Yousra Javed v. Tarion Warranty Corporation, 2025 CanLII 20834

Licence Appeal Tribunal File Number: 14995 and 15699/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:

Yousra Javed

Appellant

and

Tarion Warranty Corporation

Respondent

and

Fernbrook Homes (Seven Oaks) Limited

Added Party

DECISION

ADJUDICATOR: Bruce Stanton

APPEARANCES:

For the Appellant: Yousra Javed Salman Javed, Representative (and husband of the appellant)

For the Respondent: Karen Gaupholm, Director of Warranty Services Tiffany Hallatt, Warranty Services Representative Michael Campbell, Counsel

For the Added Party: Stacey Peticca, Director, Vice President, Customer Care Cathy Atkinson, Customer Service Manager Adam Lifshitz, Counsel

Court Reporters: Taha Aqdas, Chris Delic

Heard by videoconference: January 13, 14, 15 and 16, 2025

OVERVIEW

1Yousra Javed (the “appellant”) appeals decision letters issued by Tarion Warranty Corporation (“Tarion”) dated June 9, 2023, for each of the one-year and second year claims, and supplementary decision letters dated January 31, 2024, for each of the one-year and second year claims, and a further supplementary decision letter dated July 31, 2024 in relation to item 178 on the one-year form. The five decision letters before the Tribunal contain 250 of the appellant’s claims relating to deficiencies in her new home.

2Fernbrook Homes (Seven Oaks) Limited (the “Builder”) was added as party to this proceeding at a case conference on August 9, 2023.

3On the first day of the hearing the parties sought rulings on what they considered to be several preliminary issues, including the admissibility and size of document books, witness lists, adding an additional decision letter, and the qualifications of an expert witness. Early on day two of the hearing, the appellant withdrew all but one of the roughly 250 claim items in dispute, leaving only item 178.

4The withdrawal of all but one claim item rendered the proposed preliminary issues relating to the additional decision letter and the size of the appellant’s book of documents pointless because only the parts of the document book relating to item 178 are relevant and the additional decision letter is not relevant to item 178.

5On the questions of admissibility of documents into evidence, I ordered that the admissibility will not be determined on a preliminary issue basis, but rather, if objections are raised, when the document is actually presented as evidence.

6With respect to the appellant’s objections to Tarion’s witness list, the parties are entitled to present relevant witness testimony which the other parties will have the opportunity to cross-examine. The value and weight of that testimony is determined by the Tribunal and the parties will have the opportunity to argue the weight it will be assigned as part of their closing submissions. The relevance and credibility of witnesses will therefore not be considered on a preliminary basis.

7Of the proposed preliminary issues, this leaves only the qualifications of a proposed expert witness which the other parties are free to challenge when the witness is called in the hearing. It will not be decided on a preliminary basis.

ISSUES

8The issues to be determined are:

a) Whether the appellant is entitled to compensation arising from the breach of warranty in claim item 178; and

b) If so, what is the amount of the damages.

RESULT

9The appellant is not entitled to compensation from the breach of warranty in claim item 178. The claim is denied.

PROCEDURAL ISSUES

10During the hearing the parties raised numerous objections to the proposed admission of evidence by another party. When objections were raised, I heard oral submissions from the parties on the objections and made oral decisions on the admissibility of the documents. If, after hearing submissions, I determined the document being proposed was relevant to the issues before the Tribunal, had probative value, and its admission was not prejudicial to the other parties, it was admitted and assigned an exhibit number.

11During the hearing the parties also raised objections to the proposed admission of documents that were filed after the deadline set out in the Amended Case Conference Report and Order (“ACCRO”). On those occasions I received oral submissions from the parties and thereafter made an oral decision to admit or exclude the proposed document.

ANALYSIS

12This matter concerns the denial of the appellant’s warranty claim item 178 regarding defects in the stone cladding of her home. Tarion deemed the claim to constitute a breach of the one-year builder warranty on the home. However, because of a dispute between the appellant and Builder as to the method of repairing the warranted cladding defects, the Builder was denied access to the home for the purpose of completing repairs during the 30-day, post-conciliation builder repair period. Tarion denied the claim on the basis that the reasonable repairs proposed by the Builder were refused by the appellant.

13For the appellant to be entitled to compensation for item 178, she has the burden of demonstrating that denying the Builder access during the 30-day period was reasonable under the circumstances.

