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 of a Decision Letter of Tarion Warranty Corporation under the Ontario New Home Warranties Plan Act, R. S.O. 1990, O.31 - to Disallow a Claim
Between:
T.E. and E.C.
Appellants
and
Tarion Warranty Corporation
Respondent
and
Remington Homes (Mississauga) Inc.
Added Party
DECISION AND ORDER
Adjudicator: Zahra Dhanani, Member
Appearances:
For the Appellants: T.E., Self-represented
For the Respondent: Ryan Schell, Legal Counsel
For the Added Party: Carol Street, Legal Counsel
Heard in Toronto: July 3rd and 4th, 2019
Overview
1The appellants (T.E. and his parents, unfortunately the father had recently passed on) bought a new house for the senior parents who would move into it as their retirement home. The house was built by the added party, Remington Homes Inc. (“builder”).
2On their Year-End Form (“warranty claim”) the appellants had listed several issues, many of which were resolved by the time of the hearing.
3The appellants appealed Tarion’s February 19, 2019 Decision Letter (“decision letter”) to the Tribunal.
[4] This appeal is based on the six issues that the appellants listed as being unresolved with the builder in their Notice of Appeal (NOA). These issues are: (a) Faulty Support Posts for the Stairs (b) Issues with the Wood Framing Adjacent Basement Window Openings (c) Joist hanger Improperly Installed Adjacent Basement Stairs (d) Improper Installation of Squash Blocks (e) Cracked LVL beam Adjacent Basement Stairs (f) Squeaky Floors on the Second Floor
5Two Tarion Inspectors attended the home for an inspection and concluded there was no defect in workmanship or materials and no breach of contract except for an issue with some extra paint on one of the appellants’ front doors.
Issues:
6The 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 any breach.
Decision
7In this Motion, the appellant has asked that I recuse myself as the adjudicator claiming that I had a reasonable apprehension of bias against him.
8The appellant stated that he thought I did not provide enough time for the hearing, that I cut it short and that I had an attitude he perceived as being biased against him.
9Counsel for the Registrar and the builder both have stated in their materials that they found that there was more than enough consideration given to the appellant, indeed that his self-represented status was taken into account and that the hearing elements were explained to him throughout. The appellant was given as much time as he needed to present his evidence and closing submissions.
10Given that a tribunal is presumed to be fair and impartial, the threshold for a finding of real or perceived bias is high and the moving party has the onus of establishing its existence: see Austin v. Ontario Racing Commission, 2007 ONCA 587 at para. 35 and Bailey v. Barbour, 2012 ONCA 325 at para. 19. This has been clarified by the Supreme Court of Canada, where it was held that "a mere suspicion [of bias] is not enough": see R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484 at para. 112.
11Simply stated, the test of apprehension of bias as it has been articulated and reiterated in the jurisprudence is “[W]hat would an informed person, viewing the matter realistically and practically - and having thought the matter through- conclude”: see Committee for Justice and Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369; Zundel v. Citron, 2000 CanLII 17137 (FCA), [2000] F.C.J. No. 679 and Wewaykum Indian Band v. Canada, 2003 SCC 45.
12The appellant provided no evidence or reasonable explanation beyond his opinion. He asserts that I made certain statements (e.g. I would conclude the hearing as fast as possible). I am not satisfied that these statements were made as I have no record or recollection of them, the appellant provided no evidence that the statements were made, and the respondents also do not recall such comments being made.
13An adjudicator is sometimes required to make procedural decisions at a hearing in order to balance efficiency and fairness to both parties. The fact that I made procedural rulings that the appellant disagrees with is not sufficient to establish reasonable apprehension of bias.
14I find that it is not necessary to recuse myself as the appellant has not provided any evidence to overcome the presumption of impartiality. I have made the decision that follows based on the facts, the evidence before me and the applicable law.
15As a result, I find that the threshold for reasonable apprehension of bias has not been met by the appellant and this motion is dismissed.
Decision
16I have concluded that there has not been a breach of warranty and the appellants have suffered no damages.
