Licence Appeal Tribunal File Number: 17210/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:

John Paul Falacho and Grace Falacho

Appellants

and

Tarion Warranty Corporation

Respondent

DECISION

ADJUDICATOR:

Caley Howard

APPEARANCES:

For the Appellant:

John Paul Falacho and Grace Falacho (self-represented)

For the Respondent:

Noah Eklove, Counsel

Heard by Videoconference: March 2-4, 2026

OVERVIEW

1John Paul Falacho and Grace Falacho (the “appellants”) appeal a decision letter dated May 9, 2025, issued by Tarion Warranty Corporation (the “respondent”) denying the appellants’ claim for warranty coverage under s. 14(13) of the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31 (the “Act”).

2The items under appeal are those listed as items 15, 20 and 38 on the 30-day form and items 37, 38, 43, 50 and 87 on the year-end form. All of these items relate to the contractual requirement in the Agreement of Purchase and Sale (“APS”) that the home would be built with flush thresholds in the four exterior doorways, to accommodate the special needs of the appellants’ daughter.

ISSUES

3The issues in dispute are:

i. Have the appellants proven that the alleged deficiencies are breaches of warranty under the Act; and

ii. If so, what amount are the appellants entitled to be paid with respect to the warranted items?

RESULT

4The appellants have proven, on a balance of probabilities, that the alleged deficiencies are breaches of warranty under the Act. The appellants are entitled to be paid $18,409.96 to replace the three swinging doors and $1,168.52 to bring the deck level with the sliding door frame.

PROCEDURAL ISSUES

Appellants’ request to rely on late-produced documents

5The appellants requested that they be permitted to rely on certain documents that were produced after the deadline set out in the Case Conference Report and Order.

6The appellants’ reply documents were to be produced 10 days prior to the hearing, which was February 20, 2026. The appellants sent an email to the respondent and the Tribunal on February 20, 2026 advising that they were trying to obtain an alternative estimate for repairs, in reply to the issues that the respondent’s expert raised with respect to the estimate that the appellants had produced in their documents as a proposed alternative to the alleged deficiencies. The quote was produced on February 24 and the photographs and additional information were produced on February 27, 2026.

7The respondent consented to the appellants’ use of the documents, provided its engineering and building sciences expert, Renato Veerasammy, be permitted to comment on the documents during his testimony. The appellants agreed to this.

8I granted the permission requested by the appellants because they made clear attempts to meet the deadline and advised the respondent that more documents were coming. They produced the documents only a few days after the deadline. I found that by allowing Mr. Veerasammy to comment on the late-produced documents during his testimony, any prejudice to the respondent should be adequately mitigated. I also considered that the appellants would be significantly prejudiced if they could not rely on the estimate for their proposed alternative to the alleged deficiencies, as the appellants have the burden of proving the amount of their damages.

9In addition, the schedule of witnesses permitted us to adjourn early on the first day of the hearing to permit the respondent to go over the late-produced documents with its witnesses before the witnesses testified. I find that this further mitigated any prejudice to the respondent that may have been caused by the late production of the documents.

ANALYSIS

The doorways with wheelchair accessible thresholds that were installed in the home are breaches of warranty under the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-o31/latest/rso-1990-c-o31.html)

10Although some items are repeated, items 15, 20 and 38 from the 30-day form, and items 38, 43, 50 and 87 from the one-year form collectively claim that the builder installed doors with wheelchair accessible thresholds, instead of the doors with flush thresholds specified in the APS, in the front doorway, the bedroom garden doorway and the doorway between the laundry room and the garage.

11I find that the appellants have proven, on a balance of probabilities, that the alleged deficiencies are breaches of warranty under the Act.

12Section 13 of the Act provides that every vendor of a home warrants to the owner:

a) 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”);

b) that the home is free of major structural defects as defined by the regulations; and

c) such other warranties as are prescribed by the regulations.