The Tarion warranty protection scheme

14To properly establish the context of this dispute it is necessary to understand how the Tarion warranty scheme under the Act functions and what rights and responsibilities the homeowner, the builder and Tarion have within it. The administrative elements of the scheme are set out in O. Reg. 892 under the Act (“Regulation”).

15Tarion is a private, not-for-profit corporation designated by the Lieutenant Governor-in-Council to administer the Act and manage its warranty scheme.

16Tarion does not operate as an insurance company. Instead, its role is to ensure that builders comply with the statutory warranties set out in the Act. The warranties are those of the builder, not Tarion. The builder is required to respond to warranty claims within certain defined time periods.

17If a builder does not repair or resolve a warranty claim within the prescribed time, a homeowner may request a conciliation inspection, a process where Tarion assesses the unresolved items on the homeowner’s warranty form and decides whether they are covered under the warranty set out in the Act.

18After the inspection, Tarion issues a Conciliation Assessment Report (“CAR”) setting out which of the unresolved claims are warrantable, i.e. constitute a breach of warranty, and which are unwarranted. If a claim item in the CAR is warranted, the builder has 30 days from the date the CAR is issued to resolve or repair the item.

19If the builder fails to resolve the warranted items within the 30-day timeline, Tarion will then schedule a follow-up inspection with the homeowner to determine whether the builder has carried out repairs to the warranted items. If a warranted item remains unresolved, Tarion may then propose to provide cash compensation to the homeowner from the Guarantee Fund (the “Fund”) administered by Tarion or may arrange to have the repairs carried out.

20If a homeowner disagrees with Tarion’s warranty assessments in the CAR, they can request a decision letter, upon which further negotiation or mediation can continue between the homeowner and Tarion, or the homeowner may file an appeal with the Tribunal.

21In this case, Tarion issued a supplementary decision letter on July 31, 2024 denying claim item 178 because the appellant did not allow the Builder to conduct reasonable repairs to the warranted defects within the 30-day builder repair period.

Claim item 178

22Claim 178 was deemed warranted in the Tarion Conciliation and Assessment Report of May 9, 2024 (“CAR May 9 2024”). Tarion determined that the defects in the stone cladding represented a breach of the one-year builder’s warranty on the basis of an inspection conducted by Unlimited Business Solutions (“UBS”) on March 28, 2024, the report of which was issued on May 2, 2024 (the “UBS Report”). The UBS Report identified several locations where chips and dents in the stone exceeded a 15 mm standard set out in Tarion’s Construction Performance Guidelines for Freehold Homes and Condominium Units January 19, 2019 (“CPG”).

23The UBS Report also identified two stones adjacent each side of the front porch roof that were installed slightly crooked.

24The appellant’s representative testified that the UBS Report was flawed and not credible. He testified that the chips identified on the left side of their home were not included in the photos, the sizes of some of the chipped locations were exaggerated, and the author of the report was an estimator, yet he did not provide an estimate for the cost of the repairs.

25Karin Gaupholm, Director of Warranty Services at Tarion, testified that section 4.20 and Appendix 6 of the CPG establishes that chips and dents in clay bricks, the comparable standard for chipped stone cladding, measuring more than 15 mm constitutes a warrantable defect.

26CAR May 9, 2024 noted that the Builder is required to repair any of the stone cladding “chips that were identified as larger than 15 mm”. It noted that the colours and/or textures [of the repairs] may not perfectly match the surrounding area. In addition, CAR May 9, 2024 identified that the two stones on each side of the front porch roof, that were visually crooked and contained chips, should be replaced by the Builder.

27The Builder submitted that it was, at all times, prepared to repair and remedy the warranted defects during the post-conciliation, 30-day builder repair period.

The appellant is not entitled to compensation from the Fund

28I find that the appellant is disentitled to compensation because she unreasonably denied the Builder access to complete repairs to the warranted defects during the post-conciliation builder repair period.

29The heart of this dispute is the disagreement between the appellant and Builder on the method of repair to the warranted defects. The appellant refused the Builder access to the home unless it conducted the repairs the way the appellant directed.

30The disagreement resulted in no repairs being conducted during the builder repair period. Tarion then denied the claim because the appellant refused what Tarion considered to be reasonable repairs offered by the Builder. The denial of access to conduct repairs, Tarion asserts, denied the Builder its statutory rights and the opportunity for Tarion to mitigate damages.

