Licence Appeal Tribunal File Number: 17465/ONHWPA

Appeal from a decision of Tarion Warranty Corporation under s.14 of the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31 to disallow a claim.

Between:

Wang Xi and Heather Smith Xi

Appellants

and

Tarion Warranty Corporation

Respondent

DECISION AND ORDER

ADJUDICATOR:

Bernard Trottier

APPEARANCES:

For the Appellants:

Wang Xi, self-represented

For the Respondent: Court Reporter:

Carling Chan, Counsel Charlotte St. Croix, Veritext Legal Solutions

Heard by videoconference: January 13 and 14, 2026

OVERVIEW

1Wang Xi and Heather Smith Xi (the “appellants”) appeal from the Decision Letter of Tarion Warranty Corporation (“Tarion”), dated July 22, 2025, issued under s. 14(13) of the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31 (the “Act”) denying the appellants’ claims of defects in their new home.

2The parties agree that the appellants purchased the home at 35 McCarty Drive, Cobourg (the “home”) under an agreement of purchase and sale (“APS”) dated January 27, 2021, made between the appellants and 1141897 Ontario Ltd, operating as Stalwood Homes (the “builder”). They agree that the appellants completed a Pre-Delivery Inspection (“PDI”) Form with the builder dated October 27, 2022, and took possession of the home on October 28, 2022.

3The appellants submitted a Year-End form dated October 30, 2023. The appellants submitted a Notice of Appeal (“NOA”) on August 7, 2025.

ISSUES

4The issues in dispute are as follows:

1. Was there a breach of warranty in one or more of the items in Tarion’s Decision Letter?

2. If so, did the appellants suffer monetary damage resulting from the breach or breaches?

3. Where a breach of warranty occurred and monetary damage resulted, what is the amount of the damages?

RESULT

5The appellants are entitled to payment of $500.00 from the guarantee fund for claim Item 142, for which Tarion denied compensation in its Decision Letter.

6The appellants are not entitled to compensation from the guarantee fund for the remaining claim items, for which the respondent denied compensation in its Decision Letter.

PROCEDURAL ISSUE

7The parties participated in a case conference on September 24, 2025, to determine procedural arrangements for the hearing. The case conference report and order (“CCRO”), dated October 14, 2025, ordered that evidence briefs be exchanged and filed 10 days before the start of the hearing. At the beginning of the last day of the hearing, the appellants asked to submit two items into evidence that were not included in their evidence briefs: (a) a measurement of the distance that the disputed concrete steps protrude beyond the garage door trim and (b) the date of a photo of an alleged defect to the kitchen countertop. The respondent opposed admitting this information into evidence, because it submits it did not have time to review it and, therefore, it would be prejudiced if it were admitted.

8Under Rule 9.3, I may admit late evidence into the record based on whether the information is relevant, and whether any prejudice to the other party can be mitigated. Despite the request to submit evidence outside of the CCRO’s submission deadline, I allowed the measurement of the distance of the protrusion of the concrete steps, because it is relevant to one of the issues in dispute and the respondent can mitigate any prejudice in the hearing through cross-examination of the appellants, and testimony of the warranty services representative and the builder.

9I denied the appellants’ request to admit the date of the photo of the countertop. The photo itself was part of the appellants’ evidence brief, but the subsequent date information consisted of the appellants’ typing of when they claim they took the photo, rather than computer file information on when the photo was created. One of the appellants may testify as to the date of the photo, and they may be cross-examined, but I do not consider the date information provided by the appellants to be documentary evidence.

ANALYSIS

The Statutory Warranty

10Section 13(1)(a) of the Act provides that the vendor of a new 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 (the “OBC”). These warranties apply for one year after the warranty takes effect. An owner is entitled to compensation out of the guarantee fund under section 14(3) of the Act if the owner has cause of action against the builder for damages resulting from a breach of the builder’s warranty.

11Tarion’s Construction Performance Guidelines (“CPG”), while not binding on me, are a helpful standard for the Tribunal in determining what is acceptable and common in residential construction. The CPG was referenced by both parties in their oral testimony and documentary evidence, and I refer to the CPG in my findings.

