Licence Appeal Tribunal File Number: 17307/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:

Stephan and Carla De Vos

Appellants

and

Tarion Warranty Corporation

Respondent

DECISION

ADJUDICATOR: Caley Howard

APPEARANCES:

For the Appellant: Stephan and Carla De Vos (self-represented)

For the Respondent: Gregory Banks, Counsel

Hearing Reporter: Shimin Rahman

Heard by Videoconference: March 9-13, 2026

OVERVIEW

1Stephan and Carla De Vos (the "appellants") appeal a decision letter dated June 4, 2025, issued by Tarion Warranty Corporation (the "respondent") denying the appellants' claim for warranty coverage for 343 items under s. 14(13) of the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31 (the "Act").

2In their Notice of Appeal, the appellants disputed most, but not all, of the denied items. During the hearing, the appellants withdrew their appeal respecting the following items, as listed on the decision letter: 15, 17-36, 39-41, 48, 52-54, 56, 60, 69, 75-79, 82-89, 91-93, 107,109-111, 113, 115-120, 122, 126-127, 131-132, 135-137, 141-142, 149-161,170, 178, 180-190, 198-204, 209-214, 217-229, 232-252, 254-264, 289-291, 293-296, 300-302, 304-323, 328, 331, 333, 336-337, 339 and 341.

3The items that remained in dispute were divided into the following categories.

1. Items that the respondent deemed not warranted ("category 1 items"):

a) Items 1-14 respecting the type of paint used in the interior of the home;

b) Items 59, 139-140 respecting improperly installed doors;

c) Items 71-74 respecting the garage slab floor;

d) Item 80 respecting the spacing of saw cuts on the garage slab floor;

e) Item 81 respecting a lack of drywall on the garage ceiling;

f) Item 90 respecting a fibreglass door between the garage and the home being replaced by a steel door;

g) Items 98-101 and 343 respecting the framing of the garage;

h) Item 104 respecting a beam in the garage;

i) Items 114, 138, 143, 144, 179, 191, 273-280, 330 respecting the lintels;

j) Item 108 respecting the size of the attic hatch;

k) Item 121 respecting the dryer vent;

l) Items 162-164 and 166-172 respecting the stair design and construction;

m) Item 281 respecting the electric hot water tank having been replaced by a propane hot water tank;

n) Items 297-299 respecting the basement floor slab;

o) Item 303 respecting the sump pump not discharging into water the management system;

p) Items 325-326 respecting faulty circuits;

q) Item 340 respecting the placement of the entry door into the garage; and

2. Items that the respondent initially deemed warranted or needing further investigation, but where coverage was denied due to an alleged denial of access to the builder during the repair periods ("category 2 items"):

a) Item 16 respecting exterior grading;

b) Items 42-47, 51, 94-95, 112, 123-125, 146, 192-194, 205-206, 215, 231, 265-272, 334 respecting window installation, shimming, headspace and foam application;

c) Items 49, 50, 55, 57-58, 96-67, 147-148, 195-197, 207-208, 230, 281-288, 332 respecting the flashing;

d) Items 61-68 and 338 respecting the siding installation;

e) Item 70 respecting water infiltration between foundation and siding;

f) Item 128 respecting a black mark on the kitchen sink;

g) Item 165 respecting the construction of the stairs;

h) Item 177 respecting a squeaky floor;

i) Item 253 respecting a chipped and scratched bathtub;

j) Item 324 respecting a faulty breaker;

k) Item 327 respecting the nailing of girder trusses in the attic;

l) Item 329 respecting posts and girder trusses in the attic; and

m) Item 335 respecting caulking on the exterior.

ISSUES

4The issues in dispute are:

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

ii. If so, what is the quantum of damages or other relief that the appellants are entitled to with respect to the warranted items?

