An appeal of 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 and Tudor Esanu
Appellants
-and-
Tarion Warranty Corporation
Respondent
-and-
Remington Homes (Mississauga) Inc.
Added Party
DECISION and ORDER
Adjudicator: Katherine Livingstone, Member
Appearances:
For the Appellants: Tudor Esanu
For the Respondent: Ryan Schell, Counsel
For the Added Party Carol Street, Counsel
Heard by video and teleconference: February 1-5, March 17, April 22, 23 and 27, 2021
Introduction
1Under the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31 ( the “Act”), every builder of a home warrants to the owner, that, among other requirements, the home is constructed in a workmanlike manner, is free from defects in material and is constructed in accordance with the Ontario Building Code. There are exclusions to coverage. For example, normal wear and tear, shrinkage of materials caused by drying after construction or damage caused by improper maintenance are not covered under the Act.
2When a homeowner makes a claim under the Act, Tarion Warranty Corporation, (“Tarion”) is obligated to decide whether the alleged defect(s) is covered by the warranty. Claims made by the homeowner must be made within legislated time limits that begin after the owner receives a certificate of completion from the builder.
3Should the homeowner disagree with a Tarion decision that concludes the defect is not covered by the warranty, they may appeal the decision to the Tribunal for a hearing.
Overview
4The appellants own a residential home built by the added party, Remington Homes (Mississauga) Inc. (the “builder”). The appellant Tudor Esanu bought the house together with his parents, Elisabeta and Vintila Constan, Vintila Constan is now deceased. Mr. Esanu represented the appellants on the hearing and completed the notice of appeal and related forms which are the subject matter of this appeal. He will be referred to as “the appellant” in this decision.
5The appellant took possession of the home on February 23, 2017. On completion of the home, the appellant had several complaints about what he viewed as deficiencies in the home. As a result, pursuant to s. 14(3) of the Act, the appellant filed claims with Tarion at the end of both the first and second year anniversary of the certificate of completion. The first-year claims were the subject of an earlier hearing (T.E. and E.C. v Tarion Warranty Corporation, 2019 CanLII 101744).
6This hearing involved claims alleged by the appellant to have been contained in their second-year warranty form; specifically, disintegration of the front precast steps and front porch area and water penetrating the house envelope. In a Decision letter dated March 12, 2020, Tarion denied the appellant’s claims. The appellant appeals that decision.
Issues
7The Tribunal must determine whether:
a) There was a warrantable defect in the front precast steps;
b) There was a warrantable defect in the front porch;
c) The appellant’s claim with respect to water penetration was made outside the time limits of the Act and therefore statute barred;
d) If the claim with respect to water penetration is not statute barred was there a warrantable defect in the envelope of the home, specifically in the upstairs ensuite and upstairs master ensuite, resulting in water penetration inside these areas and filtering down into the garage;
e) If there are warrantable defects has the appellant suffered damages and if so what is the quantum of damage.
Result
8After hearing and considering the evidence presented by the parties, their submissions and the applicable law, I conclude the appellants have, on a balance of probabilities, failed to meet their onus and I confirm Tarion’s denial of his claims.
The Law
a. Applicable Statutory Warranty
9Section 13 of the Act provides that the builder of a home warrants to the owner the home is constructed in a workmanlike manner and is free from defects in material, free of major structural defects, is fit for habitation and is constructed in accordance with the Ontario Building Code (the Code), together with such other warranties as prescribed by the regulations. Under s. 13(4) of the Act, the warranties apply for a one-year period unless otherwise prescribed.
10Section 14 and 15 of Regulation 892 describe the more limited warranties available during the two-year warranty period including water penetration of the basement or foundation, water penetration of the building envelope, which covers windows, doors and the roof, defects of electrical and plumbing, and Ontario Building Code violations.
11Under Regulation 892, a claim for a major structural defect has a seven-year warranty period.
b. Compensation for Breach of Warranty
12Subsection 14(3) of the Act provides for payment of compensation for damages resulting from a breach of the warranty in ss. 13(1) of the Act.
c. Powers of Tribunal on Appeal
13Where Tarion makes a decision under s. 14 of the Act, the owner may appeal the decision to the Tribunal. After holding a hearing, the Tribunal may, pursuant to s. 14(19):
(a) by order, direct Tarion to take the action that the tribunal considers Tarion ought to take in accordance with this Act and the regulations; and
(b) for the purposes of the order, substitute its opinion for that of Tarion.
14The Act is consumer protection legislation and should be given a broad and liberal interpretation. The onus is on the appellants to prove, on a balance of probabilities, that the defect(s) in the house constitute a breach of the warranty, that damages have resulted from the breach and the amount of those damages. The Tribunal owes no deference to Tarion’s decision.