12The onus is on the appellants to prove on a balance of probabilities that any alleged defect in the construction of their home constitutes a breach of warranty, that they have suffered damages as a result of the breach, and the monetary amount of any such damages pursuant to s. 14(3) of the Act. The Tribunal owes no deference to Tarion’s decision.

13Following 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.

Disputed items

14For the hearing, the parties agreed that the following five items listed on the Year-End Form and Decision Letter remained in dispute:

1. Item 22: Interior - Floor 01 - Kitchen - Countertop - Seam by stove is too visible and palpable, and part of the counter moves.

2. Item 23: Interior - Floor 01 - Kitchen - Countertop - Seams on island countertop throughout are of inadequate quality as they are visible, palpable, with imperfections and cracks during installation which have been filled.

3. Item 61: Interior - Floor 01 - Bedroom - Primary bedroom colder than other rooms.

4. Item 97: Interior - Floor 02 - Bedroom - Closet - Front left bedroom (B): Closet temperature is very cold in winter, very hot in summer.

5. Item 142: Interior - Yard - Front - Staircase/Steps/Structure - Concrete steps from driveway to mudroom door - encumbrance into garage.

Items 22 and 23: Parties’ positions on kitchen countertops

15The kitchen countertops are made from quartz, fabricated and installed by the builder’s subcontractor, Delray Granite (“Delray”). Regarding Item 22, Wang Xi (“Xi”) testified that there is a gap in the seam between two sections of the countertop, in front of and behind the stove, that the appellants claim is a breach of warranty. Regarding Item 23, Xi testified that the island countertop was not properly fabricated and installed, resulting in gaps and loose filler at mitred seams that the appellants claim is also a breach of warranty.

16The appellants allege that there are defects to the countertops from poor workmanship, followed by builder damage on repair visits after the appellants took possession of the home. The appellants directed me to an image of handwritten notes taken by the builder during the PDI, on October 27, 2022, that indicate that the countertops were covered with protective sheeting on that day, and therefore they could not be inspected properly for workmanship during the PDI. Xi testified that Delray returned to the home nine times after the PDI and that they damaged the countertops on those visits. The appellants argue that, because the alleged defects in the countertops result from builder damage, they can be viewed from a closer distance than the CPG’s standard viewing distance of 1500 mm.

17The appellants request that Tarion compensate them to replace the countertops, arguing that the condition of the countertops demonstrates that further repairs to the existing countertops would not satisfy the warranty. The appellants argue that replacing the countertops is the only reasonable alternative for addressing the warranted items, at a cost based on the following estimates:

1. The line items in the APS for the countertops at $29,380.00, plus a 15% margin applied by the builder, plus 13% HST, for a total of $39,058.12; or alternatively

2. A quote from GD Marble Ltd. to remove the current countertops and fabricate/install new countertops for $19,800.00, plus HST, for a total of $22,374.00.

18Tarion argues that there is no evidence that the alleged countertop issues are the result of builder damage. Chad Murdoch (“Murdoch”), Warranty Services Representative of Tarion, testified that the standard warranty under the Act covers workmanship. He testified that the appellants have not led evidence of a specific action by the builder resulting in “damage”, and that the dispute is over workmanship. Mudoch testified that, as a result, the CPG standard viewing distance of 1500 mm applies.

19Tarion argues that the builder is required to ensure that the home is constructed in a workmanlike manner, and that reasonableness, not perfection, is the standard that should apply. Tarion directed me to the decision in 8149 v. Tarion Warranty Corporation, 2014 CanLII 86273 (ON LAT), where the adjudicator accepted that the CPG is a good starting point to determine when inevitable imperfections attract warranty coverage. Tarion argues that, when viewed from the CPG standard viewing distance, there is no breach of warranty.

20I find that the dispute over the alleged defects to the countertops concerns workmanship, not damage, because the appellants have not directed me to any specific incident that would have damaged the countertops. The main evidence before me regarding the countertops is their appearance. For Items 22 and 23, I will consider their appearance from the CPG standard viewing distance of 1500 mm.

Item 22: Countertop seam in front of and behind stove

21The appellants have not demonstrated that there was a breach of warranty with respect to the kitchen countertop seams in front of and behind the stove.

