Licence Appeal Tribunal File Number: 17048/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:

Bobby Gulati and Shilpa Gulati

Appellants

and

Tarion Warranty Corporation

Respondent

DECISION

ADJUDICATOR:

Michael Beauchesne

APPEARANCES:

For the Appellants:

Bobby Gulati, Self-Represented Shilpa Gulati, Self-Represented

For the Respondent:

James Barbeau, Warranty Services Representative Ranisha Fernando, Counsel

Court Reporters:

Shimin Rahman, Christine Rieck, and Elijah Demasson

HEARD: by videoconference September 24-26, 2025

OVERVIEW

1Bobby Gulati and Shilpa Gulati (together, the “appellants”) appeal a decision letter issued by the Tarion Warranty Corporation (the “respondent”) and dated on April 14, 2025, under section 14(3) of the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31 (the “Act”).

PRELIMINARY ISSUES

The preliminary issue raised by the respondent was nullified.

2I ordered the hearing to proceed on the substantive issues in dispute without first addressing the preliminary issue identified in the case conference report and order (“CCRO”) for this matter.

3The CCRO indicated that the respondent raised a preliminary issue. The respondent argued that payments made to the appellant by the builder under several settlement agreements addressed all of the claim items disputed by the parties in this appeal. As such, the respondent reasoned there were no further claims in dispute between the parties, and that the appeal should be dismissed.

4For context, the preliminary issue, as articulated in the CCRO, reads: “Do the agreements for the full and final release for cash in lieu of $12,217.90 on December 6, 2024; $23,875.77 on December 7, 2024; and $29,630.93 on March 9, 2025; between the builder [Claridge Homes] and the appellants, dispose of the disputed claim items in the DL [decision letter] and thereby, the entirety of the appeal?”

5At the outset of the hearing, the respondent advised it was amending the preliminary issue to remove the full and final release dated March 9, 2025, in the amount of $29,630.93. The respondent confirmed that this change meant the preliminary issue was no longer dispositive of the entire appeal because the surviving December 2024 agreements pertained to just several of the 18 disputed claim items in the decision letter (i.e., claim items 42, 69, 78, and 142). This circumstance was confirmed by the appellants.

6Given that the preliminary issue was no longer dispositive of the entire appeal, I ordered that the hearing on the substantive issues proceed on the merits with arguments on the December 2024 agreements to be heard as part of the submissions and evidence pertaining to the relevant claim items.

ISSUES

7At the outset of the hearing, the appellants withdrew claim item 69 from the dispute because it had earlier been resolved. As such, the remaining issues in dispute, in accordance with section 14(3)(b) of the Act, and as articulated in the CCRO and confirmed by the parties, are:

(a) Whether claim items 17, 25, 26, 42, 44, 78, 127, 128, 138, 141, 142, 145, 154, 169, 170, 195, and 196 of the 30-day form constitute a breach of warranty;

(b) If so, whether the appellants suffered monetary damages resulting from the breach(es) of warranty; and

(c) If so, the amount of these damages?

8The Tribunal must determine whether there is a breach of warranty with respect to each of the items in dispute; whether the breaches, if any, have resulted in damages; and the quantum of the damages. The appellants bear the onus of proving these three components on a balance of probabilities.

RESULT

9The appellants are entitled to payment from the guarantee fund of $500.00 for claim item 17 and $153.83 total for both claim items 195-6. While the appellants are also entitled to up to $1,213.65 for claim item 78 and up to $704.92 for claim item 142, both amounts are subject to deductions in accordance with the executed settlement agreement dated December 7, 2024. The appellants are not entitled to compensation from the guarantee fund for any of the remaining claim items.

PROCEDURAL MATTERS

The respondent sought to rely on late-filed evidence.

10I did not consent to admitting the respondent’s supplemental evidence brief into evidence.

11Rule 9 of the 2023 Licence Appeal Tribunal Rules (the “Rules”) addresses document exchange and filing. Rule 9.5.2, specifically, provides that the respondent was required to file with the Tribunal, and serve on the applicant, a copy of the evidence and authority brief it intended to rely on, no later than 10 days before the hearing or at any other time ordered by the Tribunal. In this case, with the agreement of the parties, the CCRO ordered this be done by 5 p.m. on September 15, 2025.

12Rule 9.3 provides that a party who fails to comply with any rule or order pertaining to disclosures and production may not rely on such evidence without the consent of the Tribunal.

13The respondent filed a motion at 12:28 a.m. on the day of the hearing—and more than a week after the ordered production deadline—to request that the Tribunal allow it to rely on a supplemental hearing brief (filed concurrently with the motion), which, by the respondent’s account, was composed near entirely of evidence obtained from Claridge Homes (the “builder”). The respondent argued that all the evidence within this brief was known to the appellants. For example, the respondent explained that the brief includes the agreement of purchase and sale (“APS”) signed by the appellants, full e-mail threads of discussions that were only partially disclosed by the appellants, a settlement breakdown pertaining to the appellants’ 30-day form that are contextual to emails previously produced in the respondent’s evidence brief, larger versions of photos in the conciliation reports earlier produced by the respondent, and case law that was already referenced in cases submitted as part of the respondent’s earlier produced book of authorities.

14The respondent submitted the evidence in the supplemental brief would not prejudice the appellants and is relevant to the disputed issues. The respondent asked that the untimely disclosure of this evidence be considered in the context of settlement discussions that, by its account, had resulted in a written settlement agreement in July 2025. Put differently, the respondent considered the case settled on a full-and-final basis up to September 11, 2025, when the appellants allegedly advised they wished to “retract” their agreement to settle. As such, the respondent had not pursued the outstanding productions it alleged to have earlier requested from the builder in July 2025.

15The appellants did not consent to the respondent’s motion. The appellants argued that the September 2025 case conference was scheduled for the purpose of setting deadlines to avoid the type of production issues raised by the respondent’s motion. The appellants added that the Tribunal, at the time of the case conference, ordered that no new evidence be exchanged, and that the parties were simply to consolidate the evidence they had already exchanged into a single brief and file it with the Tribunal. In response, the respondent offered that no productions had been filed for the hearing up to the case conference because the dispute was believed to have been settled.

16The appellants then argued that it was open to the respondent to pursue its productions from the builder since July 2025 despite ongoing settlement discussions, and that it had ample resources to do so. The appellants explained that from their view, the supplemental brief looked like an entirely new case had been raised, and that they did not yet have time to review or consider the contents of the brief because it was exchanged the morning of the hearing.

17I did not afford weight to the appellants’ submission that the Tribunal ordered no new evidence be produced. While this would have certainly accounted for the short production deadline agreed to by the parties, I find no evidence to support this prohibition in the CCRO.

18In considering the factors set out at Rule 9.3, I found the reasons for non-compliance offered by the respondent did little to mitigate the lateness of its supplemental brief disclosures. The respondent had adequate time to obtain and produce the supplemental brief evidence, and the appellants did not consent to this evidence being admitted. I agreed it was open to the respondent to pursue its outstanding productions with the builder during the settlement period, which spanned about two months up to the hearing. In fact, the respondent’s motion indicated the appellants had not, by September 11, 2025, provided the signed release required to execute the settlement. Therefore, it cannot be said the case was settled and, in my view, the respondent should have proceeded accordingly.

19Further, I was not satisfied that the appellants would not be prejudiced by the evidence in supplemental brief. While I accepted the substance of some and perhaps most of the information may indeed be known to the appellants, it remained that the disclosure of 186 pages of documents—effectively at the start of the hearing—afforded next-to-no time for the appellants to prepare a response and fully anticipate the case to be met. The parties’ motion submissions did not offer any remedies for me to consider that may mitigate this prejudice. And while I concurred that the supplemental brief may indeed be relevant to the disputed issues, this relevance did not, in my view, outweigh the potentially prejudicial implications of allowing the respondent to rely on it.

