Zamshad and Mohammed v. Tarion Warranty Corporation
Licence Appeal Tribunal File Number: 16171/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”).
Between:
Mohammed Zamshad and Essam Mohammed
Appellants
and
Tarion Warranty Corporation
Respondent
and
John Boddy Developments Ltd.
Added Party
AMENDED DECISON AND ORDER
Adjudicator:
Robert Maich
Appearances:
For the Appellants: Mohammed Zamshad, Self-Represented
For the Respondent: Ray Doneto Suzanne Chandrakumar, Counsel
For the Added Party: Edward Boddy, Representative
Heard by videoconference: February 2, 3, 4, 2025
OVERVIEW
1Mohammed Zamshad and Essam Mohammed (the “appellants”) have appealed a Decision Letter issued on July 17, 2024 by the Tarion Warranty Corporation (the “respondent”) under section 14(13) of the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. 31 (“Act”).
2The appellants made a claim for warranty coverage on their home located in Ajax, Ontario (“home”) under the Act, for determination by the Licence Appeal Tribunal (“LAT”) of the following:
(2) INTERIOR - Basement - Unfinished Area - Two transverse cracks on Basement floor 3 (three) upgrade windows were installed instead of 4 (four).
(4) INTERIOR - Kitchen - Group #3 BIANCO ANTICO GRANITE was selected. Different type of granite was installed in countertop without prior approval. Gap between countertop and backwall tiles. Gap appears between kitchen cabinet and back wall.
(8) EXTERIOR - Roof {Exterior} - Roof Top - Roof tiles were displaced.
(9) EXTERIOR - Rutting/weathering appeared on recently built Driveway (built on 2022).
(10) INTERIOR - Garage (Interior) - Garage - Cracks appeared on garage Floor Poor strength or below standard concrete used in floor slab. Localized concrete chips moved away from floor slab. Stairs and guardrails are not in compliance with Ontario Building Code.
(11) EXTERIOR - Basement walkway stair made using wood instead of concrete and left hollow space underneath the staircase.
3The respondent took the position that there were no defects in any of the identified issues and, therefore, no breach of the two-year warranty.
4By letter dated August 21, 2024, the respondent requested that the builder John Boddy Developments Ltd. (the “vendor”) be added as a party to the proceeding as it has an interest in the proceeding.
5At a case conference, the vendor was added as a party. The vendor mirrors the respondent’s position that there are no defects in any of the identified issues and no breaches of the two-year warranty.
ISSUES
6The issues at the hearing are:
a. The first issue to be determined is whether the appellants have proven that the defects they allege exist are warranted under the Act.
b. If so, then the second issue is the quantum of damages or other relief the appellants are entitled to with respect to the warranted item(s).
RESULT
7The appellants did not satisfy the burden of proof that the defects alleged are warranted under the Act. I therefore direct Tarion to not pay any compensation from the Guarantee Fund.
ANALYSIS
Legal Test
8Section 13(1) 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. Section 13(2) excludes coverage for among other reasons, normal wear-and-tear, normal shrinkage of materials and improper maintenance. Section 13(4) states that 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.
9I 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.
10Further it has been held that the standard for Tarion Home Warranty is not perfection, in 9147 v. Tarion, 2015 CanLII 38755, the LAT recognizes the Construction Performance Guidelines (“CPG”) as a starting point, although not the law, on whether construction is “workmanlike.” I accept that the CPG is an industry standard and relevant to this proceeding. The appellants have not persuaded me that the CPG should not be applied; accordingly, I find the CPG to be persuasive and apply them as the context requires in this decision.
