Krikor Kichian v. Tarion Warranty Corporation, 2025 CanLII 62712

Licence Appeal Tribunal File Number: 16753/ONHWPA

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”), Section 14.

Between:

Krikor Kichian

Appellants

and

Tarion Warranty Corporation

Respondent

MOTION DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Appellants:

Krikor Kichian

For the Respondent: For the Proposed added Party, the builder:

Ayesha Mehreen, Counsel David Cutler, Counsel Ansell Group Ltd.

Heard by teleconference:

June 23, 2025

OVERVIEW

1Krikor Kichian (the “appellant”) appeals the Decision Letter issued by Tarion Warranty Corporation (the “respondent”) on February 21, 2025, pursuant to s. 14(13) of the Act, in relation to the appellants’ warranty claim for compensation.

2The Licence Appeal Tribunal Rules, 2023 (“Rules”) apply to this proceeding.

3The respondent sought, by way of a letter to the Licence Appeal Tribunal (the “Tribunal”) to add The Ansell Group Ltd. (the “builder”) as a party to this proceeding.

4A motion hearing was scheduled in writing.

PRELIMINARY ISSUE

5I have been asked to decide the following motion:

1. Should the builder be added as a party because they have a significant interest in the proceeding?

RESULT

6The respondent’s motion to add the builder as a party is denied.

ANALYSIS

7Rule 3.6 permits the Tribunal to add a person as a party to a proceeding if the person has a significant interest in the proceeding.

8Section 14(18) of the Act deems the Tarion Warranty Corporation and the warranty claimants (the “appellant”) as parties to the Tribunal proceeding unless the regulations provide otherwise. Section 12 of Ontario Regulation 627/70 (the “Regulation”) gives the Tribunal the ability to specify additional parties to a proceeding in accordance with its rules. As discussed above, Rule 3.6 gives the Tribunal the ability to add a party if it is determined that they have a significant interest in the proceeding.

9Both the respondent and builder submit that the Tribunal’s decision will be public, and therefore carries reputational risk for the builder. The builder also argues that the appellant has made allegations that it has engaged in deceptive and incompetent construction practices and has pocketed his deposits for personal gain and is trying to impugn its ethics. Consequently, the builder should be permitted to defend the case against it and should be granted this right out of procedural fairness and natural justice. The respondent also submits that if the Tribunal orders it to compensate the appellant, the builder may be liable to indemnify the respondent for any amount of compensation and as a result there is a financial risk to the builder. The builder also maintains that the appellant has commenced a legal action against it which is before the courts and is seeking $300,000.00 in damages. It submits that there is a significant amount of money at stake and reinforces that the builder has a financial interest in the outcome of this proceeding. Finally, adding the builder may facilitate resolution.

10The appellant opposed adding the builder as a party and argues that doing so would complicate the proceedings and negatively influence the decision-making process. Further, this appeal involves the respondent’s decision to reject the appellant’s claim for compensation after a lengthy investigation and gathering evidence from both the appellant and builder. Therefore, this appeal involves a dispute between the appellant and the respondent. In addition, one of the reasons the respondent denied compensation is because the Ansell Group is not a licenced builder so adding the builder as a party is not going to add value to the proceeding. Finally, the appellant claims that adding the builder may have a negative impact on litigation commenced against the builder which is before the courts.

What is the test for significant interest?

11Since “significant interest” is not defined in the Rules, the Act, or the Regulation, I refer to previous decisions of the Tribunal and the court, in coming to a determination of what represents a significant interest. I will also consider the request to add the party in the context of the purpose and focus of the Act, which is consumer protection.

12I am not bound by previous Tribunal decisions, but I find them instructive in describing the circumstances and context in which adding the builder as a party should be considered.

13In M.W. and D.W. v. Tarion Warranty Corporation, 2018 CanLII 43768 (ON LAT), the Tribunal determined that a significant interest is one that could be demonstrated by evidence of the proposed party’s substantive rights being decided or affected by an order of the Tribunal.

14In the Tribunal’s decision in Paktunc v. Tarion Warranty Corporation, 2022 ONLAT ONHWPA 13991 (“Paktunc”), the adjudicator highlighted the Divisional Court’s decision in Yildirim v. Tarion Warranty Corporation, 2019 ONSC 945 (Div. Ct.) (“Yildirim”) which determined that the builder is not bound by the Tribunal’s decision and can still dispute claims for indemnity should it be made by the respondent. Yildirim also supports that the builder’s exposure to financial liability from this proceeding would require the respondent to prove that it failed in its obligations under the Act, which is between the respondent and the builder. Therefore, I find that the substantive rights of the builder to defend against claims for indemnification in this respect, are not impeded by the Tribunal’s decision in this matter. Further, there is nothing preventing the respondent from calling the builder as a witness and presenting any evidence relevant to its decision to deny the appellant’s compensation claim.

15Although I agree that the builder has an interest in this proceeding, I find that it does not rise to the level of significant because its substantive rights, for example the right to recourse against the respondent if indemnification of any compensation was sought, would be unimpeded by a Tribunal decision in this matter.

16I also find that the amounts available for compensation under the Act are minimal when compared to the amount claimed by the appellant in the court action against the builder. While there may be a greater risk to the builder in the matter before the courts the same risk does not apply here where there are maximum amounts available for compensation under the Act.

17Finally, I have considered that the purpose of the Act is consumer protection legislation. I find that adding the builder as a party to the proceeding would add a layer of procedural complexity and likely result in the need for a longer more expensive hearing. Consequently, I find that the appellant’s right to a fair and efficient hearing outweighs any reputational or financial risk to the builder.

18For the above-noted reasons, the respondent’s motion to add the builder as a party is denied.

The builder is not entitled to costs pursuant to Rule 19.1.

19Rule 19.1 of the Licence Appeal Tribunal Rules, 2023 (“Rules”) provides that a party may request costs of the proceeding, if they believe that the other party has acted unreasonably, frivolously, vexatiously, or in bad faith during the proceedings. Rule 19.2 provides that a request for costs may be made to the Tribunal in writing or orally at a case conference or hearing, at any time before the decision or order is released. Rule 19.4 further sets out the requirements for that request, which must include the reasons for the request and the particulars of the alleged conduct.

20The purpose of Rule 19.1 is to deter conduct by parties that is unreasonable, frivolous, vexatious, or in bad faith. This is a high bar for conduct to attract a cost award and is an exceptional remedy.

21In its reply submissions, the builder requested an order for costs from the appellant in the amount of $2,000.00 on the basis that the applicant did not serve his submissions on it for this motion hearing. Instead, it was provided to it by the respondent. Further, the motion hearing was scheduled to provide the applicant with an opportunity to provide more meaningful submissions on whether the builder should be added as a party when he should have been prepared to address the issue at the case conference. Finally, it submits that it clear from the applicant’s submissions that he did not seek legal advice which resulted in this unnecessary motion hearing and additional costs.

22I find the builder is not entitled to costs because it is not a party to the proceeding. The fact that the respondent sent a letter to the Tribunal requesting that the issue of whether the builder should be added as a party should be addressed at the case conference is irrelevant because this letter was not an order of the Tribunal. In this case, the appellant is self-represented and was not aware that the issue was going to be addressed at the case conference. Further, whether the appellant’s submissions were insufficient is not grounds for the high bar for costs and does not meet the threshold of being unreasonable, frivolous, vexatious, or in bad faith. For these reasons, the builder’s request for costs is dismissed.