Prohibition on communications between observers, the parties and witnesses.

20At the outset of the hearing, I ordered that all observers be prohibited from directly or indirectly communicating about the case with parties or witnesses until the proceedings concluded. This was to ensure procedural fairness for the parties without restricting access to observers under the open court principle. For context, I understood the appellants were supporting their claim by alleging a less-than-arms-length relationship between the respondent and the builder, and I became aware that counsel for the builder was observing the hearing. The builder was not added as a party to the proceedings, but a representative of the builder was scheduled to testify as a witness on behalf of the respondent. I therefore deemed the order appropriate under these case-specific circumstances and also excused the builder’s representative from the proceeding until the parties were ready to address his evidence.

ANALYSIS

The Tribunal’s authority to remedy certain contractual disputes under the Act.

21I find the Tribunal has no authority under the Act to redress contractual disputes that are not enumerated warranties under section 13(1) of the Act.

22Section 13(1) of the Act states that every vendor of a 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 (“OBC”). Section 13(1) goes on to add that the home is warranted to be free of major structural defects as defined by the regulations; and such other warranties as are prescribed by the regulations.

23Section 14(19) of the Act specifies that the powers of the Tribunal are limited to ordering the respondent to take action in accordance with the Act and the regulations.

24The appellants submit that they have been unable to realize their dream of making their house their home because the respondent has not delivered on its warranty promises. The appellants characterize their claim as “a question of consumer protection.” They explain that owners of new homes have no choice but to rely on the respondent for warranty coverage, and therefore reason that the respondent has a high duty to protect the homeowner. The appellants maintain that despite working in good faith and following established processes to resolve their disputes with both the builder and the respondent, they received “flip-flops” on written and verbal commitments, “strong accusations,” and unkind words in exchange. In short, the appellants say the respondent failed to protect them by applying warranty coverage to their claims against the builder.

25The respondent argues that certain claims made by the appellants are contractual issues with the builder that arise from a dispute centering on the application of the “entire agreement” clause at paragraph 52 of the APS, and specifically the claims identified in the decision letter as items 44, 127, 145, 154, 169 and 170. The respondent’s position is that the Tribunal does not have jurisdiction under the Act to remedy contractual disputes and may offer redress only within the scope that the respondent itself has the authority to offer under the Act, which does not extend to being a “court of equity.” The respondent relies on Radewych v. Brookfield Homes (Ontario) Limited, 2007 CanLII 23358 ON SC (“Radewych”) and Wang v. Tarion Warranty Corporation, 2022 CanLII 8678 ON LAT (“Wang”) to illustrate the parameters of the Tribunal’s authority under the Act.

26I agree with the appellants’ assessment of the Act’s purpose. It has long been held that the Act is remedial consumer protection legislation that should be liberally construed and given a fair and liberal interpretation [see, for example: Ontario New Home Warranty Program v. Lukenda (C.A.), 1991 CanLII 7167 (ON CA); Mandos v. Ontario New Home Warranty Program, 1995 CanLII 3158 (ON CA); Yildirim v. Tarion Warranty Corporation, 2019 ONSC 945; 7395 v. Tarion Warranty Corporation, 2013 CanLII 11905 (ON LAT); and 375 Lakeshore Developments Inc. v. Tong, 2021 ONSC 1820].

27However, I do not agree that the remedial nature of the Act extends to contractual disputes arising outside the APS like certain ones in this case. The Tribunal’s authority is limited in this regard. In Radewych, which is binding on the Tribunal, the court recognizes that the Act provides for statutory warranties and claims that can be made against a fund where it is alleged that a statutory warranty has been breached. The court also reinforces that, on its face, the Act does not deal with anything other than warranty claims; it does not, for example, deal with other causes of action.

28While I understand the appellants maintain their house is not consistent with representations made by the builder in the course of signing the APS, I find that unless those inconsistencies are enumerated warranty issues under section 13(1) of the Act, the Tribunal cannot remedy them. It has no authority under the Act to resolve contractual injustice outside of a breach of warranty. In my view, the implications of the “entire agreement clause”—insofar that it may annul the appellants’ reliance on representations made outside of the APS [see, for example: Soboczynski v. Beauchamp, 2015 ONCA 282]—are not within the authority of the Tribunal to remedy under the Act because they are not in respect of a warranty matter that involves a defect in workmanship or material.

29I have applied this analysis to claim items 44, 127, 145, 154, 169 and 170 of the decision letter, accordingly.

The Tribunal’s jurisdiction to resolve items that are not included on the 30-day form or addressed through conciliation or in the decision letter.

30I find the Tribunal’s authority to resolve warranted defects under the Act is limited to those that the respondent has made decisions about.

31For context, at the outset of the hearing, the appellants raised multiple alleged defects in materials or workmanship that evolved from those listed in the decision letter. This occurred with claim items 25 and certain aspects of 141 and 142. I requested that the parties offer, in their closing arguments, submissions on the Tribunal’s authority under the Act to adjudicate alleged defects that had not been raised at the time the 30-day form was submitted or decided at the time of conciliation.

32The appellants submit that they have acted in good faith throughout the claims process. In contrast, they say their good faith was not reciprocated and that they were misdirected by the builder. The appellants explain that they put trust in the builder to deliver what is promised, and that the respondent’s processes aim to ensure this happens and protect consumers. The appellants therefore reason that “someone” other than themselves should be accountable for the builder’s mistakes, and that commonsense dictates that the builder is responsible to remedy anything it breaks or damages while effecting repairs in the home, regardless of whether that damage is listed on a claim form or is raised during conciliation.

33The respondent relies on Ormsby v. Tarion Warranty Corporation, 2023 CanLII 91469 ON LAT (“Ormsby”) to show that the appellants cannot seek to add claim items that the respondent has not included in its decision letter.

34The Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G (“LAT Act”), sets out the duties and powers of the Tribunal. Section 3(1) of the LAT Act says the Tribunal shall hold the hearings and perform the other duties that are assigned to it by or under the Act or regulation. This means the Tribunal’s jurisdiction to hold hearings and to determine matters under appeal is restricted to those matters set out in legislation.

35Sections 14(14) and 14(17) of the Act provide that, upon receiving a decision from the respondent about their claims, the appellants are entitled to appeal the decision to the Tribunal. The prescribed process before the respondent issues a decision is set out in Regulation 892 under the Act and provides that, following acceptance of a claim form, the builder has 120 days to resolve the claims. Failing that, the appellants have 30 days to request conciliation. After the conciliation, the respondent issues an assessment report and there is another post-conciliation repair period of 30 days to resolve the claims.

36This appeal deals with claims listed by the appellants on their 30-day form and which the respondent decided were not warranted as set out in its decision letter. Items not included on the 30-day form are not the subject of a decision by the respondent and section 14(14) of the Act provides that the appellants may only appeal decisions of the respondent to the Tribunal.

37Given that the Act does not provide for the Tribunal to adjudicate claim items that are not the subject of a decision by the respondent, I find those items are not within the Tribunal’s jurisdiction to remedy. I have applied this analysis to claim items 25, 142, and the relevant aspects of 141, accordingly.

Claim item 17: The trim at the bottom of both the front door entrance and garage door entrance is cracking and breaking.

38I find the appellants are entitled to compensation in the amount of $500.00 for this claim item.

