Licence Appeal Tribunal
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:
Toronto Standard Condominium Corporation No. 2541 Appellant
-and-
Tarion Warranty Corporation Respondent
-and-
Kingston Road Development Corporation. Added Party
AMENDED DECISION and ORDER
ADJUDICATOR: Katherine Livingstone, Member
APPEARANCES:
For the Appellant: M. White, Condominium President For the Respondent: D. Peck, Counsel For the Added Party: M. Doyle, Counsel
Heard by Written Submissions
Introduction
1The appellant Toronto Standard Condominium Corporation No. 2541 (“TSCC 2541”) is the corporation for a residential condominium building located at 580 Kingston Road, Toronto. TSCC 2541 appeals the decision letter dated June 11, 2021 (“Decision Letter”) by the respondent Tarion Warranty Corporation (“Tarion”), which denied the appellant’s claim for compensation relating to alleged defects in the building, under the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31 (the “ONHWPA”).
2The added party, Kingston Road Development Corporation (“Kingston Road”), is the vendor of the residential building and is responsible for the warranties on the common elements in the building.
3This matter proceeded before me as a written hearing with all parties filing written submissions, together with documentary evidence and related books of authorities.
Issues
4Relevant to this appeal, in the Decision Letter, Tarion denied the appellant’s warranty claims respecting the following seven items:
i) Item 357: Security fobs from garage entrances for the building. Entrances to building from garage.
ii) Item 396: Water stains on ceiling tiles show signs of water leakage. 1st floor near electrical closet.
iii) Item 397: Water stains on ceiling tiles show signs of water leakage. M Floor-beside Suite 1A.
iv) Item 424: Emergency power generator has had transfer issues. Did not switch off automatically after August power outage or after September monthly test. P1-Generator room.
v) Item 435 (sic, should be 425): The Beach area is noted for electrical reliability issues. However, sensitive controls do not have surge protection devices. As a result, hot water boilers have failed, requiring replacement of boards on each, as well as heating system for common area (hallways). Although not required by design, there is a lack of due diligence by the builder in not electrically protecting the assets from electrical issues.
vi) Item 433: The builder inappropriately installed the recirculation pump for the hot water boilers to require a manual start of the pump after a power outage, even of very short duration. This could have easily been addressed by the builder by the use of an automatic switch for the pump rather than a manual one. P1-Mechanical Room.
vii) Item 423: At our Board meeting on Tuesday April 3, we discussed the issue with the unit doors. I know that you would like to install bolts in each door to support the closure mechanism. As you are aware, as a Board we are responsible to provide some validation that this is the correct solution for the door and that the door will be to code. In order to carry out that responsibility it would be useful if you could provide me some information: specifically, the manufacturer and model of the door, were the parts included, what company installed the door and the installation instructions if available. Once I have that information, I can quickly verified (sic) that there is not an additional that would challenge the code and we can initiate the final solution. In addition, you mentioned that you would require the Board to sign a document. Could you please send us a copy of that document? We never received a response to the request. To this date, the builder has not provided any information to support that the doors are installed to manufacturer’s instruction as required by a label posted on the door.-Throughout (sic).
5As a result, the issues to be determined at the hearing were:
a. Was there a breach of one or more of the warranties under the ONHWPA?
b. If so, did the appellant suffer monetary damage resulting from a breach or breaches?
c. What is the amount of these damages?
Result
6After reviewing the written submissions and documentary evidence presented by the parties, and the applicable law, I conclude the appellant has, on a balance of probabilities, failed to meet their onus with respect to each item. I confirm Tarion’s denial of all their claims.
The Law
a. The Applicable Statutory Warranty Regime
7Under s. 13(1) of the ONHWPA, every vendor of a residential building warrants to the owner that, among other requirements, the building is constructed in a workmanlike manner, is free from defects in material, is free of major structural defects, is fit for habitation and is constructed in accordance with the Ontario Building Code (OBC or Code), and such other warranties as prescribed by the regulations.
8Under s. 13(4), the warranties apply for a one-year period unless otherwise prescribed.
9According to s. 13(2), 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 ONHWPA.
10Sections 14 and 15 of Regulation 892 under the ONHWPA describe the more limited warranties available during the two-year warranty period including water penetration, electrical and plumbing defects, exterior cladding and OBC violations. As it relates to this proceeding, ss. 15(2)(b) and (d) of the Regulation 892 are relevant and state the vendor warrants to the owner that:
(b) the electrical, plumbing and heating delivery and distribution systems are free from defects in material and work, and
(d) the home is free from violations of the OBC affecting health and safety, including but not limited to fire safety, insulation, air and vapour barriers, ventilation, heating and structural adequacy.
