RECONSIDERATION ORDER
Before: Matthew M. Létourneau Member, Delegate
Date of Order: July 25, 2025
Tribunal File Number: 15297/ONHWPA
Case Name: Grezegorz Kawa v. Tarion Warranty Corporation & Mastercraft Homes Windsor (2011) Inc.
For the Respondent, Tarion Warranty Corporation: Catherine Longo, Counsel
ORDER
1The respondent, Tarion Warranty Corporation (“Tarion”), filed a request for reconsideration form and supporting submissions on November 14, 2024 in respect of the Tribunal’s decision released on October 24, 2024.
2Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, the Executive Chair has delegated to me authority to deal with such matters.
Rules Regarding Reconsideration
3Tarion’s request for reconsideration was filed in compliance with Rule 18.1 of the Licence Appeal Tribunal Rules, 2023 (“Rules”). Rule 18.1 provides that the Tribunal may reconsider any decision that finally disposes of an appeal.
4The grounds for a request for reconsideration are found at Rule 18.2 of the Rules. To grant a request for reconsideration, the Tribunal must be satisfied that one or more of the following criteria are met:
a. The Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness;
b. The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made; or
c. There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.
Tarion Argues Errors of Law or Fact
5The respondent submits that the Tribunal made an error of law or fact, such that the Tribunal would likely have reached a different result had the error not been made. Specifically, Tarion argues that the Tribunal made a factual error in finding that the substitution made by Mastercraft Homes Windsor (2011) inc. (“Mastercraft”) was impermissible. Tarion argues that I made an error of law in applying an erroneous burden of proof in the decisions or in awarding disproportionate damages regarding the substitution made by Mastercraft.
RESULT
6The Tribunal does not agree that there is an error of fact or of law, such that the decision arrived at would have been different. The Tribunal finds that Tarion attempts to relitigate the initial appeal. The facts were assessed by the Tribunal properly in assessing whether the compensation for the breach of the substitution warranty ought to have been higher. The appellant met the burden of proof which was applied to the applicant’s evidence and damages were awarded by virtue of the Tribunal’s view of its discretion. I confirm the decision.
ANALYSIS
7Rule 18.2 establishes a high threshold for the test of reconsideration. A request for reconsideration is not an opportunity to relitigate the case on issues where a party disagrees with the Tribunal’s decision, or with the weight assigned to the evidence.
8The party requesting reconsideration must meet this high threshold and show how the decision fall into one of the categories in Rule 18.2 of the Rules.
No Error of Fact
9Tarion contends that the appellant did not meet its burden of proof in showing the difference between the door that was substituted and what was agreed to previously, such that damages awarded would be too high in the result.
10In my view, Tarion relitigates the facts in arguing now on reconsideration that there was no evidence of dimensions of the front entrance doorframe and that factual absence would change the decision. I disagree. Mastercraft’s substitution to the front of the applicant’s home was not an appropriate substitution based on the evidence heard and was accepted by Tarion. The breach of warranty was well established and I do not accept Tarion’s arguments regarding an error of fact to the extent that they contest the breach of warranty.
11I found based on this Tarion decision letter, the testimony of the appellant, pictures of the home, the agreement of purchase and sale as well as Tarion’s own inspector’s report that the evidence failed to show that this was an appropriate substitution under s. 18 and s. 19 of Administration of the Plan, RRO 1990, O/Reg 892 (“the Regulation”) made by virtue of Ontario New Home Warranties Plan Act, RSO 1990 c. 0.31 (“the Act”).
12I understand Tarion’s main contention in this reconsideration to be that damages awarded in the amount of $8,907.45, plus HST, less $195.09 already paid was too much. It contends that the compared value between the door and the transom light window is the extent of the damages flowing from the breach of warranty. I understand Tarion to be stating that the evidence showed only a difference of $195.09 between the two options and that there was no other agreement that would ground further damages. Tarion states that there was insufficient evidence to allow the Tribunal to find in excess of this value, especially given that the evidence of a sidelight installation feasibility study of the appellant is not cogent, reliable or relevant evidence and he would not have met his burden of proof.
13However, I maintain the finding in the initial decision given my understanding of the work required to make the substitution between the two different door options. I found that it would not constitute a proper substitution to simply say that one door frame is equivalent to another when the door with sidelight clearly could not be installed in the doorframe as received by the Appellant. This finding was based on the witness testimony, the pictures I reviewed, the reports presented and the agreement of purchase and sale. Tarion seeks to relitigate this finding that the installation of the front door needs to be placed in context of what would be required to make the substitution. I maintain that the appellant met the evidentiary burden sufficient to show that a proper substitution of one door to another required an entirely different building design to be made to the front entry and rendered it impossible for the Appellant to change the entrance to what he initially contracted for. I do not believe that this finding can be reduced to sole consideration of the dimensions provided in an agreement of purchase of sale to make, given what I heard at the hearing.
14In other words, the Appellant cannot simply take the difference in value between the door materials without a view to what is required for installation. Tarion’s submissions provided several situations where certain materials were substituted and only the difference in value of quality was paid. I understand this contention, but I found that this line of cases discussed different materials being placed in identical dimensions. For example, replacing siding or flooring materials to a space that does not require changes to the dimensions of the area. The finding that the dimensions of the door need to be modified is the finding I understand Tarion to object to, but which I cannot find grounds to modify on any facts or law in the scope of this reconsideration.
15The evidence was discussed at the hearing and was tested through cross-examination. There is no error of law or fact that appears to me in Tarion’s submissions that would require me to make a different finding. Even if the applicant’s “sidelight installation feasibility study” is not sufficient in Tarion’s view, the decision was based on that evidence and the damages were in line with those findings.
