Licence Appeal Tribunal File Number: 17963/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”) to deny a claim

Between:

Ismail Kaya

and

Tarion Warranty Corporation

Appellant

Respondent

DECISION AND ORDER

ADJUDICATOR:

Dagmar Boettcher

APPEARANCES:

For the Appellant:

For the Respondent:

Heard In Writing:

Ismail Kaya, Self-Represented

Christopher Gallo, Counsel

March 6, 2026

OVERVIEW

1Ismail Kaya (the “appellant”) appeals from a decision letter (“DL”) issued by Tarion Warranty Corporation (“Tarion” or the “respondent”) dated November 21, 2025, pursuant to s. 14(13) of Ontario New Home Warranties Plan Act, R.S.O. 1990. c.O.31 (the “Act”), denying their claim for delayed occupancy compensation under section 8 of O. Reg. 165/08 (the “Regulation”) of the Act.

2The appellant entered into an agreement of purchase and sale (“APS”) for a new condominium unit, numbered 903, in a condominium building known municipally as 2782 Barton Street East, Hamilton, from LJM Developments (Hamilton) Inc. (“builder”). The appellant signed the APS on October 5, 2019.

3The appellant filed an appeal from the DL with the Licence Appeal Tribunal (“Tribunal”) on November 10, 2025, after receipt of the Conciliation Assessment Results report dated November 5, 2025, and prior to the issuance of the DL. The respondent raised no objections in regard to the filing of the appellant’s appeal prior to the issuance of the DL.

ISSUES

4The issue to be determined is:

a) Whether the appellant is entitled to receive payment out of the guarantee fund for a delay in occupancy of the unit under s. 14(5.0.3) of the Act?

RESULT

5Having considered all of the evidence, I find that the appellant is not entitled to receive payment out of the guarantee fund for a delay in occupancy of the unit pursuant to s. 14(5.0.3) of the Act.

6The appellant’s claim for Delayed Closing/Occupancy costs of $7,500.00 is denied.

7I confirm Tarion’s denial of the appellant’s claim.

ANALYSIS

The Delayed Occupancy Warranty

8The onus lies on the appellant to show, on a balance of probabilities, that he is entitled to receive payment out of the guarantee fund for a delay in occupancy of the unit.

9The legislative basis for the delayed occupancy warranty (the “warranty”) is found in the Act, in O. Reg. 165/08 and the Addendum to the APS.

10Section 13(1)(c) of the Act provides that every vendor of a home gives to the owner, among other things, such other warranties as are prescribed by the regulations. Section 14(5.0.3)(a) of the Act provides that, subject to the Regulation, a person who has entered into an APS to purchase a home from a vendor is entitled to receive payment out of the guarantee fund for a delay in occupancy of the new home as determined by the Regulation.

11The APS was executed on October 5, 2019 and attached to the APS was the required Statement of Critical Dates – Delayed Occupancy Warranty – Condominium Form (Tentative Occupancy Date), (“Statement of Critical Dates”) and includes an Addendum to the APS. This document was attached to the APS and executed by all parties.

12The Statement of Critical Dates provides, in s. 1, the notice requirements for changing the First Tentative Occupancy Date. Section 2. of the Statement of Critical Dates provides the notice provisions for occupancy delays and states that an Occupancy date may be changed without the purchaser’s consent one or more times upon written notice, and that Occupancy Date delays beyond the First Tentative Occupancy Date require written notice at least 90 days before the First Tentative Occupancy Date.

13Section 8(2) of the Regulation sets out the warranty for delayed occupancy. The vendor warrants to comply with s. 7 of the Addendum titled “Delayed Occupancy Compensation”. Section 7 of the Addendum includes a warranty to compensate the purchaser if occupancy is delayed beyond the Firm Occupancy Date, other than by mutual agreement, or as a result of an unavoidable delay.

The Delays

14The appellant submits that the occupancy dates were changed approximately ten times and that this was unreasonable, that the delay should not have been this long, and submits that he should have received the unit on November 21, 2024. The appellant also submits that he should have been provided with 10 days’ notice regarding the delays of occupancy, which he submits did not occur.

15The respondent submits that the appellant is not entitled to delayed occupancy compensation as the delays were in accordance with the Act and the Regulation.

16The Statement of Critical Dates document, attached to the APS with the Addendum includes:

a) October 5, 2019: APS executed by all parties;

b) August 3, 2022: The date by which the builder must provide written notice if the First Tentative Occupancy Date is changed (90 days);

c) November 1, 2022: First Tentative Occupancy Date;

d) April 14, 2026: Outside Occupancy Date; and

e) May 14, 2026: Purchaser’s Termination Period – date by which purchaser can terminate the transaction if the home is not complete by the Outside Occupancy Date.

17The Addendum also contemplates, within s. 2(a)(iii) that builders may experience unavoidable delays requiring a change to the Firm Occupancy Date and specifies that proper written notice must be provided in accordance with section 5(b). Unavoidable Delays are defined within the Notice – Unavoidable Delay Event Has Occurred as:

“An Unavoidable Delay means a strike, fire, explosion, flood, act of God, civil insurrection, act of war, act of terrorism or pandemic, plus any period of delay directly caused by the event, which is beyond the reasonable control of the builder and is not caused or contributed to by the fault of the builder.”

