Licence Appeal Tribunal File Number: 14703/ONHWPA

In the matter of an appeal from a decision of Tarion Warranty Corporation under section 14 of the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31 (the “Act”).

Between:

Newton Ormsby and Leah Ormsby

Appellant

and

Tarion Warranty Corporation

Respondent

and

John Boddy Developments Ltd.

Added Party

DECISION

VICE-CHAIR: Colin Osterberg

APPEARANCES:

For the Appellant: Newton Ormsby and Leah Ormsby, Self-Represented

For the Respondent: Cindy Zhou, Counsel

For the Added Party: Heard in writing Ted Boddy, Self-Represented

OVERVIEW

1Newton Ormsby and Leah Ormsby, the appellants, appeal from a Decision Letter dated March 7, 2023, issued by the respondent Tarion Warranty Corporation under s. 14(3) of the Ontario New Home Warranties Plan Act R.S.O. 1990, c. O.31 (the “Act”) denying the appellants’ claims for alleged defects in their home. John Boddy Developments Ltd. (the “Builder”) was added as a party.

2The Tribunal, in an Order dated August 18, 2025, ordered that the appeal proceed in writing and gave orders with respect to the process by which the hearing was to proceed.

ISSUES

3The issues in dispute are:

i. Whether the items claimed, or any of them, are warranted under the Act;

ii. If so, whether any damages resulted from the breach of warranty; and

iii. If damages resulted from a breach, the amount of the damages.

RESULT

4The Tribunal orders that Tarion deny the appellants’ warranty claims that are the subject of this appeal.

ANALYSIS

5Under s. 13(1) of the Act, every vendor or builder of a new home warrants to the owner that it is constructed in a workmanlike manner and is free from defects in materials, is fit for habitation, and constructed in accordance with the Ontario Building Code (“OBC”). Under section 13(1), the builder also warrants to the owner such other warranties as are prescribed by the regulations.

6The term “workmanlike manner” is not defined in the Act. It has been described by the Tribunal in Goulet (Re) [2000] OCRATD No. 51, at para. 9, as including functionality, expertise, practice skill, proficiency, craftsmanship, competency, and the ability to do something well. In 11594 v. Tarion Warranty Corporation, 2019 CanLII 29106(ON LAT) the Tribunal found that whether construction was not done in a workmanlike manner depends in part at least on whether it has falling below industry standards.

7The appearance of the work, or aesthetics may play a role in some cases, but must be considered in relation to the concept of workmanship and not simply as a matter of the subjective assessment of the parties. This is because s. 13 does not provide for a warranty specifically for aesthetic matters but only for failure to construct in a workmanlike manner.

8The onus is on the appellant to establish that there has been a breach of warranty under the Act. In doing so, the appellant must establish the relevant standard of workmanship, and that the builder has failed to do the work in accordance with that standard.

9Section 14 of the Act sets out the basis for compensation that might accrue to a homeowner if there is a breach of warranty under s. 13. Section 14(3) stipulates that, subject to the regulations, a homeowner is entitled to receive payment out of the guarantee fund for damages resulting from a breach of warranty.

10The appellants have the onus of proving on a balance of probabilities that an item claimed is warranted under the Act and, if so, the amount of damages which have resulted from the breach.

Warranty Claims

11The appellants have made numerous claims for items which they say entitle them to compensation from the guarantee fund established in respect of items that are warranted under the Act. Those items, and my analysis with respect to each of those items, are set out as follows. The item numbers reflect the numbers in the appellants’ claim form.

i. Countertop in kitchen – item 3

12The appellants allege that the kitchen countertop to wall joint has gaps and that the countertop is chipped.

13Photographs submitted in evidence do not indicate any significant chips on the countertop and the evidence presented does not satisfy me that any minor chipping which is present were caused by improper workmanship of the builder.

14Photographs submitted in evidence do not indicate significant gaps between the countertop and wall joint and does not satisfy me that any gaps which are present were caused by improper workmanship of the builder.

15I am not satisfied that this item is warranted.

ii. Laundry room countertop – item 5

16The appellants allege that there is a gap between the counter and the wall and that the counter is the wrong color. This allegation is not contained in the appellants’ Tarion Claim Form, is not mentioned in the Conciliation Report or the Decision Letter and is not an issue that is properly before the Tribunal.

17The appellants’ initial claim, as reflected in the Decision Letter and Conciliation Report, is that they were missing a countertop above the washer and dryer for sorting clothes. However, there is no evidence that the countertops the appellants allege were missing were part of the Agreement of Purchase and Sale (“AOPS”).

18Given that the claimed item was not an item set out in the AOPS, it is not warranted under the Act.

iii. Loose floor under carpet and incomplete floor carpet joint in various locations – items 10, 11, 12, 13, 14 and 16

19The appellants allege that there was movement of the floors in various locations as well as squeaking in those locations.

