Licence Appeal Tribunal File Number: 16738/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 to Deny a Claim for Compensation.

Between:

Candice Rose

Appellant

and

Tarion Warranty Corporation

Respondent

DECISION

VICE-CHAIR: Jan Dymond

APPEARANCES:

For the Appellant: Candice Rose, Self-represented

For the Respondent: Ayesha Mehreen, Counsel

HEARD: By way of written submissions

OVERVIEW

1Candice Rose (“appellant”) appeals the Decision Letter (“DL”) issued by Tarion Warranty Corporation (“respondent”) dated January 22, 2025 under section 14(13) of the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31 (“Act”) on the appellant’s Year End Claim form.

2The appellant entered into an Agreement of Purchase and Sale (“APS”) for a new home with Mohsen Massoudi and Shahla Shahlaie Milani (together, the “builder”) on March 1, 2022 and took possession on April 14, 2022. The builder did not register the home with Tarion and, instead, provided a personal one year warranty.

3The appellant contacted Tarion on or about January 18, 2024 to enquire about warranty coverage. Tarion advised the appellant on October 11, 2024 that the home was eligible for Major Structural Defects coverage under the Act.

4The appellant submitted year end claim form on or about December 19, 2024. Tarion denied the claim on the basis that the year end claim form was filed outside the year end claim period.

5The appellant filed an appeal of the DL with the Tribunal on February 15, 2025.

ISSUES

6The issue in dispute is:

1. Did the respondent err in denying consideration of the appellant’s year end claim?

7I note that each of the parties framed the issues differently from the above and from each other; however, for the purposes of the decision I am framing the issue as it was stated in the Case Conference Report and Order released on August 6, 2025.

RESULT

8I find that the appellant has not met her burden of establishing, on a balance of probabilities, that the respondent erred in not accepting the year end claim form.

ANALYSIS

9I find that the appellant has not met her burden of establishing entitlement to warranty coverage because she has not established that exceptional circumstances prevented her from filing a claim within the one year warranty period as required under s. 13(4) of the Act and s.4.3 of O. Reg. 892 (the “Regulation”) under the Act.

10The appellant submits that the respondent should extend the year end claim period based on “exceptional circumstances.”

11In the alternative, the appellant submits that her claim should be allowed under the two year provision under s.4 and s.5(1)(b) of the Limitations Act, (2002), S.O. 2002, c.24, Sched B, with Tarion’s acknowledgement of warranty coverage on October 11, 2024 considered as the date of discovery.

12The respondent submits that it does not have the authority to extend the timeline under s.13(4) of the Act.

13The respondent further submits that the Limitations Act does not apply because the timelines specified in the Act and Regulation supersede the Limitations Act.

14In order to determine the issue in dispute, I will consider the following questions:

1. Does the respondent, and by extension the Tribunal, have the authority under the Act to extend the timeline for the appellant’s submission of a Year End Claim Form?

2. If so, are there “exceptional circumstances” that warrant extension of the timeline?

3. Does the Limitations Act apply under the circumstances?

Does the respondent have authority under the Act to extend the timeline for submission of the Year End Claim Form?

15I find that the respondent has the authority under the Act and Regulations to extend the timeline for submission of the year end claim form.

16The appellant’s submission does not specifically address whether the respondent has the authority under the Act to extend the year end claim period. They rely on the Tribunal’s order to extend a conciliation deadline in Toronto Standard Condominium Corporation No. 2471 v Tarion Warranty Corporation as evidence that Tarion deadlines are not absolute.

17The respondent relies on s. 13(4) of the Act which states that a warranty under subsection (1) applies only in respect of claims made thereunder within one year after the warranty takes effect. It further submits that s. 5.10 of the Regulation which authorizes extensions of timelines is specific in the sections of the Regulation to which it applies and that the appellant’s claim does not fall under a specified section.

18The respondent cites Greenberg v Ontario New Home Warranty Program, [1998] O.J. No. 6083 (Div. Ct.) (“Greenberg”); 6428 v Tarion Warranty Corporation, 2011 CanLII 101047 (“6428 v Tarion”); and AE & ME v Tarion Warranty Corporation, 2018 CanLII 100195 (“AE & ME”) in support of its position that the Tribunal has previously found that the Tarion does not have discretion to extend a timeline under s.13(4) of the Act.

