Licence Appeal Tribunal
Safety, Licensing Appeals and Standards Tribunals Ontario
Tribunal d’appel en matière de permis
Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario
Appeal from a Proposal of the Registrar under the Ontario New Home Warranties Plan Act to Disallow a Claim
Between:
V.G. and P.G. Appellants
-and-
Registrar, Ontario New Home Warranties Plan Act Respondent
-and-
Mattamy (Monarch) Limited Added Party
DECISION AND ORDER
Order made by: Marisa Victor, Member Date of order: September 12, 2019
Appearances:
For the Appellants: Self-represented For the Respondent: Danielle Peck, counsel For the Added Party: Shawn Schwartz, agent
Heard in Ottawa: July 30, 2019
REASONS FOR DECISION AND ORDER
OVERVIEW
1The appellants own new a home in Ottawa, Ontario. They raised several concerns about the home with the builder which they claim Mattamy Monarch Limited (Mattamy) verbally promised to fix. Some matters were resolved but not all. The appellants then filed a claim for warranty coverage with the respondent over the remaining items. The items still in dispute at this hearing include claims over water penetration of the basement or foundation, heating system defects and major structural defects.
2The respondent’s decision letter of November 5, 2018 (the Decision Letter) denied the claim. The respondent also issued a supplementary decision letter on April 9, 2019 (the Supplementary Decision Letter) denying the claim.
3The appellants appeal the Decision Letter to the Licence Appeal Tribunal (the Tribunal).
ISSUES
4The issues to be determined are whether the deficiencies claimed by the appellants are warrantable items under the Ontario New Home Warranties Plan Act (the Act).
5In particular, the appellants claimed the following deficiencies in the building of their home:1
a. 1-1 - basement/foundation leakage;
b. 4-3 - creaking shower base;
c. 5.1 and 5.6 - uneven heating and cooling in basement and guest room;
d. 7.5 - uncentered patio door; and
e. 7.6 - floor deflection and vibration.
RESULT
6The appellants’ claims for warranty coverage are denied.
THE LAW
a. The Applicable Statutory Warranty
7Section 13 of the Act provides that the vendor of a home warrants to the owner that the home is constructed in a workmanlike manner and is free from defects in material, is free of major structural defects, is fit for habitation and is constructed in accordance with the Ontario Building Code (the Code) and such other warranties as prescribed by the regulations. Under ss. 13(4) of the Act, the warranties apply for a one-year period unless otherwise prescribed.
8Section 14 and 15 of Regulation 892 describe the more limited warranties available during the two-year warranty period including water penetration, defects of electrical and plumbing, exterior cladding and Ontario Building Code violations.
9Under Regulation 892, a claim for a major structural defect has a seven-year warranty period.
b. Compensation for Breach of Warranty
10Subsection 14(3) of the Act provides for payment of compensation for damages resulting from a breach of the warranty in ss. 13(1) of the Act.
c. Tribunal Powers on Appeal
11Where the respondent makes a decision under s. 14 of the Act, the owner may appeal the decision to the Tribunal under ss. 16(2).
12The Act is consumer protection legislation and should be given a broad and liberal interpretation. The onus is on the appellants to prove, on a balance of probabilities, that the defects in the house constitute a breach of the warranty, that damages have resulted from the breach and the amount of those damages. The Tribunal owes no deference to the respondent’s decision.
ISSUE 1-1: BASEMENT OR FOUNDATION LEAK
a. What is the deficiency claimed?
13The appellants claim that there is water penetration of the basement or foundation in the unfinished section. They state the right foundation wall leaks heavily. However, by then end of the hearing, the appellants agreed that the deficiency had been resolved.
14At the hearing, the appellants advised that the leaking on the floor in the basement had recently been fixed. They testified that they did not have full confidence that the leak was resolved. They were also unsure whether the leak of the right wall had been repaired. They were concerned about mold on the concrete floor. Due to the repair, they were also concerned about the difference in the external brick colour in the repaired area as compared to the original brick.
15In cross-examination, the appellants agreed that a water test was performed after the repair and that there was no water leak observed during the testing. They also testified that they have not seen any evidence of further leakage since the repair.
16Doug Lappan, Tarion Senior Warranty Representative,2 testified that the deficiency had initially not been warranted; however, after a re-examination, water penetration was observed, and the issue was warranted. Mr. Lappan testified that Mattamy has since repaired the issue. He also testified that, once a repair has been made, there is a one-year warranty period from the date of repair. He advised the appellants that if a new leak is observed in the area and Mattamy does not repair it, then Tarion would. Mr. Lappan testified that the new brick where the repair was made would be a slightly different variation as it is new, but would weather over time.
