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. Appellant
and
Tarion Warranty Corporation Respondent
and
Greenbrook Estates Inc. Added Party
DECISION AND ORDER
Adjudicator: Zahra Dhanani, Member
Appearances:
For the Appellant: Self-represented For the Respondent: Ryan Schell, Legal Counsel
Heard in Toronto: December 2, 2019
Overview
1J.M. (the appellant) bought a new house. The house was built by the added party, Greenbrook Estates Inc. ("builder").
2On the Year-End Form ("warranty claim") the appellant had listed several issues, many of which were resolved by the time of the hearing.
3However, other issues were not resolved, and J.M. sought conciliation with the respondent Tarion. Pursuant to s. 14(3) of The Ontario New Home Warranties Plan Act, R.S.O. 1990, O.31 (the "Act"), Tarion denied J.M.'s claim in their decision letter dated January 10 ("decision letter").
4The appellant appealed the decision letter to the Tribunal.
5This appeal is based on the three issues that the appellant listed as being unresolved with the builder in their Notice of Appeal (NOA). These issues are:
(a) The master ensuite bathroom was not done according to the plan, specifically: the bidet was missing in the bathroom;
(b) The grout was not done properly: all trims and caulking need to be redone; and
(c) Hardwood floors were damaged, squeaking and some paint was not cleaned properly from the hardwood floor.
Issues:
6The issues to be determined in this appeal are:
(a) whether there has been a breach of warranty; and
(b) whether the appellant has suffered damages as a result of any breach.
Decision
7I have concluded that there has not been a breach of warranty on the three overarching issues.
The Legal Framework
8The Act is consumer protection legislation and must be liberally construed.
9The warranties applicable to the appellant's Year-End claims are set out in clause 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.
10The onus is on the appellant to establish on a balance of probabilities that there has been a breach of warranty, that they have suffered damages because of the breach, and the quantum of those damages.
11Under 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 and, for such purposes, the Tribunal may substitute its opinion for that of Tarion.
Evidence and Analysis
12The appellant testified at the hearing on her own behalf. Tarion called one witness: Paula Koubar, the Tarion Warranty inspector who had inspected the appellant's home.
Is the appellant's home constructed in a workmanlike manner, free from defects in material, fit for habitation and constructed in accordance with the Ontario Building Code?
(a) Master bathroom not done according to the building plan or purchase agreement
13I find that the builder did not breach the warranty under s. 13(1) of the Act.
14The appellant submitted that the builder did not build her master bathroom as per the plans in her contract.
15The appellant testified that the bidet wasn't included, even though she thought it was part of the purchase agreement and/or the building plans.
16She testified that she had attended at the builder's sales centre prior to purchasing her home. When she visited a model home, a sales associate gave her a plan for the home, which included a bidet. She later went to the sales office to purchase her home, but she did not realize that the model she purchased did not have the bidet in the contract/purchase agreement. In her mind, she was purchasing a home with a bidet.
17According to the appellant, there was no discussion of the bidet when she was purchasing the home. She assumed that it was part of the home because she had seen it in the model and in the plan that the sales associate gave her at that time.
18When asked, the appellant could not locate any section, plan or drawing in her purchase agreement indicating that she was to receive a rough-in bidet. She testified that she had an opportunity to review her purchase agreement (identified as Lot 20, Phase 8) as well as the Lot 65 drawing with her lawyer at closing.
19Tarion's Warranty Services Representative, Paula Koubar, testified that she reviewed J.M.'s purchase agreement and noted that there was no plan indicating that she was to receive a "rough-in bidet."
20I find that the appellant assumed that she would get the exact model of home she saw at the sales centre but did not realize that the bidet was an upgrade for which she would have to request and pay. There was no evidence before me that the appellant purchased a bidet or that it is required as an industry standard.
21In respect of the bidet, I find that the builder did not breach the warranty under s. 13(1) of the Act.
(b) Grout Not Done Properly - All Trims and Caulking Need to be Redone
22I find that there is no evidence before me that demonstrates that there has been a breach of warranty with respect to the grout.
23The appellant submitted that her bathroom floor grout was not done appropriately and requires re-grouting. As evidence in support of this, the appellant submitted photographs to the Tribunal.
24Ms. Koubar testified that the bathroom floor grout was completed in a "workmanlike" manner. She presented photographs to support her testimony.
