Licence Appeal Tribunal File Number: 17241/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:

Ipandeep Hayar

Appellants

And

Tarion Warranty Corporation

Respondent

DECISION

ADJUDICATOR:

Michael Beauchesne

APPEARANCES:

For the Appellant:

Ipandeep Hayar, Appellant

Harinder Gahir, Counsel

For the Respondent:

Taryn Morris, Warranty Services Representative

Amanda Cutinha, Counsel

Court Reporter:

Elijah Demasson

HEARD: by videoconference October 31, 2025

OVERVIEW

1Ipandeep Hayar (the “appellant”) appeals a decision letter issued by the Tarion Warranty Corporation (the “respondent”) and dated on June 2, 2025, under section 14(1) of the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31 (the “Act”).

ISSUES

2The issues in dispute—as noted in the case conference report and order (“CCRO”) released on August 11, 2025, and as confirmed by the parties at the outset of the hearing—are whether the appellant has established, on a balance of probabilities, that her deposit is warranted under the Act and if so, the quantum owed by the respondent.

3As such, the Tribunal must determine whether the appellant is entitled to receive payment out of the guarantee fund as compensation for the amount she paid to Primont Homes (the “builder”) as a deposit. To prove her case, section 14(1) of the Act provides that the appellant must show she exercised a statutory right to rescind the agreement of purchase and sale (“APS”) before closing, or that she has a cause of action arising from either the builder’s bankruptcy or a fundamental breach of the APS.

4For this matter, the appellant alleges she exercised her statutory right to rescind the APS under the Act, and that that a fundamental breach of the APS occurred.

RESULT

5The appellant has not demonstrated that she exercised a statutory right to rescind the APS, or that a fundamental breach of the APS occurred. The appeal is dismissed.

PROCEDURAL ISSUE

The appellant seeks to add an issue to her appeal

6I find the appellant may add the issue of whether the builder committed a fundamental breach of the APS under section 14(1)(b)(ii) of the Act.

7For context, at the outset of the hearing, the appellant signalled an intention to argue that the builder had committed a fundamental breach of the APS. However, her Notice of Appeal does not indicate this ground of appeal. As such, I requested that the parties make submissions on whether it was open to the appellant to introduce a new ground of appeal at the hearing.

8The appellant submitted that the last paragraph of the decision letter says the respondent has not received evidence to support a builder bankruptcy or fundamental breach of condition. The appellant reasoned that it is therefore open to her to pursue either of these grounds because the respondent applied its mind to these two sections of the Act. Further, the appellant maintained that she could raise any issue at the hearing because it is “de novo” (i.e., from the beginning). The appellant also explained that since the Act provides for consumer protection above all else, it is most sensible to deal with the builder’s fundamental breach of the APS now instead of requiring the appellant to initiate a new proceeding.

9While the respondent agreed that the hearing was proceeding de novo, it did not consent to adding the issue and argued that it collected information and based its assessment on the deposit claim form as submitted by the appellant at the time she made her appeal. The respondent maintained that while it came prepared to argue whether the appellant exercised her statutory right to rescind the APS, it did not anticipate the fundamental breach ground to be raised at the outset of the hearing. The respondent added that this matter, in its opinion, does not rise to the “very high” threshold of what is required to constitute a fundamental breach of contract.

10In reply, the appellant countered that while it was open to the respondent to ask for an adjournment to prepare on the fundamental breach issue, the respondent failed to do so.

11Having now considered the submissions of the parties, I agree to consider the additional issue raised by the appellant. While the respondent indicated it had not anticipated addressing a fundamental breach during the hearing, it did not request an adjournment be considered to allow more time to prepare in the event the issue was added. Further, I was not persuaded that the respondent would be prejudiced if the issue was added. This is because the appellant was content to rely on the evidence it had already submitted for the hearing to argue this ground. I also placed weight on the fact that the respondent included an authority in its brief to support its position that the appellant cannot meet the high bar of a fundamental contract breach. In my view, this means the respondent had an opportunity to respond to the appellant’s breach claim.

ANALYSIS

Did the appellant exercise a statutory right to rescind the purchase agreement before closing?

12I find the appellant has not shown that she exercised a statutory right to rescind the purchase agreement before closing.

