Licence Appeal Tribunal File Number: 16936/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”) to deny a claim
Between:
Shivek Saini and Shashank Saini
Appellants
-and-
Tarion Warranty Corporation
Respondent
DECISION AND ORDER
VICE-CHAIR: Geneviève Painchaud
APPEARANCES:
For the Appellants: Shivek Saini, Self-represented Shashank Saini, Self-represented
For the Respondent: Erin Cahill, Senior Warranty Services Analyst Suzanne Chandrakumar, Counsel
Court Reporter: Kelli Ryan
Heard by videoconference: October 15, 2025
OVERVIEW
1Shivek Saini and Shashank Saini (“appellants”) appeal to this Tribunal a decision letter (“Decision Letter”) issued by Tarion Warranty Corporation (“respondent” or “Tarion”) dated April 4, 2025, pursuant to s. 14(3) of the Act.
2The appellants entered into an agreement of purchase and sale (“APS”) for a new condominium townhome from Core CMCC Clonmore (GP) Inc. (the “builder” or the “vendor”) located at 178 Clonmore Drive, unit 64, in Toronto, Ontario (the “property”). The appellants signed the APS on December 17, 2021 and the builder executed it on January 5, 2022.
3The APS set out a firm occupancy date of September 16, 2022 and an outside occupancy date of January 15, 2024. A notice to end of unavoidable delay notice due to COVID-19 pandemic revised the firm occupancy date to April 2, 2024 and the revised outside occupancy date to July 2, 2025.
4The APS also set a schedule for payment of deposits, but the builder extended the timeline for the deposits at the appellants’ request several times, up to October 2023.
5On December 4, 2024, the builder advised the appellants that the purchase agreement was terminated because of the purchasers’ default of its obligations under the APS as the deposits had not been paid in full.
6The appellants submitted a Deposit Refund Claim Form (“claim form”) dated August 5, 2024. In the claim form they cited the reason for the claim as the builder having fundamentally breached the APS. They were requesting a refund of a January 5, 2022 deposit of $5,000 and a February 6, 2022 deposit of $24,073, totalling $29,073, under s. 14(1) of the Act. They were also claiming Delayed Closing/Occupancy Compensation (“DCOC”) for 204 days at $150 per day totalling $30,600.
7In its conciliation report dated February 12, 2025, and in its Decision Letter dated April 4, 2025, Tarion concluded that the issues raised by the appellants were not warranted under the Act.
8At the beginning of the hearing, the appellants confirmed that they were seeking a refund of deposits in the amount of $35,294.40, comprised of the two deposits in para. 6 above, one deposit of $5,882.40 made July 11, 2023, an additional payment of $339 made to cover an NSF cheque, plus a $5,882.40 deposit made August 24, 2023 which has not been cashed by the builder. They also confirmed they are seeking the maximum amount for DCOC of $7,500.
ISSUES
9As per the case conference report and order released June 19, 2025, the issues to be decided are:
a. Are the appellants entitled to a refund of the deposit monies paid towards the purchase of a condominium townhome under s. 14(1) of the Act?
b. Are the appellants entitled to DCOC under the Act?
RESULT
10For the reasons listed below, I find the appellants have not proven on a balance of probabilities that their claim for a refund of the deposit monies paid or that their DCOC is covered under the Act.
11I confirm Tarion’s denial of the appellants’ claim.
EVIDENCE AND ANALYSIS
12The onus lies on the appellants to show, on a balance of probabilities, that they are entitled to warranty coverage.
13I find the appellants did not meet their burden of proof with regards to the items in the Decision Letter.
14The appellants confirmed that their ground for their claim that they are entitled to reimbursement of their deposits is under s. 14(1)(b)(ii) of the Act as they believe the builder has fundamentally breached the purchase agreement by delaying their occupancy date significantly, by not cashing a deposit cheque they delivered on August 24, 2023 and ultimately in cancelling the agreement. In addition, they argue that they are eligible to receive DCOC.
15The respondent submits that there was no fundamental breach of the APS on its part as the delays were in accordance with the Act, and that the contract was terminated as the appellants ultimately failed to pay their deposits in full as per the APS.