13Section 19 of Administration of the Plan, RRO 1990, Reg 892 (the “Regulation”), provides that every vendor of a new home warrants to the purchaser that, where the vendor makes a substitution with respect to an item that is referred to in the purchase agreement, that is not an item that is to be selected by the purchaser, the item will be of equal or better quality than the item referred to in the purchase agreement.

14In all cases the appellant has the onus of proving, on a balance of probabilities, that the alleged deficiencies are breaches of warranty under the Act.

15The appellants submit that their APS provided for flush thresholds in the four exterior doorways of the home, to accommodate the special needs of their daughter. They submit that instead of flush thresholds, the vendor installed “wheelchair accessible” thresholds in three of the four exterior doorways, which have a half-inch vertical rise. They testified that the thresholds in these three doorways do not accommodate their daughter’s specific needs. They submit that the thresholds are not flush thresholds and are warrantable defects under the Act. In support of their submission, they rely on the APS, their respective testimony, various photographs and videos of the thresholds and the interaction between the thresholds and their daughter’s mobility devices and a definition of “flush surfaces” from Miriam Webster dictionary online.

16The respondent submits that the term “flush threshold” is interchangeable with the term “barrier-free threshold”, which is used in the OBC, or “wheelchair accessible threshold”, which was the label given to the thresholds installed in the home. It submits that, because the thresholds installed in the home are compatible with the OBC requirements for barrier-free thresholds, there is no warrantable defect. In support of its submission, it relies on the report and testimony of Mr. Veerasammy and the testimony and conciliation report of Brandon Smith, senior warranty services representative at Tarion.

17The drawings attached to the APS clearly indicate flush thresholds were required at the front door and the bedroom garden door. An amendment to the drawing indicates a flush threshold was also required at the garage entry door. The APS does not contain a definition of “flush threshold.” Ms. Falacho testified that her understanding of the term, as used in the APS, was that it was intended to mean one level surface on both sides of the doorway, with no bump. The appellants also relied on a definition of “flush surfaces” sourced from an online Miriam Webster dictionary, which described surfaces that are even and in the same plane, blending seamlessly together without visible gaps or protrusions.

18Mr. Veerasammy testified that from an engineering perspective, “flush threshold” is interchangeable with “barrier-free threshold.” Mr. Veerasammy applied the standard for barrier-free thresholds from s. 3.8. of the OBC, which requires the threshold to not exceed 13 mm in rise (approximately half an inch), and where the rise exceeds 6 mm, it must incorporate a specified slope. Mr. Veerasammy acknowledged that s. 3.8 of the OBC does not apply to single family dwellings, rather it is an accessibility requirement that applies to condominiums. Mr. Veerasammy also acknowledged that the OBC sets out the minimum standard to be applied in any situation and that an owner is free to contract for an element that meets a higher standard.

19Mr. Veerasammy testified that the threshold, the bottom part of the door frame, provides a transition area between two floor surfaces and also provides a barrier for stopping air and water ingress. Mr. Veerasammy testified that the OBC allows for exterior doors without thresholds, but opined that it was not a good idea, because of the potential for water ingress and drafts. Mr. Veerasammy opined that the half-inch rise in the thresholds that were installed in the appellant’s home are necessary to prevent a gap under the door that would allow for air and water ingress. For this reason, he opined that a truly flush threshold was not possible for an external swinging door in a residential home. He testified that he had never seen a product that would produce a truly flush threshold in a single-family home. He did acknowledge, however, that he could likely engineer a custom solution that would meet the appellants’ need for a flush threshold and prevent air and water ingress.

20I give Mr. Veerasammy’s opinion on the definition of a flush threshold little weight because he did not provide an explanation for equating flush threshold with the minimum requirements for a barrier-free threshold set out in the OBC. The interpretation of a contract is an objective exercise. I find that a reasonable person, reading the requirement for flush thresholds in the APS, would not think that a threshold with a half-inch rise would meet that requirement.

