Licence Appeal Tribunal File Number: 16777/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”) to disallow a warranty claim
Between:
Vivian Hone (Gao)
Appellant
and
Tarion Warranty Corporation
Respondent
DECISION AND ORDER
VICE-CHAIR: Geneviève Painchaud
APPEARANCES:
For the Appellant Vivian Hone, Self-Represented
For the Respondent Suzanne Chandrakumar, Counsel
Heard: By way of written submissions
OVERVIEW
1Vivian Hone (“appellant”) appeals to this Tribunal a decision letter (“Decision Letter”) issued by Tarion Warranty Corporation (“respondent” or “Tarion”) dated March 12, 2025, pursuant to section 14(13) of the Act in respect to deficiencies in her home.
2The appellant purchased a new home from Sobara Aurora Hills LP (the “Builder”) located in Aurora, Ontario, and took possession of the home on September 9, 2021.
3The appellant submitted a Major Structural Defect (“MSD”) claim form dated October 29, 2024 (“Form 1”) and one dated October 31, 2024 (“Form 2”). Since these forms were submitted over three years after she took possession of the home, the only warranty coverage available under the Act was for a MSD.
4A Conciliation Assessment was conducted by Steve Williams, on behalf of Tarion, on January 23, 2025, addressing both Form 1 and Form 2 and the report followed on February 13, 2025. It covered items 40, 50, 53, 50, 71, 73, 82, 83, 93 and 98 from Form 1, and item 1 from Form 2.
5In its conciliation report, Tarion concluded that all the issues raised by the appellant were not considered MSDs, and therefore did not fall within the statutory warranties provided under the Act. Tarion therefore denied the appellant’s warranty claim.
ISSUES
6As per the Case Conference Report and Order released May 16, 2025 and the Motion Order released June 25, 2025, the issues to be decided are:
a. Has the appellant proven that the deficiencies she alleges exist are major structural defects pursuant to the Ontario New Home Warranty Plan Act, RSO 1990, c. O.31 and regulations and that they are warranted under the Act?
b. If so, what is the quantum of damages or other relief the appellant is entitled to with respect to the warranted items?
7In her written submissions, the appellant reiterates other issues that she wants litigated at this hearing which the Tribunal had already decided and denied at the case conference or motions hearings.
8A Tribunal hearing on the merits of the appellant’s warranty claim is not an appeal of previous decisions made on the same file at a case conference or at motions hearings. Those issues have already been adjudicated, and I will not be re-addressing nor re-deciding them.
9The appellant also raised new issues that she wanted adjudicated, mostly related to Tarion procedures, such as Tarion’s jurisdictional overreach under the Conservations Authorities Act, and the request to have a new MSD inspection performed by an engineer of the applicant’s choosing, but they were all beyond the scope of this appeal and will therefore not be addressed.
RESULT
10For the reasons listed below, I find the appellant has not proven on a balance of probabilities that there was a MSD deficiency covered by a new home warranty under the Act; it follows that no amount is payable from the Tarion compensation fund for damages.
11I direct Tarion to deny the appellant’s claim.
PROCEDURAL ISSUES
Appellant’s submissions
12As this is a written hearing, I must make a finding on the issues in dispute taking into consideration the evidence and written submissions of the parties. To assist me in making this determination, the appellant was allowed to file submission of up to 15 pages by July 29, 2025, along with her evidence. The respondent was also allowed to file submissions of up to 15 pages along with its evidence by August 14, 2025. Finally, the appellant was allowed to file reply submissions by August 21, 2025.
13I have carefully reviewed the appellant’s submissions, but they consist mostly of itemizing a chronological list of documents provided in evidence and their importance regarding allegations of procedural breaches and violations. Those relate to relitigating issues previously ruled on by the Tribunal.
14Therefore, in my analysis, I will be solely addressing the submissions and related evidence that relate to the issues in dispute.
Respondent’s submissions
15In her reply submissions, the appellant claims that the respondent has failed to file its written submissions by the deadline set and as a result of this breach, the Tribunal should rely solely on the appellant’s submissions.
16The appellant adds that staff of the respondent attempted to email her a link with its submissions, but she has chosen not to access the link nor view the documents because they were filed by a party not recognized by the Tribunal under Rule 24.2.
17I find that the respondent did file its submissions in accordance with the Tribunal Rules (the “Rules”). The appellant has not convinced me that an employee of Tarion, especially a legal assistant working for Tarion, is not a party to the proceeding as Tarion is in fact the respondent.
18Rule 24.2 focuses on if a party chooses not to be self-represented and, in which case, provides for who can represent a party at the Tribunal and the process to do so, and not about who can email documents. Rule 24.1 explains how a party can choose to be self-represented or represented. It does not require a party to be represented. In this case, Tarion was represented by Suzanne Chandrakumar, who is internal counsel to Tarion.