31Because the appeal rests on the question of whether the appellant unreasonably denied access, my analysis will consider the following:

a) what the Tarion warranty process under the Regulation expects of homeowners and builders at this stage of the claim and how the refusal of a reasonable repair could disentitle a homeowner to compensation from the Fund;

b) how the Tribunal has decided similar disputes on builders being denied access during repair periods;

c) the appellant’s reasons for refusing access and insisting on the method of repair; and

d) the Builder’s engagement with the appellant in attempting to complete repairs to the warranted defects.

The Tarion warranty process at this stage – expectations of builders and homeowners

32Ms. Gaupholm referred me to Tarion’s Registrar Bulletin No. 4, February 1, 2021 (the “Bulletin”). Its purpose is to inform builders and homeowners of the rules and guidelines it applies to builders when resolving construction defects.

33In it, Tarion describes the obligations and responsibilities of builders and homeowners for the purposes of resolving claims. Ms. Gaupholm referred me to Appendix B, of the Bulletin, which relates to the circumstances that Tarion may consider reasonable and unreasonable for a homeowner to deny access to a builder. One of the unreasonable reasons for a homeowner to deny access is that the homeowner does not agree with the method or details of the repair work proposed by the builder, but Tarion considers the repair proposed by the builder to be reasonable.

34According to the Bulletin, a builder is expected to be fair and reasonable in the scheduling of repairs and reliable in terms of following up on the agreed to dates and times, allowing at least two business days’ notice to homeowners when scheduling repairs.

35Ms. Gaupholm testified that Tarion expects, in cases where conflicts with scheduling arise, builders should make at least three attempts to arrange and schedule repairs for a homeowner during builder repair periods.

36Similarly, homeowners are expected to be fair and reasonable in arrangements to schedule repairs, including responding to scheduling requests, allowing access during business hours, and working fairly with the builder to arrange repair opportunities within the builder repair periods. The Bulletin states that if a homeowner does not allow the builder a reasonable opportunity to resolve items during the prescribed repair periods, they may jeopardize their warranty coverage for those items.

The standard of repair

37Ms. Gaupholm also referred me to paragraph 2(b) of the Bulletin under the heading Exceptions to Chargeability, Reasonable Repair Refused. Paragraph 2(b) states that Tarion must consider the builder’s repair proposal sufficient to address the warranted item(s) according to the warranty obligation, including compliance with the applicable law, industry standards and the CPG. She added that, in cases where the CPG does not have a definitive comparator to the defects in question, Tarion looks to industry standards and conventions for the appropriate standard in repairing the defects.

38Ms. Gaupholm testified that the CPG was compiled with input from professional construction associations, construction experts and homeowner associations for the purposes of establishing minimum expectations for construction repairs and remedies. She said the CPG cannot cover 100% of all deficiencies but it has sections for the most common construction deficiencies. She referred me to the section of the CPG that most closely applies in this matter, the standard for clay bricks. She stated that the Calcium-Silicate stone cladding on the appellant’s home may not be clay bricks, but the relevant issue is not the material, but rather, the size of the chips and dents in them. The defect is aesthetic not structural. For example, if a chip or dent is noticeable to the naked eye from approximately 6 metres it could be a warrantable defect.

39Ms. Gaupholm testified that once Tarion determines the defects in the claim item are warranted, the next step is for the builder to conduct the repairs. She stated, “We can’t tell the builder how to conduct the repairs. If there is confusion about the scope of repairs [in the warranted item(s)] sometimes a builder will reach out to us. We do not get involved unless the homeowner requests it.”

40Ms. Gaupholm testified that by May 15, 2024 it seemed that nothing was being done and at one point she stepped in because the repairs were not taking place. She understood that access for the Builder to complete the repairs was being restricted because the appellant was waiting for Tarion to make a decision. She testified that she heard May 16, 2024 was offered as a date for the Builder to attend the property but the appellant notified the Builder of this date with less than 24 hours notice.

Tribunal decisions on a builder’s right to complete repairs

41The Tribunal has heard appeals where the actions of the builder and homeowner in the warranty process led to a party being unable to exercise its rights under the Regulation. In cases where a builder was denied reasonable access to remedy repairs during such a statutory repair period, the Tribunal has found that a homeowner is disentitled to compensation from the Fund.

42Regarding a builder’s and homeowner’s responsibilities, the Tribunal’s decision in 8232 v. Tarion Warranty, 2013 CanLII 83569 (ON LAT), states at paragraph 18:

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 timeframes and the vendor must be given an opportunity to remedy defects. The vendor has an 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.

