RECONSIDERATION DECISION

Before:

Rebecca Hines, Adjudicator

Licence Appeal Tribunal File Number:

15002/ONHWPA

Case Name:

Mei-Po Cheung v. Tarion Warranty Corporation and Poetry Living Limited

Written Submissions by:

For the Appellant:

Mei-Po Cheung, Self-represented

For the Respondent:

Danielle Peck, Counsel

For the Added Party: Rocco Ruso, Counsel

Adam Beyhum, Counsel

BACKGROUND

1The appellant is seeking a reconsideration of my decision released on January 25, 2024 (“decision”). In that decision, I determined that the appellant had not met her onus in proving that there was a breach of warranty in the five alleged defects for which the respondent denied compensation for in its Decision Letter dated May 17, 2023, according to s.14(13) of the Ontario New Home Warranties Plan Act (ONHWPA). I also determined that the appellant’s damages flowing from the breach of warranty regarding 22 items was $11,499.07.

2The appellant’s reconsideration request stems from my decision regarding the amount of damages that I determined she was entitled to.

3The grounds for a reconsideration to be allowed are set out in Rule 18.2 of the Licence Appeal Tribunal Rules 2023 (the “Rules”). To grant a request for reconsideration, the Tribunal must be satisfied that one or more of the following criteria are met:

a. the Tribunal acted outside its jurisdiction or committed a material breach 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; or

c. 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.

4In her request for reconsideration, the appellant identifies criterions a. and b. of Rule 18.2 as the basis for the reconsideration request. The appellant requested that my decision be varied and that she be awarded damages in the amount of $67,969.50 or in the alternative $54,111.18.

RESULT

5The appellant’s request for reconsideration is dismissed.

ANALYSIS

6Under Rule 18.2, the threshold for reconsideration is high. Reconsideration is a limited, error-correcting exercise, not a new hearing or an appeal of a hearing decision. The party requesting reconsideration must demonstrate how or why my decision falls into one or more of the criteria set out in Rule 18.2.

7Overall, the appellant’s submissions on this reconsideration request are unclear. However, what is evident is that the appellant disagrees with my decision, and reiterates the same arguments presented in the hearing.

8The respondent and added party submit that the appellant has not met her onus on this reconsideration request in proving that I violated the rules of procedural fairness. They also maintain that I did not make any error of law and/or fact that would have altered the decision. I agree for the following reasons.

No breach of procedural fairness

9The appellant submits that I breached the rules of procedural fairness by disregarding the photos, emails, logs of information and quotes for repairs she relied on in the hearing. Further, she states that the fact that I accepted the respondent’s quote for repairs was a conflict of interest and procedurally unfair. The appellant provided no further explanation for how my acceptance of the respondent’s quote for repairs was a conflict of interest.

10I find that I did not breach the rules of procedural fairness in my determination in this matter. The appellant’s claim that I disregarded all of her evidence is unfounded. In paragraphs [14] to [24] of my decision I provided very detailed reasons where I analyzed the evidence relied upon by the appellant and explained why I did not find it helpful to her case. The appellant has failed to convince me that I breached the rules of procedural fairness in my determination in this matter.

No error in law and/or fact that would result in a different decision

11The following addresses the various arguments made by the appellant that I erred in law and/or fact and my finding in relation to same:

i) It is alleged that I did not properly address her claim regarding the upgraded hardwood floors she paid for in the Agreement of Purchase and Sale. In paragraph [19] of my decision, I indicated that this issue was not included in the respondent’s decision letter and was not properly before me. The appellant has not persuaded me that I made an error in law and/or fact regarding this issue.

ii) It is alleged that I excluded or did not properly apply the Consumer Protection Act and Sale of Goods Act. In paragraph [21] of my decision, I highlight that the appellant’s submissions were not relevant to the Tribunal’s mandate, which is to hold hearings under s. 14(9) of the ONHWPA and order Tarion to take any action deemed necessary. I find I made no error in law by not applying legislation that is outside of this Tribunal’s jurisdiction.

iii) It is alleged that I failed to accurately calculate the damages on numerous items referenced in the Vintage Hardwood Floor report. In paragraph [13] of my decision I stated that it was the appellant’s onus to prove the amount of damages claimed. I determined that the appellant did not meet her onus. Of significance, the appellant failed to prove that the various defects that were covered by warranty required complete replacement versus repair. I see no error of law and/or fact in my decision.

iv) It is alleged that I failed to consider the invoice of Burkes Restoration that was not relied upon by the respondent at the hearing. The appellant failed to articulate in her reconsideration submissions the relevance of this invoice to any issues in dispute or how any failure to consider this evidence would result in a different decision. Further, no evidence or submissions were before me regarding this issue in the initial hearing. Therefore, I conclude that I made no error of law and/or fact by not considering submissions or evidence that was not before me at the hearing.

12For the above-noted reasons, I find the appellant has not satisfied the ground for reconsideration in Rule 18.2(a), in relation to a breach of procedural fairness. Nor do I find that she has proven the ground for reconsideration in Rule 18.2(b), in that she has not directed me to any error in law or fact I made in relation to the decision such that a different decision would likely have resulted. Therefore, I find she has not satisfied the reconsideration criteria in Rule 18.2.

CONCLUSION

13For the reasons noted above, I dismiss the appellant’s request for reconsideration.