20The appellants did not present evidence that there was any significant movement of the flooring or that there were squeaks which went beyond what would be expected to occur resulting from normal expansion and contraction of wood members.

21The photographs filed as exhibits do not show any significant problem with the areas alleged to be deficient.

22There is insufficient evidence for me to conclude that there was any defect in workmanship sufficient to establish a breach of warranty with respect to these items.

23In their closing submissions, the appellants made allegations additional to those which were the subject of the Decision Letter and which are not properly before the Tribunal and will not be addressed.

iv. Fridge opening too wide – item 18

24The appellants allege that the opening for the fridge was too wide in light of the dimensions of the fridge they advised the Builder was to be installed.

25The dimension for the fridge opening is not set out in the AOPS and there is no evidence that there is any defect in workmanship as it relates to the fridge opening.

26This is not a complaint that is subject to a warranty under the Act.

v. Two cars cannot fit into the garage

27Because stairs were required to be constructed to allow entry to the home through the garage door, only one car can be parked in the garage as constructed. The appellants allege that this is a breach of warranty as they thought they were getting a 2-car garage.

28The AOPS does not provide that the garage is to be constructed in such a way that two vehicles are able to be parked in it. Although that may have been the expectation created by some of the documentation, since it is not part of the AOPS, and since there is no issue about the actual workmanship in the construction of the garage, I find that it is not a warranted item under the Act.

29I find that this item is not warranted under the Act.

vi. Drywall tape in garage – item 21

30The appellants allege that cracking in the drywall tape in the garage is allowing fumes to infiltrate the living spaces in the home.

31There was no evidence filed which indicates that the cracking in the drywall tape in the garage was such that it is allowing fumes to infiltrate the living spaces of the home and there was no evidence submitted which established that the drywall taping was not done in a workmanlike manner.

32I find that this item is not warranted under the Act.

vii. Tubing for central vacuum – item 23

33The appellants submit that the tubing for the central vacuum was not installed to the garage.

34The evidence is that there was no agreement or requirement in the AOPS or otherwise which requires the central vacuum to be installed to the garage. There is no other evidence that the central vacuum system was not done in a workmanlike manner.

35I find that this item is not warranted under the Act.

viii. Chunks of plaster inside tubing for central vacuum – item 24

36The appellants allege that there were chunks of debris inside the tubing for the central vacuum system but did not present any evidence of this to the Tribunal.

37I find that this item is not warranted under the Act.

ix. Handrail joint not smooth – item 25

38According to the Decision Letter, the claim was that the handrail joint was not smooth but that it had been repaired and was smooth at the time of the Conciliation Report.

39The appellants’ submissions indicate that the finish on the wood stairs and railings was poor and that the “wood stairs slope”. The appellants presented no evidence to elaborate on either of these allegations. These issues are not properly before the Tribunal and, in any event, there is no evidence to support that they are warranted under the Act.

40I find that this item is not warranted under the Act.

x. Skylight walls stippled rather than smooth – item 27

41According to the Decision Letter, the claim was that the drywall at the second-floor skylight was stippled where it should be smooth.

42The AOPS provided that the drywall in that area should be stippled and there is no evidence that this agreement was amended.

43I find that this item is not warranted under the Act.

xi. Only one coat of paint applied on some trim – item 28

44The appellants allege that only one coat of paint was applied to trim and that there was some cracking in the drywall in some corners.

45Aesthetic considerations do not constitute poor workmanship for the purposes of the assessment of warrantability under the Act and the appellants have presented no evidence which establishes that the painting that was done was not completed to an appropriate standard of workmanship.

46I find that this item is not warranted under the Act.

xii. Poorly finished drywall in various locations – items 29, 30, 34, 35, 36, 37, 38, 41, 42, 43, 45, 46, 47, 55

47The appellants make a number of allegations that various areas of drywall and painting are poorly finished. There was no evidence presented that the finished surfaces did not present at a reasonable standard of workmanship. A review of the photographs filed does not disclose any more than minor flaws in various areas and do not establish that the workmanship was poor such that these might constitute warranted claims under the Act.

48I find that these items are not warranted under the Act.

xiii. Shelf fell off the wall in the pantry and damaged a tile – item 39

49The appellants allege that a shelf fell and damaged a tile and that the tile that the Builder replaced it with did not match the rest of the tiles.

50The appellant presented no evidence that the replacement of the tile was not done in a workmanlike manner and the photographs do not show any significant problem with the tile.

51I find that this item is not warranted under the Act.

xiv. Door to garage missing self-closing hinge – item 54

52Although the door to the garage has three hinges, only two are self-closing. According to the builder, the door comes standard with two self-closing hinges.

53There was no evidence that the door requires three self-closing hinges, that it functions any differently with two rather than three self-closing hinges, or that the appropriate standard for a door is to have three self-closing hinges rather than two.

