Licence Appeal Tribunal File Number: 16528/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:

Gregori Levinson

Appellant

and

Tarion Warranty Corporation

Respondent

and

Chelsey Maple Residences (Phase 2) Inc.

Added Party

DECISION

ADJUDICATOR:

Bruce Stanton

APPEARANCES:

For the Appellant:

Gregori Levinson (self-represented)

For the Respondent:

Ferdinand Gonzales, Warranty Services Representative

Suzanne Chandrakumar, Counsel

For the Added Party:

Donie Aprile, Director of Warranty and Occupancies

Michael Doyle, Counsel

Hearing Reporter:

Josh Grieve

Heard: by videoconference

May 8, 2025

OVERVIEW

1Gregori Levinson, the Appellant, appeals from a decision letter issued by Tarion Warranty Corporation (“Tarion”) dated September 5, 2024 (the “DL”), in relation to claim item 1 of the Appellant’s second-year statutory warranty form (“Second-Year Form”).

2Chelsey Maple Residences (Phase 2) Inc. (the “Builder”) was added as a party to this proceeding at the case conference of January 24, 2025.

PRELIMINARY ISSUES

3The Builder submitted that the Appellant had not filed any documents or evidence for the hearing and therefore contravened the Case Conference Report and Order (“CCRO”) from the January 24, 2025 case conference. The Builder did not file any documents or a witness list because the Appellant had not put his case before the Tribunal.

4The Builder submitted that it could not prepare for the hearing because it was unaware of the evidence the Appellant would be relying on or the witnesses he would be calling. The Builder submitted that it is up to the Appellant to prove the claim item was warranted, yet he did not serve or file any documents supporting his case. It submitted that any attempt by the Appellant to rely on previously undisclosed evidence in the hearing would be prejudicial to the Builder because it will have had no time to review and consider its impacts on the case.

5The Appellant submitted that he did not know what kind of evidence to file for the hearing and that the case is very simple. He submitted that his explanation is in the Notice of Appeal in which he alleges the dimensions of the shower enclosure are not compliant with the Ontario Building Code (“OBC”).

6Tarion submitted that it will not comment on the admission of any new evidence presented by the Appellant until it has had an opportunity to see if it is relevant to the issues in dispute.

7I agree with the Builder that it is the Appellant’s case to make and that it rested with him to serve and file the documents and things he intended to rely on for the hearing in accordance with the CCRO. That his filings to date are limited to the Notice of Appeal, a copy of the DL, a drawing of the subject bathroom, and an email exchange with Tarion in respect to the timeline for filing his appeal, is his choice and prerogative as a party.

8I did not rule on the admission of evidence at the hearing on a preliminary basis. I found that the proposed admission of any evidence, that was not previously disclosed in accordance with the CCRO, would be considered at the time it was presented and parties opposing its admission would have the opportunity to make submissions. If it was admitted, opposing parties would have the opportunity to argue, during their closing submissions, the weight it ought to be assigned.

ISSUES

9The issues to be determined are:

i. Whether claim item 1 in the appellant’s Second-Year Form constitutes a breach of warranty;

ii. If so, whether any damages resulted from the breach of warranty; and

iii. If damages resulted from the breach, the amount of the damages.

RESULT

10Claim item 1 on the Second-Year Form is not a breach of warranty. As there is no breach of warranty, the question of damages resulting from the breach need not be determined. No compensation from the Guarantee Fund (the “Fund”) of Tarion is owed the appellant.

ANALYSIS

The warranty claim

11This appeal concerns the appellant’s condominium at 120 Eagle Rock Way, Vaughan, unit 410. It is one of two condominiums the Appellant owns in the building and is primarily occupied by his mother.

12The appellant took possession of the unit on June 15, 2022 and filed his Second-Year Form with Tarion on July 9, 2024. Only one item was listed on the form, a reported defect under the “Violations of the OBC’s Health and Safety Provisions” category of the second-year warranty under the Act and regulations, that the shower enclosure in the master bedroom ensuite bathroom did not meet the requirements of the OBC.

13After a period in which the Builder had a statutory right to make repairs and resolve the reported defect, the Appellant sought conciliation of the claim item that remained unresolved from Tarion. Tarion inspected the claim on July 23, 2024 and reported the results in a Conciliation Assessment Report (“CAR”) dated the July 23, 2024, stating that the claim item was not warranted.

14The Appellant disagreed with Tarion’s assessment of the claimed defect and requested that Tarion issue a decision letter. Tarion issued the DL pursuant to section 14 of the Act, and as noted above, the Appellant appealed the DL to the Tribunal on December 1, 2024.

15The Appellant has the onus of proving on a balance of probabilities (that it is more likely than not) that claim item 1 is a breach of warranty under the Act and/or its regulations, and if so what damages, if any, resulted from the breach.