43In respect to denying a builder reasonable access, in 5871 v. Tarion Warranty Corporation, 2010 CanLII 100819 (ON LAT), the adjudicator noted the importance of the right of a builder to attend at a home and carry out repairs or remedial work during the 30 days following a finding by Tarion that an item is warranted. In that case, the homeowners were held to have refused access to their home, contrary to legislative requirements, and their warranty claim was denied.

44In the same vein, in Imperato v. Tarion Warranty Corporation, 2024 CanLII 23447 (ON LAT) and Newton and Leah Ormsby v. Tarion Warranty Corporation, 2024 CanLII 56780 (ON LAT), the homeowner’s warranty claims were denied due to not providing the builder with reasonable access to perform repairs and attempt to remedy the warranted defects.

45I note that these prior decisions of the Tribunal are not binding on me but I found them persuasive in my analysis and I chose to apply them here.

The appellant’s rationale for refusing the builder’s proposed repairs

46The appellant’s representative, Salman Javed (“Javed”), submitted that the Bulletin and CPG are like brochures and information releases and referred to them as bylaws of Tarion that cannot prevail over the requirements set out in the Act and the Regulation. He submitted that the Act does not give the Builder 30 days to remedy the repairs in this case. He referred me to s. 13(1) of the Act in which every vendor warrants the home to be free from defects in material among other things, and the exclusions to s. 13(1) listed in s. 13(2) do not apply in his case.

47Javed testified that he disagreed with the UBS Report because, he argued, some of the chipped stones he pointed out to the UBS representative, Tom O’Brien, were not included in the report, the sizes of some of the chipped locations were exaggerated, and O’Brien, the author of the report, was an estimator yet he did not provide an estimate for the cost of the repairs.

48Javed testified that previous attempts by the Builder to paint over some of the chipped locations were not proper repairs and the colours did not match.

49Javed directed me to email correspondence between him, the Builder, and Tarion, between May 9, 2024 to June 11, 2024. The emails document the discussion between the parties during the post-conciliation, 30-day builder repair period and can be found at exhibits 3, 19, 26 and 27.

50The email exchanges reveal that:

a) On May 9, 2024, the Builder proposed a repair date of May 16, 2024 but Javed did not confirm it could attend that day until 4:32 pm the day prior (May 15, 2024). The Builder declined to attend on May 16 due to the short notice. Javed informed the Builder that his reason for delaying confirmation was his disagreement with the scope of work set out in the UBS Report.

b) On May 16, 2024, the Builder proposed May 24, 2024 as the next repair day.

c) The same day, Javed notified the Builder that it cannot replace the two crookedly installed stones unless the roof of the front porch is fully removed. The Builder replied that the two crooked stones could be replaced without removing the roof. Only the flashing adjacent the stones would need be removed and it would be reinstalled and caulked once the stones were replaced.

d) Later, on May 16, Javed also advised the Builder that he had developed his own scope of work to address the defects and had an estimate to complete the work at a cost of $16,000.00 + HST. It would entail removing the entire front porch roof to replace the stones. Javed sought the Builder’s agreement to proceed in accordance with his scope of work for the repairs.

e) Several emails were exchanged between the Builder and Javed on May 17. Javed advised the Builder it may attend the home on May 24, 2024, only between 8:00 am and 9:00 am, to complete repairs provided that it agrees to remove the entire porch roof as part of the repair. The Builder stated that imposing a mandatory condition on the repair (removing the roof to complete the repair) amounts to denying them access to the property to complete the repairs.

f) The Builder offered Javed dates for repairs on May 24, 27, 28, 29, 30 and 31, 2024, starting between 8:00 and 9:00 am, for one full day.

g) Ms. Gaupholm emailed the parties May 17, 2024, noting the back and forth of emails that day, and confirming that, from Tarion’s perspective, the scope of work to remedy the defects does not require the complete removal of the front porch roof.

h) On May 22, 2024, Javed emailed the Builder reiterating that the UBS Report is false and fabricated and that he refuses to accept the Builder’s planned scope of work for the repairs. Javed added that the Builder’s approach to the repairs would jeopardize the lifetime warranty from Arriscraft, the manufacturer of the stone cladding.

i) On May 26, 2024, Javed proposes that the chipped stones be replaced with new stones rather than be repaired. He suggests that brand new, uncut stones should be used to replace any of the stone cladding with chips or dents of 15 mm or more. Javed proposes May 30, 2024, from 8:00 am to 5:00 pm, for the Builder to attend the home and conduct the repairs, provided that it includes the full removal of the front porch roof.

j) On May 27, 2024, the Builder advises Javed that it does not agree to the conditions he is imposing on the scope of work for the repair and states that if Javed insists on dictating the method of repair, the Builder will not attend on May 30, 2024.

k) May 30, 2024 came and went with no resolution of the dispute over the method of repair. The builder repair period expired on June 9, 2024 with no repairs being made to the warranted defects in claim item 178.