RESULT

5I find that items 281 (the hot water tank) and 325-326 (the breakers) were breaches of warranty. However, the applicants did not prove that they suffered any damages as a result of these breaches. I find that the appellants have not proven that the remaining category 1 items were breaches of warranty under the Act. The appellants are disentitled to compensation for the category 2 items because they unreasonably denied the builder access to their home during the repair period. I direct the respondent to deny the appellants' claims.

PROCEDURAL ISSUES

One-day adjournment request

6On the second day of the hearing the appellants sought an adjournment for one day to enable the he appellants to deal with a financial emergency that arose that morning.

7The respondent agreed to the appellants' request.

8Pursuant to Rule 16.2 of the Licence Appeal Tribunal Rules, 2023 (the "Rules"), an oral adjournment request can be made at an event in compelling circumstances where the party did not and could not have known of the circumstances giving rise to the adjournment request prior to the event. I find that the financial emergency described by Mr. De Vos is such a compelling circumstance.

9Rule 16.3 sets out the factors that the Tribunal may consider when deciding whether to grant an adjournment request. In this case, I considered that the respondent consented to the very short adjournment of one business day. I also considered that the appellants' withdrawal of a number of items from the appeal made it likely that the hearing could still be completed within the five days scheduled for the hearing. As a result, the adjournment was unlikely to unduly delay the proceedings and would limit any prejudice to either party. I also considered that the reason for the adjournment request was unforeseeable and unavoidable and I found that it was important for the appellants to address the situation immediately.

10In these circumstances, I ordered a one-day adjournment.

ANALYSIS

11Section 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.

12Section 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.

13In 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.

Category 1 items - Items deemed not warranted by the respondent

Items 1-14 respecting type of paint used in the interior

14I find that the appellants have not proven that items 1-14 amount to a breach of warranty.

15The appellants submit that the agreement of purchase and sale ("APS") specified that the interior of the home would be painted using Benjamin Moore paint. The parties agreed that the builder used BeautiTone paint instead of Benjamin Moore. The appellants submit that this substitution amounts to a breach of warranty. The appellants rely on the testimony of Mr. De Vos, the APS, the sales brochure for the home and an email chain between Mr. De Vos and the builder dated November 22, 2022 regarding the paint.

16The respondent submits that the appellant has not proven that BeautiTone paint is of lesser quality than the Benjamin Moore paint promised in the APS. The respondent relied on the testimony of Justin Devries, who performed the second conciliation assessment of the home authored the report dated February 5, 2025.

17I find that the appellants did not direct me to any evidence about the quality of the paint used in the home. Mr. De Vos did not testify that there was anything deficient about the BeautiTone paint used in the home or the application of the paint.

18Mr. Devries testified that when he inspected the home, he observed no problems with the paint in terms of quality or workmanship. I accept this testimony as it is not contradicted by any evidence from the appellants. In addition, I accept, based on his testimony, that Mr. Devries has several years of experience conducting home inspections and has been adequately trained to perform home inspections for the respondent.

19Therefore, I find that the appellants have not proven, on a balance of probabilities, that the type of paint used in the home was of a lesser quality than the one specified in the APS. There is no breach of the warranty specified in s. 19 of the Regulation.

Items 59, 139, 140 respecting improperly installed doors

20I find that the appellants have not proven that items 59, 139 and 140 amount to a breach of warranty.

21The appellants did not make submissions respecting these items. However, the second conciliation report dated February 5, 2025, states that the appellants' concern was that the exterior doors were not installed according to OBC requirements with respect to fastening, shimming and spray foam application.

22The respondent submits that the appellants have not proven that these items amount to a breach of warranty. The respondent relies on the testimony and report of Mr. Devries.

23Mr. De Vos did not testify that there was a problem with the exterior doors or their installation. The second conciliation report states that the installation details could not be inspected at the time of the inspection as the finishes around the doors had been completed. No defects or symptoms of a defect could be detected. Mr. Devries testified that he did not observe any defects or signs of a defect related to these items at the time of his inspection.

24I accept the testimony of Mr. Devries because of his experience and training, as set out above, and because I was not referred to any conflicting evidence by the appellants.