19I do not find the respondent’s authorities to be persuasive. In Greenberg, the Ontario Commercial Registration Appeals Tribunal (a predecessor to this Tribunal) determined that it did not have authority to extend the date on which the warranty takes effect as stipulated in s.13(4); however, it did not consider whether the OCRAT had the authority to extend the timeline for the warranty corporation (e.g. Tarion) accepting a year end claim form which is the issue before me. The timeline for submission of a year end claim form is set out under s.4.3(1) of R.R.O. 1990, Regulation 892 (“Regulation”), and is subject to the provisions of s. 5.10 of the Regulation which provides Tarion with discretion to abridge or extend the timeline for submission of a year end claim form.

20Similarly, I do not find 6428 v. Tarion to be persuasive. In 6428 v. Tarion, the issue was whether Tarion, and by extension the Tribunal, has the authority to change the date on which the warranty was to take effect as set out in s.13(4) of the Act. The Tribunal found that the provisions of s. 4.1(4) (now 5.10) of the Regulation setting out the conditions under which Tarion could extend a timeline did not include s.13(4) of the Act. It found that, because Tarion did not have the discretion to change the warranty effective date, the Tribunal did not have such discretion either. I agree; however, in the case before me, the issue is not whether to reset the effective date of the warranty to a later date, but rather whether Tarion has authority under s. 5.10 of the Regulation to extend the time period during which a year end claim form may be submitted. While the effect may be similar, they are two different questions.

21Finally, I find that AE v ME does not apply because the matter at issue in that case related to a delayed closing which is not included in the specific sections covered under s. 5.10 of the Regulation.

22I disagree with the respondent’s position that s. 5.10 of the Regulation does not give Tarion the authority to abridge or extend a time period to file a Year End report. Section 5.10 of the Regulation states that the ability to abridge or extend a timeline applies to sections 4.1 to 4.6 of the Regulation. Section 4.3 Year End Claims (Date of Possession Before May 1, 2024) falls within the cited sections and includes the following definitions and regulations (my underlining added):

5.10 (1) The Corporation may, in its sole discretion, extend or abridge any times specified in sections 4.1 to 4.6, 5.1, 5.1.1, 5.2, 5.5 to 5.7 and 5.9 if it determines that,

(a) the vendor is unable or unwilling to address a claim item of a claim form;

(b) a claim item,

(i) involves health and safety, seasonal repairs or an emergency, or

(ii) involves other extraordinary circumstances;

(c) the extension of abridgement would facilitate the resolution of a claim item;

(d) it is reasonable to conclude that conducting conciliation inspections outside the timelines set out in sections 4.2, 4.3, 4.4, 4.5 and 4.5.1 will assist in resolving one or more claim items earlier;

(e) it would be more efficient to consolidate conciliation inspections and conciliation inspections need to be re-scheduled for that purpose; or

(f) the specified time begins in, ends in or spans the period from December 24 of one year to January 1 of the following year, both inclusive. O. Reg. 118/23, s. 15.

4.3 (1)

“year-end claim period” means the period that begins at the end of the grace period following the initial claim period provided for in subsection 4.2 (3) and that ends on the first anniversary of the date of possession; (“période de réclamation de fin d’année”)

“year-end form” means the form that the Corporation requires for a warranty claim that an owner submits to the Corporation during the year-end claim period and includes a form that is consolidated under subsection (4). (“formule de réclamation de fin d’année”) O. Reg. 478/20, s. 3; O. Reg. 118/23, s. 4 (1).

(1.1) This section applies with respect to homes, excluding the common elements of a condominium project, with a date of possession that is before May 1, 2024. O. Reg. 118/23, s. 4 (2).

(2) In order to make a year-end claim, the owner shall complete and submit to the Corporation a year-end form. O. Reg. 478/20, s. 3.

(3) An owner may submit to the Corporation one or more year-end forms or amend such forms with respect to the home at any time during,

(a) the year-end claim period; or

(b) a grace period following the year-end claim period, as long as the claim items submitted during the grace period were communicated by the owner to the builder after the date of possession and before the first anniversary of the date of possession in writing and in a manner that the owner and builder used to communicate information regarding the home. O. Reg. 478/20, s. 3.

