Licence Appeal Tribunal File Number: 16877/ONHWPA

Appeal from a Decision of Tarion Warranty Corporation under s.14 of the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31 to Disallow a Claim.

Between:

Nora Rosemond

Appellant

and

Tarion Warranty Corporation

Respondent

DECISION AND ORDER

ADJUDICATOR:

Bernard Trottier

APPEARANCES:

For the Appellant:

Calvin Rosemond, Counsel

For the Respondent: Court Reporter:

Christopher Gallo, Counsel Elizabeth Pilbrow, Veritext Canada

Heard by videoconference: September 22, 23 and 24, 2025

OVERVIEW

1Nora Rosemond (the “appellant”) appeals from the Decision Letter of Tarion Warranty Corporation (the “respondent” or “Tarion”), dated February 21, 2025, issued under the Ontario New Home Warranties Plan Act (the “Act”) denying the appellant’s claims of alleged defects in her new home.

2The parties agree that the appellant purchased a home at 145 Chaplin Crescent, Toronto (the “home”), under an agreement of purchase and sale (“APS”) dated October 21, 2020, made between the appellant and Sierra Inc. (the “builder”). They agree that the appellant completed a Pre-Delivery Inspection Form with the builder before January 11, 2021, and took possession of the home on January 11, 2021.

3The home is approximately 17 feet wide with a flat roof, in a five-townhome development. The appellant’s home is the middle of the five townhomes.

4The appellant submitted a Year-End Form dated January 20, 2022. In addition, the appellant submitted four Second-Year Forms, all dated January 11, 2023.

5The appellant submitted a Notice of Appeal (“NOA”) on March 21, 2025.

ISSUES

6The issues in dispute are as follows:

1. Was there a breach of warranty in one or more of the items in Tarion’s Decision Letter?

2. If so, did the appellant suffer monetary damage resulting from the breach or breaches?

3. Where a breach of warranty occurred and monetary damage resulted, what is the amount of the damages?

RESULT

7The appellant has not proven on a balance of probabilities that there was a breach of warranty in the 14 alleged defects in dispute at the hearing, for which Tarion denied compensation in its Decision Letter, according to the Act and regulations.

PROCEDURAL ISSUES

Appellant’s request to add items to the appeal

8At the hearing, the appellant submitted that Tarion was silent in its Decision Letter on several items that were claimed as warranty breaches in the Second-Year Forms. The appellant submits, further, that she expected a supplemental decision letter from Tarion, between the filing of the NOA and the hearing, which would identify whether further disputed items could be added to the appeal. The appellant argues that Tarion’s silence on these items does not release it from its warranty responsibilities. The applicant requests to add items to the appeal.

9The appellant directed me to an email from Dave Cecatini, Director of Warranty Services with Tarion, from June 18, 2025, indicating that Tarion would be “preparing a supplemental Decision Letter for all remaining items on the case indicated in the original Decision Letter”.

10There were 42 items in the Year-End Form, 21 items in Second-Year Form #1, and one item in each of Second-Year Forms #2, #3 and #4. Tarion’s Decision Letter addressed 42 items regarding the Year-End Form, 16 items regarding Second-Year Form #1, and each of the items in Second-Year Forms #2, #3 and #4.

11Tarion submits that the Tribunal has authority under s. 14 of the Act to hear only appeals from the Decision Letter and the NOA. Tarion argues that the appellant is required to raise its claims for compensation in the NOA, including any claims of items allegedly missing from the Decision Letter. It argues that items cannot be added to an appeal at the hearing.

12In reviewing the email from Mr. Cecatini, I could find no evidence that Tarion would be addressing items not already indicated in the original Decision Letter.

13I agree with Tarion, that the appellant had an opportunity to raise the issue of allegedly unaddressed items in the NOA. She now seeks to add issues to the appeal via an oral motion at the hearing. Under Rule 15.1 of the Licence Appeal Tribunal Rules, 2023 (the “Rules”), a party bringing a motion, such as adding items to an appeal, must file a notice of motion beforehand, using the form provided on the Tribunal’s website. I find that the appellant had the opportunity to raise the issue of allegedly unaddressed items in her NOA, and subsequently via a written motion in the months leading up to the hearing. Under Rule 15.1, I deny the appellant’s motion to add items to the appeal.

Appellant’s request to submit further evidence at the hearing

14The Tribunal held two case conferences for this matter, prior to the hearing. The first case conference was held on May 21, 2025, to discuss, among other items, the exchange of documents prior to the hearing. The Case Conference Report and Order (“CCRO”) ordered that all documents the appellant intends to rely on for the hearing shall be delivered to the respondent and to the Tribunal no later than July 28, 2025.