51Javed testified that the appellant offered two dates for the Builder to conduct repairs, May 16, 2024 and May 30, 2024 but the Builder did not show up to conduct the repairs on those days. He added that, “we tried to work with them, we sent them multiple emails and they refused to respond.”

The Builder’s engagement with the appellant in attempting to complete repairs to the warranted defects

52While the email exchanges above reveal the basis of the appellant’s refusal to allow the Builder access to the property, they also provide insight into the Builder’s reasons for not attending the property on the two dates, May 16 and 30, 2024, Javed made available to it.

53The Builder submitted that it was at all times prepared to act on these repairs. It submitted that no weight should be given Javed’s testimony because he was vague and evasive in presenting his evidence and in answering questions under cross examination. The Builder submitted that the appellant has offered no evidence to suggest the Arriscraft warranty would be negated by the Builder’s proposed repairs.

54The Builder submitted that CAR May 9, 2024 governs. It set out the scope of repairs to be completed in the 30-day period and Builder had a right to complete the repairs.

The appellant refused a reasonable repair

55I find that the appellant denied the Builder access for the purposes of completing repairs to the warranted defects in her home.

56As discussed above, this Tribunal has found that a homeowner is obliged to provide a builder with reasonable access to the home during the builder repair period for the purposes of completing repairs or remedying the defects that Tarion has determined to be warranted.

57In this case, the appellant prevented the warranty process from proceeding beyond the 30-day repair period because she denied the Builder the ability to complete repairs to the defects described in CAR May 9, 2024.

58I find the standard of repair is a pivotal issue in this dispute because the crux of the appellant denying access to the Builder stems from her disagreement over the method of repairing the warranted defects.

59I give weight to Ms. Gaupholm’s testimony regarding the applicability of the CPG because the CPG is recognized in the industry as an appropriate basis for completing repairs and remedying defects in home construction. That the CPG is authored by construction industry experts and homeowner associations gives it credibility as a standard to which repairs ought to be made.

60I give weight to the Bulletin in establishing, for homeowners and builders, the practical elements and steps of a Tarion warranty claim. I agree with the appellant that the legal basis of the warranty scheme is set out in the Act and Regulations, but Tarion’s warranty process involves numerous steps, timelines, filings, and criteria. It is important that new homeowners have a practical guide to follow in filing a warranty claim, that can help them succeed in resolving defects and deficiencies they observe in their home. I find the Bulletin is one such example.

61I am not persuaded by Javed’s argument that the CPG and Bulletin have no bearing on the dispute before me. Indeed, I find that they are instrumental in informing the parties to any Tarion warranty claim of the basis by which Tarion, the legislated backstop to the builder’s warranty, will administer the warranty scheme.

62I find the email exchanges between May 9, 2024 and May 30, 2024 demonstrate that by imposing his own standard of repair for the warranted defects, Javed, on behalf of the appellant, effectively denied the Builder access to the home for the purposes of completing repairs and attempting to remedy the defects.

63I give weight to the email documentary evidence because it is a written account of the dispute over the method and standard of repair and is central to the key questions in this matter: whether the appellant’s denial of access to the Builder to remedy the warranted defects was reasonable. I find it was not reasonable.

64I am not persuaded by Javed’s submissions that he and the appellant tried to work with the Builder, having provided it with two repair dates on which the Builder failed to appear. On the contrary, I find, that from the first day after CAR May 9, 2024 was issued, Javed prevented the Builder from accessing the property during the required 30-day, post-conciliation builder repair period. For example:

a) He delayed confirming May 16, 2024 as a first repair day until the afternoon of May 15, 2024;

b) He proposed the Builder complete the repairs in accordance with a $16,000.00 + HST estimate that is not before the Tribunal. Javed insisted that the method of repair include the complete removal of the front porch roof to facilitate replacing the two stones, and later insisted that the chipped and dented stones be replaced with new stones, not just repaired;

c) Javed argued that the Builder’s intended method of repair would jeopardize their lifetime warranty on the cladding product from Arriscraft. A copy of an unaddressed Arriscraft Warranty Certificate was entered into evidence. It states that the “warranty is null and void if the integrity of the structure is not maintained after its completion”. The appellant has not referred me to any other documentation to suggest that the Builder’s intended scope of work would interfere or negatively affect the integrity of the cladding structure.