13The appellant submits that the critical dates in the Statement of Critical Dates (the “statement”), which forms part of the addendum to the APS, cannot be altered unless, pursuant to section 4(b) of the addendum, the parties to the APS mutually agree to make changes. The appellant maintains that up to the hearing, both parties agreed the APS could be terminated anytime between December 29, 2023, and January 29, 2024. The appellant therefore reasons that she properly exercised her statutory right to rescind the APS within the termination period set out by the addendum because she provided written notice to the builder on January 4, 2024.

14The respondent argues that the calculation performed by Ms. Taryn Morris (warranty services analyst) in her conciliation assessment report dated February 6, 2025, establishes that the termination period to be applied under the appellant’s APS is from August 31, 2023, and September 30, 2023. The respondent points to a series of allegedly non-compliant delay notices issued by the builder throughout 2022 and 2023 that “played a pivotal role” in calculating this termination period. As such, the respondent asserts that the appellant needed to terminate the APS earlier than January 2024, and that she has not met her onus to show her termination notice was issued within the prescribed period. The respondent relies on Wu v. Suevilia Development Corporation, 2024 ONCA 124 to show the appellant was responsible to know her APS and the circumstances that could give rise to critical date changes.

Did the parties mutually agree that the APS could be terminated anytime between December 29, 2023, and January 29, 2024?

15I find the parties did not have a mutual agreement that pertained to the appellant’s termination period or any critical date that influenced the termination period.

16Section 4 of the addendum concerns changing critical dates by mutual agreement. Subsection (b) provides that the builder and the appellant may, at any time after signing the APS, mutually agree in writing to accelerate or extend any of the critical dates.

17The appellant did not produce evidence of a written agreement with the builder that concerned any changes to the termination period in the statement. I find the testimony of Mr. Charles Attardo (vice-president of Primont Homes) supports this lack of evidence; his opinion was that purchasers of the builder’s homes “probably” do not have an opportunity to negotiate terms of their APS, which I take to include the statement because it forms a part of the APS. While this is not a definitive opinion that merits full weight on its own, it was persuasive insofar that it indicated a mutual written agreement to revise a critical date most likely did not exist when viewed in concert with the absence of one in evidence.

18Mr. Attardo also acknowledged that he believed as recently as September 2024 that the “outside” closing date of the appellant’s home was pushed out to 2025. He said this was because of unavoidable delays arising from the COVID-19 pandemic. I find this does not constitute a written mutual agreement as required by section 4 of the addendum. In contrast, I find the appellant was advised by the builder’s licensed legal representative—via email on January 10, 2024—that the builder did not agree to extend the closing date arising from the final COVID-19 notice in November 2023.

19Taken in totality on a balance of probabilities, I find this evidence does not support the appellant’s position that the builder had mutually agreed to any changes to the termination period.

Did the unavoidable delay notices issued by the builder bear upon the calculation of the appellant’s termination period?

20I find that the critical dates in the statement remained intact despite the unavoidable delay notices issued by the builder.

21Section 2(a)(iii) of the addendum enables the builder to change a closing date because of an unavoidable delay. Section 5(b) of the addendum requires the builder to advise the appellant, in writing, of an unavoidable delay by setting out a brief description of the delay and an estimate of the duration. Further, the builder is required to issue this notice within 20 days of the delay commencing.

22For context, there are eight such notices in evidence—all produced by the respondent:

(a) The first notice is undated and attributes a delay to the COVID-19 pandemic announced on March 11, 2020;

(b) The second notice, dated May 17, 2022, attributes an unavoidable delay to a construction strike as of May 2, 2022;

(c) The third notice, dated July 15, 2022, advises that the construction strike has ended and sets a new closing date of October 12, 2022 despite the ongoing delay owing to the COVID-19 pandemic;

(d) The builder issued it fourth notice on August 9, 2022, which informed the appellant that the COVID-19 pandemic delay continued and set a new closing date of February 8, 2023. This delay was repeated in three subsequent notices from the builder on November 2, 2022, March 9, 2023, and July 7, 2023, which set new closing dates of June 7, 2023, October 4, 2023, and January 10, 2024, respectively; and

(e) On November 13, 2023, the builder issued its final notice, which advised the appellant that the unavoidable delay owing to the COVID-19 pandemic had ended. This notice set a revised closing date of January 10, 2024.

