Toronto Standard Condominium Corporation No. 2541 v. Tarion Warranty Corporation, 2023 CanLII 17684

Date: 2023-02-24

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

DECISION ON COSTS

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”) issued by the respondent Tarion Warranty Corporation (“Tarion”), which denied its 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. After considering the evidence and the submissions of the parties, I ordered Tarion to deny the appellant’s claims as set out in the Decision Letter.

4In its filed material, the appellant requested costs in the amount of $13,853.80. The request was “based on the ground that Tarion was unreasonable in its interactions during the appeal process dealing with items 236, 237 and 423”. Neither Tarion nor Kingston Road initially made submissions with respect to costs, however in my decision, I advised they could make submissions with respect to costs within 30 days of the release of my decision.

5I subsequently received submissions from both parties. Tarion submitted the request for costs should be denied. Kingston Road sought costs in the amount of $2,500, based on the appellant’s unreasonable conduct during the appeal.

Issues

6The issues to be decided are:

a) Was the conduct of Tarion unreasonable during the proceedings?

b) Was the conduct of the appellant unreasonable during the proceedings?

Result

7After reviewing the written submissions, the relevant caselaw and sections of the Licence Appeal Tribunal, Animal Care Review Board and Fire Safety Commission’s Common Rules of Practice and Procedure, Version I, (October 2, 2017) (the “Rules”), I conclude no order of costs will be made.

Analysis

i) Was the conduct of Tarion unreasonable during the proceedings?

8Rule 19.1 of the Rules allows for a party to request costs where they believe another party in the proceeding has “acted unreasonably, frivolously, vexatiously, or in bad faith”. The word “unreasonably” is to be interpreted in context with the rest of the rule.

9Pursuant to Rule 19.5, in considering whether to order costs, the Tribunal must consider all relevant factors including: “the seriousness of the misconduct, whether the conduct was in breach of a direction or order issued by the Tribunal, whether or not a party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient and effective process: prejudice to the other parties: and the potential impact an order for costs would have on individuals accessing the Tribunal system”. When I consider the definition of “proceeding” in Rule 2.17, which applies to, among other things, Rule 19, I am mindful that the scope of the costs rule is “the entire Tribunal process from the start of an appeal to the time a matter is finally resolved.” In other words, any conduct prior to the appeal starting is outside the scope of Rule 19.

10Pursuant to Rule 19.6, the costs shall not exceed $1000 for each full day of attendance at a motion, case conference or hearing.

11The awarding of costs is not related to success in a case. It is also unrelated to how much a party may have paid to appear before the Tribunal. As noted 8549 v. Tarion Warranty Corporation, 2016 CanLII 106255 (ON LAT), the Tribunal’s costs rules are “quite narrow in nature and should be distinguished from costs in the context of civil proceedings”. The focus at the Tribunal is on the conduct of the parties in the proceeding. Costs are an exceptional remedy and the bar for conduct that attracts award for costs is high.

12The fact one party disagrees with the actions and/or position taking by an opposing party is not a sufficient basis for finding the party’s conduct was unreasonable.

13In their submissions for costs, the appellant argued Tarion did not take a reasonable approach to addressing items 326 and 327 in the decision letter, resulting in the appellant hiring a consultant at a cost of $4,294.00. I note neither of these items were part of the hearing before me, as the items were apparently resolved before the written hearing. I find, therefore, they do not fall within the scope of the Rule relating to costs. Should I be in error in this regard, I find nothing in the appellant’s submission with respect to the actions of Tarion relating to items 326 and 327, that rises to the level of unreasonableness contemplated by the Rules.

14With respect to item 423 in the decision letter, the modification of the unit doors, the appellant is seeking $9,559.80 costs from Tarion, being the cost the appellant incurred to hire an expert in fire rating. This was undertaken after the appeal commenced. The appellant submitted this was an “unnecessary expense” cause by the unreasonable approach of Tarion.

15It was clear from the appellant’s hearing submissions that they were not content with the information provided by Kingston Road regarding the fire rating of the modified doors. As I noted in my decision, I could understand the appellant’s initial concerns as the issue was not simply an aesthetic one but one that involved the potential of injury or death. I was puzzled by the fact neither Tarion nor Kingston Road arranged for an expert report after the appellant initially pointed out their concern, but rather Kingston Road provided information respecting the fire rating of the modified doors in a piecemeal fashion. However, the fact this was not done by either the Tarion or Kingston Road is not relevant to the issue of whether Tarion’s actions during these proceedings were unreasonable.

16The appellant submitted it was required to retain an expert as Kingston Road did not provide the fire rating information in a timely manner. I agree with Tarion’s position that the alleged conduct of Kingston Road should not attract costs consequences for Taron.

17The appellant argued Tarion failed to follow through on a commitment made at the January 10, 2022 case conference, to hire a fire rating expert if Kingston Road could not provide the necessary manufacturer’s information about the modifications, thereby necessitating the appellant to incur the cost of hiring an expert. However, Kingston Road did provide additional information shortly after the case conference, information which Tarion found satisfactory, while the appellant did not.

18I am mindful the onus was on the appellant to prove its warranty claims. In attempting to prove these types of claims, it is not unusual for an appellant to hire an expert, thereby incurring costs. These are the costs the appellant is seeking to recover. However, the limited scope of the costs Rule must be kept in mind. The test is whether Tarion has acted unreasonably in this proceeding. I find nothing in the appellant’s material that satisfies me the actions of Tarion were unreasonable.

19I agree with Tarion’s position that there was no unreasonable conduct on the part of Tarion that requires them to reimburse the appellant for its expert’s costs.

ii) Was the conduct of the appellant unreasonable in the proceedings?

20Kingston Road is seeking $2,500 in costs from the appellant, arguing the appellant’s conduct in the proceeding was unreasonable. They point to what they allege were repeated and unnecessary requests for additional information and the ignoring of evidence by the appellant which resulted in attendances at three case conferences and an unnecessary written hearing.

21While it is true that the proceeding in this matter resulted in a failure by the appellant to prove the claims it alleged, the absence of success does not automatically lead to the conclusion that the actions of the appellant were unreasonable.

22The appellant was self-represented and dealing with issues that were personal to them….their home. It is therefore not unexpected that there may be an emotional context to the appeal, which can result in over exuberance with respect to taking steps to ensure the safety and comfort of that home. While the appellant did pursue the claims with repeated requests of both Tarion and Kingston Road and wasn’t prepared to accept the position of either party, I do not find their actions in this proceeding were unreasonable.

ORDER

23No costs shall be awarded