Monique C. Genard v. Tarion Warranty Corporation, 2024 CanLII 115376

Licence Appeal Tribunal File Number: 15683/ONHWPA

In the matter of an appeal from a decision of Tarion Warranty Corporation under the Ontario New Home Warranties Plan Act, R.S.O. 1990, c.O.31 to deny a claim for compensation.

Between:

Monique C. Genard

Appellant

and

Tarion Warranty Corporation

Respondent

DECISION AND ORDER

Adjudicator: Rebecca Hines, Member

Representatives:

For the Appellant: Joan White, Appellant’s Representative

For the Respondent: Cindy Zhou, Counsel

Court Reporter: Elizabeth Pilbrow, Veritext Court Reporting

Heard: By videoconference on November 4 and 5, 2024

OVERVIEW

1Monique Genard (the “appellant”) appeals a Decision letter issued by Tarion Warranty Corporation (the “respondent”) on January 19, 2024, which denies her claim for compensation that exceeds the statutory maximum allowed under the Ontario New Home Warranties Plan Act (the “Act”).

2The appeal took place over a five-day videoconference hearing which was scheduled from November 4 to 8, 2024, but which was completed on November 4 and 5, 2024.

ISSUE IN DISPUTE

3The Tribunal was asked to decide the following issue:

(i) Whether the appellant has proven on a balance of probabilities that she should receive compensation on warranted items outlined in the respondent’s decision letter dated January 19, 2024, in an amount that exceeded the statutory maximum under the Act?

RESULT

4The appellant has not proven on a balance of probabilities that she should receive compensation in an amount that exceeded the statutory maximum under the Act.

BACKGROUND

5On October 25, 2024, the appellant filed a request seeking to adjourn the videoconference hearing due to illness and because she required more time to gather supporting documents. The respondent consented to the request.

6On October 28, 2024, Vice Chair Todd issued an order denying the appellant’s adjournment request because the appellant did not provide any evidence in support of the request, the reasons for the adjournment were vague, and the file was 244 days old since the appellant filed her appeal.

7Prior to the commencement of the hearing on November 4, 2024, the appellant emailed the Tribunal, indicating that she was withdrawing her appeal. Shortly afterwards the Tribunal was notified that the appellant changed her mind and wanted to proceed with the hearing. At the commencement of the hearing, the appellant made a second adjournment request, citing health reasons and a lack of financial funds, which interfered with her ability to properly prepare for the hearing. The respondent consented to the request. I issued an oral order at the event denying the applicant’s adjournment request, and stood the matter down until November 5, 2024, to provide the appellant with an opportunity to prepare and present her case. On the same date, I issued an order outlining my reasons for denying the adjournment.

8Prior to the commencement of the hearing on November 5, 2024, the appellant emailed the Tribunal advising that she was not attending the hearing and was not withdrawing her appeal. The appellant sent a follow up email indicating that her attendance at the hearing would not make a difference because of her colour and lack of funds.

ANALYSIS

9The appellant has not met her onus in proving on a balance of probabilities that she should receive compensation in an amount that exceeded the statutory maximum under the Act.

10Rule 3.7 of the Licence Appeal Tribunal Rules (“Rules”) requires a party to attend a hearing. Further, if an unforeseen event prevents a party from attending the hearing, they must notify the Tribunal prior to the start time of the hearing. I note that the appellant did not notify the Tribunal of any unforeseen event that prevented her from attending the hearing.

11Rule 3.7.1 provides that if a party, who has been given notice of a hearing in accordance with the Statutory Powers and Procedures Act, does not attend their hearing within 30 minutes of the scheduled start time as stated in the hearing notice, the Tribunal may a) proceed with the hearing in the absence of that party; and/or b) make any order it considers appropriate in the circumstances. In determining whether to proceed with the hearing in the absence of a non-attending party, the Tribunal will consider the reasons for the non-attendance.

12I find the appellant received proper notice of the hearing because the Tribunal sent the parties a Notice of Videoconference Hearing on May 29, 2024, which was more than five months before the scheduled hearing date. The appellant was aware of the hearing because she requested an adjournment shortly prior. Further, at the commencement of the hearing I provided the parties with my oral order denying the appellant’s second adjournment request and instructed both parties to attend the hearing the following day. Further, emails from the appellant to the Tribunal confirmed that she was aware that the hearing was proceeding, would not be attending, and was not withdrawing her appeal. I conclude that the appellant was aware that the hearing was proceeding and chose not to attend. After waiting for 30 minutes for the appellant to join the hearing, the hearing proceeded in the appellant’s absence.

13The respondent submits that the appeal should be dismissed because the appellant chose not to attend the hearing despite being aware that it was proceeding. The respondent argues that it is the appellant’s onus to prove her case and she has not provided any evidence or submissions in support of her appeal. Consequently, her appeal is unable to succeed as no evidence is before me to challenge why Tarion’s decision letter should be overturned.

14The respondent requests an order from the Tribunal finding that the appellant has not met her onus in proving that she should receive compensation in an amount that exceeds the statutory maximum under the Act.

15I agree with the respondent and find that the appellant has not met their onus in proving that they are entitled to the relief sought as she did not file any evidence or make any submissions in support of the appeal. As a result, I am unable to make a decision in the appellant’s favour.

16For these reasons, I find the appellant has not met her onus in proving on a balance of probabilities that she should receive compensation in an amount that exceeds the statutory maximum under the Act.

ORDER

17The appellant has not proven on a balance of probabilities that she should receive compensation in an amount that exceeds the statutory maximum under the Act.

18The Tribunal orders that Tarion shall deny the appellant’s claim for additional compensation in accordance with the Decision letter dated January 19, 2024.