Licence Appeal Tribunal File Number: 15502/ONHWPA

Appeal from a Decision of Tarion Warranty Corporation under the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31 to Disallow a Claim

Between:

Renata J. Berlasso Moores

Appellant

and

Tarion Warranty Corporation

Respondent

and

Tartan Homes Corporation

Added Party

DECISION AND ORDER

Adjudicator: Robert Maich, Vice-Chair

Representatives:

For the Appellants: Renata Berlasso Moores, Self-represented

For the Respondent: Cindy Zhou, Counsel

For the Added Party: Benjamin Cavell, Counsel

Court Reporter: Erika Yu, Veritext Court Reporting

Heard: By videoconference on October 28, 29 & 30, 2024

OVERVIEW

1Renata J. Berlasso Moores (the "appellant") appeals from the Decision Letter of Tarion Warranty Corporation (the "respondent"), dated November 21, 2023, under s. 14(13) of the Ontario New Home Warranties Plan Act (the "Act") regarding the appellant's claims arising from various construction defects in her new home. Tartan Homes Corporation (the "builder") of the home, was previously added as a party to this appeal.

2In its decision letter the respondent outlined the proposed repairs remaining after the conciliation repair period and found there was no breach of warranty on the outstanding items. As a result, it denied the appellant's claim for warranty compensation under the Act.

3At the hearing, the appellant and Phil Bottriell, home inspector, testified on behalf of the appellant, Francois Belec warranty services representative, testified on behalf of the respondent, and Christine Cutts, Service Manager, testified on behalf of the builder.

ISSUES IN DISPUTE

4The issues in dispute are as follows:

(a) Was there a breach of warranty?

(b) If so, did the appellants suffer monetary damages from the breach of warranty?

(c) What was the amount of the damages?

5The Tribunal must decide:

(a) Was there a breach of warranty in respect of one or more of the 7 items that were dealt with in the respondent's decision letter:

i. Building Face/Exterior – Cladding (Brick, Siding, Stucco etc.) – stone application on exterior front is not straight or level - Item 3 on 30 Day Form.

ii. Building Face/Exterior – Cladding (Brick, Siding, Stucco etc.) – Material and design Exterior of the house on top of the garage does not correspond to images or communication from the builder representative - Item 4 on 30 Day Form.

iii. Exterior – Garage – door hinges on door to garage do not close completely - Item 21 on 30 Day Form.

iv. Interior – Basement – exhaust duct for basement laundry for second dryer located behind vapour barrier. – Item 30 on 30 Day Form - (resolved).

v. Interior – Windows – all interior windows require caulking under hardware - Item 36 on 30 Day Form.

vi. Interior – Kitchen Ceiling – piece of wood where vaulted ceiling should be. – Item 47 on 30 Day Form - (withdrawn).

vii. Interior – Stairs – Trim piece is not properly sized for the stairs - Item 63 on 30 Day Form.

(b) If so, did the appellant suffer monetary damage resulting from any breach of warranty?

(c) Where a breach of warranty occurred and monetary damage resulted, what is the amount of the damages?

RESULT

6I find the appellant did not discharge its burden of proof to show that there was a breach of warranty regarding the following items:

5 (a) i. Building Face/Exterior – Cladding (Brick, Siding, Stucco etc.) – stone application on exterior front is not straight or level - Item 3 on 30 Day Form.

iii. Exterior – Garage – door hinges on door to garage do not close completely - Item 21 on 30 Day Form.

v. Interior – Windows – all interior windows require caulking under hardware - Item 36 on 30 Day Form.

vii. Interior – Stairs – Trim piece is not properly sized for the stairs - Item 63 on 30 Day Form.

As a result, the appellant is not entitled to any warranty compensation for the aforementioned items under the Act.

7I find the appellant met its burden of proof to show that there was a breach of warranty regarding the following item:

5 (a) ii. Building Face/Exterior – Cladding (Brick, Siding, Stucco etc.) – Material and design Exterior of the house on top of the garage does not correspond to images or communication from the builder representative - Item 4 on 30 Day Form.