The Evidence and Analysis
a) Preliminary Evidentiary Issue re Expert Evidence
Background
15During the respondent’s case, Ms. Coelho, a warranty services representative was called as a witness. Ms. Coelho is the author of the decision letter denying coverage for alleged deficiencies in the appellants’ home. As noted earlier, the decision letter resulted in the appellants’ appeal to the Tribunal and was filed as an exhibit in this proceeding.
16At the beginning of her evidence, counsel for Tarion asked a series of questions about Ms. Coelho’s work and educational history. These questions revealed a work history of several years in new home construction related employment as well as continuing education and training in this field, including familiarity with the Ontario Building Code (OBC). She has been involved with two technical committees dealing with various products used by builders, which has enhanced her knowledge and understanding of these products and “their cause and effect on the home”.
17As I understood her evidence, she is presently working toward certification as a building inspector and as such is involved in regular training sessions on home building. Prior to joining Tarion over 6 years ago she successfully completed a certificate program in building science, having learned about product assembly over and above what is required by the OBC. She advised she inspects upwards of 200 homes per year.
18Based on these questions I had anticipated counsel would seek to have her qualified as an expert in order to give opinion evidence. He did not do so and when I inquired as to his intentions in this regard, he indicated he would not be seeking to have her qualified. Counsel went on to advise that calling the service warranty manager to testify as to their observations and conclusions reached which resulted in the decision letter without qualifying the witness as an expert was the normal course of proceeding in these types of hearings. Counsel for the builder, although acknowledging Ms. Coelho may qualify as an expert witness, agreed with respondent’s counsel that proceeding without qualifying the witness as an expert was the normal course in these hearings.
19I considered this position over the evening and raised the issue with counsel the next morning. After hearing submissions on whether the witness needed to be qualified in order to give opinion evidence, I ruled that, in the absence of the witness being qualified as an expert, she would not be able to give opinion evidence. Ms. Coelho concluded her evidence.
20Both the respondent and the added party had not anticipated my ruling and therefore sought to adjust their witness lists to include expert witnesses.
21Given this position, and in the interest of fairness, I ruled that if the respondent and the added party were now seeking to call experts, I would allow the appellant to consider whether he wished to call an expert.
22The hearing was therefore adjourned for a mid-hearing case conference before me on February 19, 2021 at 9:30 AM. In the interim the parties were to decide what experts they would be seeking to call and take steps to retain them, before determining how much time would be needed for disclosure purposes and how much more time would be required to complete the hearing.
23During the February 19 mid-hearing case conference, it was agreed that written submissions would be provided by the parties, if they so chose, on the issue of whether I should revisit my ruling on the admissibility of the warranty services representative’s opinion evidence. The matter was adjourned until March 17, 2021 for the filing of submissions and a decision on whether I would revisit my ruling.
24On March 17, 2021, I orally ruled I would admit the opinion evidence of Ms. Coelho as a participation expert and indicated written reasons would follow. Accordingly, Ms. Coelho was recalled to be examined and cross examined on her opinion evidence as a participation expert.
Positions of the Parties
25The position of the respondent with respect to Ms. Coelho’s evidence was principally three-fold:
(a)Tarion is statutorily required under section 16 of the Act (the “ONHWP Act”) to provide a warranty opinion on whether a reported item is warranted, and the Licence Appeal Tribunal is statutorily mandated to decide whether to confirm Tarion’s opinion or instead substitute its own opinion;
(b) Tarion’s Warranty Services Representative’s testimony properly met the “compendium statement of facts exception”, otherwise known as the lay opinion evidence rule, and is therefore admissible lay opinion evidence; and
(c) The Tribunal has broad powers under its rules to admit Tarion’s evidence in order to promote an efficient and accessible hearing process.
26Further, in its submissions before the Tribunal when the issue first arose, and again during the case conference in February 2021, the respondent took the position that its warranty services representatives could not be qualified as independent expert witnesses given that they are Tarion employees and therefore are not independent. The respondent further submitted that its warranty services representatives have always been permitted to provide factual evidence based on observations and prior experience and to provide lay opinions based on that prior experience.
27Counsel for the builder agreed with the respondent that in hearings involving this Act Tarion warranty services representatives have routinely given opinion evidence without being qualified to do so and submitted that the broad powers afforded under the Statutory Powers Procedures Act (“SPPA”) allows for admitting the opinion in the absence of expert qualification. Counsel distinguished the criteria surrounding the admissibility of opinion evidence in the civil and criminal context from that in administrative hearings. She referenced s.15 of the SPPA as reflective of a broader and more liberal process:
15 (1) Subject to subsections (2) and (3), a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in court,
(a) Any oral testimony; and
(b) Any document or other things
28Counsel for the builder submitted there were “literally hundreds of cases where Tribunals have accepted what would be classified as participant expert evidence in a civil context”.
