Ottawa-Carleton Standard Condominium Corporation No. 961 v. Tarion Warranty Corporation, 2021 CanLII 33609

Date: 2021-04-20

Appeal from a decision of Tarion Warranty Corporation under the Ontario New Home Warranties Plan Act to refuse to extend the time to request a conciliation

Between:

Ottawa-Carleton Standard Condominium Corporation No. 961

Appellant

and

Tarion Warranty Corporation

Respondent

and

Claridge Homes (Metcalfe Tower 1) Inc.

Added Party

DECISION AND ORDER

ADJUDICATORS: Colin Osterberg, Member; Jennifer Friedland, Member

APPEARANCES:

For the Appellant: David Lu and Emily Deng, Counsel

For the Respondent: Michael Owsiany, Counsel

For the Added Party: Helmut Brodmann, Counsel

Heard by video conference: March 2 and 4, 2021

A. OVERVIEW

1This is an appeal from a decision made by the respondent, Tarion Warranty Corporation (“Tarion”), to deny the request of Ottawa-Carleton Standard Condominium Corporation No. 961 (the “appellant”) to extend the time for requesting conciliation with respect to items the appellant alleges to be warranted under the Ontario New Home Warranties Plan Act, RSO 1990, c. O.31 (the “Act”). The Added Party, Claridge Homes (Metcalfe Tower 1) Inc. (“Claridge”) was the developer and builder of the appellant condominium.

2In December 2015, Keller Engineering (“Keller”) provided the appellant with a performance audit report which noted construction deficiencies. Those deficiencies were filed with Tarion as the appellant’s first-year warranty claim. The deficiencies included problems with the insulation of the building’s heating and cooling pipe system. The deficiencies in the pipe insulation were never repaired by Claridge.

3According to the regulations under the Act, the appellant had until August 18, 2017 to request conciliation with respect to unrepaired deficiencies or it would no longer be entitled to make a warranty claim through Tarion. The appellant did not request conciliation by that date and Tarion closed its claim file.

4On September 9, 2019, more than 2 years after the close of the conciliation window, the appellant requested that Tarion extend the deadline for requesting conciliation. In a Decision Letter dated October 2, 2019, Tarion refused to do so.

5The appellant now appeals that decision. Its position is that there are “extraordinary circumstances” that warrant extending the time in this case, including that it was misled by Tarion and/or Claridge; it did not understand the claims process; and it did not understand the extent or nature of the pipe insulation problem.

6Tarion and Claridge submit that there are no extraordinary circumstances in this case and no basis to extend the time for requesting conciliation two years after the deadline required under the Act.

B. ISSUES

7The issues in this appeal are whether the appellant’s claim involves extraordinary circumstances and, if so, whether the respondent should have exercised its discretion pursuant to s. 5.10(b)(ii) of Regulation 892, R.R.O. 1990, (“Regulation 892”) of the Act, to extend the time within which the appellant was required to request conciliation.

8Appellant’s counsel raised another issue in closing argument that should be addressed. Appellant’s counsel argued that the time for requesting conciliation should be extended pursuant to s. 5.10(a) of Regulation 892 because Claridge was unwilling to repair or resolve the claim item that is the subject of the appeal. Tarion objected to this ground being considered since this was the first time the appellant had raised it in the proceeding.

9We agree with Tarion with respect to this issue. The Notice of Appeal dated October 22, 2019, specifically alleges that the extension ought to have been granted based on extraordinary circumstances and does not mention any other grounds, including those provided in s. 5.10(a).

10A case conference was held in this matter on September 2, 2020. The Case Conference Report and Order, which was provided to the parties on September 8, 2020, states that the only issue to be determined at the hearing was whether the appellant’s request for an extension should be granted based on extraordinary circumstances, as set out in the appellant’s Notice of Appeal.

11At no time in the months leading up to the hearing did the appellant tell the other parties or the Tribunal that it intended to argue that the extension ought to be granted based on s. 5.10(a).

