Growth Social House Inc. v. Registrar, Ontario New Home Warranties Plan Act, 2022 CanLII 55023

Tribunals Ontario Licence Appeal Tribunal

Tribunaux décisionnels Ontario Tribunal d'appel en matière de permis

An appeal from a Notice of Proposal to Revoke a determination that homes qualify for enrolment in the Ontario New Home Warranties and Protection Plan (Plan), issued by the Tarion Warranty Corporation

B E T W E E N:

GROWTH SOCIAL HOUSE INC.

Appellant

• and –

REGISTRAR, ONTARIO NEW HOME WARRANTIES PLAN ACT

Respondent

MOTION DECISION

ADJUDICATOR: Monica Ciriello, Vice-Chair

Held in writing: June 20, 2022

OVERVIEW

1The Appellant, Growth Social House Inc. appeals a Notice of Proposal (NOP) to revoke a determination that its homes qualify for enrolment in the Ontario New Home Warranties and Protection Plan (Plan) issued by the Respondent, the Registrar, Ontario New Home Warranties Plan Act (ONHWPA) on December 20, 2021.

2The NOP stated that the Appellant had not satisfied the condition set out in s. 3.1 of the Ontario Regulation 638/20 made under the ONHWPA. The Appellant argued that the Respondent erred in issuing the NOP without sufficient understanding and appreciation of all the relevant facts.

3The NOP was signed by Kevin Brodie, Vice President of Underwriting at Tarion. Tarion appointed Mr. Brodie as a Deputy Registrar to exercise the powers and duties given to the Respondent under the ONHWPA.

4On May 11, 2022, the Appellant filed a Notice of Motion seeking an order from the Tribunal to compel Mr. Brodie to give evidence at the hearing.

5The Tribunal received written submissions from counsel for both parties.

6The Tribunal orders that the motion be denied. As the reasons will indicate, I am not persuaded that Mr. Brodie is a necessary and appropriate witness at the hearing as the evidence sought to be provided by Mr. Brodie is not relevant to the findings that the Tribunal needs to make at the hearing.

ANALYSIS

The Parties’ Positions

7The Appellant alleges that Mr. Brodie is an appropriate and necessary witness at the hearing.

8The Appellant argues that because Mr. Brodie executed the Tarion proposal, he has requisite knowledge, understanding and appreciation of material facts in this proceeding and determined, supported and/ or contributed to Tarion’s decision to:

(a) Issue the Tarion NOP without a sufficient understanding and appreciation of all the relevant facts;

(b) Issue the Tarion NOP based on unproven allegations against the Appellant in a separate legal proceeding;

(c) Issue the Tarion NOP based on vague and ambiguous terms;

(d) Issue the Tarion NOP without consideration of reasonable alternatives thereto; and,

(e) Respond in a manner that is unreasonable, disproportionate and/or erroneous at law or in fact given the circumstances.

9The Appellant prepared a draft Summons to Witness in the motion materials requiring Mr. Brodie to bring with him to the hearing:

All original documents, including all books, contracts, letters, telegrams, statements, records, bills, notes, securities, vouchers, reports, records, memorandum, notes, computer diskettes, CDs, DVDs, USB keys, any material contained on the hard drive of a computer, email material, facsimile, transmissions, tape recordings, video recordings, photographs and copies of same in [his] custody, possession or power in any way relevant to the matters which are within the scope of this proceeding or have any reference thereto.

10The Appellant submits that the draft Summons to Witness is not an overbroad request as the Appellant does not know the full extent of Mr. Brodie’s involvement in this proceeding, thereby, erring on the side of inclusion rather than being limited in scope.

11In support of its position the Appellant relies on several decisions.¹

12The Respondent submits that the evidence of Mr. Brodie will not be relevant to the issue that the Tribunal must decide and further submits that the summons to Mr. Brodie is drafted too broadly. The Respondent requests that the Appellant’s motion be dismissed.