29When the issue was first raised on February 1, 2021, the appellant was not opposed to hearing Ms. Coelho’s opinion. However, he did not file written submissions and during the argument took little part, other than stating he did not believe Ms. Coelho was an expert.
Analysis and Decision
30As stated above, I allowed Ms. Coelho to give her opinion as a “participant expert” and indicated that more fulsome reasons would follow. These are those reasons.
31I agree with the respondent and added party that tribunals are not bound by the strict rules of evidence. Tribunals are afforded broad discretion under the SPPA to admit evidence that would otherwise be inadmissible in a court – that is clear from the terms of s. 15 of the SPPA. I further agree that a tribunal generally has the discretion to admit opinion evidence without any formal “qualification” process. Nevertheless, the Tribunal still has a gatekeeper role with respect to the admission of expert evidence.
32In this regard, I agree that Ms. Coelho may give opinion evidence without following the strict requirements of rule 10 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure. Rule 10.2 requires a party to deliver a statement signed by the expert acknowledging their duty to provide fair, objective and non-partisan evidence that is within their area of expertise. The party must provide the qualifications of the expert witness along with a signed expert report, among other requirements.
33In my view, these requirements apply where a party retains the services of a “litigation expert” within the meaning of Westerhof v. Gee Estate for the purpose of the hearing before the tribunal.1 They do not apply where, as here, the witness’ opinion arises as a participant on the events leading to the litigation.
34However, I disagree with the respondent that Ms. Coelho’s opinion is that of a layperson. As noted, the Respondent’s counsel carefully took Ms. Coelho through her education and experience in the construction industry. She detailed her experience inspecting homes for the Respondent and working with construction material committees, as well as her regular training sessions in her efforts to obtain certification as a building inspector. The implication was that I was being asked to put more weight on her opinions as to the causes of the alleged defects than I would on those of a layperson lacking her education and experience in the construction/inspection industry. I believe her opinion evidence can fairly be characterized as that of an expert.
35I disagree with the Respondent’s assertion that its employees cannot be considered experts because as employees, they cannot be considered independent. This submission ignores Supreme Court of Canada jurisprudence to the contrary, which states that an employment or other similar relationship alone is typically insufficient to disqualify a proposed expert witness on the ground that they will not be independent, impartial or objective: White Burgess Langille Inman v. Abbott and Haliburton Co.2, Mouvement laïque québécois v. Saguenay (City)3, As a result, I decided to allow Ms. Coelho to provide expert evidence because she is, in my view, clearly qualified to provide the opinion. Of course, I must determine the weight to be given to her opinion by considering, among other things, how her evidence accords with the totality of the evidence in this matter, whether she stayed within the areas of her expertise, and whether her evidence suggests a lack of independence or objectivity, or an unreasonable adherence to her position in the face of contradictory evidence.
36I wish to make one last comment on the Respondent’s submissions. The Respondent indicated that treating its warranty service representatives as experts will actually prejudice the homeowner appellants in these matters. It submitted that these matters are meant to be expeditious, efficient and low-cost, and if the Respondent were required to retain an independent expert, the homeowner would be put at a strategic disadvantage if they did not retain one as well. If the homeowner were to retain an expert, this would be costly and result in delay, which is unfavourable to the consumer.
37In my view the opposite is true. While it is true the Tribunal’s proceedings are meant to be expeditious and efficient, they also must be fair. Characterizing the opinions given by the Respondent’s customer warranty representatives “lay evidence” creates a risk that the homeowner will make the decision on whether or not to call expert evidence without fully grasping the nature of the Respondent’s evidence. It seems more fair to me if the homeowner is aware the customer service representative will be giving their opinion based on their expertise so that the homeowner may make a fully informed decision as to whether they need to call an expert of their own to challenge those opinions.
38I would note that in this case, prior to the Tribunal raising the issue of whether Ms. Coelho would be qualified as an expert, the appellant was not provided with advanced notice of Ms. Coelho’s education or employment history. In correspondence from Tarion dated September 25, 2020, the only reference to Ms. Coelho and her evidence was:
“A brief overview of Ms. Coelho’s evidence is as follows: oral evidence regarding the written reasons in the Decision Letter dated March 12, 2020.”
39There was no express notice that the Respondent intended Ms. Coelho provide her opinion on the issues based on her experience and knowledge. Nor was there a brief summary of what her opinions would be (although I appreciate that the warranty decision letter does reflect those opinions). Again, I do not think rule 10.3 applies to a participant expert such as Ms. Coelho, but I do think that, as a matter of procedural fairness, the appellant ought to be given advance notice of this, particularly where, as here, they are self-represented.
b) Disintegration of the Pre-cast Steps and Porch area
40The appellant made this claim of a warrantable second year defect based on the conditions of the porch and steps being a violation of section 15(2)(d) of Regulation 892, which states:
Every vendor of a new home warrants to the owner,
(d) that the home is free from violations of the Ontario Building Code regulations under which the Building Permit was issued, affecting health and safety, including but not limited to fire safety, insulation, air and vapour barriers, ventilation, heating and structural adequacy;
41The claim form completed by the appellant alleged the following:
The precast front porch steps are angled and need to be replaced. The precast step cement is disintegrating continuously, and holes are all over. Also, the front porch cement is disintegrating and was repaired partially. Mentioned in the pre delivery inspection, 30-day inspection and first year warranty form.