22The appellants directed me to the Year-End Form that indicated that the seams between the two countertop sections were visible, palpable, and that part of the countertop moved. Xi testified that the builder repaired the movement to the seams by installing a bracket underneath the countertop, but that the repair resulted in further damage. Xi testified that, despite the repair attempts, there are still areas of missing and excess filler, and that the bottom of the countertop is misaligned.

23Tarion directed me to the third Conciliation Assessment Report dated February 24, 2025, written by Murdoch, who noted that the seams were not visible from the standard viewing distance. Murdoch noted that the seams were flush along the counter, with no cracked, loose or missing filler, and that the seams had a measured width of 0.5 mm in front of the stove and a width of less 1.0 mm behind the stove. Tarion directed me to photos taken during the conciliation inspection of September 25, 2024, in support of Tarion’s position that the alleged missing or excess filler was not visible from a standard viewing distance. Tarion argues, further, that there is no standard in the Act or in the CPG regarding “palpable”, meaning it could be felt to the touch, and that I should rely on the photo evidence Tarion submitted.

24I find that the appellants have not directed me to any authority or standard regarding palpability of surfaces, and I will make no finding on the claim of palpability. In reviewing the photos submitted by Tarion from 1500 mm, I find that the joints in the quartz countertops are filled and sealed to provide a visibly continuous finished surface, in line with the requirements of the CPG. I can see no evidence of loose or missing filler in those same photos. Similarly, when viewed from 1500 mm, I can see no evidence that the bottom of the countertop is misaligned.

25For these reasons, I find that the appellants have not met their onus to prove that the alleged defects set out in Item 22 are a breach of the vendor’s warranty, and therefore they are not entitled to compensation for same.

Item 23: Countertop seams on island

26The appellants have not demonstrated that there was a breach of warranty with respect to the mitred seams on the island countertop.

27The appellants directed me to photographs of the mitred seams that Delray filled in with epoxy resin filler. Xi testified that Delray over-applied epoxy, then used a sander tool to grind down the edges. Xi testified that epoxy is weaker than quartz, and prone to chipping. Xi testified that, as the epoxy continues to crack, it leaves exposed seams which are difficult to clean without causing further damage. The appellants argue that the result is uneven mitred seams on the island countertop that are unattractive and difficult to clean.

28Xi testified that most of the appellants’ photos that they submitted into evidence were taken from a viewing distance of about 300 mm (one foot), which I note is significantly less than the CPG standard.

29Sean O’Grady (“O’Grady”), Customer Service Manager with the builder, testified that Delray performed some repairs to the island countertops soon after occupancy, then again between the first and second conciliation assessment reports (between October 18, 2024 and February 24, 2025), and lastly in May of 2025. O’Grady testified that he did not believe the alleged defects to the island countertop were warrantable, but that the builder sent Delray back to perform repairs for customer services reasons.

30Tarion argues that the appellants’ allegations regarding the island countertops point to small holes and cracks that are not visible from the CPG standard viewing distance. Tarion directed me to photos of the island countertops taken during the conciliation inspection on September 25, 2024, as well as videos of the same mitred seams, taken by Delray after their repairs conducted in May 2025. Murdoch and O’Grady both testified that the photos and videos were taken from the CPG standard viewing distance of 1500 mm. Tarion argues that the alleged defects are not visible from the CPG standard viewing distance, therefore Item 23 is not warrantable.

31I find that I cannot see cracked, loose or missing filler on the mitred seams, as alleged by the appellants, when I viewed them from the CPG standard viewing distance. I note that, in the close-ups supplied by the appellants that they claim were taken on May 25, 2025, I can see what appears to be chipped epoxy. However, for the reasons noted earlier, I accept that the 1500 mm viewing distance is the appropriate distance from which to view the alleged defects to determine whether they are warrantable.

32For the reasons above, I find that the appellants have not met their onus to prove that the alleged defects set out in Item 23 are a breach of the vendor’s warranty and therefore they are not entitled to compensation for same.

Item 61: Main-floor primary bedroom heating

33The appellants have not demonstrated that there was a breach of warranty with respect to heating of the primary bedroom.