15A second case conference was held on September 12, 2025, to discuss the number of witnesses and duration of the hearing. The CCRO for this second case conference ordered that all documents not yet exchanged must be filed five days before the hearing, namely by September 17, 2025.

16After the start of the hearing on September 22, 2025, the appellant requested to submit certain documents into evidence, despite the document production deadlines identified in the two CCROs. Under Rule 9.3, a party may not rely on a document as evidence if the party fails to comply with disclosure orders in CCROs. However, also under Rule 9.3, I may admit evidence if I consider it relevant to the proceeding and it does not prejudice either party. Under Rule 9.3, I allowed the following documents into evidence:

1. Email correspondence between the appellant and Mr. Cecatini, referenced above, because Tarion would already be aware of the contents of this correspondence, and there would be no prejudice to Tarion in allowing this into evidence.

2. The second page of a two-page email report from Ash Warsi, technician with Noah Elevator Works Limited (“Noah”), to the builder, dated October 4, 2024. In the appellant’s document brief, only the first page is provided. I find that the parties would benefit from seeing both pages in context. I find that admitting the second page mitigates potential prejudice to either party.

3. The appellant’s copy of the hydraulic residential elevator owner’s manual, published by Federal Elevators (“Federal”), because this would be public information available from the supplier’s website, and it would lie within the knowledge of the other party.

17Under Rule 9.3, I denied the appellant’s request to add a report from a roof inspector, on the third day of the hearing. The appellant had this report in her possession since February 21, 2024. I find that the appellant had the opportunity to submit evidence according to the CCRO production deadlines. I find that the late submission of this report would prejudice the respondent, in that it would not have time to examine the report and to put it to witnesses who had already testified at the hearing.

ANALYSIS

The Statutory Warranty

18Section 13(1)(a) of the Act provides that the vendor of a new home warrants to the owner that the home is constructed in a workmanlike manner and is free from defects in material, is fit for habitation, and is constructed in accordance with the Ontario Building Code (the “OBC”). These warranties apply for one year after the warranty takes effect. An owner is entitled to compensation out of the guarantee fund under s. 14(3) of the Act if the owner has cause of action against the vendor for damages resulting from a breach of the vendor’s warranty.

19The onus is on the appellant to prove on a balance of probabilities that any alleged defect in the construction of her home constitutes a breach of warranty, that she has suffered damages as a result of the breach, and the monetary amount of any such damages pursuant to s. 14(3) of the Act. The Tribunal owes no deference to Tarion’s decision.

20Following a hearing, the Tribunal may, pursuant to s. 14(19) of the Act, order Tarion to take such action as the Tribunal considers Tarion ought to take in accordance with the Act and the regulations, and for such purposes the Tribunal may substitute its opinion for that of Tarion.

Items in dispute for the hearing

21The appeals in this matter concern Tarion’s Decision Letter of February 21, 2025. Of the 42 items from the First-Year Form, 34 were settled or withdrawn, and are no longer in dispute. There were 8 items from the First-Year Form remaining in dispute in the NOA.

22The parties agreed at start of the hearing that Items 2 and 3 from the Year-End Form, related to heating, ventilation and air conditioning (“HVAC”), are no longer in dispute, leaving 6 items in dispute. The parties agreed that the remaining Year-End items in dispute for the hearing are as follows:

Year-End Form (Case 7613870)

Item	Level – Room/Area – Item/Defect Area	Description
1B	Exterior – Roof – Roof Top	Drainage issues, flat roof water buildup
4B	Exterior – Roof	Leak 3rd-floor, south-facing deck
5B	Exterior – Building Face	Right side of metal framing around windows
14	Interior – Appliances – Elevator	Elevator inoperable
25	Interior – Floor 02 – Bedroom Doors	Balcony door does not close from outside
36	Interior – Floor 02 – Bedroom - Ceiling	Heat vent in ceiling - water from 3rd-floor leak

23Of the 19 items from the Second-Year Forms, 9 were settled or withdrawn, leaving 10 items in dispute in the NOA.