42The steps were precast and installed by the builder. The porch is a poured slab of cement. There was agreement by all parties that the appellant had complained about defects in the porch area during the first-year inspection. Although the builder disagreed with Tarion’s conclusion that it was a warrantable defect, they repaired the area of concern. The appellant did not appeal the porch area concern to the Tribunal during the first hearing. During his cross examination the appellant said he did not appeal because he “was told verbally by Remington that the whole unit had to be replaced so I dropped it”.
43In his second year claim the appellant raised the issue of the state of the porch again, despite the repair. During the hearing the appellant testified the steps and porch area were a health and safety issue due to pitting. He said his mother was unable to safely navigate the steps with her cane. He did not testify as to any difficulty he had negotiating the steps.
44He was also concerned about the degree of sloping on the stairs and disagreed with the suggestion in cross examination that the sloping was appropriate to allow for water runoff.
45The appellant provided several pictures of the areas in question. Unfortunately, the pictures were taken in January 2021, just before this hearing commenced and nearly two years after he filed his second-year form. The appellant’s pictures appeared to show some pitting on the tread part of the stairs and in an area on the porch. There also appeared to be some thin layers of lose cement on the porch area. The appellant stated the cement was “disintegrating” and said, “you should not be able to see small stones inside the cement, but they were visible.” He said pieces of cement “were coming up”. Further he said the cement was disintegrating under the steps.
46He agreed the porch area had been repaired but the “repairs were not strong enough and right now the cement is deteriorating in my house”.
47In cross examination he said he used salt on the driveway but was very vague on whether he used salt on the steps and the porch. In cross examination he was shown a photo which purported to be the precast steps when they were first installed. There was a sticker attached to the steps which cautioned against using salt products on the steps. The appellant denied being aware of the sticker. He additionally denied receiving either a new home package from the builder or from Tarion which, among other items, outlined concerns with respect to the use of salt. He denied knowing that salt could damage the porch and/ or steps and said he was told by Remington to use the “blue salt”. At one point he denied using salt on the steps. When he was pointed to photos of salt bags in the garage, he said he used the salt for the driveway.
48The appellant did not live in the house that was the subject of the claim. Additionally, there was evidence that the house remained unoccupied the majority of the time after closing. However, he said he did the maintenance with respect to snow removal as “much as needed” and he “maybe went weekly to do the maintenance”.
49Other than his own evidence, the appellant did not present any evidence as to the condition of the steps and the porch or the reason for what he claimed was disintegration of the cement on the steps and the porch.
50Ms. Coelho, the warranty services representative, testified as to her observations of the steps and porch area during her visits to the house in question. Together with another Tarion employee and two representatives from the builder, she first visited on October 11, 2019, for a conciliation inspection with respect to the first-year claims. She again visited on October 21, 2019 with respect to the second-year inspection.
51She advised she could tell there had been some repair work done on the porch as there was a “slight variation” in colour on the porch. She noted “small scaling” on the porch close to the post area. She further added that although she did not conduct an official inspection of the porch on the first visit she did see it as she was entering the house and the “porch area was not in the condition seen in the photo” taken by the appellant
52She said she observed pitting on the steps leading up to the front door. The pitting varied in size and it was all over the steps. She further stated she noticed water staining on the steps.
53Ms.Coelho also observed both salt and de-icer in the garage, with the bag of salt being partially open. She said salt was the harsher of the two applications and that if salt was left unattended on a cement surface for a period of time it will eat into the cement product. After the salt has melted, it turns into salt water and should be removed from the concrete as it is corrosive.
54Based on her observation of the areas in question and her experience in similar circumstances, Ms. Coelho opined the pitting was consistent with the use of salt and\or de-icer over time. She also opined that the water staining on the steps signified the presence of some sort of solution rather than just water and that, in her opinion, the salt and de-icer were the probable cause of the staining.
55Ms. Coelho testified that had there been a defect in the material used in the pre-cast she would expect to see damage and disintegration in the whole cast including the risers, and this was not evident. The only damage was on the steps which was consistent with the use of salt and /or de-icer.
56With respect to the appellant’s concern about health and safety violations as it related to the steps, Ms. Coelho said she did not observe any violations as the stairs were attached, the railing was secure, there was no tripping hazard and nothing to indicate any safety concerns. She determined the builder had met the OBC requirements.