34The appellants argue that the primary bedroom is colder than the other rooms of the house, and that there are three potential reasons that require further investigation: (1) an inadequate furnace (2) insufficient insulation in the primary bedroom’s walls and ceiling and (3) insufficient airflow to the room as a result improper duct sizing/design throughout the home. The appellants seek the relief of a heating, ventilation and air conditioning (“HVAC”) engineering inspection, at a cost of $3,209.20 (inclusive of HST), based on a quote obtained by the appellants from Ontario HVAC Design Inc., dated December 3, 2025. The appellants seek further relief that, if problems were found during the HVAC engineering inspection, Tarion would warrant any repairs to the HVAC system.

35The appellants argue that the conciliation inspection conducted by Tarion on February 14, 2025, was inadequate, and for that reason the appellants are entitled to the relief claimed. The appellants argue that the conciliation inspection for Item 61 was deficient because:

1. Tarion did not close the primary bedroom door during the testing, and heat could circulate in from other rooms;

2. Tarion did not inspect other rooms of the home to determine whether there were issues with the HVAC system that would affect the whole home;

3. Tarion did not conduct any quantified measurement of the airflow out of the vents in the primary bedroom;

4. Tarion did not inspect for missing insulation in the walls and ceiling with an infrared scanner; and

5. Tarion took temperature measurements at a single point in time and did not demonstrate maintenance of temperature, per the CPG requirement, over an extended period.

36The appellants directed me to a home inspection report from Pillar To Post Home Inspectors, dated October 9, 2024 (the “PTP report”). Specifically, the appellants directed me to p. 17 of the report regarding the attic, where it noted that insulation was lacking in some areas, and it recommended adding material to meet an insulation value of R60. The appellants directed me further to p. 24 of the report regarding the air distribution system, where the inspector used an anemometer to measure the airflow out of various vents, and he concluded that “air distribution is all over the map”, with a home office vent measuring over 300 cubic feet per minute (“cfm”) while the primary bedroom measured 116 cfm. The appellants argue that the airflow variance across different rooms is an indication that the ductwork if deficient, and therefore the cost of an HVAC engineering inspection is warranted.

37The appellants directed me further in the PTP report, where the inspector’s infrared scanner detected temperature anomalies in the primary bedroom, near the gable above the transom windows and along the windowless wall. The appellants argue that invasive testing is required to determine whether there are defects to the insulation behind the drywall and finished materials.

38Tarion directed me to the second Conciliation Assessment Report, dated February 19, 2025, that indicated that Tarion conducted a standard heating assessment as described in the CPG. The report indicates that temperatures in the primary bedroom were tested for ambient wall, ceiling and floor temperature, as well as for vent flow. Tarion noted in the report that they used an Extech hygro thermometer / psychrometer to measure room temperatures and an anemometer to detect airflow. After conducting the assessment, Tarion concluded that the furnace and distribution system were “functioning as intended, supply and delivering adequate flow and warm air, with no defects noted related to the wall or ceiling areas.”

39Tarion argues that the appellants’ claim, that the heating test was inadequate, is not based on any legal authority or industry guideline. Tarion argues that the heat delivery to the primary bedroom passed the standard test based on Article 8.9 of the CPG, which state that heating systems shall be capable of maintaining an indoor air temperature of 22°C in living spaces.

40Murdoch testified that Tarion performed its standard inspection for claims of inadequate heat to a room. For the primary bedroom, Murdoch testified that the majority of the east wall consists of four-panel glass sliding doors, with transom windows above each of the four doors, and that glass does not have high insulation value. Despite the wall of mostly glass, Murdoch testified that the room met the CPG heating test under winter conditions.

41Regarding the appellants’ claim that Tarion’s heating test was inadequate, Murdoch testified the following:

1. Closing a room’s doors is not part of the test as described in the CPG. Murdoch opined that it was unlikely it would make much difference, because there are spaces underneath doors and air returns in rooms. Nevertheless, Murdoch testified that door closing is not part of the CPG test and it was not done.

2. The disputed item from the Decision Letter concerned heat to the primary bedroom only. For that reason, other rooms were not tested.

3. Quantifying the airflow from the vents is not part of the CPG standard test. Tarion submits that it uses the anemometer to detect airflow, but that it does not record the quantified airflow in cfm or similar metric.

4. The CPG test for wall and ceiling temperatures involves using a laser temperature scanner. The wall and window/door temperatures were noted to be 18°C, which Murdoch testified is normal in winter, because hard surfaces take longer to warm up than the inside air. Murdoch testified that Tarion would engage an outside engineer to perform infrared wall scans or invasive testing only if an anomaly was detected, and that Tarion detected no anomalies.

