Toronto Standard Condominium Corporation No. 2736 o/a TSCC 2736 - YCCONDOS v. Tarion Warranty Corporation, 2025 CanLII 102197

Licence Appeal Tribunal File Number: 15976/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:

Toronto Standard Condominium Corporation No. 2736 o/a TSCC 2736 - YCCONDOS

Appellant

and

Tarion Warranty Corporation

Respondent

and

454 Yonge GP Inc.

Added Party

DECISION AND ORDER

ADJUDICATOR: Jeffery Campbell, Vice-Chair

APPEARANCES:

For the Appellant:

For the Respondent: Cindy Zhou, Counsel

For the Added Party: Michael Doyle, Counsel

Heard in writing

OVERVIEW

1Toronto Standard Condominium Corporation No. 2736 o/a TSCC 2736 – YCCONDOS (the “appellant”) appeals a Decision Letter issued by the Tarion Warranty Corporation (the “respondent” or “Tarion”) on May 24, 2024, which denies their claim for items listed on their First- and Second-Year Performance Audit under section 14(3) of the Ontario New Home Warranties Plan Act, R.S.O. 1990, c.O.31 (the “Act” or “ONHWPA”). The decision letter denied warranty coverage for 132 listed items with respect to the condominium property located at 7 Grenville Street in Toronto, Ontario (the “property”). After discussions, the parties narrowed the items to be appealed to 59.

2By Order dated August 9, 2024, 454 Yonge GP Inc., the vendor of the property, was added as a party.

3The respondent and the added party provided written submissions, however, the appellant did not. The appellant did provide documents to be relied upon along with various emails to the respondent and/or the added party and the Tribunal. While I will consider the evidence produced by the appellant, I note that the appellant provided very few explanations regarding the significance of its evidence. That being the case, I have considered all of the parties’ evidence and submissions, but only refer to what is necessary to explain my decision.

4The appellant bears the burden/onus of proving their case.

ISSUES

5The Issues to be determined are:

i. Was there a breach of one or more of the warranties under the Act;

ii. If so, did the appellant suffer any monetary damages resulting from the breach or breaches?

iii. If so, what is the amount of those damages?

RESULT

6After reviewing the written submissions and documentary evidence presented by the parties, and the applicable law, I conclude the appellant has, on a balance of probabilities, failed to meet their onus with respect to each item. I confirm Tarion’s denial of all their claims.

THE LAW

a. The Applicable Statutory Warranty Regime

7Under s. 13(1) of the ONHWPA, every vendor of a residential building warrants to the owner that, among other requirements, the building is constructed in a workmanlike manner, is free from defects in material, is free of major structural defects, is fit for habitation and is constructed in accordance with the Ontario Building Code (OBC), and such other warranties as prescribed by the regulations.

8Under s. 13(4), the warranties apply for a one-year period unless otherwise prescribed.

9According to s. 13(2), there are exclusions to coverage. For example, normal wear and tear, shrinkage of materials caused by drying after construction, or damage caused by improper maintenance are not covered under the ONHWPA.

10Sections 14 and 15 of Regulation 892 under the ONHWPA describe the more limited warranties available during the two-year warranty period including water penetration, electrical and plumbing defects, exterior cladding and OBC violations. As it relates to this proceeding, ss. 15(2)(b) and (d) of the Regulation 892 are relevant and state the vendor warrants to the owner that:

(b) the electrical, plumbing and heating delivery and distribution systems are free from defects in material and work, and

(d) the home is free from violations of the OBC affecting health and safety, including but not limited to fire safety, insulation, air and vapour barriers, ventilation, heating and structural adequacy.

11As defined in s. 1 of Regulation 892, a claim for a major structural defect has a seven-year warranty period.

12As described below, among other things, Tarion is required to determine by conciliation whether alleged defects are covered by a warranty and, consequently, s. 14(13) of the ONHWPA requires Tarion to give a written notice of its decision to the owner along with its reasons.

b. Where the Owner is a Condominium Corporation

13For the purposes of the warranty plan, s. 15(a) of the ONHWPA states the condominium corporation is deemed to be the owner of the common elements in the corporation and, pursuant to s. 15(d), that the warranties on the common elements take effect on the date of the condominium’s registration of the declaration and description in accordance with the Condominium Act, 1998.

14“Common elements” is defined under s. 1 of the ONHWPA to mean “all condominium property except the condominium units”.