8I find the appellant did not discharge its burden of proof to demonstrate any monetary damages sustained as a result of the breach of the warranted item. As a result, the appellant is not entitled to any warranty compensation under the Act.

9The appellant advised during the course of the hearing that issue 5(a) iv was resolved and issue 5(a) vi was withdrawn, so the Tribunal was not required to decide them.

PROCEDURAL ISSUE

10The respondent put the Tribunal on notice 13 days prior to the hearing that it intended to challenge the qualification of the appellant's expert witness pursuant to Rule 10.4 of the Licence Appeal Tribunal Rules, 2023 ("Rules"), for failure to provide the proposed expert's qualifications and failure to deliver a witness statement outlining the opinion evidence and how it relates to his/her area of expertise as required by Rule 10.2, for failure to comply with the requirements for disclosure set out in Rule 10.2, to be met in advance of a hearing when a party intends to rely on the evidence of an expert witness. The respondent submitted it should know the case before it and was concerned about undisclosed engineering expertise on the facts, that may deliver some further unknown conclusions.

11The appellant submitted it wished to reply upon the report of its proposed expert witness, Phil Bottriell, and his testimony as an expert witness. The appellant submitted Phil Bottriell's Form 10 acknowledgement of expert duty, and C.V. on October 30, 2024, the third day of this hearing. The expert report was included in the appellant's submissions delivered to the parties on October 1, 2024, both due September 28, 2024.

12Rule 10.2 provides as follows:

"10.2 EXPERT WITNESSES (IDENTIFICATION AND DISCLOSURE)

A party who intends to rely on or refer to the evidence of an expert witness shall provide every other party with the following information in writing:

a. The name and contact information of the expert witness;

b. A signed statement from the expert, in the Tribunal's required form, acknowledging his or her duty to:

i. Provide opinion evidence that is fair, objective, and non-partisan;

ii. Provide opinion evidence that is related to matters within his/her area of expertise; and

iii. Provide such additional assistance as the Tribunal may reasonably require to determine a matter in issue.

c. The qualifications of that expert witness, referring specifically to the education, training and experience relied upon to qualify the expert;

d. A signed report that sets out the instructions provided to the expert in relation to the proceeding, the expert's conclusions, and the basis for those conclusions on the issues to which the expert will provide evidence to the Tribunal; and

e. A concise summary stating the facts and issues that are admitted and those that are in dispute, and the expert's findings and conclusions."

13Rule 10.3 provides as follows:

"10.3 DISCLOSURE AND FILING TIMELINES

If not otherwise ordered by the Tribunal, the information required by Rule 10.2 must be:

a. exchanged between the parties at least 45 days before the hearing; and

b. filed with the Tribunal as part of the hearing brief pursuant to Rule 9.

14The parties agree that the appellant did not comply with provisions of Rule 10.2 (b), (c), (d) and (e). No signed statement or Form 10 was provided prior to the hearing; the respondent was not provided with the expert's qualifications or C.V. prior to the hearing; no signed report was served, and no summary of facts, findings and conclusions was provided prior to the hearing.

15The appellant submitted that it cannot advance its case without the expert witness report of Phil Bottriell, titled "65151-87 Solidex Place – Warranty Inspection," dated March 15, 2024 ("Bottriell Report"), and wishes to rely upon both the Bottriell Report and the testimony of Phil Bottriell.

16The respondent made submissions pursuant to Rule 9.3, which deals with failure to comply with the Rules, as to whether the appellant may rely on the report of the proposed witness and whether the proposed witness may testify and in what capacity. Under Rule 9.3, a party who has failed to comply with respect to disclosure of a document or thing may not rely on it as evidence without the Tribunal's permission. The respondent directed the Tribunal to the criteria it is to consider when determining whether to grant such permission, set out in Rule 9.3 as follows:

a. the reasons for non-compliance;

b. whether a party will be prejudiced by the admission or exclusion of the evidence and the extent to which that prejudice can be mitigated by any other order;

c. the extent to which the substance of the information or testimony lies within the knowledge of the other party;

d. whether the other party opposes the admission of the evidence or testimony; and

e. the relevance of the document, thing, or testimony to an issue in dispute in the proceeding.

