Date: 2018-03-27

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:

G.M. and L.M.

Appellants

-and-

Tarion Warranty Corporation

Respondent

-and-

Thornhill North Inc.

Added Party

DECISION AND ORDER

Adjudicator: Mary Ann Spencer, Member

Appearances:

For the Appellant: G.M., representing himself and L.M.

For the Respondent: Daniela Corapi, Counsel

For the Added Party: Carol Street, Counsel

Place and Dates of Hearing: Toronto, Ontario

January 23-25 & 29, 2018

REASONS FOR DECISION AND ORDER

A. Overview

1This is a hearing before the Licence Appeal Tribunal (the “Tribunal”) of an appeal by G.M. and L.M. (the “appellants”) of a decision of Tarion Warranty Corporation (“Tarion”) under the Ontario New Home Warranties Plan Act (the “Act”). In its Decision Letter dated June 26, 2017, Tarion denied the appellants’ claims with respect to alleged defects in a new home they purchased from Thornhill North Inc., one of the companies operating under the umbrella group of Remington Homes (“Remington”).

2The appellants appealed Tarion’s decision on 68 items which they had submitted on their Year-End claim form. During the hearing, G.M. advised that they wished to withdraw their appeal of 16 of those items. Decision Letter items 9, 16, 48, 50, 51, 53, 56, 68, 69, 79, 80, 90, 92, 94, 97 and 98 were withdrawn.

3During the hearing, G.M. began to lead evidence with respect to items not included in the Decision Letter under appeal, in particular, scratched faucets, an item which was not included on the appellants’ Year-End form, and air conditioning, item 3 on the Year-End form. I did not allow the testimony and explained that I could only make decisions on the items included in the Decision Letter. The air conditioning item was not assessed by Tarion due to weather conditions at the time of the conciliation inspections. I explained, and Ms. Corapi confirmed, that the appellants could request Tarion to return to assess the item. If necessary, they could then request a Decision Letter and file an appeal of the decision. I also did not admit documents G.M. requested be entered as evidence during his cross-examination of Ms. Scheibmayr because they related to items which were not under appeal.

4For the reasons below, I find claim 26 relating to grout in the master ensuite shower stall and claims 86 and 89 relating to exterior brushcoating of the foundation to be warranted. The appellants’ claims with respect to all other items under appeal are denied.

B. BACKGROUND

5The appellants signed the Agreement of Purchase and Sale (“APS”) for their home on June 23, 2014. They subsequently requested some modifications to the home’s floor plan which included the addition of an ensuite bathroom to bedroom # 3 and changes to the layout of closets and the master bath. They also selected various finish upgrades which are itemized on the Schedule Z to three Amendments to the APS. The final purchase price on the third Amendment to the APS signed by the appellants on April 18, 2015 was $1,537,873, an increase of $67,883 over the original purchase price.

6The appellants took possession of the home on September 3, 2015. On September 2, 2015, they completed a Pre-Delivery Inspection form (“PDI”), which documents the alleged defects they found in the home at the time of possession.

7The appellants did not move into their home immediately upon possession. Rather, they undertook renovations which included removing and replacing the kitchen; retiling the kitchen floor; removing the hardwood and carpeting installed by the builder and installing new hardwood which was sanded and stained in the home; increasing the height of archways on the home’s main floor; changing the railing on the staircase from the main to the second floor and staining the stairs to match the new hardwood; altering the staircase to the basement and removing the drywall around that staircase; repainting the ceilings and walls; and, finishing the basement. G.M. could not recall the exact date the appellants moved into the home.

8Regulation 892 sets out the requirements with respect to the administration of the statutory warranties. The process is also set out on Tarion’s website. In summary, for first year warranty coverage, homeowners may submit claims on a 30-Day statutory warranty form. They may also submit claims on a Year-End statutory warranty form. Copies of these forms must be submitted to the builder who then has 150 days to repair or resolve the claims covered by warranty. If they are not resolved, homeowners may request conciliation by Tarion at any time from the 121^st to the 150^th day.

9The appellants filed a 30-Day form with Tarion on October 2, 2015 and a Year-End form on September 3, 2016. Conciliation inspections of the items on the Year-End form were conducted by Tarion on March 28 and May 9, 2017. The items which were assessed as not warranted are the subject of this appeal.

10The appellants are seeking $77,070 to remedy the alleged defects in their home. This amount represents the total of quotes they have received from contractors and the estimates provided by G.M. based on his knowledge and experience. In addition, they request $12,500, comprised of $1,000 in incidental costs, a temporary relocation allowance of $4,500 for the 30 days they estimate they will be required to vacate their home during bathroom renovations, an inconvenience fee of $5,000 and a $2,000 project management fee.

C. ISSUES

11The issues to be determined in this appeal are:

(a) whether there has been a breach of warranty, and,

(b) whether the appellants have suffered damages as a result of the breach.

12If it is established that there is a breach of warranty and that the appellants have suffered damages as a result of the breach, the Tribunal must determine the appropriate remedy.

D. LAW

13The warranties applicable to the appellants’ Year End claims are set out in section 13 of the Act:

13 (1) Every vendor of a home warrants to the owner,

(a) that the home,

(i) is constructed in a workmanlike manner and is free from defects in material,

(ii) is fit for habitation, and

(iii) is constructed in accordance with the Ontario Building Code;

(b) that the home is free of major structural defects as defined by the regulations; and

(c) such other warranties as are prescribed by the regulations.

(2) A warranty under subsection (1) does not apply in respect of,

(a) defects in materials, design and work supplied by the owner;

(b) secondary damage caused by defects, such as property damage and personal injury;

(c) normal wear and tear;

(d) normal shrinkage of materials caused by drying after construction;

(e) damage caused by dampness or condensation due to failure by the owner to maintain adequate ventilation;

(f) damage resulting from improper maintenance;

(g) alterations, deletions or additions made by the owner;

(h) subsidence of the land around the building or along utility lines, other than subsidence beneath the footings of the building;

(i) damage resulting from an act of God;

(j) damage caused by insects and rodents, except where construction is in contravention of the Ontario Building Code;

(k) damage caused by municipal services or other utilities;

(l) surface defects in work and materials specified and accepted in writing by the owner at the date of possession.

14Regulation 892 sets out the warranties with respect to substitutions, including:

18 (1) Every vendor of a new home warrants to the owner that the vendor shall make no substitutions in those items of construction or finishing for which the purchaser is entitled to make selection pursuant to the purchase agreement without the written consent of the purchaser.

15Section 14(3) of the Act provides that homeowners are entitled to receive payment from the guarantee fund for breaches of warranty if there are damages resulting from the breach.

16Section 16 of the Act sets out the powers of the Tribunal with respect to a decision of Tarion. The Tribunal may order Tarion to take action in accordance with the Act and regulations and may substitute its opinion for Tarion’s.

E. SUBMISSIONS

Appellants’ Submissions

17It is the appellants’ position that their claims should be warranted because they did not receive the quality of workmanship which they paid for. They chose to upgrade various finishes in their home after observing “exquisite” bathrooms and “top of the line” workmanship and quality at the builder’s model home and decor centre but they received “subpar construction”. G.M. submitted that the standards set out in the Ontario Building Code (“OBC”) and Construction Performance Guidelines (“CPG”) used by Tarion to assess warranty eligibility are minimums by which his home and its upgrades should not be judged. Further, the items under appeal were assessed as defects by both a qualified home inspector and by the licensed contractors from whom he obtained quotes for repair.

18G.M. also submitted that despite conducting numerous inspections of the appellants’ home, the builder failed to perform acceptable repairs. Remington delayed repairs for an unacceptable period of time thereby forcing the appellants to undertake some repairs themselves.

19G.M. further submitted that Tarion’s first conciliation inspection was conducted by an inexperienced inspector and that Tarion failed to hire experts to assess complex matters. He suggested that the Tarion inspectors were inappropriately influenced by the builder’s representative before the conciliation inspections took place.

