B.E. and S.E. v. Tarion Warranty Corporation, 2019 CanLII 130365

Date: 2019-12-18

Appeal from a decision of Tarion Warranty Corporation under the Ontario New Homes Warranties Plan Act, R.S.O. 1990, c. O.31 to deny a claim

Between:

B.E. and S.E.

Appellants

-and-

Tarion Warranty Corporation

Respondent

-and-

Oakdale Village Homes Inc.

Added Party

RECONSIDERATION DECISION

Before: Jeanie Theoharis, Vice-Chair

Date: December 18, 2019

Written Submissions by:

For the Appellants: B.E.

For the Respondent: Michael Owsiany, counsel

For the Added Party: Corey Libfeld

OVERVIEW

1The appellants, B.E. and S.E., request reconsideration of the Tribunal’s decision dated August 7, 2019. The Tribunal member found that the appellants failed to file a major structural defect (MSD) claim within the 7-year period and there were no extraordinary circumstances to warrant the appellants’ request to extend the time to file a MSD claim with Tarion.

2The appellants’ request a reconsideration of the Tribunal’s decision on the ground set out in Rule 18.2(d) of the Tribunal’s Common Rules of Practice and Procedure. Rule 18.2(d) requires a party requesting reconsideration to establish that “[t]here is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.” The appellants have the onus to establish all aspects to be successful in their reconsideration request.

3The Executive Chair has delegated to me the responsibility to decide this reconsideration request.

4For the reasons that follow, I dismiss the appellants’ request for reconsideration. I am not satisfied that the documents the appellants wish to be considered could not have reasonably been obtained earlier nor is it likely that they would have affected the result. Accordingly, I dismiss this request for reconsideration.

SUBMISSIONS

5The appellants indicated that the additional documents noted below could not be obtained in time for the hearing. The additional evidence that the appellants rely on are the following documents:

a. 311 City of Toronto service request documents

b. Emails between Tarion’s ombudsperson and appellants from August 2017

c. Builder bulletin 24 and MSD definition

d. Tarion decision denying MSD dated September 28, 2017

e. Granted summons for Julia Serrano dated May 24, 2018

f. Correspondence with builder dated December 22, 2011 and October 7, 2016

g. Call conversation with Ali from customer care from the builder

h. A copy of appellants’ notes and a business card from Global Sewer Tech.

6The respondent and added party submit that the additional documents would have been available to the appellants to present as evidence at the hearing; and the additional documents would not have affected the result.

ANALYSIS

7I am not satisfied that the new evidence relied upon by the appellants in support of their reconsideration request could not have been obtained earlier; nor am I satisfied that this new evidence would likely have affected the result. Therefore, I dismiss the request for reconsideration.

8A reconsideration request is not an opportunity to restate the evidence or introduce new evidence that could have or should have been produced at the hearing in the hope of having the Tribunal reach a different decision. The Tribunal’s findings were made based on the evidence presented by the parties, who had the opportunity to cross-examine on that evidence.

9A reconsideration request is not meant to bifurcate the hearing process and present evidence in a piecemeal fashion with hopes of getting a different result.

10The documents the appellants seek to introduce in their reconsideration request are documents that could have reasonably been obtained prior to the hearing. The documents predate the hearing and were available to the appellants to present at the hearing. For instance, the email correspondence with the ombudsperson is dated from August 2017; the builder bulletin has a release date of July 1, 2012, the call conversation with customer care is dated from August 26, 2016, the Tarion decision denying the MSD is September 28, 2017. All these documents were in existence prior to the May 2018 hearing dates. Moreover, the appellants have not provided an explanation about why these documents could not have been obtained earlier, nor why they were not presented at the hearing.

11I further find that the documents, had they been admitted, would not likely have affected the result reached by the Tribunal.

12Throughout the decision the Member articulates having considered the issue with the sewer blockage. The member acknowledges the appellants’ attempts to find the cause of the blockage—they raised the issue with the City of Toronto, discussed the problem with the parties and made attempts to resolve the problem with the parties. The new evidence does not provide further insight and would not likely have affected the result.

13The Member thoroughly considered the interaction between the parties related to the sewer blockage issues, but ultimately determined that there were no extraordinary circumstances that prevented the appellants from filing a MSD claim within the required 7-year period.

14For the reasons given above, I find that the appellants have not established the grounds for reconsideration as set out in Rule 18.2(d). The request is therefore dismissed.