24The parties agreed at the start of the hearing that Item 1 from the Second-Year case 8012347 and Item 1 from the Second-Year case 8012371 are no longer in dispute, leaving 8 Second-Year items in dispute. The parties agreed that the remaining Second-Year items in dispute for the hearing are as follows:

Second-Year Form (Case 8012298)

Item	Level – Room/Area – Item/Defect Area	Description
1	Interior – Floor 03 – Bedroom	Water penetration from 3rd-floor balcony leak
4	Interior – Basement	Basement walkout door does not close from outside
8	Interior – Elevator	Elevator not safe or operational, returns to basement
9	Interior – Elevator	Elevator occasionally stops below floor. Frequently returns to basement
13	Interior – Elevator	Adjustment noises from elevator
14	Interior – Basement	Interior door envelope of elevator unfinished, with gaps
17	Interior – Bedroom	Balcony doors cannot be closed from balcony. Screens difficult to remove
18	Exterior – Roof – Building Face	Drainage system flat on top floor. Drains slowly even after cleaning drains

25The remaining 14 items in dispute for the hearing can be grouped as follows:

1. Elevator: Year-End Item 14, and Second-Year Items 8, 9, 13 and 14 (5 items in dispute)

2. Doors/windows: Year-End Item 25, and Second-Year Items 4 and 17 (3 items in dispute)

3. Flat roof and balcony drainage: Year-End Items 1B, 4B and 36, and Second-Year Items 1 and 18 (5 items in dispute)

4. Exterior cladding: Year-End Item 5B (1 item in dispute)

Analysis of Group 1: Elevator

26The appellant has not proven that there was a breach of warranty in respect of the 5 alleged defects for which the respondent denied compensation in its Decision Letter.

27The home has a cantilevered, roped hydraulic elevator serving five floors (B, G, M, 2 and 3). The elevator is supplied by Federal, and it was installed by Lakeview Elevator (“Lakeview”) and dated February 11, 2020. The elevator is suspended overhead by ropes, and it is powered by a hydraulic pump. Floor leveling is controlled by an electromechanical valve. The elevator cab interior is 52 inches wide and 34.5 inches deep. The elevator has horizontal swing hall doors and manual accordion car gates. There is a front door entrance and a rear door entrance, with each accordion door opening on different floors.

28The elevator is controlled by a programmable logic controller (“PLC”) that governs interaction between the elevator’s mechanical systems and OBC-required safety devices, including light beam door detectors, floor levelling detectors and landing door interlocks.

29The appellant submits that the elevator is a central reason they bought the home. The appellant’s husband has arthritis, making stair climbing difficult. The appellant submits that, at the time of the hearing, the elevator was not functioning, and that they want to obtain a functioning elevator without any further intervention from Tarion or the builder.

30The appellant submits that when they moved into the home, the movers were not able to use the elevator. The appellant testified that the elevator has worked occasionally since then, but they continued to experience problems with the elevator as follows:

i. The elevator often does not respond to hall calls or car calls. When there is a malfunction, the elevator returns to the basement level and the appellant needs to call a technician to get the elevator to work again.

ii. The car levels inconsistently at multiple floors, notably at Floor 3.

iii. The elevator sinks below the floor level or to the basement when not in use.

iv. On occasion the hall doors will not unlock.

v. The elevator makes adjustment noise when not is use, including during the night.

31The appellant submits that the elevator was never installed in proper working order. She submits, further, that significant maintenance has been performed on the elevator and that it is chronically dysfunctional. She submits that many technicians have tried to get the elevator to work properly, but that they have been unsuccessful.

32The appellant directed me to the report of Regal Home Elevators Inc. (“Regal”), who inspected the elevator on April 11, 2023. In their report dated April 15, 2023, Regal identified the following defects:

1. Low oil level in the hydraulic reservoir. Additional oil should be added.

2. The rear gate should only open at the B level. It could be opened manually at the G, M, 2 and 3 floors to exposed wall. Elevator should be programmed to allow opening only at B level.

3. There was a rag under one corner of the oil reservoir in the basement, to make it level on the floor.

4. Elevator hoistway (elevator shaft) had considerable construction dust. Full clean recommended.

5. Elevator “pit” at the B level contained construction dust and debris.

6. One end of the reservoir hose in the hoistway was on the pit floor. Should be placed into a container on the pit floor to stop any oil leakage.

33The appellant directed me, further, to an email from Ash Warsi of Noah Elevator Works Limited (“Noah”) to the builder, dated October 4, 2024, that reiterated the problems identified by Regal. It summarized Warsi’s inspections of the elevator on September 30 and October 2, 2024. At that point in his assessment, Warsi indicated that he believed that the problem with the elevator was a misalignment of the light beam door detectors causing a fault condition. He indicated further that follow-up visits would be required to diagnose the problem with floor leveling.

34The appellant submitted that she engaged Apple Elevator Corporation (“Apple”) to inspect the elevator and provide a diagnostic on May 6, 2025. The appellant directed me to Apple’s inspection report, dated June 18, 2025, where the following items were noted:

1. The elevator should have a text display on the front of the PLC in the elevator machine room. The current display reads out illegible information.