11As defined in s. 1 of Regulation 892, a claim for a major structural defect has a seven-year warranty period.
12As described below, inter alia, Tarion is required to determine by conciliation whether alleged defects are covered by a warranty and, consequently, s. 14(13) of the ONHWPA requires Tarion to give a written notice of its decision to the owner along with its reasons.
i. Where the Owner is a Condominium Corporation
13For the purposes of the warranty plan, s. 15(a) of the ONHWPA states the condominium corporation is deemed to be the owner of the common elements in the corporation and, pursuant to s. 15(d), that the warranties on the common elements take effect on the date of the condominium’s registration of the declaration and description in accordance with the Condominium Act, 1998.
14“Common elements” is defined under s. 1 of the ONHWPA to mean “all condominium property except the condominium units”.
15Section 44(1) of the Condominium Act, 1998 requires the condominium corporation’s board of directors to retain a professional engineer or an architect to conduct a performance audit of the common elements on behalf of the corporation and, pursuant to s. 44(9), file the audit with Tarion and the corporation’s board of directors by the end of the 11th month following registration of the declaration. Further, the filing of the report is deemed by s. 44(10) to constitute notice of a claim to Tarion for deficiencies found during the audit.
16Additionally, the condominium corporation is entitled to submit one or more first-year forms to Tarion to make claims regarding defects found during the first year following the date of registration of the declaration.
17Section 5.5(3) states that the vendor of the condominium has until the end of an 18-month period after registration date to resolve or repair items identified in either the audit or first-year forms submitted by the corporation. If steps are not taken by the vendor, then pursuant to s. 5.5(4), the corporation can request conciliation by Tarion, after which, under s. 5.5(6), the vendor is given an additional 90 days to resolve or repair the items raised. Should the issues still not be resolved, s. 5.5(7) requires Tarion to conduct a conciliation to determine whether the items in question are in fact covered by a warranty under the ONHWPA.
18Section 5.6(1) of Regulation 892 states that a corporation can also submit a second-year form with respect to claims during the second year period. Following the filing of the form, s. 5.6(3) gives the vendor six months from the second-year anniversary date to resolve the issues or make repairs. Again, if the issues have not been resolved, s. 5.6(4) allows the corporation to contact Tarion for a conciliation to determine whether the items are covered by warranty.
b. Compensation for Breach of Warranty
19Section 14(3) of the ONHWPA provides that an owner is entitled to compensation from Tarion if the owner has a cause of action against the vendor for damages resulting from a breach of the vendor’s warranty.
20That said, s. 14(12) of the ONHWPA provides that Tarion may perform or arrange for the performance of any work in lieu of or in mitigation of damages that are claimed.
c. Powers of Tribunal on Appeal
21If the owner disagrees with a Tarion decision that the defect is not covered by the warranty, then the owner may appeal the decision to the Licence Appeal Tribunal (“Tribunal”) for a hearing, pursuant to s. 14(14). The Tribunal owes no deference to Tarion’s denial decision. 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 ONHWPA and its regulations; and
(b) for the purposes of the order, substitute its opinion for that of Tarion.
22The ONHWPA is consumer protection legislation and should be given a broad and liberal interpretation.
23The onus is on the appellant to prove, on a balance of probabilities, that an alleged defect in the building constitutes a breach of a warranty, that damages have resulted from the breach and the monetary amount of those damages.
Factual Background
24As outlined above, the ONHWPA has three claim periods: a first-year claim for any warrantable item, a second-year claim for major systems such as electrical and plumbing as well as water penetration, and a seven-year claim for a major structural defect. The appellant claims several alleged defects. Some were identified within the first year, some were identified during the second year, and some were not identified until after the appellant had had repairs done on them. Tarion and Kingston Road submit that many of these claims were made out of time, they were denied their right to inspect and repair and, as a result, the claims cannot succeed. In light of those submissions, I will set out the important warranty commencement and claim dates.
25The appellant’s date of declaration and description was September 26, 2016. Accordingly, the warranties on the common elements in the building took effect on that date.
