V.V. & N.V. v. Tarion Warranty Corporation, 2019 CanLII 32299

Licence Appeal Tribunal

Date: 2019-03-25

An appeal of a Decision of Tarion Warranty Corporation under the Ontario New Home Warranties Plan Act to Disallow a Claim

Between:

V.V. & N.V.

Appellants

and

Tarion Warranty Corporation

Respondent

MOTION DECISION

Adjudicator: Marisa Victor, Member

Appearances:

For the Appellants: Self-represented

For the Respondent: Luke Johnson, Counsel

Heard by Teleconference on: March 25, 2019

REASONS FOR DECISION ON MOTION

Overview

1The appellants own a residential home in Newmarket, Ontario built by Country Wide Homes at Newmarket Inc. (Country Wide Homes or the Builder). The appellants filed a claim with Tarion Warranty Corporation (Tarion) for defects in their kitchen including countertops, cabinets, flooring, crown molding and paint. Tarion denied the majority of the warranty claim on November 9, 2018 (the Decision Letter). The appellants appeal the Decision Letter.

2Tarion gave notice that it was bringing a motion to add the Builder as an added party at the case conference. The motion was heard on February 5, 2019, however, only the appellants and Tarion attended. Since the Builder was not present, I allowed additional time to all parties and the Builder to provide written submissions. Only the parties provided further written submissions.

3After considering all the evidence, I deny the motion. The Builder will not be added as a party to the appeal.

ISSUE

4The issue is whether the Licence Appeal Tribunal should exercise its discretion to add Country Wide Homes as an added party based on the Builder’s significant interest in the appeal.

LAW

5Section 16(4) of the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31 (the Act) names homeowners and Tarion as parties. The section also provides that “such other persons as the Tribunal may specify” may be added as parties but does not state the test for determining this.

6Rule 3.6 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice & Procedure, Version I (October 2, 2017) (the Rules) sets out that to add a party, that party must have a significant interest in the proceeding (emphasis added).

EVIDENCE

7Tarion’s position is that Country Wide Homes should be added as a party based on three grounds:

a. The best interests of the existing parties;

b. That the Builder has a significant interest in the appeal; and

c. Natural Justice and procedural fairness favours the addition of the Builder as an added party.

8Tarion states that since the Builder has been involved in this matter from the beginning, it is in the best interest of the existing parties if it continues to take part.

9Tarion states that the warranty is at first instance the Builder’s warranty. The Builder has both a legal and financial interest in the outcome of the case. The replacement of 30 of more cabinet doors is a significant financial interest. Further, there are allegations that the Builder has provided work in a substandard manner, therefore the Builder has a reputational interest in the outcome of the case.

10Finally, Tarion argues that since the Builder has a significant interest in the outcome of the matter, natural justice and procedural fairness can only be served by granting them added party status.

11The appellants consented to the motion.

ANALYSIS

12I have considered Tarion’s motion material and the consent of the appellants. The fact that the Builder has been involved since the start is a generic argument that would apply to all builders. This argument is not persuasive because the test to add a party requires that a specific builder has a significant interest in this particular case.

13The natural justice argument flows from a finding of a significant interest. This argument also is not persuasive because it presupposes a significant interest.

14The key issue is only whether or not Country Wide Homes has a significant interest. As I explain below, it does not.

15While Tarion has raised some arguments that could have established the Builder’s significant interest, that evidence falls short. It remains unknown whether the issues under appeal represent a significant interest to Country Wide Homes. There is no evidence that suggests how significant the monetary value of the appeal or the reputational interest in the appeal is to this particular Builder.

16In addition, I find it problematic that Country Wide Homes took no steps to establish its right to participate as an added party in the appeal. Granting added party status adds complexity to a case and further, requires that the added party actively participate in the case. This is why the significant interest test must be met before a party is added. The Builder’s lack of participation in the motion suggests it does not have a significant interest in the appeal.

17Given all of the above, I conclude that Country Wide Homes does not have a significant interest in the appeal. I therefore decline to use my discretionary power to grant Country Wide Homes added party status.

ORDER

18The motion to add Country Wide Homes as an added party is denied.