Licence Appeal Tribunal File Number: 17405/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”).

Between:

Josh Klein and Leah Heenan

Appellants

and

Tarion Warranty Corporation

Respondent

DECISION

ADJUDICATOR:

Caley Howard

APPEARANCES:

For the Appellant:

Josh Klein (self-represented)

For the Respondent:

Cindy Zhou, Counsel

Hearing Reporter:

Laila Butt

Heard by Videoconference: February 10-12, 2026

OVERVIEW

1Josh Klein and Leah Heenan (the “appellants”) appeal a decision letter dated July 8, 2025, issued by Tarion Warranty Corporation (the “respondent”) under s. 14(3) of the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31 (the “Act”), denying the appellants’ claim for warranty coverage on their home. The decision letter states that the home is not eligible for warranty coverage because it is a renovation to an existing building rather than a new home.

ISSUES

2The issue in dispute is whether the appellants’ home is eligible for coverage under the Act.

RESULT

3The home is not eligible for warranty coverage.

PROCEDURAL ISSUES

Appellants’ motion for permission to rely on late-produced documents

4The appellants sought an order under Rule 9.3 of the Licence Appeal Tribunal Rules, 2023 (the “Rules”) that they be permitted to rely on the documents located at Tabs 15.1 through 25 of their document brief, and one document that was not included in their brief, despite not having produced these documents in accordance with the time limit set out in the case conference report and order dated September 22, 2025 (the “CCRO”).

5The applicants produced some documents by October 20, 2025, as required by the CCRO, but acknowledged that they did not produce the remainder of the documents until January 15, 2025. The appellants submitted that they misunderstood the deadlines set out in the CCRO.

6The respondent submitted that it had reviewed the late-produced documents and had the opportunity to go over them with its witnesses and would consent to the appellant relying on the documents.

7I granted the appellants’ motion because the appellant produced the documents nearly one month prior to the hearing, which enabled the respondent to review the documents and adequately prepare for the hearing. I also considered that the respondent consented to the use of the documents in the hearing.

ANALYSIS

Are the appellants entitled to warranty coverage under the Act?

8For the reasons that follow, I find that the appellants’ home is not eligible for warranty coverage under the Act.

9Owners of newly constructed homes in Ontario benefit from the statutory warranties set out in the Act. Renovations to existing homes are not eligible for warranty coverage.

10Eligibility under the Act is not restricted by a vendor’s failure to enrol the home. Neither can a vendor and owner contract to ensure eligibility or ineligibility under the Act (see, for example, Mashinter v. Tarion, 2021 CanLII 62553 (ON LAT) at para. 24).

11Section 13(1) of the Act sets out the warranties that are provided by every vendor of a home to the owner. In order for a warranty to exist under the Act, there must be a “vendor”, a “home” and an “owner”, as defined by the Act.

12The respondent acknowledges that the appellants’ home meets the definition of “home” as set out in s. 1(1) of the Act.

13The definition of “vendor” includes a builder who acts as such under a contract with the owner. A builder means a person who undertakes the performance of all the work and supply of all the materials necessary to construct a completed home.

14Owner is defined as a person who first acquires a home from its vendor for occupancy and the person’s successors in title.

15The appellants submit that they purchased an existing house in a historic neighbourhood in or about July 2021. The existing house was built in approximately 1906. They contracted with Whitaker Construction Inc. (the “contractor”) to perform significant work to the existing home. They acknowledged that they lived in the existing home for a time prior to vacating the home and turning it over to the contractor for approximately 18 months. Due to the historic significance of the existing home, the foundation and exterior masonry walls of the existing home were incorporated into the appellants’ plans rather than being demolished. The appellants submit that the contractor built a new home on the property, albeit with some features of the existing home incorporated into it, which they submit is eligible for warranty coverage under the Act.

16In support of their submissions, the appellants rely on the testimony of Mr. Klein, as well as their contract with the contractor, building permits, architectural and engineering drawings of the project, invoices from subcontractors, the audio recording of the interview conducted by Michael Skinner, investigator for the respondent, with James Aikenhead, the president of the contractor, photographs of the existing structure and the completed home, and communication from the respondent.

17The respondent submits that the work done by the contractor amounts to an extensive renovation of the existing home, rather than the construction of a new home, and is therefore not eligible for warranty coverage under the Act. Specifically, the respondent submits that the contractor does not meet the definition of vendor because the contractor did not supply all of the materials or perform all of the work necessary to construct the completed home due to the incorporation of the existing elements. In addition, the respondent submits that the appellants do not meet the definition of owners because they occupied the home prior to the renovation.

18In support of its submissions, the respondent relies on the testimony of Mr. Skinner and Mr. Aikenhead, as well as the architectural and engineering drawings for the project.