12On the first day of this hearing, March 2, 2021, the appellant made its opening statement and never mentioned that it would be relying on anything other than extraordinary circumstances as a ground for its appeal.

13The evidence portion of the hearing was completed on March 2, 2021, and the closing arguments were presented on March 4, 2021. Not until he began his closing argument on March 4, 2021, did appellant’s counsel mention that he intended to argue that the extension should have been granted based on s. 5.10(a).

14We acknowledge that the Tribunal has the discretion to permit a party, in certain circumstances, to raise issues that were not raised in its notice of appeal. However, in this case we find that it would be unfair to allow the appellant to pursue an argument under s. 5.10(a). Rather, it ought to be determine on the issue of extraordinary circumstances pursuant to s. 5.10(b)(ii) of Regulation 892. It would be unfair to Tarion and Claridge to allow the appellant to amend its grounds for appeal at this stage of the proceeding given the procedural history outlined above.

C. LAW

1. The Legislation

15Sections 5.2 and 5.5 of Regulation 892 set out the procedures to be followed in respect of first-year claims under the Act. Those sections provide for the following process:

1. The owner must submit a first-year form within the first year after the registration of the declaration and description for the condominium project (the “declaration”). The declaration was registered on December 19, 2014 so that period ended December 19, 2015.

2. The vendor has until the end of the 18-month period from the first anniversary of the registration date of the declaration to repair or resolve the claim items listed on the first-year form. In this case, that period ended June 19, 2017.

3. If the vendor does not repair or resolve the claim items listed on the first-year form by the end of the 18-month period, the owner may request conciliation within 60 days after the end of that period. In this case, the appellant had between June 20, 2017 and August 19, 2017 to request conciliation.

4. The appellant’s failure to request conciliation between June 20 and August 18, 2017 means that it is deemed to have withdrawn all claim items listed on the first-year form that the vendor does not repair or resolve by the end of that period.

16Section 5.10 of Regulation 892 provides that Tarion may, in its sole discretion, extend or abridge the time for the conciliation request if it determines that:

(a) the vendor is unable or unwilling to repair or resolve the claim items covered by a warranty;

(b) the warranty claim,

(i) relates to items involving health and safety, seasonal repairs or an emergency, or

(ii) involves other extraordinary circumstances; or

(c) the specified times begin in, end in or span the period from December 24 of one year to January 1 of the following year, both inclusive.

17For the purpose of the present appeal, s. 5.10(b)(ii) requires a determination of whether the appellant’s warranty claim involves “other extraordinary circumstances” and, if so, whether Tarion ought to have exercised its discretion to extend the time for conciliation. The wording of that section does not say that Tarion shall extend the time if the claim involves other extraordinary circumstances. It says that Tarion may extend the time if there are extraordinary circumstances.

18Section 14(1) of the Act states that warranty claims are subject to the regulations. Sections 16(2) and 16(3) of the Act provide that decisions made by Tarion under s. 14 may be appealed to the Tribunal and the Tribunal may direct Tarion to take such action as the Tribunal considers Tarion ought to take in accordance with the Act and the regulations, and for such purposes the Tribunal may substitute its opinion for that of Tarion.

2. The test for an extension of time to request conciliation

19The onus is on the appellant to establish on a balance of probabilities that the warranty claim in this case involves extraordinary circumstances that warrant Tarion extending the time for the appellant to request conciliation.

20The appellant and Tarion submitted briefs of authorities with respect to the interpretation of what constitutes extraordinary circumstances for the purposes of s. 5.10(b)(ii) of Regulation 892 of the Act.

21The test is not in dispute. The power to extend the time limit in s. 5.10 is a broad discretion that should be exercised in a manner consistent with the remedial consumer protection nature of the legislation. Each determination regarding whether an extension should be granted based on extraordinary circumstances is dependent on its own facts, which is a principle consistent with the discretionary nature of s. 5.10.