18The delays include:

a) November 21, 2023: Second Tentative Occupancy Date - notice provided May 26, 2022;

b) February 5, 2024: Third Tentative Occupancy Date - notice provided May 4, 2023;

c) May 31, 2024: Final Tentative Occupancy Date - notice provided October 12, 2023;

d) October 17, 2024: Firm Occupancy Date - notice provided February 6, 2024;

e) August 2, 2024: Notice pursuant to s. 5(b) of the Addendum – Unavoidable Delay Event Has Occurred. Event occurred July 18, 2024 (notice provided within 20 days as required within s. 5(c) of the Addendum)

• Notice – End of Unavoidable Delay Event issued on September 17, 2024; event ended September 4, 2024 (notice provided within 20 days as required within s. 5(c) of the Addendum;

f) December 18, 2024: Revised Firm Occupancy Date –provided pursuant to s. 5(c) of the Addendum on September 17, 2024 in the End of Unavoidable Delay Event Notice (calculated pursuant to s. 5(c) by adding to the then next Critical Date the number of days of the Unavoidable Delay Period (62 days));

g) February 6, 2025: First Delayed Occupancy Date Notice provided December 2, 2024 (in accordance with s. 3 of the Addendum);

h) March 14, 2025: Second Delayed Occupancy Date Notice provided January 9, 2025 (in accordance with s. 3 of the Addendum); and

i) March 27, 2025: Third Delayed Occupancy Notice provided February 6, 2025 (in accordance with s. 3 of the Addendum).

19The respondent submits that the unit was ready for occupancy “on or around March 27, 2025” and an Interim Statement of Adjustments was prepared.

20Occupancy was granted on April 3, 2025.

The Amendment

21The respondent points me to an Amendment executed on May 16, 2025, between the appellant and the builder, the signing of which allowed the appellant to lease or offer for lease, the unit to a prospective tenant before the Title Transfer Date (Closing Date). Clause 18 of the APS specifically prohibits the listing of the unit for sale, lease, or the advertising of the unit for sale or lease prior to Title Transfer Date and the executed Amendment allowed the appellant to lease or advertise the unit for lease before the Title Transfer Date without being in breach of the APS.

22The respondent also points me to an executed Full and Final Release (the “Release”) which accompanied the Amendment of May 16, 2025. The respondent submits that, in consideration of the Amendment allowing for the lease or advertising for lease of the unit before the Title Transfer Date, the appellant within section 14 of the Amendment agreed to forgo entitlement to delayed closing compensation.

23The respondent submits that the Release expounded on the consideration and the appellant’s understanding of the bargain they were entering. The respondent points me to the clauses within the Release which state that:

a) the Consideration was arrived at following fair and frank discussions conducted between the undersigned parties, and that the Consideration represents, fair, equitable and sufficient compensation for the Claim;

b) the Releasors are fully aware of their respective rights and entitlements arising by statute…and the Releasors are likewise fully aware of the consequences following from their decision to accept payment of the Consideration and to give up rights and entitlements by virtue of this Full and Final Release; and

c) despite the foregoing rights and entitlements which might or could otherwise be pursued the release orders voluntarily and willingly accept the Consideration in full satisfaction for the Claim and further undertake and agree not to make or pursue any Claim for compensation (or any payment out of Tarion’s guarantee fund) in connection with the Claim and that Tarion shall, for all intents and purposes, be deemed and construed as one of the Releasees benefiting from this Full and Final Release, insofar as the Claim is concerned, to the same extent as if Tarion had been a named party to this Full and Final Release, had paid the Consideration directly to the Purchaser/Homeowner out of its guarantee fund and had executed this Full and Final Release together with (or in the place and stead of) the Vendor/Builder, notwithstanding that Tarion is not a signatory to these presents.

24Finally, I am pointed, by the respondent, to the clause which states that:

AND IT IS FURTHER UNDERSTOOD AND AGREED that each Releasor acknowledges that he/she has had an opportunity to obtain independent legal advice in connection with the provision of this Full and Final Release.

The Delayed Occupancy Claim

25On July 17, 2025, the appellant submitted a Delayed Closing/Occupancy Claim Form (the “Claim Form”) which included details of alleged expenses. While the Appellant’s Claim Form indicated a total claim of $179,000, calculated as $150.00/day for 850 days, plus other expenses and an amount of $1,500.00 for insufficient notice of a Delayed Closing/Occupancy Date, the total claim amount permitted on page 2 of the Tarion Statutory Warranty Form for delayed closing/occupancy is $7,500.00, and this is the amount being claimed by the appellant. The appellant submits that occupancy should have been provided on November 21, 2024, but was not provided until March 31, 2025.

26The appellant quotes a section of a Tarion document stating that:

“If the Vendor fails to give 10 days’ notice of a delay prior to the Firm Occupancy Date, you are entitled to an additional $1,500.00.”

27The appellant does not provide evidence regarding which specific dates they claim were outside the 10 days’ notice.

