Licence Appeal Tribunal File Number: 16462/ONHWPA

In the matter of an appeal of a Decision Letter of Tarion Warranty Corporation under the Ontario New Home Warranties Plan Act, R.S.O. 1990, O.31 (the “Act”), to deny warranty claims

Between:

Nadeem Syed

Appellant

and

Tarion Warranty Corporation

Respondent

and

Mattamy (Half Moon Bay) Limited

Added Party

DECISION and ORDER

VICE-CHAIR:

Geneviève Painchaud

APPEARANCES:

For the Appellant:

Nadeem Syed, Self-represented

For the Respondent:

Suzanne Chandrakumar, Counsel

For the Added Party:

Orly Kahane-Rapport, Counsel

Heard by Videoconference:

March 28, 2025

OVERVIEW

1Nadeem Syed (the "appellant") appeals a Decision Letter dated November 3, 2024, issued by Tarion Warranty Corporation (the “respondent”) denying the appellant’s claim for plumbing defects warranty coverage under section 14(3) of the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31 (the “Act”).

2Mattamy (Half Moon Bay) Limited (the “builder”) was added as a party to this proceeding at the January 6, 2025 case conference.

3The appellant alleges that the plumbing noise in an upstairs bathroom of his home, which can be heard in the bedroom next to it, constitutes a defect which is warranted under the Act and that he is entitled to having the builder fix it. The respondent and builder deny that there is a defect and argue that this is a normal level of noise. Further, the respondent and builder state that this claim was filed improperly on an Emergency Claims form.

4The 3-storey, 4-bedroom and 3-bath home at issue is located at 2424 Watercolours Way in Ottawa.

5This matter proceeded to a one-day videoconference hearing. The appellant was his sole witness. I also heard the testimony of two witnesses for the respondent, Randi Cain and Philip Goldsmith, both Warranty Services Representatives on Tarion’s technical desk. The builder called Jessica Reid, Senior Warranty Manager and Abdul Faizi, New Home Technician.

ISSUES

6The issues in dispute are as follows:

(a) Was there a breach of warranty under the Act?

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

(c) What was the amount of the damages?

RESULT

7I find the appellant did not discharge his burden of proof to show that there was a breach of warranty regarding the plumbing noise issue. As a result, the appellant is not entitled to any warranty compensation under the Act.

EVIDENCE AND ANALYSIS

8Sections 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.

9Section 14(3) establishes that, subject to the regulations, an owner is entitled to receive payment out of the Fund for damages resulting from a breach of warranty.

10Section 5.10(b)(i) of Regulation 892 under the Act (the “Regulation”) specifies that Tarion may, in its sole discretion, extend or abridge any timelines if it determines that a claim item involves health and safety, seasonal repairs or an emergency.

The claim form for warranty coverage

11I find that the issue of which form was used is irrelevant to my decision in this case. The respondent did offer the Emergency Claims Form to the appellant, knowing what his issue was regarding the plumbing noise. While I agree with the respondent and the builder that this claim does not qualify as an emergency, the Act serves as a public protection mechanism. The respondent chose to offer this form, investigate the issue and provide a Decision Letter, which informed the appellant of the process to appeal it. It would be unfair to then argue that since the wrong form was used at the beginning, the appeal process mentioned in the decision letter is not applicable. In addition, the respondent submitted that it would have come to the same conclusion if the Year-End Form was used.

The claims process

12The process of Tarion arriving at a decision in respect to a warranty claim is set out in the Regulation.

13The appellant took possession of his new home on April 25, 2024 and moved in over the following days, around May 1, 2024.

14In his claim form and in his testimony the appellant made the following inconsistent representations regarding the occupation of the home, and the plumbing noise:

a. That he has been occupying the home since May 1, 2024.

b. That his children are scared to sleep in the bedroom next to the bathroom due to the noise.

c. That his children and wife have never resided in the home and are only coming back from India next month.

d. That his children and wife moved to India as they cannot sleep in their home (due to the noise).

e. That his children have never heard the shower noise.

f. That he cannot use the room for any use as he cannot sleep in this room nor can his children because of the noise.

g. That the noise is only heard when the shower is in use.