11It is also helpful to note R.R.O. 1990, Reg. 892, ss.15(2) and (3) in respect to the scope of the two-year warranty under the plan:
- (2) Every vendor of a new home warrants to the owner,
(a) that the home is constructed in a workmanlike manner and is free from defects in materials including windows, doors and caulking such that the building envelope of the home prevents water penetration;
(b) that the electrical, plumbing and heating delivery and distribution systems are free from defects in material and work;
(c) that all exterior cladding of the home is free from defects in material and work resulting in detachment, displacement or physical deterioration;
(d) that the home is free from violations of the Ontario Building Code regulations under which the Building Permit was issued, affecting health and safety, including but not limited to fire safety, insulation, air and vapour barriers, ventilation, heating and structural adequacy; and
(e) that the home is free of major structural defects. R.R.O. 1990, Reg. 892, s. 15 (2); O. Reg. 697/92, s. 1.
(3) The warranties described in subsection (2) apply only in respect of claims made during a two-year warranty period ending on the second anniversary of the date of possession, in respect of homes that were enrolled, or should have been enrolled, after December 31, 1990. O. Reg. 9/09, s. 8.
(4) The warranties described in subsection (2) are prescribed under clause 13 (1) (c) of the Act. R.R.O. 1990, Reg. 892, s. 15 (4).
Basement floor
12I find the appellants did not meet their burden of proof for their claim under s. 14(3) of the Act, that item 2 listed on the second-year form dated May 24, 2023 is a warrantable item.
13On behalf of both appellants, Mohammed Zamshad testified the cracks in the basement floor would eventually become a structure defect over the 80-to-100-year life span of the home. Mr. Zamshad further stated the cracks would eventually span to the footings compromising the structural integrity of the home.
14Mr. Zamshad further testified that the basement floor did not meet the Ontario Building Code, O. Reg. 332/12 (“code”), section 9.13.3.5 requiring concrete to be 75mm thick, and section 9.16.4.6 specifying basement concrete slab strength of 25MPa after 28 days. He submitted the strength of the concrete cannot be 25MPa due to the presence of the cracks, and that the presence of the cracks also demonstrated concrete curing requirements were not met as specified in PCI Manual TM-101, section 4.9’s requirements of curing concrete.
15In addition, Mr. Zamshad testified submitted that the cracks expose the interior of the home to radon gas, known to be present in the vicinity and contrary to code section 9.13.4.1 requiring soil gas control as specified by MMAH Supplementary Standard SB-9.
16The respondent submitted, as detailed in its decision letter of July 17, 2024, that it observed the basement concrete floor cracks and measured the cracks at or under 4 mm. It relies on Article 1.4 of the CPG, which states:
"Generally, concrete floor slabs are not structural. Concrete floors naturally crack during curing due to shrinkage,"
"Since the concrete floor slabs do not have to carry the load of the building, shrinkage cracks are generally considered aesthetic."
17The appellants rejected the standards of the CPG and preferred the US standards as described in Precast/Prestressed Concrete Institute Quality Control Technician/Inspector Level I & II Training Manual (“PSI Manual”). Mr. Zamshad did not persuade me that the CPG should be the applicable standard or that the PSI Manual should be the standard for the purposes of this warranty claim. I note the Tribunal is not bound by either publication; however, it is recognized that the CPG is the accepted industry standard in Ontario.
18The respondent submitted the presence of cracks does not mean that the compressive strength of the basement slab did not meet the code standard of 25MPa, and further that the appellants provided no evidence that the compressive strength test of the basement slab was less than 25MPa. The respondent further submitted the basement concrete floor slabs were constructed in a workmanlike manner and are not a structural defect. In regard to radon gas, the respondent submitted that the appellants provided no evidence of any radon gas measured in the basement of the appellants’ home. For these reasons, the respondent argued that this item is not warrantable.