21I do not accept Mr. Veerasammy’s opinion that a “flush threshold” is equivalent to a “barrier-free threshold” or a “wheelchair accessible threshold.” For example, one can make a staircase barrier-free or wheelchair accessible by adding a ramp, but that does not make the upper and lower landings of that staircase flush. I find that the term “flush threshold” is distinct from a “barrier-free threshold” or a “wheelchair accessible threshold.”

22The appellants and the vendor did not use the term “barrier-free threshold” in the APS. I find that had the parties intend to contract for the inclusion of doors that met the minimum requirement set out in the OBC for barrier-free thresholds in a condominium, they would have used the term “barrier-free thresholds”.

23Nor did the appellant and the vendor use the term “wheelchair accessible,” which was the label given to the doors used in the home by their manufacturer. I find that had the appellant and the vendor intended to contract for the specific doors that were used in the home, they would have used the term “wheelchair accessible thresholds.”

24Instead, they specifically settled on the term flush threshold. I find that a plain reading of the term flush implies one level on both sides of the door, with no visible rise or bump in the transition area.

25The photographs taken by Mr. Smith during his visits to the home clearly show that the thresholds have a rather abrupt 12 or 13 mm (approximately half an inch) rise on the inside of the doorway, with a 4 mm vertical portion followed by 8 or 9 mm of rise that is slightly bevelled. The outside of the threshold has a more gradual ramp. The appellants testified that the castor wheels on their daughter’s mobility equipment (which are different than typical large wheelchair wheels) cannot navigate over the thresholds without endangering their daughter’s safety and aggravating her specific health issues. I give weight to this testimony because it was supported by a number of videos showing the appellants’ attempts to push empty mobility devices and mobility devices containing Ms. Falacho across the thresholds.

26I find that the thresholds installed in the home are not of equal or better quality to the flush thresholds that the appellants contracted for because they do not allow for a mobility device to transition between the interior and the exterior of the home without visible jostling of the person using the device to the extent that a flush threshold would.

27Therefore, I find that the appellants have proven, on a balance of probabilities, that the three exterior doors that were installed with wheelchair accessible thresholds are not of equal or better value to the flush thresholds that were agreed to in the APS. I find that these doors amount to warrantable defects under s. 19 of the Regulation.

The offset level of the deck is a breach of warranty under the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-o31/latest/rso-1990-c-o31.html)

28Item 37 from the 1-year form claims that the deck height is not flush with the interior flooring as per the APS.

29The fourth exterior door to the home is a sliding door between the dining area and the back deck. Due to the differences inherent in a sliding door versus a swinging door, the vendor successfully made the frame of the sliding door flush with the interior flooring level of the home. However, the appellants submit that the level of the deck is approximately 10 mm below the frame of the sliding door, resulting in a lip that their daughter’s mobility equipment cannot navigate. They submit that this lip constitutes a warrantable defect under the Act.

30The respondent submits that the 10 mm lip meets the definition of flush because it meets the minimum requirement for a barrier-free threshold set out in s. 3.8 of the OBC.

31The parties relied on largely the same testimony, documents and video as referred to above, along with a photograph showing the approximately 10 mm height difference between the interior flooring and door frame and the exterior deck directly beside the door.

32I do not accept Mr. Veerasammy’s opinion that the minimum requirement for a barrier-free threshold set out in s. 3.8 of the OBC is the standard that applies to the term “flush threshold” as set out in the APS. Mr. Veerasammy acknowledged that parties are free to contract for better standards than set out in the OBC and I find that the appellants and the vendor did so in this case, for the same reasons set out above.

33The appellants testified that the lip prevents their daughter from transitioning safely between the dining area and the outside deck. While the supporting videos relied on by the appellants were taken at the front door, not at the sliding door, I find that the 10 mm vertical lip at the sliding door likely had a similar effect on the mobility equipment as the 12-13 mm slightly bevelled rise located at the front door threshold.

34I find that the parties contracted for a flush threshold and the threshold provided at this doorway contains a 10 mm vertical lip on the exterior side. For the same reasons set out above, I find that this threshold is not of similar or better quality to a flush threshold. Therefore, I find that the appellants have proven, on a balance of probabilities, that the non-flush threshold is a breach of warranty under s. 19 of the Regulation.

