Marlon Robinson v. Tarion Warranty Corporation, 2023 CanLII 119812

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:

Marlon Robinson

Appellant

-and-

Tarion Warranty Corporation

Respondent

-and-

Tiffany Park Homes (Richview) Limited

Added Party

DECISION

Adjudicator: Katherine Livingstone, Member

Appearances:

For the Appellant: self-represented

For the Respondent: C. Chan, Counsel

For the Added Party M. Klaiman, Counsel

Heard by Videoconferencing on October 16,19 and 20, 2023.

Introduction

1Under the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31 (the “Act”), every builder of a home warrants to the owner, that, among other requirements, the home is constructed in a workmanlike manner, is free from defects in material and is constructed in accordance with the Ontario Building Code. 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 Act.

2When a homeowner makes a claim under the Act, Tarion Warranty Corporation, (“Tarion”) is obligated to decide whether the alleged defect(s) is covered by the warranty. Claims made by the homeowner must be made within legislated time limits that begin after the owner receives a certificate of completion from the builder.

3Should the homeowner disagree with a Tarion decision that concludes the defect is not covered by the warranty, they may appeal the decision to the Tribunal for a hearing.

4The 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.

Overview

5The appellant, Marlon Robinson, owns a residential home and appeals a Decision Letter dated April 20, 2023 (“Decision Letter”) issued by the respondent Tarion, which denied his claim for compensation relating to alleged defects in the appellant’s home, under the Act.

6The added party, Tiffany Park Homes (Richview) Limited (“Tiffany Park”), is the vendor of the home and is responsible for the warranties on the property.

7The appellant took possession of the home on December 18, 2018. Over the course of the next four years the appellant complained to both Tarion and Tiffany Park about what he alleged were extremely cold areas in the kitchen floor and mudroom areas.

8Steps were taken by the Tarion and Tiffany Park to address the issue in both areas; however, the appellant felt these steps were insufficient and that additional steps were required to rectify his concerns.

Issues

9The issues to be decided are:

a) Was there a warrantable defect in the home?

b) If there was a warrantable defect, has the appellant suffered damages and if so, what is the quantum of damage?

Result

10After hearing and considering the evidence presented by the parties, their submissions and the applicable law, I conclude the appellant has, on the balance of probabilities, failed to meet his onus and I direct Tarion not to pay the appellant’s warranty claim, pursuant to s. 14(19) of the Act.

Analysis

i) Was there a warrantable defect in the home?

11I find there was no warrantable defect in the home.

12The appellant, while acknowledging work was done in the affected areas to address his concern about a lack of warmth, testified he did not believe the work completed fully addressed the issue and that both the kitchen and the entry way mudroom areas remained, for him, unacceptably cold. He felt part of the reason for the cold was inadequate insulation.

13He was critical of the testing that was done as the remediation work was completed, saying the test was done in the warmer months and should have been done in December when it was colder outside. He submitted that post repair temperatures should have been documented. Additionally, he testified the testing should not have been done concurrently with the repairs but rather afterwards to confirm the success of the work.

14The appellant said he wanted the areas in question to “perform so it doesn’t affect my heating and gas bill” and wanted it to “perform within reason”.

15Importantly, the appellant agreed with counsel for Tarion and Tiffany Park that he had not had an expert tell him there was still leakage in the mudroom or the kitchen or that there was inadequate insulation, although he had been told by Tarion that if he did get his own expert, Tarion would consider their opinion. Additionally, he had not consulted with an expert as to what the temperature should be in the areas of concern. The appellant testified he did not want the responsibility of finding a contractor but rather wanted someone from the builder to fix the issues.

16He also agreed that, as he was not satisfied with the work that was done with respect to the drywall, he had not allowed employees from Tiffany Park back into his residence to finish the touch up painting. Tarion representative, Cheryl Stipic, testified about the claim process initiated by the appellant. Due to the refusal of the appellant to have Tiffany Park come to his residence to finish the remaining painting and finishing work, although not required to do so, Tarion offered the appellant compensation in the amount of $1,397,95 to complete this work. The appellant refused the offer and the matter proceeded to hearing.

17In reviewing the plethora of emails from the appellant to Tarion and Tiffany Park, together with his evidence, it is clear the appellant believed and still believes some areas of his home are too cold for his comfort level. However, his belief, without more, such as the evidence of an expert, is insufficient to allow me to conclude there has been a breach of warranty.

18There was, however, expert evidence called by Tarion, which detailed the steps taken by the respondents to investigate and remediate the areas of concern raised by the appellant.

19Gordon Cooke has been a professional engineer since 1986 and is president of an engineering company that specializes in ventilation and heating. One of the tenets of their business is assisting home builders with respect to the appropriate heating methods in homes in accordance with the Ontario Building Code (“the Code”). After hearing Mr. Cooke’s education and experience, I qualified him as an expert in building science with an emphasis on heating distribution.

20Mr. Cooke testified the lower entry mudroom area had different heat loss characteristics from other spaces in the house as the area was more exposed than other areas and had the added heat loss of two exterior doors. As well, as it is at the lowest level of a four-level home and warm air rises, any warm air delivered to this area will rise to the upper levels. As a result the Code does not require a specific temperature requirement in that area, unlike other areas in a home which require a temperature maintenance of 22 degrees Celsius on the coldest days.

21Mr. Cooke explained the process undertaken by him and his staff to determine if there were deficiencies in the heating of the appellant’s kitchen floor and mudroom. Investigations including an air leaking analysis were done in December of 2021. This testing led Mr. Cooke to conclude there was air leakage in the mudroom area, due primarily to the air barrier system not performing as intended by the Code. Additionally, he concluded the kitchen floor by the cabinets was colder than expected because of excess air leakage behind the kitchen cabinets.

22Based on Mr. Cooke’s report, in March of 2022, repairs were undertaken by Tiffany Park, including the installation of new foam insulation in the kitchen under the cabinets and in the walls of the mudroom, as well around the HVAC return air and supply air ducts and grilles.

23Retesting done by Mr. Cooke’s company in May 2022, concluded:

“In our opinion, our visual observations and subjective assessment of air leakage within the home depressurized during the May 3rd visit, indicate the primary barrier discontinuities of the entry way noted in the original Tarion report have been corrected and now meet the expectation of the Ontario Building Code”.

As the deficiencies identified have been confirmed to meet the requirements as set out in the Ontario Building Code, the air leakage concerns are considered to be resolved.”

24In his cross-examination the appellant took issue with Mr. Cooke using a “subjective assessment”. However, it must be noted that this “subjective assessment” was undertaken by an expert with many years experience in the specific field of heat distribution.

25I found Mr. Cooke’s evidence to be credible and reliable. He has a depth of experience and presented his evidence in a clear and forthright manner. There was no expert evidence called which questioned the validity of Mr. Cooke’s methods or conclusions. I accept the conclusions he reached in their entirety.

26As previously noted, the onus is on the appellant to prove on a balance of probabilities that there was a warrantable defect in the home. After reviewing all the evidence I am satisfied the appellant has not met his onus and I deny his claim.

27As there is no warrantable defect, I am not required to consider whether the appellant has suffered any damages or their quantum.

ORDER

28Pursuant to s. 14(19) of the Act, I direct Tarion not to pay the appellant’s claim.