17Tim Boileau, project manager for Mattamy, testified regarding the repairs Mattamy made. He submitted photo evidence of 60-70 feet of repair work waterproofing the foundation on the outside of the home where the leak had occurred. His evidence was that Mattamy disposed of wet insulation and replaced it with new insulation on the interior. He testified that where there were signs of possible mold, it was removed by sanding and cleaning. He stated that any marks on concrete would be water stains and not mold. He agreed that over time the newly installed bricks would weather and look similar to the five-year old original bricks of the home. He estimated that process would take a year or two.
b. Is the item warranted under the Act?
18The appellants agree that the leakage has been fixed. There is no evidence of a deficiency and therefore no breach of warranty. A further one-year warranty applies to the repair.
ISSUE 4-3: CREEKING SHOWER BASE
a. What is the deficiency claimed?
19The appellants claim that the en suite bathroom shower base flexes and creaks. They claim this is due to an ineffective previous repair.
20The appellants testified that Mattamy previously sent a subcontractor to repair the problem, but it was not fixed. They say that the effort to try and fix the shower stall is evidence that it was not installed correctly. They do not want to hear the creaking sound when stepping on the shower base and fear it will crack later on and cause a problem.
21The appellants submitted a quote for repair of the shower stall for $400.
22In cross-examination, the appellants testified that they had put the same claim on their one-year form. They agreed that Tarion had scheduled a conciliation, but the appellants cancelled it on the understanding that the Mattamy would fix the problem.
23Mr. Lappan testified that the item is a plumbing feature and can only be claimed under the first-year warranty coverage. The appellants claimed this deficiency on their second-year form. Mr. Lappan referred to section 6.11 of the Tarion Construction Performance Guidelines (CPG) that state that creaking is an acceptable condition. He stated that, even if the deficiency had been claimed in the first year, it would not have been warranted as the shower base is in an acceptable condition. He stated he noticed normal flexing of the base.
24Mr. Boileau testified that he walked around on the shower base and could not get it to creak. He saw no other signs of a problem. Mattamy submitted that investigating an item and attempting a repair are not an acknowledgment that an item is warranted as some repairs are done as a courtesy.
b. Is the item warranted under the Act?
25Regulation 892 states that claims must be reported within a certain amount of time. Paragraph 4.3(6) states that if an owner cancels a conciliation, then the owner is deemed to have withdrawn all claims listed in the form. The appellants cancelled their conciliation for this claim filed under the one-year warranty period. That claim is now deemed withdrawn. As such, the appellant’s claim at this hearing must fall within the two-year warranty limits.
26The appellants were required to prove a deficiency in the shower base that is covered under the more limited two-year warranty period, such as evidence of a manufacturing or installation defect. The testimonies of Mr. Lappan and Mr. Boileau were consistent that the shower base was installed correctly and appeared normal. Mr. Boileau failed to get the base to creak at all. Despite the previous repair, the appellants say they fear that the shower base will eventually crack and cause a problem. However, speculative concerns are not covered.
27The sound of the flexing of the shower base is not a deficiency covered by the Act.
ISSUES 5-1 and 5-6: UNEVEN HEATING AND COOLING IN BASEMENT AND GUEST ROOM
a. What is the deficiency claimed?
28The appellants claim that the basement is hot in the winter and cold in the summer (item 5-1). They also claim that there is inadequate heating in the guest bedroom in the winter (item 5-6). Item 5-6 was inspected in February 2019 after the conciliation inspection of August 2018 so that winter temperature ratings could be examined. This claim resulted in the Supplementary Decision Letter being issued which denied the claim.
29The appellants state that the ducts are not properly insulated and allow air to leak through. They state there is a wide temperature fluctuation in the basement and in the guest room.
30The appellants obtained a home inspection and the inspector provided them with a one-page guideline for measuring room temperatures. They did their own measurements with a digital thermometer and submitted the temperature readings to support their testimony. They state that the readings show a temperature swing greater than 3 degrees from the temperature on the thermostat.
31The appellants testified that the temperature readings were taken by pointing the digital thermometer laser at the floor.
32They state that Mattamy installed a booster fan in the guest room to improve the situation, but it was too loud, and they had to turn it off. They also closed the basement vents.
33Mr. Lappan testified that, with regard to the basement, he assessed the temperature by setting the thermostat to 23, fan on continuous, and replaced a dirty air filter. He measured the temperature in each room in the middle of the floor and followed the temperature measuring process set out in section 8.9 of the CPG. He closed the register closest to the thermostat so that the furnace would run longer and distribute more air. Within 35 minutes, the temperature in the guest room had risen to 21.5 degrees and he found that to be an acceptable level as he expected the temperature to rise further as the contents of the room come up to temperature. He therefore found no defect in the system.
34He suggested adjusting registers throughout the house to balance the air flow and temperature needs. He recommended balancing the registers twice a year for heating and cooling and that this should be the responsibility of the homeowner. He testified that ducts are not required to be insulated under the Code.