16The respondent argues that the appellants have no right to a refund of their deposit under s. 14(1) as the appellants are the ones who breached the APS by not paying their deposits in time, and the builder did not fundamentally breach the APS.
The appellants are not entitled to a refund of their deposits under s. 14(1)(b)(ii) of the Act
17Subsection 14(1) of the Act provides that:
Subject to the regulations, a purchaser is entitled to receive payment out of the guarantee fund for the amount that the purchaser paid to the vendor as a deposit or other payment to be credited to the purchase price under the purchase agreement on closing if,
(a) the purchaser has exercised a statutory right to rescind the purchase agreement before closing; or
(b) the purchaser has a cause of action against the vendor resulting from the fact that title to the home has not been transferred to the purchaser because,
(i) the vendor has gone into bankruptcy, or
(ii) the vendor has fundamentally breached the purchase agreement.
18Section 41(b) of the APS provides that:
In the event that the purchaser defaults on any of its obligations contained in this purchase agreement prior to the unit transfer date and fails to remedy such default within five business days of his being so notified in writing, in accordance with section 53 of the purchase agreement, except that no period of rectification shall be accorded to the purchaser in the event:
a. The purchaser fails to close on the unit transfer date; or
b. The vendor provides, at its option, any additional time period to remedy a default or as may be otherwise specified herein, then such default shall be a fundamental breach of this purchase agreement and acknowledges and agrees that in the event of such breach, the vendor shall have the unilateral right and option of terminating this purchase agreement (and the occupancy agreement) effective upon delivery of notice of termination to the purchaser or the purchaser's solicitor, whereupon the vendor shall have the right to forfeit the deposits in addition to any other remedy hereunder or at law available to the vendor…
19In determining whether the builder fundamentally breached the purchase agreement, I am bound by the decision in Tarion Warranty Corporation v. 136950 Ontario Limited, 2013 ONSC 514. In that case the court outlined how the Supreme Court of Canada defined fundamental breach in Hunter Engineering Co. v. Syncrude Canada Ltd., 1989 CanLII 129 (SCC), [1989] 1 S.C.R. 426 as:
A fundamental breach occurs where the event resulting from the failure by one party to perform a primary obligation has the effect of depriving the other party of substantially the whole benefit which it was the intention of the parties that he should obtain from the contract.
The delays
20The appellants submit that they are owed the deposit amounts as per s. 14(1)(b)(ii) of the Act as the builder fundamentally breached the agreement by subjecting the appellants to a multitude of delays that were not in accordance with the Act.
21The respondent points to the APS which sets out a firm occupancy date of September 16, 2022 and an outside occupancy date of January 15, 2024, and to a notice establishing a revised occupancy date due to unavoidable delay of July 2, 2025.
22Unavoidable delay is defined in the Addendum to the APS (the “Addendum”) as:
“an event which delays occupancy which is a strike, fire, explosion, flood, act of God, civil insurrection, act of war, act of terrorism or pandemic, plus any period of delay directly caused by the event, which are beyond the reasonable control of the vendor and are not caused or contributed to by the fault of the vendor.”
23Section 5 of the Addendum provides how a builder can extend dates due to unavoidable delay:
a. If unavoidable delay occurs, the vendor may extend critical dates by no more than the length of the unavoidable delay period, without the approval of the purchaser and without the requirement to pay delayed occupancy compensation in connection with the unavoidable delay, provided the requirements of this section are met.
b. If the vendor wishes to extend critical dates on account of unavoidable delay, the vendor shall provide written notice to the purchaser setting out a brief description of the unavoidable delay, and an estimate of the duration of the delay. Once the vendor knows or ought reasonably to know that an unavoidable delay has commenced, the vendor shall provide written notice to the purchaser by the earlier of 20 days thereafter and the next critical date.
c. As soon as reasonably possible, and no later than 20 days after the vendor knows or ought reasonably to know that an unavoidable delay has concluded, the vendor shall provide written notice to the purchaser setting out a brief description of the unavoidable delay, identifying the date of its conclusion, and setting new critical dates. The new critical dates are calculated by adding to the then next critical date the number of days of the unavoidable delay period (the other critical dates changing accordingly), provided that the firm occupancy date or delayed occupancy date, as the case may be, must be at least 10 days after the day of giving notice unless the parties agree otherwise. Either the vendor or the purchaser may request in writing an earlier firm occupancy date or delayed occupancy date, and the other party’s consent to the earlier date shall not be unreasonably withheld.
d. If the vendor fails to give written notice of the conclusion of the unavoidable delay in the manner required by paragraph (c) above, then the notice is ineffective, the existing critical dates are unchanged, and any delayed occupancy compensation payable under section 7 is payable from the existing firm occupancy date.
e. Any notice setting new critical dates given by the vendor under this section shall include an updated revised statement of critical dates.