26On March 9, 2017, a first-year performance audit went to the owners of the condominium for input. On June 16, 2017, a draft of the audit was submitted to the appellant’s board of directors for review.
27On July 10, 2017, the performance audit was submitted to Tarion. The appellant did not submit any other first-year forms during the first-year period.
28On July 10, 2017, Tarion provided Builder Bulletin 49 to the appellant. This Bulletin outlined the steps that a condominium corporation must take to submit a warranty claim for common elements, as well as the responsibilities of the builder and Tarion with respect to resolving warranty issues, together with the attendant time periods attached to those responsibilities. Of note, the condominium is encouraged to contact and work with the builder to resolve warranty items. If a dispute arises between the condominium corporation and the builder, then Tarion becomes involved after the lapse of specific time periods. The claims process can be modified if there are special circumstances, such as emergencies. In an emergency, the condominium corporation should contact the builder first and follow their instructions. The builder is allowed up to 24 hours to rectify the emergency problem. If the attempt to contact the builder is unsuccessful or if the builder does not successfully resolve the emergency within 24 hours, then the condominium corporation may contact Tarion for further direction. If that too is unsuccessful and the condominium corporation believes it is a warranted emergency then the condominium corporation may perform or arrange for the performance of repairs necessary to correct the warranted emergency, without jeopardizing its warranty rights.
29The one-year warranty on the common elements expired on September 26, 2017.
30On November 30, 2017, a meeting was held between the appellant, Tarion and representatives of the vendor. During the discussions, the appellant raised concerns about several items including hot water boiler failures, a manual hot water return-to-service after power outages, concern about the electrical design, emergency power generator concerns, and a lack of security to the main building from the garage.
31Over the next several months, there was correspondence between the parties but no concrete progress toward resolution with respect to the issues raised by the appellant.
32On February 20, 2018, a Builder Bulletin No. 19R Final Report with respect to the building was submitted to Tarion by the vendor. The appellant was not provided with a copy of this report until August 27, 2019, during a pre-conciliation meeting.
33On September 4, 2018, a draft of the second-year audit was submitted to the appellant’s board of directors for input. The final draft was submitted to Tarion on September 21, 2018. There were no additional warranty forms submitted by the appellant during the second year.
34On September 26, 2018, the two-year warranty coverage expired. Between September 2018 and issuing of the Decision Letter, there were ongoing discussions and correspondence between the parties, relating not only to the issues at the center of this appeal but also other areas of concern to the appellant.
35After the filing of the appeal by the appellant, in November 2021, the appellant contracted the services of a fire and building safety consultancy company which wrote a report on December 8, 2021, and a further report on February 18, 2022.
36It is of some note that during the first- and second-year audits, the performance auditor did not identify any of the contested items as deficiencies, rather all the items were included as a “management reported item”. While not determinative of the issues before me, it was one of the factors considered by me taken when reviewing and deciding each item that formed part of the appeal.
Issue (i): Item 357 – Missing security fobs from garage entrances to the building.
37In outlining the features and finishes for safety and security of the appellant’s building, Schedule B of the Agreement of Purchase and Sale (APS) from the vendor stated:
Key fob-controlled access system at all main building points and parking garage.
38Presently, security fobs are installed at the parking garage entrance and at the front and back doors. There are no security fobs from the garage to the interior of the building. There are six doors from the garage into the stairwells and elevator lobbies, none of which have a key fob access system. The appellant’s position is that this is contrary to the APS and leads to insufficient security of the building.
39The appellant likened the situation to the “common practice of homes having a lock on the door from the garage to the main building”. As a result of the concern about this issue, the appellant hired a company to conduct a security assessment of the building, in which they recommended the installation of key fob-controlled access system from the parking garage to the stairs and elevator.
40Tarion and Kingston Road submitted that the garage entrance, which does have key fob security, is a main entrance and is covered by the APS. Further, they submitted that it is up to the building’s residents to ensure that non-residents do not follow them into the garage.
41Tarion and Kingston Road argued the appellant failed to provide any evidence that there is a requirement for the fobs in either the OBC, the approved design and drawings for the building, or an industry standard requiring them.
42I find the wording of the APS with respect to the fob-controlled access ambiguous at best. Given the wording of the APS, it is not unreasonable for the appellant (or any of the unit owners) to have concluded that there would be secure access to the elevators and stairs from the garage. This position is supported by correspondence from a vendor’s representative with respect to the issue where the writer stated, “We can understand why the residents would want this feature, and how they may be confused by the wording in the APS”.