39For context, the parties agreed at the outset of the hearing that the garage door trim had been resolved and was no longer in dispute. The parties also agreed the front entrance door trim was warranted and were disputing only the amount of damages.

40The appellants submit they are entitled to $500.00 to remedy a defect in workmanship that affects the utility of the front entrance door. They claim that the issue is not the trim on the bottom of the door (i.e. “door sweep”) per se, but rather a misaligned door that needs to be adjusted so it fits square within the frame and does not cause the door sweep to break or bend under normal use. The appellants explain that the door sweep had already been replaced in September 2024—prior to the conciliation inspection a couple of months later when it was assessed—and therefore reason that the recurring damage points to a deficiency that goes beyond the door sweep material or installation.

41The respondent argues that the item description in the decision letter speaks to trim that is cracking and breaking, and not to the door being out of alignment. As such, the respondent maintains that door alignment is outside the scope of repair, and therefore reasons that the cost proposed in the appellants’ quote is excessive. In contrast to the appellants’ quote, the respondent’s “Xactimate” calculation—prepared by Doug Lappen (senior warranty representative) on July 18, 2025, estimates the warrantable damage to be $208.07.

42I accept that the scope of work produced by the appellants is more reasonable on a balance of probabilities. The appellants produced a quote—dated February 19, 2025—that attributes the door sweep damage to an “out-of-level” door. The scope of work provided in the quote includes reinstalling the door and replacing the “weather stripping,” which I take to include a new floor sweep. As such, the appellants’ position appears to be that the door sweep damage is a symptom of the problem, and that replacing it yet again will not resolve the cause of the problem.

43I find this evidence, in and of itself, would be insufficient to meet the appellants’ onus. Mr. Ethan Irvine, who prepared the quote, did not appear as a witness to qualify his opinion as a “contractor and custom-home builder” as described by the appellants. There is no report of his investigation in evidence to show how he diagnosed the door alignment as a problem. However, I also considered the appellants’ proposed scope of work in the context of this claim item being a repeated problem. The parties acknowledge that the builder attempted to resolve this claim item in September 2024 by replacing the door sweep. This did not work as established by the conciliation report photo that depicts a bent door sweep at the time of the November 2024 inspection. As such, I do not agree that the scope of work proposed by the respondent is sufficient because it essentially undertakes the same action that the builder earlier performed in its unsuccessful attempt to resolve the problem.

44The respondent’s evidence was of little probative value. Mr. Barbeau testified that he only inspected the door sweep and did not apply warranty coverage to the door because the appellants did not complain about whether the door was level. But I note the February 2025 estimate relied upon by the appellants was not available at the time of the November 2024 reconciliation inspection, so they would not have known that the alignment of the door may be contributing to the damage caused to the door sweep. Further, Mr. Barbeau offered scant details of his investigation into why the damage had likely occurred, despite being aware at the time of his inspection that the door sweep had been earlier replaced and was again damaged. His report indicates only that it was impossible to determine if the damage was caused by the builder.

45Taken together, I find this evidence supports the appellants’ position on a balance of probabilities. While it is not entirely clear to me that door misalignment is the underlying problem, a balance of probabilities requires me to consider what is most likely—not what is certain or beyond a reasonable doubt. As well, I afford more weight to appellant’s scope of work when I apply the consumer protection purpose of the Act to because I am persuaded that the respondent’s proposal to simply replace the door sweep is an inadequate scope of work, given the earlier failure of this action to resolve the defect. As such, I agree the appellants are entitled to receive $500.00 compensation from the guarantee fund under the Act so they can implement the scope of work proposed by Mr. Irvine.

Claim item 25: The air conditioning unit is too small to adequately cool the house as constructed (i.e. with 9-foot ceilings in the basement and on the second storey).

46I find the appellants have not shown a defect in materials or workmanship for this claim item.

47The appellants convey that the size of their air conditioning unit is no longer in dispute because builder replaced it with a larger unit before the conciliation inspection conducted on September 10, 2024. The appellants submit the issue is now that the replacement unit was not new at the time of installation and was, in fact, damaged. The appellants rely on photos they allege were taken at the time of installation that show dented, bent, and scratched fins. The appellants maintain that they advised Mr. Barbeau of the damage at the time of his inspection and add that they were precluded from listing this damage on their 30-day form in October 2023 because the replacement unit was installed at the time they competed their one-year form in August 2024 despite “months and months” of earlier complaints to the builder.

48The respondent alleges the appellants did not raise the damaged air conditioner components to Mr. Barbeau at the time he conducted his conciliation inspection and reasons that this is why damage is not addressed in his report or the decision letter. The respondent submits that the air conditioner observed at the time of the inspection exceeded the size requirements for the appellants’ house and therefore is not warranted on the basis that it is too small.

49I am not satisfied that the air conditioner installed at the appellants’ home is too small. The appellants testified that the smaller unit had been replaced with a larger one, and the conciliation report indicates the unit observed at the time of conciliation has a 1.5-ton capacity that exceeds the 1.2-ton capacity required by the builder’s design plan. This was confirmed by Mr. Barbeau at the hearing. As such, this dispute is resolved and not warrantable.

50With respect to the appellants’ damage claim on the replacement air conditioner, I understand that their position is that they were unable to include the damage on their 30-day form because the unit was installed well after the form was completed.

51While I accept there is damage to the replacement unit based on the photos produced by the appellants, I am not satisfied this damage was present at the time of installation as alleged by the appellants. The appellants did not point me to evidence that established when the smaller unit was replaced. The photos in evidence do not assist in this regard because they are not time and date stamped. Further, I have no persuasive basis on which to conclude that the timing of the installation did, in fact, coincide with the damage complaints listed on the year-end form as alleged by the appellants. In contrast, Mr. Wingate testified that the air conditioner was replaced in late May or early June of 2024, which is several months prior to the September 2024 reconciliation inspection conducted by Mr. Barbeau. The appellants did not point to contemporaneous evidence that showed they voiced complaints about the damage to the builder or the respondent in May or June of 2024 and it would appear from the evidence that this damage was raised at first instance in the year-end form, which was completed in August 2024—several months after installation by Mr. Wingate’s account.

52Despite the appellants voicing damage complaints (i.e., dings and dents) about the air conditioning unit on their year-end form in August 2024, I am not satisfied that Mr. Barbeau would have been aware of this damage at the time he performed his inspection of the unit a month later. This is because his report of that inspection pertains only to the claim items on the 30-day form completed by the appellants, which identifies only the size of the unit as the basis for the warranty claim. Further, Mr. Barbeau’s testimony was that his inspection was limited to ascertaining only that the installed air conditioning unit met or exceeded 1.2 tons and, as such, he did not inspect for damage or take photos of the unit.

53I placed less weight on the appellants’ assertion that they directed Mr. Barbeau to this damage when he did the inspection because of inconsistencies between their testimony and the year-end form where they first reported the damage. For example, the appellants indicated on the year-end form that the “New [replacement] AC is still not big enough for this model and not cooling down the house [emphasis added],” but testified at the hearing that they were experiencing no functional issues with the air conditioner.

54As such, I accept Mr. Barbeau’s testimony that he was not made aware of any damage to the unit at the time he did his inspection, which I find is consistent with the narrative of his report where he addresses only the size of the unit and does not mention damage. In any event, the appellants agreed during cross-examination that the presently installed air conditioner unit was working fine despite the dents and scratches to the fins. In my view, this diminishes the appellants’ position that a warranty should apply on the basis that the damage to the unit renders it defective.

