Larry and Kari Myers v. Tarion Warranty Corporation, 2025 CanLII 122687

RECONSIDERATION DECISION

Before: Colin Osterberg

Licence Appeal Tribunal File Number: 16762/ONHWPA

Case Name: Larry and Kari Myers v. Tarion Warranty Corporation

Written Submissions by:

For the Appellant: Larry Myers and Kari Myers, Self-represented

For the Respondent: Cindy Zhou, Counsel

OVERVIEW

1On September 16, 2025, the appellants requested reconsideration of the Tribunal’s decision dated August 28, 2025 (“decision”).

2In the decision, the Tribunal held that the appellants had not proven on a balance of probabilities that there was a deficiency covered by a new home warranty under the Ontario New Home Warranties Plan Act, R.S.O. 1990 c. O.31 (the “Act”), ordered that the appeal be dismissed and directed Tarion to deny the appellant’s claim.

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

a) The Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness;

b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made; or

c) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.

4The appellants’ request for reconsideration is made on the bases that the Tribunal committed a material breach of procedural fairness and that the Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made.

5Tarion submits that the criteria for reconsideration have not been met and that the appellants’ request should be dismissed.

6The appellants request that the decision be varied and that the Tribunal order that Tarion pay them compensation in the amount of $52,000 from the guarantee fund in respect of items it says should be warranted under the Act.

RESULT

7I am not satisfied that the appellants have established grounds for reconsideration under Rule 18.2(a) or Rule 18.2(b). The decision of the Tribunal is confirmed.

ANALYSIS

8The test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision, or with the weight assigned to the evidence. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.

A material breach of procedural fairness

9I am not satisfied that the Tribunal committed a material breach of procedural fairness.

10The appellants submit that the Tribunal was in breach of procedural fairness when it decided to exclude from consideration the appellants’ submissions with respect to the case law they provided in support of their claims. According to the Tribunal’s decision, the appellants’ submissions included cases which did not appear to exist and incorrect quotations from actual cases. The Tribunal stated that, in “trying to review the appellants’ submissions linked to case law, the scope of the issues with hallucination of case law, the misquoting of case law, and the misinterpretation of case law made it extremely complicated for me to decipher and use it”.

11As a result, the Tribunal decided to disregard the legal arguments made by the appellants since it could not trust the accuracy of the case law provided and the case analysis presented by the appellants.

12The appellants argue that they are unrepresented and did their best to present their arguments in good faith and did not attempt to present anything that was inaccurate or misleading.

13The Tribunal effectively found that it was unable to determine whether the cases submitted by the appellants were actual cases decided by the courts or whether the quotations and other case comments made by the appellants in their submissions were accurate and that it would rely solely on the appellants’ other submissions and the evidence filed in making its decision. In my view, this does not amount to a breach of procedural fairness. The appellants were given appropriate opportunities to make submissions including submitting legal cases and analysis in support of their position. That they did so in a way which caused the Tribunal to be unable to determine whether the cases were real or whether the quotes taken from those cases were accurate or not, left the Tribunal with few options other than to disregard the cases presented and the appellants’ legal submissions based on those cases.

14Further, according to Rule 18.2(a), the breach of procedural fairness must be “material”. The appellants have not made any submissions as to how the Tribunal’s treatment of the cases and commentary submitted by the appellants had, or could have had, any impact on the outcome. There is no suggestion that the Tribunal did not apply the applicable law in its analysis as a result of failing to review the legal submissions made by the appellants, and, absent that, I am not satisfied that the Tribunal’s ruling had any material impact on the outcome of the appeal.

15I am not satisfied that the appellants have established grounds for reconsideration under Rule 18.2(a).

Error of law or fact such that the Tribunal would likely have reached a different result had the error not been made

I) The Fireplace

16The appellants allege that the Tribunal erred when it determined that s. 18 of O. Reg. 892 (the “Regulation”) under the Act does not apply with respect to the fireplace installed by the builder, because the fireplace was not something which was selected by the appellants. The appellants submit that, since the brand of fireplace was specified in the agreement of purchase and sale (“AOPS”), and they were not given any opportunity to make a different selection, they should be deemed to have “selected” the brand of fireplace set out in the AOPS and that s. 18 of the Regulation should be applied to determine if the substitution made by the builder is warranted.