23I did not consider the first notice to constitute any notice at all. It is a mail-merge letter that was not filled out with any of the appellant’s contact information, and presents as a template with blank fields waiting to be populated from a data source. As such, I am not persuaded that this document was ever provided to the appellant. The respondent’s February 2025 reconciliation report indicates the builder confirmed to the appellant that: “a mass email was sent out to all purchasers to initiate the start of the unavoidable delay [pertaining to COVID-19].” In contrast, Mr. Attardo testified that the mass email was never delivered, and that the first unavoidable delay notice was sent in May 2022, which actually pertained to a construction strike and not the COVID-19 pandemic. The builder’s inconsistent position on the status of this document caused me to further diminish the template’s probative value as written notice of unavoidable delay owing to COVID-19. And for her part, the appellant testified that she did not recall receiving any unavoidable delay notices prior to November 2, 2022.

24I did, however, put weight on this template document as evidence that the builder knew, or ought to have known, that an unavoidable delay owing to the COVID-19 pandemic commenced on March 11, 2020. I address the implications of March 11, 2020, later in this decision.

25I disagree with the respondent’s position that the May 2022 notice about a construction strike was a “technically correct, proper notice.” In my view, this letter merely serves to inform the appellant that a construction strike began on May 2, 2022, and falls short of constituting notice that the strike will result in an unavoidable delay. The letter says: “As a result of this strike notice, you may [emphasis added] be impacted by an Unavoidable Delay in the construction, completion and servicing of your new home ... As more information becomes readily available, we will keep you notified of any new developments.”

26Even if I were to accept this letter as an unavoidable delay notice as contemplated by the addendum, I would still find it deficient because it does not provide an estimate for the delay’s duration. Instead, the notice offers the following explanation:

“It is difficult at this stage to determine how long the total delays may [emphasis added] be and thus how the construction schedule for your Home will be affected.”

While I can appreciate that it may have indeed been difficult to determine the duration of the strike at that time, I am satisfied the builder was nevertheless required by section 5(b) of the addendum to give an estimate if providing notice of an unavoidable delay. It cannot be said that the duration of the COVID-19 pandemic would have been any easier to estimate, and yet, the builder provided revised closing dates in each of the unavoidable delay notices after May 2022.

27Given that the May 2022 notice did not comply with section 5(b) of the addendum, I find no change in the critical dates could occur and the closing date would therefore remain as August 31, 2022, at that time.

28I am satisfied too, that the remaining notices issued by the builder did not comply with the addendum.

29Ms. Morris testified that the July 2022 notice—which alerted the appellant to the end of the construction strike—was deficient because it did not comply with the requirements set out at section 5(c) of the addendum to specify the day the strike ended, the duration of the strike, or provide new critical dates flowing from the end of the strike. I agree. And in any event, the notice later issued in November 2023 confirmed this strike ended on June 16, 2022. So, it can hardly be said that a notice dated July 15, 2022, was issued within 20 days of the event ending as required by section 5(c) of the addendum. As such, I find the critical dates specified in the statement remained unchanged at the time of the July 2022 notice per section 5(d) of the addendum. As such, the appellant’s home was still anticipated to be completed by August 31, 2022.

30While each of the subsequent notices dated in August 2022, November 2022, March 2023, and July 2023 set out a brief description of the delay event (i.e., the COVID-19 pandemic) and provide an estimate of the delay period by revising the closing dates, I am persuaded that they still cannot be valid notices per section 5(b) of the addendum. Ms. Morris testified that the builder was unable to prove it delivered its first unavoidable delay notice pertaining to the COVID-19 pandemic, and further, that this notice was not received by the appellant. I agree. Mr. Morris reasoned that subsequent notices were therefore invalid because they were not issued within 20 days of delay’s commencement. I agree with this too. In my view, the first unavoidable delay notice for the COVID-19 pandemic was issued on July 15, 2022, which is well past 20 days of March 11, 2020—the date that the builder knew or ought to have reasonably known an unavoidable delay caused by the COVID-19 pandemic had commenced. I find that section 5(b) of the addendum requires written notice of an unavoidable delay to be issued by the earlier of 20 days after the start of the event, or the next critical date in the statement. Given the next critical date following March 11, 2020, would be August 31, 2022, the builder was required to provide its notice within 20 days of March 11, 2020, which it did not do.

31To reiterate here for clarity, the date March 11, 2020, refers to the template document at page 71 of the respondent’s brief that I earlier addressed in this decision. I rely on this date because it is twice used by the builder to signal the start of unavoidable delays resulting from the COVID-19 pandemic—once in the document template and again in the November 2023 notice later issued to the appellant, which constitutes the final notice of an unavoidable delay issued by the builder.