55Given the appellants have not shown their air conditioner is too small for their house, or that the respondent was alive to their concerns about damage to the replacement unit at the time of conciliation, I disagree that this claim item is warrantable under the Act. As such, I have not considered the appellants’ arguments or evidence on the amount of compensation owed from the guarantee fund.

Claim item 26: The exterior fascia is poorly installed with buckling and “oil canning,” presenting in multiple spots that are visually unappealing and require repair or replacement.

56I find the appellants have not shown this claim item has a warrantable defect.

57The appellants submit that the fascia installed by the builder is buckled. They say the conciliation inspection conducted by the respondent was inadequate to assess the damage because the buckled area of the fascia was hidden under an eavestrough that was installed by an independent contractor on the builder’s recommendation. The appellants explain that prior to the conciliation inspection, they reached an agreement with the builder to resolve the buckling by installing an eavestrough over the exterior fascia of the house. They maintain that despite obtaining a quote for $3,898.52 to supply and install the eavestrough, the builder then “ghosted” them and failed to remit any money. The appellants allege that they ultimately settled the cost of the eavestrough installation at $2,600.00 with the contractor, and as such, the appellants seek $2,600.00 from the guarantee fund as compensation.

58While the respondent agrees that buckling in the exposed areas of fascia is evident, it maintains that the degree of “distortion” is within the tolerances set out in article 4.9 of the Construction Performance Guidelines (“CPG”).

59The parties agree that the fascia is buckled, and, in my view, the photos produced by the appellants clearly show that buckling occurred at the front of their house on both the first and second stories, as well as along the left-facing side of the roof. However, I am not persuaded that this buckling constitutes a warrantable defect. This is because the appellants did not prove the buckling exceeds the threshold set out in article 4.9 of the CPG (i.e., aluminum/vinyl siding is bowed or wavy), which provides that “…Siding shall be free from bows and waviness when installed in accordance with the manufacturer’s specifications. Local distortion from the specified plane shall not exceed 20 mm [emphasis added].”

60While I am not bound by these guidelines, I apply them here because the Tribunal has recognized the CPG as a starting point for considering whether construction is workmanlike [see, for example: 9147 v Tarion Warranty Corporation, 2015 CanLII 38755 ON LAT (“9147”)]. Further, the appellants did not raise a different industry standard for me to consider, and I agree that industry standards are not self-evident per 9147, which explains:

“It is not sufficient for appellants to bring evidence of areas of construction with which they are dissatisfied and expect the Tribunal, in the absence of any other evidence, to conclude that workmanship does not meet industry standards simply because the appellant alleges it is so. There must be some objective evidence before the Tribunal defining the industry standard and identifying the manner in which the complaint falls below that standard.”

For example, Mr. Barbeau explained during his testimony that he relies on “written rules” to determine whether defects in workmanship or materials are warrantable under the Act. In this context, he mentioned the CPG as his first point of reference, followed in order of precedence by section 9 of the OBC, the original equipment manufacturer’s (“OEM”) requirements, and the Canadian Standards Association (“CSA”). I find the appellants did not point to any of these sources or otherwise to support their assertion that the buckling constituted a warrantable defect, relying only on their own observations and opinion. In contrast, Mr. Barbeau specified that if a written rule does not exist to establish a tolerance for a particular claim item, he will deem it unwarranted as he does not rely on opinion despite having construction industry experience and knowledge.

61For what it’s worth, I find Mr. Barbeau’s evidence fell short of proving the buckling was, in fact, within tolerance. The decision letter notes that the fascia was observed from a distance of six metres—which Mr. Barbeau’s testimony confirmed was only 20 feet of front-facing gable because the rest was covered by the eavestrough—and there is no mention in the decision letter or the October 2024 conciliation report of the actual measurement taken on September 10, 2024, to show the “distortion” along this length of fascia did not exceed 20 millimetres. Nevertheless, it remains the appellants’ onus to show the buckling is a warrantable defect and the photos alone that they produced are insufficient to do this without any scale of measurement.

62In my view, the appellants cannot argue the veracity of the respondent’s conclusions about the degree of buckling on the basis that an eavestrough obscures the fascia. This is because the appellants knowingly frustrated the respondent’s ability to assess the buckling by themselves arranging for the eavestrough to be installed prior to the conciliation inspection. In fact, the appellants’ testimony confirmed they were aware that the eavestrough would cover the buckling and thereby hinder inspection. While I understand the appellants allege it was the builder that proposed the eavestrough installation, there is insufficient evidence to accept this as fact. The appellants conceded during cross-examination that they had not obtained anything in writing from the builder to support their position, and I do not find the appellants’ reliance on verbal agreements to be persuasive.

63Taken in totality, I find the evidence does not demonstrate that the buckling of the appellants’ fascia exceeds the CPG standard set out at article 4.9. I therefore disagree with the appellants’ position that this claim item is a warrantable defect under the Act. As such, I have not considered the appellants’ arguments or evidence on the amount of compensation owed from the guarantee fund.

Claim item 42: The garage access door “auto-close” function needs adjustment to close completely. The exterior cladding of this door is damaged and the door is not properly centered in the frame.

64I find the appellants have not shown a defect in workmanship or materials for this claim item.

65For context, at the outset of the hearing, the parties agreed that the dispute pertaining to the auto-close function and exterior cladding of the garage door had been resolved. As such, only the door’s position in its surrounding frame remains in dispute.

66The appellants submit they are entitled to $500.00 to remedy a defect in workmanship that affects the utility of the garage access door. They explain that the gap between the garage access door and the door frame is too wide, such that the deadbolt extends only two millimetres into the strike plate and therefore does not latch securely. The appellants rely on photos they took of the latch as well as a repair estimate obtained from Mr. Irvine.

67The respondent argues that while there is a bow in the door frame at the latch site—such that just the tip of the deadbolt extends into the strike plate—the door nevertheless latches securely. The respondent relies on article 10.7 of the CPG to show that the gap between the door and the doorjamb is within tolerance and not a warrantable defect.

68The appellants’ evidence does little to support their claim. The degree that a deadbolt extends into the adjacent strike plate is not, in and of itself, persuasive evidence of a door not being properly centered in its frame. In my view, this conflates the issue of whether the door is properly centered, which is the dispute here, with whether the locking mechanism on the door is properly installed and functions as intended. Mr. Irvine’s quote does not assist either. While I do not disagree with the appellants’ position that they did not have to bring a witness—and chose instead to rely on the quote they were asked to provide—it remains that Mr. Irvine’s estimate offers scant detail as to how he discerned the garage access door was not level and needed to be re-installed. Unlike the appellants’ claim for the door sweeps, there are no repeated functional failures of the door on record to support Mr. Irvine’s scope of work. I note too, that Mr. Irvine’s estimate is silent on deadbolt function as a symptom of door misalignment.

69Rather, I am satisfied that the respondent’s evidence shows the gap between the doorjamb and the door is not a warrantable defect. The conciliation report of the inspection completed in September 2024 says the respondent observed that the “door frame was not out of square and was within tolerance…”. This conclusion was supported by two measurements taken in the context of article 10.7 of the CPG, which provides that, on any specific side or edge of the door, the door and jamb shall be in general visual alignment; variance in the gap shall not exceed double the narrowest dimension along that side or edge. The report goes on to say that the narrowest dimension measured all around the door was five millimetres, and that the gap at the latch of the door measured eight millimetres (i.e., less than double the narrowest dimension). While the conciliation report does not specify article 10.7, I accept this was the intent because article 10.7 is mentioned in the decision letter’s summary of this claim item, and because the guideline specified at article 10.7 was nevertheless applied at the time of the inspection.