2. The elevator went into fault when the Floor 3 hall door opened, and it returned to the basement before shutting down.

3. The elevator sank two inches below the bottom floor via the valve shutting the elevator down.

4. The hydraulic cylinder appeared dry, suggesting there is a problem with the valve.

35In its report, Apple recommends the following:

1. Completely erase the PLC and install new software into PLC with new text display.

2. Provide copy of new PLC software, unlocked and password free, in two backup thumb drives.

3. Replace the hydraulic valve with a new valve.

4. Drill access holes in hoistway doors to allow safe passenger extrication in the event of an emergency.

36The appellant argues that the defects noted by Regal, Noah and Apple are evidence of poor workmanship and/or materials, leading to the elevator being inoperable.

37The appellant requests the remedy of a new 5-stop elevator. To that end, the appellant submitted quotes from two contractors, Savaria Corp. and Cambridge Elevating, to remove the existing Federal elevator, and to supply and install a new elevator. Savaria’s quote, including HST, was $76,840 and Cambridge’s quote was $83,280. In addition, the appellant seeks reimbursement of $3,427.29, for four site visits from elevator technicians, including Peak Elevator ($395.50, on December 1, 2024), 46 Elevator Services Inc. ($1,068.85, on April 10, 2025 and $1,123.22, April 20, 2025), and Apple Elevator ($840.72, on May 6, 2025).

38Tarion submits that the elevator was installed in compliance with the OBC, and functions as expected when maintained by an elevator technician. Tarion submits, further, that Federal, Lakeview, several elevator service specialists, the installation manual and the owner’s manual all recommended that regular, preventive maintenance and adjustments need to be performed for an elevator to function properly. Tarion submits that s. 13(2)(f) of the Act states, specifically, that a new home warranty is excluded in respect of damage resulting from improper maintenance. Tarion argues that the appellant has not, since taking possession of the home, engaged in any preventive maintenance program with an elevator service provider. For these reasons, Tarion argues that the alleged outstanding elevator defects are not warranted.

39The appellant argues that she has not enrolled in a preventive maintenance program with a service provider because the elevator is not functioning properly, and she wants it replaced.

40Tarion directed me to the reports of several elevator specialists who inspected the elevator on dates as follows:

1. April 15, 2023: Regal, engaged by Tarion, and who delivered a report dated April 17, 2023.

2. October 3, 2023: KJA Consultants Inc. (“KJA”), engaged by Tarion, and who delivered a report dated October 25, 2025.

3. December 19, 2023, March 15 and May 3, 2024: Pace Elevator Inc. (“Pace”), engaged by the builder, and who delivered reports dated the same days.

4. August 20, 2024: KJA, who delivered a report dated August 23, 2024.

5. September 16, 2024: Pace, engaged by the builder, who delivered a report the same day.

6. September 30 to November 15, 2024: Noah, engaged by the builder to perform six troubleshooting visits, and who delivered a report dated November 25, 2024.

41Paul Valenti, Manager of Warranty Services with Tarion, testified that certain elevator specialists recommended changes to the elevator that are not OBC requirements for residential elevators, and therefore Tarion has not warranted them. Changes not required by Part 9 of the OBC include, for example, telephones in the elevator car. Valenti testified that the gap between the elevator car and the basement floor (Second-Year Item 14) was warranted and rectified.

42Tarion submits that the defects noted by Regal on April 17, 2023 were warranted, except for the exposed elevator shaft walls, and that it engaged Regal thereafter to address them. Regarding the exposed walls, Tarion directed me to its Conciliation Assessment Report of May 1, 2023, where it indicated that there is no requirement in the OBC for the interior of the elevator shaft to be finished, therefore this item is not warrantable. On or before May 15, 2023, Regal performed the other recommended work, and Regal reported that the elevator functioned as intended after the adjustments and repairs.

43On October 3, 2023, KJA noted that the elevator was in operation and the motion control was smooth. KJA noted that the appellant reported that dropping and sinking incidents have not occurred since Regal performed adjustments and repairs. KJA noted, however, that on some occasions during the inspection, the elevator did not respond to hall calls and the hall door did not unlock. KJA recommended that the root cause of the malfunction should be diagnosed and rectified to restore reliability.

44In its report on December 5, 2023, Pace indicated that it addressed the leveling speed on Floor 3, and it confirmed no loss of oil in the hydraulic reservoir. On December 19, 2023, Pace returned to the home to replace light beam sensors, and to complete a vacuum cleaning of the hoistway.