15Section 44(1) of the Condominium Act, 1998 requires the condominium corporation’s board of directors to retain a professional engineer or an architect to conduct a performance audit of the common elements on behalf of the corporation and, pursuant to s. 44(9), file the audit with Tarion and the corporation’s board of directors by the end of the 11th month following registration of the declaration. Further, the filing of the report is deemed by s. 44(10) to constitute notice of a claim to Tarion for deficiencies found during the audit.

16Additionally, the condominium corporation is entitled to submit one or more first-year forms to Tarion to make claims regarding defects found during the first year following the date of registration of the declaration.

17Section 5.5(3) of Regulation 892 states that the vendor of the condominium has until the end of an 18-month period after registration date to resolve or repair items identified in either the audit or first-year forms submitted by the corporation. If steps are not taken by the vendor, then pursuant to s. 5.5(4), the corporation can request conciliation by Tarion, after which, under s. 5.5(6), the vendor is given an additional 90 days to resolve or repair the items raised. Should the issues still not be resolved, s. 5.5(7) requires Tarion to conduct a conciliation to determine whether the items in question are in fact covered by a warranty under the ONHWPA.

18Section 5.6(1) of Regulation 892 states that a condominium corporation can also submit a second-year form with respect to claims during the second year period. Following the filing of the form, s. 5.6(3) gives the vendor six months from the second-year anniversary date to resolve the issues or make repairs. Again, if the issues have not been resolved, s. 5.6(4) allows the corporation to contact Tarion for a conciliation to determine whether the items are covered by warranty.

c. Compensation for Breach of Warranty

19Section 14(3) of the ONHWPA provides that an owner is entitled to compensation from Tarion if the owner has a cause of action against the vendor for damages resulting from a breach of the vendor’s warranty.

20That said, s. 14(12) of the ONHWPA provides that Tarion may perform or arrange for the performance of any work in lieu of or in mitigation of damages that are claimed.

d. Powers of Tribunal on Appeal

21If the owner disagrees with a Tarion decision that the defect is not covered by the warranty, then the owner may appeal the decision to the Licence Appeal Tribunal (“Tribunal”) for a hearing, pursuant to s. 14(14). The Tribunal owes no deference to Tarion’s denial decision. After holding a hearing, the Tribunal may, pursuant to s. 14(19),

(a) by order, direct Tarion to take the action that the Tribunal considers Tarion ought to take in accordance with ONHWPA and its regulations; and

(b) for the purposes of the order, substitute its opinion for that of Tarion.

22The ONHWPA is consumer protection legislation and should be given a broad and liberal interpretation.

23The onus is on the appellant to prove, on a balance of probabilities, that an alleged defect in the building constitutes a breach of a warranty, that damages have resulted from the breach and the monetary amount of those damages.

ANALYSIS

24At a case conference, conducted on January 16, 2025, the parties narrowed the items to be appealed to 59. For the purpose of this hearing, I will consider the items as categorized in the resulting Case Conference Report and Order dated February 11, 2025.

Generator

25The following are items under the category of Generator:

Item 241: Generator flue exhaust missing drain at base. Location: Exterior – Roof

Item 387: Generator room is not vented to code and therefore load testing can not be done. Location: Interior - General Mechanical

Item 192: Leak at generator muffler is spilling onto air intake filter. Location: Interior - Generator Room

Item 185: Missing combustion air intake for generator. Location: Interior - Generator Room

Item 182: Missing check valve on condensate pump. Location: Interior - Generator Room

Item 180: Cannot complete a generator load test without craning load bank to the generator. The generator is not installed per code. Location: Interior - Generator Room

Item 137: Curb at perimeter of generator room is too low. Should be raised to 150mm. Location: Interior - Generator Room

Item 298: FOR line does not reach generator. Location: Interior - P1 Mechanical Room

26The appellant provided some evidence with respect to the above items. However, some of the evidence was not sufficiently explained as it relates to their claims.

27The appellant provided an invoice in the amount of $26,787.22 for Labour Fee-supply and install new controller. The appellant also provided what appears to be an excerpt from a condo board report noting “it was resolved…All Start Fire Protection Inc. be authorized to supply and replace the generator control board at a total cost of $23,705 plus HST. Motion Carried.”

28The appellant also provided a copy of an email dated February 12, 2022 from Senior Property Manager Peter Tanase to individuals that I can only assume were members of the board of the appellant. In that email, Mr. Tanase stated that the cause of the “Control board is damaged due to water leaking from roof damper.” A second email from Mr. Tanase to a Moise Margarita dated August 24, 2022 noted item # 564 (6.2) of the Second-Year Performance. This email makes reference to “Brown staining on emergency generator” and “Rain water will enter though roof louvers above during high winds”.

