Ross and Jessica Mogridge v. Tarion Warranty Corporation, 2026 CanLII 15060

Citation: Ross and Jessica Mogridge v. Tarion Warranty Corporation, 2026 ONLAT 17468/ONHWPA

Licence Appeal Tribunal File Number: 17468/ONHWPA

Appeal from a decision of Tarion Warranty Corporation under the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31 to partially deny the appellants claim for a refund of a deposit made to the vendor.

Between:

Ross and Jessica Mogridge

Appellants

and

Tarion Warranty Corporation

Respondent

DECISION

ADJUDICATOR:

Dagmara Szczudlo, Member

APPEARANCES:

For the Appellants:

Ross and Jessica Mogridge, Self-Represented

For the Respondent:

Loula Fouad, Warranty Services Analyst at Tarion

Noah Eklove, Counsel

Court Reporter:

Chelsea Griffiths, Veritext Reporting

Observer:

Karm Sidhu, Articling Student

Heard by:

Videoconference on February 9, 2026

OVERVIEW

1Ross and Jessica Mogridge (the "appellants") appeal from a decision letter dated July 9, 2025, issued by Tarion Warranty Corporation (the “respondent”) partially denying the appellants’ claim for a refund of a deposit made to the vendor under s. 14 (1) the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31 (the “Act”).

2Pursuant to s. 14(1)(b)(i) of the Act, the parties agree that there is an entitlement to a deposit refund due to the builder’s insolvency. They disagree about the quantum of the refund based on the date and validity of the original purchase agreement for the property as outlined in s. 6(1) of Regulation 892 (the “Regulation”).

3The respondent paid $40,000 for a refund of deposit to date, denies that an additional payment is owing, and relies on the testimony of Loula Fouad, Warranty Services Analyst at Tarion.

4This matter proceeded to a one-day videoconference hearing. Both Ross and Jessica Mogridge testified on their behalf and relied on copies of the original agreement of purchase and sale for Lot 37 in the Township of Seneca. The appellants also relied on several amendments to the agreement, and an assignment of agreement of purchase and sale for Lot 45 in the Township of Seneca, among other evidence.

ISSUES IN DISPUTE

5The issues in dispute are:

i. Are the appellants entitled to a refund of their deposit under s. 14(1) of the Act?

ii. If so, what is the amount of the deposit refund the appellants are entitled to?

iii. Are the appellants entitled to unspecified costs for document disbursements incurred in preparation for the hearing?

iv. Are the appellants entitled to costs of $1,000 per day as per Rule 19.6 of the Licence Tribunal Rules, 2023 (the “Rules”)?

RESULT

6After considering the submissions and evidence from both parties, I find as follows:

i. As already agreed to by the parties, the appellants are entitled to a refund of their deposit under s. 14(1) of the Act;

ii. The appellants are entitled to an additional $60,000 from the guarantee fund (in addition to amounts already paid by respondent) as per s. 6(1)(c)(ii) of the Regulation;

iii. The appellants are not entitled to costs of $1,000 per day as per Rule 19.6 of the Rules, and

iv. The appellants are not entitled to “costs” of document disbursements.

PROCEDURAL ISSUES

Denied appellants’ request for exclusion order

7At the outset of the hearing, I declined the appellants’ request for an exclusion order to bar Loula Fouad, a witness for the respondent, from hearing the appellants’ testimony.

8The respondent objected to the exclusion order and submitted that Ms. Fouad is not only a witness, but a representative of the respondent in this dispute and has a right to be present at the hearing.

9I agreed with the respondent and permitted Ms. Fouad to be present for the appellants’ testimony due to her dual role at the hearing.

Request to add costs of disbursements, costs, and interest as issues in dispute

10I granted the appellants’ request to add costs of disbursements and costs as issues in dispute.

11At the hearing, the appellants’ made an oral request to add costs of disbursements (appeal and photocopying fees, etc.) and costs to the maximum permitted as per Rule 19 of the Licence Appeal Tribunal Rules, 2023 (the “Rules”). The appellants submitted that specific costs of disbursements will be provided to the Tribunal after the hearing. The appellants also requested payment of interest on any outstanding deposit refund and for the Tribunal to impose a due date for payment.

12Both parties made submissions regarding these requests before closing statements and I include my analysis regarding these issues below. I advised the appellants that a breakdown of disbursements is not required by the Tribunal during the hearing.

Declined to include new evidence during appellants’ closing submissions

13During closing submissions, I declined the appellants’ request to consider new evidence, namely the Auditor General’s Special Audit of the Tarion Warranty Corporation dated October 2019 (“Auditor’s report”).