25Therefore, I find that the appellants have not proven, on a balance of probabilities, that the exterior doors were not installed in accordance with the OBC requirements. The items do not amount to a warrantable deficiency under s. 13 of the Act.

Items 71-74 respecting the construction of the garage floor slab and items 297-299 respecting the basement floor slab

26I find that items 71-74, respecting the construction of the garage floor slab, and items 297-299, respecting the basement floor slab, are not breaches of warranty under the Act.

27The appellant submits that the garage and basement floors were not constructed in accordance with the specifications set out in the APS, which amounts to a breach of warranty. The appellant submits that the APS required the garage and basement floor slabs to be a minimum of 4 inches thick, reinforced with wire mesh, supported by compacted gravel and with a vapour barrier under the slabs. Mr. De Vos testified that the slabs are only 3 inches thick and do not contain the wire mesh, compacted gravel or vapour barrier components. The appellants rely on the APS, a copy of the drawings for the home and the engineering report of Taylor Porter, structural engineer.

28The respondent submits that the appellant has not demonstrated that the specified requirements for the floor slabs were part of the APS or that the slab floors were not constructed in accordance with the requirements of the OBC. The respondent relies on the testimony and report of Mr. Devries, and the testimony and report of Mr. Porter.

29Schedule D of the APS refers to Standard Features and contains a list entitled "Distinctive Exterior Features." Paragraph 14 of the list specifies "5" reinforced poured concrete sloped to suit, complete with entrainment." The appellant submits that this requirement applies to both the garage and basement slabs. The respondent submits that this paragraph refers to the poured concrete porch only.

30I find that several of the items on the list are not exterior features, as the list refers to a radiant heat system, floor joists, subfloors, insulation and vaulted ceilings. I therefore do not accept the respondent's submission that the "Distinctive Exterior Features" list includes only items relating to exterior features of the home and I give no weight to the title of the list. However, paragraph 14 does not specify that it applies to the garage or to the basement floor. The drawings of the home indicate different requirements for the garage and basement floors, specifically that they should be 4 inches thick rather than 5 inches. The house plans specify that the porch concrete should be 5 inches and contain entrainment. In addition, Mr. Devries testified that entrainment is something that would typically only be added to outdoor poured concrete such as the porch and would generally not be required for a basement or garage floor. I give weight to Mr. Devries' testimony as it is based on his many years of experience in the construction industry and was not contradicted by any other evidence. I therefore find it more likely that paragraph 14 of Schedule D of the APS sets out the porch specifications and does not apply to the basement and garage floors.

31I find that the complete set of drawings referred to by the appellants are not part of the APS. The copy of the APS before the Tribunal contains no drawings other than those included in Schedule J, which are the front elevation drawing and the main floor plan, and the detailed drawings of the stairs, which were included in the amendment to the APS. Mr. De Vos testified that he received the complete set of drawings either from the builder or from the city. He was unable to specify when he received the drawings. He did not testify that he had the drawings at the time the APS was signed or that the parties signed a set of drawings. In addition, paragraph 42 of the APS specifies that statements or representations made in any other document do not form part of the APS.

32Mr. Porter, the engineering expert, testified that the garage and basement floor met the requirements of the OBC, which is not required to be over 75 mm (approximately 3 inches), be reinforced, have a vapour barrier or be supported by compacted gravel. I accept this testimony as it was based on Mr. Porter's engineering expertise and knowledge and was not contradicted by any other evidence.

33Therefore, I find that the appellants have not proven, on a balance of probabilities, that these items are breaches of warranty under the Act.

Item 80 respecting the spacing of saw cuts on the garage floor

34I find that the spacing of the saw cuts on the garage floor is not a breach of warranty

35The appellants submit that the garage floor slab was supposed to be saw cut into eight-foot blocks according to the APS. Instead, it was cut into blocks approximately 12 feet by 13 feet. The appellants rely on the APS and the complete house drawings.