24The firm occupancy date and the outside occupancy date are defined in Addendum as critical dates.
25The timeline of delayed closing for the property in evidence include:
a. May 20, 2022: Unavoidable delay notice due to strike of unionized carpenters, form workers, drywall installers, crane operators, window installers and technicians which began May 2, 2022.
b. December 14, 2022: Unavoidable delay notice due to COVID-19 pandemic which began March 11, 2020.
c. November 2, 2023: End of unavoidable delay notice due to strikes. Revised firm occupancy date: April 18, 2023. Revised outside occupancy date: July 16, 2024.
d. December 13, 2023: End of unavoidable delay notice due to COVID-19 pandemic. Revised firm occupancy date: April 2, 2024. Revised outside occupancy date: July 2, 2025.
e. March 15, 2024: Construction delay notice. Delayed occupancy date: April 15, 2024.
f. April 8, 2024: Construction delay notice. Delayed occupancy date: May 31, 2024.
g. April 17, 2024: Construction delay notice. Delayed occupancy date: June 17, 2024.
h. June 7, 2024: Construction delay notice. Delayed occupancy date: July 12, 2024.
i. July 11, 2024: Construction delay notice. Delayed occupancy date: August 21, 2024.
j. August 12, 2024: Construction delay notice. Delayed occupancy date: September 16, 2024.
k. September 9, 2024: Construction delay notice. Delayed occupancy date: October 15, 2024.
l. September 30, 2024: Construction delay notice. Delayed occupancy date: October 29, 2024.
m. October 23, 2024: Construction delay notice. Delayed occupancy date: November 19, 2024.
n. November 8, 2024: Construction delay notice. Delayed occupancy date: November 29, 2024.
o. November 20, 2024: Construction delay notice. Delayed occupancy date: December 4, 2024.
p. November 28, 2024: Construction delay notice. Delayed occupancy date: December 6, 2024.
q. December 3, 2024: Construction delay notice. Delayed occupancy date: December 9, 2024.
26The appellants submit that the delays were unreasonable and non-compliant with Tarion Builder Bulletin 22 due to many having short timeframes thereby not being in compliance with Tarion’s 90-day rule. The respondent submits that there is no such bulletin nor such rule, but that there are bulletins that suggest best practices. The appellants were unable to provide me with said bulletin or rule to support their claim that the delays amounted to a fundamental breach of the APS.
27The appellants also take the position that the unavoidable delays were not reasonable as the COVID-19 pandemic was over by December 2022 but did not provide evidence to support the claim that the builder delays were not impacted by the pandemic until 2023. The respondent points to the definition of unavoidable delay mentioned above which supports that a pandemic or a strike are valid reasons for an unavoidable delay notice and that the notices given were compliant with the Addendum.
28While the appellants may find the delays significant, which I do not disagree with, they have not proven that the delays resulted in a fundamental breach of the APS. The delays did not deprive the appellants of substantially the whole benefit which it was the intention of the parties that he should obtain from the contract. The contract was still in place during the delays and not the cause of the appellants not obtaining possession.
29I agree with the respondent that the appellants’ breach of payment of deposits happened prior to the revised outside occupancy date of July 2, 2025. The date of termination of the agreement by the builder also happened on December 4, 2024, also prior to July 2, 2025.
30I find that the appellants have not established that the occupancy delays resulted in a fundamental breach under s. 14(1)(b)(ii).
The termination of the contract by the builder due to non-payment of deposits
31The appellants argue that while they delayed in paying the deposits according to the APS, the fact that the builder gave them extensions and spoke to their lawyer demonstrates that the builder recognized the contract was in good standing and the respondent should not have terminated the agreement, which was a fundamental breach.
