Appeal of a Decision of Tarion Warranty Corporation to disallow a claim made under the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31 (the “Act”).
Between:
Louis Marie Barikage & Betty Grace Nukuri
Appellants
and
Tarion Warranty Corporation
Respondent
and
Courtice North Inc.
Added Party
DECISION
Decision made by: Matthew M. Létourneau, Adjudicator
Appearances: Louis-Marie Barikage, Appellant Ryan Ding, Representative of the Respondent Catherine Longo, Counsel for the Respondent Claudia Vercillo and Narges Nournansouri, Representatives of the Added Party
Interpreter: Lyne Brassard (French)
Clerk: Chris Delic
OVERVIEW
1Louis Marie Barikage and Betty Grace Nukuri (the “appellants”) have appealed to the Licence Appeal Tribunal (the “Tribunal”) contesting the refusal of their claim by the Tarion Warranty Corporation (“Tarion”).
2Tarion is designated under the Act to administer the Ontario new home warranties and purchaser protection plan, and that is the basis of the decision by Tarion that led to this appeal.
3The appellants signed a purchase and sale agreement for a new home at 8 Longshore Way in Whitby, Ontario, with the added party, Courtice North Inc., on March 23, 2016. They filed a claim with Tarion on August 21, 2018, under subsection 14(3) of the Act seeking compensation for breach of a new home purchase warranty. The appellants asserted that they incurred financial losses as a result of delays on the part of the added party.
4In response to the claim, Tarion issued a decision on October 16, 2019, disallowing the claim further to an analysis of the facts, the Act and the Warranty for Delayed Closing or Delayed Occupancy1 (the “Warranty Regulation”).
5The appellants brought this appeal to the Tribunal on November 11, 2019. Mr. Barikage, one of the appellants, attended a hearing in person before the Tribunal, on behalf of the appellants, on March 12, 2020. Since purchasing the property together, the appellants have divorced, and Ms. Nukuri was not present. Tarion’s representatives were present at the hearing along with representatives of the vendor of the home in question, Courtice North Inc.
6The appellant submitted to the Tribunal that he was entitled to compensation for breach of warranty because of the delayed closing. He had entered into a private agreement with the vendor on May 1, 2018, that contained a specific clause providing that in consideration of additional time to finalize the closing of the sale, he waived his rights to compensation under any warranty. The Tribunal therefore determined that the appellants have no right to compensation.
7For the following reasons, and having considered the facts and submissions, the Tribunal finds that even if there was a breach of warranty, the appellants have no rights to compensation due to the agreement that waived the appellants’ rights. The Tribunal affirms the decision made by Tarion and must therefore dismiss the appellants’ appeal.
ISSUES
8The issues identified in the appeal filed by the appellants are as follows:
i. whether the agreement between Mr. Barikage (the owner) and the added party (the builder) is sufficient to confirm a waiver by the appellant of his rights to claim compensation for delayed occupancy; and
ii. whether the appellants are entitled to reimbursement of their payments to the builder in the amount of $4,827.85, as sought in their claim against Tarion.
RESULT
9I find, on a balance of probabilities, and based on an analysis of the facts and submissions, that the agreement between the appellant and the added party leaves the appellant with no right to compensation as was claimed against Tarion. Tarion’s decision dated October 16, 2019, refusing to allow compensation, is affirmed. The appellants are not entitled to compensation. The appeal is dismissed.
FACTS
Warranty plan administered by Tarion
10The compensation for delay claimed by the appellant in this matter is the compensation provided by the Act. [Subsection 13(1)](https