What amount are the appellants entitled to be paid with respect to the warranted items?

35The appellants have the onus of proving the damages that flowed from the breach of warranty and the amount of those damages.

Replacement of three swinging doors with wheelchair accessible thresholds

36The appellants relied on two different quotes for replacement doors. The first quote was for EPAL brand doors with no threshold, the second quote was for custom doors from Boreal Architectural Products (“Boreal”). The appellants submit that either of these proposed options will provide them with the flush thresholds they contracted for.

37The respondent submits that it attempted to find a better, “more flush” solution than the doors installed in the appellants’ home and determined that the existing doors were the best solution available for the Canadian market. It submits that the two solutions proposed by the appellants are not feasible alternatives to the doors that were installed in the home. The respondent relies on Mr. Veerasammy’s report and testimony, in which Mr. Veerasammy was critical of both the EPAL doors and the custom doors proposed by the appellants.

38Of the two options proposed by the appellants, the custom doors were less expensive, therefore I have analysed the Boreal quote for custom doors first.

39Mr. Veerasammy testified that the threshold is the bottom portion of the door frame. Therefore, I find that the replacement of the entire frame and door is a reasonable scope of work to fix the warranted defects in this situation. Mr. Veerasammy also testified that he could likely create a custom solution to meet the appellants’ needs. Mr. Smith testified that both he and his supervisor did extensive research to try to find a readily available solution for a residential flush threshold in the Canadian market and were unsuccessful. Therefore, I find that the custom door and frame solution, as proposed by the appellants in the quote by Boreal Architectural Products, is a reasonable scope of work to remedy the warranted deficiencies in the three swinging doors.

40Mr. Falacho testified that after receiving Mr. Veerasammy’s report, which was critical of the EPAL doors that the appellants proposed first, he shopped around for an alternative option and was provided with the quote from Boreal. Mr. Veerasammy’s report indicated that his main concern with the EPAL doors was that they did not have a threshold at all and would therefore allow for air and water ingress, which is not desirable in an exterior door. Mr. Falacho testified that he explained to the principal of Boreal, Mr. Abe Nafar, his needs in terms of a door with a flush threshold that did not sacrifice the weatherproof aspects of a traditional exterior door with a raised threshold. Mr. Falacho also testified that he asked Mr. Nafar for a quote that included all the labour and installation that would need to be done. Mr. Falacho provided photographs of the weatherproofing device that Mr. Nafar proposed to incorporate into the custom doors. It is a device that automatically lowers to fill the gap under the door when the door closes, preventing water and air ingress.

41Mr. Veerasammy’s criticism with respect to the weatherproofing device was that the specifications provided by Mr. Falacho made him suspect that it was created for an American market and he therefore could not guarantee that it would withstand Canadian conditions. He also testified that he suspected that it was created for use on interior doors where an air seal was required, such as fire escapes in high rise buildings. I find that this was speculation based on the fact that the photographs provided showed the device on what appeared to be an interior door.

42Mr. Veerasammy had many critical things to say about the quote from Boreal and its feasibility. However, I find that Mr. Veerasammy was looking at the quote from the perspective of an engineer who was being asked to put his seal on a proposed project. His criticism was generally based on the fact that the quote did not contain enough information for him to guarantee that the result would meet the appellants’ needs and the requirements of the OBC. Mr. Veerasammy acknowledged during his testimony that quotes generally do not contain the type of detailed specifications that he felt were missing. I find that the appellants are only required to prove the quantum of their damages on a balance of probabilities. The standard of proof that Mr. Veerasammy demanded from the quotes was much higher. I further find that some of the information that Mr. Veerasammy testified was necessary in order for him to find the proposal feasible, such as specification drawings and certifications to prove that the doors would meet CSA standards, would not be available for custom doors at the stage of obtaining a quote.

