Licence Appeal Tribunal File Number: 16432/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:

Joseph Ferrier

Appellant

and

Tarion Warranty Corporation

Respondent

and

2536323 Ontario Ltd.

Added Party

DECISION

ADJUDICATOR: Raymond C. Ramdayal

APPEARANCES:

For the Appellant: Joseph Ferrier, Self-represented

For the Respondent: Suzanne Chandrakumar, Counsel

For the Added Party: Paul Bigioni, Representative

WRITTEN HEARING: April 22, 2025

OVERVIEW

1Joseph Ferrier, the appellant, appealed the decision letter dated August 28, 2024 (“Decision”) issued by Tarion Warranty Corporation (“Tarion” or “respondent”) which pursuant to s. 14 of the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31 (“Act”) denied the appellant’s claim for warranty compensation for alleged heated floor defects in the washroom of his home, specifically the following items listed on the Year-End Form received by Tarion on December 14, 2021:

i. (12) INTERIOR – Master Bedroom – Floor – Heating Auxiliary Heat Condition: Electric or Hydronic radiant heating Floor cold spots: It was observed with infrared camera that only part of the bathroom was equipped with heated floors (approx. ¾ of the area).

2The appellant purchased 8 Dexshire Drive, Ajax (“Home”) under an agreement of purchase and sale dated August 27, 2019 (“APS”), made between the appellant and 2536323 Ontario Ltd. (“Added Party” or “Builder”).

ISSUES

3The issues to be decided are:

i. Has the appellant proven that the deficiencies he alleges exist regarding heated floors in the bathroom of the master bedroom are warranted under the Act?

ii. If so, what is the quantum of damages or other relief that the appellant is entitled to with respect to the warranted item?

4In appealing Tarion’s warranty assessment, the onus is on the appellant to prove the above issues.

RESULT

5Having considered all of the evidence, and for the reasons that follow, I find that the appellant has failed to demonstrate a breach of warranty and I direct Tarion to deny the appellant’s claim.

ANALYSIS

The Statutory Warranty

6Section 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.

7Although the Act is consumer protection legislation and should be given a liberal interpretation, the onus is on the appellant to prove, on a balance of probabilities, that the defects in the home fall within the warranty coverage that monetary damages have resulted from the defects, and the amount of those. The Tribunal owes no deference to Tarion’s decision.

8Following a hearing, the Tribunal may, pursuant to s. 14(19) of the Act, direct 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.

Appellant’s position and ground as it relates to the in-floor heating system

9The appellant asserts that there is a significant oversight which has occurred in the installation of his ensuite in-floor heating system resulting in a substantial portion being omitted. This has resulted in certain areas of the floors not being heated. While he concurs that installation practice requires a safe distance for heating elements near fixed objects such as walls, bathtubs and cabinets, his position is the resulting installation has inadequate in-floor heating coverage.

10As a result, the appellant alleges that the in-floor heating system in his master bathroom was installed with a defect as it does not adequately cover the floor area as expected. He further states that it fails to meet the standards of a comprehensive and effective heating solution.

11The appellant is seeking compensation in the amount of $12,800 to ensure the flooring meets the promised specifications and provides the intended comfort and functionality.

12There are a number of grounds which the appellant bases his appeal. This includes the following:

i. A cold zone in the master bathroom floor area stops nearly 1 foot from the soaker tub and extends over 4 feet from the wall beyond the tub on both sides. It is the appellant’s belief that the subcontractor erroneously utilized an original plan from the model home without making the necessary adjustments after the appellant extended the garage length from a 3-car to a 4-car garage, thereby resulting in an increase to the bathroom’s overall length.

ii. The installation of the heated floor was not conducted in accordance with most installation manuals.

iii. The Decision Letter states that a person exiting the tub can step out from the tub to a heated portion of the floor. The appellant states this is incorrect as the heated flooring terminates nearly a foot short of the tub.

iv. The Decision Letter states that the floor areas to the sides of the tub are not usable space and do not require heat. The appellant disputes this statement and states that access to the faucet necessitates traversing the over 4’ x 3’ space on either side.

v. The Decision Letter states that if the in-floor heating is used continuously, the heat will spread out to all the tiles to provide a warm floor surface throughout. The appellant does not agree. It is his position that the heated floors are particularly necessary throughout all portions of the bathroom to counteract heat loss from large windows.

vi. Finally, the appellant asserts that he has paid for a fully heated bathroom floor and did not receive it. He argues that this is a defect with approximately 35 square feet of the coldest part of the bathroom lacking heated flooring.

13The appellant also raises specific concerns regarding the inconsistency in messaging he has received from Tarion regarding his claim. He states that during the conciliation inspection, a Tarion inspector, advised him that the heated floor should extend to approximately 3 inches from the tub and baseboards. The inspector also inquired if the appellant would allow the contractor to return to rectify the issue. The appellant agreed to this but never heard back from the inspector. When the appellant contacted Tarion requesting reports and confirmation of this finding, he instead received a second denial letter from Tarion maintaining their original findings that the item is not warranted.

Respondent’s position that the in-floor heating system was installed in accordance with manufacturer’s specifications

14The respondent maintains that the in-floor heating has been installed in accordance with the manufacturer’s specifications and there is no defect present that would constitute a breach in the warranty.

15The respondent conducted their first conciliation inspection on September 9, 2022, in response to the appellant’s concerns that the in-floor heating system in the master bathroom was incomplete around the soaker tub.

