Elisabeta Costan, Vintila Costan and Tudor Esanu v. Tarion Warranty Corporation, 2020 CanLII 94729

Date: 2020-11-19

An appeal from a Decision of Tarion Warranty Corporation under the Ontario New Home Warranties Plan Act, R.S.O. 1990, c.O.31 to Disallow a Claim

Between:

Elisabeta Costan, Vintila Costan and Tudor Esanu

Appellants

-and-

Tarion Warranty Corporation

Respondent

-and-

Remington Homes (Mississauga) Inc.

Added Party

Motion DECISION & ORDER

ADJUDICATOR:

Terry Hunter, Vice Chair

APPEARANCES:

For the Appellant:

Tudor Esanu

For the Respondent:

Ryan Schell, Counsel

For the Added Party:

Carol Street, Counsel

Heard by teleconference:

October 23, 2020

BACKGROUND

1Elisabeta Costan, Vintila Costan and Tudor Esanu (the “appellants”) own a residential home built by Remington Homes (Mississauga) Inc. (the builder”). The appellants submitted a claim under section 14(3) of the Ontario New Home Warranties Plan Act R.S.O. 1990, c. O.31 (“the Act”) with respect to certain items listed in their Second Year Form.

2The claim was denied by the Tarion Warranty Corporation (“Tarion”) by a letter dated March 12, 2020. The appellants filed an appeal with the Licence Appeal Tribunal (the Tribunal).

3The appellants have previously submitted similar claims in their Year End Form. After their claim was denied by Tarion, the appellants filed an appeal with the Tribunal. In a decision dated October 8, 2019, the Tribunal dismissed the appellants’ appeal.

4A case conference was held May 12, 2020. The Order was released May 13, 2020, the builder was added as a party and the matter set for a three-day hearing on either of the following dates: November 4-6 or 18-20, 2020.

MOTION

5The Added Party, Remington Homes (Mississauga) Inc. filed a Notice of Motion dated September 11, 2020 and sought the following relief:

i. An order that the hearing proceed in person;

ii. An order defining and limiting the subject matter of the hearing.

6The Respondent, Tarion Warranty Corporation takes no position on the format of the hearing. Tarion supports the request for an order defining and limiting the scope of the hearing. The respondent further requests that the Tribunal arrange for a court reporter to attend the hearing and that a party be able to request a copy of the recording and/or the transcript.

RESULT

6The added party’s motion to have the hearing proceed in person is denied. On consent of the parties the hearing will proceed by videoconference on February 1, 2, 3, 4 and 5, 2021 commencing at 9:30am each day. The parties will receive instructions on Microsoft Teams and a link to the videoconference in advance of the hearing.

7The subject matter of the appeal is limited to a complaint about the precast front porch steps and the issues associated with rainwater penetration.

8The Tribunal will arrange for a court reporter to record the hearing as requested in the respondent’s correspondence of September 1, 2020.

REASONS

9Format of the hearing. The added party submits that at the appeal regarding Tarion’s First Year Decision which took place on July 3 and 4, 2019 the appellant Mr. Esanu refused to accept the Tribunal’s authority, it’s rules and processes. The hearing adjudicator found Mr. Esanu disrespectful of the adjudicator and other parties and difficult to control. The added submits that proceeding by videoconference will make the adjudicator’s job of maintaining order and decorum more difficult.

10Having observed Mr. Esanu during the motion hearing I can sympathize with counsel for the added party. Mr. Esanu made comments of a personal nature against counsel that were not helpful, and I would caution the appellant that it will not be tolerated in the hearing. I do think some of the appellant frustration is as a self represented party he anticipated the hearing process would allow for a forum to resolve all issues arising from the construction and purchase of the home. That is not the case and as I cautioned Mr. Esanu to have a chance of success he must stick to the issues at this hearing, which I will discuss later in these reasons.

11Counsel for the added party recognized during the motion hearing that given the state of the pandemic an in-person hearing was unlikely. The Tribunal is not scheduling any in-person hearings. There is a high level of uncertainty when the Tribunal will again schedule in-person hearings. The Tribunal is converting all hearings to proceed in writing, teleconference or videoconference under the authority set out in the Hearings in Tribunal Proceedings (Temporary Measures) Act, S.O. CHAPTER 5, SCHEDULE 3.

12Scope of the hearing. I do not think it helpful to direct Mr. Esanu to the specific issues previously the subject of a hearing. They are set out in the Tarion decision letter of March 12, 2020 and the motion submissions of the respondent Tarion (see paragraph 29 of the respondent’s submissions dated October 6, 2020).

13The hearing issues are restricted to 1) the allegation the front porch cement and precast front porch steps are disintegrating and 2) rain water has penetrated the entire house envelop. If these issues exist Mr. Esanu should come to the hearing with evidence. Photographs would be of assistance. Of greater assistance would be evidence from an independent party such as an engineer or a home building inspection service. If Mr. Esanu does not obtain reliable evidence the result may well be like his first appeal which will be frustrating to all.

14Recording the hearing. The Tribunal has adopted a new policy in order to conform to Rules 13.2 and 13.3 of the Tribunal Rules. The request from the respondent came prior to the policy change so I will allow the request for the Tribunal to record the hearing.

15Procedural issues. The parties will exchange any evidence they will rely on at the hearing, witness lists and witness will say statements 30 days prior to the hearing.