65It goes without stating that the appellant and Mr. Javed have every right to decide whom may be given access to their home or permitted to attend their property for any reason. However, denying the Builder access to conduct the repairs it, and Tarion, deemed appropriate for the warranted defects is contrary to s. 5.1(3) of the Regulation which states that the vendor shall have a further 30 days from the date on which the report (CAR) is issued to complete the repairs. They can deny access, but doing so could ultimately disentitle them to compensation from the Fund.

66I understand how homeowners like the Javeds can become frustrated by the rigour and multi-step Tarion warranty process. However, the 30-day, post-conciliation builder repair period, is a required step. The Builder has a statutory right under the warranty program to make the repairs to a warranted defect that it deems appropriate. I find that the Bulletin and other documents available to homeowners and builders provide a practical guide to navigating the Tarion warranty process.

67I find the Builder was reasonable in its attempts to schedule repairs at the appellant’s home. It made several inquiries to arrange dates within the 30-day timeline on May 9, May 16, and May 17, 2024. The Builder gave reasons for its approach to remedying the defects and attempted to address the appellant’s concerns and worries about the Arriscraft warranty. It expressed interest in working with the appellant to repair any of the cladding stones with chips larger than 15 mm, not just those pictured in the UBS Report.

68I find the Builder was proposing reasonable repairs. The proposed repairs were consistent with the CPG and endorsed by Tarion.

69I find the appellant has not met her onus in demonstrating, on a balance of probabilities, that denying access for the Builder to complete repairs was reasonable under the circumstances and therefore she is disentitled to compensation from the Fund in relation to claim item 178.

Costs

70In its closing submissions, the Builder sought an order from the Tribunal for costs and referred me to the Notice of Motion by the respondent seeking costs dated September 23, 2024.

71The Builder did not provide any additional oral submissions on the issue or set out the amount requested.

72The Tribunal denied the respondent’s motion for costs on October 17, 2024, noting that the appellant had not acted unreasonably, frivolously, vexatiously, or in bad faith in bringing a previous motion regarding claim item 178.

73Rule 19 sets out the parameters of requests for costs. Rule 19.1 stipulates that where a party believes another party in a proceeding has acted unreasonably, frivolously, vexatiously or in bad faith, that party may make a request to the Tribunal for costs. Rule 19.2 stipulates that the request can be made in writing or orally at any time before the decision is ordered released. Rule 19.3 sets out that the Tribunal may order that a party making a request orally under Rule 19.2 shall provide written submissions to the Tribunal and all other parties within 7 days of that oral request.

74I deny the request for costs because the Tribunal, five months earlier, determined that the appellant had not acted unreasonably, frivolously, vexatiously, or in bad faith in regard to the proceeding in relation to claim item 178 to that point. In addition, the appellant withdrew all but one of the disputed claim items in this matter on the second day of the hearing which resulted in 11 scheduled hearing days being vacated (reduced from 15 to four). In its oral request for costs, the Builder did not give reasons or examples of why it believed the appellant had acted unreasonably, frivolously, vexatiously or in bad faith during the proceeding.

75I find the request for costs, under the circumstances, to be a needless extension of the proceeding and without merit. The request for costs is denied.

Conclusion

76The appellant withdrew all claim items in the five decision letters and supplementary decision letters, except for claim item 178 on the one-year form.

77The appellant unreasonably denied the builder access to the home during the 30-day, post-conciliation builder repair period.

78The Builder was denied a reasonable repair of the warranted defects in claim item 178.

ORDER

79All of the disputed claim items in:

a) the decision letters of June 9, 2023, for each of the one-year and second year claims; and

b) the supplementary decision letters dated January 31, 2024, for each of the one-year and second years claims;

are withdrawn by the appellant, save and except claim item 178 on the one-year form.

80Pursuant to s. 14(19) of the Act, Tarion is directed to deny claim 178 in the supplementary decision letter of July 31, 2024.