5. The CPG test for temperature readings allows 20 minutes of elapsed time between the first and second readings to determine whether temperature can be maintained. Murdoch testified that the CPG test was satisfied.

42O’Grady testified that the builder performed repairs near the primary bedroom in October of 2025, by removing the soffit under the porch roof and adding insulation and exterior foam board, and by adding attic insulation. O’Grady testified that the builder was not required to make these changes, based on the Decision Letter, but that it undertook these repairs, nevertheless

43Tarion argues, citing para. 29 of Ferrier v. Tarion Warranty Corporation et al., 2025 CanLII 94801 (ON LAT), that the appellants have not provided “evidence of a standard which was not met resulting in a defect.” Tarion argues that the appellants’ allegations of deficient testing are not based on any legal authority or industry standard. Tarion argues that the testing of the primary bedroom’s heating system met the OBC and CPG, that there is no warranted defect under the Act.

44I find that Tarion demonstrated that heat delivery to the primary bedroom was working as intended, according to the CPG testing method. While I am not legally bound by the CPG, I find it is a helpful standard for the Tribunal in determining what is acceptable and common in residential construction. I find that the appellants have not directed me to any authority or industry standard that states that Tarion must conduct heat testing using methods not prescribed in the CPG.

45I find that the appellants have not demonstrated that there are defects to the insulation of the primary bedroom. I assign little weight to the appellants’ argument that Tarion should fund a further HVAC engineering investigation, using infrared and invasive testing, because the Tarion heat testing indicated that the heat maintenance to the primary bedroom met the CPG test.

46I find that the appellants have not demonstrated that there are defects to the heating and insulation in the primary bedroom that are breaches of the OBC, or that the HVAC systems and insulation are not constructed in a workmanlike manner.

47For these reasons, I find that the appellants have not met their onus to prove that the alleged defects set out in Item 61 are a breach of the vendor’s warranty, and therefore they are not entitled to the requested relief of an HVAC engineering inspection, or entitled to any repairs that an inspection might recommend.

Item 97: Second-floor bedroom closet heating and cooling

48The appellants have not demonstrated that there was a breach of warranty with respect to the heating and cooling of the walk-in closet for the second-floor bedroom.

49The subject closet is approximately 6’ x 7’, and it is adjacent to an unfinished storage area above the home’s garage. Xi testified that the home’s air conditioner experienced a complete failure during its third summer of operation, in 2025, due to a compressor failure. The compressor was warranted by the manufacturer, but the labour to replace the compressor was not. The appellants seek the relief of reimbursement of $1,196.67 which was the labour cost to replace the compressor. The appellants also seek the same relief as for Item 61, namely the cost of an HVAC engineering inspection, $3,209.20, and the cost of any repairs that an inspection could recommend.

50The appellants submit that the HVAC system is poorly designed and was installed with deficient workmanship, based on the following arguments:

1. Xi testified that, when the AC compressor was replaced in 2025, the HVAC technician communicated verbally to the appellants that the orifice part of the AC circuit was too small for the size of the AC unit.

2. The appellants argue that Tarion’s testing of the HVAC for the closet was deficient for the same reasons as for Item 61.

3. The appellants argue that testing for the closet cooling was deficient because Tarion inspected the closet on February 14, 2025, and therefore they did not inspect the functioning of the air conditioning. The appellants submitted in their Year-End form that the closet is very hot in the summer and the air conditioning required a separate inspection. Therefore, the appellants argue that Tarion should have conducted, in addition, an inspection on a hot summer day.

4. The appellants directed me to the PTP report which indicated that there was no airflow (0 cfm) to the closet vent on October 9, 2024, indicative of poor duct design and construction.

5. Xi testified that, after the second Conciliation Assessment Report of February 19, 2025, the appellants discovered that a vent was serving a non-living space between the upper hall and the unfinished storage above the garage. Xi testified that the builder sealed off this vent, in March 2025, to prevent any airflow to the non-living space. The appellants argue that this non-functional vent to the non-living space (since repaired) is further evidence of poor HVAC design and workmanship.