45On March 13, 2024, Pace returned to the home to test the elevator thoroughly and perform adjustments. On that date, Pace indicated that the elevator was running consistently with no faults. On May 3, 2024, Pace returned to the home when the car had stopped in the pit. Pace reset the car and indicated that they tested everything, and that everything operated as intended thereafter.

46In its report dated August 23, 2024, KJA indicated that the elevator operated as intended. KJA noted that the Floor 3 hall door was unable to open during regular operations, but that Pace, who was present for the inspection, adjusted the interlock and the problem was eliminated.

47Andrew Wells, senior vice-president of KJA, testified as an elevator expert. He testified that KJA did not identify any PLC mis-operations in KJA’s two inspections. He testified, further, that the PLC was operating as intended based on the inputs it received from connected sensors and devices, and that it responds to fault conditions. Wells testified that it would be very unusual to replace software in an elevator’s PLC, because the software does not generate variable outputs. Wells testified that he would not recommend reinstalling the PLC software.

48Regarding the PLC display, Wells testified that a text display is recommended by the Canadian Standards Association but that it is not an OBC requirement for residential elevators. Wells opined that a technician experienced with Federal elevators would not have trouble reading the fault code messages in the display.

49Wells testified that the valve should last the lifetime of the elevator installation. He testified further that the oil in the valve in commercial elevators will be replaced every five to ten years, with a longer interval for residential elevators, depending on usage. Wells opined at the hearing that reconstructing the valve would be about one day’s work.

50In KJA’s second inspection report dated August 23, 2024, the elevator was observed to be operational and that all code-required safety devices, including the valve, were demonstrated by Pace to operate as intended. KJA concluded that adjustments to interlocks and switches are common for all elevators and that they are part of a preventive maintenance program from an elevator service provider.

51In its report dated November 25, 2024, Noah concluded, after extensive testing, that the elevator operated consistently without fault, except when the light beams were disrupted, or the door interlock switches were triggered intentionally. Noah opined that the elevator operates as intended, and it recommended that the appellant enroll in a preventive maintenance program to avoid any future issues with the elevator.

52Based on the weight of the evidence before me, I find that the elevator was restored to proper function after the repairs performed by Regal before May 15, 2023. Subsequent reports by Pace, KJA and Noah indicate to me, on a balance of probabilities, that the safety logic in the elevator’s PLC is performing as intended when the light beams were disrupted or the door lock switches were triggered, either intentionally or unintentionally. I find the weight of the opinions of the various elevator specialists persuasive, that the elevator, with its moving parts and sensors, needs to be maintained regularly via a preventive maintenance program to function properly.

53I find Apple’s recommendation, in June of 2025, to re-install the PLC software unpersuasive in light of the observed functioning of the elevator for several years, albeit with disruptions, from 2021 to 2025. I prefer the opinions of Pace, KJA and Noah, that the PLC logic is performing as intended.

54I find further that Apple’s recommendation to replace the hydraulic valve is unpersuasive, because this measure is inconsistent with the diagnostics performed by other technicians who inspected the elevator. I find the reports of Pace, KJA and Noah are consistent in that the valve operated as intended, after the adjustments performed by Regal in early 2023.

55Regarding Apple’s recommendation on access holes in the hoistway doors, this is not an issue identified in the Decision Letter or in the NOA, and it is not before me as an item in dispute. I make no finding on this recommendation.

56For the elevator, I find as follows:

1. Year-End Item 14: Elevator inoperable. I find the elevator operable when it is maintained and adjusted by an elevator technician. There is no breach of warranty.

2. Second Year Item 8: Elevator returns to basement. I find the elevator performs as expected when it detects a fault condition. There is no breach of warranty.

3. Second-Year Item 9: Elevator occasionally stops below floor, frequently returns to basement. I find this condition was rectified by Regal in early 2023. There is no breach of warranty.

4. Second-Year Item 13: Adjustment noises from elevator. I find the elevator makes adjustments, such as returning to the basement when idle, according to the logic in the PLC. There is no breach of warranty.

5. Second-Year Item 14: Interior door envelope of elevator unfinished, with gaps. I find there is no requirement in the OBC to have the interior of the elevator shaft finished. In the hearing, Tarion testified that the gaps between the doors and the car were rectified, and the appellant made no submissions that they were not. There is no breach of warranty.

57For the reasons above, the appellant has not met her onus to prove that the alleged defects set out above are a breach of the vendor’s warranty and is not entitled to compensation for same.

Analysis of Group 2: Doors/windows

58The appellant has not proven that there was a breach of warranty in respect of the three alleged defects for which the respondent denied compensation in its Decision Letter.