Tarion’s Submissions

20Ms. Corapi submitted that the appellants failed to prove that there are any breaches of the statutory warranty. The appellants’ home inspection reports should not be given any weight because the inspector was not called as a witness and no curriculum vitae was provided to support what qualifications he might have. The quotes submitted by contractors do not comprise expert opinion. Further, some of the appellants’ claims are design issues which are not covered by the warranty and some are speculative in nature.

21Ms. Corapi submitted that the appellants are seeking unrealistic standards of perfection and referred me to the Tribunal’s decision in Hoffer (Re), [2008] O.L.A.T.D. No 3, which re-iterates the principle set out in Mark Teitelman (1987) 16 CRAT 179:

Floors in stairs will squeak, wood will shrink and will cracks will appear and paint will peel. All that can be done is to keep these imperfections at reasonable acceptable levels. The limited warranty provided by the Ontario New Home Warranties Plan Act recognizes these facts and this Tribunal is obligated to make findings in accordance with the statutory provisions and not otherwise.

The Hoffer decision also cites Saporita (re) [1999] O.C.R.A.T.D. No. 166:

Perfection and nothing less than perfection is not a reasonable expectation when dealing with what can be termed a standard home. One does not live in a perfect world and allowances must be made for minor imperfections.

22Ms. Corapi stated that the standards used by Tarion to assess claims are not based on the amount of money spent on a home. The appellants’ claims were assessed using the Construction Performance Guidelines and found to be within accepted tolerances. She referred me to Ontario (8149/ONHWPA (Re) [2015] O.L.A.T.D. No. 41. At paragraph 11, the Tribunal wrote:

Building construction is not a science calculated by computer to fine tolerances. There will be gaps, cracks, twists and bends as a house is built. Tarion has published the CPG to establish a starting point for determining when the inevitable imperfections attract warranty coverage. It is not law but this Tribunal has recognized that it is a good starting point and uses it with the application of common sense to determine if a particular condition attracts warranty coverage.

23Ms. Corapi further submitted that the appellants have placed unreasonable expectations on the builder and referred me to Lakhan (Re) [2006] O.L.A.T.D. No. 226, a case in which the appellants took the position that all the brickwork in their home required replacement and therefore did not allow repair to correct the colour of certain bricks. At paragraph 42, the decision states:

...the Tribunal finds that by placing unreasonable, unrealistic and unobtainable conditions on the builder, the Applicants have refused and failed to permit the builder the opportunity to rectify the complaints of the Applicants. This has in effect denied Tarion the opportunity to mitigate damages. Consequently, there are no damages to compensate and the Applicants have disentitled themselves to warranty coverage.

24Finally, Ms. Corapi submitted that alterations made by the appellants, which are excluded from warranty coverage, contributed to spoliation of the evidence.

Remington’s Submissions

25Ms. Street submitted that additional warranty rights are not conferred because the appellants purchased upgrades to their home. Their claims cannot be assessed against a standard of perfection. Further, the Act does not provide warranty coverage for design flaws.

26Ms. Street also submitted that in addition to the exclusion from warranty coverage that the Act sets out for alterations made by the homeowners, the Tribunal must also consider the exclusions for normal wear and tear and normal post-construction shrinkage.

27Ms. Street further submitted that undue weight should not be placed on the appellants’ home inspection reports when the inspector did not testify at this hearing. She referred me to Starson v. Swayze, [2003] 1 SCR 722, 2003 SCC 32, which addresses hearsay evidence. At paragraph 113, the Court notes that hearsay evidence is admissible under the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, and states:

The weight to be accorded to such evidence is normally a matter that is left to the discretion of the Board. Nonetheless, the Board must be careful to avoid placing undue emphasis on uncorroborated evidence that lacks sufficient indicia of reliability…

28Ms. Street stated that Remington is a reputable builder with an excellent record with Tarion. G.M. did not submit evidence to support the appellants’ claims that the items under appeal represent defects; rather, he has unreasonable expectations.

F. EVIDENCE, ANALYSIS AND DECISION

29G.M. testified on behalf of the appellants. His evidence was comprised of home inspection reports prepared by H.I. Home Inspection Services Corporation dated September 28, 2015, August 24, 2016 and November 7, 2017 and various contractors’ quotes for repairs. He relied on the photographs taken by Tarion’s Warranty Assessment Representatives, which are contained in the books of documents submitted by Tarion. G.M. testified that he has no formal background or training in the building industry and minimal knowledge of the OBC but assessed his construction knowledge as above average because he has renovated and customized previously owned homes, one of which was purchased new from its builder.

30Warranty Services Representative Glen Campbell and Senior Warranty Services Representative Karin Gaupholm testified on behalf of Tarion. Mr. Campbell has been employed by Tarion for approximately 2.5 years and has completed training courses in the OBC. Mr. Campbell, accompanied by Warranty Services Representative Amanda Hickey, conducted a conciliation inspection of the appellants’ home on March 28, 2017. Ms. Gaupholm has worked for Tarion since 2003 and has held her current position for approximately 7 years. She has completed training in Part 9 of the OBC. Ms. Gaupholm conducted a second conciliation inspection of the appellants’ home on May 9, 2017 at the appellants’ request.

31Heidi Scheibmayr testified on behalf of Thornhill North Inc. Ms. Scheibmayr is the Customer Relations Manager at Remington Homes, the umbrella group which includes Thornhill. Ms. Scheibmayr has worked for Remington for 23 years and has training in Part 9 of the OBC. Ms. Scheibmayr attended both conciliation inspections conducted at the appellants’ home.

32The onus is on the appellants to prove, on a balance of probabilities, that there has been a breach of warranty. In order for their claims to succeed, they must also prove that they have suffered damages as a result of the breach.

33A summary of the evidence and my analysis and decision is set out below using the claim numbers from Tarion’s decision letter. For the purpose of this analysis, I have grouped similar or related claims together. Unless otherwise specified, the photograph numbers I refer to are those contained in Volume 1 of Tarion’s books of documents.

Interior Claims:

Claim 1: Attic Space – Need to make sure that enough insulation is applied in the attic space

34G.M. testified that he is concerned that the insulation in the appellants’ attic may be inadequate. Remington only measured the area around the attic access hatch and the Tarion inspectors did not measure the insulation at either conciliation inspection. On cross-examination, he stated his home inspector did not enter the attic but viewed the insulation from the hatch.

35Mr. Campbell testified that he did not inspect the attic insulation because there was no ladder available to access the hatch. Ms. Gaupholm explained that Tarion inspectors are not allowed to go into the attic spaces. Ms. Scheibmayr testified that, accounting for settlement, the amount of insulation in the attic is sufficient based on the manufacturer’s guidelines.

Decision

36Photographs taken by the builder show the depth of insulation in the attic to be between 17” and 19”. A photograph of the insulation specifications indicates that 18.5” is required. I accept Ms. Scheibmayr’s testimony that some variance may be due to settlement.

37G.M. presented no evidence to support that there is insufficient insulation in the attic. He provided no measurements and admitted “I didn’t follow through with proper verification”. I find the appellants’ claim to be speculative. They have not established a breach of warranty and therefore claim 1 is denied.

Claim 5: Den/Study – French doors are not closing properly, large space between French doors are not painted properly between the glass inserts

38G.M. testified that the French doors are of poor quality, are not painted properly and are “an eyesore”. He agreed that the doors were pre-painted at the factory and that the glass is inserted into grooves, the interior of which is not painted. His concern is that the bevelled glass reflects this unpainted surface. He indicated it would be impossible to paint the grooves without removing and possibly breaking the glass and stated “they should never have been manufactured this way”. G.M. estimated the cost of replacing the doors to be $1,500.

39Mr. Campbell confirmed that the area G.M. pointed out at his inspection was the groove in which the glass of the French doors sits. Ms. Gaupholm testified that the door is operating “normally and freely” and that the alleged defect cannot be seen from a normal viewing distance.

Decision

40The fact that the interior of the grooves into which the glass is inserted was not pre-painted by the manufacturer is not evidence of a defect in the builder’s workmanship. The evidence is that the door functions properly. While the unpainted interior grooves may not be aesthetically pleasing to the appellants, they do not comprise a defect in materials. Therefore, I find there is no breach of warranty and claim 5 is denied.

