Tribunals Ontario Licence Appeal Tribunal

Tribunaux décisionnels Ontario Tribunal d'appel en matière de permis

Citation: 7853742 Canada Inc. o/a Mapleview Homes v. Registrar, Home Construction Regulatory Authority, 2021 ONLAT 13122 NHCLA

Date: 2021-03-12

Motion for an Order to Extend the time to file an Appeal under section 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G of a notice of proposal to revoke pursuant to section 43(1) of the New Home Construction Licensing Act, 2017, S.O. 2017, c. 33, Sched. 1.

BETWEEN:

7853742 Canada Inc. o/a Mapleview Homes

Appellant

-and-

Registrar, Home Construction Regulatory Authority

Respondent

DECISION AND ORDER ON MOTION

Adjudicator: Stephen Scharbach, Member

Appearances:

For the Appellant: Ron Noseworthy, Director

For the Respondent: Tim Snell, Counsel Letizia Filippazzo, Counsel

Heard by teleconference: February 18, 2021

OVERVIEW

1This is a motion brought by the appellant to extend the time to appeal a notice of proposal issued by the Registrar under the Ontario New Home Warranties Plan Act (“Act”) to revoke the appellant’s registration under the Act.

2The Registrar’s notice of proposal to revoke was served on the appellant on September 28, 2020. The appellant had 15 days to request a hearing before this Tribunal. The Tribunal received his request on January 28, 2021, about three and half months after the deadline had passed.

3The appellant requests that the Tribunal extend the 15-day time limit.

4The Tribunal may extend the time to request a hearing “… if the Tribunal is satisfied that there are reasonable grounds for the extension…”¹. The onus is on the appellant to establish those grounds.

ISSUE

5Has the appellant established reasonable grounds to support his request for an extension of the time for filing an appeal?

DECISION

6The appellant’s motion to extend the deadline is denied. The appellant has not met the onus of establishing that an extension of the appeal deadline in this case is appropriate.

THE LAW

7The Act provides that no person may act as a vendor or a builder unless they are registered under the Act.

8The Act also provides that the Registrar may revoke registration in certain circumstances, including those where, in the case of a corporation:

• the registrant’s financial circumstances are such that the registrant cannot reasonably be expected to be financially responsible in the conduct of its undertakings;
• the past conduct of a registrant or its officer or director affords reasonable grounds for belief that the registrant will not carry on its undertakings in accordance with law and with integrity and honesty. ²

9If the Registrar intends to revoke a registration, the Registrar must serve notice of the proposed revocation, together with reasons, on the registrant. According to the Act, the registrant then has 15 days from the time of service of the notice to request a hearing before this Tribunal.³

10If no hearing is requested within that time, the Registrar may carry out the proposal and revoke the registration.

11If a hearing is requested within the time limit, the Tribunal shall hold a hearing and afterwards may direct the Register to carry out the proposal, refrain from carrying out the proposal, or take such other action as the Tribunal considers appropriate.⁴

12The Tribunal has jurisdiction to extend the 15-day time limit for requesting a hearing. Section 7 of the Licence Appeal Tribunal Act⁵ states that the Tribunal may extend a time limit “…if the Tribunal is satisfied that there are reasonable grounds for applying for the extension and for granting relief…”

13The courts and this Tribunal have considered the analysis required to determine whether reasonable grounds for extension exist. According to the Divisional Court⁶, the general rule is that time for an appeal is not extended unless the appellant shows that the “justice of the case” demands it. The appellant bears the onus of establishing that.

14While the “justice of the case” is the overriding consideration, several factors are commonly considered to assist in determining whether an extension should be granted. In Allen (Re), this Tribunal summarised those factors as follows:

Mr. Justice Blair in the above-noted cases sets out a multi-pronged test to determine whether the time to file an appeal ought to be extended. The failure to observe the time limits must be reasonably explained. There must be a firm intention from the beginning to appeal. There must be no prejudice to the other party or, if prejudice is found, there must exist a way to compensate the prejudiced party. The appeal must be shown to have merit, that is, the appeal must raise a substantive and reasonably arguable case. Finally, all these tests are subject to a broader rule that permits an extension when the justice of the case requires it.⁷

15In my view, those principles and factors are also applicable in this case, and they are considered and applied below.

FACTS

16Under the Act, the Tarion Warranty Corporation (“Tarion”) administers the Ontario New Home Warranties Plan. That plan requires that builders provide enforceable warranties to purchasers of newly constructed homes. Builders are required to be registered under the Act.

17Under s. 3 of the Act, Tarion appoints a Registrar whose has responsibility for registration, including determining eligibility and granting or revoking builder registrations.

18The appellant carried on business as a residential home builder and was registered under the Act. Mr. Ron Noseworthy is the appellant’s owner and sole officer and director.

19On September 23, 2020, the Registrar issued a notice of proposal to revoke the appellant’s registration. It was based partly on the appellant’s poor financial circumstances, which, according to the Registrar, indicated that the appellant cannot reasonably be expected to be financially responsible in the conduct of its undertakings. The notice referred to several construction liens that were outstanding against the appellant, a failure to provide a satisfactory explanation of the financial circumstances when requested, and information that suggested that the appellant had insufficient equity.