22There are factors common to cases involving the exercise of discretion to grant extensions with respect to s. 5.10, and in other areas of the law, and they include:

1. whether the appellant had the intention to appeal before the time for appeal had elapsed;

2. whether the appellant has a reasonable explanation for missing the deadline for appeal;

3. the length of the delay; and

4. whether the appeal is meritorious.

23These factors are not exhaustive but are commonly referred to in determining whether discretion to extend time ought to be exercised.

24Toronto Standard Condominium Corporation No. 2471 v. Tarion Warranty Corporation¹ was a case where the appellant requested an extension of the deadline to request conciliation based on extraordinary circumstances. In that case, the appellant’s engineer advised the appellant’s property manager that the conciliation request had to be filed “next week”. The property manager took that to mean Friday whereas the deadline was Thursday. The deadline was missed by one day. In addition, the property manager’s wife had recently died. He was the only property manager on a site which was extremely busy. The previous property manager had been incompetent and left no organized records. The Tarion reminder letters had been sent to the wrong property manager, and the Board of Directors at the condominium corporation were generally unresponsive. The request for an extension was filed about seven weeks after the deadline had elapsed.

25In granting the extension, the Tribunal found that the circumstances described were a “perfect storm” which amounted to extraordinary circumstances. With reference to the four factors mentioned above: the appellant intended to appeal before the time for appeal had elapsed; the appellant had a reasonable explanation for missing the deadline; the deadline was missed by only one day; and the appeal was not shown to be without merit. Implicit in the Tribunal’s decision to grant the extension was that the extraordinary circumstances caused the appellant to miss the deadline for requesting conciliation.

2610249 v. Tarion Warranty Corporation², the homeowners thought that the builder was working on the items in dispute and that repairs were being made. The homeowners missed the deadline for requesting conciliation and the builder declined to make further repairs. The homeowners promptly contacted Tarion to pursue their remedies. The appellants were not at ease with the online filing process but always intended to pursue their warranty claims. They had a reasonable expectation even after the deadline expired that the items would be resolved and acted expeditiously when they learned that the builder was unwilling to resolve the claim items.

27The Tribunal found that the circumstances fell within the meaning of extraordinary circumstances for the purposes of s. 5.10(b)(ii). Again, in determining whether the extension ought to have been granted, the Tribunal found that the appellants intended to continue to pursue its claim at the material time; the appellants had a reasonable explanation for missing the deadline; the appellants acted expeditiously when they learned that the builder did not intend to make further repairs; and the appeal was meritorious.

289770 v. Tarion Warranty Corporation, Claridge Homes(Crown Pointe) Inc.³ was contained in the appellant’s Book of Authorities, however the appellant did not actually use it as an authority on the law or how the law ought to be applied in this appeal. Instead, the appellant used the Strand decision to introduce fact evidence at the hearing. Tarion and an entity related to Claridge were parties in that appeal and the appeal involved pipe insulation deficiencies that allegedly were similar to the claims underlying this appeal.

Summary

29The legislation and subsequent case law indicate that two questions need to be answered in order that an extension be granted pursuant to s. 5.10(b)(ii) of Regulation 892:

a. Does the warranty claim involve extraordinary circumstances?

b. If so, then should Tarion exercise its discretion to extend the time for requesting conciliation with respect to the claim item?

D. EVIDENCE AND ANALYSIS

30The extraordinary circumstances alleged in this case can be divided into three general categories. The appellant alleges: 1) it was misled by Tarion and/or Claridge; 2) it did not understand the claims process; and 3) it did not understand the extent or nature of the pipe insulation problem.