14The appellants made several references to the Auditor’s report in their closing statement and submitted that the respondent is systematically biased and is refuting their claim for the deposit refund because senior Tarion executives receive bonuses based on how well they limit payouts to new-home buyers. The appellants’ relied on direct quotes from the Auditor’s report and submitted that the Auditor’s report is part of the public record and was specifically referenced in their notice of appeal with the Tribunal. Finally, the appellants submitted that the Statutory Powers Procedure Act (“SPPA”) permits the Tribunal to take judicial note of public government reports.

15The respondent objected to the use of the Auditor’s report and submitted that the appellant was attempting to introduce new evidence in closing submissions when this is not permitted. The respondent also noted that the Auditor’s report was not included in the appellants’ book of documents for the hearing and as a result, the respondent had no reason to believe that it would form part of the evidence for the hearing. Finally, the respondent noted that they were not given an opportunity to present evidence to contradict the conclusion that the appellant is asking the Tribunal to make on the basis statements from the Auditor’s report which was published almost 7 years ago.

16While I agree that the Auditor’s report is part of the public record, I find that the report was not included in the appellants’ book of documents in accordance with the Case Conference Report and Order released by the Tribunal on September 29, 2025 (“CCRO”). The purpose of document exchange in advance of a hearing is to allow both parties to know the case they are required to meet and the evidence that may be relied upon. It is procedurally unfair to introduce new documents during closing submissions and I declined to add the Auditor’s report as an exhibit.

17I also decline to take judicial notice of the Auditor’s report because I am not persuaded that the specific statements quoted from this report may be accepted as true without further debate or evidence, particularly since the report was published in October 2019. The respondent submitted that Tarion made changes because of the audit and as a result, historical statements may not reflect current practices by the administrator of the province’s new home warranty program. In my view, statements made in the Auditor’s report years ago do not meet the criteria for obvious, non-controversial, nor indisputable facts at present. I treated the appellants’ statements in relation to the Auditor’s report as submissions, as opposed to evidence because I am not persuaded that general findings from a report published in October 2019 are directly relevant to the issues in dispute before me.

ANALYSIS

Deposit Refund

18I find that the appellants are entitled to an additional $60,000 from the guarantee fund (in addition to amounts already paid by respondent) as per s. 6(1)(c)(ii) of the Regulation.

19Section 6 (1) of the Regulation outlines the maximum amounts payable to a person out of the guarantee fund in respect of a claim under subsection 14 (1) or (2) of the Act as follows:

(a) $20,000 in respect of a claim in relation to a purchase agreement, or a construction contract, entered into before February 1, 2003;

(b) $40,000 in respect of,

(i) a claim in relation to a purchase agreement entered into on or after February 1, 2003 and before January 1, 2018, or

(ii) a claim in relation to a construction contract entered into on or after February 1, 2003; or

(c) in respect of a claim in relation to a purchase agreement entered into on or after January 1, 2018, the greater of,

(i) $60,000, and

(ii) the lesser of 10 per cent of the sale price of the home, and $100,000. O. Reg. 2/03, s. 1; O. Reg. 524/17, s. 1.

20As per s. 14(19) of the Act, after holding a hearing, the Tribunal may,

(a) by order, direct the Corporation to take the action that the tribunal considers the Corporation ought to take in accordance with this Act and the regulations; and

(b) for the purposes of the order, substitute its opinion for that of the Corporation. 2020, c. 14, Sched. 5, s. 20 (3).

21In its decision letter dated July 9, 2025, the respondent approved the appellants’ claim and determined that they are entitled to a deposit refund in the amount of $40,000 according to s. 6(1)(b)(i) of the Regulation.

22The appellants submit that the Tribunal should apply s. 6(1)(c)(ii) of the Regulation to calculate the deposit refund because the original agreement of purchase was an expired contract, and they entered into an assignment of agreement of purchase and sale purchase after January 1, 2018. The appellants argue that they are entitled to a maximum of $100,000 deposit refund as outlined in the Regulation and seek an additional $60,000 from the respondent’s guarantee fund.

23The appellants submit that they purchased a new, to-be built home on Lot 45 via an assignment sale from the original buyer of the property on November 5, 2021. They paid a $135,000 deposit to the builder, Mariman Homes via cheque dated November 29, 2021 as part of the transaction.

24The appellants submit that although the original purchase agreement was dated in 2016, it was amended by the first buyer B.C. several times prior to their assignment purchase (full name of original purchaser is withheld since individual is not a party to this proceeding). The appellants submit that the amendments were significant enough to be a novation to the contract since they changed:

a. the closing date;

b. the price (which included an injection of new capital by the appellants in 2021);

c. the lot for the property (from lot 37 to lot 45); and

d. the parties (the original purchaser B.C. left the transaction).

25The respondent argues that the original purchase agreement with the builder Mariman Homes was signed on November 27, 2016 and since the agreement was entered into before January 1, 2018, the maximum deposit refund to be paid from the fund is $40,000 as per s. 6(1)(b)(i) of the Regulation. This amount has already been paid to the appellants and according to the respondent, no further amounts are owing.