43However, whatever sympathy I may have for the appellant’s position, my jurisdiction is limited to deciding whether there has been a breach of a statutory warranty under the ONHWPA. I agree with Tarion and Kingston Road that there is no evidence before me that key fob-controlled access from the garage to the residential part of the building is a requirement under the OBC, or that there is an industry standard requiring them or that they were part of the approved design and drawings for the building. When reviewing the evidence before me, together with section 13 (1) of the ONHWPA and section 15 of Regulation 892, I cannot conclude there is evidence of a breach of a statutory warranty.
44I find the appellant has not met its onus on the balance of probabilities with respect to Item 357 and I accordingly dismiss the appeal for this item.
Issues (ii) and (iii): Items 396 and 397 - water stains on ceiling tiles showing leakage to First Floor and Mezzanine
45Given the similarities of the issues, I will deal with items 396 and 397 together.
46The appellant argues that damage from water stains on the ceiling tiles on both the first floor and the mezzanine was caused by condensation from a cold-water pipe. The appellant acknowledges that such damage is covered by the first-year warranty and that their claim was not made until the second-year performance audit. However, the appellant is seeking an extension of the period, pursuant to section 5.10(b)(ii) of Regulation 892, as they believe their situation involves “extraordinary circumstances”.
47Section 5.10(b)(ii) states:
The Corporation may (emphasis added) in its sole discretion, extend, or abridge any time specified in sections 4.1 to 4.6, 5.1, 5.2, 5.5 to 5.7 and 5.9 if it determined that, …
(b) the warranty claim, …
(ii) involves other extraordinary circumstances.
48Neither the ONHWPA nor Regulation 892 define “extraordinary circumstances.”
49I find the word “may” indicates that extending the time to file a claim is discretionary. Given the remedial consumer protection nature of the legislation, I conclude the discretion to extend the time limit in s. 5.10 should be exercised broadly. However, the determination regarding whether an extension should be granted based on extraordinary circumstances is contextual and fact specific. Further, the burden is on the appellant to prove on a balance of probabilities that an extension ought to be given to claim items covered by the first-year warranty.
50The basis of the appellant’s extension request is that the appellant mistakenly believed the first-year audit was to be completed between the sixth and tenth month after registration; therefore, they submitted their performance audit on July 10, 2017, before the completion of a full season of hot and humid weather when the damaging condensation can occur. As a result, the appellant argued it would not have been possible to have this item identified in the first-year performance audit.
51The appellant did not provide evidence as to what led to this mistaken belief. The appellant submitted that this oversight meets the criteria of “extraordinary circumstances” as contemplated by Regulation 892. Relying on an estimate received to repair the damaged areas, the appellant is seeking compensation in the amount of $3,979.68, for the insulation of the pipes and replacement of tiles.
52Tarion submitted items 396 and 397 should not be assessed under the one-year warranty for three reasons:
a. neither Tarion nor the Tribunal has the discretion to extend the warranty period;
b. there are no extraordinary circumstances; and
c. the appellant could have submitted additional warranty claims, over and above the first-year audit, before September 26, 2017 and failed to do so.
53I agree with Tarion’s position with respect to their second and third argument and therefore find no need to consider their first argument.
54In support of its position that the time should be extended because of extraordinary circumstances, the appellant referred me to 11500 v. Tarion Warranty Corporation, 2019 CanLII 25783 (ON LAT), where a conciliation deadline has been missed by the appellant, a condominium corporation, and an extension ordered by the Tribunal.
55With respect, I did not find that decision of assistance. The facts of that case revealed a plethora of events that contributed to the missed deadline, including miscommunication between the appellant’s property manager and the engineering firm retained to conduct the performance audit, ongoing construction issues, particular personal and work-related circumstances of the property manager, an unresponsive board of directors, and a lack of proper recordkeeping by the previous property manager. Additionally, the request for an extension was received within weeks after the deadline has passed.
56In contrast, as noted earlier, the appellant did not provide evidence as to what led to its mistaken belief about the deadline to submit its claim. In the absence of evidence that might show extraordinary circumstances, I cannot find any.
57Further, I agree with Tarion that the appellant had the opportunity before September 26, 2017 to submit warranty claims in addition to the first-year audit; however, it did not do so. In fact, unlike the decision referred to me, in the current case before me, the appellant did not file a claim with respect to items 396 and 397 until it filed its second-year claim.