57Ms. Coelho described the first visit as a “tense inspection’, as the appellant wanted to show and talk about other items that were not the subject of the inspection. She said her “comfort level was not good”.
58She described the appellant as being “elevated in his desire to have them look at other items”.
59When she returned to the house on October 21, 2019 for the second-year warranty inspection, she was the sole Tarion employee there, however two representatives from the builder were present. She described that visit as less confrontational than the first.
60Ms. Scheibmayr, a retired vice president of customer service for the builder, also testified. Another representative from the builder was set to testify, however a family emergency prevented her presence.
61Ms. Scheibmayr worked for the builder for 26 years. She has extensive experience in new home construction, having been trained in Part 9 of the OBC which deals with construction of houses and small buildings and a member of the Building Industry and Land Development Association for several years. The builder did not seek to have her qualified as a participation expert, nor was there any information about her experience provided to the appellant before the hearing commenced in February.
62She was familiar with the appellant’s claims, having dealt with him directly and also acting in a supervisory role for other customer service representatives for the builder. She said during the first-year inspection there had been a complaint by the appellant about the angling of the front steps but no complaint about pitting on the steps. It was determined the treads on the steps were level except for the rough edges under the handrail and there was no warrantable defect. She advised this finding was not appealed by the appellant during the first-year hearing.
63She confirmed the builder had fixed some “spalling” on the front porch during the first-year inspection even though the builder felt it occurred as a result of salt damage. She also agreed with Ms. Coelho that the appellant’s pre-cast steps came with a sticker cautioning against using de-icer or salt. A photo of the sticker on the steps was filed as an exhibit. Additionally, she said that there was a disclaimer on the bags in the garage not to use on cement.
64She attended at the home in October 2019 and at that time did not observe any health and safety issues with respect to the steps. She said she had no problem walking up or down the steps and did not find them to be hazardous. She did notice there were small areas on the porch that had started to “spall” again.
65Ms. Scheibmayr was shown a picture of the steps taken by the appellant in January 2021. She advised there was much more damage on the steps than in October 2019, noting two winters had passed between her observations and the taking of the photo. She agreed with Ms. Coelho’s position that salt or de-icer had continued to eat away at the concrete.
66The appellant argued the state of the steps and the porch was a health and safety issue and therefore covered under the Act. He said his photos showed the disintegration that has resulted in his mother losing her footing when she is on the steps. Further he argued that the structure of the “footing is not strong enough” and “I can not let my mother in the home”. He said it was not only the salt that is the problem and "that all people in Canada are using salt” as it is the way to make the stairs safe. Although the appellant referenced the OBC, he did not point to any provisions of the OBC that might apply to deterioration of concrete as it connects to the health and safety concerns.
67The respondent’s position was there was no evidence the front porch or steps fell within the second-year warranty as a breach of health and safety under the OBC. Relying on s. 13.2 (f) of the Act, which excludes coverage with respect to “damage caused from improper maintenance, the respondent submitted the claim was excluded because the steps had been improperly maintained by the appellant, as evidenced by the chemical staining seen on the steps, the bags of salt and de-icer in the garage and the pitting observed only on the steps and not the risers.
68Counsel for the builder adopted the position of the respondent. Additionally, she submitted the front porch slab was not warranted as a second-year claim as it was a resolved first-year claim that was not appealed to the Tribunal.
69Counsel referred to the construction performance guidelines filed as an exhibit. While acknowledging I am not bound by the guidelines, counsel submitted they provided guidance as to industry standards. The guidelines state that the scaling of exterior concrete surfaces such as porches and steps, including those that are precast, most often results from salt and de-icer being intentionally applied to the surfaces or from road salt and that cleaning the salt off is part of normal maintenance.
70Counsel for the builder submitted the only way the steps could be warranted under the second-year warranty was if they were found to be a health and safety breach. When looking at the enumerated examples of health and safety concerns found in s. 15(2)(d), such as fire safety and structural adequacy, counsel argued the condition of the pre-cast steps did not amount to a health and safety violation.
71In reviewing the evidence of the witnesses relating to the steps and the porch I find the evidence of Ms. Coelho, corroborated by Ms. Scheibmayr’s observations, most reliable and compelling. I accept the evidence that the presence of damage on the precast steps only, and not in other areas such as the risers, is consistent with the steps having had salt applied to them rather than a problem with the material as a whole.
72In particular, I find Ms. Coelho gave her evidence in a straightforward, objective manner. The clearest example of this is perhaps her description of her second visit. While she was clear in her evidence that the first visit was tense and uncomfortable, she agreed with the appellant during cross examination that the second visit was more cordial and unconfrontational. Had she allowed subjectivity to cloud her evidence I doubt that concession would have been made.