17Section 18 of the Regulation provides that the vendor shall make no substitution in items for which the purchaser is entitled to make selection pursuant to the purchase agreement. The appellants’ position, if accepted, would mean that s. 18 would apply to any item for which the purchaser has no right to make any selection because they would be deemed to have selected all items in respect of which they had no right to make a selection. In my view this is on its face an absurd interpretation of s. 18. It is made even more unlikely given the wording of s. 19 of the Regulation which provides a warranty for items which are included in the purchase agreement that are not items that are selected by the purchaser.

18I find the Tribunal made no error of fact or law with respect to s. 18 of the Regulation as it relates to the appellants’ claim in respect of the fireplace.

II) Size of Columns

19The appellants allege that the Tribunal erred when it determined that the drawings which were relied on by the appellants as setting out the size that the columns were to be constructed, were not part of the AOPS and therefore not subject to a warranty under the Act.

20The Tribunal found as a fact at paragraph 42 of its decision that the drawings referred to by the appellants are not part of the AOPS on the basis that they were not signed by the appellants at the time the AOPS was entered into or later when there were amendments made to the AOPS. The Tribunal also found that they were not intended to be final drawings based on a watermark on their face indicating that they were preliminary drawings.

21I find no error in the Tribunal’s finding of fact with respect to whether the drawings were part of the AOPS. The reconsideration process is not an opportunity to re-litigate a party’s position where it disagrees with the Tribunal’s decision, or with the weight assigned to the evidence, which is what the appellants are asking me to do. The appellants’ submissions on reconsideration reiterate arguments it made at the hearing and which were considered and rejected by the Tribunal.

22I am not satisfied that an error has been established with respect to this claim for the purposes of Rule 18.2(b).

Sliding patio doors

23The appellants argue that the Tribunal erred when it found as a fact that the AOPS did not call for stacking panel doors as the appellants claimed but only included 3-panel sliding doors.

24The Tribunal reviewed the documents relied on by the appellants in its decision and determined as a fact that the AOPS provided for the installation of 3-panel sliding doors and that there were no final drawings of stacked doors in the AOPS or its amendments and there is no mention in writing of stacked doors. The Tribunal also concluded that the appellants could not rely on preliminary drawings which showed stacked doors since that did not form a part of the AOPS and those preliminary drawings specifically state that they were “not intended for a building permit application” and “first draft subject to changes”.

25Again, the reconsideration process is not an opportunity to reargue the issues based on the same documents that were before the Tribunal when it rendered its decision and I decline to do so as requested by the appellants.

26I find no error in the Tribunal’s finding of fact with respect to the sliding door issue for the purposes of Rule 18.2(b).

Cladding on rear porch

27The appellants allege that the Tribunal erred when it determined that Tarion’s Construction Performance Guideline 4.9 does not apply with respect to the aluminum cladding installed on a ceiling beam on the rear porch. Guideline 4.9 states that “siding” should be free from bows and waviness and local distortion should not exceed 20mm.

28I find no error in the determination by the Tribunal that cladding around a ceiling beam is not “siding” as described in Guideline 4.9. The appellants presented no evidence that established that the cladding that was installed was not installed in a workmanlike manner and I find that the evidence presented by the appellants and their submissions were reviewed by the Tribunal before it made its decision.

29To repeat, the reconsideration process is not an opportunity to reargue the issues based on the same documents that were before the Tribunal when it rendered its decision, and I decline to do so as requested by the appellants with respect to this issue.

30I find no error in the Tribunal’s finding of fact with respect to the cladding issue for the purposes of Rule 18.2(b).

CONCLUSION & ORDER

31I am not satisfied that the appellants have established grounds for reconsideration under Rule 18.2(a) or Rule 18.2(b).

32The decision of the Tribunal is confirmed.

Colin Osterberg

Vice-Chair

Tribunals Ontario – Licence Appeal Tribunal