23The purpose of the Act and Regulations is to provide consumer protection (see, e.g., 375 Lakeshore Developments Inc. v. Tong, 2021 ONSC 1820 at para. 97). I find that s. 5.10 of the Regulation is intended to provide Tarion with the flexibility to consider claims when filed by consumers who have legitimate reasons for being unable to file a year end claim form within the claim period. I find that sections 5.10 and 4.3 of the Regulation authorize the respondent to abridge or extend the time period under which a homeowner may submit or amend a year-end claim form.

24I find that Tarion has discretion to extend the timeline for accepting a year end claim form because the timeline for a homeowner to submit a year end claim form falls under s. 4.1(3) of the Regulation which is a section to which the discretion to abridge or extend a timeline under s. 5.10 of the Regulation applies. That exercise of discretion is governed by the factors identified in s. 5.10(1).

25Further, I find that s. 14(19) of the Act gives the Tribunal the authority to make an order with respect to the discretion to abridge or extend the time for a consumer to submit their year-end claim form to Tarion. Section 14(19) states that, 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).

26Clearly, the legislature has granted the Tribunal the authority to direct Tarion to take the actions that it should have taken in accordance with the Act and the Regulations, and where necessary, substitute its opinion for Tarion’s. However, the existence of discretion does not necessarily mean it must be exercised.

The appellant has not satisfied her burden of exceptional circumstances

27The appellant submits that Tarion should exercise its authority under s. 5.10 of the Regulation to extend the Year time period because exceptional circumstances prevented her from filing a claim within the one year period. She submits that the exceptional circumstances include:

1. That the builder failed to enroll the home with Tarion;

2. That the APS clause and pre-closing statements misrepresented warranty coverage; and

3. That the builder’s conduct during the first year reasonably led the appellant to believe that the warranty issues would be resolved directly, preventing the appellant from recognizing the need for Tarion enrollment.

28The respondent submits that its authority to extend a timeline under s. 5.10(b)(ii) of the Regulation is limited to sections specified in the regulation, if it determines that the warranty claim involves other extraordinary circumstances.

29The respondent submits that the Act does not define “extraordinary circumstances,” that the test is fact specific, and that the facts do not support and extension of the time period for submitting a year end claim form.

30The appellant submits that she agreed to purchase a newly built home located at 295 Elm Road in Toronto from the builder in January, 2022 with a closing date of on April 21, 2022. The appellant acknowledges that she was informed by the builder through the appellant’s real estate agent prior to the purchase that the builder could not provide a Tarion warranty but would, instead, offer a personal one year warranty on the home. The appellant proceeded with the purchase and agreed to the builder’s personal one year warranty as documented in the APS. The appellant submits that she reported multiple defects to the builder in the first and second years of her ownership but that the builder failed to resolve all of the issues.

31The appellant submits that, with defects unresolved, she contacted her realtor in who suggested that she contact Tarion. The appellant’s original submission states that she contacted her realtor in February of 2023. In her reply submission she corrected the date to January 2024. On or about January 18, 2024, the appellant first contacted Tarion to enquire about coverage and, on January 22, 2024, the appellant sent a completed Homeowner Warranty Eligibility Form to Tarion.

32On October 11, 2024, Tarion confirmed that the home was warrantable and granted a two-year warranty and a seven-year major structural warranty. The appellant submitted a Year Two claim which was accepted by Tarion as it was submitted within two years of the date of possession.

33On or about December 19, 2024, the appellant submitted a year end claim form. Tarion informed the appellant that the year end claim form was submitted late and could not be accepted. The December 19th communication was followed by a DL on January 22, 2025 denying warranty coverage for the items claimed in the year end claim form on the basis that the appellant had not filed a claim within the first year of ownership as required under s.13(4) of the Act.