17The respondent submitted the following in response the above outlined criteria:

a. There is no reason for non-compliance of Rule 10.2, namely a witness statement to be served by October 5, 2024. The respondent acknowledged the appellant lost legal counsel on August 22, 2024 and acted as a self-represented party without the benefit of counsel.

b. The respondent would be prejudiced if the report is accepted and the witness permitted to testify as it would "flip the order of proceeding", leaving the respondent in a position where it does not know the substance of the testimony and the case to be met until it is placed in evidence.

c. The respondent acknowledged that the written report of the proposed expert has been within its knowledge since June 25, 2024, but stated that it could not anticipate the proposed expert testimony.

d. The respondent proposed the report may form part of the appellant's document brief, but should not be admitted into evidence.

e. The respondent conceded that the proposed report is relevant to the issues in dispute.

18The builder reiterated the respondent's submissions and added that the appellant was aware of the deadline for service of the proposed witness statement and its omission placed the builder in a position where it does not know the case to be met and should not operating on guesses.

19The appellant submitted that it had difficulty retaining counsel due to the fixed dates of the hearing and is learning the processes of the Tribunal. The appellant undertook to serve and file the proposed expert witness' CV and Form 10 by the following day. In regard to prejudice, the appellant submitted the evidence in the report of the proposed witness was in substance within the knowledge of the parties since the case conference, and the report was within their knowledge since June 25, 2024.

20The respondent and third party submitted the proposed expert report could be filed with the appellant's document brief, provided it is not accepted into evidence, and provided a CV of the proposed expert together with an acknowledgement of expert's duty be filed. Alternatively, in their submission should his report be accepted into evidence, his testimonial evidence should be limited to the four corners of the report.

21Further, the respondent and the third party submitted that the witness should not be qualified to testify as a professional engineer because no disclosure was given as to his discipline within the profession such as civil engineer, materials engineer, mechanical engineer, or electrical engineer; without this disclosure the respondent and third party submitted they would only be guessing as to the breadth of his evidence. The appellant submitted the witness was critical to her case.

22I find the appellant to be in non-compliance with Rule 10 and the Tribunal must apply Rule 9.3 and consider the relevant factors to determine if the proposed witness may testify and whether the report can be admitted. I find the reasons for the non-compliance with Rule 10.2 was due to the appellant's lack of familiarity with the Rules. I find the respondent and the builder would not be prejudiced by the proposed expert witness report being accepted into evidence as it was within the knowledge of the parties for some time, however, the testimony of the proposed expert witness remains within the four corners of the report; this testimony limitation is necessary to ensure the respondent and builder will be not be prejudiced by unknown expert evidence, as the proposed expert witness failed to execute a statement outlining any evidence outside the report. The acceptance into evidence of the proposed expert witness report is contingent upon the applicant filing the CV of the proposed expert witness and a Form 10 as required by the Rules. I find the proposed expert witness report was within the knowledge of the parties, and its exclusion would substantially impede the appellant from furthering its case.

23I order that the proposed witness, Philip Bottriell, be permitted to testify provided the appellant serves his CV together with a Form 10 on the parties and files the documents with the Tribunal, but his testimony must be limited to the four corners of the Bottriell Report and in no other areas not known to the respondent and the builder.

24Further, I find the respondent's and third party's submissions persuasive and Philip Bottriell may not give testimony as a professional engineer. as his discipline within the professional designation was not specified in the Bottriell Report and the parties should not be in the position of guessing what his anticipated evidence may be. However, Philip Bottriell may testify as a registered home inspector ("RHI") as disclosed in his report.