73Throughout his evidence on the disintegrating concrete, the appellant was vague as to his use of salt and de-icer and argumentative at times when pressed for clarification. The photos he provided of the steps were of little assistance to his position, given the almost 2 years intervening between his claim and the taking of the photos. If anything, the photos were supportive of the position of the respondent and builder that the appellant did not perform proper maintenance on the concrete areas and used salt against the written caution about doing so, resulting in significantly more damage than during the inspection in October 2019.
74There was no evidence the appellants maintained the steps in a fashion consistent with the warnings and cautions provided to him. Additionally, aside from the appellant’s evidence, which I found troublesome, there was no other evidence showing a defect in the material leading to a health and safety violation under the OBC.
75In short, I find the appellant has not, on a balance of probabilities, met his onus of establishing that the concrete steps or porch disclose a warrantable defect.
c) Water Penetration Claim
i) Is the Claim Statute Barred?
76Sections 13(3) and (4) of the Act together with s. 14(1) and (2) of regulation 892 of the Act set out the requisite time limits that apply with respect to warranties for water penetration:
13(3) The vendor of a home shall deliver to the owner a certificate specifying the date upon which the home is completed for the owner’s possession and the warranties take effect from the date specified in the certificate. R.S.O. 1990, c. O.31, s. 13 (3).
13(4) A warranty under subsection (1) applies only in respect of claims made thereunder within one year after the warranty takes effect, or such longer time under such conditions as are prescribed. R.S.O. 1990, c. O.31, s. 13 (4).
14(1) Every vendor of a new home warrants to the owner that there will be no water penetration through the basement or foundation of the home.
14(2) The warranty described in subsection (1) applies only in respect of claims made during a two-year period ending on the second anniversary of the date of possession
77In the second-year warranty form, the appellant completed a section entitled “Water penetration of basement or foundation”. In Item 1-9 of that section he claimed
Incomplete caulking around all windows and doors and also around basement windows. This was mentioned in the PDI, 30 day and Year End forms.
78The second-year form was submitted to Tarion by the appellant electronically on February 24, 2019. As the anniversary date of February 23 took place on a weekend, the appellant had until Monday February 25, to file the second-year form.
79The appellant’s claim in his notice of appeal stated:
Rainwater penetrated in the entire house from the second-floor windows (in master ensuite and second bedroom ensuite), through the walls, to the garage ceiling, staining the ceiling. After each rainfall water can be seen inside the house, in addition there are multiple locations with water damage visible at windows( sic) trims/baseboard/walls/ceiling, that need to be repaired, drywall to be removed and mold contamination to be performed.
80Tarion and the builder’s position was that the water penetration as outlined in the second-year warranty form does not accord with the description of the issue outlined in the appellants’ notice of appeal. Further, as the claims outlined in the appeal were raised after the two-year anniversary date the appellant is barred from bringing the claim. To use the words of the builder’s counsel, “warranty deadlines are not elastic…. this Tribunal can’t go beyond the warranty deadline set out in section 13 (3) of the Act”.
81The appellant submitted that the claim outlined in Item 1-9 adequately captures the water penetration issues he raised in this appeal and therefore the issues were raised in a timely fashion.
82The appellant, Ms. Coelho and Ms. Scheibmayr all testified as to when the water penetration concern first came to the attention of Tarion.
83The appellant testified he raised the claim in the second-year warranty by completing the section on water penetration. He said he also raised the issue at the pre-delivery inspection on February 21, 2017, on the 30-day form and the first-year form, by stating that the caulking around the windows and roof was incomplete. The appellant claimed after each rain the water was “penetrating into the house” and there were “multiple locations with water damage”. He also said there was mold in the home.
84In cross examination he said it is obvious that if you have incomplete caulking you will get leaking. When he was asked about the presence of mold, he agreed he did not mention that in the second-year warranty form as the mold came after. He said although he raised the claim about water penetration in the second-year form sent to Tarion, (a copy of which is forwarded to the builder) the builder did not come to inspect his complaints until March 28, 2019.
85The appellant opined that he found the second-year form was not user friendly and he was trying to be careful about what he put in the Water Penetration section but that he was limited by the number of characters he could use in the description. He did not explain why he didn’t specifically mention the water penetration he referred to in his notice of appeal but rather just referred to a caulking problem.
86During cross examination by Tarion’s counsel, the appellant said he did not remember when Tarion first inspected the home for water penetration. He did however acknowledge that a builder’s representative was at his home on March 28, 2019. However, he said that the representative was in a hurry and did not do a proper inspection. He did not recall being told by Remington to call if there continued to be a problem with water penetration. He said on March 29, 2019 he sent an email with pictures and after that he sent multiple emails.
87The appellant agreed with respondent counsel that he contacted Tarion in July 2019, to ask them to pay for an inspection concerning the leaks.
88Ms. Scheibmayr testified the home was inspected, by Jane Smith, a Remington representative on March 28, 2019, however no issues of water penetration were brought to Ms. Smith’s attention at that time. She said the first-time water damage was brought to their attention by the appellant was by email on March 29, 2019 when he said he noticed staining in both bedrooms/bathrooms and the garage ceiling. The March 29, 2019 complaint from the appellant resulted in a home inspection on May 1, 2019.
