Appeal from a Decision Letter of Tarion Warranty Corporation under section 16 of the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31, denying a claim
Between:
Shahid Hameed
Appellant
and
Registrar, Tarion Warranty Corporation
Respondent
and
Sharonvit Estates Inc
Added Party
DECISION AND ORDER
Adjudicator: Patricia Conway
Appearances:
For the Appellant: Shahid Hameed, self represented
For the Respondent: Danielle Peck, counsel Marta Coehlo, warranty representative
For the Added Party: Marlin Da Silva
Court Reporter: Laila Butt
Place and date of hearing: Toronto, November 26, 2019
REASONS FOR DECISION AND ORDER
Overview
1In November 2014, the appellant purchased a home in East Gwillimbury to be constructed by the added party (the builder). He purchased upgrades for the home from the builder in 2016. He took possession of the home in June 2017.
2On June 12, 2018, the appellant filed a First-Year warranty claim form listing alleged defects to be remediated by the builder. Various repairs were carried out by the builder and its trades. The appellant asked Tarion to conciliate between himself and the builder regarding the defects in dispute. After several visits to the site, Tarion issued a conciliation report stating that in its opinion, the remaining alleged deficiencies were not defects in workmanship or materials, and thus were not warranted. The appellant requested that Tarion issue a decision on these items and Tarion issued a decision letter dated May 10, 2019 denying the appellant’s claims as “not warranted”. From that decision, the appellant filed a Notice of Appeal dated May 18, 2019, requesting a hearing before the LAT. The hearing took place on November 26, 2019.
RESULT
3After hearing and considering the evidence presented by the parties, their submissions and the applicable law, pursuant to s. 16(3) of the Act, I direct Tarion to deny the appellant’s claims.
ISSUES TO BE DETERMINED
4The appellant alleges that there are several deficiencies that ought to be found warrantable. In particular:
a. squeaking floors: several of the claims are for squeaking floors in various parts of the house, namely: hardwood floor in the dining room where it meets tile in the kitchen; in some areas of the kitchen under the floor tiles; hardwood floor in the family room where it meets the tile in the kitchen; and under the carpet in all four upstairs bedrooms. I will consider all the claims regarding squeaking floors together.
b. grout between floor tiles: appellant asked for a 3mm or less width of grout between the floor tiles, “if possible”. The width of the grout varies and is mostly between 4 mm and 6mm in width. The appellant says that the tile flooring should be taken up and redone with narrower grout.
c. the cabinet housing the microwave and oven in the kitchen is wider than specified in the drawings and the cleats into which screws are placed to attach the appliance to the cabinet were not as specified. The builder attempted a repair, but it is not satisfactory. The appellant alleges that the appliance cannot be securely screwed into the cabinet housing. The appellant says that the cabinet should be removed, rebuilt and replaced.
d. The water in the en-suite bathroom of one of the second-floor bedrooms takes too long to heat up. The appellant says that there must be a blockage somewhere in the plumbing piping, and Tarion or the builder should open up the walls of the house to find and fix it.
5In order to succeed on each of these items, the appellant must satisfy the Tribunal that there is a defect in workmanship and/or materials such that there was a breach of warranty, that the defect has resulted in the appellant suffering damages and the quantum of those damages.
LAW
6The Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31 (the Act) sets out in section 13 the warranties offered under the Plan. The one-year warranties at issue in this case are:
13(1)(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
7Subsection 13(2) sets out exclusions to the warranty provided, stating that it does not apply in respect of, among other things:
(b) secondary damage caused by defects, such as property damage and personal injury.
Subsection 14(3) sets out the entitlement of a homeowner when a breach of warranty is established, providing that the owner must have a cause of action against the builder (or vendor) for damages resulting from the breach of warranty in order to be entitled to succeed in his claim.
Subsection 14(5.1) sets out what the homeowner must prove. They must explain the reasons for the concern giving rise to the claim, but they are not required to prove the cause of the concern giving rise to the claim.
Subsection 16(3) sets out the powers of the Tribunal where, as here, the appellant has requested a hearing. The Tribunal “may by order direct the Corporation to take such action as the Tribunal considers the Corporation ought to take in accordance with (the) Act and the regulations, and for such purposes the Tribunal may substitute its opinion for that of the Corporation.”
8Decided cases of this Tribunal under the Act have established that the Act is consumer protection legislation for the benefit of the owner and should be so interpreted. However, the onus is on the owner to prove that there is a defect in workmanship or materials that triggers warranty protection.