19I find Mr. Zamshad demonstrated considerable technical knowledge of the concrete curing process consistent with his designation of Professional Engineer specializing in concrete applications. I find his knowledge to be credible and extensive. Further, I am confident that Mr. Zamshad with the depth of knowledge he demonstrated, could oversee this type of concrete curing process without any resulting cracks in the process. However, I find perfection is not the standard required under law as found in 9147 v. Tarion, 2015 CanLII 38755, and I find the CPG, widely relied upon in the construction industry in Ontario, to be assistive in determining whether the cracks are acceptable and cosmetic. The PSI Manual relied upon by the appellants does not indicate that the minor cracks in this circumstance constitutes a warrantable item under the Act. I find the cracks present in the basement slabs of the home to be within tolerances permitted by the code and as observed and measured by the respondent. I find that the appropriate standard is not perfection and the industry wide acceptance of the CPG to be assistive in this circumstance. I find that the cracks were minor in nature and cosmetic. I further find that the appellants submitted no empirical evidence that the concrete slabs of the home did not meet compressive strength requirements or that radon gas was present.
20I find on the balance of probabilities that the appellants did not meet their burden of proof for their claim under s. 14(3) of the Act, that item 2 listed on the second-year form dated May 24, 2023 is a warrantable item.
Kitchen Countertop
21I find the appellants did not meet their burden of proof for their claim under s. 14(3) of the Act, that item 4 listed on the second-year form dated May 24, 2023 is a warrantable item.
22Mr. Zamshad testified that the vendor did not provide the countertop as specified in the agreement of purchase and sale dated May 19, 2021 (“APS”) between the appellants and the vendor, and the item is warrantable by the respondent under the Act. The appellants relied upon photographs depicting the differences between the samples and installation.
23Edward Boddy, director of the vendor, testified that the APS provides for variances between the samples and installation. The respondent submitted that the countertop colour is not a warrantable item as it meets the fitness for purpose test and is not a structural defect. The vendor relied upon s.6 (b) and (c) of the APS:
“(b) Minor Variations and Substitution of Materials: The Vendor shall have the right to make minor changes in the plans and specifications for the Dwelling which become necessary or which the Vendor considers to be desirable improvements and shall have the right to substitute items and materials, including exterior brick, stone and finishes, of equal or better quality for those specified in the event any selected items or materials, including exterior brick, stone and finishes have been discontinued by manufacturers or are otherwise not available.
(c)Variations in Colours, Finishes, etc.: The Purchaser acknowledges and accepts that variations in colours, shade of colours and textures of materials from the Vendor’s samples may occur in finishing materials, kitchen and vanity cabinets and fixtures and floor and wall finishes due to normal production processes. Furthermore, marble/granite/agglomerates are natural stone and it is normal for veins and/or small cracks to develop. The Purchaser acknowledges and agrees that the Vendor is not responsible for variances in colours, shades of colours, and textures of materials, or for veins/small cracks in the natural stone. Materials and colours will be as close as possible but not necessarily identical to the Vendor’s samples…”
24Further, Mr. Boddy testified on behalf of the vendor that as part of the APS, the quartz/granite counter selection document dated February 19, 2021 provides as follows:
“The samples in our Décor Centre are close but not identical to the actual slabs owing to variances in manufacturing. Granite is a natural product. Inconsistencies in grain and colour may be evident and does not warrant replacement.”
25The vendor also submitted that Schedule B to the APS, i.e., the agreement to install extras, also stipulated as follows:
“Group #3 Bianco Antico (Gordon keep as close to your sample as possible) Granite is a natural product and does not always match the samples exact.”
26In addition, the vendor submitted its invoice for Bianco Antico Granite ordered dated April 22, 2021.
27The respondent submitted that under Reg. 892 of the Act, the kitchen countertop is utilized for its intended purpose, is not a structural defect, and cannot be characterized as a warrantable item under the Act.
28I find the vendor’s submissions to be persuasive as the APS clearly provides for variances in material colours and substitution of materials if not available. Further, I find the respondent’s submissions persuasive that the item was installed in a workmanlike manner and the item is not a structural defect.
29I find the appellants did not meet their burden of proof for their claim under s. 14(3) of the Act, that item 4 listed on the second-year form dated May 24, 2023 is a warrantable item.
Roof Tiles
30I find the appellants did not meet their burden of proof for their claim under s. 14(3) of the Act, that item 8 listed on the second-year form dated May 24, 2023 is a warrantable item.
