W.A. v. Tarion Warranty Corporation, 2018 CanLII 52325

Licence Appeal Tribunal

Date: 2018-04-09

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:

W.A. Appellant

And

Tarion Warranty Corporation Respondent

And

Mattamy (Fairwinds West) Limited Added Party

DECISION AND ORDER

Adjudicator: Stephen Scharbach, Member

Appearances:

For the Appellant: No-one appearing

For the Respondent: Ted Weredynski, Senior Paralegal Peter Shahen, Warranty Services Representative

For the Added Party: Sam Kandar, Agent Shawn Schwartz, Warranty Manager

Place and dates of hearing: Ottawa, Ontario March 20, 2018

DECISION AND ORDER

Overview

1This is an appeal to the Licence Appeal Tribunal (the “Tribunal”) under s.16 of the Ontario New Home Warranties Plan Act, RSO 1990, c. O.31 (“Act”).

2The appellant appeals several decisions made by the Tarion Warranty Corporation (“Tarion”) to deny his claims for payment out of the guarantee fund for damages resulting from alleged breaches by the Added Party (“Mattamy”), of the builder’s warranties contained in the Act. The decisions under appeal are contained in Tarion’s decision letters dated August 17, 2016, October 18, 2016, March 31, 2017, May 12, 2017, and June 22, 2017.

3A three-day hearing was scheduled to take place in Ottawa on March 19-21, 2018 and, for reasons set out below, was made peremptory on the appellant.

4Although the appellant was given notice of the hearing, he did not attend or inform the Tribunal and the other parties of his intention to be absent.

5The hearing proceeded in the appellant’s absence. The onus was on the appellant to prove his claims. Since the appellant did not attend, called no evidence and made no submissions, he failed to prove his claims.

6The appeal was therefore dismissed.

The Proceedings to Date

7This was the second time that the appellant failed to attend a scheduled three-day hearing in Ottawa and did not notify the Tribunal and the other parties of his intention to be absent.

8The appellant’s started his appeal on September 2, 2016. Four case conferences were held. At the fourth case conference held on June 7, 2017, the Tribunal scheduled a three-day hearing to take place on November 27, 28, and 29, 2017 in Ottawa, Ontario. Those dates were agreed to by all of the parties.

9At the outset of the hearing on November 27, 2017, all parties except the appellant were present and ready to proceed.

10After waiting about 30 minutes for the appellant to arrive, Tarion’s representative was able to reach him on the telephone.

11The appellant informed the Tribunal and the parties via speaker phone that he would not be attending due to a family emergency but refused to elaborate. He said he would not be available on any of the scheduled hearing dates but would like to re-schedule the appeal to a later date.

12I was concerned that after agreeing to a three-day hearing in Ottawa, the appellant failed to attend without notifying the Tribunal or the other parties of his intention to be absent, causing the Tribunal and the parties needless expense and inconvenience.

13However, I took the appellant’s word that he experienced an emergency. I therefore decided to adjourn the hearing and provide him with another opportunity to have his appeal heard.

14Tarion and the added party expressed a desire to conclude this matter as soon as possible and asked that it be re-scheduled and heard with little delay.

15I ordered that the hearing be adjourned to a date to be established by the Tribunal after the parties had an opportunity to provide their availability.

16My order specifically stated that:

The adjournment is peremptory on the appellant. This means that the appeal shall proceed on the next scheduled hearing date and, barring exceptional circumstances, no further adjournment will be granted to the appellant. If the appellant fails to appear at the scheduled hearing date, the hearing will proceed in his absence and the Tribunal will decide the appeal without the appellant’s participation or input.

17After soliciting available dates from the appellant and the other parties, the Tribunal scheduled a second three-day hearing to take place in Ottawa on March 20-22, 2018.

18All parties, including the appellant, were given notice of the time and location of the hearing. Tarion’s representative stated that he personally spoke with the appellant by telephone a few days before the hearing and confirmed that the appellant was aware of the scheduled hearing.

19At the start of the hearing in Ottawa on March 20, 2018, representatives from Tarion and the added party were present and prepared to proceed. However, as before, the appellant did not attend, and did not inform the parties or the Tribunal of his intention to be absent. I was informed that the appellant did not disclose any documents or witness statements in advance of the hearing as required by the Tribunal’s Rules.

20The hearing was peremptory on the appellant and it therefore proceeded in the appellant’s absence. The onus was on the appellant to prove his claims. Since the appellant did not attend, called no evidence, and made no submissions, he failed to prove his claims and his appeal must be dismissed.

21Under s.16 of the Act, after holding a hearing, the Tribunal may, by order, direct the Tarion to take such action as the Tribunal considers Tarion ought to take in accordance with the Act and the regulations. In light of the facts outlined above, I make the following order.

Order

22Pursuant to s. 16 of the Ontario New Home Warranties Plan Act, I direct Tarion to deny the appellant’s claims for warranty as set out in Tarion’s decision letters dated August 17, 2016, October 18, 2016, March 31, 2017, May 12, 2017, and June 22, 2017.