The scope of the project and the retained elements

19Mr. Klein testified that the foundation of the pre-existing house consisted of a basement on the front half and a crawl space under the back half of the house. A triple-brick foundation extended approximately three feet below grade around the entire perimeter of the house. There was also a foundation wall that divided the basement from the crawl space.

20Mr. Klein testified that the project involved demolishing the entire interior of the house, including all interior walls, the floor systems and the roof. The foundation wall between the original basement and the crawl space was removed, the crawl space was excavated and square footage was gained by expanding the basement to the entire perimeter of the home. The existing foundation was underpinned around the entire perimeter by digging approximately four feet below the existing footings and pouring concrete underpins. This lowered the basement floor by approximately four feet. Square footage was gained on the third floor by replacing the sloped roof with a flat roof or dormer at the rear of the house. All windows and doors were replaced, and some were moved. New pipes were installed to the road for water and waste water.

21The double-brick masonry walls of the existing home were retained. Mr. Aikenhead testified that these masonry walls were the structural walls of the home. While new walls were framed in the interior of the home, these were not structural, but were used to hold insulation and drywall.

22Mr. Klein testified that a number of windows and doors in the masonry walls were moved, removed or enlarged. The architectural plans confirmed that the square footage of the masonry walls was 2,855 and 529 square feet of the walls, or 19%, were demolished for the purpose of making changes to window and door placement and sizes.

23Where there are discrepancies between the testimony of Mr. Klein and the testimony of Mr. Aikenhead that deal with the scope of the work performed, I accept Mr. Klein’s testimony. I accept that the entire foundation of the home was underpinned, rather than the 85% stated by Mr. Aikenhead in his recorded interview with Mr. Skinner. I also accept that the foundation wall between the existing basement and the crawlspace was removed, despite Mr. Aikenhead stating in his recorded interview that no parts of the foundation were removed. I also accept that a significant amount of excavation was involved in the project, despite Mr. Aikenhead stating to Mr. Skinner that no excavation was necessary and testifying at the hearing that the digging done in this case would not have been called excavation. I further accept that all the floor systems in the house were replaced, despite Mr. Aikenhead’s statements that some floor systems were retained. I find that Mr. Klein’s testimony with respect to the scope of the work in these respects was supported by the architectural and engineering drawings. I further find that during his cross-examination, the clarifications that Mr. Aikenhead provided respecting his interview with Mr. Skinner accorded largely with the scope of work testified to by Mr. Klein.

24Despite the inaccuracies in Mr. Aikenhead’s interview with Mr. Skinner, I accept Mr. Aikenhead’s testimony respecting the technical aspects of the work, particularly his description of the work involved in underpinning the foundation and the work done to the masonry walls. Mr. Aikenhead is an experienced contractor and was the contractor in charge of the project. As such, he is the witness best situated to testify about what was involved. Mr. Klein acknowledged that he had no construction experience and was not present at the project during construction.

25I find that the project included the following retained elements from the existing home: the foundation walls for the entire perimeter of the existing home were retained and underpinned; and all of the exterior structural masonry walls were retained, although changes were made to add, remove and move windows and doors and a small extension of one or two rows was made to the masonry at the top of the front of the house. While the builder did the work and supplied the materials for the underpinning, moving the windows and doors and the masonry extension, I find that it did not supply the materials or the work for the original foundation or masonry walls.

Do the retained elements accord with the definitions of “vendor” and “owner”?

26I find that the appellants have not proven that the contractor meets the definition of vendor.

27The appellants rely on Home Construction Regulatory Authority (“HCRA”) Advisory 3, which states that special considerations apply if a dwelling is being constructed on all or part of a preexisting foundation and that decisions about the availability of warranty coverage will depend on the circumstances. I find that this document specifies that a building that incorporates elements of an existing structure is not necessarily precluded from being a new home. However, it also makes it clear that not all buildings that incorporate existing elements will be considered new homes. The appellants have the onus of proving, on a balance of probabilities, that they are entitled to coverage, not that they are not precluded from coverage. Therefore, a finding that they are not precluded from coverage due to the incorporation of a retained element does not determine the issue.

28The appellants further rely on the Tribunal decision in Shligold v. Tarion Warranty Corporation 2023 CanLII 93019 (ON LAT) (“Shligold”), in which the Tribunal found that a home that incorporated parts of a pre-existing foundation and wall structure was a new home entitled to warranty coverage. I find that Shligold can be distinguished from the current situation as the appellants in Shligold purchased the completed home from the builder vendor. The Tribunal found that in that situation, the builder had supplied all of the materials for the new home including some materials that had been sourced from the pre-existing home. This is fundamentally different from the appellants’ situation as the appellants purchased and lived in the pre-existing home prior to contracting with the builder. The materials from the pre-existing home in this case cannot be said to have been supplied by the builder.