89Ms. Coelho indicated Tarion was first advised on July 11, 2019 of the appellant’s concern with respect to water penetration.
90This contact was via a voice message left by the appellant. The notes taken of the call are telling in terms of the appellant’s assertion during the hearing that his description in Item1-9 of the second-year form covered the claims in his notice of appeal.
91The call notes indicated the appellant said issues had surfaced after the submission of the second-year form and he would like to add them to the form. (italics added). The notes go on to say the appellant had informed the builder and they were not willing to help, and he was now seeking Tarion’s assistance.
92Ms. Coelho was present at the home on a conciliation visit with respect to first year claims on October 21 of 2019. At that time the appellant advised her of the concern about leaking in the bedroom ensuite above the garage. She said at that point there was no active leak present.
93I am mindful the appellant complained about caulking issues in the 30-day, first year and second year warranty forms and if such caulking defects existed they might be covered under section 15(2) of the Act. However, the appellant presented no evidence the water penetration was due to defective caulking. Additionally, Ms. Coelho, in her inspection, did not see any evidence of defective caulking.
94I found the appellant’s evidence on the timing of the notification of the water penetration less than satisfactory. It simply does not make sense that, if before the February 24, 2019 warranty deadline there was active, ongoing water penetration in the home, he would not have described exactly that in the second-year warranty form. Instead, what he did was repeat a claim he had previously made about the quality of the caulking workmanship. During the hearing the appellant was quite able to articulate what he described as an ongoing problem with water penetration and in fact he did so in a very forceful manner. I cannot accept that, if it was a problem before the end of the second-year warranty, he would not have clearly and unequivocally mentioned it in the form despite the character limit.
95I am assisted in reaching this conclusion by Ms. Coleho’s evidence, which relied in part on the notes she took of the July 11, 2019 voicemail in which the appellant is purported to have said the issue arose subsequent to his filing of the second-year form and he wished to add it to the form. Additionally, the evidence of Ms. Scheibmayr was that only an issue with defective caulking, and not water penetration, was brought to the builder’s attention prior to March 29, 2019, and Ms. Coelho’s evidence was the July 11 phone call was the first time Tarion was aware of a potential problem.
96I agree with counsel for the respondent when he argued the claim completed by the appellant on February 24, 2019 “does not describe any concerns of water penetration in the building envelope or even describe water staining. The claim does not capture any locations remotely related to the hearing such as identifying the second-floor bathroom in the home or the garage ceiling”
97A review of the evidence leads me to the conclusion the water penetration issue that is the subject of this appeal was not raised by the appellant within the two-year window outlined in the Act and attending regulations. Additionally, a review of the Act reveals no basis for extending the time period beyond the two-year stipulation. As the claim was made outside the two-year period, I find the appellant is barred from bringing this claim.
i) Was there a warrantable defect in the envelope of the home, specifically in the upstairs ensuite and upstairs master ensuite, resulting in water penetration inside these areas and filtering down into the garage?
98Should I be in error with respect to my finding of the claim being statute barred, I will proceed with a determination of the whether there was water penetration into the home as a result of a warrantable defect.
99The appellant testified as to the constant and ongoing presence of water in two upstairs bedroom ensuites, which had in turn, filtered down to the garage ceiling. He stated “now when it is raining, I have to deal with the water…rain was coming through the windows and staining the walls and I found water on the window frames inside the house”
100The appellant entered numerous pictures of the area in question as proof of the problems he was alleging. As noted earlier these photos were taken shortly before this hearing and as a result are of little assistance with respect to the state of the rooms on or about the second anniversary date of February 23, 2019.
101The photos do appear to show some staining on the garage roof and some staining in areas of the upper floor room windows. The appellant pointed to what appeared to be rusty nails in the garage drywall that he argued was consistent with ongoing water issues.
102Other than his own evidence there was no evidence to support the appellant’s contention that the water issues he was claiming were caused by a warrantable defect resulting in water penetration.
103During cross examination the appellant was vague as to when, if at all, his parents had ever actually lived in the house. Sadly, his father passed away in 2018 and he said his mother did want to stay in the house. He agreed that he attempted to list the house for rent but was unclear as to the dates.
104During his evidence the appellant claimed the respondent and the builder were somehow in cahoots with each other in an effort to thwart his claims. I found no evidence of that assertion.
105In response to my question, the appellant said he had not had anyone other than the builder and the respondent in the house to examine his concerns. Other than the evidence of the appellant, there was no evidence called by him to point to a defect which resulted in the water penetration
106In assessing the appellant, I was left with doubt as to his credibility. During both his own evidence and his cross examination of witnesses, he was sometimes inconsistent, confrontational and impolite. He was not always prepared to directly answer the question put to him.