29I find that these internal communications to be insufficient in persuading me on a balance of probabilities that the generator control was damaged by leaking roof louvers. The appellant has not provided any third-party reports or affidavit evidence which would assist in coming to that conclusion.

30If the invoice of $26,787.22 relates not to item 192, but one or more of the other items under generator, it is impossible to know without the submissions of the appellant to that effect. In either case, the invoice of $26,787.22 is not payable.

31With respect to the other items claimed under the “Generator” category, I see neither evidence nor damage amounts which tie directly to them. Subsequently, the appellant has failed to establish that items 241, 387, 192, 185, 180, 137 and 298 are warrantable deficiencies or in violation of any industry standard of the OBC. Therefore, all items under this category are denied.

Fire Safety System

32The following are items under the category of Fire Safety System:

Item 789: Management reported various sprinkler heads are painted and not included in the latest fire inspection report. Included in Year 1 Performance Audit. Location: Interior - Suite 523/623

33In the Conciliation Assessment Report dated March 27, 2024, it is noted that an inspection of the sprinkler heads in suite 523/623 were inspected and the “workmanship and materials meet the health and safety requirements of the Ontario Building Code and there is, therefore, no breach of the Two Year Building Code Warranty”. The Conciliation Assessment Report notes that the inspections occurred in May and June 2023.

34The appellant produced a letter dated June 18, 2021 from Mircom Gardia Engineered Systems providing a quote of $33,582.00 for the cost of rectifying sprinkler heads which were painted. However, suite 523/623 was not included in that quote. The final invoices (from April and May 2022) amounted to $40,049.46.

35The respondent submits that the First-Year Performance Audit only identified 3 painted caps, but the appellant unilaterally replaced 800 sprinkler caps in 2022 before it could conduct a conciliation inspection. The respondent submits that the appellant failed to give it, as well as the vendor (the added party), an opportunity to inspect the issue regarding painted sprinkler caps and determine the scope of repair. The respondent submits that the appellant disentitled itself from warranty coverage by unilaterally replacing 800 sprinkler caps without affording the respondent and the vendor the opportunity to inspect.

36I agree with the respondent in this regard. Beyond the issue that the noted suite (523/623) was not mentioned in the invoices, and beyond that the suites that were mentioned in the invoices are not the subject of item 789, the appellant did not provide the respondent the opportunity to inspect the sprinkler caps before they contracted to have the sprinkler caps replaced. I agree with Adjudicator Livingstone in TSCC 2541 v Tarion, 2022 CanLII 81532 where she addresses this issue:

“In the absence of an emergency of what the appellant believes to be a warranted item, as outlined in Builder Bulletin 49, ss. 5.5(3) and 5.6(3) of Regulation 892 create an obligation for the vendor to address the owner’s concerns for the first- and second-year claim periods within the prescribed times, I find that there is a corresponding obligation on the owner to notify the vendor. Further, s. 14(12) of the ONHWPA provides that Tarion has the option to perform or arrange the performance of any work in lieu of or in mitigation of damages claimed,” [para 67]

37It is apparent that the sprinkler heads were replaced prior to the conciliation inspections in 2023. As no opportunity was afforded to the respondent (or to the added party) to inspect the sprinkler caps prior to their replacement, Item 789 is denied.

Item 197: Management reported the fire pump has failed. Location: Interior - Fire Pump

38Regarding item 197, the appellant produced an invoice dated January 13, 2020 from University Plumbing and Heating Ltd. in the amount of $29,295.25 for “University Plumbing, Fire Pump Repair”.

39The respondent submits that the appellant has provided no evidence regarding what caused a fire pump to fail. In reviewing the evidence, I am compelled to agree with the respondent. I find no evidence to assist me in ascertaining whether the failure of the fire pump was due to a defect or for some other unrelated reason. I therefore find that the appellant has failed to prove on the balance of probabilities that the failure of the fire pump was breach of a warranty under the Act. The claim for item 197 is denied.

Item 204: Various deficiencies were noted in the annual fire and life safety inspection. Some are listed below for tracking. See Appendix for full report. Location: Interior - General

40With respect to item 204, the appellant provided no explanation as to what the stated deficiencies are, what caused the deficiencies or what the monetary damage resulted from those deficiencies. Therefore, the appellant has failed to prove on a balance of probabilities that these deficiencies are a breach of a warranty under the Act. The claim for item 204 is denied.