32The respondent accepts that there were several delays in the payment of deposits that the builder agreed to, but that ultimately, the appellants did not meet the new timelines agreed to, resulting in the builder terminating the agreement. In addition, by the time the builder terminated the agreement, the builder did not believe the appellants intended on taking possession.
33The respondent’s position is that the full deposit was not made, in contravention of the terms of the APS, and as per section 41(b) of the APS this was a fundamental breach. Section 41(b) outlines that in the event the appellants failed to pay the deposits in the agreed upon timeline, the vendor shall have the unilateral right and option of terminating the purchase agreement and deposits to be forfeited.
34The APS outlines the required deposits as follows:
a. $5,000, as an initial deposit upon the execution of the APS.
b. $22,948, as a further deposit by way of cheque post-dated to the 30th day following execution of the APS.
c. $27,948, as a further deposit by way of cheque post-dated to the 180th day following execution of the APS.
d. $27,948, as a further deposit by way of certified cheque or bank draft delivered on the earlier of the 385th day following execution of the APS and the occupancy date.
e. $27,948, as a further deposit by way of certified cheque or bank draft delivered on the earlier of the 450th day following execution of the APS and the occupancy date.
f. $55,895, as a further deposit by way of a certified cheque or bank draft delivered on the occupancy date.
35An amendment to the APS executed January 11, 2022, adjusted the deposit schedule as follows:
a. $5,000, as an initial deposit upon the execution of the APS, which was paid on January 5, 2022.
b. $24,073, as a further deposit by way of cheque post-dated to the 30th day following execution of the APS, which was paid on February 6, 2022.
c. $29,073, as a further deposit by way of cheque post-dated to the 180th day following execution of the APS.
d. $116,290, as a further deposit by way of a certified cheque or bank draft delivered on the occupancy date.
36As per the Amended APS the third deposit was $29,075 and was to be post-dated to the 180th day following execution of the APS, which meant it had to be paid by (or around) May 30, 2022. It was not received by the builder by that date. This is the deposit at issue in this appeal.
37On July 4, 2022, the appellants requested a 60-to-90-day extension to pay the third deposit due to the market crash which delayed their receipt of a bonus. The builder agreed to a 60-day extension.
38The appellants gave the builder a $29,075 cheque on September 6, 2022. It was returned for non-sufficient funds (“NSF”).
39On October 3, 2022, the appellants requested to re-make the payment around Christmas, again due to the delay of the bonus.
40On October 6, 2022, the builder denied the request for extension until Christmas and proposed a payment plan of $15,000 payable immediately and $15,000 payable November 5, 2022. It also noted that the deposits to-date would be forfeited due to the breach of contract, unless those partial payments were made.
41The appellants were not able to pay the amounts requested by the builder on the timeline proposed in the October 6, 2022 response. Since the appellants were unable to meet those deadlines, on October 11, 2022, the builder proposed another scenario:
a. $300 NSF fee due immediately (on October 11, 2022)
b. $9,691.66 due October 26, 2022
c. $9,691.67 due November 10, 2022
d. $9,691.67 due November 25, 2022
42On the same day, the appellants requested to make payments on November 15, 2022, and December 15, 2022, which the builder accepted. The builder again noted that any missed payment involved a risk of losing all deposits made.
43On November 15, 2022, the appellants advised the builder’s representative that they would not be able to make the payment, again due to not having received their bonus due to the stock market turmoil.
44On December 20, 2022, the appellants advised that a partial bonus had been received allowing for a deposit of $5,000 plus the $300 for the NSF fee to be made, but that for the remaining $24,000, a payment plan of $2,000 per month would be needed. No written response from the builder was provided in evidence and no payment was made according to this plan.
45On June 26, 2023, the builder’s representative wrote a formal notice to the appellants to advise them that they still had not received a replacement of the third deposit and as per the APS, failure to pay the deposits, when due, constitutes default under the APS entitling the vendor to enforce its rights thereunder including termination of the agreement, forfeiture of all deposits paid to date and suing for damages. It allowed the appellants until July 4th, 2023, to remedy the default through a deposit by way of certified cheque or bank draft, failing which it would be enforcing its rights under the APS.