31Mr. Zamshad testified the two missing roof tiles constituted a structural defect as the roof would eventually leak as a result of the defect. Further, he submitted that the roof did not conform to the code for its slope ratio of 6.2/12 pitch requiring a waterproof membrane and must be replaced.
32The respondent and vendor submitted the two roof tiles were displaced by a windstorm and were promptly replaced upon request by the appellants, the roof did not leak, and there was no resulting water damage to the interior of the premises. Mr. Zamshad agreed that this is true.
33Further, Mr. Boddy testified the roof slope was over 8/12 pitch and additional waterproofing membrane is not required by the code. He submitted evidence and drawings of the “Birkdale” home, being the model of the appellants’ home, as accurately depicting the roof and the front elevation to support its position that the roof pitch was greater than 8/12. The appellants submitted no evidence to refute the respondent’s or vendor’s position about the roof slope.
34I find the two roof tiles were displaced by a windstorm and were promptly replaced upon request by the appellants without any resulting water damage to the interior of the premises. Further, I accept the evidence of Mr. Boddy and find that the roof was greater than an 8/12 pitch on the appellants’ home as depicted in the drawings of the “Birkdale” home, and was constructed in compliance with the code.
35I find there is no structural defect to the roof and no outstanding applicable warrantable item in respect to the roof tiles or a waterproofing membrane listed as item 4 listed on the second-year form dated May 24, 2023 and is not a warrantable item.
Driveway Rutting
36I find the appellants did not meet their burden of proof for their claim under s. 14(3) of the Act, that item 9 listed on the second-year form dated May 24, 2023 is a warrantable item.
37Mr. Zamshad testified the rutting and weathering of the driveway was attributable to it not being constructed to municipal standards of the Town of Ajax in accordance with AS-341 Residential Driveway dated January 11, 2021. The appellant testified the vendor used asphalt HL3A and not HL3F or HL3S, as required for compliance with Ontario Provincial Standard Specification OPSS.MUNI 310. The appellant testified the driveway workmanship and materials were defective.
38The respondent submitted article 14.7 of the CPG provides cracks in asphalt driveways are covered only under the one-year warranty; the CPG specifies cracks may develop in driveways due to environmental conditions, soil settlement, de-icing chemicals, or shrinkage of the asphalt or concrete, and are not warranted in those situations.
39The respondent further submitted that Tarion observed some minor cracking of the asphalt, some staining and some minor depressions consistent with normal use; no conditions were identified related to cracks in the driveway that indicate there is a major structural defect as defined in Regulation 892, as supported by the municipal driveway inspection report dated June 22, 2022.
40The respondent further submitted that HL3S is a smoother but weaker asphalt used by the municipality, and that the rougher and more durable product used is better suited for driveway application for not only strength, but slip resistance.
41The vendor submitted the driveway passed municipal inspection on June 22, 2022. Mr. Zamshad does not dispute this submission.
42Mr. Boddy testified the vendor compacted the driveway granular material in accordance with municipal specifications and there were no cracks observed on the driveway upon asphalt installation. Mr. Boddy further noted that the appellants drove and parked a vehicle on the driveway before the recommended curing time elapsed contrary to instructions. Mr. Zamshad testified that the vehicle on the driveway at that time “does not matter” as asphalt curing was complete.
43I find the appellants did not meet their burden of proof for their claim under s. 14(3) of the Act that the driveway was not constructed in a workmanlike manner or contained a structural defect. I find the type of asphalt used was appropriate for the application considering safety and strength, and the CPG are helpful in determining the condition of the asphalt, but these items are not determinative of the test for Tarion Warranty. The standard to apply in this circumstance at a two-year warranty is whether there is a structural defect to the driveway or whether it was not constructed in a workmanlike manner, or in other words fit for its intended purpose. The is no evidence to support either condition was met. I find the driveway is not warrantable.