70When taken together, I find the evidence does not demonstrate that the garage access door in not centered in its frame. I therefore disagree with the appellants’ position that this claim item is a warrantable defect under the Act. As such, I have not considered the appellants’ arguments or evidence on the amount of compensation owed from the guarantee fund.

Claim item 44: Two cars do not fit in the garage due to the installation of a landing and steps at the garage access door.

71I find the appellants have not shown this claim item is a warrantable defect of workmanship or materials. Rather, it is a contractual dispute outside the Tribunal’s jurisdiction.

72The appellants submit they cannot fit two cars in their garage because the elevation of the home requires a landing and stairs at the garage access door that encroach on parking space. The appellants deny this claim is a contractual affair and maintain that they upgraded from a one-car garage per a December 2022 e-mail with a builder’s representative that confirms two cars would fit in the garage of their house. They also submit that their claim is supported by the builder’s marketing materials for their model of house, which allegedly depict a two-car garage, and that the model home similarly features a two-car garage.

73The respondent argues that a two-car garage is not specified in the APS, and that this is a contractual issue that is distinguishable from a warranty claim under the Act.

74The appellants have not presented evidence of defective materials or workmanship-related claim items that the builder installed. In fact, they agreed, under cross-examination, that they did not submit evidence that proves there is some kind of defect in workmanship or materials with the garage. For that matter, they also agreed that a two-car garage is not specified in the APS, which Mr. Barbeau subsequently corroborated during his testimony. In contrast, they remark in their video evidence that the APS specifies the garage fits two cars.

75In my view, their dispute is that the builder has not done enough under the contract because they received written assurances that they would be able to fit two cars in their garage—this is not a dispute about a defect in materials or workmanship that lies within the Tribunal’s jurisdiction under the Act.

76Accordingly, I find there are no deficiencies in materials or workmanship raised under this claim item. I am satisfied that this claim item is not a matter over which either the respondent or this Tribunal has jurisdiction. It is a private contractual matter for which redress is available from the courts. It does not fall under the enumerated warranties of section 13(1) of the Act, and it therefore follows that they cannot be breaches of the warranty that are eligible for compensation from the guarantee fund. As such, I find this claim item is not warranted.

Claim item 78: The installation of a metal pan under the clothes washer to collect and divert water needs to be re-designed because it restricts access to the washer’s “clean-out” drain.

77I find the appellants are entitled to compensation for the supply and re-engineered installation of a new metal water-diversion pan under their clothes washer, but not to compensation for damages that include floor tile removal, supply and installation.

78For context, at the outset of the hearing, the parties agreed this claim item was warranted owing to poor workmanship, and that only the amount of damages was disputed. As I understand it, a metal pan was installed under the clothes washer to catch and divert any errant water to a drainpipe. However, the pan, as installed, obstructed a “clean-out” drain on the bottom of the washer. The builder attempted to resolve this by cutting away a portion of the pan to allow access to the drain. However, in doing so, the builder compromised the pan’s functionality (i.e., its ability to contain any water overflow), requiring its replacement.

79The appellants submit that the scope of work to remedy this defect includes the replacement of all floor tiles in the laundry room. They explain that the new drain pan cannot be installed without addressing the adjacent floor tiles because the pan and tiles are bonded together by mortar. As such, the appellants reason that the tiles surrounding the drain pan will need to be broken out, and that due to difficulties with tile matching and the removal of a gable, the rest of the floor tiles in the laundry room will need to be replaced too.

80The respondent argues that the scope of work to remedy the drain pan deficiency does not include the tile work proposed by the appellants because the mortar used to secure the tiles does not bond to the metal material used to construct the drain pan. The respondent also disputes that the removal of the gable is necessary to replace the drain pan. In terms of damages, the respondent asks that the amount for this claim item provided to the appellants under the December 2024 settlement agreement with the builder be subtracted from the amount the Tribunal awards as damages.

81I am satisfied that the scope of work proposed by the appellants is not warrantable. Mr. Barbeau testified that he inspected the pan and observed it was secured by the surrounding baseboard trim and not any mortar seepage from the tile installation. In my view, Mr. Barbeau’s observation is supported by the photos of the installation in evidence. I considered too, that during cross-examination, the appellants accepted that removing the pan will not affect the tile. As such, I am persuaded that the respondent’s estimate proposes an adequate scope of work because it contemplates supplying and installing a new pan with no tile work. I did not afford much weight to the appellants’ position that their trade-obtained quote from Mr. Irvine should be preferred over the respondent’s Xactimate estimate. This is because, as far as I can make out, they are distinguished only by the added costs of tile removal, supply and installation—costs that are outside the scope of work required to remedy the warrantable defect in workmanship.

82While the appellants challenged why the respondent’s estimate did not include costs for moving the washer or taking the laundry room door on and off to facilitate the relocation of the washer while the work was being done, they did not provide, for my consideration, any quotes for these ancillary tasks. Neither did they point me to any aspects of the Act or authorities to show these types of costs should be warranted under the Act. Mr. Barbeau testified that he did not consider these tasks in his scope of work because moving “chattels” and otherwise providing contractor access to the work site was the responsibility of the homeowner. For what it’s worth, I note that section 13(2) of the Act provides specific exclusions to the warranty and there is no mention of the types of ancillary tasks raised by the appellants—neither specifically nor broadly. As such, I am inclined to agree that, had the appellants provided reliable estimates for these tasks, the associated costs would most likely fall under the enumerated warranties of section 13(1) of the Act, and would therefore qualify for payment from the guarantee fund.

83When I weigh all this evidence on a balance of probabilities, I am satisfied the appellants should receive up to $1,213.65 from the guarantee fund to implement the scope of work proposed by the respondent at page 228 of its document brief. Given that section 14(11) of the Act provides that any benefit, compensation or indemnity payable to the applicant from any source shall be considered when determining the appellants’ entitlement to receive payment out of the guarantee fund, I find this claim item is not payable to the extent it is addressed in the settlement executed on December 7, 2024, and for which payment was made to the appellants by the builder on December 13, 2024.

Claim item 127: A 220-volt car charger and 200-amp service was not installed per e-mails with the builder, electrical drawings, and “SI” (i.e., instructions for builder employees and trade partners).

84I find the appellants have not shown this claim item is a warrantable defect of workmanship or materials. Rather, it is a contractual dispute outside the Tribunal’s jurisdiction.

85The appellants submit that the builder failed to honour its commitment to install 200-amp service and a 220-volt car charger. The appellants rely on an electrical plan for the basement and ground floor that indicates the placement of 200-amp service and a 220-volt electrical vehicle charging conduit for future use; a construction release form (“SI”) dated July 17, 2023, which indicates the addition of a 220-volt electrical vehicle charging conduit in the garage and an upgrade to 200-amp electrical service; a series of emails in June 2023 that attempt to reconcile the 100-amp service specification for the appellants’ home with drafting errors in an unspecified drawing that mistakenly indicate their home would receive 200-amp service and a 220-volt car charging conduit; the pre-delivery inspection (“PDI”) report compiled by the appellants that list the 200-amp service and 220-volt car-charging conduit installations as incomplete; and a quote obtained from an independent contractor that totals $5,135.00 plus tax—in addition to up to $1,900.00 for a service disconnect plus more cost for drywall repair—to supply and install a 200-amp panel.

86The respondent argues that the disputed electrical services are not specified in the APS where it indicates a “100-amp electrical breaker panel” will be provided. The respondent also disputes that the documents relied upon by the appellant form part of the APS. The respondent’s position is that this is a contractual issue that is distinguishable from a warranty claim under the Act.