13The Respondent relies on the Divisional Court’s decision in Zahariev v. Ontario (Registrar, Motor Vehicle Dealers and Salespersons)² for the proposition that the Tribunal must not ask whether the regulator was wrong; rather, the Tribunal holds a de novo hearing and makes a fresh and independent determination of the issues. The Court in Zahariev in turn cited its decision in Registrar, Motor Vehicle Dealers Act v. Shine Car Sales³, which states “It should be understood that the Tribunal owes no deference to the Registrar’s opinion. The Registrar is an investigator. The Registrar is not a trier of fact whose opinion is based upon a hearing and so entitled to deference.”

14The Respondent submits that the list of documents is so sweeping and unfocused that the Appellant is in effect, asking for a general discovery of the Respondent or an access to information request through Mr. Brodie.

Analysis

15I am not persuaded that Mr. Brodie is a necessary and appropriate witness at the hearing nor am I persuaded that the evidence provided by Mr. Brodie would be relevant to the findings that the Tribunal needs to make in this appeal.

16I find that the Appellant failed to provide evidence as to the necessity of Mr. Brodie’s attendance, failing to provide any personal knowledge or examples of documents that only Mr. Brodie could produce or testify to. The Appellant stated that they are not aware of the full extent of his involvement in the proceeding.

17I do not find the cases relied upon the Appellant to be of assistance. The cases emphasized the importance of having a witness at a Tribunal to testify to relevant evidence to the matter at issue. Notably in 8549 v. Tarion Warranty Corporation, the motion to summons a witness was quashed because it was not possible to find that the party had any relevant evidence on any issue to be determined by the Tribunal.

18The Appellant also attempts to distinguish itself from 17-003121 v. Allstate Insurance Company of Canada, where the Tribunal held that the Applicant had not provided sufficient evidence to support the position that a party was a necessary or relevant witness, other than one very general statement that the party was involved in a telephone discussion regarding the issue and settlement. The Tribunal found that this statement alone referencing what appears to be a singular telephone conversation is not sufficient proof and is lacking in substance and detail. Here, the Appellant asserts that it has “multiple statements and additional materials,” but I do not find that the Appellant has distinguished itself from 17-003121, particularly since the Appellant’s statements are also “too general”.

19In short, the Appellant does not satisfy me that Mr. Brodie has any relevant evidence to be provided on the issue before the Tribunal.

20I accept the argument made by the Respondent that in this matter, the first-hand evidence of the frontline analysts or managers could be cogent evidence at the hearing.

21Furthermore, I agree with the Respondent that Mr. Brodie’s evidence would not be relevant to the hearing. Mr. Brodie’s role is to enforce the regulations and ensure that the required conditions are adhered to. The question on appeal for the Tribunal to consider is whether the Appellant’s homes continue to qualify for enrolment under the Plan given that the Appellant has not satisfied the prescribed condition to renew its licence. In my opinion, the document that the Respondent relies on the outstanding proposal issue by the Home Construction Regulatory Authority does not require Mr. Brodie’s attendance.

22A proceeding before the Tribunal is in the nature of a de novo procedure. It is an important distinction to highlight that the Tribunal is required to make an independent decision as to whether the criteria for depriving the Appellant of his licence have been proven, and it is not required to show deference to the initial decision of the Registrar, Mr. Brodie. Nor does the Tribunal does not have the authority or function to perform a judicial review of Mr. Brodie’s conduct.

23Lastly, the Appellant submits that I should not rely on 10179 v. Director under the Consumer Protection Act because, in its view, s. 2(9) of the ONHWPA ousts the Statutory Powers Procedure Act. I disagree with the Appellant because that provision is relevant only to the Lieutenant Governor in Council’s power to revoke the designation of Tarion as the corporation responsible for administering the ONWHPA. That is not the issue between the parties in this case. In the absence of any other ousting provision in the ONHWPA, the Statutory Powers Procedure Act applies.

ORDER

24As a result of the above, the Appellant’s motion to compel Mr. Brodie to testify is denied.

Released: June 20th, 2022

___________________________

Monica Ciriello, Vice Chair

Footnotes

1. 18549 v. Tarion Warranty Corporation, 2014 CanLII 96534 (ON LAT), 17-003121 v. Allstate Insurance Company of Canada, 2017 CanLII 82021 (ON LAT), 10179 v. Director under the Consumer Protection Act, 2002, 2016 CanLII 50121
2. 22005 CanLII 44815 (ON SCDC).
3. 32003 CanLII 11437 (ON SCDC).