Claim 8: Laundry Room – Laundry tub supply hot and cold supply lines were never connected by the builder

41G.M. testified that the water supply lines for the laundry tub were used to connect the appellants’ washer because the washer lines were not active when he took possession of his home. The builder was aware of the problem but G.M. had his own plumber perform the work because the washer was needed when the family moved into the home. The appellants are requesting reimbursement of their costs. G.M. provided an estimate in the amount of $4,746 from Cast Plumbing dated November 14, 2017 which includes an item “for the work to drill holes in the cabinet and connect dryer and washer water lines to the plumbing beneath the cabinet”.

42G.M. stated that he did not recall that the builder attended his home on November 18, 2015 to perform repairs but could not because the appellants’ trades were working in the home. Ms. Scheibmayr explained that Remington’s trades were not allowed to work in the home because it was not a safe environment during the appellants’ renovations.

43Ms. Gaupholm testified that because the homeowner had already had the water connected, she could not observe the original state and therefore Tarion considered the issue to be resolved.

Decision

44The warranty claims process set out in Regulation 892 and on Tarion’s website clearly indicates that the builder must be given an opportunity to resolve issues. Tarion becomes involved in the process if the builder fails or is unwilling to make repairs.

45G.M. did not provide any evidence to support when he notified the builder or that the builder was unwilling to remedy the item. The evidence is that the builder was prepared to make repairs. Dated photographs taken on November 18, 2015 show the renovations underway at the appellants’ home which Ms. Scheibmayr stated prevented Remington from undertaking repairs.

46It is unclear when the appellants’ had the plumbing work done. To support their claim for reimbursement, G.M. submitted a plumbing estimate dated November 14, 2017 and not an invoice from 2015. While the water connection may not have proceeded as quickly as the appellants might have preferred, G.M. presented no evidence to support that the repair would be unreasonably delayed. Claim 8 was resolved voluntarily by the appellants and Tarion could not inspect the item. I find there is no breach of warranty and claim 8 is denied.

Claim 10: Ceiling – nail pops throughout first floor

Claim 11: Wall – nail pops throughout first floor

Claim 12: Wall – Multiple wall defects throughout main floor

Claim 38: Ceiling – nail pops throughout second floor

Claim 39: Wall – nail pops throughout second floor

47G.M. referred to photographs taken by Tarion to support his claims with respect to defects in the walls and ceilings of his home. He highlighted photograph 29 which shows a small indentation in the drywall at the bottom right hand corner of a light switch. He also referred to photographs 40 and 41 in Volume 2 of Tarion’s documents and testified there are indentations and drywall tape coming off the depicted wall but stated “it is hard to see the extent of damages on the wall but it’s there”.

48G.M. testified that Remington acknowledged the ceilings in the appellant’s home were an issue and offered to repaint them. However, that offer was unacceptable to the appellants because the work would be performed in the new year, almost four months after the date of possession. Therefore, the appellants hired a contractor to do the work before they moved into the home. They are requesting $3,799 plus HST, the cost of drywall repairs to the stairwell and front hall ceilings and the cost of repainting the first and second floor ceilings which is set out in an estimate from The Home Improvement Group dated November 20, 2017. G.M. clarified that the drywall repairs made by the contractor were only to areas renovated by the appellants.

49On cross-examination, G.M. agreed that when he purchased an upgrade to smooth ceilings on March 11, 2015, he also signed a disclaimer acknowledging that smooth ceilings might create a shadowing effect. He also agreed that Remington offered to repair the drywall in his home but stated they were not prepared to sand or paint it. He agreed Remington did make some repairs.

50Referring to photographs 22, 23, 24, 73 and 74, Mr. Campbell testified that G.M. was concerned about waviness in the ceilings and walls and did not point out nail pops at the conciliation inspection. G.M. directed him to a wall which Mr. Campbell measured with a level as depicted in photographs 76 and 77. He observed no waviness. Mr. Campbell also testified that he could not determine who was responsible for the indentation in the drywall near the light switch because the area had been repainted by the appellants’ own contractor.

51Ms. Gaupholm testified that G.M. showed her the drywall in the stairway area of his home to assess waviness. She observed some undulation but assessed this as minor and therefore did not warrant it. She also stated that the area could have been affected when the appellants removed the drywall around the staircase to the basement.

52Ms. Scheibmayr testified that Remington was prepared to patch and fill the drywall irregularities listed on the Year-End form but was not prepared to sand and paint because the appellants had already painted their home. She referred to an October 19, 2016 letter sent to and signed by the appellants which sets out these terms. She further testified that the builder did perform drywall repairs on November 21, 2016. G.M. stated that Remington’s letter was misleading and that the drywall repairs were inadequate.

Decision

53G.M. submitted no evidence with respect to nail pops, the defect set out in claims 10, 11, 38 and 39. The evidence of both Tarion inspectors is that his concern was with waviness in the ceilings and walls. While waviness is not specified in the claims, the evidence is that the appellants signed a waiver acknowledging that smooth ceilings could create a shadowing effect which I note might be interpreted as waviness. I further note that the Warranty Assessment report prepared by Mr. Campbell does indicate that he was shown a nail pop on the west wall of the second floor near the hallway banister but he could not determine if this was original construction or the result of renovations. G.M. did not present any evidence with respect to this area.

54With respect to Claim 12, G.M. failed to submit evidence to support the multiple wall defects claimed. I have reviewed the photographs he highlighted, and, as he himself testified, there is no damage visible. The only defect G.M. could direct me to is a small indentation in the drywall at the corner of a light switch. However, because the area was repainted by the appellants’ painting contractor, I cannot attribute this small imperfection to the builder.

55In the absence of any evidence supporting the existence of defects attributable to the builder, I find the appellants did not establish that claims 10, 11, 12, 38 and 39 are breaches of warranty and therefore these claims are denied.

Claim 37: Master bedroom floor inside the smaller closet moves up and down and creaks, possible issue with the joist installation

56G.M. testified that the floor squeaks inside a closet in his home’s master bedroom. He stated that the appellants claimed the floor squeak on the PDI before they removed the carpet from the bedroom and installed hardwood. He then clarified that the squeak was not in the closet but in the small hallway near the entrance to the closet as the PDI states. He further testified that both the builder and his own contractor have advised him that he would have to remove the hardwood in order for them to determine if there was a defect in the subfloor.

57Ms. Gaupholm testified that because the original flooring had been replaced in the appellants’ home, she could not determine the cause of the floor creak. Ms. Scheibmayr testified that the builder had stapled the under pad to the master bedroom subfloor and secured the carpet with tack strips. She stated that removing the carpet and securing the new hardwood could have affected the floor.

Decision

58Item 14 on the PDI includes an item “Homeowner concern floor creak, leading to ensuite”. I note that the 30-Day form does not include this item. G.M. testified that the creak was actually in a closet. Regardless of where the alleged creak is, G.M. did not provide any evidence to support that there is a defect in the materials or workmanship provided by the builder. Both Remington and G.M.’s own contractor have advised that investigation of the subfloor would require removal of the hardwood installed by the appellants. This has not been done. Further, because the carpet was removed and hardwood was installed by the appellants, I cannot determine that the builder is responsible for this item. Therefore I find that a breach of warranty has not been established and claim 37 is denied.

Second Floor Bathroom Claims:

59G.M. testified that when the appellants purchased their home, they initially purchased standard finishes for many items. Because the builder’s prices were high, they decided to accept standard installations for items such as the kitchen and hardwood flooring and to install their own after they took possession of the home. However, G.M.’s spouse did not want to live through bathroom renovations. After visiting the builder’s model home and decor centre, they decided to purchase bathroom upgrades. They spent thousands of dollars but received a “subpar installation”. Had they known the quality they would receive they would have accepted standard finishes and renovated the bathrooms after they took possession. G.M. stated that “all of the experts who visited our house say the bathrooms need to be demolished”.

60G.M. testified that the appellants offered to accept $30,000 as compensation for all of the alleged bathroom defects but Remington refused the offer on the basis it was excessive. They are now requesting $47,850, including HST, to renovate the four bathrooms on the second floor of their home. These amounts represent the total of quotes from the Home Improvement Group for demolition and repainting, from Rivalda Ceramic Tiles Inc. for tiles, from Renaissance Mosaic and Stone Tile Ltd. for tile installation, from Cast Plumbing for plumbing and from KitchenStar Cabinets for the cost of one vanity and countertop.