ANALYSIS

25Sections 13(1) and (2) of the Act require the vendor of a home to warrant to the owner, among other things, that the home is constructed in a workmanlike manner, free from defects in material, fit for habitation, and constructed in accordance with the Ontario Building Code. These warranties apply for one year after the warranty takes effect. An owner is entitled to compensation out of the guarantee fund under section 14(3) of the Act if the owner has a cause of action against the vendor for damages resulting from a breach of the vendor's warranty. Only if the vendor fails to resolve a warranted claim must the respondent pay compensation out of the guarantee fund to the owner, perform or arrange for the performance of necessary repairs or otherwise resolve the warranted claim.

26I found the Tribunal's decision in 8232 v. Tarion Warranty Corporation, 2013 CanLII 83569 (ON LAT) to be a useful guide in setting out the rights and responsibilities of the parties in the warranty claims process, which are highlighted below:

While the Act creates homeowners' rights, it also creates obligations. Similarly, while the Act imposes obligations on vendors, it gives them rights. A homeowner has the right to have a home constructed to certain minimum standards. The corresponding obligation is that claims must be made within certain time frames and the vendor must be given an opportunity to remedy any defects. The vendor has the obligation to remedy warranted defects but has as well, the right to inspect the alleged defect and agree or disagree with the homeowner about warranty coverage. If the vendor agrees that a defect is warranted, it has the right to carry out the repairs within a set timeframe.

Tarion also has rights and obligations under the legislation. Tarion has an obligation to conduct a conciliation inspection in response to homeowner complaints made in a timely manner. When the vendor fails to carry out the required remedial work, Tarion has an obligation to enter into settlement discussions with the homeowners and either arrange for remedial work to be carried out or pay a cash settlement. Central to the remediation scheme is Tarion's right to inspect and determine the scope of work necessary for the repair.

Building Face/Exterior – Cladding (Brick, Siding, Stucco etc.) – stone application on exterior front is not straight or level

27I agree with the respondent that this is not a warranted item for the following reasons.

28The appellant submitted that the front stone cladding appears to be bowed when viewed from the side. The respondent's decision letter stated that when viewed from a perpendicular position at a distance of six meters under natural lighting conditions, the stone appeared uniform and properly installed with no visible defect; alignment viewed from the side is not considered a normal viewing position. The respondent concluded there is no defect in workmanship and therefore no breach of warranty.

29The appellant did not accept the respondent's decision and filled this appeal to the Tribunal. The appellant relies upon the Bottriell Report written by Phillip Bottriell, RHI, of Property Inspection Network Limited.

30The appellant requested the Bottriell Report to evaluate two issues of the subject property, one relating to the front stone veneer cladding and the other for a resolved item. The Bottriell Report stated at page 3 of 11 or page 39 of the appellants document brief:

"The concern with the brick is that the installation is not to standard for workmanship and building code."

The Bottriell Report proceeds to describe the methodology and measurements for determination of the identified concern.

31The Bottriell Report details measurements of the front stone cladding in pages 2 through 7 through various measurements and photos. Photo 2 (page 3) of the Bottriell Report depicts a side view of the residence's stone cladding, photo 3 (page 2) and photo 4 (page 3) depict varying widths of the stone cladding between 80mm and 90 mm with the conclusion that other units confirm variation is 80 to 90mm. However, at photo 8 (page 6) of the Bottriell Report a stone cladding is in noted to be 94mm wide. Upon cross examination of Mr. Bottriell by the respondent, Mr. Bottriell acknowledged an error that the stone cladding variance was 80mm to 94mm, not 80 to 90mm as concluded at page 4.

