Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 15668/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 (the "Act") to disallow a warranty claim
Between:
Leah Ormsby and Newton Ormsby Appellants
and
Tarion Warranty Corporation Respondent
and
John Boddy Developments Ltd. Added Party
DECISION AND ORDER
ADJUDICATOR: Geneviève Painchaud, Vice-Chair
APPEARANCES:
For the Appellants: Leah Ormsby, Appellant Newton Ormsby, Appellant
For the Respondent: Ted S. Weredynski, Paralegal
For John Boddy Developments Ltd.: Edward Boddy, President
Heard: By way of written submissions
OVERVIEW
1Leah Ormsby and Newton Ormsby (the appellants) appeal to this Tribunal a decision letter (the "Decision Letter") issued by Tarion Warranty Corporation (the "respondent") dated January 29, 2024, denying a claim they made under section 14(3) of the Act.
2The appellants filed a second-year claim form which was received by the respondent on January 16, 2021, claiming a deficiency regarding 17 items.
ISSUES
3The issues in dispute at the hearing are:
a. Was there a breach of warranty in the 17 items listed in the decision letter? If so, what is the quantum of damages or what other relief are the appellants entitled to?
RESULT
4As the appellants did not provide any submissions or evidence for the written hearing by the deadlines established by the Tribunal, the appellants have failed to meet their burden of proving that the 17 deficiencies outlined in the decision letter are covered under the Act.
5I confirm Tarion's denial of the claim.
6The appeal is dismissed.
EVIDENCE AND ANALYSIS
Proceeding in the Absence of the Appellant's Submissions
7I find that notice was given to the appellants of the written hearing and the disclosure requirements in respect of that hearing and that the appellants failed to participate in the hearing in accordance with the notice. I determined that the hearing should proceed with the written hearing.
8Proceeding with a written hearing where a party fails to participate, under s. 7(2) of the Statutory Powers Procedure Act, RSO 1990, c. S.22 ("SPPA"), requires the Tribunal to be satisfied that the absent party received notice of the written hearing that complies with ss. 6(1) and 6(4) of the SPPA.
9The appellants attended a case conference on April 26, 2024, where John Boddy Developments Ltd. (the "builder") was added as a party. A 3-day videoconference was set for the matter to be heard on July 16, 17 and 18, 2024 with hearing briefs due June 15, 2024.
10A second case conference was held July 17, 2024, with a case conference report and order ("CCRO") dated July 31, 2024, which converted this matter to a written hearing to be heard on October 25, 2024. On consent, the appellants' submissions were now due September 20, 2024, the respondent's and the builder's submission due October 10, 2024 and any reply submissions from the appellants were due October 18, 2024.
11A notice of written hearing ("NoWH") confirming the hearing will be held on October 25, 2024 at 9:30 a.m. was sent to the parties on August 22, 2024. The notice also included provisions that as per Rule 9, if a party fails to comply with any rules, directions or orders with respect to disclosure, that party may not rely on the document or thing as evidence, without the consent of the Tribunal. Also, that the Tribunal may make a decision in their absence and the parties will not be entitled to any further notice in the proceeding.
12On October 4, 2024, the appellants emailed the respondent to ask for an adjournment of this matter pending the outcome of another appeal since the issues were interconnected and it would be more efficient to proceed this way.
13On October 7, 2024, the respondent emailed to the appellants, copying the LAT, asking why they failed to provide written submissions by September 25, 2024, and asking for the specific reason for the adjournment request, including an indication of if this was foreseeable and avoidable. The respondent wrote that the appellants' failure to deliver their submission on time prejudices the respondent and the builder and prevents them from filing their material. It also specified that once the appellants file an adjournment request on the Tribunal form, the respondent will be able to assess the request.
14On October 8, 2024, the builder concurred with the October 7th email from the respondent.
15On October 10, 2024 the respondent and the builder emailed the Tribunal stating they were not in a position to file responding submissions by that day's deadline as they had not received the appellants' submissions nor an explanation.
16I find that the appellants failed to file hearing submissions and evidence in accordance with the timeline established in the CCRO and in the NoWH. While the appellants did unofficially request that the respondent agree to an adjournment, the respondent did not agree and pointed them to the right process to seek such an adjournment which the appellants did not pursue. There is no evidence that the appellants contacted the Tribunal to request an adjournment or any other relief in this matter since the July case conference. I am also satisfied that the appellants received notice for this hearing as required by ss. 6(1) and 6(4) of the SPPA.
17As a result, I ordered that this hearing proceed pursuant to s. 7(2) of the SPPA.
The Appellants have not met their Burden
18The appellants have failed to meet their onus as they did not file written submissions with the Tribunal in accordance with the timelines established by the CCRO and in the NoWH, as noted above, and no request for adjournment has been filed with the Tribunal. Accordingly, they have failed to meet their burden to demonstrate that their claim is warranted under the Act.
19In its communication with the Tribunal, the respondent and the builder stated that they were not in a position to file their responding submissions as there were no submission from the appellants.
20Accordingly, this appeal is dismissed.
ORDER
21For these reasons:
a. As the appellants have failed to provide any submissions, it follows that they have not met their evidentiary burden regarding the issues in dispute.
b. The appeal is dismissed.
LICENCE APPEAL TRIBUNAL
Geneviève Painchaud Vice-Chair
Released: November 20, 2024