1. The appellant was misled

a. The PAT System

31After the registration of the declaration and description, the appellant had a performance audit conducted by Keller which noted numerous deficiencies in the construction of the condominium building. Those deficiencies were submitted to Tarion as items to be dealt with under the first-year warranty provisions of the Act. As is typical in projects of this nature, there were initially hundreds of items listed as deficiencies in the appellant’s first-year form. The items were then listed in Tarion’s Performance Audit Tracking (“PAT”) system so that the parties could keep track of items which were resolved over time and items which remained outstanding. The appellant and Claridge had access to the PAT system and could review the status of the various outstanding items. Claridge could update the items in the PAT system to indicate whether the item had been repaired or resolved. The PAT system would also indicate if there was a dispute with respect to whether items were warranted or not.

32According to Merna Brown, Claridge’s Audit Warranty Service Representative, in February 2017 someone from Claridge accessed the PAT system and marked the items relating to the pipe insulation deficiencies as “repairs completed”. There is no evidence that the repairs were completed at that time or at any other time. Claridge called no evidence to explain how or why the change was made in the PAT system. There were no reports or other documents produced showing that any work was done with respect to the pipe insulation deficiencies at any time. No one who had any knowledge with respect to any work that was done was called as a witness.

33The appellant argues that the alteration of the information in the PAT system was misleading and contributed to it missing the deadline. We agree that the change to the PAT system could have been misleading, however, there was no persuasive evidence presented at the hearing to show that the appellant was actually misled by the contents of the PAT system, as described below.

34Eileen Boles, who was employed by Condominium Management Group, the appellant’s property manager, gave evidence at the hearing. Ms. Boles did not have access to the PAT system since she was not the appellant’s Tarion designate with respect to warranty claims. Ms. Boles explained that the designate previously hired by the Board to address warranty issues had left in or around January or February 2017 and was not replaced as the Board did not want to pay management fees associated with that role. According to Ms. Boles, the Board had decided to handle warranty issues itself from that point forward. Ms. Boles was never of the understanding that the pipe insulation deficiencies had been repaired.

35Carlos Nehas, a member of the appellant’s Board of Directors (the “Board”), also testified at the hearing. Mr. Nehas was first elected to the Board in July 2017 and had limited direct knowledge of the warranty system or the claims process. He did not suggest that he was misled by the contents of the PAT system and never thought that the repairs to the pipe insulation had been completed.

36Mr. Nehas testified that the president of the Board, Peter Stanton, was the point person for the Board with respect to the warranty claims. Mr. Stanton was not called to give evidence at the hearing. Mr. Nehas did not say that Mr. Stanton, or any other Board member, thought that the repairs to the pipe insulation had been completed based on the PAT system, or otherwise.

37There was no evidence presented at the hearing that anyone on behalf of the appellant had ever seen the PAT system changes in question or that they understood that the pipe insulation deficiencies had been repaired or resolved at any material time.

38On the other hand, there is evidence that shows that the appellant was aware that the piping insulation remained an issue that had not been repaired or resolved by February 2017, when the changes were made to the PAT system, or even beyond the deadline to request conciliation, as described below.

39Ms. Boles testified that she was aware that there was an ongoing issue with respect to water run-off related to the pipe insulation problem in the summer of 2017. Ms. Boles said that she does not recall Claridge making the repairs at any time. She spoke with the building superintendent and he told her Claridge had not done the repairs. Ms. Boles never received any documentation which indicated that the repairs had been done. Ms. Boles testified that she never considered the pipe insulation issue resolved.

40On July 12, 2017, a common elements meeting was held. Ms. Boles and Mr. Stanton represented the appellant at the meeting. Shawn Malhotra and Evan Mayfield, from Claridge, and Robert Fisher, a Senior Warranty Service Representative at Tarion, were in attendance. The Meeting Summary from that meeting states that the pipe insulation issue was one of the items discussed and that Keller was to produce an engineering report with respect to the issue. Ms. Boles said that at the meeting, she and Mr. Stanton were under the impression that the pipe insulation issue was still open and that was why the Keller report was to be prepared.

41On July 25, 2017, Keller provided the appellant with its report dated July 19, 2017, which pertained specifically to the pipe insulation deficiencies. That report details the deficiencies in the pipe insulation which led to condensation, which was likely to lead to other problems.