107Additionally, early in the proceedings it appeared to me that he was seeking input from someone else in the room who was out of sight. I asked him about it, and he denied anyone was present. However, on asking the reporter to replay the portion in question, it was clear to me there was someone else speaking to him in the background. His lack of candor in this regard was troubling.
108Ms. Coelho testified that in her opinion the water damage in the ensuites resulted from a one-time occurrence of ice jamming in the spring of 2019. This was not an occurrence that was covered by warranty unless there was a builder defect. She described that ice jamming occurs when snow gather along the edge of a roofline, it can create a dam and cause water to enter the building envelope. Ms. Coelho said the fact the appellant raised the issue of water penetration with the builder in March 2019, which is early spring, lends credence to her opinion that it was ice jamming that caused the water penetration. The thaw and freeze cycle in the spring is when ice jamming occurs, and the second floor of a building is prone to ice jamming. It is more likely to occur where there is a valley in the roof and in the appellant’s home there were two valleys located on either side of the windows in question.
109With respect to the staining on the garage ceiling she stated that she believed that too was as a result of the ice jamming. She said that water takes the “path of least resistance” and the water probably travelled at the time it entered the ensuites above it.
110Referencing the Construction Performance Guidelines, she stated that it is up to the homeowner to undertake proper maintenance to make sure there is not too much ice on the roof.
111She said she attended at the home on October 19, 2019 and did not see any evidence of an active leak. Importantly, she did not see any defects with the window caulking nor any OBC violations or defects present that could have contributed to the ice damage occurrence. She did observe water staining on an upper window but did not see water gathering on the sill or the trim. Her observations of the house, including the absence of beds and scarcity of other furniture, led her to conclude no one was currently living in the house.
112She also stated that despite requests of the appellant that he call Tarion or take pictures during the rain so that the alleged water leakage might be further investigated and confirmed, they did not hear from the appellant.
113I am aware that I must be mindful of Ms. Coelho’s position vis a vis the respondent when assessing her credibility. However, on this issue, as with the disintegration of the steps, I found Ms. Coelho to be balanced in her evidence. She did not present as a partial or unobjective witness when responding to the appellant’s cross examination. She did not appear to overstate her opinion. Moreover, she was able to refer to documented material such as the Construction Performance Guidelines to support her conclusions.
114Ms. Scheibmayr’s observation of the water staining aligned with Ms. Coelho’s observations. She testified that when the home was inspected by the builder’s representative in May 2019, no active water penetration was observed. There was some brown staining noted on the windowsill which she said was indicative of an old leak. There was some staining on the garage ceiling which was photographed. The home was inspected again on May 22 and this time the attic was inspected to ensure there was no leakage there. No damage was found. On June 11 a roofer inspected the roof and did not find any problems.
115Ms. Scheibmayr’s evidence was that the appellant was asked to contact them again if the leaking occurred. However, she has no records of phone calls between June and October 11, the time of the next inspection. During the inspection in October she said she did not notice any change in the size of the stain in the garage.
116Although Ms. Scheibmayr was not giving evidence as an expert, she too believed the water noted by the appellant resulted from ice jamming, although I place less weight on this evidence than I do on Ms. Coelho’s.
117I accept the evidence of Ms. Coelho, corroborated by Ms. Scheibmayr, that the water penetration was caused by an ice jamming occurrence and not as a result of a warrantable defect.
118In conclusion I find the appellant has not, on a balance of probabilities met his burden of proof with respect to his claim respecting water penetration. I accept both Tarion’s and the builder’s evidence that it requested that the appellant contact them when it rained so that it could further investigate the source of the water staining. The appellant failed to do so, and I find this very persuasive. He also failed to take any contemporaneous photographs or videos showing the leaking during rainfall. What this meant is that Tarion and the builder were left to inspect the home as scheduled. I am satisfied from Tarion and the builder’s evidence that those inspections did not disclose any warrantable defects with the home. I accept Ms. Coelho’s evidence that she inspected the window caulking and found no defects with it. I further accept her evidence that the water damage was caused not by a construction defect, but by ice jamming, which may have occurred due to the appellant’s improper maintenance.
119The appellant has failed to establish his home contained a warrantable defect regarding water penetration of the building envelope. Although it was his case to make, I note that he did not refute the evidence of the respondent as to the cause of the water penetration.
120Having found there was no warrantable defect I need not address the issue of damages.
121During the hearing the appellant raised new concerns about mold as well as defects in gas proofing in the garage area. These claims were outside the scope of this appeal and therefore I decline to consider them.
Order
122Pursuant to s 14(19) of the Act, I order Tarion to deny the appellant’s claims.
LICENCE APPEAL TRIBUNAL
____________________________
Katherine Livingstone, Member
Released: August 05, 2021