16I do not agree that there was any error of fact made in assessing the evidence that would lead me to make a different decision.
No Error of Law – Entire Agreement
17I do not agree that there was an error of law in assessing the agreement for purchase and sale.
18The entire agreement argument raised by Tarion cuts both ways unfortunately. If one thing is agreed to, it cannot be substituted for another. If Mastercraft would have found a substitution with similar dimensions, but with a different style, a different transom lite, or otherwise, I might agree with Tarion. In the decision rendered, I did not agree.
19I looked at the door model as it had certain traits that were agreed to and sought by the appellant in the contract. I understood that the entire agreement included a door with a sidelight. I understand that door models vary, but the house would have to be structurally altered to return it to a position to obtain a different door that the applicant wanted, whether the dimensions were slightly bigger or smaller is not the key finding. My finding was that it would be impossible to place a door with a sidelight in the dimensions of the cutout doorframe as is, as it was a clearly a single door area upon completion.
20I do not find there was any error of law made in assessing the agreement as an entire agreement.
No Error of Law – Amount of Damages
21As noted above, I did not agree that the difference in damages was limited to the substitution between two doors only. The substitution needed to require costs of installation given the circumstances.
22Tarion argues that this departs from other cases heard by the Tribunal and the amount of damages is excessive. The line of cases that Tarion pointed to at the hearing – and points to now – in defence of its position, all relate to issues where the dimensions appear to be unchanged, but the materials used are the same. This was the case in 7165 v. Tarion Warranty Corporation, 2013 CanLII 51144 (ON LAT) where there were white colour jets instead of chrome. There was no evidence showing a difference in value between the two materials for the jets and I understand that substitutions of this nature do not require structural changes to make.
23In Jelic v. Tarion Warranty Corporation and Millstone Homes Inc., 2021 Canlii 40741, the Tribunal found that poplar stairs ought to have been placed instead of oak. The measure of damages was assessed based on the durability and the design features that relate to that substitution.
24Subsection 14(3) of the Act provides that an owner is entitled to damages for breach of warranty. Where substitutions are permitted, differences in cost are under warranty. The key finding, again, in the initial decision, is that the door that was agreed to would not fit in the frame if it were provided. It would be an absurd result to provide the difference between the two doors, the one in the agreement of purchase and sale and the one actually installed by Mastercraft, without a view to the reality of the structure. If the door provided could be installed without any modification to the frame, I would agree with Tarion. But that was not the case. If Mastercraft shipped the alternative door to the appellant, paid him for the difference in value, and it arrived at his home, he could do nothing with it without structural modifications. This is no warranty at all, and is devoid of any practical application.
25The Appellant met his burden of proof on a balance of probabilities in showing pictures and basic measurements that the door would not be able to be installed.
26The installation reports filed by the appellant and Tarion’s estimator corroborated my view that there were installation costs required. However, in testing which was more accurate for the purposes of awarding damages, I found that Tarion’s estimation of costs to be clearer and more accurate than the Brookstone estimate, as long as it included installation costs. I found that the appellant had met his burden of proof, but that I did not accept the full value of his view of the damages.
27I accept Tarion’s submissions that the two doors have only a difference of price of $195.09, but I do not accept that the analysis of damages stops there. If Mr. Kawa was to install the door agreed upon in the agreement of purchase and sale today, he would need to cover installation and reframing costs. These are reasonable in the circumstances, and this was addressed in the Tribunal’s decision.
28Tarion states that the wall next to the door is not under warranty. The decision found that the door agreed to have a wider frame. There was evidence to support the change order costs that would have been necessary to provide the door agreed to in the agreement of purchase and sale.
29I found that the costs were reasonable in evaluating the situation as a whole, and not isolating the door and interpreting the losses in a contextual void.
30I reject Tarion’s submissions that I cannot have regard for the context of the structure in assessing the applicable damages.
31I find no error of law by which to alter the decision.
No Error of Law – Burden of Proof
32I find that the Tribunal did not make an error of law or fact regarding the burden of proof in the matter, such that the Tribunal would likely have reached a different result had an error not been made.
33Tarion submits that the Tribunal placed a burden of proof on the Vendor, Mastercraft, to show that there were no doors with a sidelight available and that this somehow created a different outcome.
34The statements made in the initial decision did not say that a burden was placed on Mastercraft. It stated that I could not accept this submission by Mastercraft, as there was nothing to corroborate it, so as to make it clear that neither the appellant, nor Tarion could rely on this.
35The decision did not discuss any burden of proof placed on Mastercraft, and only makes reference to the burden being on and being met by the appellant.
36The decision clearly states, at paragraph 28, that “the appellant has met, on a balance of probabilities, his burden of showing that the contract said side light, that the door shows no side light or possibility of a side light, but instead, a solid wall with a smaller doorframe where the side light should be.”
37The decision makes no reference to an additional burden of proof and this inference by Tarion in its submission for reconsideration is not enough to constitute an error at law.
38I find that the Tribunal did not err in assessing the burden of proof such that a reconsideration or variance of the decision is required.
CONCLUSION
39I reject the respondent’s request for reconsideration, as it has not established that the Tribunal made an error of law or fact, such that the Tribunal would likely have reached a different result had the error not been made.
ORDER
40The request for reconsideration is dismissed and the decision of the Tribunal is confirmed.
Matthew M. Létourneau Member, Delegate Tribunals Ontario – Licence Appeal Tribunal
Released: July 25, 2025