42Ms. Boles said that the pipe insulation issue was clearly not resolved at the time of the Keller review in the summer of 2017.

43Ms. Boles testified that she provided the July 19, 2017 Keller report to the Board when she received it on July 25, 2017. She said that when she reviewed the Keller report she was quite concerned. She understood that the report indicated there was a potential for large resulting costs and that it could not be ignored.

44Both Ms. Boles and Mr. Nehas gave evidence that in the summer of 2017 they believed Claridge was continuing to work with them to resolve the pipe insulation issue. It was evident that they did not consider the issue to have been resolved by that time, as described below.

45Ms. Boles testified that she thought conciliation should have been requested in July 2017 when the Keller report was received. She did not do that because Mr. Stanton was in charge of dealing with the warranty claims at that time and he had been provided with the Keller report. She further understood that Mr. Stanton would have been aware of the dates for seeking conciliation as she had forwarded him an email from Tarion sent to her in May 2017 which reminded the appellant about the deadline and warned of the consequences of missing it. When asked why conciliation was not requested prior to the meeting of the Board in August 2017, Ms. Boles responded, “you would have to ask Mr. Stanton”.

46Mr. Nehas was not at the July 12, 2017 common elements meeting but he heard about it. He understood that there was an issue involving the pipe insulation and that an engineering report was being prepared for submission to Claridge. At that time, Mr. Nehas knew almost nothing about the Tarion claims process and had never heard of conciliation. His impression at that time was that the list of deficiencies was being worked on and that the list was shrinking.

47While Mr. Nehas says that he had the PAT list after he was elected to the Board in July 2017, he did not say that he thought that the pipe insulation issue was resolved. Mr. Nehas did not allege that he was induced into missing the conciliation deadline because of Claridge’s misrepresentation. In fact, Mr. Nehas did not testify that he was even aware that Claridge had made that misrepresentation.

48The evidence presented is that the misrepresentation in the PAT system did not cause the appellant to miss the conciliation deadline. Ms. Boles had never seen the misrepresentation because she did not have access to the system. Mr. Nehas gave no evidence that he was aware of the misrepresentation or that it affected his understanding of the situation or his actions in any way. There was no evidence presented to suggest that anyone else on the Board knew about the misrepresentation or acted on it. The evidence that was presented was that Ms. Boles, Mr. Stanton, and the rest of the Board were all aware, or should have been aware, that the pipe insulation was still an issue in July 2017 and that they were not induced to miss the conciliation deadline by Claridge’s misrepresentation that it had been repaired.

b. Claridge working on the issue

49The appellant takes the position that by continuing to work on the pipe insulation item during the summer of 2017, arranging to have the 2017 Keller report prepared, and appearing to be in agreement to investigate the pipe insulation issue, Tarion and Claridge caused the appellant to have the impression that the matter was being dealt with so that the necessity to make a conciliation request did not occur to the appellant.

50Mr. Nehas testified that during the summer of 2017, he was under the impression that the warranty claims were going well. There were only a few defects remaining to be resolved with Claridge. He believed that Claridge was continuing to work on the list of warranty items and that all of the items would eventually be resolved. Mr. Nehas said that he was surprised when Claridge denied that there was a problem with the pipe insulation in October 2017 and that Tarion had closed its file. He said that the rest of the Board was also surprised, and disappointed.

51Ms. Boles testified that at the common elements meeting on July 12, 2017, it was decided that Keller would produce a report regarding the pipe insulation issue. The Keller report was received July 25, 2017. Ms. Boles did not recall how Tarion or Claridge responded to that report. In September 2017, Ms. Boles communicated with Claridge and she understood at that time that Claridge was going to have the pipes inspected. It was her belief at that time that Claridge was going to continue to make repairs to the pipe insulation.

