Licence Appeal Tribunal File Number: 14365/ONHWPA

In the matter of an appeal from a Decision Letter of Tarion Warranty Corporation under the Ontario New Home Warranties Plan Act, R.S.O. 1990, O.31 (the “Act”), to deny warranty claims.

Between:

Mei-Po Cheung

Appellant

and

Tarion Warranty Corporation

Respondent

DECISION

VICE-CHAIR:

Colin Osterberg

In Writing:

For the Appellant:

Mei-Po Cheung, self-represented

For the Respondent: For Potential Added Party

Ted Weredynski, Paralegal Fabio Bertucci, representative Rocco Russo and Ryan Petrovski, Counsel

OVERVIEW

1Mei-Po Cheung (the “appellant”) appeals from a decision of the Tarion Warranty Corporation (“Tarion”) dated September 20, 2022, denying her warranty claims with respect to a home built by Poetry Living Inc. (“PLI”), the potential added party, for certain items.

2The Tribunal file was closed on December 5, 2022, following a case conference at which the parties and PLI advised the Tribunal that they had settled the issues in dispute.

3The appellant now seeks reconsideration of the Tribunal order closing the file. Tarion and PLI argue that the issues in the appeal are settled, and the Tribunal should not reopen its file.

ISSUES

4The issues in dispute are:

i. whether the Tribunal has the jurisdiction to determine whether a settlement is enforceable;

ii. whether the parties entered into an enforceable agreement to settle the appellant’s warranty claim; and

iii. whether the Tribunal should re-open the appeal.

RESULT

5I find that the Tribunal has jurisdiction to enforce a settlement.

6I find that the parties agreed to settle the appellant’s warranty claim and the settlement agreement is enforceable.

7I find that the Tribunal should not re-open the appeal.

ANALYSIS

The Tribunal has jurisdiction to enforce a settlement

8I find the Tribunal has jurisdiction to enforce a settlement.

9In Riggs Estate v. Intact Insurance Company, 2019 ONSC 6846 (“Riggs Estate v. Intact”) the Superior Court held that the enforceability of the settlement between the parties falls within the exclusive jurisdiction of the Tribunal. It based this conclusion on the Court of Appeal decision in Stegenga v. Economical Insurance Company, 2019 ONCA 615, which found that the Insurance Act constituted a complete code for the resolution of disputes in respect of an insured person’s entitlement to Statutory Accident Benefits.

10Similarly, under the Act, disputes between an owner and Tarion are within the jurisdiction of the Tribunal and that includes the jurisdiction to enforce settlements between an owner and Tarion with respect to entitlement to warranty claims provided for in the Act.

The parties entered into an enforceable settlement

11The evidence presented satisfies me that the parties entered into an enforceable settlement agreement.

12An agreement to settle a claim is a contract. To establish the existence of a contract, the parties’ expression of agreement must demonstrate a mutual intention to create a legally binding relationship and contain agreement on all its essential terms.

13In the present case, the respondent says that a settlement agreement was arrived at during the course of a case conference held December 5, 2022. It says the terms of the agreement are as set out in Minutes of Settlement the respondent prepared and provided to the appellant for signature following the case conference.

14The appellant agrees that she agreed to settle the appeal on the terms set out in the Minutes of Settlement prepared by the respondent. However, she says she was compelled to do so by the Tribunal Vice-Chair who conducted the case conference, and that the settlement agreement should not be enforced.

15While I accept that duress can make an agreement unenforceable against a party who is compelled by the duress to enter into it, as the Ontario Court of Appeal stated in Taber v. Paris Boutique & Bridal Inc., 2010, ONCA 157:

[N]ot all pressure…can constitute duress sufficient to carry these legal consequences. It must have two elements: it must be pressure that the law regards as illegitimate; and it must be applied to such a degree as to amount to “a coercion of the will” of the party relying on the concept.

16For the reasons which follow, I am not satisfied that the Vice-Chair did anything at the case conference that amounts to duress.

17The evidence is that on December 8, 2022, in response to Tarion’s request that she sign the Minutes of Settlement, the appellant emailed Tarion’s representative providing her reasons why one of the disputed items ought to be paid by Tarion and why an additional $6,000 should be paid in respect of that item. There was no mention of the appellant being compelled to enter into the settlement at the case conference.

18The allegation that the appellant was compelled to settle at the case conference was raised in her December 9, 2022 and December 16, 2022 emails, as well as her request for reconsideration. The specific allegation is that the Vice-Chair told her she had entered a contract and that there was no way she could breach that contract. She says that this compelled her to settle the claim.

19The appellant’s argument is not persuasive. Her only allegation in this regard is that the Vice-Chair told her that she had already entered into a settlement contract and that she could not break that contract. I do not find that position tenable. It does not make sense to say that the appellant was compelled to enter the settlement agreement by the adjudicator telling her she had already entered into the settlement agreement.

20Moreover, the appellant has not provided evidence as to how the statement of the Vice-Chair compelled her to enter into the settlement. The appellant has not said that she was intimidated by the Vice-Chair or that any threats were made. She has not suggested that she did not understand the settlement agreement. She was told that she could be represented at the case conference and elected to attend on her own. She simply says that the Vice-Chair told her she had made a contract and could not breach that contract. In my view, that does not amount to duress and does not render the agreement unenforceable.

21I am satisfied that the parties entered into a settlement agreement and that the terms of that agreement are accurately set out in the unsigned Minutes of Settlement prepared by the representative of Tarion. I find that the settlement agreement is enforceable.

Should the Tribunal re-open its file

22Section 23 of the Statutory Powers Procedure Act, provides that a tribunal may make such orders or give such directions as it considers proper to prevent abuse of its processes. Had I found that the settlement was not enforceable on the basis of duress then it may have been an abuse of the Tribunal’s process to refuse the appellant’s request to reopen. However, I made no such finding and am not satisfied that there has been such abuse in the present circumstances.

23This motion was framed as a request for reconsideration under Rule 18 of the Common Rules of Practice and Procedure of the Tribunal. The respondent takes the position that Rule 18 applies only to decisions made by the Tribunal and not settlements reached at a case conference.

24Arguably, by stating in the Case Conference Report and Order that “the Tribunal’s file is now closed” the Vice-Chair was effectively issuing an order that the file be closed. Rule 18.4(b)(ii) provides that the Tribunal may confirm, vary, or cancel the decision or order being reconsidered. Rule 18.5 provides that Rule 18 applies to any request for reconsideration of a decision or order issued on or after February 7, 2019.

25Assuming that the Vice-Chair’s order that the Tribunal’s file be closed is an order that finally disposes of the appeal, the Tribunal may reconsider that decision under Rule 18. However, I find that the appellant has not established that the grounds for reconsideration as set out in Rule 18.2 have been met in this case. These grounds are limited to the following:

(a) The Tribunal acted outside its jurisdiction or violated the rules 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;

(c) The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or

(d) 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.

26In this case, the Tribunal ordered that its file be closed because the parties advised that the appeal was settled. I have found that the parties did enter into an enforceable settlement agreement. I find that none of the grounds listed in Rule 18.2 apply to the present circumstances and the appellant’s request for reconsideration is denied.

Conclusion

27I find that the parties entered into a binding and enforceable settlement agreement with respect to all claims that are the subject of this appeal. I find that the settlement is enforceable. I am not satisfied that the appellant has demonstrated that the Tribunal’s order closing the file should be reconsidered.

ORDER

28For the above reasons, the appellant’s request that the Tribunal reopen her appeal is denied.