46On June 29, 2023, the appellants wrote back saying they were unable to come up with the full amount and requested a new payment plan:
a. $6,000 on July 4, 2023; and
b. $5,750 per month in August, September, October and November 2023
47After a few exchanges, an email dated July 4, 2023, from the builder’s representative described a new payment plan as follows:
a. July ($5,882.40 + $339) = $6,221.40; and
b. Balance due in equal payments in August, September and October
48On August 1, 2023, the builder’s representative wrote an email to the appellants thanking them for dropping off the July cheque (of $6,221.40) and adding that they were expecting the other post-dated cheques.
49On August 24, 2023, the appellants delivered a cheque to the builder in the amount of $5,882.40 post-dated to August 29, 2023. This cheque was never deposited by the builder. No further cheques were provided by the appellants.
50Between April and June 2024, the appellants requested a price reduction of $250,000 through their lawyer as they claim the property appraisal came in with such shortfall in value and that they were unable to close the deal otherwise. The builder did not accept a price reduction.
51With the price reduction option refused, the appellants requested a mutual release, a vendor take-back mortgage or an extension on the closing. When those options were all rejected, on June 4, June 20 and August 12, 2024, the appellants advised the builder’s representative by e-mail that they were terminating the agreement, but there is no evidence of any further steps taken to terminate the agreement.
52On December 4, 2024, the builder’s representative wrote to the appellants advising them that despite multiple follow-ups and the issuance of a default letter, the third deposit had not yet been paid in full. It confirmed that the purchase agreement was thereby terminated because of the appellants’ default of its obligations under the APS. Also, the builder would be retaining all deposits paid to date, as well as any amounts paid for extras, and any interest accrued. It was also reserving its right to sue the appellants for damages incurred as a result of the appellants’ default, including any shortfall on the sale price on the resale of the property, legal fees, commissions, and costs of re-listing the property.
53The parties agree that the last agreed upon terms of payment were for the third deposit to be fully paid in the August to November 2023 timeframe. They also concur that while some of that third deposit was paid, and another cheque received but not cashed, there was still a shortfall of approximately $17,000 the appellants did not provide to the builder.
54The evidence demonstrates that the appellants were repeatedly in default of the deposit payment terms of the APS and of subsequent payment plans agreed to by the builder and there is no dispute on this. I note that the builder frequently allowed additional time for the third deposit to be paid, which it was not required to do.
55The appellants agreed in testimony that a failure to pay the deposits is a breach of the APS and that in such case the builder can keep the deposit but added that they were not in breach and therefore the agreement should not have been terminated.
56Since the appellants’ position is that the builder should not have terminated the agreement, I conclude that the appellants did not in fact terminate the agreement before the builder did.
57The appellants submit they did not provide further cheques as one cheque had not been cashed, and the builder continued to communicate with them regarding changes to the occupancy date even more than a year after. I find the obligation to pay the deposit is on the appellants. I have not been led to evidence or legal authority to establish that the builder had an obligation to cash a partial deposit, as the appellants argue, or that failing to cash the deposit was somehow a breach of the agreement. There is no dispute over that amount having been paid.
58I do not accept the position of the appellants that by accepting cheques that were submitted late, the respondent waived its strict reliance on the original deposit schedule either. The burden to pay the deposits on time is on the appellants and allowing for extensions in some circumstances does not stop the builder from being able to exercise their rights to keep the schedule and terminate the APS later on.
59Based on the evidence, I do not accept the appellants’ position that they wanted to terminate the agreement because of the multiple delays and a fundamental breach of the APS by the builder. I agree with the respondent that if the appellants wanted to terminate the agreement, it was because they did not have the funds to close, which was clear from the correspondence provided. Nevertheless, I have already found that the appellants did not terminate the agreement.
60I find that if the appellants wanted to terminate the agreement, it was simply as an attempt to recuperate their deposits after breaching the terms of the APS and realizing they would not be able to complete the transaction on closing because they did not have the funds.