87Like claim item 44, the appellants have not presented evidence of defective materials or workmanship-related claim items that the builder installed. In fact, the builder has not supplied materials or applied workmanship to either of the disputed electrical services. The appellants agreed during cross-examination that they did not pay for a 220-volt charger as part of the APS and acknowledged that the specifications included in their APS do not include a 220-volt car charging conduit or 200-amp service. This was corroborated by Mr. Barbeau, who testified that he looked through every page of the APS—including all change orders—and saw no mention of the 220-volt conduit or 200-amp service.

88I do not agree that the electrical diagrams and SI document form part of the APS because the appellants did not direct me to evidence that established this nexus. Pertaining to the SI specifically, Mr. Wingate clarified that this was an internal document used by the builder to provide instructions to employees and trade partners, which, in my view, is separate and distinct from an APS. Further, the SI produced by the appellants specifies these electrical services need “clarification,” which I take to mean, based on Mr. Wingate’s testimony, that the builder was merely investigating or obtaining more information about the disputed electrical services as opposed to committing to a change order—there is no instruction here to proceed with the installation. While the appellants maintain they do not rely on the APS to prove this claim item, it remains that they were unable to point to any aspect of the APS, including any change orders, that show the builder had agreed to install 200-amp service and a 220-volt car charger, or that they had paid for these items.

89Accordingly, I find there are no deficiencies in materials or workmanship raised under this claim item. I am satisfied that this claim item is not a matter over which either the respondent or this Tribunal has jurisdiction. It is a private contractual matter for which redress is available from the courts. It does not fall under the enumerated warranties of section 13(1) of the Act, and it therefore follows that they cannot be breaches of the warranty that are eligible for compensation from the guarantee fund. As such, I find this claim item is not warranted.

Claim items 128 and 138: Toilet seats scratched in powder room and basement bathroom.

90I find the appellants have not shown this claim item is a warrantable defect of workmanship or materials.

91The appellants submit that all the toilets in their home have defective seats, in that they do not fit the bowl rim properly, do not fully close, and are a different colour from the bowl and tank assemblies. The appellants explain that these toilet seats are replacements installed by the builder to resolve the scratches on the original seats. The appellants add that neither themselves, nor the builder, have been unable to locate suitable replacement seats because the installed toilets have been discontinued, and as such, the appellants reason that all their toilets should be replaced in their entirety. The appellants rely on a photo of the toilet seat in their powder room, as well as quotes generated by artificial intelligence (“AI”) to prove damages.

92The respondent argues that the toilet seats identified in the decision letter are no longer scratched, and that in any event, a toilet seat is not listed as part of the “efficient-flush elongated toilet bowls” specified in the APS. The respondent contends that the appellants amended their claim at conciliation to dispute the colour and fit of their seats, and that the seats were found to work as intended during the conciliation inspections (i.e., the April 2025 inspection for the basement toilet seat, and the October 2024 inspection or the powder room seat).

93For starters, I accept a toilet seat, while not explicitly specified in the APS, is to be included with each toilet bowl. Otherwise, the toilet is not fully serviceable and hinders the habitability of the home. As well, both parties agree the toilet and seat were originally provided “as a system” by the builder.

94However, I do not agree that all toilets in the house form part of the appellants’ claim. The decision letter specifies the toilet seats in the powder room and basement bathroom, and I therefore considered this claim in the context of those two bathrooms only.

95This claim seeks a warranty for toilet seat defects that are described as scratches on the 30-day form. The parties agree the seats were replaced prior to conciliation and are no longer scratched. As such, I find no basis to conclude a warrantable defect in materials or workmanship because the dispute is resolved.

96I further find that the defects claimed subsequent to completing the 30-day form are not warrantable. At the time of conciliation, the respondent assessed the appellants’ complaint that the replacement seats were of “lower quality” than the original seats. During the hearing, the appellants clarified this to mean that the seats were a different colour than the rest of the toilet, were ill-fitting, and that the lids did not close properly.

97The photos produced by the appellants—as well as the photo included in the October 2024 conciliation report—do not persuade me that the replacement seats are, in fact, a different colour from the toilet bowl. Both the bowl and seat appear to be consistent in colour in both photos, and if there is a difference, it is not readily discernable to me in the photo. In terms of the lids closing, I find the photos do little to support the appellants’ position. The lids appear to shut flush with the seat surface in both photos and the variance at the front of the lid appears to be part of the mould as intended by design and not defect. While the gap between the seat and the bowl rim may be wider than the appellants might like, they offered little evidence to persuade me that this constitutes a fitting defect in light of Mr. Barbeau’s documented observations and testimony that he observed no defects and that the seat worked as intended.

98Taken together on a balance of probabilities, I find this evidence falls short of proving that the toilet seats are defective and warrantable under the Act. Given the appellants have not shown the toilet seats in their powder room and basement bathroom are scratched, or are otherwise defective for that matter, I have not considered the appellants’ arguments or evidence on the amount of compensation owed from the guarantee fund.

Claim item 141: All bricks around the front-porch pillars and entrance are chipped.

99I find the appellants have not shown this claim item is a warrantable defect of workmanship or materials.

100The appellants submit that the builder substituted their original exterior stone selection with an inferior product. They characterize the substitute stone as “brittle” and rely on the opinion of an unidentified contractor to show the stone performs poorly. The appellants also maintain that the two pillars at the front of their home that feature this stone do not match in colour. They further allege that the builder irrevocably damaged the appearance of the stone by pressure-washing it to remedy chipping that that is owing to the stone’s brittle nature. The appellants rely on two quotes they obtained to quantify damages to the stone; one from Mr. Irvine that contemplates replacing all stone on the front and side elevations of the home for $30,000.00 plus $11,000.00 to demolish and dispose of the old stone, and the other from Rockdale Homes in the amount of $47,950.00 plus tax to supply and install new stone on the front entrance wall, the front pillars, and the left exterior wall of the house.

101The respondent argues that the chipping observed on the pillars at the time of conciliation was within tolerances specified in the CPG, and that whether the stone was substituted as alleged by the appellants is outside the scope of the decision letter. The respondent maintains it was not obligated to inspect the stone at the front of the home because the appellants did not point Mr. Barbeau to this defect at the time of conciliation.

102I agree that whether the appellants received a substitute stone product is not contemplated in the 30-day form, conciliation report, or decision letter. As such, it does not form part of the dispute before the Tribunal.

103But even if I were to consider this aspect of the appellants’ position, I would find it is unsupported by the evidence. While I agree the appellants selected “Blacksmith” stone for the exterior of their home—the change order in evidence, dated March 2, 2022, shows the appellants chose exterior colour package K, which specifies “Blacksmith ‘Smooth’” stone—I disagree that they received a different or substitute stone. The photo evidence depicts only the stone that was installed and the appellants did not direct me to a point of comparison to consider whether the installed stone was indeed different from the appellants’ selection. Mr. Wingate testified that Blacksmith stone was installed as agreed and the appellants did not raise corroborating evidence to support their assertion that the builder substituted a different product. The appellants’ claim that a contractor told them the installed stone product performed poorly in other installations is of little assistance because the appellants did not identify who this person is, and this person did not appear to offer testimony that qualifies this opinion. Neither was I pointed to documentary evidence that supports this opinion.

104I did not assign weight to the appellants’ complaints of damage to several stones on the right-facing front pillar due to pressure washing—which they alternately described as “sand sponging” in the video evidence they produced. This is because these markings are not alleged as defects in the October or November 2024 conciliation reports, nor in the decision letter. As such, the respondent has not issued a decision on this aspect of the appellants’ claim and the Tribunal therefore has no authority to adjudicate it.