EVIDENCE AND ANALYSIS
(a) Squeaky flooring
9The appellant testified that he and his wife and two children were all very irritated by the squeaky flooring. He identified the following areas of concern: the transition between hardwood and tile in the dining room; the transition between the hardwood and tile in the family room; a “few areas” in the kitchen, and all of the carpeted bedroom areas on the second floor. He pointed out that warranty representatives from Tarion have acknowledged that there are squeaks, and so has the builder. He stated that the builder ripped up the carpet in the upstairs bedrooms and carried out some repairs and argued that this proved that there is a defect. He stated that Tarion cannot acknowledge that there are squeaks and then say that the squeaks are not warranted. To him and his family, the squeaks are defects. They are too loud and too pervasive. His position is that Tarion has no objective measure of what is acceptable and what is not in terms of the loudness of squeaks nor the pervasiveness of the squeaks. He argues that in the absence of an objective standard, Tarion must accept that the squeaks are warrantable because they bother him and his family so much.
10Marta Coehlo, warranty representative for Tarion, gave evidence on behalf of Tarion. She was not the representative who attended at the home at the time of Tarion’s two efforts at conciliation. That representative is no longer with Tarion. However, in preparation for the hearing, Ms. Coehlo did meet with the appellant at his home and examine all areas of the flooring where the appellant was complaining of squeaks. Ms. Coehlo has been a warranty services representative with Tarion for five years. She has a building science certificate from college and has engaged in continuous training in construction throughout her employment, in particular, Building Code part 9. At Tarion, she has received in house training on all aspects of construction from foundations to finishes. Before working for Tarion, she worked at Ener Quality where she carried out quality assurance inspections and testing to ensure Building Code requirements and the technical requirements of an energy efficient home were met. She stated that through her education, training and experience, she has knowledge of construction techniques and practices. If she is uncertain whether a defect exists or not, she has authority to call in an expert in the particular field of construction at issue for assistance. I found her testimony was offered in a precise and understated way. She was able to back up each of her statements by pointing to one or more of the many photographs she took of the alleged deficiencies during her visit to the appellant’s home. Under cross-examination by the appellant, she was firm and consistent. There were very few instances where her evidence contradicted the appellant’s, but where there was such a conflict, I preferred her evidence to the appellant’s. This is because she was visiting the appellant for the sole purpose of examining the deficiencies, so she had a precise and detailed recollection of her visit .What she inspected, and her findings are backed up by the photographs she took. She has no vested interest in the outcome, whereas the appellant is deeply invested on his own behalf and on behalf of his family. During the hearing it became clear that the builder and its trades came to his home many times to attempt to deal with his concerns, yet his position was that the builder had ignored his complaints. I found his statements frequently overstated the nature and number of his complaints.
11Ms. Coehlo explained that on her visit to the appellant’s home to examine the claimed deficiencies, she asked the appellant to show her the precise area or areas in each room where the objectionable squeaks occurred. She then examined and walked on the areas numerous times.
12In her testimony, Ms. Coehlo explained that the underfloor throughout the home is wood which is attached to joists. Being a natural product, wood will contract and expand as a result of changes in humidity. The contraction and expansion can result in squeaks when pressure is applied to an area, as happens with normal walking. She referred to the Tarion Construction Performance Guidelines, which state that squeaking resulting from such contraction and expansion stemming from changes in humidity is not a defect in workmanship or materials.
13She explained that as she walked the floors, she was listening and feeling for any loose connections between the underfloor and the joists, any excessive movement that would indicate an inadequate or failing attachment between the joists, the underfloor, and the flooring itself, or any sagging of the flooring. She testified that paying careful attention, such looseness can be identified by walking over an area several times, from different angles. If the same area always squeaks, there may be a problem. However, if squeaks are random, so that an area squeaks sometimes and not at others, the problem is likely with humidity and resulting contraction and expansion of the wood.
14On the tiled floor, she was looking for any cracked tiles and any cracked or crumbling grout. These would indicate that the underfloor was moving. She stated that she saw no cracks, no excessive movement, no sagging, nothing to indicate there was a construction deficiency on either the tiled floor or the wooden floor. She testified that she walked over the same areas numerous times and from different directions and located no area where there were consistent squeaks whenever pressure was applied.
15She testified that where one type of flooring meets another, squeaks are common because there are different construction methods involved in attaching each material to the subfloor. Three of the areas complained of by the appellant involved areas where the wood floor was bordering the tile flooring. She testified that in these areas, she found that there were occasional minor squeaks, but the location of the squeaks was not consistent. That is, one time she walked over an area and it squeaked. A second time she walked over it and it did not squeak. She testified that this is indicates to her that these were shrinkage squeaks. She testified that it is important to maintain adequate and consistent humidity in the home to limit shrinkage and expansion of the wood as this causes the squeaking. When she visited the home, the humidity was adequate. However, the Tarion conciliation report of March 2019 states that on two earlier occasions when the home was inspected by Tarion, the appellant was warned that the humidity must be monitored and kept up. On a site visit in March 2019, the humidity was noted to be 21%, well below what is recommended.