52In October 2017, Claridge advised Ms. Boles that it had the pipe insulation inspected and found that it was in good condition and that it would not be addressing that issue again. Ms. Boles was surprised at being advised of Claridge’s position as she thought that Claridge was still working with the appellant on the issue.

53The evidence of Mr. Nehas was also that the Board thought Claridge was continuing to work on the pipe insulation issue in the summer of 2017 and up until late-October 2017, at which time Claridge refused to do anything further.

54The appellant acknowledges that there was no express agreement by Tarion to extend the deadline to request conciliation, nor was there any express agreement by Tarion or Claridge to disregard the requirements of the Act with respect to making a claim.

55There was no evidence that Ms. Boles or Mr. Stanton, the two representatives of the appellant who would have had the most understanding of the situation, thought that the fact that Claridge was continuing to work with the appellant in the summer of 2017 meant that they would continue to do so if the conciliation request was not made. Ms. Boles said that she knew that once the deadline had passed, the appellant could not request conciliation. Mr. Stanton did not give evidence, and Mr. Nehas did not give evidence as to what Mr. Stanton thought. Mr. Nehas did not think there was a problem, but he had very little knowledge of the situation and the claims process at that time.

56The suggestion that the appellant was led to miss the deadline by the actions of Claridge is unsupported by the evidence led at the hearing.

c. Tarion Knew Appellant Should Request Conciliation

57Mr. Fisher testified at the hearing that he did not recommend to the appellant that it pursue conciliation before the deadline. The appellant says that Mr. Fisher knew, or should have known, that the pipe insulation issue was serious and ought to have ensured that the conciliation request was made before the deadline.

58The appellant referred to the Strand decision as evidence that Mr. Fisher knew that the deficiencies in the pipe insulation were serious and that conciliation should be requested.

59In that case, the Tribunal was dealing with an appeal involving Tarion and a company related to Claridge in relation to a condominium with similar deficiencies in the pipe insulation as alleged in the appellant’s building. The hearing in that case commenced on September 25, 2017 – around the same time that the appellant was asking Mr. Fisher to assist.

60It is not clear from the Strand decision what Mr. Fisher knew, and when. In fact, that decision mentions Mr. Fisher’s last involvement being in 2009, at which time he understood the problem with the pipe insulation to be a maintenance issue. At our hearing, Mr. Fisher was not asked whether in 2017 he thought the two problems were the same, whether they were both warrantable claims, whether they were maintenance issues, what he thought the cost of the repairs would be at the time, or even whether he thought the matters were equally serious.

61At this hearing, Mr. Fisher said that he was aware of the Strand appeal. Mr. Fisher stated that there were expert reports served by both sides in the dispute. According to the Tribunal decision in the Strand, Mr. Fisher’s opinion was that the problem was one of inadequate maintenance and was not warranted under the Act.

62The evidence presented does not lead to the conclusion that Mr. Fisher ought to have understood from his involvement in the Strand matter that the appellants should be seeking conciliation in 2017. Even if Mr. Fisher thought that the appellant should have sought conciliation, the evidence was that Ms. Boles and Mr. Stanton had already been told in a letter sent by Tarion in May 2017, when and how to request conciliation as well as the consequences for failing to do so. The appellant and Claridge were actively engaged in dealing with the pipe insulation issue. They were aware there were problems that might be warranted.

63The Tribunal is being asked to speculate as to what impact another reminder of the conciliation process may have had on the appellant. Ms. Boles knew, at least by the time that the Keller report was received on July 25, 2017, that the appellant should be requesting conciliation. Ms. Boles expected that Mr. Stanton and the appellant were going to request conciliation. We do not have the evidence of Mr. Stanton as to why the request was not made.

64There is no evidence that the fact that Tarion did not recommend a conciliation request, even if they had a duty to advise the appellant again of that requirement, caused or contributed to the appellant missing the deadline.