Claim 15: Ensuite to bedroom 4, electrical plug for the toilet bidet is not wired properly, when bidet operates, lights flicker

61G.M. testified that he paid $500 to the builder to have an additional electrical outlet installed in each bathroom in his home to permit the installation of bidets. However, the light over the vanity flickers or the circuit breaker trips when the one bidet which has been installed is used. He believes the circuit is overloaded and the builder, knowing the additional outlets were for bidets, did not properly consider the circuit loads when it agreed to install the additional outlets. He believes re-wiring will be required to fix the problem.

62G.M. further testified that the vanity light has flickered since he replaced the one installed by the builder with what he described as a standard light. He stated that he has not contacted the Electrical Safety Authority (“ESA”) to investigate the problem. He agreed that when the builder had an electrician investigate in December, 2016, the electrical outlet at issue was found to be installed correctly.

63Mr. Campbell and Ms. Gaupholm both testified that the Electrical Safety Authority (“ESA”) is the agency with jurisdiction over the electrical code. Mr. Campbell could not recall whether or not he advised G.M. to contact the ESA when he conducted his conciliation inspection. However, his Warranty Assessment Report explains that the appellants should contact the ESA and then provide Tarion with its findings.

Decision

64G.M. does not dispute that the electrical outlet was inspected by an electrician retained by the builder and found to be correctly installed. The home warranty set out in the Act covers defects in workmanship and materials and violations of the OBC. There is no evidence of any defect in the installation of the outlet. G.M. did not contact the ESA and there is no evidence to support that there is a defect in the circuit wiring. There is no evidence of a breach of warranty and therefore I find claim 15 is denied.

Claim 17: Ensuite to master bedroom, large lippage on floor tile.

Claim 18: Ensuite to bedroom 2, tile around tub has large lippage, it is sticking out.

65With respect to claim 17, G.M. stated that the entire master ensuite floor must be replaced in order to correct a large lippage on one tile in the centre of the room. He also stated that the floor is not level and referred to a November 11, 2017 quote from Renaissance Mosaic and Stone Tile Ltd. which makes reference to levelling the floor when tile is laid. He also referred to the November 7, 2017 home inspection report which states “floor tiles slope due to unprepared floor prior to installation”. With respect to claim 18, G.M. referred to Tarion’s photographs 45, 46 and 47 which he indicated all show defects. He also stated that the home inspection report is evidence of the tile lippage issue at the tub area.

66G.M. testified that the builder had offered to address a number of the bathroom items including replacing the tile on the master bathroom floor and around the tub in the ensuite to bedroom 2 but he refused the repairs because the grout around the replaced tiles would not match the existing grout. He stated he “wasn’t ready to accept a patch-up”.

67Ms. Gaupholm testified that Tarion uses the guidelines prepared by the Terrazzo, Tile and Marble Association of Canada (“TTMAC”) to assess tile installation. She explained that the acceptability of tile lippage is determined by the size of the tile and the width of the grout joint. She measured the lippage on the tile in the master ensuite and in the ensuite to bedroom 2 and found the lippage to be within the guidelines’ acceptable limit. Mr. Campbell testified that he also measured the tiles in both bathrooms and found the lippage to be acceptable.

Decision

68G.M. presented no evidence to establish that there is a breach of warranty with respect to the tile lippage in the master ensuite or the ensuite to bedroom 2. Therefore I find claims 17 and 18 are denied.

69G.M. stated that the home inspection report indicates that the lippage is unacceptable. I have reviewed the reports but find no reference to tile lippage in the September 28, 2015 or the August 24, 2016 reports. The November 7, 2017 report does state “tiles are not sitting flat or flush to each other” under the titles “Master Bathroom” and “Ensuite Bathroom 2”. However, I can place little weight on the contents of the home inspection reports.

70The three home inspection reports which G.M. submitted as evidence in this appeal contain lists of items with very brief descriptions. The September 28, 2015 report, the longest of the three submitted, contains over 65 items on three pages. The reports contain no photographs, no detailed assessment of the observations /findings and a limited number of recommendations. The only measurement in the report is of the height of a bathroom cabinet. While G.M. testified that the inspector was “diligent and attentive”, a curriculum vitae was not provided with the reports and G.M. testified that he did not ask the inspector about his qualifications and does not know whether he is certified. The inspector did not testify at this hearing. G.M. stated that he did not need to call the inspector as a witness because the defects are obvious.

71I also note that the November 7, 2017 report produced by the inspector is dated well after the appellants filed their Year-End form on September 3, 2016. This raises questions with respect to the independence of the findings the report contains. For example, while the September 28, 2015 report includes observations with respect to the bathrooms, it is not until the November 7, 2017 report that the inspector writes “all bathrooms will need to be removed and redone”.

72G.M. provided no measurements to indicate that the lippage on the tiles in either the master ensuite or the ensuite to bedroom 2 exceeds the allowance set out in the TTMAC guidelines. While I note that these guidelines are not legislated, they establish objective industry standards. G.M. stated a number of times during this hearing that his home should not be judged by these “minimum standards” because he purchased a number of upgrades. However, as Ms. Corapi submitted, it has been well established by this Tribunal that the standard of construction and repair is not perfection.

73I note that G.M. also testified that the master bath floor is sloped, a defect he indicated he became aware of when Renaissance Mosaic and Stone Tile came to his home to quote on tile replacement. This item was not included in the appellants’ Year-End form. Therefore it was not assessed by Tarion and no decision was issued. The Tribunal can only hear appeals of decisions by Tarion and I make no finding with respect to this issue.

Claim 19: Some spots in all showers missing grout.

Claim 33: Ensuite to master bedroom, defect on shower wall tile.

74G.M. referred to Tarion’s photograph 48 and testified that there is missing grout not only in the bathroom depicted but also in the master bath and the bathrooms ensuite to bedrooms 3 and 4. With respect to claim 33, he stated there is a defect in a tile in the master ensuite shower. He referred to Tarion’s photograph 68 but noted that the defect was covered by a finger in the photograph.

75Ms. Gaupholm testified that the grout missing in photograph 48 is a small pinhole and not visible from a normal viewing position. Mr. Campbell testified that there is a small scratch on the tile in photograph 68. Ms. Gaupholm testified this tile scratch was not readily visible.

Decision

76Other than the shower floors, items which I address separately below, G.M. provided evidence of only one defect in the grout in his home’s bathrooms. This is a visible small brown mark in Tarion’s enlarged photograph 48. Ms. Gaupholm testified that the mark is a pinhole which is not visible at a normal viewing distance. I note that the mark cannot be seen in photograph 49, which is not enlarged. With respect to claim 33, photograph 68 of the master ensuite shower wall is also enlarged. The small scratch Mr. Campbell testified he is pointing to on the tile is not discernible and I find it highly unlikely that he was covering the scratch in a photograph taken to document an area of concern. A small pinhole in the grout and a small scratch on a tile are de minimis and do not constitute warrantable defects in workmanship and materials. Therefore I find claims 19 and 33 are denied.

Claim 20: Ensuite to bedroom 2, tub drain pipe inside tub is not centered

77G.M. referred to photograph 50 and testified that the drain in the bathtub is not centered and is an “eyesore”. He acknowledged that the builder offered to repair this item but stated that the repair would require removal of a portion of the laundry room ceiling which the builder was not prepared to paint after repair. Ms. Gaupholm testified that she measured the drain to be off centre by 2 mm which she assessed as minor and not readily visible.

Decision

78I have reviewed photograph 50 in Volume 1 of Tarion’s books of documents. In addition, I reviewed photograph 51 in Volume 2 of Tarion’s books of documents. I find that the drain’s off-centre placement is minor and not readily visible. A differential of 2 mm, which G.M. did not dispute, does not comprise a defect in workmanship. Therefore, I find that claim 20 is not a breach of warranty and the claim is denied.

