Licence Appeal Tribunal File Number: 16984/ONHWPA

In the matter of an appeal from a decision of Tarion Warranty Corporation under the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31 (the “Act”).

Between:

Bridget O’Neill

Appellants

and

Tarion Warranty Corporation

Respondent

DECISION

ADJUDICATOR:

Caley Howard

APPEARANCES:

For the Appellant:

Bridget O’Neill (self-represented)

For the Respondent:

Ayesha Mehreen, Counsel

Heard by Videoconference: September 22 and 23 and October 22, 2025

OVERVIEW

1Bridget O’Neil (the “appellant”) appeals a decision letter dated March 19, 2025, issued by Tarion Warranty Corporation (the “respondent”) denying the appellants’ claim for warranty coverage for 3 items under s. 14(13) of the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31 (the “Act”).

2The items under appeal are: the allegedly excessive slope on the concrete porch; a crooked or off-level railing surrounding the porch; and a chimney bump-out that was installed in error.

ISSUES

3The issues in dispute are:

i. Has the appellant proven that the deficiencies she alleges exist are breaches of warranty under the Act; and

ii. If so, what is the quantum of damages or other relief that the appellant is entitled to with respect to the warranted items?

RESULT

4The appellant has not proven, on a balance of probabilities, that any of the alleged deficiencies are breaches of warranty under the Act. The appellant’s claims are denied.

PROCEDURAL ISSUES

Appellant’s motion to rely on year-end form

5On the second day of the hearing, the appellant sought to rely on her year-end form, which was only produced to the respondent after the first day of the hearing. The respondent objected to the appellant relying on the document as it was produced late and was not relevant. I admitted the form, as I found that there would be no prejudice to the respondent in allowing the appellant to rely on the document as it was a document that was previously known to the respondent and the respondent could make submissions with respect to its relevance in its submissions, if necessary.

Adjournment application

6On the second day of the hearing, the respondent sought an adjournment due to the illness of its main witness. I ordered that the hearing would be adjourned to October 22, 2025.

ANALYSIS

Are the alleged deficiencies warranted under the Act?

7Sections 13(1) and (4) of the Act require the vendor of a home to warrant to the owner, among other things, that the home is constructed in a workmanlike manner, free from defects in material, fit for habitation, and constructed in accordance with the Ontario Building Code, subject to certain exclusions set out in s. 13(2). These warranties apply for one year after the warranty takes effect.

8Section 14(3) of the Act establishes that, subject to the regulations and provided certain conditions are met, an owner is entitled to receive payment out of the guarantee fund for damages resulting from a breach of warranty.

9The appellant has the onus to prove that the alleged deficiencies are warranted under the Act and the amount to which she is entitled as a result of the breaches of warranty.

Slope of the Porch

10I find that the appellant has not proven that the slope of the porch is a warranted defect under the Act.

11The parties agreed that the appellant had a porch approximately 20 feet wide across the front of her home. The stairs leading up to the front door were on the far right-hand side of the porch, when facing the front of the home. The area of concern to the appellant was on the far left-hand side of the porch, at the opposite end from the stairs and the front door. The parties further agreed that some slope away from the exterior wall of the home is necessary in order to shed water away from the home, as set out in s. 9.39.1.4(5) of the Ontario Building Code (“OBC”), which requires that exposed slabs shall be sloped to effectively shed water away from the exterior wall.

12The appellant submits that the front porch on her home has an excessive slope away from the home, to the point where the slope is visible and makes it challenging to walk on. She submits that the slope exceeds the maximum slope for a “landing” set out in s. 9.8.6.3(6) of the OBC, which provides that the slope of landings shall not exceed 1 in 50. She relies on her testimony, the testimony of her brother, Kevin O’Neill, photographs that she took of the affected area, and photographs taken by Tarion during the conciliation process.

13The respondent submits that the slope of the porch conforms with the requirements of the OBC, specifically s. 9.39.1.4(5), which requires that exposed slabs shall be sloped to effectively shed water away from the exterior wall. It submits that the area of concern is not a landing and so it is not subject to the maximum slope limit for landings set out in s. 9.8.6.3(6) of the OBC. It further submits that the appellant has not proven that she has suffered any damages arising from the alleged defect. It relies on the testimony of Konrad Nespiak, Senior Warranty Services Representative for Tarion, and its decision letter dated March 19, 2025.

Is the area of concern a landing?

14I do not accept the appellant’s submission that the slope of the porch must conform with s. 9.8.6.3(6) of the OBC. This maximum slope applies to landings, but I find that the area of concern is not a landing.

15Mr. Nespiak conducted both the initial conciliation inspection on April 12, 2024 and a subsequent re-inspection on August 30, 2024. He testified that, based on his experience, a landing would be limited to the flat area at the top of, or between, flights of stairs Her further testified that due to the size of the porch, the area of concern, which is well away from the top of the staircase, would not be subject to any requirements of the OBC that are specific to landings.