2. The Appellant’s Knowledge of Claims Process

a. Disengaged Board of Directors

65According to Mr. Nehas, there was low engagement in the functioning of the condominium by the owners. It was difficult to get the quorum of 25% attendance at the annual general meeting even when attendance was by way of video conference. Mr. Nehas said that it was also difficult to find enough owners to fill the five seats on the Board. Of the Board, he said some members were more engaged than others.

66Mr. Nehas said Mr. Stanton was the most involved member of the Board and he was the point person in charge of the Tarion warranty claims during the relevant period. Mr. Nehas said Mr. Stanton was working diligently and was good at facilitating conversations with Claridge. Many of the items listed as deficiencies in the performance audit had been resolved and the list of issues was shrinking. Mr. Nehas did not appear to have any significant involvement in the activities of the Board before the deadline for requesting conciliation. He said that issues other than the pipe insulation, such as problems with the pool on the property and visitor parking, were the focus of the Board’s attention when Mr. Nehas became a Director.

67Although the appellant is taking the position that the disengagement of the Board was a factor in missing the deadline, there was little evidence of that presented at the hearing. In fact, Mr. Nehas said Mr. Stanton was the person in charge of dealing with the Tarion warranty claims and Mr. Nehas thought Mr. Stanton was working diligently and effectively in that role. The pipe insulation issue was discussed at the July 12, 2017 common elements meeting and an engineering report was commissioned and delivered by July 25, 2017. Further, other warranty items were being dealt with by Mr. Stanton and the Board which suggests they were engaged on the warranty issues in the summer of 2017.

68The appellant has not proven the Board was not sufficiently engaged in the Tarion warranty process or that such disengagement caused or contributed to the failure to meet the deadline to request conciliation.

b. Tarion Failed to Educate Appellant

69The appellant alleges it was not aware there was a deadline to request conciliation. It says this was a factor in its failure to make the request in a timely way and this is one of the circumstances which should be addressed when deciding whether there are extraordinary circumstances involving its claim.

70On December 16, 2015, after the appellant’s first-year performance audit was submitted, Tarion wrote to the appellant’s property manager detailing the warranty claim process. That letter outlined the requirement to request conciliation, advised that there was a deadline to request conciliation, and advised that Tarion would not be able to assist the appellant if the request for conciliation was not submitted during the applicable time period.

71Regular common elements meetings were held with the appellant, Tarion, and Claridge in attendance, at which the progress regarding the warranty items was discussed.

72Ms. Boles agreed that she knew that there was a deadline to request conciliation and that she knew the date of the deadline at all material times. Ms. Boles is a professional property manager and the conciliation request deadline is well known and easily determined, particularly for someone in her position.

73Ms. Boles testified that Mr. Stanton knew about the deadline and that she had passed along reminder correspondence from Tarion in May 2017 to Mr. Stanton detailing the rules regarding conciliation requests and advising of the deadline date of August 18, 2017. It was pointed out during the hearing that some of the correspondence from Tarion to the appellant was addressed to the former property management company rather than to the appellant or its current property manager. This is of no moment since Ms. Boles was provided with that correspondence, and she passed the emails along to the Board member directly responsible for the warranty issues, who was Mr. Stanton. We see no difference of consequence because of the manner in which the correspondence was addressed.

74We conclude that the appellant knew or ought to have known of the conciliation request requirements and that the conciliation request was required to be made prior to August 18, 2017. Tarion took adequate steps to advise the appellant of the relevant timelines and there was no evidence that Mr. Stanton or the appellant’s Board did not have the information about that available to them.

75The fact that Mr. Nehas was not aware of the deadline date for conciliation, or of the conciliation process in general, is of little relevance. Evidence as to what the rest of the Board, including Mr. Stanton, knew and did not know may have been more helpful but that was not presented at the hearing. If we are being asked to find that the Board was justifiably unaware of the conciliation deadline, then there should, at a minimum be some evidence showing that they were, in fact, unaware and why. We have been presented with neither.

