser quality than 2” x 6” framing, the Tribunal’s reasons state that Mr. Rowand in fact testified that there was no quality difference between the two for interior wall construction. While S.J. may have a contrary recollection of Mr. Rowand’s testimony, he has not provided a basis for me to interfere with the adjudicator’s account of the evidence.
Issues raised by responding parties
11As I am not satisfied that the alleged grounds for reconsideration have been made out, it is not strictly necessary for me to consider the issues raised by the responding parties. However, I would note that contrary to Remington’s submission that S.J. did not specify the remedy he was seeking, S.J. did state that he was “requesting [sic] remedy to examine all the evidence that was not allowed to be seen by the chair in the hearing.
12With respect to Tarion’s argument that it lacks a meaningful ability to respond to S.J.’s request for reconsideration without a transcript of the hearing, I note that it is up to the party requesting reconsideration to put any necessary portions of the record before me in order to satisfy me that their ground for reconsideration is made out. While a responding party can point out an absence of evidence that a factual error was made, the lack of a transcript did not affect their ability to meaningfully respond to the request.
ORDER
13Upon consideration of the submissions of all parties, I dismiss S.J.’s request for reconsideration.
LICENCE APPEAL TRIBUNAL
Linda P. Lamoureux, Executive Chair
Tribunals Ontario – Safety, Licensing Appeals and Standards Division
Date of Issue: January 26, 2018