Suada and Neand Jelic v. Tarion Warranty Corporation, 2021 CanLII 85111

Licence Appeal Tribunal

Date: 2021-09-03

Appeal from a decision of Tarion Warranty Corporation under the Ontario New Home Warranties Plan Act to disallow warranty claims

Between:

Suada and Neand Jelic Appellants

and

Tarion Warranty Corporation Respondent

and

Millstone Homes Inc. Added Party

RECONSIDERATION DECISION

ADJUDICATORS: Jennifer Friedland, Member Colin Osterberg, Member

Date: September 03, 2021

Written submissions by: For the Appellants: Suada and Neand Jelic, Self-represented For the Respondent: Catherine Longo, Counsel For the Added Party: No written submissions submitted

REASONS FOR DECISION AND ORDER

A. OVERVIEW

1In its decision dated May 7, 2021, the Tribunal held that the appellants failed to prove that the parapet walls on their house were not constructed in a workmanlike manner and that the design of the as-built parapet walls is not an unauthorized substitution under the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31 (the “Act”). The appellants request that the Tribunal reconsider its decision on the following grounds:

1. that the Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made;
2. that the Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result; and
3. that there 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.

B. ISSUES

2The issue to be decided on this reconsideration is whether the appellants have established any of the above grounds of appeal under Rule 18.2 of the Tribunal’s Common Rules of Practice and Procedure.

C. RESULT

3For the reasons given below, the appellants’ request for reconsideration is denied.

D. ANALYSIS

1. Error of Fact or Law

4We are not satisfied that the Tribunal made an error of fact or law, or that the Tribunal would have reached a different result had the errors alleged by the appellants not been made.

5The appellants argue that the Tribunal erred when it found that there was no defect in workmanship or materials in relation to the construction of the parapet walls on their house and therefore no breach of warranty under s. 13 of the Act. The appellants argue that, since there was no evidence of any plans according to which the parapet walls were built, there was no basis to conclude that the work was completed free from defects in workmanship and materials.

6The appellants’ argument reverses the onus of proof, implying that the respondent was required to show that the work was completed in a workmanlike manner and without defective materials. The onus under s.13 of the Act lies with the appellants to prove that there was a defect in workmanship or materials. The Tribunal considered the evidence presented by the parties and concluded that the appellants did not prove there were any defects in workmanship or materials with respect to the parapet walls on a balance of probabilities. The appellants have referred to no evidence presented at the hearing which supports their allegation that there was a defect in workmanship or materials and we find that the appellants have not proven that there was an error of either fact or law with respect to this issue.

7The appellants argue that the Tribunal erred when it determined that the design of the parapet walls was not an item for which the appellants were entitled to make a selection pursuant to the purchase agreement and that the added party did not breach the warranty contained in s. 18 of Regulation 892, R.R.O. 1990 (the “Regulation”). The appellants argue that the appellants and the added party entered into two agreements of purchase and sale, a “Partial APS” and a “Final APS”. They say that the Final APS entitled them to select the design of the parapet walls and that the added party made an unauthorized substitution by failing to build the parapet walls according to the design the appellants selected. The appellants argue that the added party therefore breached the s. 18 warranty.

8There was no evidence presented at the hearing that there were two agreements of purchase and sale, and the appellants did not make that argument at the hearing. At the hearing, the appellants argued that there was one APS and that the elevation plans were incorporated into that APS several months later, when they were signed by the appellants. The Tribunal considered the APS and concluded that it did not provide the appellants with the entitlement to select the design of the house for the purposes of s. 18 of the Regulation. The appellants have presented no evidence that there has been an error of fact or law with respect to this conclusion.

9The appellants agreed at the hearing that s. 19 of the Regulation did not apply because the elevation was not something that was referred to in the purchase agreement. If the elevation was part of the Final APS, then it would be something that was part of the purchase agreement and not something that is to be selected later by the appellants and s. 18 would again have no application.