Item 790: Owner reported sprinklers in suite 523/623 are not up to current standards. Further review needed. Location: Interior - Suite 523/623

41I fail to see any evidence produced by the appellant which specifically substantiates that the sprinklers in suite 523/623 are not up to current standards. Having no evidence in that regard, the appellant has failed to establish on a balance of probabilities that the sprinklers in suites 523 and 623 are a warrantable deficiency. Therefore, I find item 790 is denied.

Item 791: Door from 66th floor mechanical room to corridor swings inwards, away from fire exit route. Location: Interior - Mechanical Room - Floor 66

42With respect to item 791, the appellant presented invoices which refer to door servicing and/or replacement of doors within the building. However, only one of these invoices refers to a door on the 66th floor with the note “Need to replace one open button on the 66th floor, which we fixed temporarily”. No mention is made of the door swinging inwards away from the exit route.

43As no further evidence was presented regarding item 791, I find that the appellant has failed to establish on a balance of probabilities that the deficiency claimed item 791 is a breach of the warranties. Item 791 is denied.

South Elevation of the Condo Building

44The following are items under the category of Fire Safety System:

Item 72: Building Maintenance Unit (BMU) overhangs adjacent property air space to the south. Management reports that they are unable to access south elevation for maintenance without owner approval. Location: Exterior - South Elevation

45The respondent submits that the issue regarding the south elevation of the Condo is not covered by the Act, as there is no identified defect in the construction of the condominium’s south elevation. I agree. Without submissions from the appellant, I fail to see any warrantable issue pertaining to this item. Item 72 is denied.

Item: 9: Gutters on adjacent building are over the property line. Location: Exterior - South Elevation

46The respondent submits that item 9 involves a dispute between the appellant and the neighbour to the south. I agree. This is not warrantable under the Act. Item 9 is denied.

Entrance, Elevators, and Cameras

47The following are items under the category of Fire Safety System:

Item 783: Owner of suite 623/523 reported security system does not allow for customers to access commercial 6th floor without concierge from 460 Yonge Street glass door entrance, resulting in loss of business. Customers cannot contact business units directly for access. Location: Interior – Main Entrance / Suite 523/623

48The appellant submitted a letter to the respondent dated March 6, 2025 which stated, “Without installing a password keypad, the building cannot operate businesses on 6th floor. Either customers cannot enter the business floor under guaranteed safety, or the 6th floor business lobby becomes homeless people’s shelter, caused no business unit can open for 4-5 years.”

49The respondent submits that the appellant has presented no evidence that the additional intercom was part of the original design of the condominium building or required under any industry standard or the Ontario Building Code (the “OBC”).

50In its letter to the respondent, the appellant also referenced the Ontario Building Code How to Access Section 3.8.3.3. This section refers to requirements for buildings to have access to occupants and visitors. However, there is no evidence before me that either occupants and visitors are unable to access the building (in particular, the 6th floor) or that the current access constitutes a breach of the warranty of the Act. It appears from the appellant’s letter to the respondent that they wish to have access that requires a specific passcode to enter. However, I do not find that the lack of a passcode entry system is a breach of a warranty in this case. Item 783 is denied.

Item 421: Parking garage entrance should have a security camera. Location: Parking Garage - St. Luke's Lane

Item 432: 7th floor dinning terrace area should have a security camera. Location: Exterior - 7th Floor Terrace

51Items 421 and 432 concern the appellant’s request for reimbursement for the installation of 41 cameras. In a letter to the respondent sent via email dated March 6, 2025, the board of the appellant advised that security cameras were missing from the property, causing a bomb threat in March, 2023 and vandalism in June, 2024. The appellant attached an invoice in the amount of $42,000.00 for the installation of security cameras, although, being the only copy of the email sent, I was unable to open the attachment. The appellant did produce documentation from Galaxy Security Corporation confirming the estimated cost of $42,000.00 for the installation of those cameras.

52The respondent submits that the appellant has presented no evidence that the additional security cameras were part of the original design of the property or were required under any industry standard or the OBC.

53I agree with the respondent. I have no evidence before me to suggest that the security cameras were, indeed, part of the design of the building, nor required otherwise. Without that evidence, the appellant has failed to establish on a balance of probabilities that the omission of security cameras was a breach of the warranty. Also, items 421 and 432 are the claims for 2 security cameras, not 41. As such, items 421 and 432 are denied.

