Shahrzad Mobasher Fard v. Tarion Warranty Corporation, 2023 CanLII 113746

RECONSIDERATION DECISION

Before: Avril A. Farlam

Licence Appeal Tribunal File Number: 14789, 14798, and 14799 ONHWPA

Case Name: Shahrzad Mobasher Fard v. Tarion Warranty Corporation

Written Submissions by:

For the Appellant: Shahrzad Mobasher Fard, Self-Represented

For the Respondent: Catherine Longo, Counsel

OVERVIEW

1On September 13, 2023, the appellant requested reconsideration of the Tribunal’s decision dated August 24, 2023 (“decision”).

2In the decision I found that the appellant is not entitled to receive payment out of the guarantee fund for a delay in occupancy of the units under s. 14(5.0.3) of the Act and awarded no costs to the appellant.

3For reconsideration of decisions released on or after August 21, 2023, the grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal Rules, 2023 (“Rules”). To grant a request for reconsideration, the Tribunal must be satisfied that one or more of the following criteria are met:

a) The Tribunal acted outside its jurisdiction or committed a material breach 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; or

c) 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.

4The appellant asks for reconsideration under Rule 18.2(b) of the Rules. The appellant submitted with her reconsideration request three letters, specifically, a letter dated February 16, 2023 from a lawyer addressed to the respondent, a letter dated February 15, 2023 from Amexon Property Development Corporation (“Amexon”) to the respondent and a letter dated February 15, 2023 from Sigmund Soudack & Associates Inc. consulting structural engineers, to Amexon (the “new evidence”).

5The respondent submits that the appellant has failed to establish 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 and asks that the appellant’s request for reconsideration be denied. The respondent also submits that the letters sent in by the appellant with her reconsideration request constitutes new evidence which should not be considered.

6The appellant does not specify what reconsideration outcome she is requesting under Rule 18.4. However, the only outcomes provided for in Rule 18.4 favourable to the appellant are that the decision be varied, cancelled or a rehearing ordered. As a result, I have taken the appellant’s reconsideration request as meaning she is seeking these outcomes.

RESULT

7The appellant’s request for reconsideration is dismissed.

PROCEDURAL ISSUE – Should the Appellant’s New Evidence be Considered?

8I have considered the “new evidence” submitted by the appellant out of an abundance of fairness given that she is self-represented.

9Two of the three letters submitted by the appellant with her reconsideration request, specifically the February 15, 2023 letter from Amexon to the respondent and the February 15, 2023 letter from Sigmund Soudack & Associates Inc. consulting structural engineers to Amexon are not new evidence and were filed as exhibits at the hearing. These two letters concern the roof assembly date which was specifically considered and addressed in the decision as set out in paragraphs 24, 29, 30, 31, 42, 43, 44 and 45. The appellant’s roof assembly date submissions were found not to be persuasive for the reasons set out in these paragraphs of the decision.

10The February 16, 2023 from a lawyer addressed to the respondent was not part of the evidence before me at the hearing. This “new evidence” does not meet the test in Rule 18.2(c) of the Rules and does not support the appellant’s reconsideration request for the following reasons:

a. Both parties agreed on the evidence to be submitted at the hearing. The parties filed three joint books of documents. The appellant cannot now resile from the agreement she made with the respondent about what documents would be introduced as evidence at the hearing.

b. The letter existed prior to the July, 2023 hearing and the appellant could have obtained it previously. The appellant failed to put the letter forward as a proposed exhibit at the hearing.

c. The letter is from a lawyer writing to the respondent prior to the hearing. It appears from the content of the letter that the lawyer is writing on behalf of Amexon. This lawyer did not attend the hearing and was not called as a witness at the hearing by the appellant. Amexon was not a party to or a witness at the hearing.

d. Even if this letter had been before me when rendering my decision, it would not likely have affected the result. The letter references the appellant’s three condominium units giving rise to this appeal. The letter contains arguments why the appellant has no claim regarding her condominium units and concludes: “We respectfully request that Tarion dismiss any purported further claim the homeowners have raised. There is no basis for any claim, as Amexon has clearly complied with all sections of the Addendum.” The arguments in this letter do not support the appellant’s position at the hearing or on this reconsideration. Instead, the letter is consistent with the decision.

ANALYSIS

11The test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision, or with the weight assigned to the evidence. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.

There is no Error of Law or Fact Such that the Tribunal Would Likely Have Reached a Different Result had the Error not been Made

12I find the appellant has not established that any error of law or fact was made in the decision such that the Tribunal would likely have reached a different result had the error not been made.

13The appellant submits that the decision should have turned on clause D under section 1 of the Tarion Addendum for various reasons, not clause C and repeats submissions she made at the hearing regarding her view of the importance of the roof assembly date. The appellant made submissions on this issue at the hearing and her submissions and the evidence relating to them was fairly and fully considered.

14It is clear from the decision that the “Tarion Addendum” was considered in its entirety in reaching the decision. Section 1(d) and s. 1(c), and the appellant’s submissions on their interpretation, are referred to in paragraphs 29, 30, 31, 33. The decision on their interpretation is set out in paragraphs 40, 45, 46 and 47.

15Regarding the roof assembly date, again, the roof assembly date considered in the decision as set out in paragraphs 24, 29, 30, 31, 42, 43, 44 and 45 and found not to be persuasive for the reasons set out.

16A reconsideration is a limited, error correcting exercise. It is not an appeal nor an opportunity to re-argue a case.

17As a result, I find the appellant has not established that any error of law or fact was made in the decision, let alone an error that if not made, the Tribunal would likely have reached a different result.

CONCLUSION & ORDER

18I find that the appellant has not established her grounds for reconsideration. The grounds for reconsideration of a Tribunal decision are limited, specific and their purpose is to correct errors. In order to succeed on a reconsideration request, at least one of the grounds must be proven. Because the appellant has requested reconsideration, the onus is on her to establish her grounds and she has failed to do so. The appellant’s reconsideration submissions are in effect an attempt to reargue her case in a new way.

19Dissatisfaction with the decision is not a ground of reconsideration. The Tribunal has long recognized that a reconsideration is not an opportunity to reargue one’s case¹, nor is it a hearing de novo or an appeal².

20For the reasons noted above, I dismiss the appellant’s request for reconsideration of my decision.

Avril A. Farlam Vice-Chair Tribunals Ontario – Licence Appeal Tribunal

Footnotes

1. 1N.D. v. Aviva Insurance Company, 2021 CanLII 64232; N.R. v. Unifund Assurance Company, 2020 CanLII 101753; Gore v.Rusk, 2022 ONSC 2893 at para. 50 (Div. Ct).
2. 2Warren v. Licence Appeal Tribunal, 2022 ONSC 3741 at para. 22 (Div. Ct.).