Claim item 1 – width of shower enclosure

16I find that claim item 1 is not a breach of warranty under the Act or its regulations.

17Under s. 13(1) of the Act, every vendor or builder of a new home warrants to the owner that it is constructed in a workmanlike manner and is free from defects in material, is fit for habitation, and constructed in accordance with the OBC. The builder also warrants to the owner such other warranties as are prescribed by the regulations.

18Section 14 of the Act sets out the basis for compensation for a homeowner if there is a breach of warranty under s. 13. Section 14(3) stipulates that, subject to the regulations, a homeowner is entitled to receive payment out of the Fund for damages resulting from a breach of warranty.

19The appellant testified that the shower enclosure is only 650 mm (25.6”) wide and does not meet OBC requirements. He referred me to what he described as a home inspector’s report that is reflected in the Year-End statutory claim form (“Year-End Form”) he filed with Tarion, dated June 2, 2023. The Appellant submitted that he did not have a separate home inspection report other than the Year-End Form.

Dispute over admitting a copy of the Year-End Form

20The appellant submits that the Year-End Form is relevant to the issues in dispute because it states the provision of the OBC that the shower enclosure contravenes. He submits the Year-End Form was completed by the home inspector. He submits that he is not a lawyer or a builder and was unsure of what documents he needed to file in evidence for the hearing. He stated that Tarion has a copy of the Year-End Form and he did not think he would need to file a document that was already on file with Tarion.

21The Builder submitted that there is nothing to indicate the Year-End Form was authored by a home inspector, who the home inspector is, or what their credentials are. Further, the home inspector in question is not being called by the Appellant to testify on the document.

22Tarion submitted that the Year-End Form on file was signed by the Appellant and there is no other documentation in evidence to suggest it was authored by a home inspector. Tarion submitted that, if the document is admitted, the Tribunal should deem that it was authored by its signatory, the Appellant.

23I held that the Year-End Form could be admitted as evidence because it is directly relevant to the Appellant’s appeal of the DL, that the size of the shower enclosure does not comply with the OBC. I also held that should they wish, Tarion and the Builder could argue in their closing submissions the weight the Year-End Form ought to be given.

The Appellant’s evidence

24The Appellant referred me to page 3 of the Year-End Form, item 8, in which the ensuite shower stall is described as having a depth of 27 3/8” or 659 mm, which is not compliant with OBC article 3.8.3.13(2)(a), requiring a shower enclosure to be not less than 1500 mm wide and 900 mm deep. I take notice that section 3.8.3.13 of the OBC applies to Barrier-Free Showers.

25It appears that the description of the shower enclosure in the Year-End Form uses the term “depth” to describe what the Appellant testified to as the “width” of the enclosure, at 650 mm (65 cm). In his Notice of Appeal, the Appellant described the installed width of the shower as being 660 mm. I find that the term “depth” referred to in the OBC provision equates to the term “width”, used by the Appellant.

26I note that there are discrepancies in the reported width of the shower. The Year-end Form states the width is “27 3/8” or 659 mm”, but 27 3/8” equates to 695 mm. The apparent error in the Year-end form could be a clerical error (inversion of numbers). The Notice of the Appeal states the width is 660 mm and the Appellant gave oral evidence that it is 650 mm. The CAR reports that it is 63 cm (630 mm) wide. For the purposes of my analysis, the precise width of the “as constructed” shower could be relevant in determining if there was a breach of warranty.

27The Appellant’s principal claim is that the shower enclosure is not wide enough. It is therefore appropriate, if necessary for the purposes of determining if there was a breach of warranty, to use the narrowest width in evidence, the width stated in the CAR (630 mm).

28The Appellant testified that he did not enter into any separate agreement with the Builder to construct a barrier-free shower. The Appellant testified that, at its current width of approximately 27”, it is not useable for any adult and not wide enough that a shower seat can be used by his mother. He testified that the Builder ought to have constructed a useable shower and that 65 cm width is not acceptable.

29Tarion referred me to a drawing of the condominium plan that was included in the Agreement of Purchase and Sale (“APS”) between the Builder and the Appellant, at page 3, Schedule A. The drawing of the ensuite bathroom shows no dimensions. The Appellant confirmed that he initialed each page of the APS, including page 3, on October 26, 2019.

30The Appellant referred me to a plan and elevation drawing he submitted in his email of December 1, 2024, by Irpinia (which the Builder identified as the bathroom cabinet supplier) which includes dimensions for the location of the toilet and bathroom cabinets in the ensuite bathroom, but the “shower area” is displayed in the drawing without dimensions.

31On cross-examination by the Builder, the Appellant testified that he did not continue the warranty process initiated by the Year-End Form but that fact is immaterial to this appeal because he claimed the defect in his Second-Year Form.