Item 1: Missing metal cage at meters at public street level. Location: Exterior - St. Luke's Lane

Item 8: Missing bollards around building perimeter to guard building exterior. Some cladding damage. Location: Exterior - St. Luke's Lane

54The appellant is requesting reimbursement for a metal cage and bollards for the exterior of the property. The appellant presented invoices ($4,355.02 for the supply and installation of an aluminum fence and door as well as $8,045.60 for the supply and installation of 8 bollards).

55As with the issue of the security cameras, the respondent submits that the appellant has presented no evidence that the metal cage and the bollards were part of the original design of the property or were required under any industry standard or the OBC. I agree, with the respondent. Without evidence to establish that the omission of the metal cage and the bollards were part of the original design, or otherwise required by the OBC or a building standard, I find that items 1 and 8 have not been found to be warrantable deficiencies. Items 1 and 8 are denied.

Pipes

56The following are items under the category of Pipes:

Item 798: Condensation on cooling loop in suspended ceiling at suite 523/623. Location: Interior - Suite 523/623

57The appellant produced 3 photos purportedly showing condensation on pipes in the ceiling of the unit 623.

58The respondent submits that condensation on pipes is not in itself a deficiency. It further submits that the appellant has failed to provide evidence that any underlying cause of condensation was attributable to a builder defect, or in violation of any industry standard of the OBC.

59I agree with the respondent. I see no context of the condensation that persuades me that the condensation is a warrantable deficiency. Item 798 is denied.

Item 799: Owner reported potential leak source at fan coil 3-way valve and intake/return valves at suite 523/623. Other potential sources include pipe leaks from the chiller supply and return lines. Further review needed. Location: Interior - Suite 523/623

60With respect to item 799, the appellant produced 20 photos. These appeared to show piping in the ceilings of units and a common area; piping in the ceiling of a common area; loose piping on the floor and a common area; one photo of a wet hand and one photo of buckets on a floor purportedly catching dripping water. None of these photos were identified with unit 523. The 8 photos identified with unit 523/623 were:

i. 2 photos purportedly showing rusty piping in the ceiling of the unit;

ii. 3 photos of loose piping on the floor; and

61The appellant also produced 3 videos showing water leaking from piping above the ceiling tiles in a unit, although it is not identifiable as to which unit that is.

62The appellant further produced the following invoices regarding unit 523/623:

i. from Atlas group corp. dated July 26, 2022 in the amount of $7,924.24 for “Water mitigation after flood in unit 623 committed by a common element pipe”.

ii. from Nord Electric Inc. dated July 26, 2022 in the amount of $480.25 for “Service call for unit 523/623 for electrical panel flooded by pinhole in common area pipe”.

iii. from Nord Electric Inc. dated August 16, 2022 in the amount of $560.40 for “Breaker repairs for unit 623 due to leak from common area pipe”.

iv. from Brial Mechanical Inc. dated August 18, 2022 in the amount of $9,718.00 for unit 623 for “pipe replacement in unit 623”.

v. from Brial Mechanical Inc. dated September 9, 2022 in the amount of $5,932.50 for unit 623 for “emergency leak repair”.

vi. from Brial Mechanical Inc. dated September 27, 2022 in the amount of $1,751.50 for “insulation replacement pipes in unit 623”.

63It is apparent from both the photos and the invoices that leakage occurred, purportedly in suite 523/623.

64The respondent submits that it was aware of a leak in suite 523/623. It submits that the leak was caused by a defective sealant in Suite 803 and had been previously repaired. The respondent submits that, at the time of the conciliation inspections (May 1 to June 5, 2023), there was no “continuing condition”. This was confirmed in the Affidavit of Daniella Ion, Senior Warranty Representative of Common Elements for the respondent, dated June 27, 2025.

65It is obvious to me from the invoices that the repairs noted in those invoices were performed prior to conciliation inspection. However, without submissions from the appellant regarding the cause of the rusting and the leakage, it is not possible for me to conclude that the appellant has proven on a balance of probabilities that the leakage was the result of a deficiency in construction or that the pipeage did not meet industry standards or the OBC, I therefore do not find that the leakage is a warrantable deficiency under the Act. Item 799 is denied.