54I find that this item is not warranted under the Act.

xv. Nicks, scrapes, and dents on inside face of hallway doors – item 57

55Although the evidence is that by the time of the Conciliation Inspection, there were nicks, scrapes, and dents on the inside face or the hallway doors, there was no evidence that those existed at the time of installation or were otherwise the responsibility of the Builder.

56I find that this item is not warranted under the Act.

xvi. Kitchen range exhaust has backdraft – item 59

57The appellants allege that the exhaust over the range has a backdraft and that the plates in the cupboard and inside of the microwave are excessively cold in the winter.

58The evidence is that the appellant purchased and installed their own microwave, that there was no damper installed with the microwave and that this is the cause of the backdraft alleged by the appellants.

59I am not satisfied that the defect alleged is the responsibility of the Builder.

60I find that this item is not warranted under the Act.

xvii. Hallway trim cuts visible – item 64

61The appellants allege that the quarter-round in the curved area of the hallway was installed with gaps that are visible.

62The evidence is that the Builder filled, sanded, and painted the area in question in order to ameliorate the concern and there was no evidence presented to suggest this was not done in a satisfactory and workmanlike manner.

63I find that this item is not warranted under the Act.

xviii. Cracks in concrete basement floor – item 65

64The appellants allege that cracks in the concrete floor in the basement were numerous and should be repaired.

65The appellants did not present evidence which satisfied me that the cracks in the basement were of any significance in terms of workmanship or structure.

66I find that this item is not warranted under the Act.

xix. Excessive noise from bathtub - item 66

67The appellants complain that water could be heard running through the pipes in the family room when the tap in the bathtub was running.

68The appellants presented no evidence which satisfies me that the sound of water running through pipes amounts to poor workmanship or that it is a breach of a warranty under the Act.

69I find that this item is not warranted under the Act.

xx. Cracks in concrete garage floor – item 67

70Although there were cracks in the concrete garage floor, the appellants presented no evidence that those cracks mean that the floor was not constructed to an acceptable standard of workmanship.

71I find that this item is not warranted under the Act.

xxi. Gaps between trim and wall on stairs – item 71

72Although the appellants alleged that there were gaps between the trim and the wall on the stairs, there was no evidence presented to show that there were any gaps of significance or which would amount to poor workmanship.

73I find that this item is not warranted under the Act.

xxii. Standing water in eavestrough – item 78

74The appellants allege that there is standing water in the eavestrough after it rains.

75The evidence is that some standing water in an eavestrough is normal. The appellants presented no evidence which satisfies me that the amount in their eavestrough was excessive or that it was evidence of poor workmanship.

76I find that this item is not warranted under the Act.

xxiii. Crack in concrete threshold in front and rear entrance, in front porch, and in exterior portion of garage floor – items 79, 80, 83, and 87

77The evidence is that there are hairline cracks in the concrete threshold at the front and rear entrance, in the front porch, and in the exterior portion of the garage floor.

78I am not satisfied that the cracks represent poor workmanship or that their presence amounts to poor workmanship.

79I find that these items are not warranted under the Act.

xxiv. Split in railing support beams – item 82

80There were cracks in two railing posts on the rear deck.

81There was no evidence presented that the cracks in the railing posts were anything other than normal and certainly no evidence that they were the result of poor workmanship or should be warranted under the Act.

82I find that this item is not warranted under the Act.

xxv. Front steps should have been built using poured concrete – item 85

83The appellants say that the front porch should have been built using poured concrete rather than precast walkway and stairs.

84The AOPS calls for precast walkway and stairs and the Builder’s failure to install using poured concrete is not warranted under the Act. There was no evidence submitted which satisfies me that proper workmanship was not used in constructing the front steps as alleged.

85I find that this item is not warranted under the Act.

xxvi. Standing water in drainage basin in backyard – item 90

86The appellants allege that water is ponding in the rear yard due to improper grading.

87Grading of a rear yard is not warranted under the Act.

xxvii. Basement windows are blocked by window wells – item 92

88The appellants allege that the Building Code requires that where a window “required under Sentence (1) opens into a window well, a clearance of not less than 550 mm shall be provided in front of the window.” The appellants presented evidence that there was not 550 mm of clearance provided with respect to the basement windows.

89The subsection of the Building Code cited by the appellants only applies with respect to floor levels which contain a bedroom. This is set out in “Sentence (1)” as referred to by the section relied on by the appellants. The AOPS in this case calls for an unfinished basement where there are no bedrooms.

90I am not satisfied that the windows and window wells are in breach of the Building Code as alleged by the appellants.

91I find that this item is not warranted under the Act.

Conclusion

92I am not satisfied that the defects alleged by the appellants are warranted under the Act.

ORDER

93For the above reasons, and pursuant to s. 14(19) of the Act, the Tribunal orders that Tarion deny the appellants’ warranty claims that are the subject of this appeal.