26The respondent argues that subsequent changes to the original purchase agreement from 2016 were simply amendments and the appellants agreed to “assume, perform, comply with and be bound by, all obligations, warranties and representations of the Assignor as contained in the Agreement of Purchase and Sale as if the Assignee had originally executed the Agreement of Purchase and Sale as buyer with the seller” when they purchased the assignment from the original buyer.

27The respondent submitted that the statutory powers of the Tribunal are outlined in the Act and my authority is limited to interpreting the provisions and the related regulations as they apply to this specific scenario. The respondent relied on case law and prior decisions from the Tribunal, however, I found that the cases included in the respondent’s Book of Authorities to be distinguishable because the current factual basis differs from the cases cited. I am also not bound by decisions made by other adjudicators.

28The appellants argue that the Tribunal must adopt a remedial interpretation of the "Date of Agreement” and rely on Cecilio v. Tarion Warranty Corp., 2007 CanLII 16520 (ON SCDC) which states that the Act is consumer protection legislation and should be liberally construed. The case was not included in the appellants’ brief and the citation provided could not be accessed on, instead Cecilio v. Tarion Warranty Corporation, 2007 CanLII 29667 (ON SCDC) was found. Even without a copy of the case before me, I agree with the principles of consumer protection and liberal application. The appellants asked me to conclude that a novation occurred after the initial purchase agreement and the liberal interpretation principle which applies to statutes also applies to interpreting the meaning of ‘purchase agreement’ in s. 6 of the Act to be the assignment purchase, not the initial purchase agreement.

29I find that although the initial purchase agreement was created in 2016, the appellants did not pay a deposit to the builder in 2016. It is bizarre for the respondent to determine the deposit refund quantum based on a date when someone other then the appellants paid a deposit. In my view, the appellants paid a deposit to the builder in 2021, and it is this date that is the basis for their deposit refund quantum, not 2016.

30I find that the appellants entered a purchase agreement via assignment on November 5, 2021 and are entitled to an additional $60,000 from the guarantee fund (in addition to amounts already paid by respondent) as per s. 6(1)(c)(ii) of the Regulation and the calculations below:

• 10% * $1,350,000 (sale price of the home at time of assignment purchase) = $135,000 deposit

• $100,000 < 135,000 deposit, therefore $100,000 deposit refund limit applies

• Deposit refund amount due: $100,000 less $40,000 already reimbursed by respondent = $60,000.

31I decline to order the respondent to pay interest on any overdue payment of the deposit refund, nor specify a time period when the payment must be made because the Act does not include an interest-bearing rule which grants me the statutory authority to do so.

The appellants are not entitled to costs of $1,000 per day

32I find that the appellants have not met the high threshold needed to order costs.

33Rule 19.1 of the Licence Appeal Tribunal Rules, 2023 states that the Tribunal may award costs when “another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith”. Rule 19.5 lists factors the Tribunal shall consider when determining whether to order costs (and, if so, how much).

34The appellants emphasized that the respondent demonstrated systematic bias and acted unreasonably when assessing their refund deposit claim. They submitted that the respondent chose to rely on a “zombie” contract to limit the payout and acted as if the terms of the original 2016 purchase agreement were “immortal”, when in fact the 2016 contract was extinguished and a new 2021 contract was born and should be the basis for their refund deposit.

35Based on the factors outlined in Rule 19.5, I find the appellants have not established that the respondent’s behaviour merits costs. Though I recognize that the parties viewed circumstances that pre-date the filing of the appeal differently, I find that there was no compelling evidence of the respondent’s misconduct or incivility during the Tribunal adjudication proceedings. The respondent was not in breach of a direction or order issued by the Tribunal, did not interfere with the Tribunal’s ability to carry out a fair and efficient process, nor did their conduct result in prejudice to other parties. As such, I find that a costs order is not needed.

36The appellants’ request for costs of $1,000 per day is denied.

The appellants are not entitled to “costs” of document disbursements

37I decline to order the respondent to reimburse the appellants for document disbursements, as the Tribunal does not have statutory authority to order such payments.

38The appellants submit that they incurred costs to proceed with this appeal and paid various disbursements to prepare for the hearing, including photocopy fees etc. They requested an order from the Tribunal for the respondent to fund disbursement costs to cover these payments and planned to provide a summary of the fees after the hearing.

39The respondent objected to the inclusion of costs of disbursements and submitted that it is well established that the Tribunal cannot order the payment of disbursements.

40I agree with the respondent that the Tribunal does not have statutory authority to order these types of payments and decline to order payment for costs of disbursements.

ORDER

41The appellants are entitled to an additional $60,000 payment from the guarantee fund for a deposit refund. Pursuant to s. 14(19) of the Act, I direct the respondent to pay this amount from the guarantee fund as a result of this appeal.