Claim 23: Ensuite to bedroom 2, height of cabinet is too low for standard height

Claim 24: Ensuite to bedroom 4, cabinet moves up and down, not properly installed

79G.M. testified that he selected upgraded 36” height vanity cabinets for three of the bathrooms on the second floor of his home. He did not upgrade the fourth which he explained was to be used by one of his children. The cabinet he received is not what he saw in the decor centre, although he admitted he did not measure that cabinet. The installed cabinet is 31” high and should be 32 1/3” high as set out in the November 7, 2017 home inspection report. He requests that it be replaced. With respect to the vanity in the ensuite to bedroom 4, he testified that it moves when he places his weight on it. He is requesting it be removed and re-installed.

80Mr. Campbell testified that he measured the height of the vanity in the ensuite to bedroom 2 at approximately 31” as shown in photograph 51. Both Mr. Campbell and Ms. Gaupholm testified that there is no established standard for the height of bathroom vanities. Ms. Gaupholm also testified that she reviewed the APS and the height of the vanity at issue is not specified. With respect to claim 24, both Mr. Campbell and Ms. Gaupholm testified that they tried to move the vanity and it was stable.

Decision

81I do not accept the November 7, 2017 home inspection report as reliable evidence with respect to the height of the vanity. The report references no standard for the finding that the vanity should be 32 1/3” high. And, as previously noted, the credentials of the inspector are unknown and he did not testify at this hearing. Rather, I accept the evidence of Mr. Campbell and Ms. Gaupholm, both of whom have training in the OBC, that there is no established standard for the height of bathroom vanities. I note G.M. did not provide me with any standard. Further, the APS does not specify the height of the vanity. Therefore I find claim 23 is not a breach of warranty and is denied. I also accept the inspectors’ evidence that they found no movement in the vanity in the ensuite to bedroom 4. G.M. presented no evidence to support the existence of any defect. There is no evidence of a breach of warranty and therefore claim 24 is denied.

Claim 25: Ensuite to bedroom 4, shower wall where shower faucet is installed is crooked

82G.M. testified that one of the walls in the shower of the ensuite to bedroom 4 is visibly crooked at an area above the floor and referred to photograph 55. He questioned the fact that the Tarion inspectors measured different variances in the wall and noted that he does not care whether the variance falls within standards given the amount the appellants paid to have this additional bathroom constructed. He acknowledged the builder offered to repair the wall, but stated he refused the repair because only one wall would be addressed and the grout colour in the shower would not be matched. The shower needs to be completely reconstructed.

83Ms. Gaupholm testified that G.M. measured the wall with a level and found it to be out by 10 mm. She also measured the wall with a level and found it to be 6 mm off plane. Mr. Campbell testified that he measured the variance as 3 mm. Both inspectors testified they did not warrant this item because Tarion’s Construction Performance Guidelines allow a variance of up to 15 mm.

Decision

84I have reviewed the Construction Performance Guidelines which state “...where bowed framing causes local distortion, the variation shall not be more than 15 mm from the specified plane”. While I note the CPG are not binding, they provide a standard against which to assess construction. I acknowledge the difference in the measurements taken. However, all of them, including the 10 mm measured by G.M., are well within the acceptable tolerance. There is no evidence to support a breach of warranty and therefore claim 25 is denied.

Claim 26: Master bedroom ensuite, grout refinisher discoloring on shower floor.

Claim 27: Ensuite to bedroom 3, grout refinisher discoloring on shower floor.

Claim 28: Ensuite to bedroom 4, grout refinisher discoloring on shower floor.

Claim 30: Master bedroom ensuite, marble at ceiling at shower area has different color caulking.

85G.M. testified that the builder did not install the grout colours the appellants chose to match the tiles on their shower floors. To remedy this, the builder applied a grout refinisher to change the colour.

86G.M. testified that the appellants selected charcoal grout for the shower floors in the ensuites to bedrooms 3 and 4 but Remington used gray grout. The appellants did not select a grout colour for the master ensuite and therefore the builder’s standard white should have been used. Referring to photographs 60, 63 and 65, he stated that when the issue was raised, Remington applied a refinisher to tint the grout. The refinisher is coming off and the original grout is now visible. He also testified that Remington used a contrasting caulking on the marble shower surround in the master ensuite. He believes the caulking should match the colour of the marble. The appellants are requesting that the bathroom showers be re-tiled.

87Mr. Campbell testified that G.M. did not raise the issue of incorrect grout colour at the conciliation inspection. Referring to photographs 60 and 61 of the master ensuite shower floor, he testified that he observed “something was applied to the grout that was peeling” which G.M. told him was a refinisher. Mr. Campbell assessed that condition resulted from normal wear and tear. He also testified that the grout appeared faded in the ensuites to bedrooms 3 and 4. In the ensuite to bedroom 3, he observed a white residue on the shower floor which he was able to remove by hand. Referring to photograph 65, he indicated that one tile, which is surrounded by a lighter grout, appears to have been replaced. He did not address this item because it was not included on the appellants’ claim.

88Ms. Gaupholm testified that she reviewed the grout selections made by the appellants but was not in a position to know whether the grouts installed were those selected. She stated that it did not appear to her that the colours were incorrect; she observed white grout on the master ensuite shower floor and dark grout in the showers in the ensuites to bedrooms 3 and 4.

89Ms. Scheibmayr testified that all of the grout colours selected by the appellants were used in their home with the exception of the master ensuite shower where bone grout was installed. The appellants did not select an upgrade for the master ensuite shower. “Bright white” colour is the builder’s standard if no upgrade is selected. She further testified that Remington issued a work order to scrape and replace the grout, which she stated was the normal method of repair. She also testified that grout was tinted in some areas. When she accompanied the Tarion inspectors on the conciliation inspections, she saw nothing to indicate the wrong colours had been used. With respect to the claim for caulking in the marble shower surround, she testified that the builder installs white as a standard in this area and this was used in the appellants’ home.

Decision

90Item 83 on the appellants’ 30-Day Form states “Master bedroom ensuite shower tile grout is incorrect color, should be white to match the tile.” With respect to this item, Remington’s March 24, 2016 letter to the appellants states the builder tinted the shower floor tile on February 9, 2016. Ms. Scheibmayr testified that a refinisher was used to tint some of the grout in the appellants’ home, although I note she did not specify where it was applied.

91Ms. Scheibmayr also testified that bone grout was incorrectly used in the shower where bright white should have been installed. Tarion’s photographs 60 and 61 of the master ensuite shower floor clearly show a white substance flaking or peeling off the floor grout revealing what appears to be a light brownish colour which I assess is not inconsistent with bone grout.

92This evidence persuades me that a refinisher was used to change the grout’s colour on the master ensuite shower floor. While Ms. Scheibmayr testified that the builder issued a work order to scrape out and replace the grout, she could not tell me when the work was performed because the order was undated. I note that G.M. suggested that Ms. Scheibmayr’s testimony was untruthful. I find it more likely that Ms. Scheibmayr, who supervises the front-line customer service personnel with whom G.M. dealt, was simply misinformed.

93While the appellants may in fact have agreed to a repair with a refinisher, the photographic evidence is that the repair was inadequate. The grout below the peeling white substance is not white. I find the grout to be a defect in materials and workmanship and therefore I find claim 26 to be a breach of the warranty set out in s. 13 (1)(a)(i) of the Act.

94The evidence with respect to the grout colour on the shower floors of the ensuites to bedrooms 3 and 4 is inconclusive. The photographs of both floors indicate a dark grout was used, consistent with the charcoal colour the appellants selected as an upgrade. In photographs 63 and 64, a portion of the grout surrounding the drain area appears lighter in colour. Mr. Campbell testified that he was able to scrape white residue off this floor. However, while the residue is clearly visible on the tiles themselves, it is not clear that this is responsible for the lighter appearance of some of the grout. In photograph 65 of the other ensuite shower floor, the only discernible lighter grout surrounds a tile which Mr. Campbell stated he believes had been replaced. It is unknown by whom this was done or whether the grout used is the colour which was installed originally by the builder.