32The Appellant testified that he was not seeking a barrier-free shower, only one that was a suitable width for any adult and one which would, at least, allow his mother to use a shower seat. The Appellant testified that there are no other defects or deficiencies with the shower; it is just the width that he claims is non-compliant with the OBC.

33The Appellant submits that the insufficiently wide shower is not compliant with the OBC and is therefore a warrantable defect under the Act. The Appellant did not submit evidence on whether damages resulted from the breach of warranty, nor the amount of the damages.

Tarion’s evidence

34Ferdinand Gonzales, a warranty services representative of Tarion with more than 10 years experience in the building and home warranty business in Alberta, BC, and the last year with Tarion, testified that he visited the Appellant’s home for the conciliation inspection and authored the CAR. His measurements of the shower enclosure determined that the shower was 63 cm wide.

35Mr. Gonzales testified that, under Part 9 of the OBC, which applies to residential buildings, there are no minimum dimension requirements for shower enclosures. He testified that the section of the OBC referred to in the Year-End Form (3.8.3.13) applies to commercial or public uses, not residential. He testified that the shower enclosure in the Appellant’s home is not a violation of the OBC because it is a residential use, to which Part 9 of the OBC applies, and Part 9 does not impose minimum dimensions for a shower enclosure.

36Tarion submits that section 3.8.3.13 of the OBC that the Appellant is relying on does not apply to his home because it is a residential use, not a commercial or public use. Tarion submits the Appellant has not met his burden in proving that the “as constructed” shower is a violation of the OBC. Tarion submits, therefore, that claim 1 of the Second-Year Form is not a breach of warranty and its denial of the claim should be confirmed by the Tribunal.

The Builder’s evidence

37Mr. Donie Aprile, the Director of Occupancy and Warranties for the Builder, testified that he has worked for the parent company of the Builder, Unified Project and Construction Management, for the last 12 years. He holds a Building Code Identification Number (“BCIN”) qualification under the OBC. He testified that the shower enclosure was constructed according to the architectural drawings for the Appellant’s condominium and that the plan drawings depicted in the APS were derived from the architectural drawings. In other words, the “as constructed” shower conforms to the drawing of the ensuite bathroom in the APS.

38Mr. Aprile testified that there is no OBC requirement for shower enclosure sizes in residential homes or condominiums. He testified that, on the issue of industry standards for shower enclosures, he has seen many similar sized showers in new homes, including throughout the Appellant’s building.

39Mr. Aprile testified that the plan drawings shown on page 3 of the APS include a disclaimer that the “Dimensions, specifications, layouts and materials are approximate only and are subject to change without notice.” He testified that, regardless of the disclaimer, the Appellant’s bathroom was built in accordance with the architectural plan for the unit and it is consistent with the plan in the APS.

40The Builder submits that it echoes Tarion’s position that the claim should be denied because the shower size was not a contravention of the OBC and the Appellant did not meet his onus to prove there was a breach of warranty. The Builder submits that the claim should be denied, and the appeal dismissed.

Findings

41I find that claim 1 of the Second-Year Form is not a breach of warranty.

42I am not persuaded by the Appellant’s argument that the shower fell short of OBC requirements, because the section of the OBC he is relying on, section 3.8.3.13, does not apply to residential uses. It does apply for barrier-free showers in commercial and public uses. However, the Appellant acknowledges he did not request a barrier-free shower for the unit.

43I give weight to the Appellant’s evidence that he reviewed and signed off on the layout of the condominium plan in the APS. I give no weight to the fact that the Appellant did not continue the Year-End Form warranty process, but I recognize that the description of the alleged OBC violation relating to the shower in the Year-End Form is the basis of the Appellant’s claim in this matter. Whoever authored the Year-End Form erred in citing a section of the OBC that does not apply to the Appellant’s unit.

44I give Mr. Gonzales’ and Mr. Aprile’s evidence weight because they have many years experience with the OBC and the home warranty business. Both confirmed that Part 9 of the OBC (for residential uses) contains no minimum dimensions for shower enclosures.

45I give weight to Mr. Aprile’s testimony regarding the continuity between the architectural plan for the unit, and the plan drawing in the APS. It suggests that the “as constructed” ensuite bathroom is just as it was intended and portrayed in the APS, which the Appellant agreed to. I find on a balance of probabilities no discrepancy between what the Builder promised and what was constructed.

Conclusion

46I find on a balance of probabilities no breach of warranty in claim item 1 of the Second-Year Form regarding the size of the shower enclosure of the ensuite bathroom in the Appellant’s condominium. As there is no breach of warranty, it is not necessary to consider if damages resulted, nor the amount of the damages.

ORDER

47Pursuant to s. 14(19) of the Act, I direct Tarion to deny the Appellant’s Second-Year warranty claim.