16Ms. Coehlo stated that she walked through the carpeted bedrooms in the upstairs area. She testified that there were a few minor squeaks, but she detected no area that always squeaked whenever trod upon. Repeated squeaks at the same point might point to a loosened floor assembly, but she detected nothing of this nature.
17She testified that following her walk-through testing of the carpeted bedrooms, she went downstairs with the appellant and listened while his wife walked upstairs. Her evidence was that the sounds she heard were not floor squeaks, but rather the heavy percussive noise of someone stomping on the floor. She maintained this position under lengthy cross-examination by the appellant.
18Mr. Marlin da Silva representing the builder testified that he and his trades visited the home numerous times to rectify deficiencies. He testified that the flooring and subflooring were properly laid, and that he himself explained to the appellant that the squeaky noises resulted from wood shrinkage and expansion. He testified that he explained to the appellant the importance of monitoring humidity and maintaining a relatively high humidity (40 – 50% to minimize shrinkage and expansion of the underflooring. He stated that as a goodwill gesture, he had his trades come back several times to try to minimize the squeaking flooring. He stated that on every occasion, the homeowner was concerned about a different area. With respect to the upstairs of the home, he stated that the builder’s trades did pull back the carpet in the master bedroom and saw no issues with the subflooring, but nonetheless drove some screws into the subflooring to try to minimize the movement effect of shrinkage. He testified that the appellant subsequently complained about squeaks in the other bedrooms, and again as a goodwill gesture, the builder had his trades attempt to satisfy the appellant by drilling a few more screws into the subfloor. He testified that he reiterated to the appellant the importance of maintaining humidity and suggested that he purchase a humidifier and a dehumidifier to maintain a uniform humidity in hot and cold weather and thus minimize the shrinkage and expansion cycle of the wooden flooring. He testified that as of his last visit to the appellant’s home, this had not yet been done.
19Ms. Peck in her submissions on behalf of Tarion pointed to the Construction Performance Guidelines issued by Tarion. The introduction to these guidelines states that they were developed with input from all stakeholders in the construction industry. The guidelines with respect to squeaking of wood flooring make the same points as those made by Ms. Coehlo and Mr. da Silva, emphasizing that wood is a natural product that will expand and shrink as it is exposed to a more or less humid environment. Thus, squeaking of flooring in and of itself is not evidence of a defect in workmanship or materials.
20The appellant’s complaint, therefore, does not prove that there is a defect in workmanship or materials. Further, the appellant has not shown that he has incurred any damages resulting from the squeaking flooring. He stated that his family finds the noise distracting, irritating, and too loud. This statement at its highest is a claim that there is some personal injury being suffered as a result of exposure to the squeaking noise. This would be a stretch and even so, such secondary damage is not covered by the Tarion warranty, even if the squeaking were a construction defect.
21The appellant has not met his onus of establishing that the squeaking flooring is or results from a defect in workmanship or materials that has caused damage. The appellant is not entitled to compensation under the Act for the alleged deficiencies in the squeaky flooring as he has not established a breach of warranty or that he has suffered any damages as a result.
(b) Grout between the floor tiles
22The appellant requested and paid for upgrades, including upgraded grouting and tiles. On the Options and Upgrades Agreement he signed, he noted that he wanted the grout to be 1/8th of an inch wide (three millimeters) or less, “if possible”. The appellant introduced photographs which he had taken showing the width of the grout in various areas of the tiled flooring. The photographs show that the width of the grout varies between 1/8th inch and ¼ inch (six millimeters) The appellant stated that he talked to the trade who installed the tiles and was told that the trade was not asked by the builder to limit the width of the grout to 1/8th inch or less. Also, they were not given enough time to do the work well. The appellant states that this proves that the builder did not even try to comply with the homeowner’s request. The appellant’s position is that this constitutes a construction defect, a breach of the contract that he made with the builder. The appellant wants the whole of the tiled flooring on the first floor to be removed and replaced. He introduced an estimate of the cost of doing this, approximately $21,500.00.