95Item 96 on the appellants’ 30-Day form states “Ensuite to bedroom 4 grout in tile, dirty, grout colour does not match what was selected at decor center”. The form lists no similar item for the ensuite to bedroom 3. Remington’s March 24, 2016 letter indicates only that G.M. advised that the item had been addressed when the builder inspected after repairs had been made.

96I do not doubt G.M.’s testimony that a grout refinisher was applied to the shower floors. However, this may well have been applied to enhance the appearance of a grout which, when installed, may have been what the appellants selected but not what they expected. While fading of this refinisher could conceivably be the cause of the lighter appearance of some of the grout, no evidence was submitted to indicate that it is peeling in the ensuites to bedrooms 3 and 4. Mr. Campbell assessed the condition resulted from wear and tear. The degree of maintenance the refinisher might require, including how often it may need to be re-applied to maintain its colour, is unknown.

97The evidence does not allow me to conclude either that an incorrect grout colour was applied in the ensuites to bedrooms 3 and 4 or that there is a defect in the refinishing product which was subsequently applied. The evidence does not establish a breach of warranty and therefore claims 27 and 28 are denied.

98Ms. Scheibmayr testified that the white grout colour used on the marble shower surround in the master bath ensuite is the standard Remington uses for marble. While the appellants might prefer a different colour, I have reviewed the Schedules to the APS and they include no selection was made by the appellants for the grout on the marble shower surround. Therefore, I find claim 30 is not a breach of warranty and the claim is denied.

Claim 34: Ensuite to master bedroom shower door in wrong location, shower door is too short and is not adjusted properly

99G.M. testified that the glass door in the shower stall in the master bedroom ensuite has been attached to the marble jamb which is fastened to the wall. As a result, the door hits the wall when it opens. He believes the door should be between two glass panels, one of which should be attached to the jamb. The door is also too short and too narrow and does not look attractive. Referring to a sketch of the appellants’ requested alterations to the ensuite layout (Exhibit 6), he pointed out that the drawing does not show the shower door attached to the jamb. He acknowledged that he signed a disclaimer with respect to the sketch. To replace the door, he is requesting $2,000 based on a verbal quote he obtained.

100Mr. Campbell and Ms. Gaupholm both testified that they found no defect in the shower door. Ms. Gaupholm and Ms. Scheibmayr both testified that attaching a shower door to a glass panel would make the door less stable and more prone to breakage.

Decision

101I find that there is no breach of warranty with respect to the master ensuite shower door and therefore claim 34 is denied. There is no evidence of a defect in workmanship or materials. The appellants’ concern is with the door’s design and placement. In this regard, I note the Amendment to the APS which sets out changes to bathroom layouts and which the appellants signed on February 22, 2015 states “the purchaser acknowledges having been advised that all sketches and dimensions are approximate and subject to change at Vendor’s sole discretion without notice”.

Garage, Roofing and Exterior Claims

Claim 44: water taps are loose in the wall inside garage

Claim 71: backyard water tap is not properly secured to the wall, shakes

102G.M. testified that the two hose bibbs under appeal are loose, shake and move. He referred to the quote from Cast Plumbing which includes “All exterior faucets are not secured properly. Secure them”. Mr. Campbell and Ms. Gaupholm both testified that they tested the hose bibbs and found only minor movement.

Decision

103I accept the evidence of the Tarion inspectors that the movement they found in the hose bibbs was not excessive. I do not accept the quote from Cast Plumbing as evidence that the bibbs are improperly secured. A quote from a contractor, whose qualifications are unknown, to perform the work is not an independent assessment of a defect. Therefore I find no breach of warranty and claims 44 and 71 are denied.

Claim 45: Garage walls and ceiling are not taped properly

Claim 46: Garage floor multiple cracks and defects in concrete

104G.M. referred to photographs 83 and 84 and stated that the drywall in his garage is not properly taped and was not prepared for painting. He stated that the seams need to be properly repaired with drywall compound. He has no quote for this repair but estimates it would cost approximately $500. With respect to the floor, he stated that it has multiple cracks. He also testified that the garage is not properly sloped and is flooding and referred to two photographs of water accumulation that he took in January, 2018. He has no quote for repair of the cracks.

105Mr. Campbell testified that he found no breach of warranty when he assessed the drywall taping in the garage. Ms. Gaupholm testified that the garage had been painted when she conducted her inspection and therefore she was unable to assess it. She also testified that unless the APS specifies otherwise, the only requirement for finishing a garage is that areas that adjoin living spaces must be gas proofed. Mr. Campbell testified he measured the crack in the floor to be 2 mm in width and assessed it as resulting from normal shrinkage. Ms. Gaupholm described the crack as “hairline” and testified that the Construction Performance Guidelines state that cracks must not exceed 6 mm in width.

Decision

106Schedule A to the appellants’ APS does not indicate that the interior of the appellants’ garage was to be finished. Gas-proofing requires that the spaces adjacent to living spaces be dry walled, taped and have a coat of mud applied. I note that because sanding is not required, the drywall joints may well appear to be roughly finished. However, this does not constitute a defect in workmanship. Therefore, I find no breach of warranty and claim 45 is denied.

107With respect to the crack in the garage floor, the Construction Performance Guidelines state “Cracks resulting from normal shrinkage are acceptable; crack width in excess of 6 mm is not acceptable”. G.M. presented no evidence to contradict Mr. Campbell’s measurement of 2 mm. A measurement of 2 mm is well within the acceptable limit set out in the CPG. Therefore, I find there is no breach of warranty and claim 46 is denied.

108I make no finding with respect to G.M.’s claim that the garage is incorrectly sloped. This alleged defect does not form part of the appellants’ claim and therefore was not assessed by Tarion. As noted earlier in this decision, the Tribunal can only hear appeals of items on which Tarion has made decisions.

Claim 54: roof and shingles above garage door south west slope inwards

Claim 100: some sections of the roof are wavy

Claim 101: shingles on main roof and garage sticking up in places – very poor installation

Claim 55: shingles are curly in several places of the roof

Claim 102: some debris or shingle damage on the roof above the family room

Claim 58: front of the house gets wet during rain below the curved roof

Claim 96: roofing downspouts and gutter installation needs to be checked for proper placement for rain water flow as very large amount of water is draining on the roof above the family room during rain

109G.M. testified that he does not accept Tarion’s decisions with respect to the roofing on the appellants’ home. The inspectors did not go onto the roof to inspect it. He does not believe that they were qualified to inspect; they should have retained a roofing expert. Ms. Gaupholm testified that Tarion inspectors are not permitted to go on the roof for safety reasons. Therefore, they conduct their inspection from the ground using binoculars. If they see an issue, Tarion hires a roofing specialist to further investigate.

110G.M. stated that claims 54, 100 and 101 could be combined because they reflect the same concern. He referred to photograph 99 and testified that the upper right portion of the roof above the garage of his home is not straight and he is concerned that the roof is incorrectly framed. To support claims 55 and 102, he referred to shingle damage in photographs 15 and 16.

111G.M. explained that claim 58 relates to the eyebrow window at the front of his home and referred to photograph 105. He stated that there is a design flaw which creates a high risk of water penetration. Because there is no eaves trough on the roof above the window, a significant amount of water falls on the window and surrounding bricks when it rains. He is concerned that the constant exposure of the cladding to water will ultimately result in mould and leaks. He stated that the roof above the eyebrow window should have a diverter installed to direct water to the home’s eaves troughs.

112With respect to claim 96, G.M. explained that he is concerned about the “placement and validity” of the downspouts on his home. He testified that a very large amount of water flows above the family room which he stated is being overwhelmed by the amount. However, he agreed there has been no water penetration.

113The appellants are requesting compensation of $2,034 to correct all of the roofing issues as set out in a quote from Canadian Superior Roof dated November 8, 2017.

114Mr. Campbell testified that when he viewed the roof over the garage from the ground, he assessed it as being constructed in a workmanlike manner. He observed one slightly damaged shingle on the house which is depicted in photograph 15. He considered the claim relating to the eyebrow window to be a design issue.

115Ms. Gaupholm testified that she observed no waviness in the roof, and no issues with the roof area over the garage or with the roof’s shingles or their installation. With respect to the eyebrow window, she stated that a drip edge is installed. Water will flow over the cladding but any excess would flow out from its weep holes.

