Licence Appeal Tribunal
Appeal from a decision of Tarion Warranty Corporation under the Ontario New Home Warranties Plan Act to disallow warranty claims
Between:
Rubina Khan Appellant
-and-
Tarion Warranty Corporation Respondent
-and-
Modo Bowmanville Towns Ltd Added Party
RECONSIDERATION DECISION
ADJUDICATOR: Laura Hodgson, Member
APPEARANCES:
For the Appellant: Self-represented For the Respondent: Ben Carino, Counsel For the Added Party: Adam Lifshitz, Counsel
REASONS FOR DECISION
Overview
1The appellant requests reconsideration of the Tribunal’s decision following a hearing on November 23 and 24, 2021. In a decision dated December 8, 2021, the Tribunal confirmed the respondent Tarion’s denial of a deposit refund.
2The appellant now requests reconsideration of this decision.
3For the reasons set out below, the request for reconsideration is denied.
ANALYSIS
4The criteria for granting reconsideration are set out in Rule 18.2 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I, October 2, 2017. A request for reconsideration will not be granted unless one or more of the following criteria are met:
a) The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;
b) 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;
c) The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or
d) 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.
5A reconsideration is not an opportunity to reargue issues canvassed at the hearing. The onus is on the moving party to identify a significant legal or evidentiary mistake, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light after a hearing. It is not an opportunity to submit new evidence that was reasonably available at the time of the hearing but was not presented.
6In her request for reconsideration, the appellant relies on the criteria set out in subsection (d), submitting that there is evidence that was not before the Tribunal when the decision was made. This is not the case. The documents included in the request for reconsideration were all tendered at the electronic hearing in November. The documents were included in either the appellant’s or the respondent’s book of documents and were fully considered by the Tribunal. The appellant’s submission is no more than an invitation to the Tribunal to reweigh this evidence.
7In her written submissions, the appellant attempts to relitigate the same issues raised at the hearing. Among other things, she continues to argue the injustice of the deposit requirements and penalty fee, disputes the date she lost access to the unit and takes issue with fact that she was not offered a ‘rent to own’ option.
8As noted at paragraph 23 of the Tribunal’s decision, the appellant failed to establish that the respondent fundamentally breached the Agreement of Purchase and Sale. There was no conduct that deprived Ms. Khan of the whole benefit of the contract. There was substantial completion of the unit and the Builder was prepared to close the transaction and transfer title at closing. In its decision, the Tribunal acknowledged the appellant’s frustration with the process and the significant financial penalties incurred. The Tribunal also noted that Ms. Khan was represented throughout the relevant period and should have been aware of her rights and obligations.
9The applicant has not tendered any evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the appellant or would have affected the result. Further, she seeks to relitigate the same claims advanced at the hearing. The criteria for reconsideration set out in Rule 18 has not been met and the applicant’s reconsideration request is denied.
ORDER
10The request for reconsideration is denied.
LICENCE APPEAL TRIBUNAL
_____________________________
Laura Hodgson, Member
Released: February 25, 2022