28In response to the Claim Form, Tarion issued a Conciliation Assessment Report on November 5, 2025 denying the claim for compensation. The Decision Letter was issued on November 21, 2025, at the request of the appellant.

29The appellant submits that they were treated unfairly by the builder when the builder did not mention during the signing of the APS in 2019 that an amendment would be required if the appellant wished to lease or rent the unit prior to the closing date. However, the appellant does not provide clarification as to whether they advised the builder that they intended to rent or lease the unit prior to the closing date. The appellant submits they were treated unfairly by Tarion when this was not considered before denying the appellant’s claim for delayed closing/occupancy compensation.

30The respondent submits that the Amendment was compliant with and permitted under the Addendum section 7(e) and operates as a waiver of entitlement to compensation for delayed occupancy of the home. The respondent submits further that the denial was in accordance with the Act, the Regulation, the Addendum and the Amendment and Release. The appellant did not submit that the Addendum was not compliant with the Act or Regulation, the Amendment or the Full and Final Release. The appellant submits that they were not informed at the time of signing the APS that an Amendment would be required prior to their leasing the unit. However, the appellant provides no evidence that they discussed the potential future leasing/rental of the unit in 2019 with the builder.

31While the appellant may find the delays significant, the Full and Final Release executed by the appellants in conjunction with the Amendment, which allowed the appellant to lease their unit prior to the closing date, is clear and states the appellant agreed to forgo entitlement to delayed closing compensation.

Missed Rental Opportunity

32The appellant states that he wished to lease the unit during the Interim Occupancy Period which commenced on the Occupancy Date of April 3, 2025 and would terminate on the Closing Date. The Amendment was executed on May 16, 2025; however, the appellant submits that the builder knew of but withheld the information that the Closing Date was to be July 3, 2025. As a result, the appellant asserts that there was insufficient time to lease the premises. Their submissions state that the appellant was forced to sign the Amendment on May 16, 2025, and the builder knew that by signing the Amendment, the appellant would forgo any possibility of delayed occupancy compensation. The appellant submits that the potential delayed occupancy compensation would have exceeded the potential rental for the 1.5-month period between May 16, 2025 and July 3, 2025, given it would have taken some time to find a tenant. The appellant submits that the builder acted fraudulently and deceptively when they did not inform the appellant of the closing date.

33The respondent submits that the appellant has not provided any evidence that would point to the suggestion that the builder knew of the potential upcoming closing date, nor did the appellant provide any evidence that he discussed the closing date with the builder at the time of signing the amendment. The respondent submits that the appellant took advantage of the provisions within the Amendment regarding leasing, and the fact that he was not successful in leasing the unit before the Closing Date should not invalidate the Amendment.

34I was not pointed to any evidence within the appellant’s submissions that he was forced to sign the Amendment, that he was under duress when signing the Amendment, or that the builder acted fraudulently and withheld the Closing Date from the appellant. I was not provided with any evidence that the builder knew of the upcoming closing date or that the appellants spoke to the builder regarding the closing date. I find that the appellant’s allegations of fraud by the builder to be unsupported within their submission.

General Submissions of the Appellants

35The appellant makes several broad statements within his submission for which he did not provide evidence in support of his accusations. The appellant submitted that Tarion employees lack the education and experience to properly handle the files and that this Tribunal should assess Tarion’s practices. Tarion submitted that the decisions made by Tarion employees are within the scope of their roles and that the employees and Tarion are empowered as delegated administrative authorities to make decisions under the Act. I agree with the respondent and feel the suggestions made by the appellants are not substantiated with evidence, and it is not within the scope of this Tribunal to rule on Tarion’s decision-making process.

36The appellant also points me to several sections within the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A and states that Tarion has made an unconscionable representation and that Tarion employees have intentionally hidden the truth for personal gain. However, the appellant’s wording is vague and he does not point me to specific instances in support of his assertion. Again, I would agree with the respondent’s submissions that this Tribunal is not a court of general jurisdiction and that, other than the warranties provided for by the Act, the Tribunal has no jurisdiction to consider general claims in contract law. The appellants may seek other forums available to them in order to pursue these allegations.

The appellants are not entitled to Delayed Closing/Occupancy Compensation

37The legislative basis for the Delayed Closing/Occupancy Compensation (“DCOC”) warranty is found in the Act and in the Regulation.

38The appellant has not established, on a balance of probabilities, that they are entitled to payment out of the guarantee fund for a delay in occupancy under s. 14(5.0.3) of the Act.

39Occupancy was provided on April 3, 2025, which is within the Outside Occupancy Date of April 14, 2026.

40I find that the builder met its obligations under the delayed occupancy warranty, specifically section 5 of the Addendum in relation to an Unavoidable Delay. I find also that the execution of the Amendment and Full and Final Release to allow the renting of the unit before Closing Date operates as a waiver of entitlement to compensation for delayed occupancy of the unit.

CONCLUSION

41The appellant is not entitled to payment out of the guarantee fund for a delay in occupancy under s. 14(5.0.3) of the Act.

ORDER

42For these reasons, and pursuant to s. 14(19) of the Act, I order the appeal be dismissed and direct Tarion to deny the claim. No costs are awarded to either party.