32In the Bottriell Report the stone cladding is set against a level string at the top of the first floor roof line and set at 22mm as depicted in photo 5 (page 4), and compared at photo 9 (page 6) near the bottom of the stone cladding, with the comment it is set at 24mm matching the top of the cladding. Upon cross examination by the respondent, it was noted that the comments at photos 5 and 9 were inconsistent as the photo 5 comment reports it at 22mm, and photo 9 comment was reports the same at 24mm. Mr. Bottriell acknowledged that 22mm and 24mm do not match, and that the comments for photos 6 and 7 (page 5), both indicate 24mm was used as the offset for the calculations in the comments; further Mr. Bottriell acknowledged that the photo 7 comment mistakenly described the comparative photo at the "top," which should read "bottom". Mr. Bottriell also revealed in the course of his testimony that different methodologies for measurement were used for measuring the first floor stone cladding from the second floor stone cladding due to the height involved.

33Mr. Bottriell described the front stone cladding throughout his report as "brick", however upon cross examination he noted the stone cladding comprised a man made composite to present a stone like appearance, a different product from clay fired brick.

34The Bottriell Report offered the following conclusion at page 7 of 11, or page 43 of the appellant's document brief:

"SUMMARY BRICK VENEER

We confirm that the bricks do not line up plumb as expected. The bricks are varying widths. The expectation would be that back of the brick is consistently 1" from the framed wall and the front would be contoured. This is a workmanship issue.

The bricks are also not installed properly in a vertical manner. They are 12mm-20mm offset at the midpoint for the lower and upper sections when viewed from the side. This bow is visible."

35I note Mr. Bottriell attempted to give expert evidence outside of the four corners of the Bottriell Report during the course of the hearing, but that this evidence was not permitted pursuant to my earlier ruling limiting his evidence to the Bottriell Report.

36I find there is some degree of bowing to the stone cladding, however, due to the number of errors in the Bottriell Report that were revealed through cross-examination and discussed above, I cannot rely upon it to provide an accurate assessment of the extent of the bowing. The Bottriell Report and Mr. Bottriell's evidence carries reduced weight as a result.

37Upon review of the affidavit and testimony of Francois Belec, Senior Warranty Services Representative for Tarion, I note that Mr. Belec has significant experience in the construction industry and possesses a Building Code Identification Number: 110507, and is required in his position to be knowledgeable of the Ontario Building Code ('OBC") and Construction Performance Guidelines ("CPG").

38I note that Mr. Belec considered the appellant's concern in respect to the stone cladding and commented at para 24 of his affidavit:

"I did not consider this slight bow to be defective workmanship. This masonry cladding is cosmetic. It is not a structural component of the exterior wall. It does not need to be perfectly plumb. The general appearance of the masonry veneer cladding was acceptable."

39I further note that in Mr. Belec's evidence he referred to Article 1.5, 1.6 and 4.32 of the CPG and applied the tests and standards prescribed, which require that if masonry appears uniform from a distance of 6 meters away, it is considered acceptable condition.

40Mr. Belec reviewed Mr. Bottriell's report and the use of the plumb line and commented on the variance between masonry rows at para 29 as follows:

"However, this is the normal and expected condition of the front face of this masonry cladding. The masonry units are not uniform in width or thickness. Mr. Bottriell noted that the width of the masonry units varies between 80mm and 94mm. Therefore, if the back of the masonry units was attached to a flat surface, one would expect that on the front face, the thicker units would protrude further than the thinner units."

41I find Mr. Belec's evidence to be consistent and credible, and to be relevant in particular in assessing the significance of the bowing of the masonry. I assign it significant weight.

42I find there is some degree of bowing to the front stone cladding of the appellant's residence, however, I find that is acceptable and minor in nature and constructed in workmanlike manner, free from defects in material, fit for habitation, constructed in without structural defect; I find this is not a Tarion warranted item.

Building Face/Exterior – Cladding (Brick, Siding, Stucco etc.) – Material and design Exterior of the house on top of the garage does not correspond to images or communication from the builder representative

43I agree with Tarion's decision that these items are not warranted under the Act for the following reasons.

44The appellant submits that the cladding over the garage and below the first floor roof line and the cladding over the dormer above the garage do not correspond to images and communications from the builder. I will address each item separately as each involves different fact situations.