36The respondents submit that the house drawings do not form part of the APS and there is no requirement in the OBC for saw cuts in concrete slabs. The respondent relies on the testimony of Mr. Devries.

37For the same reasons as set out above, I find that the house drawings referred to by the appellants do not form part of the APS. I find that there are no specifications in the APS that deal with the dimensions of the saw cuts in the garage floor.

38I was not directed to any section of the OBC that requires saw cuts in concrete slabs.

39Therefore, I find that the appellants have not proven, on a balance of probabilities, that item 80 is a breach of warranty.

Item 81 respecting the lack of drywall on the garage ceiling

40I find that item 81 is not a breach of warranty.

41The appellant submits that the builder did not apply drywall to the garage ceiling as specified in the house plans. The appellant relies on the APS, the house plans and emails between Mr. De Vos and the builder.

42The respondent submits that the drywall in the garage was not specified in the APS and therefore the lack of drywall does not amount to a breach of warranty under s. 19 of the Regulation.

43For the same reasons set out above, I find that the house plans are not part of the APS. I further find that the APS does not specify that the garage ceiling will be drywalled. As per paragraph 42 of the APS, an agreement or representation in another document, such as the emails referred to by the appellant, does not form part of the APS.

44Therefore, the appellants have not proven, on a balance of probabilities, that item 81 is a breach of warranty under s. 19 of the Regulation.

Item 90 respecting the substitution of a fibreglass door with a steel door

45I find that item 90 is not a warranted deficiency.

46The appellant submits that the entry door between the garage and the home is steel, rather than the fibreglass door specified in the APS. The appellant relies on the APS.

47The respondent agrees that a fibreglass door was specified in the APS, but submits that the appellants have not proven that the steel door used in the home is of lesser quality than the specified fibreglass door.

48The appellants did not provide any testimony or other evidence respecting the quality or value of the steel door installed in their home or the fibreglass door specified in the APS.

49Therefore, I find that the appellants have not proven, on a balance of probabilities, that item 90 is a breach of warranty under s. 19 of the Regulation.

Items 98-101 and 343 respecting the framing of the garage

50I find that items 98-101 and 343 are not breaches of warranty.

51The appellants submit that the garage was framed with 2x4 lumber rather than the 2x6 lumber specified in the APS. The appellants further submit that the use of 2x4 lumber in the garage does not satisfy the OBC requirements for walls taller than 3 metres. The appellants rely on the testimony of Mr. De Vos and the APS.

52The respondent submits that the builder "furred out" the 2x4s in the garage by adding 2x2s in order to create sufficient space for insulation. The respondent submits that this solution is of equivalent quality to the 2x6 lumber specified in the APS. The respondent further submits that the walls meet the OBC requirements and rely on the report and testimony of Mr. Porter, who conducted an analysis of the garage framing under Part 4 of the OBC.

53The parties agreed that the APS specified that the home was to be constructed using 2x6 lumber and that the attached garage was instead constructed with 2x4 lumber. The builder later attached 2x2s to the studs.

54Mr. Porter testified that the wall height (3.2 metres) exceeded the maximum height for 2x4 wall framing as per Table 9.23.10.1 of the OBC. It was therefore necessary to perform calculations under Part 4 of the OBC to determine if the walls were adequate as built. Mr. Porter testified that he performed the necessary calculations and determined that the walls were structurally adequate as built.

55The appellants submit that Mr. Porter's calculations under Part 4 are not adequate as they were done after the home was built and Mr. Porter did not include his calculations in his report.

56I give weight to Mr. Porter's opinion that the walls of the garage are structurally adequate as it is based on his observations of the garage and his calculations under Part 4 of the OBC, which falls within his sphere of expertise as a structural engineer. I note that the appellant has not directed me to any conflicting evidence respecting the structural adequacy of the 2x4 walls under Part 4.