Decision

116The photographs of the roof area over the garage to which G.M. referred are enlarged. They depict what appears to be a slight downward slope in a small area of the roof at its right hand side. However, I note the slope is not visible in photograph 101 which is not as enlarged. While G.M. expressed concern that the framing is incorrect, the appellants’ home inspection reports and an estimate for repair from Canadian Superior Roof comprised the only evidence he submitted to support this claim.

117For the reasons I have set out earlier in this decision, I cannot assign weight to the appellants’ home inspection reports. I do note that the reports are not consistent in their findings. The September 28, 2015 report states “shingles on main roof and garage sticking up in places – very poor installation” and “waves and dips on roof over garage”. The August 24, 2016 report states only “some shingles are sticking up at some locations on roof”. There is no reference to shingles in the November 7, 2017 report. This most recent report does include “roof over garage not level at right edge to be straightened” but includes no assessment of the likely cause. None of the reports include any observation relating to incorrect placement of downspouts and eaves troughs.

118I also cannot assign weight to the quote for repair from Canadian Superior Roof with respect to the assessment of defects. No information was provided with respect to the contractor’s qualifications other than the fact the contractor re-roofed a home previously owned by the appellants. An estimate of the cost to perform repairs is not an independent assessment of defects.

119With respect to the eyebrow window, G.M. testified that this is a design issue which I note is not covered by the statutory warranties. He presented no evidence to support his concerns about mould and leaks which I find to be speculative.

120I accept the evidence of the Tarion inspectors, both of whom have training in the OBC, with respect to the roofing issues. Other than the home inspection reports and the quote for repair, the only evidence G.M. provided to support defects in materials or workmanship on the roof were photographs of one scraped shingle and of a slight slope of a small area of the roofing above the garage visible in enlarged photographs. He provided no evidence of specific damages resulting from these small irregularities. Therefore, I find no breaches of warranty and claims 54, 100, 101, 55, 102, 58 and 96 are denied.

Claim 57: Downspouts are not secured properly to the wall

Claim 63: Metal pieces above all windows and front porch are not painted and have rust spots

Claim 65: Support lintels at front porch not painted

Claim 82: Some lintels need cleaning

Claim 66: Flashing protruding from stucco – looks bad and possible area for stucco to be damaged

121G.M. testified that the downspouts in his home were not properly secured but that he has subsequently had them fixed. Mr. Campbell referred to photographs 109 to 112 and testified that he found them to be properly attached.

122With respect to claims 63 and 82, which he advised could be combined, G.M. testified that the flashing over the windows and front porch of his home is not painted. The metal is rusting. He referred me to photograph 125 although he acknowledged there are no rust spots visible in the photograph. He stated the rust spots need to be cleaned and the metal painted in a lighter colour to support the colour scheme of the appellants’ home. With respect to claim 65, he testified that the lintels above the arches on the front porch of his home were not painted well enough by the builder and referred me to photograph 33 in Volume 2 of Tarion’s book of documents.

123G.M. further testified that the flashing above the stucco on his home is damaged. He referred to the September 28, 2015 home inspection report which states “flashing protruding from stucco – looks bad and possible area for stucco to be damaged.” Mr. Campbell, referring to photographs 140 to 142, testified that he found no defects in the home’s flashing.

124G.M. does not have a quote but estimates that the cost to repair all items other than claim 66 would be $1,000. For claim 66, he referred to a quote from Cosmopolitan Construction Inc. dated November 15, 2017 in the amount of $5,900 plus HST to skim and finish coat the stucco and advised this would also address the flashing.

Decision

125The evidence in Tarion’s photographs 109 to 112 is that the downspouts on the appellants’ home are attached to its cladding with brackets. Both inspectors testified that the downspouts were properly connected. G.M. presented no evidence to support his claim that there is a defect in workmanship. Therefore I find no breach of warranty and claim 57 is denied.

126I also find no breaches of warranty with respect to claims 63, 65 and 82. G.M. presented no evidence to support these claims. He admitted the alleged defect in painting was not visible in photograph 125 which he referred me to. Moreover, while G.M. testified that he would like these areas to be painted, I note that Schedule A to the APS states “lintels have prime coat only”. In the absence of evidence to support a breach of warranty, claims 63, 65 and 82 are denied.

127With respect to claim 66, I have reviewed photographs 140 to 142 and find no visible defects. As noted previously, I cannot assign weight to the home inspection reports and G.M. did not submit any additional evidence to support his claim. There is no evidence of a breach of warranty and therefore claim 66 is denied.

Claim 59: Windows – rough caulking finish north east basement window

Claim 60: Windows – not enough caulking around windows throughout the house

Claim 62: Windows – rough caulking on living room window, bottom edge

Claim 88: Some windows have multiple scratches and need to be replaced

128G.M. testified that there is insufficient caulking around the windows of his home. When the temperatures dropped, there were drafts in the home and now he is concerned that there may also be insufficient insulation. Referring to photograph 120, he stated that the caulking has shrunk. He testified that his home inspector also found the caulking to be defective but could not point out a finding in the home inspection reports. He estimates it would cost $1,000 to remove and replace the window caulking. He further testified that there are scratches on the windows, which were dirty when he took possession of his home.

129Mr. Campbell referred to his photographs 115 to 126 and 129 to 135 and testified that he observed no defects in the window caulking. Ms. Gaupholm testified that she also observed no issues. She indicated that there was no complaint about water penetration and stated she found “the caulking was doing its job”. With respect to scratches on the windows, Mr. Campbell referred to pictures 222 to 224 and testified he found no scratches.

Decision

130I have reviewed the area of caulking pointed out by the homeowner in photograph 120. I note this photograph is quite dark and the caulking area is difficult to make out. While the caulking line does not appear to be straight in this photograph, I cannot conclude that the caulking is either insufficient or defective. G.M. submitted no evidence to support his claim that windows on his home are scratched. I reviewed the photographs to which Mr. Campbell referred and no scratches are visible. There is no evidence to support a breach of warranty and therefore claims 59, 60, 62 and 88 are denied.

Claim 74: Pre-cast stonework has staining from mortar, chips and small defects i.e. air bubbles which have not been corrected throughout house

Claim 84: Precast stonework needs touch up i.e. air holes, etc.

Claim 75: Spaces between precast and stonework – tuck-pointing needed throughout exterior of house

Claim 78: Precast and brickwork need tuck-pointing at different locations

131G.M. advised that claims 74 and 84 could be combined. He testified that there are cracks in the stone cladding on his home and referred to photographs 152 to 156. With respect to claims 75 and 78, which he also advised could be combined, he testified that the mortar on the cladding is cracked and referred to pictures 161 to 164. He noted that item 78 is specific to an area above the garage. The cost of repair to re-point the mortar is quoted by A & A Masonry at $8,136. G.M. has no quote with respect to repairing the pre-cast stone cladding.

132Mr. Campbell testified that there are hairline cracks in the mortar. He measured them as less than 1 mm in width and concluded that they were shrinkage cracks. Ms. Gaupholm also testified that she observed hairline cracks in the mortar at the areas which G.M. pointed out to her during her inspection. She also measured the cracks. She stated these are the result of shrinkage and she observed nothing unusual in the material or its installation.

133Ms. Scheibmayr testified that she saw no problems with the pre-cast stone on the appellants’ home when she attended both conciliation inspections. She referred to a letter dated October 19, 2016 from ABM Precast Ornamental Inc., the manufacturer of the stone, which states that the casting process results in normal colour variations, small surface holes and minor chips.

Decision

134I have reviewed Tarion’s Construction Performance Guidelines with respect to above-grade masonry veneer cladding, including mortar. These state “cracks resulting from normal shrinkage are acceptable; crack width in excess of 2 mm is not acceptable”. Both Tarion inspectors testified that the cracks pointed out to them were hairline. Mr. Campbell measured them as 1 mm in width. G.M. led no evidence to indicate they exceed this size. G.M. also led no evidence with respect to claim 78, other than to advise it related to an area above the garage. I cannot accept the quote from A & A Masonry, which includes no assessment of the home’s condition, as evidence that the mortar requires repair. Therefore I find no breach of warranty and claims 75 and 78 are denied.