61I find that the evidence establishes that the appellants breached the terms of the APS by not fully paying their deposits in accordance with the APS or in accordance with further payment plan agreements, thereby allowing the builder to terminate the agreement and retain the deposits in accordance with the terms of the APS. Furthermore, the appellants were advised on multiple occasions that failure to pay the third deposit on time could entail a breach of the APS and forfeiting their deposits paid to date, which the appellants never disputed.
62I accept the respondent’s position that the builder had a right to terminate the agreement based on the breach of the APS. I find it rises to the level of a fundamental breach by the appellants, as defined in the APS, as they did not fulfill their primary obligation of making the contractual deposits, they were repeatedly advised that they could lose their deposits if they did not fully pay them on time and they had indicated they would be unable to complete the transaction as they did not have the funds necessary.
63For the above reasons, I find the builder did not fundamentally breach the APS and therefore the appellants are not entitled to a return of their deposits.
Continuous communication by the builder to the appellants
64I have not been led to evidence or caselaw to establish that the builder had an obligation to terminate the agreement promptly once they missed deposits, as the appellants submit.
65In addition, the appellants submit that after they received the December 4, 2024 termination letter, they received two letters of extension relating to the occupation date, which is contradictory and shows a continuation of the contract. The appellants also take the position that the builder’s communication was unclear and confusing.
66I agree that there were issues with the communication and lack thereof from the builder. The builder does not appear to have responded to the appellants’ emails about failing to cash the deposit cheque that was delivered, there appears to be no communication about the missing portion of the deposit in the year before sending the termination letter, and the builder continued to send delay notifications after sending the termination letter. On the other hand, I have not been persuaded that a lack of or confusing communication regarding occupancy dates as described constitute a fundamental breach of the APS.
67I agree with the respondent that the builder continuing to communicate with the appellants about occupancy date after the termination of the agreement is not relevant to determining if the builder fundamentally breached the APS. The appellants have not led me to legislation or caselaw to prove otherwise. What I observe is a builder who gave multiple extensions to the appellants to pay the deposits and tried to accommodate them many times over a long period of time. The fact that the builder delayed in exercising its right to terminate the agreement does not constitute a fundamental breach of the APS.
68I find the APS was terminated when the builder sent the termination notice, even if there was communication afterwards.
The appellants are not entitled to DCOC under the Act?
69The legislative basis for the DCOC warranty is found in the Act and O. Reg. 165/08 (the “Regulation”).
70The Addendum to the APS is a Tarion form described in s. 10 of the Regulation which provides for Delayed Closing/Occupancy Compensation provisions and paragraph 7 outlines:
The vendor warrants to the purchaser that, if occupancy is delayed beyond the firm occupancy date (other than by mutual agreement or as a result of unavoidable delay as permitted under sections 4 and 5), then the vendor shall compensate the purchaser up to a total amount of $7,500, which amount includes: (i) payment to the purchaser of a set amount of $150 a day for living expenses for each day of delay until the occupancy date or the date of termination of the purchase agreement, as applicable under paragraph (b) below; and (ii) any other expenses (supported by receipts) incurred by the purchaser due to the delay.
71Delayed occupancy compensation is payable only if:
(i) Occupancy and closing occurs; or
(ii) The purchase agreement is terminated or deemed to have been terminated under paragraph 10(b) of this Addendum.
72Paragraph 10(b) provides:
If for any reason (other than breach of contract by the purchaser) occupancy has not been given to the purchaser by the outside occupancy date, then the purchaser has 30 days to terminate the purchase agreement by written notice to the vendor. If the purchaser does not provide written notice of termination within such 30-day period, then the purchase agreement shall continue to be binding on both parties and the delayed occupancy date shall be the date set under paragraph 3(c), regardless of whether such date is beyond the outside occupancy date.
73I agree with the respondent and find that there is no DCOC payable as:
a. The parties agree that occupancy and closing did not occur.
b. The parties agree that occupation was not delayed outside the July 2, 2025 delayed occupancy date.
CONCLUSION
74The appellants are not entitled to a refund of their deposits under s. 14(1)(b)(ii) of the Act and no DCOC is payable.
ORDER
75For these reasons, and pursuant to s. 14(19) of the Act, I order the appeal be dismissed and direct Tarion to deny the claim.
Released: December 1, 2025
LICENCE APPEAL TRIBUNAL
Geneviève Painchaud Vice-Chair