Licence Appeal Tribunal

Safety, Licensing Appeals and Standards Tribunals Ontario

Tribunal d’appel en matière de permis Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Citation: Scicluna v. Tarion Warranty Corporation, 2020 ONLAT 12452 ONHWPA

Date: 2021-01-07

Appeal from a decision of Tarion Warranty Corporation under the Ontario New Homes Warranties Plan Act, R.S.O. 1990, c. O.31 to deny a claim

Between:

Valeria Scicluna

Appellant

-and-

Tarion Warranty Corporation

Respondent

RECONSIDERATION DECISION

Before: D. Stephen Jovanovic, Associate Chair

Date: January 7, 2021

Written Submissions by:

For the Appellant: Valeria Scicluna

INTRODUCTION

1This decision deals with a request by the appellant for reconsideration of a Tribunal decision dated December 1, 2020 dismissing her appeal of a claim for the payment of her deposit on a condominium unit.

2The appellant’s request for reconsideration is on the ground set out in Rule 18.2(d) of the Tribunal’s Common Rules of Practice and Procedure. Rule 18.2(d) requires a party requesting reconsideration to establish that “[t]here is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.” The appellant has the onus to establish this ground in order to be successful in her reconsideration request.

3The Executive Chair has delegated to me the responsibility to decide this reconsideration request.

4For the reasons that follow, I dismiss the appellant’s request for reconsideration. I am not satisfied that the documents the appellant seeks to rely on could not have reasonably been obtained earlier or is it likely that they would have affected the result.

OVERVIEW

5The appellant’s claim was under s. 14(1) of the Ontario New Homes Warranty Plan Act, (the Act) which reads as follows:

14(1) Subject to the regulations, a person who has entered into a contract to purchase a home from a vendor is entitled to receive payment out of the guarantee fund for the amount that the person paid to the vendor as a deposit or other payment to be credited to the purchase price under the contract on closing if,

(a) the person has exercised a statutory right to rescind the contract before closing; or

(b) the person had a cause of action against the vendor resulting from the fact that title to the home has not been transferred to the person because,

(i) the vendor has gone into bankruptcy, or

(ii) the vendor has fundamentally breached the contract.

6The hearing was unusual in that the appellant declined to participate. The adjudicator wrote the following at paragraph 13 of her decision:

The fact that the appellant has provided no evidence to the Tribunal, and ended her participation in the hearing because she was not prepared to have the Tribunal hear evidence or submissions from Tarion means that she has not met her onus and as a consequence, her appeal may be denied. However, for completeness I will address entitlement under s. 14 (1) of the Act.

7The adjudicator then went on to explain why the appellant’s claim could not succeed under s. 14 (1). Reference was made to the judgment in a civil action brought by the appellant in which the court found that “…the appellant, not the vendor, breached the agreement of purchase and sale and therefore she was not entitled to the deposit monies”: see Sciciuna v. Solstice Two et al, 2017 ONSC 3674; affirmed 2018 ONCA 176.

8[The submissions in support of the request for reconsideration were set out in the appellants two emails to the Tribunal. The email of December 17, 2020 states that the evidence that was not before the Tribunal was as follows:

i. My builder was not present at our hearing and therefore was not privy to our cross examination to have evidence come into the process via a cross-examination testimony.

ii. Tarion has not presented evidence that my builder had the right to execute a deed transfer.

iii. Some compelling attached links suggest that it might be prudent to allow for a little bit of skepticism on the Tribunal’s decision(s).

ANALYSIS

9It appears that the appellant is attempting to relitigate both the finding of the courts that she was not entitled to the return of the deposit on the condominium unit she initially agreed to purchase and the finding of the adjudicator that her claim could not succeed under s. 14 (1) of the Act.

10The appellant has not made any submissions that detract from the cogent reasons given by the adjudicator for dismissing her appeal. She does not in fact present any new evidence that would likely have affect the result.

11The appellant has not satisfied any of the criteria set out in Rule 18.2. The request for reconsideration is dismissed.