57Therefore, I find that the garage walls are structurally adequate as built. Given this and the fact that they were furred out so they can accommodate the same amount of insulation, I find that the appellants have not proven, on a balance of probabilities, that the 2x4 framing is of lower quality than the 2x6 framing promised in the APS.

58I further find that appellants have not proven that the garage walls do not comply with the OBC. While they exceed the height of 2x4 walls allowed in Table 9.23.10.1, I accept the validity of Mr. Porter's calculations under Part 4 and his opinion that the walls are structurally adequate as built. Therefore, these items are not breaches of warranty under s. 13 of the Act or s. 19 of the Regulation.

Item 104 respecting a post in the garage

59I find that item 104 is not a warranted deficiency.

60The appellants submit that the post supporting girder truss G5 in the garage is not constructed adequately. They rely on the testimony of Mr. De Vos.

61The respondent submits that the post is structurally adequate and relies on the report and testimony of Mr. Porter.

62Mr. Porter testified that he performed calculations under Part 4 of the OBC to determine the minimum requirements to support girder truss G5. He confirmed that the three-ply post in question met those minimum requirements.

63I accept the opinion of Mr. Porter as it is based on his observations at the home and his calculations, which fall within his expertise as a structural engineer. While Mr. De Vos expressed doubt about the structural integrity of the post in his testimony, I give no weight to his opinion as he is not an engineering expert and his doubts were merely speculation based on his belief that Mr. Porter's calculations under Part 4 of the OBC were not valid because they were not done prior to the house being built. I accept Mr. Porter's testimony that a calculation under Part 4 of the OBC can be done after the house is built to confirm that the house was built in compliance with the OBC.

64Therefore, I find that the appellants have not proven, on a balance of probabilities, that item 104 is a warranted deficiency under s. 13 of the Act.

Items 114, 138, 143, 144, 179, 191, 273-280 and 330 respecting the lintels

65I find that the items respecting the lintels are not breaches of warranty.

66The appellants submit that the lintels in the home were constructed of 2-ply 2x10s as opposed to LVLs, as indicated in the house plans. The appellants further submit that the construction of the lintels does not comply with OBC requirements. The appellants relied on the testimony of Mr. De Vos and the house plans, including the truss and lintel drawings.

67The respondent submits that the specifications for the lintels were not included in the APS and so there is no substitution warranty. The respondent further submits that the appellants have not proven that the construction of the lintels does not comply with OBC requirements. The respondent relies on the testimony and report of Mr. Porter.

68For the reasons set out above, I find that the house plans do not form part of the APS. Therefore, the appellants have not proven that a substitution of materials from those set out in the house plans qualify as a breach of warranty under s. 19 of the Regulation.

69Mr. Porter testified that because of the length of the girders and floor trusses used in the construction of the home, the lintels had to be designed under Part 4 of the OBC. He testified that he completed the necessary calculations under Part 4 and determined that the lintels were structurally adequate as built. Mr. Porter was shown the drawings for the lintels that were before the Tribunal. Mr. De Vos expressed his concern that this drawing did not contain an engineer's stamp. Mr. Porter was not concerned about the lack of a stamp and explained that lintels are frequently designed by individuals with the necessary qualifications who work at building supply stores. I accept the opinion of Mr. Porter as it is based on his observations at the home and his calculations, which fall within his expertise as a structural engineer.

70During his testimony, Mr. De Vos expressed his concerns that the lintels were not adequately constructed. However, I give little weight to his concerns as Mr. De Vos is not an engineer and he directed me to no evidence that the lintels were not structurally sound as built.

71Therefore, I find that the items respecting the lintels are not breaches of warranty under s. 13 of the Act.

Item 108 respecting the size of the attic hatch

72I find that item 108 is not a breach of warranty.

73Section 9.19.2.1(2) of the OBC requires a hatch to an attic in a house to be at least 500 mm by 700 mm.

74The appellant submits that the size of the hatch leading from the home interior into the attic is smaller than the dimensions specified in the house plans. The appellant relies on the house plans and the testimony of Mr. De Vos.