58Assuming without deciding that I have jurisdiction under s. 5.10 to extend the time to submit the claim, I find that the appellant has not met its onus on a balance of probabilities to justify such an extension. I therefore dismiss the appeal with respect to items 396 and 397.
Issue (iv) - Item 424: Emergency power generator does not switch off automatically after August power outage or after September monthly test.
59The appellant submitted that Kingston Road was responsible for providing a fully operational emergency power generator that “meets its functional performance to both start when demanded and switch off upon restoration of power to the building.” Although the appellant asserts that Kingston Road is obligated to provide a generator that switches off automatically, in its submissions it does not ask for damages in this regard but only for reimbursement of the cost of the repairs which totalled $1,423.80.
60The appellant alleged that during the warranty period, specifically in August and September 2017, the generator failed to switch off once power was restored to the building. The appellant said this failure resulted in “unnecessary noise, consumption of fuel and unnecessary wear and tear on the unit.”
61All parties raised the issue of whether Kingston Road was required to provide an emergency power generator that automatically switches off when power is restored to the building.
62The appellant submitted that it was “unreasonable to expect an unqualified and untrained resident to manually turn off a complex, large and operating generator.” Tarion and Kingston Road submitted that there was no evidence before me that Kingston Road was required to provide a generator that switches off automatically when power is restored. I agree.
63Additionally, a review of the service notes on the invoice from Total Power (the company called by the appellant to look at the generator and the same company used by the builder for the installation) indicated that the service person “showed the customer if power goes out what to do, by putting the switch in auto and after power returns, put switch in off position after 7 minutes of power returns.” I conclude from this note that all that is required to turn off the generator is to manually return the switch to the “off” position.
64The appellant called Total Power after the power outage in August, 2017, to determine the cause of the transfer issues. The contractor identified the cause of the generator not transferring power as a “defective fire pump transfer switch that had to be replaced.” The repairs were completed on September 15, 2017, before the second-year audit.
65The appellant did not contact Kingston Road prior to having the work completed by an outside party nor was there any evidence as to why they did not contact Kingston Road to attend to the issue. On this point, Tarion argued the appellant disentitled itself from warranty coverage because it failed to give Kingston Road an opportunity to assess and resolve the item.
66The appellant’s argument on this issue, both in its initial submissions and in reply, is confusing at best. It asserts the repair was not an “emergency” (which may have allowed them to seek outside assistance if they had been unable to contact Kingston Road) but rather the repair was an “urgent condition” and as a result Tarion “should accept the troubleshooting and repair performed by the qualified contractor.” However, it provides no basis for this assertion.
67I agree with Tarion that where an owner fails to permit the vendor the opportunity to remedy the owner’s concerns, thereby effectively denying Tarion the opportunity to mitigate damages claimed, the owner has disentitled itself from warranty coverage under the ONHWPA. In the absence of an emergency of what the appellant believes to be a warranted item, as outlined in Builder Bulletin 49, ss. 5.5(3) and 5.6(3) of Regulation 892 create an obligation for the vendor to address the owner’s concerns for the first- and second-year claim periods within the prescribed times; I find that there is a corresponding obligation on the owner to notify the vendor. Further, s. 14(12) of the ONHWPA provides that Tarion has the option to perform or arrange for performance of any work in lieu of or in mitigation of damages claimed.
68I also adopt the reasons of the adjudicator in 8232 v. Tarion Warranty Corporation, 2013 CanLII 83569 (ON LAT):
17It has been stated many times that the Act is consumer protection legislation. It should be given a broad and liberal interpretation consistent with its objectives, but such an expansive approach cannot become the basis to ignore the clear wording of the Act and regulations or to expand the statutory scheme beyond its intended purpose….
18While the Act creates homeowners’ rights, it also creates obligations. Similarly, while the Act imposes obligations on vendors, it gives them rights. A homeowner has the right to have a home constructed to certain minimum standards. The corresponding obligation is that claims must be made within certain time frames and the vendor must be given an opportunity to remedy any defects. The vendor has the obligation to remedy warranted defects but has as well, the right to inspect the alleged defect and agree or disagree with the homeowner about warranty coverage. If the vendor agrees that a defect is warranted, it has the right to carry out the repairs within a set timeframe.