45The appellant submits that it was directed to view homes in another development to view how the optional stone cladding was applied to various homes. None of the homes observed by the appellant were of the same model as her selection, however she did locate a model very similar in appearance. The appellant detailed the viewed model in a photo at page 5 of her materials. This photo captured a similar model with stone cladding above the garage. The appellant testified that this observation led her to believe that stone cladding would be applied over the garage and below the roofline of the second floor.

46The builder submitted that it presented the overall look of the selected home to the appellant through an artist rendering of another model. This model clearly depicted siding over the garage and siding over the entirety of the second floor including dormers, with brick fired clay brick applied over the fascia of most of the first floor. The appellant testified she was confused by this email and rendering since it did not depict stone cladding over the first floor or any of the second floor and sought clarification but did not respond to the email. The builder submits that the appellant should have understood from this depiction that no stone would be applied over the garage, and it was incumbent upon the appellant to reply to this email to seek clarification.

47I find that the appellant was confused by the lack of clarity in communications from the builder in respect to the details of the overall look of the model selected by the appellant, and it was incumbent upon the builder to provide clear detail of the cladding applications to be applied to the appellant's specified model.

48In regard to the issue of the cedar shake cladding application, the appellant relies upon the Agreement of Purchase and Sale ("APS") she signed with the builder on June 19, 2021, and its addendums and schedules. Specifically, the appellant relies upon the builder Exterior Colour Selection document also executed June 19, 2021. The appellant submits that the document clearly indicates "CEDAR SHAKES: BASALT 229', and that she had an expectation this material would be used because of its appearance in the colour selection document.

49The builder submitted that the Tartan Exterior Colour Selections document was not part of the APS and relies upon an exclusion clause at paragraph 41, submitting that the Tartan Exterior Colour Selection document falls outside the APS and its schedules by operation of the exclusion clause. Further, the builder submits that the appellant did not pay any additional fees for the cedar shakes and relies upon the absence of this item in Option Addendum – 1 executed June 19, 2021 and Change Order -2, also executed June 19, 2021.

50I do not find the builder's submissions persuasive that the Tartan Exterior Selection document is excluded from the APS. I find paragraph 31 of the APS specifically refers to the Tartan Exterior Colour Selection document and adopts it as part of the contract, nor does paragraph 41 contain any language that specifically excludes the Tartan Exterior Colour Selection document.

51I find while the appellant led evidence to support her expectations regarding installation of stone cladding and cedar shake as above, she did not lead any evidence to support monetary damages resulting from the failure to meet her expectations. As noted above, no additional fees were paid for the cedar shakes. There was no evidence that she had paid an additional amount for the stone cladding she had expected to be applied.

52I do not find the builder's submissions that the cedar shake option absence from the Option Addendum -1 or Change Order – 2, to be persuasive that the cedar shakes did not form part of the contract. I note that other non-included items were blacked out from the Tartan Exterior Colour Selection document; the builder had no explanation as to why the cedar shake selection was not blocked out. other than to submit its inclusion was probably an error on its part. I find erroneous contract preparation cannot benefit the builder as the drafter of the APS. I find the Cedar Shake selection to form part of the APS.

53I find that the appellant had a reasonable expectation given the representations of the builder that stone cladding be installed over the garage. However, I find the appellant did not prove any damages for the item to be warranted by Tarion.

54I further find that the appellant had a reasonable expectation that cedar shake be applied as a cladding, however there is no indication where the cedar shake should be applied. Further, I find the appellant did not and could not prove any damages for this item to be warranted by Tarion.

55I find that the appellant did not demonstrate quantifiable damages for the stone cladding over the garage or the application of cedar shake.

56I agree with Tarion's decision that the appellant is not entitled to receive payment out of the guarantee fund for damages resulting from breach of warranty regarding these items as the appellant did not demonstrate any quantifiable damages.

Exterior – Garage – door hinges on door to garage do not close completely

57I agree with the respondent and the builder that this is not a Tarion warranty item for the following reasons.