Item 710: Missing insulation at N4-5. Location: Interior Parking Garage

Item 253: Poorly soldered joint from brass pipe to copper pipe below sink. Expected to be typical. Location: Interior - Suite 5811

Item 277: Cold water piping hangers should be insulated. Location: Interior - 36th Floor Mechanical Room

66I see no evidence in the appellant’s productions which relate to item 710. 253 or 277. Therefore, as the appellant has not proven on a balance of probabilities that these are warrantable deficiencies, items 710, 253 and 277 are denied.

Item 34: Active leak into 6th floor locker rooms. Location: Interior- Floor 6 Locker Room

67In a letter to the respondent dated March 6, 2025, the appellant advised that “There have been a few cases of block drains on the 5th floor and some units’ laundry drain units 4208 and 5009. It was discover[ed] the construction debri[s] was clogging all the drain pipes”. The appellant also provided various photos showing flooding and one photo of what appears to be chunks of concrete in an individual’s hand. Also provided was an invoice in the amount of $459.47 for 5th floor locker room plumbing repairs. The service date on the invoice was July 17, 2024.

68I do not accept that these photos or the invoice are in relation to item 34 as they relate to blocked drains on the 5th floor and units 4208 and 5009, not of a leak in the 6th floor locker rooms. I see no evidence before me from the appellant that item 34 is a warrantable deficiency. Therefore, item 34 is denied.

Building Maintenance Unit

69The following are items under the category of Building Maintenance Unit:

Item 793: Management reported BMU is not functional. Maintenance contractors have deemed it unsafe to use. Location: Exterior - Main Roof

70In a letter to the respondent and to the Tribunal dated March 6, 2025, the appellant advised that “The BMU (Building Maintenance Unit) has had quality issues many times, causing the condo to require frequent repairs over the past few years. These repairs often cost several thousand dollars each time, and they are always quite expensive.”

71In an email to the respondent and the Tribunal dated March 18, 2025, the appellant stated:

“A proper BMU is necessary for window washing and maintenance and safety of workers working on it.

1.Structural Integrity: Part 4 of the OBC addresses structural design requirements. A malfunctioning BMU could compromise the building’s structural safety, thereby violating these provisions.

2. Occupational Safety: Part 3 of the OBC pertains to safety within buildings. A defective BMU poses risks to maintenance personnel and occupants, potentially breaching these safety standards.

3. Maintenance Obligations: Section 3.1.4.1 of the OBC mandates that building systems be maintained in good working order. A defective BMU would contravene this requirement.”

72The appellant also submitted invoices that appear to relate to maintenance on the BMU.

73The respondent submits that at the conciliation inspection, Tarion observed that the building maintenance unit was functional, and that the appellant has not presented any evidence to the contrary.

74I agree with the respondent. I see no evidence before me that the BMU was not, and is not, functional. Rather, the evidence from the appellant shows the costs of maintenance and repairs, which are to be expected in the ordinary course of operations.

75As the appellant has presented no evidence that the BMU is non-functional, item 793 is denied.

Item 102: Roof swing stage car roof in poor condition with cracks/rust. Location: Exterior - Main Roof Swing stage

76I see no evidence in the appellant’s productions which relate to item 102. Therefore, as the appellant has not proven on a balance of probabilities that the missing insulation was a warrantable deficiency, item 102 is denied.

Boilers

77The following are items under the category of Boilers:

Item 266: Various issues noted with the boilers. Location: Interior - 66th Floor Mechanical Room

78With respect to its claim of a defective boiler burner, in an email to the respondent and the added party dated March 6, 2025, the appellant stated,

“1. Please see attached the invoice of $4848.04 from JCI for repairing the defective boiler burner as stated [in] the invoice below. Tarion needs to pay back to the condo Corp.

2. Edison Engineering indicated this item should be under warranty.”

79I note no evidence was presented from Edison Engineering. I also note that the appellant did not expand on what the defect was to the boiler burner, although the invoice from JCI indicates that it had provided labour and material required to remove defective burners from boilers #1 and #3 and “drop off at boiler representative for warranty inspection. Pick up re meshed burner, and install in boiler #1, start set up and perform combustion analysis. Ensure that boiler #3 is properly isolated.”

80The respondent submits that the boiler burners are consumable components and their replacement is part of owner maintenance, not a builder defect.

81I agree with the respondent. The invoice provided by the appellant appears to indicate that the work performed on the boilers was that of regular maintenance, not work performed pursuant to a defective boiler itself, but to defective burners, which are replaceable. Without further evidence to conclude otherwise, I do not conclude that the defective burners are a defect in construction or materials, nor are they a breach of industry standards or the OBC. As such, item 266 is denied.