16The appellant submits that the area of concern qualifies as a landing because the porch is one piece of poured concrete and there is a staircase attached to it. In support of her position, the appellant refers me to s. 9.8.6.3(1) of the OBC, which sets a minimum width for a landing, but not maximum width.

17I find that despite the porch being one piece of poured concrete, the area of concern is limited to an area several feet away from the top of the stairs, on the far left end of the porch, which is 20 feet wide. I give significant weight to Mr. Nespiak’s testimony because of his years of professional experience in the construction industry. Due to the significant distance between the area of concern and the top of the stairs, I find that the area of concern is not a landing and so does not need to comply with the maximum slope for a landing set out in s. 9.8.6.3(1) of the OBC.

Is the slope excessive in the area of concern?

18I have not been directed to an OBC requirement for a maximum slope on a porch that is not a landing. However, I find that an excessive slope could, if severe enough, reflect poor workmanship. Despite this, I find for the reasons set out below, that the appellant has not demonstrated that the slope of the porch is excessive in the area of concern.

19The appellant testified that the slope of the porch is so severe on the far left-hand side that it “makes her feel drunk” when walking on it. Mr. O’Neill testified that the porch slopes down away from the home at approximately a 5 degree angle, as opposed to the 1 to 2 degrees that he said was typical for a porch to allow it to shed water away from the exterior wall. I give weight to the testimony of Mr. O’Neill, who worked as a contractor in Quebec for many years, and who testified that a 1 to 2 degree slope on a porch is normally required to allow water to run away from the home.

20Mr. Nespiak testified that the slope of the porch, away from the home, was visible to the naked eye. However, he took some measurements to confirm that the slope was away from the home, as required by s. 9.39.1.4(5) of the OBC. Mr. Nespiak testified that he did not experience any trouble walking on the surface of the porch as a result of the slope.

21Various measurements of the slope of the porch were before the Tribunal. These measurements were presented as rise-over-run, with the units of measurement and the distance of the run being different in each measurement. I converted the various measurements of the slope of the porch to degrees so they could be more easily compared and analysed. I did so by calculating the inverse tangent of the rise-over-run.

22The appellant’s photographs show that the surface of the porch decreases from 21.5 inches above a level line at the wall of the house to 19.25 inches above the level line. This reflects a drop of 2.25 inches over the 61 inch depth of the porch. This is equivalent to a slope of 2.1 degrees. The appellant also referred me to photographs that Mr. Nespiak took, which appear to show a drop of 52 mm over the length of a 1219 mm level. This is equivalent to a slope of 2.4 degrees. The decision letter indicates that Mr. Nespiak measured a drop of 40 mm over the length of the 1219 mm level. This is equivalent to a slope of 1.9 degrees.

23The photographs that Mr. Nespiak took, which are included in his conciliation report, do not conform with the value of the slope that he included in his report. Mr. Nespiak testified that he did not have photographs to verify the value that he included in his report, but that it was a measurement he took from the porch side of the railing. The photographs provided by both the appellant and Mr. Nespiak were taken on the outside of the railing, while standing on the grass beside the porch. Given the discrepancy between Mr. Nespiak’s photographs and the measurement he included in his report, I accept the appellant’s measurement of the porch slope as the most reliable measurement in the circumstances. I further find that the appellant’s measurements were taken in the area where the slope was the most extreme and are therefore representative of the area of the most concern. I find that the slope of the porch in the area of concern is 2.1 degrees, according to the appellant’s photographed measurements, which were supported by the appellant’s testimony and the testimony of Mr. O’Neill, who helped take the measurements.

24I find that the measurements taken by the parties do not support Mr. O’Neill’s testimony that the slope of the porch is closer to 5 degrees than the 1 to 2 degrees required to shed water.

25Mr. Nespiak was not able to specify what slope was necessary to effectively shed water, but was of the opinion that the slope of the appellant’s porch was sufficient to meet the OBC in that respect.

26I find that the slope of the porch is only marginally greater than the slope that Mr. O’Neill testified is a normal slope for a porch(1 to 2 degrees) and is not so excessive as to constitute a defect in workmanship. I therefore find that the appellant has not demonstrated that the slope of the porch in the affected area is a warranted defect under the Act.

Porch railing

27I find that the appellant has not established that the off-level porch railing is a warranted defect under the Act.

28The appellant submits that the porch railing is crooked or off-level on the far left side of the porch, where the surface of the porch is noticeably sloped. She relies on photographs that show the top of the railing in question is not level and a quote for the replacement of all the railings on the porch.

29The respondent submits that the railing appears off-level because it follows the slope of the porch surface, which must be sloped to allow water to run away from the exterior wall. It submits that the appellant has not proven that there is a defect with the railing or that it does not meet the requirements of the OBC.