58The appellant testified that the door between the garage and the interior mud room of the home did not latch consistently under power of the self-closing device currently installed. The appellant requests a more powerful self-closing device be installed that will consistently latch at the builder's expense.

59Upon review of the affidavit of Francois Belec, I note that the issue is addressed from para 51 through para 59. Mr. Belec tested the door to the garage and discovered when another door from the kitchen/dining room area to the mud room was closed, the mud room door would not latch. In all other circumstances the door from the mud room to the garage would latch. Mr. Belec then concluded that this was an air pressure issue not related to workmanship.

60Mr. Belec also provided evidence that Article 9.10.13.15 of the OBC requires that a self closing device be installed on the door between the garage and the interior of the dwelling space as an effective gas barrier.

61In his testimony Mr. Belec gave expert evidence that a door between a garage and the interior of the dwelling space serving as a gas barrier need not latch in all circumstances to be deemed effective; this is distinguished from a fire barrier door that must self close in all circumstances. Further, Mr. Belec gave evidence that the self-closing power required to close a door between a garage and dwelling interior in all circumstances may not be desirable as it may close too quickly or unexpectedly in some circumstances creating a potential for injury.

62I accept the expert opinion evidence of Mr. Belec that a door between a garage and interior dwelling space need not latch in all circumstances to be an effective gas barrier in compliance with the OBC. I also accept the expert opinion evidence of Mr. Belec that the inconsistent latching of the door from the mud room to the garage is an air pressure issue and not a workmanship issue. I find that this issue is not a warranty item under Tarion.

Interior – Windows – all interior windows require caulking under hardware

63I agree with the Tarion decision letter and find that this is not a warranty item for the following reasons.

64The appellant submits that one window crank in the main floor washroom was caulked underneath the crank and no other window cranks in the residence had this treatment. The appellant requested that the treatment be made consistently and all other window cranks in the residence be caulked underneath. The appellant did not provide any contractual evidence or obligation that the caulking was required.

65The respondent relies upon the affidavit of Mr. Belec at para. 60 through para. 65. Mr. Belec observed that the window crank located in the main floor washroom was located at eye level and supposed in his testimony this may have caused a worker to apply caulking underneath this particular window crank, but concluded he did not know why it was done. Mr. Belec provided evidence there was no draft leak at any of the remaining window cranks nor was caulking recommended or required by the window manufacturer.

66I find that there was no obligation on the part of the builder to caulk underneath the window cranks. I find this is not a warranted item under Tarion.

Interior – Stairs – Trim piece is not properly sized for the stairs

67I agree with the Tarion decision letter that this is not a warranty item.

68The appellant submitted that the trim piece along the stairs to the upper floor was not properly sized and referred to photos included in the respondent's document brief at pages 153 and 154 depicting a slightly lighter shaded vertical trim piece that from the view at the top of the stairs, protruded approximately 1.5cm to 2cm beyond the horizontal trim. The appellant submitted that the vertical trim piece was not completed in a workmanlike manner.

69The builder submitted that the stairs came from the manufacturer with the trim piece as shown in the photographs at pages 153 and 154 of the respondent's document brief. The builder had no explanation for the protrusion of the trim or the slight colour variation, but submitted that the stair trim does not violate the OBC or the CPG.

70The respondent also relies upon the affidavit of Francois Belec at paras. 72, 73 and 74. Mr. Belec observed the subject trim piece of the complaint and concluded the trim piece did not affect the function of the stairs, nor was it a trip hazard. Mr. Belec concluded the issue was purely cosmetic.

71I find it important to note that the appellant did not make any submissions or refer to any evidence regarding compensation for this item.

72I find that this issue is cosmetic in nature and not subject to warranty

SUMMARY

73The appellant is not entitled to warranty coverage arising from the respondent's decision letter. As a result, the appellant is not entitled to compensation.

ORDER

74Tarion is directed to deny the appellant's claims as set out in the decision letter dated November 21, 2023

Released: January 13, 2025

__________________________

Robert Maich

Vice Chair