Item: 353: 3rd heating boiler, pump does not energize. Location: Interior - General Mechanical

82I see no evidence in the appellant’s productions which relate to item 353. Therefore, as the appellant has not proven on a balance of probabilities that the missing insulation was a warrantable deficiency, item 353 is denied.

Item 806: No exhaust fan near wash station adjacent to boilers. Chemical fumes should be vented to the exterior. Location: Interior - Mechanical Room - Floor 66 (upper)

83I see no evidence in the appellant’s productions which relate to item 806. Therefore, as the appellant has not proven on a balance of probabilities that the missing insulation was a warrantable deficiency, item 806 is denied.

Flooring

84The following item is under the category of Flooring:

Item 169: Many residents report flooring issues. May be related to building movement. Further review required. Location: Interior - General Suites

85The appellant produced various photos of flooring in units which show defects in either materials or workmanship.

86The respondent submits that the complaints regarding the flooring relate to the flooring inside individual units and are not part of the common elements of the property.

87I concur with the respondent. Without further evidence from the appellant that the flooring in question was part of the common elements, the defects are not warrantable under the Act. Item 169 is denied.

Electrical

88The following item is under the category of Electrical:

Item 732: Electrical drawings are not accessible. Location: General

89The appellant presented various photos depicting appliances and in-suite electrical components. However, the appellant did not present any evidence with respect to the item at issue, that is, the inaccessibility of electrical drawings.

90Photos depicting defects in appliances and in-suite electrical components are outside of the claim that has been made by the appellant. I concur with Adjudicator Livingstone in TSCC 2541 V. Tarion CanLII 81532, in which she states:

“I agree with Tarion that the appellant, in its submissions, attempted to expand its claim as it relates to electrical issues…The jurisdiction of the Tribunal on appeals under the ONHWPA is limited to items raised in the Decision Letter, therefore I am not able to adjudicate on these two concerns.” [para 72]

91As any defects in appliances and in-suite electrical components were not issues to be found in the Decision Letter in this matter, they will not be considered.

92As the appellant failed to present any evidence with respect to the inaccessibility of electrical drawings, it has not established on a balance of probabilities that this item is a deficiency, nor outside of industry standards or the OBC. Item 732 is denied.

Parking Garage:

93The following items are under the category of parking garage:

Item 717: Damaged membrane at bottom of entrance ramp and N1-2 Location: Interior - Parking Garage

Item 701: Parking garage entrance ramp should have a waterproofing membrane, not tied in at base. Location: Interior - Parking Garage General

Item 726: Crack in soffit spanning several parking spots. Location: Interior- Parking Garage P4, R53 to R59

94I see no evidence in the appellant’s productions which relate to items 717, 701 or 726. Therefore, as the appellant has not proven on a balance of probabilities that the claimed deficiencies in 717, 701 and 726 are warrantable under the Act, those items are denied.

Doors

95The following item is under the category of parking garage:

Item 827: Management reported automatic door opener near management office on the 6th floor does not operate smoothly. Location: Interior - Floor 6

96In an email to the respondent and the added party, dated March 6, 2025, the appellant included three invoices with respect to door repairs. However, two of the invoices pertain to doors other than the one at issue in item 827, and the third pertains to “automatic door operator at 6th floor elevator”. Without clarification as to whether the 3rd invoice relates to the same door at issue in item 827, the appellant has failed to establish on a balance of probabilities that the deficiency claimed in item 827 is a warrantable defect. With respect to the other two invoices, I again deem these to be out of the jurisdiction of the Tribunal to consider as these issues are not included in the Decision Letter. Item 827 is denied.

Windows

97The following items are under the category of windows:

Item 30: Engineered stamped curtain wall and SSG (structural silicone glazing) shop drawings / as-built drawings are required. Only engineered stamped window wall as-built drawings were provided, which do not include all glazed areas or types. Location: Exterior

Item 31: Positioning of seals and thermal breaks can potentially make this location extra cold in winter, leading to excessive condensation at circled blue area. Some residents report condensation in winter. Location: Exterior - Window Wall System

Item 32: Shop drawings do not show insulation below metal sill flashing on concrete. Risk of condensation. Some residents report condensation in winter. Further review is required. Location: Exterior - Window Wall System

98I see no evidence in the appellant’s productions which relate to items 30, 31 or 32. Therefore, as the appellant has not proven on a balance of probabilities that the claimed deficiencies in 30, 31 and 32 are warrantable under the Act, those items are denied.