16At the time of their inspection, Carson Dunlop (the inspector on behalf of Tarion) noted that the appellant had turned on the radiant floor heating prior to the inspection. The tile floor was warm to the touch throughout the bathroom space, however, the inspector did identify a noticeable temperature difference around the soaker tub area. Tarion determined more information was required before a warranty assessment could be made.

17The parties obtained clarification from the manufacturer of the heated flooring system. In a letter dated August 3, 2022, Ben Shoemaker of Emerson Industrial Automation confirmed the installation details of the heated floor. This included the results of an investigation using an infrared camera which revealed that the cable spacing installation was completed correctly and consistently. The investigation reveals that the cables jump by increasing square footage from one size to the next. As a result, it is not feasible for the entire floor area of the room to be covered. Rather care is given to ensure high traffic areas such as in from of the vanity, shower and toilet are all covered correctly along the entire centre area of the floor.

18The letter also states that the small areas at each end of the tub, between the tub and an outside wall were left uncovered as the cable ended before these areas. They consider these to be low traffic areas with no fixtures, shelves or other reason for walking on these areas for normal use.

19The letter concludes by stating that this is normal practice in the installation of floor warming systems.

20In a conciliation re-inspection report dated October 25, 2023, the respondent determined that there was no defect in workmanship and, therefore, no breach of the One Year Workmanship Warranty.

21According to the respondent, the manufacturer’s specifications for the in-floor heating states to, “NEVER install the heating cable under vanities, bathtub platforms, kitchen cabinets or any other fixtures or in closets. Excessive heat will build up in these confined spaces and may cause cable overheating.” The document also noted clearances between the in-floor heating and fixtures.

22As a result, it is Tarion’s position that the in-floor heating has been installed in accordance with the manufacturer’s specifications.

Added party’s position regarding mistakenly installing in-floor heating in the master bathroom

23In their submissions to the Tribunal, the added party stated that they mistakenly installed the in-floor heating system in the master bathroom. The appellant had requested in-floor heating in other areas of the home. The installation in the master bathroom was an error. Under typical circumstances, this would be considered an upgrade that would have to be requested and paid for by the homeowner. Despite the error, the added party proposes that the in-floor heating system was installed correctly and in accordance with installation instructions. The system was also inspected by the Electrical Safety Authority (ESA) and passed an inspection.

24In their submissions, the added party submitted that “floor warming” is a luxury item intended to keep the users’ feet warm. It is not part of the home’s heating system. They supported this position by providing a letter dated March 26, 2025 from Doug McCallum of McCallum HVAC Design Inc. It states that any in-floor warming system installed on site is not part of the HVAC permit drawings and is not considered to be the primary heat source. I find there was nothing in the appellant’s evidence that would suggest that it was. However, I considered Mr. McCallum’s letter since the presence of an in-floor heating system is not required to achieve the heating necessary for that room.

Conclusions

25I find that the appellant has failed to establish, on a balance of probabilities, a breach of warranty under the Act regarding the in-floor heating system. While I acknowledge their desire to have all areas warm evenly throughout, I accept that this is not always possible particularly when taking the necessary precautions to avoid certain fixtures. I find that the installation of the in-floor heating system was in accordance with the specifications provided by the manufacturer.

26There is a preponderance of evidence that confirms that there is no defect in the installation of the in-floor heating system. While it has not met the desired expectation of the appellant in certain areas, I cannot ignore the fact that the manufacturer, the respondent’s third-party inspections by Carson Dunlop, and the ESA have all concluded that there is no defect in the in-floor heating system. This includes an affidavit from the installer who is a Master Electrician with over 35 years of experience working with this exact make of cable.

27The manufacturer of the cable also provided an affidavit confirming that the heating cables themselves were free from defects themselves. This coupled with an inspection from the ESA after the installation, confirmed that the heated flooring cables were installed correctly and passed.

28I have considered the appellant’s grounds. There is nothing to support the appellant’s submissions that the in-floor heating system was defective or not constructed in a workmanlike manner. I also find that this upgraded feature, which was installed in error by the builder, was not a specified contractual feature and in the absence of written representations to the contrary, I find that verbal representations are not binding and cannot give rise to a breach in warranty.

29The appellant has not offered sufficient evidence to support his allegation of a defect in the in-floor heating system. Nor did he provide any convincing evidence of a standard which was not met resulting in a defect. The appellant claims that the in-floor heating system was not installed “as typically recommended in most installation manuals.” However, he did not provide any example of these.

30In terms of damages, the appellant is requesting $12,800 in accordance with a quote he provided to the respondent by Quan Anh Le. The scope of the work identified in the quote is to remove and replace the existing flooring as well as the water drive membrane. There are no details on how this would be achieved particularly since other expert opinions have suggested that it is not possible to install heating flooring in the area surrounding the soaker tub.

31The appellant has failed to persuade the Tribunal that there has been non-compliance with some industry standard which would support their claim of a defect and/or to refute the respondent’s position that the in-floor heating system was installed in accordance with the manufacturer’s specifications.

32As the Tribunal noted in 9147 v. Tarion Warranty Corporation 2015 CanLII 38755

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 this industry standard and identifying the manner in which the complaint falls below that standard.

33I have received evidence to convince me that the in-floor heating system was installed in accordance with the manufacturer’s specifications. Despite this, it falls short in meeting the appellant’s expectations. Unfortunately for the appellant, the Tribunal is not a court of equity. The Tribunal as a creature of statute, cannot venture outside of the boundaries of the statute to bestow itself with powers that the statute does not confer.

ORDER

34For the reasons set out above and pursuant to s. 14(19) of the Act, I direct Tarion to deny the appellant’s claim.