32I am persuaded that the November 2023 final notice is not valid. Ms. Morris testified that this notice was issued by the builder to comply with section 5(c) of the addendum, which pertains to the end of an unavoidable delay. She reiterated that she did not accept this as valid notice of the construction strike ending because it was issued beyond the required 20 days of the event’s conclusion. Ms. Morris added that this notice was also unacceptable to conclude the COVID-19 delay because the first notice of unavoidable delay was never provided and invalidated the subsequent chain of notices. I accept that the section of the November 2023 notice pertaining to the construction strike does not comply with section 5(c) of the addendum because a November 2023 notice is well beyond 20 days of the strike ending on June 16, 2022. I find the COVID-19 section is invalid because the builder failed to issue a compliant notice of this unavoidable delay commencing on March 11, 2020 as it was required to do at section 5(b) of the addendum.

33Taken in totality, I find on a balance of probabilities that the evidence in this case shows that all of the builder’s unavoidable delay notices were invalid because they did not comply with section 5 of the addendum. The consequence of these invalid notices, as made out in the addendum, is that they did not affect the critical dates in the statement. Therefore, I am persuaded that the critical dates as stipulated in the statement remained intact, and that the closing date of August 31, 2022 continued to apply throughout the notice period.

The appellant’s termination notice occurred outside the termination period.

34I find the appellant’s termination notice was provided after her termination period expired.

35I accept that September 30, 2023, is the end of the 30-day termination period for a firm closing date of August 31, 2022. Ms. Morris pointed to her reconciliation assessment report to support her termination period calculation. She explained that the termination period is tied to what is referred to as the “outside closing date,” which, in this case, is 365 days after the firm closing date. I find that Ms. Morris’ testimony is consistent with the statement, which says: “If the purchase of the home is not completed by the Outside Closing Date, then the Purchaser can terminate the transaction during a period of 30 days thereafter … unless extended by mutual agreement.” Further, the statement establishes the outside closing date as being “up to 365 days after … the Firm Closing Date.”

36Given that August 31, 2023, would therefore be the latest outside closing date for a final closing date of August 31, 2022, I agree that the appellant would have to provide her termination notice by September 30, 2023 to prove she exercised her statutory right to rescind the APS under the Act.

37During the hearing, the appellant testified that she thought she had up to January 29, 2024, to provide her termination notice. She confirmed that she provided written notice to the builder of her election to terminate the APS on January 4, 2024, which is supported by the letter from her legal representative in evidence. Given that the termination period ended on September 30, 2023, I am persuaded that the appellant did not provide her termination notice in accordance with the addendum statement in the APS.

38Taken in totality on a balance of probabilities, I find this evidence establishes that the appellant’s termination notice was provided outside of the termination period and is therefore invalid. As such, the appellant has not demonstrated that she exercised a statutory right to rescind the APS before closing.

Did the builder commit a fundamental breach of the APS?

The builder did not meet its obligation to set a delayed closing date

39I find the builder failed to provide a delayed closing date to the appellant as required by section 3 of the addendum.

40Section 10(b) of the addendum provides that if for any reason other than breach of contract by the appellant, closing has not occurred by the outside closing date (i.e., August 31, 2023), and the appellant does not provide written notice of termination within the subsequent 30-day termination period, the APS shall continue to be binding on both parties and the delayed closing date shall be the date set under section 3(c) regardless of whether such date is beyond the outside closing date.

41Section 3(c) of the addendum says the builder shall give written notice to the appellant of the delayed closing date as soon as the builder knows that it will be unable to close on the firm closing date, and in any event at least 10 days before the firm closing date.

42Section 3(c) also stipulates that if notice of a new delayed closing date is not given by the builder before the firm closing date, then the new delayed closing date shall be deemed to be the date which is 90 days after the firm closing date.

43Section 3(d) of the addendum provides that in instances where the builder cannot close on the delayed closing date, the builder shall select and give written notice to the appellant of a new delayed closing date to be established in accordance with sections 3 (b) and (c).

44I find that the appellant and the builder did not close the sale of the appellant’s home by August 31, 2023. The evidence establishes that the builder continued to issue unavoidable delay notices until November 2023, and Mr. Attardo testified that the home was not ready for occupancy until January 10, 2024. Further, no evidence or arguments were made at the hearing to establish that the home failed to close on August 31, 2023 because the appellant breached the APS. Given too that the appellant did not terminate the APS within 30 days of August 31, 2023, I am satisfied that the APS continued to be binding on both parties after the outside closing date per section 10(b) of the addendum.