34I find that the builder’s failure to enroll the home is not an exceptional circumstance that prevented the appellant from filing a claim within the year end time period. The appellant was aware that the home had not been enrolled and agreed to the purchase with that awareness. The appellant could have made inquiries with Tarion or her real estate agent at any time before or after the purchase as to the consequences of purchasing a home that was not enrolled but chose not to do so. Had she contacted Tarion immediately, the appellant could have filed her claim within the year end claim period. Instead, she states that she continued to attempt to resolve issues directly with the builder for two years following the APS. Tarion confirmed that the home was eligible for coverage, albeit at the time of her inquiry, only the two-year and seven-year items were covered; however, I find no evidence that the builder’s failure to enrol the home with Tarion justifies a finding of exceptional circumstance.

35Similarly, I find no evidence that the APS clause and pre-closing statements misrepresented warranty coverage. The appellant submits Schedule A of the APS which contains the builder’s commitments to “warrant all mechanical systems, including but not limited to plumbing, electrical, heating, air conditioning, and all structural components including but not limited to foundation, roof, windows, leaks, soffits, fascia, eaves troughs, for a period of one (1) year commencing from the date of completion of this transaction.” The appellant does not offer specifics of the alleged misrepresentation contained in the APS nor evidence of misleading pre-closing statements. In her reply submission, she states that the builder misrepresented that Tarion coverage did not apply; however, there is no evidence before me that supports the appellant’s allegation. Tarion’s letter of October 11, 2025 reports that the builder originally built the home for his own use and “was not aware that he was considered a builder and did not know that the house needed to be enrolled with Tarion.” As stated above, the appellant acknowledges that the builder informed her through her realtor that the home was not enrolled with Tarion prior to completion of the APS. The appellant agreed to the purchase in full knowledge that the home was not enrolled and agreed to accept the builder’s offer of a personal warranty.

36In addition, I do not have any evidence before me to suggest that the conduct of the builder prevented the appellant from applying to Tarion within the year end claim period. The appellant submits email correspondence regarding certain defects and asserts that the builder’s responses misled them into thinking that the issues would be resolved. However, I have reviewed the limited email exchanges submitted by the appellant and find no evidence in them, or any other document submitted by the appellant, to support a finding that the builder’s conduct prevented the appellant from submitting a year end claim form.

37For the reasons above, I find that the appellant has not established, on a balance of probabilities, that exceptional circumstances prevented her from submitting a year end claim form within the prescribed time period.

38Even though I find that s. 5.10 of the Regulation clearly gives Tarion the discretion to extend the timelines of s. 4.3 of the Regulation and I find that s. 14(19) of the Act gives the Tribunal the power to direct Tarion to take the actions that it should have taken, that discretion means discretion to extend or to not extend. Here, I would direct Tarion not to extend its discretion under s. 5.10 of the Regulation because I find that the appellant’s circumstances do not justify exercising that discretion. I substitute my opinion to direct Tarion to not to exercise its discretion to extend the timeline for submission of the appellant’s year end claim form based on exceptional circumstances.

Does the Limitations Act, 2002 apply to the matter?

39I find that the Limitations Act does not apply to the matter before me.

40The appellant submits that Tarion’s reliance on the one-year deadline conflicts with the Limitations Act, and submits that under that Act, her claim should be allowed within two years of discovery. She submits that the date of discovery is the date on which Tarion confirmed that the home was covered, i.e., October 11, 2024.

41The respondent submits that the Limitations Act applies solely to pursuing claims in Court and does not supersede the prescribed timelines in the Act. I have reviewed the Limitations Act and agree with the respondent that it does not apply to the matter before me because s. 2(1)(b) of the Limitations Act states that the Act does not apply to proceedings in the nature of an appeal if the time for commencing them is governed by an Act or rule of court. In this case, the appellant erroneously characterizes the one year deadline as an internal deadline when, in fact, the requirement that year-one warranty claims be made within one year of taking possession is prescribed under the Act and Regulations.

42I find that the Limitations Act does not apply to the matter before me because the time periods for commencing proceedings are specified in s. 13(4) of the Act and s. 4.3 of the Regulation.

Conclusion

43I find that the appellant has not established, on a balance of probabilities, that the respondent erred in denying consideration of the appellant’s year-end claim.

ORDER

44For the reasons set out above, and pursuant to s. 14(19) of the Act, I order the appeal be dismissed and direct Tarion to deny the appellant’s claim.

Released: January 14, 2026

__________________________

Jan Dymond

Vice-Chair