23Ms. Coelho testified that she measured the width of the grout in a number of locations, as pointed out to her by the homeowner. She stated that in the locations where she measured, the variance was between four and six millimeters. In her view, this was an acceptable variance. She took photographs, all of which were in evidence, showing the measured width of the grout in the locations identified by the appellant, substantiating this variation. She also took photographs of whole areas of the tiled flooring from a normal viewer’s perspective. Those photographs were also entered into evidence. Ms. Coehlo stated that part of her assessment of whether a defect in workmanship exists involves looking at the area as a whole to judge whether the area has a uniform and neat appearance. Her testimony, borne out by the photographs, was that when looked at as a whole, the areas of tiling appear uniform, no variations are noticeable, and the work appears to be neatly and carefully done. She found no defect in workmanship or materials.
24Mr. Da Silva testified that he did, in fact, communicate the appellant’s wish with respect to the width of the grout to the trade, not orally, but by giving the trade a copy of the part of the Options and Upgrades Agreement that pertains to that trade. He noted that the 1/8-inch width was to be accomplished “if possible” and explained that given the appellant’s choice of tile, it was not possible. The tile chosen was rather large, and its upper surface was bevelled. The grout could only be placed between straight surfaces. Thus, the grout started some distance from the top of the tile. To present an acceptable appearance, it was necessary to make the grout area wider than 1/8 inch. This was also necessary to ensure sufficient attachment of the tiles to one another.
25Ms. Peck referred again to the Construction Performance Guidelines, noting that there is no standard for the width of grout between tiles, obviously because of the huge variety of tiles available. There is one “standard” from the Terrazzo Tile and Marble Association of Canada, referred to by the appellant. It states that grout joint width should not exceed 1/8 inch unless the grout is sanded. The appellant’s grout is sanded.
26I am satisfied from the evidence, particularly the photos taken by Ms. Coelho showing the expanse of the tiled flooring from an ordinary viewer’s perspective, that the width of the grout between the tiles is not a construction deficiency. The appellant is not entitled to compensation under the Act for the alleged deficiencies in the grouting between the floor tiles as he has not established a breach of warranty or that he has suffered any damages as a result.
c. The cabinet holding the oven and microwave
27The kitchen cabinetry was custom built for the appellant’s appliances, which he purchased. A kitchen contractor was retained by the builder to build the cabinetry. The size of the cabinets was dictated by the appliance manufacturer. The appellant’s complaint is two-fold. First, he states that the cabinet for the oven and microwave is wider than prescribed. Second, he states that the cleats (small pieces of wood attached to the inside of the cabinet into which screws are placed to attach the microwave and oven to the cabinet) are not thick enough. He notes that his appliance manufacturer specified cleats 11/16 inch wide. The cleats provided by the builder’s kitchen cabinetry trade were 5/8 inch, 1/16 of an inch narrower than required.
28The builder’s evidence, agreed by the appellant, is that after installation and the appellant’s complaints, the builder had the oven and microwave removed, and the cleats thickened by the addition of another 1/8-inch cleat which was attached to and laminated with the 5/8-inch cleats. The builder paid for the removal and reinstallation of the oven and microwave.
29The appellant agrees that this remediation was carried out, but he says that two pieces of wood albeit laminated together, do not allow the appliance to be securely attached to the cabinet. The screws are “loose” he testified, and at the time of Ms. Coelho’s inspection, they had been removed. He stated that during Ms. Coehlo’s visit, he showed her that the screws were loose by screwing one.
30Ms. Coehlo testified that even with the screws removed, the appliance seemed to be securely installed. She opened the oven door several times and saw no movement. The appellant contends that the whole appliance moves when the oven door is opened, and that this presents a danger to his family. Ms. Coehlo also stated that the appellant did not show her how the screws were loose by attempting to screw one during her visit. She stated that had this happened, she would certainly have noted it in her report, and she made no such notation.
31The appellant was unable to explain why the screws were loose. He blamed it on the cleats. However, the builder pointed out in his evidence that the screws were loose because the appellant or his installer kept screwing them in and taking them out. The builder testified that the appellant just needs to use a longer and perhaps at this point a thicker screw, and to screw it in only once.
32The builder’s explanation appears logical to me. The problem the appellant has is a simple one with an easy fix which he has simply not investigated. There is no construction deficiency. I note the following.
33The appliance manufacturer’s specification for the cabinet states that it must be at least 30-1/4 inches wide. Thus, the fact that the cabinet is 30-5/8 inches wide does comply with the specification. Second, the specification for the width of cleats, 11/16 inches, has been met by the builder’s kitchen contractor. Originally the cleats were 5/8 inches thick, but the trade returned and adhered another 1/8 inch of width (or thickness) to the cleats. Third, and perhaps more importantly, the photographs taken by Ms. Coehlo during her inspection of the home show that the appliance is snugly fitted inside the cabinet. The overall appearance does not indicate, as the appellant contends, that the cabinet is oversized and there is no evidence but his own statement, contradicted by Ms. Coehlo, that the oven moves when the door is opened. I accept Ms. Coehlo’s evidence on points where it differs from the appellants. I note that Ms. Coehlo’s purpose was to record any deficiencies. She was thus alert to notice them. The appellant has been living in the house for two years or more and this was the third inspection by Tarion. He may be conflating or confusing the events of one visit with another. Further, I observed that he has a vested interest in proving that he is right and the builder and Tarion are wrong.