75The respondent submits that the house plans do not form part of the APS and a substitution with respect to the dimensions of the attic hatch does not constitute a breach of warranty under s. 19 of the Regulation. The respondent relies on the testimony and report of Mr. Porter.

76For the reasons set out above, I find that the house plans do not form part of the APS. I find that there is no reference to the dimensions of the attic hatch in the APS. Therefore, the appellants have not proven, on a balance of probabilities, that this item is a breach of warranty under s. 19 of the Regulation.

77Mr. Porter's report indicates that the dimensions of the hatch opening are 704 mm by 503 mm. I find that the dimensions of the hatch exceed the requirements set out in the OBC.

78Therefore, I find that the appellants have not proven, on a balance of probabilities, that item 108 is a breach of warranty under s. 13 of the Act.

Item 121 respecting the dryer vent sticking out too far from the siding

79I find that item 121 is not a breach of warranty.

80The appellant submits that the dryer vent cover in question is not flush against the siding, unlike the other dryer vent covers on the exterior of the home.

81The respondent submits that there are no requirements for the vent cover to sit flush against the siding and this does not amount to a breach of warranty. The respondent relies on the second conciliation report and the testimony of Mr. Devries.

82Mr. De Vos testified that one of the dryer vent covers stuck out from the siding farther than the others. However, he did not provide any submissions or evidence about how this amounted to a deficiency in workmanship or materials or a violation of the OBC.

83Mr. Devries testified that the reason the vent cover does not sit flush with the siding is that its location is such that it sits on one of the battens of the board and batten siding. As the battens stick out farther than the boards, the vent cover does not sit flush with the surrounding boards. Mr. Devries testified that there is no requirement in the OBC for the vent cover to sit flush with the boards. I give weight to Mr. Devries' testimony, which is supported by the photographs in the second conciliation report.

84Therefore, I find that the appellants have not proven, on a balance of probabilities, that item 121 is a breach of warranty under s. 13 of the Act.

Items 162-164 and 166-172 respecting the design and construction of the stairs

85I find that the stair-related items are not a breach of warranty.

86The appellants submit that they paid for an upgrade to the staircase after the builder showed them photographs of a staircase in the builder's daughter's home. Mr. De Vos testified that the APS was amended to include the specifications for the upgraded staircase. The appellants rely on the APS, the report of Mr. Porter and the testimony of Mr. De Vos. The appellants submissions and evidence respecting the stairs was focused on item 164.

87The respondent submits that the photograph of the sample staircase attached to the APS was included to show the style of stairs and railing to be provided, not to indicate a requirement for railings on both sides of an open staircase.

88Mr. De Vos testified that the appellants were shown the photographs of the staircase by the builder and agreed to pay extra for a similar staircase. The appellants and the builder amended the APS accordingly. Mr. De Vos testified that rather than an open staircase with metal railings on both sides, their home contains a staircase that is open with a metal railing on one side and a solid wall on the other side. Mr. De Vos referred me to photographs of his staircase and the photographs of the sample staircase. I find that Mr. De Vos accurately described the differences between his staircase and the sample photograph attached to the APS.

89Mr. Devries testified that the staircase in the appellants' home was similar enough to the one in the sample photograph that it did not qualify as a breach of warranty. I give less weight to the testimony of Mr. Devries as it was opinion evidence based on his interpretation of the APS, which does not fall within his field of experience and knowledge.

90I find that the fact that the sample staircase is open and has a railing on both sides is the most obvious characteristic of the staircase. While the other staircase drawings did not indicate the double railings or the open sides, neither did they indicate that there would be only one railing and a wall would be located on the other side. Therefore, I find it likely that the parties intended the sample photograph to be an indication of the design of the staircase in terms of the open sides and railings.

