Licence Appeal Tribunal
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:
J.M. and S.M. Appellants
and
Tarion Warranty Corporation Respondent
and
Finoro Custom Homes Inc. Added Party
DECISION AND ORDER
Adjudicator: Dawn J. Kershaw, Vice-Chair
Appearances:
For the Appellants: J.M. and S.M., Self-represented For the Respondent: Ryan Schell, Student-at-Law For the Added Party: Danny Finoro, Representative
Heard in London: January 30, 2019
OVERVIEW
1On December 16, 2016, the appellants moved into their newly constructed home, built by the added party, Finoro Custom Homes Inc. (“builder”). One main reason the appellants chose this home was because it had a cathedral ceiling. Sometime after they moved in, the appellants noticed that one side of the cathedral ceiling began 4 inches further from the rear wall of the home than the other side.
2On their Year-End Form (“warranty claim”) they listed an issue with the lack of symmetry of their cathedral ceiling.
3Two Tarion Inspectors attended the home for an inspection and concluded there was no defect in workmanship or materials, no breach of contract, and the cathedral ceiling was not warranted. They issued a Warranty Assessment Report (“report”) dated July 25, 2018 relaying their conclusions.
4The appellants appeal Tarion’s August 14, 2018 decision letter to the Tribunal.
DECISION
5I have concluded that there has not been a breach of warranty and the appellants have suffered no damages.
The Legal Framework
6The 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 as a result of the breach.
7The issues to be determined in this appeal are:
(a) whether there has been a breach of warranty, particularly:
ii. is the cathedral ceiling constructed in a workmanlike manner; and
ii. is the cathedral ceiling free from defects in material; and
(b) whether the appellants have suffered damages as a result of any breach.
8The 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.
9Under 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.
ANALYSIS
10The 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.
Is the cathedral ceiling constructed in a workmanlike manner?
Is the cathedral ceiling free from defects in material?
Aesthetics of the Cathedral Ceiling
11The applicants at all times framed the issue as one of aesthetics, not one of structure. They take the position that the cathedral ceiling’s unappealing aesthetics resulting from its lack of symmetry is a breach of warranty. However, I find that aesthetics alone is not sufficient to constitute a breach of warranty. My reasons follow.
12There is no dispute among the parties that there is a 4 inch difference between where the right and left sides of the cathedral ceiling begin from the back wall of the home. The appellants admit this is an aesthetic issue, not a structural one. J.M. testified that by definition a cathedral ceiling is symmetrical.
13S.M. testified that they noticed the discrepancy shortly after they moved in. She testified that the more furniture and paintings placed in the room, the more noticeable the discrepancy becomes. J.M. testified that once they measured and found out there was a 4 inch difference, they see it all the time. S.M. was visibly distressed during her testimony, stating that she and her husband bought the home as an investment for their retirement, intended to live in it for a while and then downsize. They are concerned that the home is devalued.
14Ms. Davidson and Mr. Wood attended the appellants’ home on June 29, 2018 for the inspection. They both testified they did not notice the problem until the appellants pointed out that if one looked one way and then the other, one could see the differing starting points. Ms. Davidson first viewed the cathedral ceiling from the front hall and stated that the peak of it was centred in relation to the back wall and the windows, which was not the issue of which the appellants complained. She testified they also viewed the cathedral ceiling from the living room and the kitchen and the discrepancy was not noticeable, and that where the peak meets is symmetrical.
15Ms. Davidson’s report includes an assessment of the workmanship, including whether the ceiling or corners are uneven; or whether there is truss uplift, but none of these was ever part of the appellants’ complaint and is irrelevant.
16The respondent took the position that the fact that the appellants did not include this issue in their 30-Day Form means that it was not a noticeable issue for them. The appellants explained that although they noticed it, they chose to deal with other items first and then with this issue later. They testified that there is no Tarion requirement that they have to prioritize their claims. Ms. Davidson agreed.
17As indicated, the parties agree this is an aesthetic issue alone. The question therefore is whether that can amount to a breach of the warranty that the home is constructed in a workmanlike manner, pursuant to section 13(1)(a)(i) of the Act. I find that it does not.
18The Act does not include a definition for “workmanlike manner” and the interpretation of this has been left to the Tribunal. Whether construction was not done in a workmanlike manner has been defined as falling below “industry standards”1. In this case there were no Construction Guidelines for cathedral ceilings. The appellants did not provide any evidence that this ceiling’s construction fell below industry standards.
19Aesthetics is one consideration for the Tribunal2. The Tribunal, however, has also found that the warranties in the Act are “founded on the concept of what is reasonable, not on what is perfect”3. The appellants did not provide any evidence that this ceiling’s construction was not reasonable.
20With respect to aesthetics, I do not accept that the fact that the asymmetry was not included in the 30-Day Form means this was not a major issue for them. I accept that they chose to deal with other, more easily remedied items first. It is not determinative in any event, given there is no ranking of claims by priority
21There is no doubt that this ceiling is not symmetrical. Having reviewed the photographs, the discrepancy is noticeable when one’s attention is drawn to it. However, I find that aesthetics alone in this case is not sufficient to prove a breach of warranty in the absence of any evidence that the construction of the ceiling was somehow outside of industry standards or not done in a workmanlike manner.
22In addition, the appellants’ provided no evidence that even if this was a warrantable item they have suffered any damages. Their concern that their home is decreased in value, but not supported by evidence, is not sufficient.
23I acknowledge the appellant’s obvious distress about the construction of the cathedral ceiling in their home. It is a daily source of stress for them, and seeing the ceiling discrepancy is a constant reminder for them. It is unfortunate that the builder permitted this discrepancy in the two sides of the cathedral.
24However, the appellants’ claim is dismissed.
ORDER
25Pursuant to s. 16(3) of the Ontario New Home Warranties Plan Act, I dismiss the appellant’s appeal and direct Tarion to deny the appellants’ claim.
LICENCE APPEAL TRIBUNAL
Dawn J. Kershaw, Vice-Chair
Released: February 28, 2019