59The disputed doors/windows for all three items are Tilt and Turn Windows (“units”) manufactured by Tiltco, that can function as both a door and a window. The units have handles on the interior of the house only. When the handle on each unit is pointed upward, the unit operates as a window, and it can tilt on the horizontal axis whereby the top of the unit tilts inward approximately 6”, for ventilation. When the handle is horizontal, the unit operates as a door and swings on the vertical axis. When the handle is pointed downward, the unit locks to prevent entry from the outside.

60The units also come with screens that cover the full area of each unit, mounted from the interior using magnets. The screens can be removed physically and set aside when using the unit as door. They do not slide.

61The three disputed items are as follows:

1. Year-End Item 25: Second-floor bedroom door to balcony.

2. Second-Year Item 4: Basement walk-out door to backyard.

3. Second-Year Item 17: Third-floor north and south bedroom doors to balconies.

62The appellant testified that these units function, but that they are dissatisfied with the design. The appellant submits alleged deficiencies as follows:

1. The screens are very difficult for one person to remove if she wants to use the units as doors.

2. There are no exterior handles, so the doors cannot be closed from the balcony or from the backyard. As a result, when sitting on a balcony, the doors must remain open with no screen, and a gust of wind will cause the doors to swing.

3. Because there are no exterior handles, to use the basement walk-out to the backyard would require leaving the door open, with no other access to the backyard.

63The appellant submits that, because the screens would restrict access to the backyard, the units are not compliant with safety codes and the OBC.

64The appellant submitted that she saw a feature sheet for the home where the builder indicated that the home would have sliding doors and screens for the disputed items. This claimed feature sheet was not submitted into evidence. The applicant submits that she wants the disputed items altered or replaced to provide them with the functionality of sliding doors.

65The home was already constructed when bought by the appellant. The appellant and her husband had the opportunity to tour the home before purchase.

66Tarion submitted into evidence the APS signed and dated October 20, 2020, complete with schedules, amendments and restrictions. Tarion also submitted into evidence a Notice of Fulfillment of Conditions, attached to the APS, signed and dated October 21, 2020 and an Amendment to the APS signed and dated October 22, 2020.

67Tarion submits that when the home was purchased, there was no agreement in the APS to substitute the Tilt and Turn Windows with sliding doors. Jeff Kansun, managing partner with the builder, testified that the Tilt and Turn Windows are a design feature of the home and of the four adjacent homes in the same development project. Kansun submits that the feature sheet referred to by the appellant might have been a document that circulated when the builder was trying to pre-sell the homes in 2018, but that it was not a part of the feature sheet of the home as sold in 2020.

68Kansun testified that the builder offered to install exterior handles on the units, but that they would not install them to latch, lest a person lock themselves on a balcony. Kansun testified further that the appellant refused this offer.

69Valenti testified that there is a sliding door to the main-floor deck, with access to the backyard. He testified that the appellant’s statement that there is no other access to the backyard, other than the basement walk-out door to the backyard (Second-Year Item 4) is false. Valenti stated that the disputed units are compliant with the OBC regarding safe access to the exterior.

70Valenti testified further that he never saw a specification for sliding doors, for the items in dispute, in the APS or any of its attachments. He testified further that the home was built and finished when it was bought, and that if there was a condition to change any finishes, such as doors and windows, it would need to be attached to the APS.

71I am satisfied that the door/window units operate as intended. I am also satisfied that there are no OBC violations associated with them. The appellant did not direct me to any part of the APS or its attachments that indicated that the home would have sliding doors in the disputed locations.

72While the appellant is dissatisfied with the window/door units’ functionality, she had the opportunity to view them as installed before purchasing the home, and she could have made a different purchase decision or could have amended the APS accordingly.

73For these reasons, the appellant has not met her onus to prove that the alleged defects set out above are a breach of the vendor’s warranty and she is not entitled to compensation for same.

Analysis of Group 3: Flat roof and balcony drainage

74The appellant has not proven that there was a breach of warranty in respect of the 5 alleged flat roof and balcony drainage defects for which the respondent denied compensation in its Decision Letter.

75The flat roof is comprised of a 2-ply styrene-butadiene-styrene (SBS) membrane, which is a form of modified bitumen. The roof is approximately 43 feet above the surrounding grade. Above each balcony there is a flat roof comprised of the same material as the roof.

76The main roof and the balcony roofs are drained by scupper drains that feed into downspouts at the front and rear of the home. There are two downspouts at the front of the home and three downspouts at the rear.

77The five disputed items are as follows:

1. Year-End Item 1B: Exterior roof drainage problems with water buildup. Leak into home caused damage. Water buildup on 3rd-floor front (north) balcony.