19The appellant may have chosen not to look at the respondent’s submissions, but this is not synonymous with not having been served in accordance with the Rules or the Tribunal’s orders. I will therefore be considering the respondent’s submissions.
THE LEGAL FRAMEWORK
The Statutory Regime
20Section 13(1) of the Act describes the scope of the warranties:
Every vendor of a home warrants to the owner,
(a) that the home:
(i) is constructed in a workmanlike manner and is free from defects in material,
(ii) is fit for habitation, and
(iii) is constructed in accordance with the Ontario Building Code;
(b) that the home is free of major structural defects as defined by the regulations; and
(c) such other warranties as are prescribed by the regulations.
21Relevant to the appellant’s home that was built after June 30, 2012, section 1 of the Regulation defines “major structural defect” to mean:
…any defect in work or materials in respect of a building, including a crack, distortion or displacement of a structural load-bearing element of the building, if it:
a. results in the failure of a structural load-bearing element of the building (the “failure” test),
b. materially and adversely affects the ability of a structural load-bearing element of the building to carry, bear and resist applicable structural loads for the usual and ordinary service life of the element (the “function” test), or
c. materially and adversely affects the use of the significant portion of the building for usual and ordinary purposes of a residential dwelling and having regard to any specific use provisions set out in the purchase agreement for the home (the “use” test).
22As defined in s. 1 of Regulation 892, a claim for a major structural defect has a seven-year warranty period beginning on the date of the claimant’s possession of the new home.
23The appellant bears the onus of establishing on a balance of probabilities that there is a breach of warranty under s. 13(1)(b) of the Act which requires that the home be free of a MSD as defined by Reg. 892, R.R.O. 1990 under the Act (the “Regulation”), and that if there is a breach, the amount of the damages she should receive from the Tarion compensation fund.
Powers of the Licence Appeal Tribunal on Appeal
24If the owner disagrees with a Tarion decision that the defect is not covered by the warranty, then the owner may appeal the decision to the Licence Appeal Tribunal for a hearing, pursuant to s. 14(14). The Tribunal owes no deference to Tarion’s denial decision. After holding a hearing, the Tribunal may, pursuant to s. 14(19):
a. by order, direct Tarion to take the action that the Tribunal considers Tarion ought to take in accordance with the Act and its regulations; and
b. for the purposes of the order, substitute its opinion for that of Tarion.
EVIDENCE AND ANALYSIS
25I find the appellant did not meet her burden of proof with regards to the items in the Decision Letter.
26I find that the appellant has not met her burden of proof as she mostly focuses on alleging there are flaws in the respondent’s approach to her claim. Since it is her burden to prove entitlement to a remedy, she must be the one to present and prove why the deficiencies she alleges exist are warrantable.
27The appellant submits that the inspection was conducted by Steve Williams and that he is unqualified to perform such inspection as he is not a licensed professional engineer. She points to s. 13(3) of the Regulation arguing that this supports her position and renders the inspection valid.
28I agree with the respondent’s position that s. 13(3) of the Regulation is completely unrelated to the submissions of the appellant as it relates to the recovery of funds by Tarion. I have not been pointed to any evidence suggesting that conciliation assessments must be performed by an engineer either.
Major Structural Defect (MSD)
29The appellant argues that her property should be covered under warranty based on structural defects because of the following deficiencies:
a. Failed FBFM and weeping tile system
b. Ongoing basement water intrusion and mold growth
c. Structural failure at the mushroom level
d. Improper grading and boundary setback causing persistent flooding.
30After paying close attention to the appellant’s evidence, it consists primarily of pictures of the exterior of her home, of water staining in her basement, of maps and architectural drawings and of her having a bloody nose which she submits is related to mould in the home.
31The issues on appeal and Tarion’s positions on the issues in dispute are a follows:
a. Item 40: Property encroachment as builder relocated swells onto property.
b. Item 50: Grade Variation. The Builder advised that the final grading had not been completed.
c. Item 53: Foundation slab 3 inch below the sliding door in the rear of the home, yet there was no report of water infiltration.
d. Item 60: Negative “slop slop”. The owner was concerned the exterior of the home had a negative slope.
e. Item 63: Foundation crack at east side. This was not assessed as it could not be observed since there was snow. The respondent offered a further visit once the snow was melted and submits the appellant never responded to.
f. Item 71: Lack of embankments both side regarding grading of the property.
g. Item 73: Trails of flush floods when there is heavy rain.
h. Item 76: Lack of FBFM design and weeping tile system. The Builder advised that the system was installed, but the appellant did not believe it as it was not visible.
i. Item 82: Gap between soffit and belly band. The appellant was concerned there was a gap between the soffit and the overhang on the roof.
j. Item 83: Ongoing water intrusion in the basement corner, as evidenced by staining along the edges. Tarion did not assess this item as it was previously assessed. It is a duplicate of Item 1, Form 2 described below.
k. Item 93: Insufficient square footage compared to what was stated in the original agreement.
l. Item 98: Insufficient height of the unfinished basement compared to building drawings.
m. Item 1, Form 2: Mold and mildew growth, significant dark staining, concrete erosion and damage. The appellant stated that during heavy rainfall, there was water collecting at the base of a wall in the basement. The respondent’s position is that it has offered mould testing and that the appellant did not accept this offer.
