Licence Appeal Tribunal File Number: 15870/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 (the “Act”) to disallow a warranty claim
Between:
Leah Ormsby and Newton Ormsby
Appellants
and
Tarion Warranty Corporation
Respondent
and
John Boddy Developments Ltd. Inc.
Added Party
DECISION AND ORDER
ADJUDICATOR: Geneviève Painchaud, Vice-Chair
APPEARANCES:
For the Appellants: Leah Ormsby, Appellant Newton Ormsby, Appellant
For the Respondent: Ted S. Weredynski, Paralegal
For John Boddy Developments Ltd: Edward Boddy, President
Heard: By way of written submissions
OVERVIEW
1Leah Ormsby and Newton Ormsby (the appellants) appeal to this Tribunal a decision letter (the “Decision Letter”) issued by Tarion Warranty Corporation (the “respondent”) dated April 8, 2024, denying a claim they made under section 14(3) of the Act.
2The appellants filed a second-year claim form which was received by the respondent on April 16, 2021, claiming a deficiency regarding ten items.
3The appellants filed a Notice of Appeal with the Tribunal on May 5, 2024 and asked to have the file combined with file 15668/ONHWPA. A motion order released June 18, 2024 denied the request that the files be combined. Also, in a motion order released June 4, 2024, the Tribunal agreed to have the matters heard by written submissions rather than by videoconference.
4At a case conference held July 17, 2024, the Tribunal found that only three of the ten items listed in the April 8, 2024 decision letter were properly before the Tribunal, which are items 13, 33 and 44 listed in the decision letter.
ISSUES
5The issues in dispute at the hearing are:
a. Was there a breach of warranty of items 13, 33 and 44 as listed in the decision letter? If so, what is the quantum of damages or what other relief are the appellants entitled to?
RESULT
6As the appellants did not provide any submissions or evidence for the written hearing by the deadlines established by the Tribunal, the appellants have failed to meet their burden of proving that items 13, 33 and 44 outlined in the decision letter are covered under the Act.
7I confirm Tarion’s denial of the claim.
8The appeal is dismissed.
EVIDENCE AND ANALYSIS
Proceeding in the Absence of the Appellants’ Submissions
9I find that notice was given to the appellants of the written hearing and the disclosure requirements in respect of that hearing and that the appellants failed to participate in the hearing in accordance with the notice. I determined that the hearing should proceed.
10Proceeding with a written hearing where a party fails to participate, under s. 7(2) of the Statutory Powers Procedure Act, RSO 1990, c. S.22 (“SPPA”), requires the Tribunal to be satisfied that the absent party received notice of the written hearing that complies with ss. 6(1) and 6(4) of the SPPA.
11At a case conference held July 17, 2024, in which the appellants participated, John Boddy Developments Ltd. (the “builder”) was added as a party, and a written hearing was set for November 29, 2024. On consent, the appellants’ submissions and evidence were due October 30, 2024, the respondent’s and the builder’s submissions and evidence were due November 14, 2024 and any reply submissions from the appellants were due November 22, 2024.
12A notice of written hearing (“NoWH”) confirming the hearing would be held on November 29, 2024 at 9:30 a.m. was sent to the parties on August 22, 2024. The notice also included provisions that as per Rule 9, if a party fails to comply with any rules, directions or orders with respect to disclosure, that party may not rely on the document or thing as evidence, without the consent of the Tribunal and that the Tribunal may make a decision in their absence and the parties will not be entitled to any further notice in the proceeding.
13On November 14, 2024, the respondent wrote to the Tribunal, to the builder and to the appellants stating that the appellants’ failure to deliver their submission on time prevents them from being in a position to provide a response. On the same day, the builder made the same assertion in an email to the parties.
14The appellants did not respond to the correspondence from the respondent and the builder, nor did they request any accommodation with respect to the outstanding delivery of their written submissions and evidence before the date fixed for the written hearing.
15I find that the appellants failed to file hearing submissions and evidence in accordance with the timeline established in the CCRO and in the NoWH. There is no indication of why the appellants failed to do so. I am also satisfied that the appellants received notice for this hearing as required by ss. 6(1) and 6(4) of the SPPA.
16As a result, I ordered that this hearing proceed pursuant to s. 7(2) of the SPPA.
The Appellants have not met their Burden
17The appellants have failed to meet their onus as they did not file written submissions, including evidence to support their claim, with the Tribunal in accordance with the timelines established by the CCRO and in the NoWH, as noted above, and no request for adjournment has been filed with the Tribunal. Accordingly, they have failed to meet their burden to demonstrate that their claim is warranted under the Act.
18In their communication with the Tribunal, the respondent and the builder stated that they were not in a position to file their responding submissions as there were no submission from the appellants.
19Accordingly, this appeal is dismissed.
ORDER
20For these reasons:
a. As the appellants have failed to provide any submissions, it follows that they have not met their evidentiary burden regarding the issues in dispute.
b. The appeal is dismissed.
LICENCE APPEAL TRIBUNAL
______________________
Geneviève Painchaud
Vice-Chair
Released: January 20, 2025