29The appellants further rely on their contract with the builder, which indicates an agreement that the builder is deemed to be the vendor responsible for statutory warranties. I give this clause of the contract little weight as the intention of the owner and contractor as to whether the contractor is or is not a builder or vendor under the Act is not relevant to the determination of coverage. The respondent relied on the Tribunal decision of Mashinter v. Tarion Warranty Corporation, 2021, CANLII 62553 (ON LAT) (“Mashinter”), in which the Tribunal found that the Act supersedes any private agreement between the parties. While I am not bound by other Tribunal decisions, I find the reasoning in Mashinter persuasive. An owner and a builder cannot determine by contract whether or not they are covered by the Act.

30The appellants submit that the retained elements were functionally changed in order that the finished structure would comply with the OBC, that these re-built elements can no longer be considered pre-existing elements and that this makes the finished structure a new home. However, the appellants did not direct me to any authority for treating retained elements this way. Further, I find that many elements needed to be added to the home in order to bring the home into compliance with the OBC. While some elements were added to the home to bring the retained elements up to code, specifically, the underpinning of the foundation, this did not change the retained elements themselves any more than did the addition of the unrelated elements (such as the new roof or the new waste water system). Thirdly, while the appellants submit that changes were made to the structural masonry walls to bring them up to code, I was not directed to evidence of those changes. Therefore, even if I accepted this submission, it would only apply to the retained foundation and not to the retained walls. For all of these reasons, I am not persuaded by the appellants’ submission that bringing the home into compliance with the OBC makes it a new home despite the retained elements.

31The respondent directed me to several cases in which the Tribunal or its predecessors denied eligibility under the Act due to the use of retained elements from existing structures.

32The respondent relied on Buchanan (Re), [1994] OCRATD No. 78 (“Buchanan”), in which the predecessor tribunal found that the contractor had not supplied all the materials and did not meet the definition of builder or vender. In Buchanan, the owners’ home was destroyed in a fire. They contracted with a contractor to rebuild the house on the old footings and part of the old foundation. One of the walls was moved to increase the size of the home, requiring new footings and foundations on that end.

33The respondent also directed me to Chopra (Re), [1998] OCRATD No. 261, in which 82 feet of load-bearing foundation wall and the sewer line were retained from a pre-existing one and a half-story house when it was demolished to be replaced by a larger two-story house. The predecessor tribunal found that these retained elements were substantial and had not been supplied by the vendor/builder. Therefore the house was not eligible for warranty under the Act.

34The respondent also directed me to Morton (Re), [2004] O.L.A.T.D. No. 550, in which the owners of a cottage with a 470 square foot addition contracted with a contractor to build a 4000 square foot home that incorporated the addition. The Tribunal found that the use of the addition, along with the owners contracting directly with a third party contractor to install the radiant heating meant that the contractor could not be said to have done all the work or provided all the materials in significant respects.

35Finally, the respondent directed me to Ontario (5253-ONHWPA-Claim) (Re), [2009 OLATD No. 176, in which the original home was destroyed in a fire. The owners contracted with a contractor to re-build the home on the original concrete footings and floor slab and two courses of bricks from the original foundation. The Tribunal found that there was no vendor in this case as the contractor did not perform all of the work or provide all the materials and the owners had done work on the electrical, plumbing and heating systems themselves.

36The respondent submits that each of these cases involves retained elements that were less substantial than the elements retained in the appellants’ project. I agree. The appellant submits that the cases relied on by the respondent are old and therefore I should not consider them. I find that the Tribunal in each of these cases was grappling with the same definition of “vendor” that I am and therefore the age of the cases does not make them less helpful to me. While I am not bound by Tribunal decisions, I found the cases informative as they demonstrate that the Tribunal has considered not simply the number or square footage of retained elements when compared to the total elements in the finished home, but also the importance of the retained elements to the completed structure. I have used a similar approach to my analysis of the retained elements in the appellants’ home.

37I find that the contractor cannot be said to have supplied all the materials or done all of the work because the original foundation and original structural masonry walls were incorporated into the project. I find that the foundation and structural masonry walls were a substantial part of the project, without which there would be no home. The project used the original footprint and envelope of the home, with the only gains in square footage occurring by digging down in the basement and bumping the roof up and out on the top floor. Adding underpinning to the foundation to bring the home into compliance with the OBC does not negate the importance of the retained foundation and masonry walls to the structure of the home. These elements remain a vital part of the structure of the home.

38Therefore, I find that the appellants have not proven, on a balance of probabilities, that the contractor meets the definition of builder or vendor. Without a vendor, there is no warranty under the Act.

Conclusion

39I find that the appellants have not proven, on a balance of probabilities, that their home is eligible for warranty coverage under s. 13(1) of the Act.

ORDER

40The appellants’ home is not eligible for warranty coverage under the Act.