51The appellants argue that these defects are evidence of poor workmanship in the installation of the HVAC system, requiring the relief of reimbursement of the labour cost of the compressor replacement, the cost of an HVAC engineering inspection, and the cost of any repairs recommended by the inspection.

52Murdoch testified that the AC compressor failure, in the summer of 2025, was not reported to Tarion because it was beyond the time limit of the Tarion warranty. For this reason, Tarion did not warrant any labour costs for the replacement of the compressor, and that any repairs would be subject to the manufacturer’s warranty only.

53Murdoch testified, as for Item 61, that Tarion conducted the CPG-standard heating assessment, and that the air temperature and vent flow, as well as wall and ceiling temperatures, all passed the standard tests. Murdoch testified that an additional test, under summer conditions, is not required under the CPG if no airflow and insulation anomalies are detected.

54Murdoch testified, further, that the vent that served the non-living area adjacent to the unfinished storage above the garage was not identified in the Year-End Form, and that it was not considered during the conciliation inspections. O’Grady confirmed that the builder sealed off this vent in March 2025 when this issue was brought to their attention. O’Grady testified that the builder also removed drywall and added vapour barrier and insulation above the closet at that time.

55As with Item 61, Tarion argues that the appellants’ allegations of deficient HVAC testing are not based on any or legal authority or industry standard. Tarion argues, further, that although the heating and cooling tests did not reveal any anomalies on the date the conciliation inspection (February 14, 2025), the builder undertook to seal off the vent to the non-living space and added vapour barrier insultation above the closet. For these reasons, Tarion argues that no further relief is due to the appellants regarding Issue 97.

56I find that the appellants’ submission, that the HVAC technician said that the orifice was too small for the AC unit, is hearsay testimony that cannot be challenged by Tarion via any cross-examination. For this reason, I assign it little weight.

57As with Item 61, I find that the appellants have not directed me to any authority or industry standard that states that Tarion must conduct heat testing using methods not prescribed in the CPG. Similarly, I find that the appellants have not directed me to any standard that states that forced-air HVAC systems must be tested both in winter and in summer. For these reasons, I accept Tarion’s evidence that the heating and cooling of the walk-in closet met the acceptable CPG standard.

58I find that the PTP report raises broad suspicions regarding the home’s HVAC and insultation systems, but it does not demonstrate any specific breaches of warranty regarding the walk-in closet. I assign little weight to the PTP finding that no air flowed to the walk-in closet in October 2024, because the appellants did not direct me to the CPG or other methodology utilized in making that finding. I accept Tarion’s finding that the vent to the walk-in closet delivered airflow on February 14, 2025, because the finding is based on a reproducible CPG methodology. Furthermore, I note that the PTP report pre-dates the repairs undertaken by the builder, namely sealing off the vent to the non-living space and adding insulation. While these repairs were not found necessary based on Tarion’s second Conciliation Assessment Report, I find that the builder undertook to ensure that these alleged deficiencies in workmanship could be mitigated.

59For the reasons above, I find that the appellants have not met their onus to prove that the alleged defects set out in Item 97 are a breach of the vendor’s warranty, and therefore they are not entitled to the requested relief of an HVAC engineering inspection, or the repairs that an inspection might recommend.

Item 142: Exterior concrete steps

60The appellants have demonstrated that there was a breach of warranty with respect to the exterior concrete steps, from the driveway to the front porch.

61The builder placed a set of precast concrete steps, consisting of two steps and two risers, from the driveway to the front porch near the mudroom door, that the appellants claim interferes with proper access to the attached garage. The appellants directed me to the architectural drawings of the home that indicated that each of the home’s three attached garages have 9-foot-wide openings, and that the builder would install “steps to suit on site if grade allows”. The appellants argue that the steps meet the OBC requirement of a minimum 255 mm horizontal run per step, but that the steps do not fulfill the contractual requirement of “steps to suit” because the steps do not suit the appellants’ need.

62The appellants directed me to a photo that indicates that the base of the steps protrudes 140 mm (5.5 inches) beyond the aluminum flashing of the garage door trim. The appellants argue that the agreement regarding the garage door width, per the drawings, has not been met with the obstruction caused by the steps, irrespective of the width of any vehicle that might access the garage.