19Tarion also has rights and obligations under the legislation. Tarion has an obligation to conduct a conciliation inspection in response to homeowner complaints made in a timely manner. When the vendor fails to carry out the required remedial work, Tarion has an obligation to enter into settlement discussions with the homeowners and either arrange for remedial work to be carried out or pay a cash settlement. Central to the remediation scheme is Tarion’s right to inspect and determine the scope of work necessary for the repair…
23The difficulty for the Applicants with respect to the windows is that they chose to completely ignore their obligations and chose to deny both the Added Parties and Tarion their rights.
69I find the appellant has not met its onus on the balance of probabilities with respect to Item 424, and I accordingly dismiss the appeal for this item.
Issue (v): Item 425 – Surge protection devices lacking in the Beach area, leading to hot water boiler failure.
70I agree with Tarion that the appellant, in its submissions, attempted to expand its claim as it relates to electrical issues. Item 425 refers to concerns about the lack of surge protection devices. However, in its submissions, the appellant seeks $2,200.62 compensation for “make up air units in November 2017, resulting from the unit being incorrectly wired” and $1,605.45 for service calls related to “urgent responses to address immediate issues related to the elevator.” The jurisdiction of the Tribunal on appeals under the ONHWPA is limited to items raised in the Decision Letter, therefore I am not able to adjudicate on these two concerns. Even if my jurisdiction was not so limited, I agree with Tarion that there was no evidence before me that these two issues arose from a lack of surge protection.
71With respect to the issue of surge protection, the appellant is requesting compensation in the amount of $5,746.83 for the “failure of the controllers of both domestic hot water boilers resulting in the building being out of hot water for 6 days.”
72The issues with respect to the electrical issue were brought to the vendor’s attention on November 30, 2017, after the appellant had sought out its own contractor.
73Unfortunately, the appellant again faces the issue of its failure to notify Kingston Road about this issue prior to contacting an outside contractor to repair the work. The appellant’s materials include the outside contractor’s invoice for the claimed amount, which indicated the work was done between October 6-10, 2017. The appellant’s materials also included copies of emails between the appellant and the outside contractor. There was no evidence that the appellant contacted Kingston Road to investigate or repair, which is the appellant’s obligation under Regulation 892 and the ONHWPA, before it hired the outside contractor to provide the service and repair. Nor was there evidence or submission that this item fell within the emergency provisions in Builder Bulletin 49. I repeat my adoption of the reasons in 8232 v. Tarion, cited above.
74By its actions, the appellant ignored its obligations under the ONHWPA and denied Tarion and the vendor their rights.
75I find the appellant has not met its onus on the balance of probabilities with respect to Item 425. I accordingly dismiss the appeal in respect of this item.
Issue (vi): Item 433 – Recirculation pump for the hot water boilers requiring a manual start of the pump after a power outage
76The appellant is requesting compensation of $3,693.76 for costs associated with having to reset the hot water system “during a time its (sic) did not meet its functional performance,” and the installation of an automatic recirculation pump switch. It submits that the pump installed by Kingston Road should have started automatically after a power outage. The appellant relies on the Builder Bulletin 19R definition of “deficiency”1 to support its position that the manual reset did not meet its functional performance and that, as a result of the “deficiency”, there is the potential for a claim under the warranty provision of the ONHWPA.
77The appellant also asserted that not having hot water on multiple occasions means that the building is not in a fit living condition and that automation switches are “common practice” and “standard.”
78Tarion and Kingston Road both argued there is no evidence before me that an automatic switch is required under the Ontario Building Code. I agree.
79However, once again, the appellant’s main difficulty in its request for damages is the failure to follow the process that is set out with respect to making warranty claims under the ONHWPA. The appellant did not contact the vendor before engaging an outside party to address its concern with respect to the recirculation pump. I agree with Tarion that Kingston Road was not given an opportunity to investigate or repair as the issue was only reported on the second-year audit after the service calls and switch replacement had been completed. I find this failure to report prior to repair disentitled the appellant from warranty compensation.
80I find the appellant has not met its onus on the balance of probabilities with respect to Item 433. I accordingly dismiss the appeal in respect of this item.
Issue (vii): Item 423 – Builder’s proposed modifications to unit doors, failure to provide requested details including OBC compliance
81The appellant’s position is that despite repeated requests for confirmation that the installation of bolts on the unit doors met OBC requirements, neither Tarion nor Kingston Road have provided information that satisfies the appellant’s concerns. Tarion and Kingston Road both submit that while there is no onus on the vendor to prove safety compliance, the vendor has provided the appellant with the information about the door, hardware manufacturer and installation as requested.