2. Year-End Item 4B: Water buildup on 3rd-floor rear (south) balcony, with water penetration into Home.

3. Year-End Item 36: Water penetration into 2nd-floor bedroom HVAC vent in ceiling, from 3rd-floor rear (south) water penetration; need to confirm that it is operational.

4. Second-Year Item 1: Water buildup on 3rd-floor rear (south) balcony, with water penetration to 2nd-floor bedroom ceiling, HVAC vent and ceiling fan. Note: This was assessed by Tarion as a duplicate of Year-End Item 4B.

5. Second-Year Item 18: Exterior roof drainage slow even after cleaning drains. Note: This was assessed by Tarion as a duplicate of Year-End Items 1B and 4B.

78The appellant submits that water has penetrated from the flat roof and balcony roofs. She submits that she and her husband have witnessed water penetration whenever there has been a heavy rain, causing drywall damage, potential electrical and HVAC damage, and potential for mould.

79The appellant submits that the scupper drains are too small to handle the water when there is heavy rain. The appellant testified that the builder offered to install another downspout during the early stages of conciliation, but that she refused that offer as inadequate. The appellant submits that the solution to the problems with water penetration is to increase the size of the scuppers and downspouts, and to install membranes that would extend to the limits of the balcony doors.

80The appellant testified that she had the scupper drains cleaned of debris regularly. She testified that the scupper drains on the roof are difficult to reach, so she has to hire someone to clean them.

81The appellant submitted that the surrounding trees are below the height of the flat roof, and that it would be difficult to see how the scuppers could become clogged with organic matter from those trees.

82The appellant submits further that the one-hour water penetration tests performed by Tarion and its inspectors on the doors/windows did not adequately simulate the water pressure of a heavy downpour.

83Tarion submits there is no evidence of any identifiable defects with the roof structure. Tarion submits that, at the first complaint, the builder sent a roof technician to inspect, who witnessed that the balcony roof had filled like a bathtub. Once the scupper was cleared of organic debris, Tarion submits that the roof drained as it was designed to drain. Tarion argues that the reason the balcony roofs leaked was that the scuppers were inadequately cleared of organic debris. Tarion argues that the home is compliant with the OBC for roof drainage. Tarion argues further that it is not an OBC requirement that homes be designed so that any homeowner can access their roof easily, to clean their own scupper drains. For these reasons, Tarion argues that the roof items in dispute are not warranted.

84Valenti testified that the scupper drains are sized to be compliant with the OBC. He also testified that the membranes at the door/window flashings are compliant with the OBC. He testified that scuppers drains must be cleared of debris regularly, and that flat roofs are not designed to hold water like a bathtub.

85Tarion submitted into evidence reports from Unlimited Building Solutions (“UBS”) to investigate the alleged roof leakage, as follows:

1. August 18, 2023, regarding the rear balcony inspection and testing performed on June 22, 2023, as well as an inspection of the downspout connection near the back patio door; and

2. June 13, 2024, regarding inspection and testing of the 3rd-floor flat roof balconies on May 9, 2024.

86Mike Bailey, President of UBS, filed an Acknowledge of Expert’s Duty form and curriculum vitae with the Tribunal and with the appellant. Bailey submitted that he has broad experience in roofing and was a distributor of roofing material for about eight years. Bailey testified that he has been qualified as a construction expert before the Tribunal about 10 times.

87In the report dated August 18, 2023, Bailey indicated that he and an employee performed a series of water tests on the rear balcony door/window, and the roof above the door/window, for approximately one hour. They observed no pooling on the roof above the door/window, no water penetration via the door/windows, and water flowed freely into the downspouts.

88Bailey opined at the hearing that the roof system is properly installed, and that the reported water ingress was caused by blocked scuppers. He opined further that roofing systems are not designed to withstand the pressure from pooled water due to blocked drains. Bailey testified that he did not agree with the appellant that the problem of water ingress was due to a faulty membrane at the door/window sills.

89For the report dated June 13, 2024, UBS engaged Dylan Ingram of Gentech Roofing, a roofing specialist, to assist with the inspection. In his report, Ingram observed significant ponding on the front balcony roof, with the scupper drain blocked with vegetation from the surrounding trees. Once the blockage was removed, the roof area was completely drained with no ponding.

90For his inspection of the rear balcony, Ingram performed water tests on the balcony roof and door/windows, with no signs of water penetration. Ingram observed in his report that the previously reported water penetration was likely caused by blocked scupper drains that overflowed at the flashing upturns at the door/windows. Ingram observed, further, that the scupper size appeared adequate, that the roof areas are sloped towards the scupper drains, and that he could find no anomalies with the flashing terminations at the door/windowsill locations.