25Ms. Koubar testified that there were no noticeable defects with the tile grout. She found that the tile grouting met industry standards: there was no missing grout or cracked grout, and the joint sizes were consistent with industry thresholds.
26Tarion submitted that the Tribunal has found a breach of the workmanlike warranty when the work "falls below the industry standard" and that the work warrantied under the Act is "founded on the concept of what is reasonable and not what is perfect."
27I find that the photographs provided by the appellant did not demonstrate a problem with the grouting work that was done in her home. While I understand that the appellant wants everything in her home to be perfect, the grouting that was displayed did not exhibit any out of the ordinary appearances.
28While the grouting may not be perfect, it is within a reasonable standard in a new home.
29I find that there is no evidence before me that demonstrates that there has been a breach of warranty with respect to the grout.
(c) Hardwood Damage, Some Areas are Squeaking, Also Paint Not Cleaned from Hardwood Properly
30The appellant submitted that there were scratches and chips in the hardwood floor.
31The appellant had a Pre-Delivery Inspection of her home. During the course of this inspection, a Pre-Delivery Inspection form was completed and submitted to Tarion and the builder.
32The appellant testified that she received the keys for her home on or about June 1 or 2, 2017. That was also her date of possession.
33Tarion submitted that the appellant then visited her home on June 17, 2017, which is when she said she noticed the scratches and chips. She did not report the scratches and chips to the builder on this day.
34Tarion submitted that the appellant then proceeded to move her bedroom furniture in on June 18, 2017. She reported the chips and scratches to the builder the next day, on June 19, 2017. The appellant reported the hardwood scratches and chips to Tarion and the builder in her 30-Day Form but never requested conciliation from Tarion. She requested conciliation from Tarion only after her submission of her Year-End Form.
35Ms. Koubar testified that she attended the appellant's home for the conciliation inspection on December 14, 2018. It had been roughly a year-and-a-half after the appellant took possession that Tarion attended her home to inspect the hardwood chips and scratches.
36At the time of the conciliation inspection, Tarion could not determine that the damage was caused by the builder.
37The appellant did not provide any evidence indicating that the damage was, in fact, caused by the builder. Since Ms. Koubar could not determine who caused the damage to the hardwood floor, this item was found to be not warranted.
38In her testimony, the appellant admitted that she did not use professional movers.
39The appellant also admitted during cross-examination that she wrote in some of the appealed items on her Pre-Delivery Inspection Form the PDI form was signed and submitted to the builder/Tarion. She admitted that the items were not reported at the Pre-Delivery Inspection. Tarion submitted into evidence the original and untampered Pre-Delivery Inspection Form, which shows the appealed items were not reported at the Pre-Delivery Inspection.
40I find that it is possible that the scratches on the floors were the result of the moving in, there was no evidence submitted to counter this possibility. I also find that it is possible that she was mistaken about the day she noticed the scratches on the floor (maybe the day of the move-in or after).
41In considering the evidence before me, especially:
a. the damage was not reported on the Pre-Delivery Inspection Form,
b. the damage was reported to the builder only after the appellant moved her furniture in,
c. The appellant requested conciliation by Tarion only after she had lived in the home for over a year, and
d. The appellant has failed to provide any supporting evidence showing the defects were caused by the builder,
42I find that there is no evidence that the builder breached its warranty for work and materials in respect of these issues with the floors.
43The appellant also claimed that the hardwood floors were squeaking and there was paint still on the floors from the painting Tarion had done on the house.
44There was no evidence before me other than the appellant stating the floors were squeaking, I cannot find positively on this issue as a result.
45The appellant did provide pictures of the issue with the paint on the floors. Tarion stated that they had tried to resolve this issue with the appellant.
46The pictures did demonstrate that there were remnants of paint on the floors, however I find that there is nothing in s.13(1) that would provide a remedy for this as it is not an issue with the construction of the home. I encourage the appellant and Tarion to resolve this issue independently.
47I find that paint on the floors is not an issue that can be remedied by the Tribunal.
Conclusion
48With respect to each of the three items under appeal, the appellant has neither proven that there is a breach of warranty nor proven any damages suffered, except with respect to the paint on the floors.
49The Tribunal confirms Tarion's decision to deny the appellant's claims.
Order
50Pursuant to s.16(3) of the Ontario New Home Warranties Plan Act, I direct Tarion to deny the appellant's claim.
LICENCE APPEAL TRIBUNAL
____________________
Zahra Dhanani, Member
Released March 27, 2020