135The appellants’ home inspection report dated September 28, 2015 includes the item “precast stonework has staining from mortar, chips and small defects i.e. air bubbles which have not been corrected throughout house”. The August 24, 2016 report states “pre-cast stone needs touch up i.e. air holes etc.” The November 7, 2017 report does not mention the stone. I note that the letter from ABM PreCast Ornamental Inc. states that with respect to small surface holes and minor chips “no repair is required to formed surfaces that have the small defects ...and they will not impair the functional use or expected life of a manufactured precast concrete product”. G.M. presented no evidence to support that the alleged defects in the stone exceed those created during the manufacturing process and represent a defect in materials. Nor did he present any evidence with respect to damages. Therefore, I find no breach of warranty and claims 74 and 84 are denied.

Claim 76: Chip on corner of cement covering over fireplace

Claim 77: Chip on cement covering stone post at the front porch

Claim 93: Patio front stone pillar concrete tops are not level and chipped

136G.M. advised that claims 77 and 93 relate to the same issue and could be combined. He testified that Remington has performed repairs to chips in the concrete at both the area over the fireplace vent cover and on the caps on the pillars at the front porch area of his home. He is dissatisfied with the repairs. He indicated that the colour does not match and characterized the repairs as not “clean”. He referred to photograph 149 which depicts the area of concern over the fireplace vent and to photograph 170 which depicts the concrete on the top of the stone pillars. He advised that the cost of repair is included in the A & A Masonry quote.

137Mr. Campbell testified that he believed G.M.’s concern with the repair to the concrete slab over the fireplace vent on the appellants’ home is aesthetic. Mr. Campbell noted that it is not possible to match the colour of concrete exactly. Both he and Ms. Gaupholm testified the repair is acceptable. Ms. Gaupholm referred to photograph 25 in Volume 2 of Tarion’s photographs and stated that the repair is not visible from a normal viewing distance because the slab is approximately 10 feet above the ground.

138Mr. Campbell referred to photographs 231 to 234 with respect to the concrete caps on the pillars of the front of the home. He testified that G.M.’s complaint at the time of the inspection was that the caps were not level and were chipped. Mr. Campbell found the tops were level and there were only minor surface holes in the slab.

Decision

139I have reviewed photograph 149 of the repair to the concrete slab above the fireplace vent. The repaired area, at the left corner, is visible as a darker area of concrete in this enlarged photograph but appears squared. However, in photograph 25, taken by Ms. Gaupholm at a more normal viewing distance, the repair is not noticeable. It is well-established by this Tribunal that the standard of repair is not perfection. I accept the inspectors’ evidence that the repair has been done in a workmanlike manner. There is no evidence of a breach of warranty and therefore claim 76 is denied.

140I have also reviewed the photographs of the concrete caps on the pillars at the front of the appellants’ home. A level is placed on the caps of the pillars in photographs 261 to 264. Each photograph indicates that the caps are level. While some minor surface imperfections are visible, I do not assess these to be a defect in materials. The area G.M. highlighted to me in photograph 170 is a corner where the concrete appears to be a slightly lighter colour. The corner appears squared. I also note that the Warranty Assessment Report indicates that the original caps had been replaced by the builder at the time of Tarion’s conciliation inspection. I find no evidence of a defect in materials or workmanship and therefore claims 77 and 93 are denied.

Claim 86: Foundation wall needs parging and proper seal

Claim 89: Cement at front porch – excess at wall to be cleaned

141G.M. advised that claims 86 and 89 could be combined. The appellants are requesting $1,850 plus HST, quoted by Cosmopolitan Construction on November 15, 2017, to have the foundation of their home parged. G.M. referred to photographs 205 and 206 and stated that the builder repaired the existing finish to smooth the foundation area but it became multi-coloured when this was done.

142Mr. Campbell testified that generally the brushcoating on the appellants’ home has been completed in a workmanlike manner and referred to photographs 206 to 218 which depict various areas of the home’s foundation. He also referred to photographs 225 to 227 and testified that the gaps they depict in the brushcoating under the porch area are visible. Ms. Gaupholm testified that voids in concrete must be repaired if they exceed a certain dimension and suggested photograph 206 depicted such a repair. She stated she does not know if a brushcoat was applied as part of that repair.

143Ms. Sheibmayr testified that the brushcoating on the appellants’ home was re-done twice by the builder. She stated that it was last applied in March, 2017 and the colour variation visible in the photographs taken on March 28, 2017 might be due to differential curing. She further testified that Remington usually brushcoats after sod is laid and that settlement could account for the gaps under the front porch.

Decision

144The March 28, 2017 photographs of the brushcoating clearly show its colour varies from almost white to dark grey, resulting in a striped appearance in certain locations. There are noticeable ridges in the concrete depicted in photograph 206.

145I accept Ms. Scheibmayr’s testimony that concrete takes time to cure. However, I have reviewed the photographs Ms. Gaupholm took at her May 9, 2017 inspection. Photographs 88 and 89 in Tarion’s Volume 2 still depict a marked colour differential in the brushcoating almost two months after the time Ms. Scheibmayr stated the coating had been re-applied. In my assessment, the varied colour and rough texture visible in photograph 206 and the varied colour still visible in photographs 88 and 89 represent a defect in workmanship and therefore a breach of the warranty set out in s 13(1)(a)(i) of the Act.

G. COMPENSATION

146I have found that there is a breach of the warranty set out in s.13(1)(a)(i) of the Act with respect to claim 26, the floor grout in the master ensuite shower, and with respect to claims 86 and 89, the brushcoating on the foundation of the appellants’ home.

147The Act provides for payment from the guarantee fund for damages resulting from a breach of warranty. Section 14(7) states that “the Corporation may perform or arrange for the performance of any work in lieu of or in mitigation of damages...” I do not have a quote before me for grout repair. While the appellants submitted a quote for damages with respect to tiling the master ensuite, it does not itemize individual components of that work. Therefore, I am directing Tarion to perform the repair. Specifically, the grout on the shower floor of the master bedroom ensuite is to be removed and replaced with “bright white” coloured grout.

148With regard to claims 86 and 89, the appellants submitted a quote in the amount of $1,850 plus HST for parging, rather than brushcoating which is a less labour intensive process. Therefore, I cannot rely on this quote to determine damages. Ms. Scheibmayr estimated that the cost to consumers to brushcoat a home would be double the $200 to $250 it costs Remington. I accept her estimate and order Tarion to pay the homeowners $500 plus $65 HST for claims 86 and 89.

F. CONCLUSION

149A number of times during this hearing, G.M. suggested that the OBC and Tarion’s Construction Performance Guidelines represent minimum standards that should not be applied to the appellants’ home because they purchased a number of upgrades.

150An upgraded home is not entitled to greater warranty coverage than a standard home; the statutory warranties apply equally to all new homes. The warranty set out in the Act includes the requirement that homes be constructed in accordance with the OBC; this is the standard that Tarion must apply. The guidelines Tarion uses to assess materials and workmanship, such as the Construction Performance Guidelines it produced in consultation with the industry or the guidelines produced by the TTMAC, are not law. However, they establish a standard which Tarion uses to assess the quality of construction of a home and therefore they help ensure there is consistency in the application of the statutory warranties.

151Finally, I note that G.M. suggested that Remington inappropriately influenced the Tarion inspectors to deny him warranty coverage. Both Ms. Gaupholm and Ms. Scheibmayr testified with respect to this issue. There is no evidence of any lack of independence in Tarion’s assessment of the appellants’ claims and I find G.M.’s allegations are unsubstantiated.

ORDER

152Pursuant to the authority set out in section 16(3) of the Act, I find claims 26, 86 and 89 to be warranted. All other claims in this appeal are denied.

153With respect to warranted claim 26, I direct Tarion to perform or arrange for the performance of the work required to replace the existing grout in the master ensuite shower floor of the appellants’ home with bright white grout. With respect to the repair of warranted claims 86 and 89, I direct Tarion to pay the appellants $565 (which includes HST).