30This issue was complicated by the fact that, between the first conciliation and the re-conciliation inspection, the builder replaced the railing in question in an attempt to address the appellant’s concerns. Mr. Al Carriere, a representative of the builder, testified that he cut off the end of one post of the section of railing in question, to make the railing appear more level to the appellant’s eye given the slope of the porch surface. However, this resulted in the railing falling below the OBC requirement for railing height (36 inches). He then ordered a 42 inch railing from the manufacturer and had it installed. Mr. Carriere was uncertain about whether one post of the new railing had been cut in a similar manner to account for the sloped porch.

31After the installation of the new railing, the appellant’s concern about the railing included the fact that the railings on the porch are now two different levels. The quote she relies on was to replace the remaining railings to match the 42 inch railing. However, I find that the railing height discrepancy is not the issue before the Tribunal because this was not addressed in the appellant’s 30 day form or in the decision letter. Only the crooked/off-level nature of the railing was reported on the appellant’s 30 day form and addressed in the decision letter, and therefore that is the only question before the Tribunal in this hearing regarding the railing.

32The photographs taken by the appellant show a level on top of the railing with the bubble in the level clearly off-centre. The appellant testified that these photos were taken after the replacement railing was installed. While Mr. Nespiak testified that the railing appeared level to his eye when he did the re-conciliation inspection in August 2024, he agreed that he did not measure it with a level on that second visit. I therefore give more weight to the appellant’s measurement and find that the railing is not level.

33I give weight to Mr. Nespiak’s testimony that the railing slopes because the floor of the porch in that area is sloped and that this does not reflect a defect in workmanship. The appellant did not direct me to any evidence that the off-level nature of the railing violates the OBC or reflects unworkmanlike construction or a defect in the railing itself.

34As the onus is on the appellant, I find that the appellant has not proven that the off-level railing is a warranted defect under the Act.

Chimney bump-out

35I find that the appellant has not established that the chimney bump-out is a warranted defect under the Act.

36The appellant submits that when she purchased the home, she chose not to have a fireplace installed. The appellant submits that the builder built a bump-out for a chimney in error. She maintains that the builder agreed to remove it during the construction process, but this was not done. At one point there were squirrels and mice entering the home through the bump-out; however, by the date of the conciliation, the rodent issue had been resolved. The appellant’s main concern about the bump-out was that it had been installed against her express wishes. She relied on her testimony and that of Mr. O’Neill, as well as the Pre-Delivery Inspection report (“PDI”) dated May 11, 2023, photographs of the bump-out and a quote for a Napoleon fireplace.

37The respondent acknowledges that the appellant selected no fireplace in her agreement of purchase and sale (“APS”). The respondent submits that, as the fireplace bump-out was built, albeit in error, the Tribunal must determine whether the bump-out as built contains a warrantable defect. It relies on the testimony of Mr. Nespiak and its decision letter dated March 19, 2025.

38The parties agree that the appellant did not select a fireplace for her new home. She did not pay the extra amount that would have entailed. She specifically did not want a fireplace. Mr. Carriere confirmed that the bump-out was built in error.

39I find that the PDI report, which indicates that the bump-out should be removed, supports the appellant’s submission that the bump-out was installed in the appellant’s home by mistake. The respondent does not contest that the bump-out was a mistake, just that the mistake does not constitute a warrantable defect. I find that the existence of the bump-out is not a warrantable defect because the appellant has not demonstrated either: that it was not constructed in a workmanlike manner; that it contained a defect in material; that it rendered the house unfit for habitation; or that it was not constructed in accordance with the OBC.

40The appellant submits that it is not possible to assess whether the bump-out complies with the OBC or was constructed in a workmanlike manner as it has not been completed. She submits that it will not be completed until it has either been removed or has a functioning fireplace insert installed. Mr. Nespiak testified that an item like the bump-out, which he compared to a roughed-in gas line, does not need to be functioning in order to be considered completed or to add value to the home. Mr. Nespiak explained that the bump-out is a component of the home that the homeowner may choose to make use of in the future even though it does not have a current use. I give significant weight to Mr. Nespiak’s testimony on this topic given his expertise and 20 years of experience in the construction industry. I find that Mr. Nespiak was correct to assess the bump-out to determine whether it complied with the OBC or contained a warrantable defect.

41I accept Mr. Nespiak’s testimony that he inspected the bump-out during both conciliation visits and did not observe any gaps or other signs of a defect as his testimony is supported by the results of the conciliation reports and the photographs that he took. I give less weight to the photographs that the appellant provided of the bump-out. I find that they are unclear and I do not see the gaps in the siding that she submits are visible in the photographs. I find that the appellant has not demonstrated that there are any defects in workmanship or material affecting the bump-out.

42As a result, I find that the appellant has not proven, on a balance of probabilities, that the bump-out either is or contains a warrantable defect under the Act.

Conclusion

43The appellant has not proven, on a balance of probabilities, that any of the alleged deficiencies are breaches of warranty under the Act.

ORDER

44Pursuant to s. 14(19) of the Act, I dismiss the appeal and direct the respondent to deny the appellant’s claim.