10Even if by signing the elevation plans the parties entered into a second agreement of purchase and sale, that so-called Final APS contained no entitlement to make a selection, and s. 18 of the Regulation would not apply.

11We find that the appellants have not demonstrated that the Tribunal made an error of law with respect to this issue, or that the Tribunal would have reached a different result had the error alleged by the appellants not been made on this issue.

12The appellants also argue that, because the appellants were entitled to select the materials to be used to clad the walls after having approved the elevation drawings, they were entitled to select the configuration in which the cladding was to be placed – ie. in accordance with the plans they approved.

13The appellants did not present this argument at the hearing and we find it to be without merit. The entitlement to select materials does not imply an entitlement to select the design in which the materials are to be applied. We find that this would be an unreasonable interpretation of s. 18 of the Regulation. If the appellants had made this argument at the hearing, it would have been rejected.

14The appellants have not demonstrated that the Tribunal made an error of fact or law or that the Tribunal would have reached a different result had the errors alleged by the appellants not been made.

2. False Evidence

15We are not satisfied that the Tribunal heard false evidence from a party or witness, or that the evidence alleged to be false by the appellants affected the result.

16The appellants allege that the respondent and added party gave evidence that the truss drawings were prepared at the same time the APS was entered into on April 23, 2017, whereas they were not prepared until months later, on July 12, 2017. The appellants say that the Tribunal would have come to a different conclusion had it known the true facts.

17The appellant presented no evidence that the respondent or added party alleged that the truss drawings were prepared at the same time the APS was entered. Also, the Tribunal did not make such a finding. The timing of the preparation of the truss drawings to the execution of the APS was not relevant to the Tribunal’s decision, and, in any event, it is clear from its reasons that the Tribunal understood that the truss drawings were prepared after the elevations were approved which occurred after the APS was entered into.

18The appellants also allege that the respondent and added party presented false information that the parapet walls requested by the appellants caused water penetration problems in other houses and that was the reason the added party no longer built parapet walls in that way and was the reason they did not build the appellants’ home in that way. The appellants say that this is incorrect and that the added party continued to build houses with parapet walls in that design after the appellants’ home was built. The appellants allege that, if the Tribunal had known this, it would have come to a different conclusion.

19The appellants have misstated the evidence of the respondent and added party. The evidence was that, after the appellants’ home was built, the added party determined that houses which were constructed with roofs like the one the appellants wanted were prone to water penetration and that the added party stopped building that style of roof. There was no evidence that the appellants’ roof was not built in that way because of this concern regarding water penetration.

20In any event, the evidence presented by the respondent and added party as to water penetration problems associated with this type of roof system was irrelevant and played no part in the Tribunal’s decision. Whether or not roofs designed as per the elevation plans approved by the appellants were prone to water penetration is not an issue that was relevant to the appellants’ appeal and was not an issue relied on by the Tribunal in making its decision.

21We find that that the appellants have not proven that false statements were made or that the Tribunal would have come to a different conclusion if the alleged false statements had not been made.

3. New Evidence

22We are not satisfied that the new evidence relied upon by the appellants could not have been obtained earlier or that the evidence tendered as new would likely have affected the result.

23The appellants seek to introduce a photograph of a home in the style desired by the appellants, being built after the time when the added party claims to have stopped building homes in that design. In our view, this evidence was available to the appellants to introduce at the hearing if they chose and they did not do so. More importantly, it is irrelevant to the outcome of the appeal and would not have affected the result reached by the Tribunal. Whether or not a home can be built in the design desired by the appellants is irrelevant to the issue of whether the home that was built for them was constructed in a workmanlike manner or in breach of a warranty under the Act.

24We find that that the appellants have not proven that there is evidence that was not before the Tribunal when rendering its decision, that could not have been obtained previously by them, which would likely have affected the result

E. ORDER

25For the reasons given above, we find that the appellants have not established the grounds for reconsideration as set out in Rule 18.2. The request is therefore dismissed.