63The appellants request the relief of construction of new steps, by cutting into the front porch, at a cost $3,500.00 plus HST, for a total cost of $3,995.00, based on an estimate the appellants received from Heritage Stone & Landscaping dated May 29, 2025.

64Tarion argues that the steps were not a guaranteed part of the APS, and that the phrase “if grade allows” indicates that the builder would install them once directed by the homeowners. Murdoch testified that the steps must be OBC-compliant with respect to the run of the steps, and because of the elevation change between the driveway and the front porch, two steps were required. Murdoch testified that there are no specific dimensions indicated on the drawings, and that he did not deem this item warrantable because the wording indicated that the homeowners and the builder could decide to put what steps there, or to leave the steps out entirely.

65Murdoch testified, further, that he did not think that the protrusion would prevent a vehicle from entering or exiting the garage, because the protrusion is less than the protrusion of a vehicle’s side mirror. He testified that, if the wheels of a vehicle hit the steps, the vehicle’s mirror would also contact the garage trim.

66O’Grady testified that on the date of the PDI, there were only temporary wooden “builder’s steps” at the disputed location, and the builder added the concrete steps after the PDI. He testified, also, that the appellants did not pay extra for the steps. O’Grady testified that, after the appellants voiced their dissatisfaction with the steps, the builder offered to move the steps to the front of the porch, or to remove the steps altogether, but that the appellants found those alternatives unacceptable.

67O’Grady testified that the appellant’s proposed solution would be a significant change from the APS and architectural drawings. O’Grady testified that a simpler, less expensive solution would be to cut 2 to 3 inches under the porch’s concrete overhang, using a concrete saw, and move the precast steps unit closer to the porch, and away from the driveway. O’Grady testified that this would require about two hours of labour with a concrete saw.

68Tarion argues that the appellants have not demonstrated that the protrusion impacts the use of the garage, and that if they drove a vehicle more closely than the protrusion, they would contact the garage door with a side mirror.

69Tarion argues that the relief sought would require a significant reconfiguration of the front porch, which it argues would be an overly broad interpretation of the warranty. Tarion argues that the warranty exists to remedy defects, not to implement new designs of homes after the fact.

70In examining the photos of the steps submitted by the both the appellants and Tarion, I find that the relevant measurement is from the front of the steps to the edge of the vertical plastic stripping, not the aluminum flashing, along the side of the garage door. While the parties did not provide me the measurement of the stripping, it appears to be the width of the ruler shown in the appellants’ photo, or about 40 mm. Therefore, I find that the width of the obstruction is 100 mm, not 140 mm as submitted by the appellants.

71The architectural drawings indicate that the garage door width is 9 feet, or 2743 mm. Subtracting the width of the stripping on each side, the garage would have an effective width of 2663 mm. The obstruction caused by the steps, where they are situated, results in a loss of 100 mm out of 2663 mmm, or 3.8%.

72I find the extent of the obstruction to the garage, 3.8%, is not large, but the builder has not installed steps “to suit” the appellants’ stated need. I find that a repair to the concrete steps is warrantable because the builder has not met the wording on the drawings, “to suit”. At the same time, I find that the reconfiguration of the concrete porch requested by the appellants is an overly broad remedy.

73I find that the builder’s proposed solution of sawing the overhang of the concrete porch, and moving the steps underneath the overhang, would reasonably reduce the protrusion, by moving the steps approximately 50 mm closer to the base of the porch. The remaining protrusion, from the base of the steps to the edge of the plastic stripping, would be about 50 mm, which I find would not pose a functional obstruction. I find, also, that the parties could agree to excavate about 70 mm beneath the steps and move the steps under the concrete overhang, without needing to saw the concrete. I accept the builders estimate that it would require about two hours of labour with a concrete saw to perform this repair. With travel, breaks and contingency, I find that it would require about a half-day to complete the repair, and I award the appellants $500.00 plus HST to compensate for same.

ORDER

74I find that the appellants have not met their onus to prove that the alleged defects set out in Items 22, 23, 61 and 97 are breaches of the vendor’s warranty, and therefore they are not entitled to the relief requested from the guarantee fund for these items.

75I find that the appellants have met their onus to prove that the alleged defect set out in Item 142 is a breach of the vendor’s warranty. I order Tarion to pay the appellants $500.00 plus HST from the guarantee fund to compensate for same.