45However, the builder did not set a delayed closing date as required by section 3(c) of the addendum. Ms. Morris testified during cross-examination that she did not see any document that that set a closing date after September 30, 2023 when the termination period expired. Similarly, when Mr. Attardo was asked during cross-examination whether there was any document setting out a closing date that is not part of the “package,” which I take to mean the APS, he replied that he “didn’t think so.” Throughout the proceeding, I was not pointed to any notice of a delayed closing date issued by the builder at any point up to the hearing. I do not accept January 10, 2024 as a delayed closing date because it was set by the builder in the specific context of section 5 of the addendum, which strictly relates to unavoidable delay notices I determined to be invalid.

46As such, I am satisfied that the APS survived the builder’s wrongful termination because the builder’s repeated failure to set a new delayed closing date in accordance with section 3(c) and (d) of the addendum perpetuated a continuance of the APS at 90-day intervals.

Did a fundamental breach of the APS arise from the builder’s failure to set a delayed closing date?

47I find the builder’s failure to set a delayed closing date did not give rise to a fundamental breach of the APS.

48The applicant submits that if the Tribunal accepts the September 2023 termination period calculated by the respondent, the Tribunal must then consider the builder’s failure to set a delayed closing date as required by the addendum. Specifically, the appellant contends that the lack of a valid delayed closing date meant the APS was still in force pursuant to section 10(b) of the addendum when the builder sold the home to another party after closing did not occur on January 10, 2024. The appellant reasons that this action constitutes a fundamental breach because it deprived her of the main benefit of the APS.

49The respondent submits that a breach of warranty is a high bar to meet, and argues that the appellant has not met this threshold because her home was ready for closing just six days after she provided her termination notice to the builder. The respondent relies on Spirent Communications of Ottawa Limited v. Quake Technologies (Canada) Inc., 2008 ONCA 92 to show that the legal standard for a fundamental breach is whether it deprived the appellant of substantially the whole benefit of the APS.

50In response, the appellant claims that Spirent is distinguished from this matter because it involves a construction delay and is not a situation where the builder did not comply with the addendum by selling the house to someone else at the time a valid APS was in force with the appellant.

51In my view, Spirent presents a persuasive context for this dispute. Moreover, it is binding law. In Spirent, the court confirmed that a fundamental breach, in principle, is one that “deprives the innocent party of substantially the whole benefit of the contract.” Spirent also provides factors to be considered when assessing whether a fundamental breach has occurred:

(a) The ratio of the party’s obligations not performed to the obligation as a whole;

(b) The seriousness of the breach to the innocent party;

(c) The likelihood of repetition of such breach;

(d) The seriousness of the consequences of the breach; and

(e) The relationship of the part of the obligation performed to the whole of the obligation.

52The appellant’s submissions did not directly address these factors, but I have applied them here nonetheless because they bind my discretion.

53I find the seriousness of the breach to the appellant is minimal, as are the consequences of the breach. While the builder sold the home to another buyer while the APS was in force, the builder did so only after the appellant provided a termination notice that clearly established she did not intend to complete the sales transaction of the home. In my view, the appellant cannot claim she was deprived of substantially the whole benefit of a home that she no longer expected to occupy or own.

54For what it’s worth, the builder’s improper termination of the APS did not deprive the appellant from recovering substantially the whole of her deposit under the Act either. Rather, it was the appellant’s failure to provide a termination notice within the correct termination period that disqualified her eligibility for deposit warranty.

55There is also the fact that the ratio of the builder’s obligations not performed to the obligation of the whole APS was small. Mr. Attardo testified that the home was just six days from being occupancy-ready when the termination notice was issued, and this is corroborated by correspondence in evidence from the builder’s licensed legal representative. I also considered that the breach was not likely to be repeated because it ended at the time the builder listed and then sold the home to another buyer.

56In summary, when I consider the Spirent factors, I find that the evidence does not support a fundamental breach of the APS. I do not accept that the improper sale of the home to another buyer deprived the appellant of substantially the whole benefit of the APS, that being the home itself. As such, I am satisfied that the appellant has not shown a fundamental breach of the APS.

ORDER

57The appellant has not demonstrated that she exercised a statutory right to rescind the APS, or that a fundamental breach of the APS occurred. The appeal is dismissed.

Released: December 10, 2025

__________________________

Michael Beauchesne

Adjudicator