82The appellant is seeking compensation of $183,307.75 for “the procurement and installation of the doors and associated hardware for 39 units to ensure the required fire protection.”
83Given the circumstances surrounding this item, it is necessary to review the timelines and correspondence between the parties from December, 2017, up to and including February 19, 2022.
84In December 2017, after the building was occupied by the owners, Kingston Road determined that there was a need to repair the door closure mechanism due to the attachment issue on some of the unit doors.
85On April 5, 2018, the appellant sent an email to the vendor’s representative seeking validation that installing bolts in each door was the correct solution and that the “door will be to code.” It requested from the vendor, the manufacturer, model of the door, whether parts are included, what company installed the doors and installation instructions if available.
86On April 9, 2018, the vendor’s representative emailed the appellant advising that Tarion had informed the vendor that “the builder has the right to proceed with the repair that they believe is appropriate”. The representative asked that a letter be sent to each owner saying access to their unit would be necessary.
87On November 7, 2018, the appellant received a copy of an email thread that had previously been sent in March 2018, to the vendor. The email from “Malcolm” appeared to be speaking about the fire rating for the doors on the appellant’s units. In response to an inquiry about the doors, “Malcolm” wrote: “I can tell you that 45, 60 and 90 fire rated doors were tested with no closer reinforcing causing the closers to have to be thru-bolted to the door. With the 20-minute doors there is same (sic) and bolted closers on the doors, do not void the fire rating. Thru-bolted closers to a door is very common and has been done this way for years”.
88The appellant was not satisfied with the response with respect to the door issue and requested conciliation with Tarion. During the conciliation, the appellant indicated it needed to be provided with assurance through a letter from a fire safety engineer or the manufacturer of the door that the modification made by the vendor did not reduce the fire rating of the door. The appellant indicated it was not satisfied with the credentials of “Malcolm.”
89The appellant raised concerns that a plate inside the door stated that supplied hardware needed to be used and the vendor had never verified that the hardware used was the supplied hardware. The appellant asserted that although promised, the vendor never verified the door rating had not changed because of the modification. The appellant opined this information was important as the standard for fire doors required steel hardware be used “since non-ferrous metal becomes ‘elastic’ at much lower temperatures, which could allow serious dislocation of the door during a fire.”
90It was the appellant’s position that the vendor must obtain confirmation that the fire rating of the door/hardware is still valid after the modification as it is the one who had the information on the door supplier, the hardware supplied by the manufacturer and the design modification and is therefore able to pursue the impact of the door modification, and then provide that information to the appellant.
91On October 6, 2021, the appellant again emailed the vendor’s representative, asking for the manufacturer and model number of the unit doors, the same for the hardware installed on the doors, and the installation instructions.
92On October 27, 2021, counsel for the vendor responded to the appellant’s email. In the email, counsel advised the requested details had previously been sent to the appellant; however, counsel provided email links which detailed “the door and installation hardware manufacturer, model and all applicable technical data, including warranty and installation instructions.”
93As the appellant was not satisfied with the information it had been provided with respect to the doors, in November 2021, it contracted with Jensen Hughes, a fire and safety consulting firm to conduct a site visit. I reviewed the resume of Samantha Awad, the consultant from Jensen Hughes, and am satisfied she is an expert in the field of fire and building safety.
94The visit was conducted on November 17, 2021, and a report prepared on December 8, 2021. The report noted that modifications to several unit doors resulted in two holes within each door. Further, that “suite entry doors are a fire and safety element and require a 20-minute fire protection rating in accordance with the Ontario Fire Code.”
95The report indicated they had no information on whether the modifications were completed by certified personnel. Additionally, there was no information on why the modifications were needed. The report concluded: “However, it is our opinion that based on the fact that there are additional holes (compared to original condition), it appears that the integrity of the doors are (sic) compromised. Unless modifications were completed correctly by certified personnel, it is our opinion that the fire-protection rating of the modified suite entry doors (containing holes) is compromised.”
96At a case conference on November 2, 2021, the vendor agreed to provide the door model and make best efforts to provide information with respect to the types of hinges and closures installed.
97Another case conference was held on January 10, 2022. During the case conference, Tarion advised that if the vendor could not provide the necessary manufacturer’s information about modifications made, Tarion would hire a consultant to assess. Nothing before me indicated that Tarion took this step.