105For what it is worth, if I were to consider whether a defect in workmanship or material had occurred in this context, I would find the appellants’ claim would fail. This is because I was not directed to evidence that established the builder’s workmanship caused this damage—whether in an effort to resolve the chipping that forms the basis of the appellants’ claim as they maintained at the hearing, or to resolve colour differences between the pillars as the appellants alternately alleged in their video evidence. In fact, based on the appellants’ testimony during cross-examination, there appears to be no contemporaneous evidence that establishes they reported this damage to the builder or the respondent prior to filing the appeal in May 2025, despite having video evidence as early as August 2024.

106Pertaining to the colour inconsistencies alleged by the appellants, I find this too is outside the scope of their claim as described in the decision letter. In any event, the photo produced by the appellants, which depicts a pillar against the backdrop of the front entrance stone, does little to support their position because it does not show both pillars. While both pillars are captured in this video, I discerned no colour differences—outside of the obvious variances owing to “sand sponging” allegedly executed by the builder—that would lead me to conclude the material is defective.

107In terms of the stone being chipped, which is the basis for this claim item per the decision letter, I am not persuaded that the appellants have shown a defect in workmanship or materials. Given that the appellants did not raise an industry standard outside of the CPG to consider, they should address the tolerances specified at CPG article 4.20, which describe acceptable performance as follows:

Clay brick veneer shall be installed in accordance with the Building Code. Installed clay bricks that are visible as part of the cladding shall not be chipped in excess of the limits described in Appendix A6 “Chipped Clay Bricks”.

Appendix 6 relies on the performance established by the CSA, which specifies that chipping cannot exceed 10 per cent of the exposed surface of masonry edges and corners for plain finishes and 15 per cent for textured finishes. I accept that the standard to be applied to the appellants’ home is 10 per cent because the exterior colour package they selected describes the Blacksmith stone as “smooth” as opposed to textured. This is the same standard applied by Mr. Barbeau during conciliation. Within this standard, the size of the chips is also specified. For chipping that occurs from the edge within the 10 per cent allowance, 6.5 mm to 8 mm is allowed—otherwise chipping is permissible up to 6.6 millimetres. For chipping in from a corner, 9.5 to 13 millimetres is permissible within the allowance and any additional chipping is restricted up to 13 millimetres.

108The appellants did not point me to any measurements that show the chipping on the pillars exceeds the tolerances set out in article 4.20 of the CPG. Further, the appellants did not raise any other industry standards for stone chipping or show that the materials used or workmanship applied fell short of such alternate standards. I therefore find they have not proven a defect.

109For that matter, the respondent’s evidence also falls short in this regard. Neither the decision letter nor the corresponding conciliation report references actual measurements taken by Mr. Barbeau, and his testimony was similarly devoid of data that proves the volume and size of stone chips. Mr. Barbeau simply testified that all the chipping he observed was within tolerances on the corners, and that the chipping appeared to be from material handling and was installed in this condition.

110Further I disagree with the respondent’s position that Mr. Barbeau was not required to inspect the chipping at the front entrance because the appellants did not point it out. While I accept that section 14(10) of the Act certainly permits Mr. Barbeau to use a range of processes to perform the conciliation inspection, these processes cannot, in my view, circumvent the respondent’s obligations under section 14(6) of the Act, which require the respondent to investigate the concern giving rise to the appellants’ claim. Given that the Act is remedial consumer protection legislation, and the fact the appellants had clearly articulated the front entrance stone chipping on the 30-day form they submitted, I find Mr. Barbeau at the very least had a duty to at least ask the appellants to direct him to this alleged defect. The respondent cannot rely on the appellants’ omission in the context of section 14(10) to justify Mr. Barbeau’s investigative inaction.

111However, despite these flaws in the respondent’s investigative processes, I must reiterate here that the appellants ultimately bear the onus of proof, and not the respondent.

112When I weigh all this evidence on a balance of probabilities, I am satisfied the appellants have not shown the stone chips on the front pillars or entrance are defective in materials or workmanship. Therefore, I am not ordering any damages be paid from the guarantee fund for this claim item.

Claim item 142: All floor tiles throughout the house are poorly installed (i.e. unlevel).

113I find the appellants are entitled to compensation for repairs to scratches on their bathroom tub. I further find the appellants have not demonstrated that stains on their driveway are warrantable under the Act.

114For context, the partes agreed at the outset of the hearing that the floor tiles had been resolved and were no longer in dispute. The appellants clarified that they were now seeking warranty coverage under this claim item for damages to a bathtub and their driveway that resulted from the floor tile repairs.

115The appellants submit that the builder scratched a bathroom tub and caused damage to their driveway while effecting repairs to the floor tiles. The appellants reason that the warranty should apply because the damages they are now claiming resulted directly from work the builder undertook to resolve this claim item. In terms of remedying these damages, the appellants submit they are owed a brand-new tub, and that their driveway should be resurfaced. The appellants rely on photo evidence of scratches on the tub and a quote for a comparable replacement at $924.00 that they obtained online.

116The respondent argues that the appellants’ driveway claim is outside the scope of the decision letter and therefore cannot be considered for warranty under the Act. While the respondent acknowledges it applied a warranty to the tub after the second conciliation inspection in November 2024, it says the scope of repair is limited to re-finishing the scratched area and not to supply and install a new tub. The respondent estimates the re-finishing cost at $704.92.

117I am satisfied that the driveway claim made by the appellants at the hearing is within the authority of the Tribunal to adjudicate. While I accept this alleged defect was not mentioned in the respondent’s conciliation assessment report or the decision letter, Mr. Barbeau testified under cross-examination that he took photos of what he described as “smudges and smears” on the appellants’ driveway during his inspection. As well, Mr. Wingate independently recalled the driveway being brought up by the appellants in the course of conciliation. In his testimony, Mr. Barbeau went on to say that there were too many variables to conclude the builder caused these stains and that their irregular nature was not consistent with tile cutting. As such, I am satisfied that this alleged defect was raised at conciliation, and that Mr. Barbeau’s testimony—in concert with the driveway staining not being explicitly warranted in the assessment report or decision letter—serves to indicate the respondent decided to deny the claim.

118In any event, the appellants failed to persuade me that warranty coverage should apply. I was not pointed to evidence that corroborated this alleged defect, and while my review of the appellants’ video evidence briefly revealed what appears to be a greyish blotch near the top of their driveway, I am not persuaded this supports re-sealing the entire driveway as proposed by the appellants. And even if it did, the appellants did not produce estimates for me to consider that quantify the cost of remedying this damage. As such, I find the appellants’ claim for driveway damage fails.

119I agree with the scope of work that the respondent proposes to remedy the tub scratches. It bears mention here, that while this item is also absent from the respondent’s two conciliation assessment reports and decision letter, Mr. Barbeau testified that the scratches were brought to his attention during the September 2024 conciliation inspection, and that he decided to apply warranty coverage to this defect after the second conciliation assessment was performed in November 2024. As such, I find the Tribunal has authority to consider a quantum for damages to be paid from the guarantee fund under the Act.

120The appellants pointed to little evidence that supported their claim for a new tub replacement. The photo they produced shows a line of scratches along a portion of the bottom of the tub where it meets the floor. They did not persuade me that these scratches cannot be remedied as proposed by the respondent. Mr. Barbeau testified that it is not necessary to replace tub as it can be easily refinished. Further, the appellants did not direct me to any industry standards that were contrary to the scope of work proposed by the respondent to remedy the defect in workmanship.

