Ahmed v. Tarion Warranty Corporation et al., 2025 CanLII 66334

Citation: Ahmed v. Tarion Warranty Corporation et al., 2025 ONLAT 16317 ONHWPA

Licence Appeal Tribunal File Number: 16317 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., c. O.31, denying a claim

Between:

Syed Waseem Ahmed

Appellant

and

Tarion Warranty Corporation

Respondent

and

Sandstorm Development Inc.

Added Party

DECISION

VICE-CHAIR: Avril A. Farlam

APPEARANCES:

For the Appellant: Syed Waseem Ahmed, Self-represented

For the Respondent: Suzanne Chandrakumar, Counsel

For the Added Party: Angela Morra, Representative

HEARD: In Writing

OVERVIEW

1Syed Waseem Ahmed, the appellant, appeals the decision letter dated September 5, 2024 (“Decision”) issued by Tarion Warranty Corporation (“Tarion”) pursuant to s. 14 of the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31 (“Act”) which denied the appellants’ claim for the residence at 59 Bartram Crescent, Bradford, Ontario (the “home”) for warranty compensation on the following item listed on the Year-End form received by Tarion on October 11, 2022:

(6) “INTERIOR – Floor 01 – Doors – back yard door” (the “Claim”)

ISSUE

2The issues to be decided are:

i. Whether the Claim is covered by the warranty under s. 14(3) of the Act, and

ii. If so, whether the appellant has suffered any monetary damage resulting from the breach of warranty; and

iii. If so, the amount of the damages.

RESULT

3Having considered all of the evidence, and for the reasons that follow, I find that find that the Claim falls within the warranty coverage provided by the Act, that the appellant has suffered monetary damage from the breach of warranty, and that the amount of those damages is $1,491.60. I order Tarion to pay the appellant $1,491.60 for the Claim.

ANALYSIS

The Statutory Warranty

4Section 13(1)(a) of the Act provides that the vendor of a home warrants to the owner that the home is constructed in a workmanlike manner and is free from defects in material, is fit for habitation and is constructed in accordance with the Ontario Building Code.

5Although the Act is consumer protection legislation and should be given a liberal interpretation, the onus is on the appellants to prove, on a balance of probabilities, that the defects in the home fall within the warranty coverage, that damages have resulted from the defects and the amount of those damages. The Tribunal owes no deference to Tarion’s decision.

6Following a hearing, the Tribunal may, pursuant to s. 14(19) of the Act, order Tarion to take such action as the Tribunal considers Tarion ought to take in accordance with the Act and the regulations, and for such purposes the Tribunal may substitute its opinion for that of Tarion.

Brickmold On the East Side of the Patio Door has a crack Which is a Defect in Workmanship Constituting a Breach of Warranty

7I find that it is clear from the evidence that there was a crack in the aluminum brickmold on the exterior of the patio door at the back of the home which constitutes a defect in workmanship is a breach of warranty under the Act. The following are my reasons.

8Tarion’s Decision states that there is a crack in the brickmold on the east side of the patio door located on the back south-west corner of the home. Tarion’s affidavit of Pat O’Hara sworn April 21, 2025 confirms the same. In its submissions the builder does not state otherwise.

Monetary Damage Resulted From the Breach of Warranty

9Having found that there is a breach of warranty established before me, it is necessary to consider whether the appellant has suffered any monetary damage resulting from the breach of warranty; and if so, the amount of damages.

10It is clear from Tarion’s Decision that appellant will need to remedy the breach of warranty. Where the parties differ is on the cost to do so.

Damages

11The appellant submits that the patio door in the home is assembled at the factory and replacement of the brickmould only is not possible. The appellant seeks $22,562.00 made up of $14,562.00 to replace the vinyl patio brickmould and frame with door and “approximately $8,000.00” to fix exterior stucco and interior tile.

12Tarion and the builder are of the view that the brickmould can be repaired by removing the damaged portion and replacing it without replacing the patio door. Tarion has obtained estimates from third party contractors of $1,320. plus HST and $1,440.00 plus HST to do so. The builder submits that it offered to do this repair but the appellant would not allow it, and the appellant should receive at most $1,491.60.

13For the following reasons, I find that the amount of the appellant’s damages flowing from the breach of warranty relating to the Claim is $1,491.60. for the following reasons.

14The appellant submitted no sworn evidence to establish on a balance of probabilities that the crack cannot be repaired for $1,491.60. Instead, the appellant made written submissions and put forward a proposal from Pella dated March 22, 2024 (“Pella proposal”) in support of his view that the cracked portion of the patio door brickmould cannot be replaced without replacing the patio door.

15I find the Pella proposal unhelpful in establishing the cost of a proportional and reasonable remedy for the crack in a portion of the brickmould for the following reasons.