Balconies

99The following items are under the category of balconies:

Item 45: Low thread exposure above nuts for balcony guard baseplate bolts. Exposed threads should be deformed. Expected to be typical. Further review required to confirm extent. Noted at Suites 1506, 1512, 2010, 3207, 5110, 5613, 5811. Location: Exterior - Balcony

Item 46: Unprotected metal shims below baseplates on guards and no waterproofing membrane. Metal will corrode. Expected to be typical. Further review required to confirm extent. Noted at Suites 1506, 1512, 2010, 3207, 5110, 5613, 5811. Location: Exterior - Balcony

Item 49: Guard fasteners are not stainless steel at Juliet balcony. Corrosion visible on bolt. Shop drawing SD-01, Juliette Balcony at Sliding Door indicates bolts to be stainless steel. Location: Exterior - Balcony Suite 5613

Item 52: Top surface cracking at balconies. - Suite 5110 at west at corner at building face. - Suite 2010, various locations. - Suite 1506, various locations. - Suite 1512, various locations. - Further review required to confirm extent and severity of balcony cracking. Location: Exterior - Balconies

Item 60: Unwaterproofed balcony slab can lead to moisture bypassing window sub-sill flashing membrane by migrating through shrinkage cracks. Location: Exterior - Balcony Slabs

100I see no evidence in the appellant’s productions which relate to Items 45, 46, 49, 52, or 60. Therefore, as the appellant has not proven on a balance of probabilities that the claimed deficiencies in 45, 46, 49, 52 and 60 are warrantable under the Act, those items are denied.

Miscellaneous

101The following are items under the category of miscellaneous:

Item 15: Exposed pressure plates at ground floor curtain wall above entrance doors. Location: Exterior - Front Entrance

Item 22: Misaligned and shifted cover caps at curtain wall (orange), widespread. Visible at first floor at north elevation. Location: Exterior - All Elevations

Item 23: Foundation wall waterproofing not visible above grade. Location: Exterior - Northwest Corner

Item 25: Air leakage at sliding balcony door. Location: Exterior - Suite 2010

Item 26: Exposed membrane flashing at bypass detail. Observed from 7th floor terrace. Location: Exterior - Northwest Corner

Item 29: Window washing tie-back anchors on building walls are reportedly blocked with concrete or other material. Anchors viewed from balcony of suite 3207. Location: Exterior - All Elevations

Item 91: Irrigation system is not below grade in planters. Location: Exterior - 7th Floor Terrace

Item 239: Refrigerant lines are not properly supported. Location: Exterior - Roof

Item 240: Damaged foam insulation around refrigerant lines should be wrapped in aluminum Location: Exterior - Roof

Item 276: No clean outs at sanitary drain. Location: Interior - 36th Floor Mechanical Room

Item 295: Missing clean outs on sanitary piping, typical. Location: Interior - P1 Mechanical Room

Item 335: Missing clean out on storm piping. Location: Interior - 66th floor Chiller Room

102The appellant presented no evidence with respect to the above items. Therefore, as the appellant has not proven on a balance of probabilities that the claimed deficiencies in 15, 22, 23, 25, 26, 29, 91, 239, 240, 276, 295 and 335 are warrantable under the Act, those items are denied.

Stacked

103The following item is under the category of stacked:

Item 172: Small gap around suite doors. Gaps are needed for corridor air flow into suites. Further investigation required. Location: Interior - Suite Doors

104Under this category the appellant submitted invoices regarding elevator repairs that appear to be unrelated to the issue defined in item 172. The appellant also produced a letter from Laverna Woodcock, Condominium Manager defining the Stack Effect and its relationship to elevators and elevator shafts. Also produced was a letter from Doug (possibly a member of the condominium’s board of directors) advising that the “results of the Stack Effect are the subject of a Violation Order from the Toronto Fire Marshall”.

105The appellant, however, has failed to produce evidence with respect to issue of gaps around suite doors, as is the issue in Item 172.

106I deem the issue of the stack effect and its relationship to elevators and elevator shafts to be outside of the jurisdiction of the Tribunal to consider as these issues are not included in the Decision Letter.

107As the appellant has not produced any evidence with respect to item 172, it has failed to establish on a balance of probabilities that the claimed deficiency in item 172 is warrantable under the Act. Subsequently, item 172 is denied.

ORDER

108Having considered the evidence and the submissions of the parties, I order Tarion to deny the appellant’s claims as set out in the Decision Letter dated May 24, 2024.