20The Registrar also alleged that the past conduct of Mr. Noseworthy afforded additional grounds to believe that the appellant will not carry on its undertakings in accordance with law and with integrity and honesty. That past conduct included Mr. Noseworthy’s failure to respond to inquiries from Tarion to clarify the appellant’s financial circumstances, and several instances where it is alleged that the appellant started construction on homes without first enrolling them with Tarion - a contravention of s. 12 of the Act

21The Registrar’s notice was served on the appellant by registered mail addressed to the corporation at its registered head office address in Kemptville, Ontario. According to Canada Post tracking information, it was delivered on September 28, 2020.

22The 15-day appeal period expired on October 13, 2020 and the Registrar did not receive a response by then. On October 21, 2020, the Registrar issued a notice of revocation of the appellant’s registration. That notice was again sent to the appellant’s head office address, this time by regular mail. The appellant did not respond to it either.

23According to Mr. Noseworthy, the Registrar’s notices did not come to his attention and he only found out about them on January 20, 2021. He then got in touch with Tarion and filed a notice of appeal on January 28, 2021, about three and half months after expiry of the time limit.

ANALYSIS

24As mentioned, the general rule is that an appeal deadline shall not be extended unless the requesting party can establish that the “justice of the case” requires an extension. Taking into account the factors that the case law above suggests should be considered in determining the justice of the case, I note the following.

25Firstly, the failure to observe the time limits must be reasonably explained and, in this case, I conclude that no reasonable explanation has been provided.

26According to Mr. Noseworthy, his son, Justin, was working for the company as a project manager up until September 2020 when he left because of concerns about COVID.

27According to Mr. Noseworthy, administrative matters including dealing with Tarion/Registrar communications were Justin’s responsibility. The notice of proposal was delivered in late September just around the time that Justin was leaving. It was addressed to the appellant corporation but to the attention of Justin.

28For unknown reasons, Justin did not bring the notice to his father’s attention before he left, and Mr. Noseworthy claims that he did not see it. The final notice of revocation was sent by regular mail in late October and Mr. Noseworthy states that he did not receive it either.

29In my view, the appellant has not provided a reasonable explanation for the delay. The appellant essentially states that although the notice of proposal was sent by registered mail to the appellant’s registered head office and received, it was inadvertently missed. In my view, inadvertence does not provide a reasonable explanation for the three-and-one-half-month delay in this case. As a registered builder, it was the appellant’s responsibility to effectively respond to the Registrar’s communications in a timely way and it failed. That was a matter that was in the appellant’s sole control.

30Secondly, there must be a firm intention from the beginning to appeal. I find that the appellant did establish a firm intention to appeal when Mr. Noseworthy became aware of the revocation in January 2012.

31With respect to the third factor, the applicant must establish that there is no prejudice to the other party in granting an extension or, if there is, it can be reasonably mitigated. Prejudice is presumed when a limitation period is missed – there is a public interest in ensuring time limits are met and decisions regarding registration have finality and are made in a timely way. In this case, the delay of three-and-one-half months was lengthy. The appellant made no submissions on this point.

32Fourthly, the appeal must be shown to have merit; in other words, the appeal must raise a substantive and reasonably arguable case. In this case, the appellant’s notice of appeal raises no grounds for appeal; it simply asks that the appeal period be extended.

33However, Mr. Noseworthy made submissions on this point on behalf of the appellant at the motion hearing.

34The Registrar’s notice alleges that the appellant’s financial circumstances are such that the appellant cannot reasonably be expected to be financially responsible in the conduct of its undertakings and references several unpaid bills by contractors who have filed construction liens. The total value of those claims is approximately $287,656. Mr. Noseworthy submitted that approximately 30% of that has now been paid and he hopes to pay all of it eventually. However, there was no indication that the appellant disputed the amounts owing or that it had a reasonably arguable case in response.

35The Registrar’s notice also alleges that Mr. Noseworthy’s conduct affords reasonable ground for belief that the appellant will not carry on its undertakings with integrity, honesty and in accordance with law. The notice points to Mr. Noseworthy’s failure to respond to inquiries from Tarion to clarify the appellant’s financial circumstances, and several instances where the appellant contravened the Act by allegedly starting construction on homes without first enrolling them with Tarion.

36Mr. Noseworthy stated that the appellant has been in business since 2009 and has built 67 homes without ever having gone to conciliation on any of them. However, he provided no information or submissions that indicate that he has a substantive or arguable case in response to these allegations. In my view, the appellant has not demonstrated that it has a substantive and reasonably arguable case.

37In summary, taking into account the factors mentioned above, and the overall “justice of the case”, I conclude the appellant has not satisfied the onus of establishing that an extension is warranted. Specifically, the appellant has failed to establish a reasonable explanation for the three-and-one-half-month delay in requesting a hearing, and has not demonstrated that it has a substantive, reasonably arguable case.

ORDER

38I dismiss the appellant’s motion to extend the time limit for filing an appeal in this case.

Footnotes

1. 1Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sch. G, s.7
2. 2The Act, s. 7
3. 3The Act, s. 9(1), 9(2).
4. 4The Act, s. 9(4)
5. 5[Footnote missing in original]
6. 6Manuel v. Registrar, 2012 ONSC 1492, parag.17, 40
7. 7Allen (Re), [2006] O.L.A.T.D. No. 443 at parag. 14