35Mr. Lappan also disagreed with the procedure the appellants followed to measure the room temperatures. He testified that some of the appellants’ temperature measurements were of the surface of the registers themselves and not an assessment of room temperature. He also said that it is not acceptable to take the temperature of a room by pointing the laser at the floor. The laser was only reading the surface temperature of different floor coverings and different floor coverings have different temperatures (for example, tile is cold). He testified that thermometers in the middle of the room were needed to assess the room temperature.
36Mattamy submitted that it had asked its HVAC subtrade to visit the appellants’ home ten times. They state there were no warranted issues. They taped the duct work, although not required, at the appellants’ request. They advised the appellants to change dirty air filters. They installed an air booster to help with the guest room. They submitted that it is the homeowners’ responsibility to close or open registers to balance the HVAC system.
b. Is the item warranted under the Act?
37The appellants have failed to show that the heating or cooling system in their home is deficient. I find that the appellants’ system for measuring the temperature of the rooms did not provide accurate results. The largest swing in temperature was seen when measuring the temperature of the registers and not the ambient temperature of the rooms. It is regrettable that the appellants did not seek out further guidance in accurately measuring room temperature. Further, the appellants were resistant to balancing the registers in the home twice yearly even though the evidence of Mr. Lappan was that this corrected the temperature variations. There was no evidence that the duct work was required to be insulated or that insulating the ducts would have the desired effect on the heating and cooling system. This item is not warranted under the Act.
ISSUE 7-5: UNCENTERED PATIO DOOR
a. What is the deficiency claimed?
38The appellants claim that their house suffers from a major structural defect in that the patio door is not centered with the dining room light.
39The appellants testified that in the model home, everything was perfectly centered. They did not provide any photographic evidence. They declined to say what remedy they were seeking, only that the placement of the patio door was not what where it should be.
40Mr. Lappan testified that this was not a major structural defect but a location issue. He stated that location of the patio door is not covered under the limited two-year warranty and would not have been covered under the one-year warranty.
41Mr. Schwartz, agent for Mattamy, submitted a revised main floor sketch of the home showing the placement of the patio door not centered with the room. The revised sketch was part of the agreement of purchase and sale. The sketch was signed by the appellants as part of their purchase agreement in 2014.
42The appellants stated that they felt the signed sketch of the home was unacceptable and was an example of a builder taking advantage of an uneducated buyer.
b. Is the item warranted under the Act?
43The appellants have not tendered any evidence that shows that the placement of the patio doors is a major structural defect, or any other defect covered by the Act. The evidence is that the placement of the patio door was signed off by the appellants in their agreement of purchase and sale. Even if a defect had been found, the appellants did not seek a remedy, nor did they submit evidence of damage or repair costs. This item is not warranted under the Act.
ISSUE 7-6: MAIN FLOOR VIBRATION
a. What is the deficiency claimed?
44The appellants claim that their house suffers from a major structural defect in that the when they walk in the kitchen and family room of the main floor, it rattles. They state this is unlike the model home they visited. Their concern is that the basement ceiling height is an unusual 9’ high and requires a different kind of joist due to the ceiling height. They believe this is the cause of the excess vibration. The appellants testified that they did not know what repair was needed to resolve the problem.
45Mr. Lappan testified that the house is built with an engineered floor system that must follow the CPG section 2.6. He stated that Mattamy’s engineering report shows that the floor joists are acceptable according to the CPG. He stated that floor vibration is not unusual. He also testified that the height of the basement ceiling has no effect on the floor above as the wall system is independent from the floor system.
46Mr. Schwartz testified that Mattamy retained an engineer to provide a report on the joist layout. He stated that the joist layout conformed with the manufacturer’s specifications and was approved by the city inspectors during the permit approval process. He confirmed the floor was built according to the approved design. He testified that he does not know of any reason why the height of the basement would affect the vibration of the floor.
b. Is the item warranted under the Act?
47The appellants have not tendered any evidence that shows that the main floor suffers from a major structural defect or any other defect covered by the Act. The engineering report submitted by Mattamy shows the floor is built according to the manufacturer’s requirements and complies with the Code. The appellants were unable to show that the flex in the floor was abnormal. Even if a defect had been found, the appellants did not provide evidence of damage or evidence of repair costs. This item is not warranted under the Act.
CONCLUSION
48The appellants failed to show that the remaining issues under appeal met the test for a warranted deficiency under the Act.
49While the appellants were genuinely concerned about some of the problems they experienced with their new home, many of these were resolved, including some just prior to and during the hearing. Some of issues faced by the appellants may have been exacerbated by miscommunication and misunderstanding of the warranty program. Nevertheless, the appellants have managed to maintain a good working relationship with Mattamy. All parties are to be commended for their professionalism and willingness to continue to work towards the remedy of the issues under appeal up to and during the hearing.
ORDER
50The appellants’ claims for warranty coverage are denied.
LICENCE APPEAL TRIBUNAL
Marisa Victor, Member
Released: September 12, 2019