32For many of these issues the Builder’s position was that the final grading of the home was not completed due to delays and awaiting final approval from the town of Aurora.
33Tarion’s position is that none of these issues pass the Failure test as there was no defect that has resulted in the failure of a structural load-bearing element. Also, there was no defect that materially and adversely affects the load bearing function of a structural load-bearing element of a building which would meet the Function test. Finally, there was no evidence of a defect that materially and adversely affects the use of a significant portion of the building for its usual and ordinary purposes which would meet the Use test.
34The respondent submits that the appellant has not alleged, and that there is no evidence to suggest, that the issues in dispute have any impact on the load-bearing element of the property, or that they affect her ability to use any portion of the home, and therefore, no MSD warranty is applicable.
35The respondent points to Ragoobar v Tarion, 2022 CanLII 46851 (ON LAT) (“Ragoobar”) at paras 237 and 244:
As with the other facts involved, the Appellants bore the evidentiary burden to prove every allegation of a breach of warranty. As the Tribunal explained in Re Ontario 8149/ONHWPA:
It is trite law to state that in proceedings under the Act the burden of proof lies on the Applicant. The Applicant must prove that an item in dispute falls within the warranty protections in the Act. It is insufficient to simply allege a defect. The Applicant must prove the existence of such a defect and how the defect falls short of the acceptable standard.
As the Tribunal noted in 9147 v. Tarion Warranty Corporation, a party asserting non-compliance must ground their assessment in some authority beyond their own preferences and experience or even more nebulous “industry standards”:
Industry standards are not self-evident. It is not sufficient for appellants to bring evidence of areas of construction with which they are dissatisfied and expect the Tribunal, in the absence of any other evidence, to conclude that workmanship does not meet industry standards simply because the appellant alleges it is so. There must be some objective evidence before the Tribunal defining the industry standard and identifying the manner in which the complaint falls below that standard.
36I find that the appellant has not described any issues with the home that she appears to believe are structural in nature. I find it clear that issues 40, 50, 60, 71, 73, and 76 are related to the yard and elements outside the structure of the home, and therefore are not related to the structure. I find these elements fall outside the scope of a MSD as defined by s. 1 of the Act.
37Issues 93 and 98 are related to the size of the home compared to the purchase agreement, so again they are unrelated to the structural aspects of the home and the Failure, Function or Use test and the appellant had made no submissions linking it to either part of the test. I find these elements fall outside the definition of MSD.
38Issue 8 in Form 1 and issue 1 in Form 2 are the same issue. It relates to what the appellant believes is water infiltration in the home. While there may be water infiltration, that is not what I am to determine. The issue is if there is any water infiltration that is linked to a MSD using the Failure, Function or Use test. I have not been pointed to convincing evidence to support such a finding as I have no report addressing the cause of the water staining.
39For item 53 and 83, relating to a foundation slab and the soffit, again I have not been pointed to evidence supporting that this meets the Failure, Function or Use test of a MSD. I have no submissions from the Appellant advising what the issue is with the foundation slab except for its size. As for the soffit, I have not been shown how this would be a structural issue.
40For item 63, which could not be observed by Tarion because of snow and which relate to a foundation crack, again I have not been pointed to convincing evidence that it is in fact a foundation crack. While the appellant provided some pictures to support this claim, there is no objective evidence to support that the foundation is cracked and that it is not a crack in the parging for example. Even if it is a foundation crack, I have not been presented evidence demonstrating that this meets the test of an MSD.
41I agree with the findings in Ragoobar and note that it is insufficient for the appellant to simply allege defects without supporting them with how they do not meet industry standards. The burden is with the appellant to prove with objective evidence that these are MSDs.
42I find the appellant has not met her burden of proving that any of the defects she alleges exist is a MSD.
CONCLUSION
43As I find that the items described in the Decision Letter have not been proven to be covered as MSDs under the Act, I conclude that there was no MSD deficiency covered by a new home warranty under the Act and therefore no compensation may be ordered.
ORDER
44For these reasons, and pursuant to s. 14(19) of the Act, I order the appeal be dismissed and direct Tarion to deny the claim.
Released: September 8, 2025
LICENCE APPEAL TRIBUNAL
_________________________
Geneviève Painchaud
Vice-Chair