121When I weigh all this evidence on a balance of probabilities, I am satisfied the appellants should receive up to $704.92 from the guarantee fund to implement the scope of work proposed by the respondent at page 229 of its document brief. Given that section 14(11) of the Act provides that any benefit, compensation or indemnity payable to the applicant from any source shall be considered when determining the appellants’ entitlement to receive payment out of the guarantee fund, I find this claim item is not payable to the extent it is addressed in the settlement executed on December 7, 2024, and for which payment was made to the appellants by the builder on December 13, 2024.

Claim item 145: No subfloor installed under the carpet in the basement per the builder’s sales centre.

122I find the appellants have not shown this claim item is a warrantable defect of workmanship or materials. Rather, it is a contractual dispute outside the Tribunal’s jurisdiction.

123The appellants submit that the builder’s representative confirmed in writing that a subfloor would be installed under the basement carpet. Despite this, the appellants say a subfloor was neither provided nor installed as promised by the builder. The appellants rely on two estimates; the first provided by an independent contractor on February 20, 2025, to support compensation in the amount of $11,051.40 including tax, and the second from Mr. Irvine in the amount of $9,000.00.

124The respondent argues that a subfloor does not appear in the APS and is therefore outside the scope of warranty coverages it can consider.

125The appellants have not presented evidence of defective materials or workmanship-related claim items that the builder installed. When cross-examined, the appellants agreed they were relying solely on what the sales centre articulated in writing on February 16, 2023. In that e-mail, a builder’s representative verifies that there is a sub-floor in the basement. During the hearing, the appellants also confirmed a basement subfloor was not included in the APS to their knowledge, and that they had not paid for an upgrade to include a subfloor in the basement. In my view, their dispute is that the builder has not done enough under the contract because they received written assurances that a basement subfloor would be installed—this is not a dispute about a defect in materials or workmanship that lies within the Tribunal’s jurisdiction under the Act.

126Accordingly, I find there are no deficiencies in materials or workmanship raised under this claim item. I am satisfied that this claim, like items 44, and 127, is not a matter over which either the respondent or this Tribunal has jurisdiction. It is a private contractual matter for which redress is available from the courts. It does not fall under the enumerated warranties of section 13(1) of the Act, and it therefore follows that they cannot be breaches of the warranty that are eligible for compensation from the guarantee fund. As such, I find this claim item is not warranted.

Claim item 154: The appellants’ monetary credit at the builder’s design centre was reduced to $5,000.00 from $10,000.00 by the builder without the acknowledgement or signature of the appellants.

127I find the appellants have not shown this claim item is a warrantable defect of workmanship or materials. Rather, it is a contractual dispute outside the Tribunal’s jurisdiction.

128The appellants submit they were offered a $10,000 design centre credit at the time they purchased their home from the builder. However, they allege the credit had been reduced to $5,000.00 at the time it was counter-signed by the builder without consultation or notice of this change.

129The respondent argues that this claim item does not allege any defects in workmanship or materials and is therefore not warrantable under the Act.

130While this claim item does indeed arise from the APS, it des not involve defective materials or workmanship-related claim items that the builder installed. Their dispute is that the builder did not provide the $10,000.00 design centre upgrade “bonus” indicated at Schedule C of the APS the appellants signed on December 21, 2021. Because this is not a matter of workmanship or materials, this is not an enumerated warranty matter under section 13(1) the Act that the respondent or this Tribunal has jurisdiction to decide. It is a private contractual matter for which redress is available from the courts. I therefore find this claim item is not warranted.

Claim items 169 and 170: The fireplace switch was installed in the wrong location and the fireplace fan does not appear to be coming on per the builder’s sales centre.

131I find the appellants have not shown these claim items are warrantable defects of workmanship or materials. Rather, they are contractual dispute outside the Tribunal’s jurisdiction.

132The appellants submit that the builder installed the fireplace switch on a different wall than where it appears in the model home. The appellants explain that they wanted a feature wall in their home where the fireplace is located, and maintain the switch was mistakenly installed on that particular wall despite receiving written assurances from the builder that the switch would not be placed there, and despite not having a wall switch assigned to the fireplace on the electrical diagrams for their home.

133The appellants argue that they received written confirmation from the builder that their fireplace would have a fan, but later confirmed directly from the OEM that the model of fireplace installed in their home is not equipped with a fan, and that a model upgrade costing at least $15,000.00 is required to obtain a fan.

134The respondent argues that there is no industry standard that requires a fireplace switch to be installed in a certain location, nor is it indicated in the APS where heating, ventilation and fireplace specifications are documented. The respondent reasons that the switch is not defective, and therefore not warranted, because it works as intended (i.e., it turns the fireplace on and off) and does not present a safety issue. Pertaining to the fan, the respondent says this was not specified as included with the fireplace in the APS and is therefore not a defect in materials.

135The appellants have not presented evidence of defective materials or workmanship-related claim items that the builder installed. Their dispute essentially takes the same position as claim items 44, 127, and 145, where they assert that the builder has not done enough under the contract and rely on written assurances outside the APS to demonstrate warranty entitlement. I find this is not a matter that the Tribunal has the authority to decide because it is not an enumerated warranty under section 13(1) of the Act. I therefore conclude this claim item is not warranted.

Claim items 195 and 196: The metal foot plates at the front entrance door and garage access door are scratched.

136I find the appellants have shown these claims items are warrantable defects and eligible for compensation under the guarantee fund.

137The appellants submit that scratches on the metal plates at the foot of his front entrance and garage access doors are owing to builder employees and trades performing work in their home. The appellants maintain they did not cause this damage because they had not moved any of their effects into the house prior to the 30-day inspection when the scratches were first reported.

138The respondent concedes the plates are scratched but says this claim item is not warrantable because the appellants have not demonstrated the damage was caused by the builder.

139I am not certain what standard of proof Mr. Barbeau considered at the time he investigated this claim item, but the Tribunal applies a balance of probabilities. And I am satisfied the evidence of both the appellants and the respondent meet this threshold easily. While the photos in the conciliation report do not clearly depict scratches on the plates—and those at the front entrance especially—I accept Mr. Barbeau’s testimony that the plates were “100 per cent scratched” when he performed the conciliation on September 10, 2024. I also put weight on Mr. Barbeau’s observation that there was “a lot” of contractor work going on after the pre-delivery inspection in August 2023, which he characterized as “massive renovations.” Mr. Barbeau further confirmed that the trades were using both the front entrance and garage door for access to the house, and I am persuaded by Mr. Barbeau’s opinion that the builders “definitely” could have damaged the door plates.

140In my view, these aspects of Mr. Barbeau’s testimony are well-supported by the video recorded by the appellants on August 28, 2024, which reveals extensive work still being performed throughout essentially the entire home about nine months after the 30-day form was completed and approximately a year after the appellants closed on the APS. Given the foot traffic in and out of the house by trades to complete this work over this considerable period, I think it is more likely than not that the builder contributed in no small way to the scratching on the door plates.

141When I weigh all this evidence on a balance of probabilities, I am satisfied the appellants should receive $153.83 from the guarantee fund to implement the scope of work proposed by the respondent at pages 238 and 383 of its document brief.

ORDER

142The appellants are entitled to payment from the guarantee fund of $500.00 for claim item 17 and $153.83 total for both claim items 195-6. While the appellants are also entitled to up to $1,213.65 for claim item 78 and up to $704.92 for claim item 142, both amounts are subject to deductions in accordance with the executed settlement agreement dated December 7, 2024. The appellants are not entitled to compensation from the guarantee fund for any of the remaining claim items.

Released: November 17, 2025

__________________________

Michael Beauchesne

Adjudicator