43I acknowledge that there are many spelling errors in the Boreal quote, which I find irrelevant. I am prepared to accept Mr. Falacho’s testimony about the parameters that he set out for Mr. Nafar and I find that Mr. Falacho’s testimony adequately makes up for any uncertainty caused by the spelling errors.

44I also acknowledge that there is an apparent discrepancy between the wording of the quote and Mr. Falacho’s testimony. The quote indicates that the delivery and installation, including removal of the existing doors, is included in the quote. The quote also notes that in order to achieve a completely flush floor level, the floor and openings need to be modified to recess the new door frames into the floor and that this work is to be done by others and is not included in the installation fee. Mr. Falacho testified that Mr. Nafar agreed to provide him a quote that included all the work that needed to be done to achieve a flush floor with the custom doors and that Mr. Nafar agreed that he would be able to do all the work.

45The respondent submits that I should read the language of the quote as indicating that the quote is for the delivery and installation of regular doors and it is up to someone else to figure out how to install them to create a flush threshold. The respondent submits that this language makes the entire quote useless as it does not promise to achieve the flush thresholds desired. As above, I accept Mr. Falacho’s testimony about the parameters he gave to Mr. Nafar. Given those parameters, I find that the respondent’s interpretation is not reasonable. Mr. Falacho acknowledged that he obtained the Boreal quote in a rush after receiving Mr. Veerasammy’s report and that Mr. Nafar did not attend at his home, but prepared the quote based on conversations with Mr. Falacho. In these circumstances, I find that the language in the quote was most likely either an error made by Mr. Nafar in preparing the quote or Mr. Nafar’s way of accounting for the possibility of additional installation costs that he was unable to predict when preparing the quote. I agree that the language does imply that when the appellants have the work done, there may be additional installation costs above those set out in the quote. If there are, the appellants have not proven what those are and so the respondent cannot be responsible for paying them.

46Despite that, I find that the appellants have proven that they are entitled to the $18,409.96, inclusive of HST, set out in the quote for custom doors to replace the three swinging doors installed in the home.

Adjusting the level of the deck

47Because the threshold of the sliding door was flush with the interior floor of the home, and the lip was only on the exterior side of the door, the parties agreed that adjusting the level of the deck was the most reasonable way to create a flush threshold at this doorway.

48The appellants submit that the entire deck needs to be raised by approximately 10 mm to be level with the inside flooring. They rely on a quote from R.E.N.O. with Love, which states that the entire deck can be raised by approximately 5/8 of an inch and made level for $3,164.00, including HST.

49The respondent submits that it is only necessary to adjust the level of the first three deck boards next to the door, as they can be sloped down to make a flush threshold without adjusting the height of the entire deck. It relies on an estimate that Tarion produced using its estimation program. The estimated cost of raising a portion of the deck boards to create a flush surface at the threshold was $1,034.09 before HST. I calculate that this would be $1,168.52 inclusive of HST.

50Mr. Falacho testified that they would prefer if the whole deck was level so that when they extended the deck in the future, it would be flush with the bedroom garden door threshold as well. I find that this concern does not impact my decision. I was directed to no evidence that the flooring in the bedroom was at the same level as the flooring in the dining area. I find it likely that if and when the appellants decide to extend the deck, they will likely need to make adjustments to the height to ensure a flush threshold at the bedroom garden door, no matter the height of the deck.

51I accept the respondent’s submission about the necessary scope of work to make the sliding door flush with the deck. I find that it is not necessary in this case to raise the level of the entire deck. Therefore, I find that the appellants are entitled to be paid $1,168.52 for the cost of bringing the deck level with the threshold to create a flush threshold.

Conclusion

52The appellants have proven that the alleged deficiencies are breaches of warranty under the Act. The appellants are entitled to be paid $18,409.96 to replace the three swinging doors and $1,168.52 to bring the deck level with the sliding door frame.

ORDER

53Pursuant to s. 14(19) of the Act, I direct the respondent to pay the appellant a total of $19,578.48 from the guarantee fund in compensation for the breaches of warranty.