Bolhassani and Taghipoor v. Tarion Warranty Corporation, 2024 CanLII 102109

1Farhad Bolhassani (“husband”) and Leyla Taghipoor (“wife”), the appellants, appeal the amount allowed on each of their warranted claims for deposit refund under s. 14(1) of the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31 (the “Act”) and s. 6 (1) of Regulation 892 (the “Regulation”) as set out in in their respective Decision letters dated April 29, 2024 (“Decisions”) issued by Tarion Warranty Corporation (“Tarion”).

2The husband agreed to purchase condominium unit number B6 for $2,304,000.00 and the wife agreed to purchase condominium unit number B8 for $2,304,000.00 in the Vendor’s condominium project at 464-468 Winona Drive, Toronto (the “units”).

3The husband and wife each say that they paid part of their deposits to Diamond Realty Developers Inc. (“Vendor”) for their units in cash. The husband says he paid $105,200.00 in cash. The wife says she paid $113,750.00 in cash.

4In the Decisions, Tarion found that the appellants’ claims were warranted but only to the extent of $62,800.00 for the husband and $58,250.00 for the wife because of lack of proof of the cash payments made by each to the Vendor.

5These appeals concern only whether the husband and wife have established on a balance of probabilities the amount of cash paid to the Vendor.

6The Tribunal ordered that the husband and wife’s appeals be heard together.

PRELIMINARY ISSUE

7At the beginning of the hearing, Tarion submitted that there are issues of credibility to be determined, and its consent to an order that these two appeals be heard together was not intended to be agreement that the two appellants to each be present to hear the other’s testimony if an order excluding witnesses was made at the hearing. Tarion asked for an order that:

a. Each appellant be excluded from the hearing when the other appellant testifies, and

b. The vendor’s witness Pedram Talebzadeh not be present at the hearing except when he is testifying.

8The appellants opposed this request on the basis that each of the appellants are parties, are entitled to be in hearing room given that their two cases are being heard together, and to exclude them would be a miscarriage of justice. Further, the appellants agreed that Mr. Talebzadeh not be present during the opening statements of the parties and given that he would be testifying as the first witness and then leaving the hearing, an order excluding him is not necessary.

9I declined to make the order requested by Tarion. It is not reasonable in my view to exclude the appellants from any part of the hearing given that these two cases have been ordered to be heard together. It is not necessary to make an order excluding Mr. Talebzadeh given that appellants' counsel has indicated he will not be present during the