The Legal Framework
17The Ontario New Home Warranties Plan Act, R. S.O. 1990, O.31 (the “Act”) is consumer protection legislation and must be liberally construed. The onus is on the appellants to establish on a balance of probabilities that there has been a breach of warranty and that they have suffered damages because of the breach.
18The warranties applicable to the appellants’ Year-End claims are set out in section 13(1)(a) 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.
19Under s. 16(3) of the Act, the Tribunal may, after holding a hearing, order Tarion to take such action as the Tribunal considers that Tarion ought to take in accordance with the Act and regulations.
Finding
20The appellants have not met their onus either in terms of proving a breach of warranty or that they have suffered damages. I turn now to the specific issues to be determined.
Evidence and Analysis
Is the appellants’ home constructed in a workmanlike manner, free from defects in material, fit for habitation and constructed in accordance with the Ontario Building Code?
21The appellants were represented by T.E. and he testified at the hearing on his and his parents’ behalf. Tarion had brought one witness: Lauren MacLear the Tarion Warranty inspector who had inspected the appellants’ home. The builder brought two witnesses: Heidi Scheibmayr, Customer Relations Manager and Bram Toomath, an expert in Structural Engineering with Hannigan Engineering Limited.
22The appellant’s only comments on the six issues from the NOA were to say that the structural engineer’s report and opinion was wrong. The appellant provided no evidence to support the claims that are under appeal. As a result, I accept the expert evidence that there are no defects.
23The burden is on the appellant to prove on a balance of probabilities, that there is a breach of warranty. As he has led no evidence in support of his claims, he has not met his burden.
24The appellant testified about several issues that were not in the notice of appeal, nor in the Tribunal’s Case Conference Order, and he provided no supporting evidence for any of his claims. The appellant was argumentative and unwilling to accept the rules of the Tribunal.
25As he is a self-represented appellant, I made all efforts to explain the rules, practices and procedures to him. However, he said many prejudicial things, demeaned the other witnesses and suggested he was a better expert on the structural matters before me than the structural engineer that provided the report.
26The appellant was informed that this hearing would be limited to the issues he had identified in his NOA. However, the appellant spent the majority of his testimony at the hearing dealing with new claims and issues that he had not raised in his notice of appeal. He also did not support these new issues with any evidence.
27His bald claims were unsubstantiated. For example, he started his testimony saying that “it is raining in my garage right now”. This was not an issue on appeal, it was the first that any of the other parties had heard of it and he brought no pictures or any other support for these kinds of claims. He kept stating that the home had “huge safety concerns”, “it was such a bad experience” for him and his family, “I don’t know when I will stop suffering from this home” and yet no one was living in the home at the time of the hearing.
28I accept the evidence of Tarion’s expert that all defects in the home have been remediated.
29Mr. Toomath was engaged by Tarion as an expert to examine the appellants’ home and particularly to assess the six claims the appellant had made in his NOA. The respondents provided a report from Mr. Toomath, dated June 21st, 2019, and he also attended the hearing to provide testimony.
30Mr. Toomath’s resume was attached to the report. He was determined to be an expert witness at the hearing because of his varied and lengthy educational and professional experience as a structural engineer.
31In testimony and his report, Mr. Toomath confirmed that the house was built in accordance with the Ontario Building Code and is structurally sound. With respect to the six issues on appeal Mr. Toomath found that they had all been remediated. He provided photos, charts and descriptions with his report.
32I found Mr. Toomath’s testimony and report convincing on all of these issues. I found him to be knowledgeable on the relevant issues and straightforward in his testimony. By contrast, the appellants provided no evidence that there was any defect with respect to the claimed items.
33In addition, the appellants provided no evidence that even if there were any warrantable claims that they have suffered any damages.
34As a result, the appellants’ claim is dismissed.
Order
35Pursuant to s. 16(3) of the Ontario New Home Warranties Plan Act, I direct Tarion to deny the appellants’ claim.
Released October 8, 2019
Licence Appeal Tribunal
_________________________
Zahra Dhanani, Member