76We find that the appellant has not shown on a balance of probabilities that it was not aware of the conciliation request deadline in issue. We also find that Tarion took reasonable steps to educate the appellant with respect to the relevant timelines.

3. Appellant Not Aware of the Extent or Nature of the Problem with Pipes

77The appellant, through Mr. Nehas, took the position that it was not aware of the extent of the pipe insulation problem before the conciliation deadline.

78The appellant was in possession of a Keller engineering report dated December 11, 2015. That report lists deficiencies with the heating and air conditioning systems including:

(i) missing and damaged insulation on piping in the mechanical rooms on all floors;

(ii) vapour barrier on pipe insulation is not continuous;

(iii) piping is showing surface corrosion due to condensation; and

(iv) many other heating and air conditioning deficiencies which appear to be unrelated to the current appeal.

79The appellant was aware of issues relating to the pipe insulation in July 2017 and retained Keller to investigate. Keller’s report to the Board, received July 25, 2017, detailed a number of deficiencies in the pipe insulation and concluded that it did not meet the manufacturer’s recommendations, good practice guides, and ASHRAE recommendations, and thus did not meet the requirements of the Ontario Building Code.

80We have no, or very little, evidence as to what Mr. Stanton or the other Board members knew about the extent of the problem. The Keller report was enough for Ms. Boles to become quite concerned about the problem and to understand that it could become costly. She knew at that time that there should be a request for conciliation and expected the Board to make that request.

81In this case, the appellant knew, or should have known that there was a problem. They knew it was included in the first-year form. They knew it was potentially warranted.

82The appellant has not satisfied the Tribunal that it did not have enough understanding of the issue to base a request for conciliation at the material times. Their level of knowledge does not amount to extraordinary circumstances.

E. CONCLUSION

83The Tribunal finds that the appellant has not proven on a balance of probabilities that the warranty claim involves extraordinary circumstances which caused or contributed to their failure to request conciliation before the deadline for doing so had expired.

84The Tribunal finds that this is sufficient to dispose of the appeal and to direct Tarion to refuse to grant the appellant an extension of time to request conciliation pursuant to s. 5.10(b)(ii) of Regulation 892.

85Even if the Tribunal were to find that there were extraordinary circumstances that might account for missing the initial deadline, there is no basis for failing to request conciliation in the 18 months following. In this regard we note the following:

a. the appellant admits that it knew by November 2017, at the latest, that it had missed the deadline to request conciliation;

b. the appellant was advised by November 2017, at the latest, that Claridge did not intend to make repairs to the pipe system and that Tarion had closed its file;

c. the appellant had engaged a lawyer to assist them with respect to this issue in 2017;

d. the appellant had widespread consistent problems with condensate run-off in 2018 and knew that this was indicative of an ongoing problem with the pipe insulation;

e. in April 2019 Keller advised the appellant that the defects originally identified in the performance audit were present throughout the building and that those deficiencies rendered the insulation and vapour barrier ineffective; and

f. it was not until September 9, 2019, that the appellant finally requested that the respondent extend the timeline for requesting conciliation.

86The appellant provided no reasonable explanation for this delay. With regard to the four factors noted above with respect to the exercise of discretion to extend a deadline, we find:

a. the appellant has not proven that it had the intention to request conciliation before the time to do so had elapsed;

b. the appellant has not provided a reasonable explanation for missing the deadline;

c. the two-year delay in pursuing a remedy was unreasonable and unexplained; and

d. while the appellant’s claim might be meritorious, not every claim with apparent merit will result in an indefinite extension of the deadline.

87In the circumstances, even if the appellant had proven extraordinary circumstances, we would not have exercised the discretion to extend the deadline.

F. ORDER

88Pursuant to s. 16(3) of the Act, Tarion’s decision letter dated October 2, 2019, is confirmed.

Footnotes

1. 12019 ONLAT ONHWPA 11500
2. 22016 CanLII 100992 (ON LAT)
3. 32019 CanLII 43872 (ON LAT) (the “Strand”)