34Once again, the appellant has not satisfied me that there is any construction defect. Both workmanship and materials for the cabinet holding the oven and microwave appear satisfactory, and his complaint that the screws are loose results not from construction but from his own action or that of his installer in repeatedly screwing in and unscrewing, thus widening the hole made in the wood by the screws. Now, he may need longer and/or thicker screws to attach the appliance to the cabinet securely. This is not a construction defect, but the result of the appellant’s use.
35At the hearing, the appellant raised as a new issue that one of the cleats is cracked. This was not listed as a construction defect earlier. This appeal is limited to the issues that the appellant identified in his notice of appeal. Regardless, there is no evidence as to how the crack occurred or what if anything its effect might be. It is not visible. I am not satisfied that this is a construction defect.
36The appellant is not entitled to compensation under the Act for the alleged deficiencies in the kitchen cabinet holding the oven and microwave as he has not established a breach of warranty or that he has suffered any damages as a result.
d. Hot water in the second bedroom en-suite bathroom is inconsistent and sometimes there is no hot water at all
37The appellant testified that hot water is available without delay in all of the other bedrooms as well as in the kitchen, powder room and laundry room. However, the en-suite for the second bedroom has the problem of slow delivery of hot water. The appellant contends that there must be some blockage in the pipes, and that the builder or Tarion ought to investigate. Ms. Coelho in her evidence referred to the floor plan of the home, pointing out that the hot water tank, which is rented from someone other than the builder, is in the basement at one end of the home, while the bathroom referred to is on the second floor at the other end of the house. Water therefore has to traverse a long area of piping before it arrives at the bathroom. When the water is turned on, all of the cold water in the pipe must be pushed out before the hot water can start. This is normal. The builder in his evidence pointed out that if there was a blockage in the piping, no water, either hot or cold, would come out of the tap.
38Ms. Coehlo stated that on her inspection of this alleged deficiency, she held her hand under the sink tap, turned it on, and waited for the water to warm. She stated that at one minute the water was getting warm and at one minute twenty seconds it was hot. She stated that this is a reasonable period of time and does not suggest a defect. The builder’s recommendation in his evidence was that the appellant should contact the hot water tank provider and enquire if a boost of some kind might be available. I find that the explanation offered by Tarion for the time it takes to deliver hot water to the bathroom is reasonable and credible. The appellant alleged that sometimes it takes three minutes, and sometimes no hot water at all was delivered, but this was not borne out by Ms. Coelho’s experience. Further, the appellant’s suggestion of a possible deficiency causing the delay in delivery of hot water is not reasonable, as the builder testified: the fact that any water comes out of the tap means that there is no blockage in the pipes.
39The appellant alleges that the waiting time is very aggravating because although there are two other bathrooms available on the second floor, the family has become used to using this bathroom. Such aggravation does not constitute compensable damage even if there were a deficiency, which I find there is not.
40There are no grounds for requiring Tarion to remove drywall and examine the plumbing. I find that there is no construction deficiency and no damage suffered by the appellant. The appellant is not entitled to compensation under the Act for the alleged deficiencies in the hot water in the second en-suite bathroom as he has not established a breach of warranty or that he has suffered any damages as a result.
DECISION AND ORDER
41I find that the appellant has not established that any of his complaints stem from defects in workmanship and/or materials. There has been no breach of Tarion’s Construction Performance Guidelines, and no breach by the builder of his agreement with the appellant. Further, the appellant has not suffered any damage within the meaning of the Act.
42I acknowledge that the appellant has concerns about the squeaky flooring, the grouting in the floor tiles, the kitchen cabinetry holding the oven and microwave, and the hot water in the second en-suite bathroom. It is clear that he feels strongly that these concerns are caused by defects in workmanship and/or materials. However, in order for me to award the appellant damages for breach of warranty, he is required to prove his claims by showing there is a defect in workmanship and/or materials, that the defect has resulted in him suffering damages and the quantum of those damages. He has not done so. Therefore, his claims cannot succeed.
43Accordingly, pursuant to s. 16(3) of the Act, I direct Tarion to deny the appellant’s claims.
Released: December 11, 2019
_____________________
Patricia Conway,
Adjudicator