91Ingram opined at the hearing that the scupper drains needed to be cleaned at least monthly because of the surrounding trees in the area. Ingram disagreed with the appellant’s submissions that the surrounding trees are too short to cause organic matter to clog the scuppers, because wind can carry leaves and other matter upwards to a flat roof.

92I find that the appellant has not demonstrated that the SBS membrane flat roof is non-compliant with the OBC, or that it was constructed in a non-workmanlike manner with defects in material. I agree with submissions of the construction and roofing specialists, commissioned by the builder, that water testing on the roof did not reveal any water penetration through the roof membrane.

93I find further that the appellant has not demonstrated that the flat roof and balcony drainage system is non-compliant with the OBC with respect to the number, size and position of scupper drains and downspouts. The appellant submitted that the size of the scuppers and downspouts needed to be increased, but the appellant did not direct me to any part of the OBC that indicates non-compliance.

94I find further that the appellant has not demonstrated that the membranes at the door/windowsills are non-compliant with the OBC, or that they were constructed in a non-workmanlike manner with defects in material.

95Lastly, I find that the appellant has not demonstrated that the water penetration tests performed by Tarion and inspectors on the door/windows were non-compliant with the OBC and the regulations.

96The balance of evidence before me indicates that the roofing system was constructed in compliance with the OBC, that it was constructed in a workmanlike manner and that it is free from defects in material. I find that the balance of evidence indicates that water penetration into the home was caused by blocked scupper drains which require regular cleaning, for which the appellant is responsible.

97For these reasons, the appellant has not met her onus to prove that the alleged defects set out above are a breach of the vendor’s warranty and is not entitled to compensation for same.

Analysis of Group 4: Exterior cladding

98The appellant has not proven that she suffered monetary damage from the defective aluminum cladding that was repaired by Tarion.

99The home has aluminum cladding on its façade, consisting of prefabricated panels, around the front bay windows. In its First-Year Form, the appellant alleged that there were inconsistent gaps between the bottom panels and the panels above, resulting in water penetration into the cladding structure, with possible water damage to the wood structure behind the panels. On January 11, 2024, Tarion retained the services of UBS and Bailey, who determined that the panels were installed with defects in workmanship and that this was a breach of warranty. This item was then repaired by the builder.

100During closing arguments, the appellant submitted that she did not have evidence that mould developed behind the cladding due to water penetration.

101Bailey testified that gaps in aluminum cladding, in and of themselves, are not a defect. He testified that most cladding systems are designed to shed water, and that it is important to design them so that any water that penetrates can escape.

102Repairs were performed by the builder in the summer of 2024. During the repair, the builder removed the defective panels and inspected the underlying wood. Bailey was present during the repair. He testified that there was no structural damage, water staining or mould growth observed. In support of that testimony, Tarion submitted photographs of the underlying wood structure, during the repair, into evidence. Bailey testified that, although there were gaps in the cladding panels, the cladding had shed any water that might have penetrated.

103I find that that the appellant has not demonstrated that there was any damage to the wood or other materials underneath the aluminum cladding, as a result of the defective installation that has since been repaired.

104For this reason, the appellant has not met her onus to prove that she is entitled to compensation for same.

The appellant is not entitled to damages

105Section 14(3) of the Act provides for payment of compensation for “damages resulting from a breach of warranty” subject to a number of limitations on the amount recoverable set out in Regulation 892 under the Act (the “Regulation”). Liability is limited to damage of the home only. There is no liability for any other direct or indirect damages under s.6(6) of the Regulation. The onus is on the appellant to prove the monetary amount of damages.

106For Year-End Item 5B, where there was a breach of warranty, the appellant has not demonstrated that there was any damage to the wood structure underlying the aluminum cladding, or to other parts of the home.

107For the other items in dispute for the hearing, I have found that there are no breaches of warranty for the items in Tarion’s Decision Letter. As there are no breaches of warranty, there is no warranty claim for damages to be backstopped by Tarion.

108For the above-noted reasons, the appellant has not met her onus in proving that she is entitled to the amount of damages that she has claimed.

SUMMARY

109The appellant has not proven on a balance of probabilities that there was a breach of warranty in respect of the 14 alleged defects in dispute for the hearing, for which the respondent denied compensation in its Decision Letter. Further, the appellant’s damages flowing from the breach of warranty relating to Year-End Item 5B is $0.

ORDER

110For the reasons set out above and pursuant to s. 14(19) of the Act, I direct Tarion to deny the appellants’ claim.