15While these inconsistencies could impact the appellant’s credibility, the truth of these declarations relate only to the level of noise heard or its impact on people living in the home. I do not find that they impact the issue to be determined, which is if the plumbing issues are warrantable under the Act. I therefore do not accord much weight to them, regardless of their validity.

16The appellant submits that he only noticed the plumbing noise a bit over one month after moving in which is why he did not submit it on his 30-Day Form. He states that the noise is heard in the bedroom next to the bathroom when the shower is in use.

17Along with his Emergency Form, the appellant included a report dated June 8, 2024 from David Wincherook, home inspector, which states that the shower makes noise and included a list of recommendations on how to remedy the situation, including adding insulation in the wall and moving a vent at a cost of approximately $100. The appellant admitted that the report does not mention that there is any Ontario Building Code violation.

18Mr. Faicy inspected the plumbing noise on behalf of the builder, along with a plumber, in the following weeks and concluded that it was normal plumbing noise and that there was no need for extra insulation in the wall, and therefore this was not a warrantable issue. He stated that one option to reduce the noise heard was to put the bed against another wall in the bedroom rather than against the bathroom wall as there appeared to be adults staying in the room. The builder also provided evidence that the home passed the City of Ottawa plumbing inspection.

19The builder attended the home a few times in July and August 2024 about this issue but advised the appellant that since it was not considered an emergency, normal timelines would apply.

20Mr. Goldsmith attended the home on August 28, 2024 on behalf of Tarion to perform an assessment and in his September 17, 2024 Conciliatory Assessment Report he concluded that the plumbing noise was typical and found no notable deficiency. He found that the sound was of water flowing through plumbing which is typical of shower and supply plumbing. He concluded there was no defect in workmanship or material and it was therefore not a warrantable defect.

21In his assessment report, Mr. Goldsmith referred the appellant to the relevant portions of Tarion’s Construction Performance Guidelines, specifically article 6.8 regarding noisy water pipes or water hammer. It states:

“Water supply pipes shall be installed to minimize the effect of water hammer and in accordance with the Building Code. Drainage pipes shall be installed in accordance with the Building Code.”

“Repetitive hammering of supply pipes during normal operation may indicate a problem and should be investigated. A sudden thump or bang of water supply pipes when a faucet or fixture is closed abruptly is normal and not covered by statutory warranty. Anti-siphon valves on exterior hose bibs may make a high pitch sound or contribute to water hammer. This does not necessarily represent a defect.”

22Although this claim was made on an Emergency Claims Form, Mr. Goldsmith stated that he would have come to the same conclusion if it had been submitted on another form such as a Year-End Form.

23Tarion’s Decision Letter dated November 3, 2024 confirmed the denial of the claim based on the same reasons stated in the Conciliatory Assessment Report.

The onus

24The appellant repeatedly submitted that someone needed to fix his plumbing but he was unable to demonstrate that the noise issue with his shower is warrantable under the Act. He variously argued that perhaps it was the responsibility of the respondent, perhaps the builder, perhaps the City of Ottawa or perhaps the Ontario Building Code.

25The respondent submitted that the appellant is seeking perfection and that in G.M. & L.M. v. Tarion Warranty Corporation, 2018 ONLAT ONHWPA 10869, the Tribunal turned to Hoffer (Re), [2008]

O.L.A.T.D. No 3, which cites Saporita (re) [1999] O.C.R.A.T.D. No. 166:

Perfection and nothing less than perfection is not a reasonable expectation when dealing with what can be termed a standard home. One does not live in a perfect world and allowance must be made for minor imperfections.

26Unfortunately, allegations of a defect are not enough to meet the onus. The appellant submitting his inspector’s report as proof of noise that could be remedied by putting insulation in the wall and moving a vent does not demonstrate a defect under the Act, nor under the Ontario Building Code, perfection is not the standard under the Act. Seeking an improvement of the current situation, even at the suggestion of a home inspector through a report, does not automatically make an item warranted. I agree with the respondent and the builder that the appellant put no evidence forward of industry standards to support his claim for a defect under the Act. The burden is on the appellant to bring forward objective evidence of a breach of warranty under the Act and he has not done so.

ORDER

27Having considered the evidence and the submissions of the parties, I order Tarion to deny the appellant’s claim as set out in the decision letter dated November 3, 2024.

Geneviève Painchaud

Vice-Chair