Garage Floor
44I find the appellants did not meet their burden of proof for their claim under s. 14(3) of the Act, that item 10 listed on the second-year form dated May 24, 2023 is a warrantable item.
45Mr. Zamshad testified cracks appeared on the garage floor due to sub-standard concrete resulting in poor floor strength. He submitted that according to the code, s. 9.3.1.6, the minimum compressive strength of the concrete must be 32 MPa at 28 days typically recommended for a structural slab. Mr. Zamshad asserts that based on its condition and appearance, the garage floor slab is not 32 MPa, and that an improper construction methodology was applied.
46The respondent submitted article 14.2 of the CPG indicates that cracks on the garage floor are only covered under the one-year warranty, and cracks resulting from normal shrinkage of materials caused by drying after construction are excluded from the statutory warranty. I note that this standard is not binding on the Tribunal.
47The respondent observed the cracks in the garage floor and, utilizing an Allen key, measured the cracks that were no greater than 2 mm; the respondent submitted the cracks were too minor to be warranted for the two-year warranty period.
48For the respondent, Konrad Nespiak testified and relied on his decision letter dated July 17, 2024, where he stated that a crack in a garage floor measured utilizing an Allen key must be greater than 4 mm to be warranted at the two-year warranty period.
49The respondent and the vendor submitted that the appellants did not test the compressive strength of the garage floor and did not prove its compressive strength was less than 32 MPa. I agree there is no such evidence from the appellants.
50I find the appellants did not meet their burden of proof for their claim under s. 14(3) of the Act, that item 10 listed on the second-year form dated May 24, 2023 is a warrantable item as no evidence was offered to support their claim.
Basement Stairway
51I find the appellants did not meet their burden of proof for their claim under s. 14(3) of the Act, that item 11 listed on the second-year form dated May 24, 2023 is a warrantable item.
52Mr. Zamshad submitted the stairs did not conform to the code, specifically section 3.4.6.1 for slip resistance, section 3.4.6.4 for loading dimensions, section 3.4.6.8 for treads and risers’ dimensions, and section 3.4.6.5 for handrail placement. He submitted that the required slip resistance was not present, the loading dimensions were incorrect and not properly supported, the treads and risers did not meet prescribed dimensions, and the handrail was not properly positioned. Mr. Zamshad’s submissions were based on the premise that the subject stairs are subject to the rules for public stairs as opposed to private stairs.
53Mr. Zamshad submitted that the proper specifications should follow code requirements for public stairs as above described, because of a possible future intention to lease out the basement. He further submitted private stairs specifications under the APS and code were not appropriate.
54The respondent and vendor submitted that Schedule S to the APS provided that the walkdown to basement be constructed of concrete wall with metal handrail affixed to the concrete wall and wood stairs. The respondent found, upon inspection as detailed by Mr. Nespiak’s letter of July 17, 2024, that the basement stairway conformed to the APS and the code.
55The vendor submitted that section 9.8.4.1 of the code delineates the dimensions for risers and differing requirements for private and public stair types. The vendor submitted the stair type applicable to the appellants’ premises is private and is defined by the code in notes to table 9.8.4.1 as follows:
“Private stairs are interior stairs within the dwelling units and exterior stairs serving a single dwelling unit or a garage that serves a single dwelling unit.”
56I find the appellants did not meet their burden of proof and did not establish the basement stairs are public stairs as opposed to private stairs. I find that the basement stairs are private stairs that comply with the provisions of the code and the APS.
CONCLUSION
57The appellants did not satisfy the burden of proof that the defects alleged are warranted under the Act. It follows that no payment shall issue from the Guarantee Fund.
ORDER
58Pursuant to s. 14(19) of the Act, I direct the respondent to not pay any compensation from the Guarantee Fund. The Tribunal orders this appeal be dismissed.
LICENCE APPEAL TRIBUNAL
_______________________
Robert Maich
Vice-chair
Released: May 15, 2025