16Firstly, the Pella proposal does not state that replacement of the patio door is necessary because of the warranted defect, the cracked brickmould.

17Secondly, there is no evidence before me that the proposed patio door is the same as the one installed when the home was constructed by the builder or is an upgrade.

18Thirdly, the Pella proposal indicates only that the installed price for a specified Pella 250 Series, sliding door with specified features is some $22,000.00. The author of the Pella proposal is described as a “sales rep” and there is no indication of the author’s qualifications or experience in construction, if any, and no indication whether the author of the Pella proposal inspected the patio door installed in the home. No affidavit of the author of the Pella proposal, or any other witness, was put forward by the appellant for the hearing explaining the proposal or giving any details as to how this Pella proposal came about. Absent any evidence to the contrary, I find the Pella proposal to be a sales document.

19Fourthly, there is no evidence before me that the home was constructed by the builder with a Pella patio door.

20I find instead that the proportionate repair is to replace the cracked brickmould as described by in the April 21, 2025 affidavit of Pat O’Hara, an experienced Tarion warranty services representative who has worked in the residential construction industry, as described by Mario Vella, M&O Renovations and Contracting in his April 21, 2025 affidavit, and in the written submissions of the builder.

21Mr. O’Hara has inspected the patio door installed at the home, photographed the crack in the brickmould, and prepared a scope of repair for which Tarion internally priced at $2,215.64 plus HST. Based on his experience, Mr. O’Hara swore that he believes the cracked brickmould can be repaired by replacing the damaged brickmould. Mr. O’Hara explained in his affidavit that Tarion obtained an estimate from Burke’s Restoration of $1,440.00 plus HST, and an estimate from M&O Renovations and Contracting of $1,320.00 plus HST to remove the broken piece of brickmould and replace it with a new piece. Mr. O’Hara said in his affidavit that Mr. Vella told him he had attended the home and had spoken to the manufacturer of the brickmould who informed him that the brickmould could be replaced without removing the door.

22Mr. Vella, the owner of M&O Renovations and Contracting is an experienced contractor who has worked in the industry for 35 years. Mr. Vella swore in his April 21, 2025 affidavit that he was asked by Tarion to attend at the home, assess the damage to the patio door brickmould, determine the appropriate scope of repair, and provide a cost of repair, all of which he did. Mr. Vella observed that the brickmould was cracked, he measured it, took pictures and pulled back the trim to see if it was possible to remove and replace the brickmould alone. Mr. Vella also spoke with Performance Windows & Doors, the manufacturer of the brickmould installed at the home which advised him that the brickmould trim could be removed and replaced without taking the door out.

23Based on his expertise, experience and conversations with Performance Window & Doors, Mr. Vella swore that he prepared a scope of work for this repair and stated that his company is capable of completing this work on site at the home for $1,320.00 plus HST, a total of $1491.60. I note that Mr. Vella’s estimate is made in 2025.

24Based on the evidence of Messrs. O’Hara and Vella, I find that repair of the patio door by replacement of the damaged portion of the brickmould is a reasonable remedy which is not overbroad. The Divisional Court has directed the Tribunal before that a remedy should not be overbroad. Otherwise, replacement of work done by the builder that can alternatively be remedied by repair can amount to specific performance by the builder. See for example, Grammenis v. Tarion Warranty Corporation, 2019 ONSC 1214, para 4. As the Tribunal has said before, the warranty confers the right to have done that which should have been done correctly in the first instance, or a sum of money to do so. See: Ragoobar v. Tarion Warranty Corporation, O’Dwyer Fine Homes Ltd., 2022 ONLAT ONHWPA 12495, at para 27 citing Liddiard v. Tarion Warranty Corporation, (2009) 2009 CanLII 65801 (ON SCDC), 99 O.R.(3d) 656 (Div. Ct.). I am satisfied that cracked brickmould can be replaced for $1,320.00 plus HST of $171.60 for a total of $1,491.60 based on the estimate in evidence from M&O Renovations and Contracting. The evidence submitted by the appellant does not persuade me otherwise.

25For all of the foregoing reasons, I find that the appellant has not met his onus to establish that his cost of repair is more than $1,491.60.

Claim Not Before Me

26In his submissions for this hearing the appellant refers to a “front broken window” which he states has been reported to Tarion on another claim form. This is not part of the appeal before me and I make no decision on it.

Conclusion

27The Claim falls within the warranty coverage provided by the Act, the appellant has suffered monetary damage from the breach of warranty, and the amount of those damages is $1,491.60 and I will so order.

ORDER

28For the reasons set out above and pursuant to s. 14(19) of the Act, I order Tarion to pay $1,491.60 to the appellant for the Claim.