98On January 28, 2022, counsel for the vendor forwarded an email to the appellant and Tarion attaching a letter from D8 Doors and Hardware Inc. and an Intertek Testing Services Report for the company. Subsequent to receiving this email, the appellant re-engaged Jensen Hughes to review the material provided by the vendor.
99In a consequential February 2022 report, the author advised they now had information on why the modifications had been made and did not appear to take issue with the reasoning behind the modifications.
100Further the author was satisfied that D8 Doors and Hardware, who did the modifications, were “a certified machiner and installer of fire doors” as of the date of Intertek’s correspondence of August 11, 2021. The author of the report was concerned, however, that there was no information on whether they were certified at the time the doors were installed in 2018. Further, the door manufacturer, Masonite International Corporation, advised the author of the report they did not have a list of contractors authorized to perform modifications on their doors.
101The report concluded that based on their information, D8 Doors and Hardware Inc. was not authorized to perform field modifications on the doors in question and that further documentation is required to prove the authorization status.
102The summary of the second report was: “our office was not provided with sufficient information to confirm that D8 Doors and Hardware Inc. was certified in 2017 to complete modifications on Masonite 20-minute fire doors.”
103Critically, for the purposes of my decision, the author of the report did not include in the summary that the suite entry doors were compromised, as they did in their first report, which was completed before they had reviewed additional information.
104Relying on the Divisional Court’s decision in Cecilio v Tarion, [2007] O.J. No. 1692, the appellant submitted that, contrary to the usual case where the onus would be on the appellant, in this case, as the vendor did the modification and the subject matter of the allegation lies particularly within the vendor’s knowledge, the onus to prove compliance with the Ontario Fire Code falls to the vendor. The appellant relied on paragraph 20 of the Cecilio decision to support this submission:
a) The onus is on the party who asserts a proposition, usually the plaintiff; and
b) That where the required subject matter lies particularly within the knowledge of one party, that party may be required to prove it.
105While on the face of it this is an interesting argument, a closer look at the facts behind the Cecilio decision reveals it is significantly different from the case at hand.
106In Cecilio, one of the matters complained of was that the appellant heard too much noise from his neighbours. The evidence before the Tribunal was that the “builder chose not to build the wall in the fashion described in the Code as acoustically sufficient and it is not unfair to require it to prove that the method adopted has in fact accomplished the necessary result,” (emphasis added).
107In the present case, there is no evidence before me that the vendor intentionally proceeded to install the doors in a manner contrary to the Code, thereby potentially shifting the onus to the vendor to prove compliance. I find the onus of proof remains with the appellant.
108I understand the appellant’s initial concerns about the changes made to the suite doors to address the problem of their closure. This is not just an aesthetic issue but one involving the potential for injury or death. It is puzzling to me that neither the vendor nor Tarion arranged for the preparation of an expert report to satisfy the appellant’s concerns, but rather the vendor gave disclosure of the requested information in a piecemeal fashion, mainly through emails.
109However, as a result of that information and the expert report prepared by the appellant, I agree with Tarion and the vendor that the concerns about the fire rating is speculative and not based on any testing or analysis of the doors.
110I find the appellant has not met its onus on a balance of probabilities with respect to Item 423. I accordingly dismiss the appeal in respect of this item.
Other issues: Builder Bulletin 19R Items
111In its submissions, the appellant raised the issue of risks and deficiencies that were identified in the Builder Bulletin 19R Final Report, which was not provided to the appellant until August 13, 2019 although it was dated March 27, 2018.
112The appellant did not make a claim for Builder Bulletin 19R items and therefore such concerns were not addressed in the Decision Letter that is the subject matter of this appeal.
113Although the appellant identified Builder Bulletin 19R items as an issue in this appeal, the jurisdiction of the Tribunal is limited to items for which Tarion made a decision in respect of a claim for compensation on the ONHWPA. As such I have no jurisdiction to address concerns with respect to the Builder Bulletin 19R items.
ORDER
114Having considered the evidence and the submissions of the parties, I order Tarion to deny the appellant’s claims as set out in the decision letter dated June 11, 2021.
115I received submissions from the appellant with respect to costs. Tarion and Kingston Road did not, but they may make submissions with respect to costs within 30 days after the release of my decision.
LICENCE APPEAL TRIBUNAL
Katherine Livingstone, Member
Released: August 29, 2022