91However, the appellants did not direct me to any evidence that the staircase they received was of lesser quality than the staircase in the sample photograph attached to the APS. Mr. De Vos testified that they paid almost $10,000 for the upgrade to the staircase. However, he did not testify about the value of the staircase that he received. I therefore have no way to determine whether the staircase installed in the appellants' home was of lesser quality than the staircase in the sample photograph.

92Therefore, I find that the appellants have not proven, on a balance of probabilities, that item 164 is a breach of warranty under s. 19 of the Regulation.

93The appellants did not address the remaining stair-related items or lead evidence with respect to the alleged breaches of the OBC. Mr. Devries testified that he inspected the stairs and item 165 was the only item he assessed as a breach of warranty. I accept Mr. Devries' assessments, because they were supported by the findings of Mr. Porter's report and there is no conflicting evidence.

94Therefore, I find that the appellants have not proven that items 162-163 and 166-172 are breaches of warranty.

Item 281 respecting the hot water tank

95I find that item 281 is not a breach of warranty under the Regulation, but the appellants did not prove that they suffered any damages as a result of the breach.

96Section 18(1) of the Regulation provides that every vendor of a new home warrants to the owner that the vendor will not make a substitution in items of construction or finishing for which the purchaser is entitled to make selection pursuant to the APS without the written consent of the purchaser.

97The appellants submit that their APS specified that they were to receive a rental electric hot water tank. Instead, they submit they received a rental propane hot water tank. Mr. De Vos testified that the propane hot water tank rental cost them approximately $20 more per month than an electric hot water tank rental. In addition, when they switched from propane to natural gas, they were forced to buy a new hot water tank, which would not have been necessary had they received the electric hot water tank specified in the APS.

98The respondent submits that the appellants had the option of choosing an electric or propane hot water tank and they chose the propane hot water tank. The respondent further submits that the builder purchased the hot water tank at no cost to the appellants, so there was no monthly rental expense. The respondent relies on the APS and various emails between the builder and Mr. De Vos relating to the hot water tank.

99Schedule D of the APS lists "rented electrical water heater (high efficiency propane option available)" in paragraph 16 under the heading "Heating, Lighting and Electrical." The appellants did not direct me to any documents that showed which option they chose, although the respondent produced emails from the builder that contained estimates for running propane lines to the hot water tank. Mr. De Vos testified that those estimates were provided to him in order to allow him to make a choice and he chose the electric hot water tank.

100However, an email from Mr. De Vos to the builder clearly thanked the builder for buying him a hot water tank, verifying that Mr. De Vos was aware that the tank was purchased rather than rented. Mr. De Vos acknowledged during his testimony that the tank was not rented, although he testified that he paid a monthly rental fee despite not being subject to a rental contract. I find Mr. De Vos' testimony respecting the water tank did not explain satisfactorily why he continued to pay a monthly rental fee after emailing the builder to thank him for purchasing the hot water tank.

101I further find that Mr. De Vos' testimony about the monthly rental costs were vague. He acknowledged that he couldn't remember the monthly cost and had no records to verify his memory. Mr. De Vos did not testify or direct me to any evidence about the cost of a replacement hot water tank.

102I accept Mr. De Vos' claim that he chose the electric hot water tank option, as the respondent did not produce any document that expressly contradicted that claim. This amounts to a breach of warranty under s. 18(1) of the Regulation. However, I find that despite the fact that the wrong type of hot water tank was installed, the tank that was installed was free to the appellants and the appellants have not proven, on a balance of probabilities, that the installation of the propane hot water tank resulted in any damages or the quantum of those damages.

Items 303 respecting the location of the sump pump discharge

103I find that this item is not a breach of warranty.

104The appellants submit that the sump pump discharged into the yard rather than into a "water management system" as specified in the APS. The appellants rely on a photograph, the APS, the testimony of Mr. De Vos and an email containing an estimate for pipes and connectors used to run the discharge all the way to a nearby drainage ditch.

105The respondents submit that the APS did not require the discharge to travel by pipe all the way to drainage ditch if the grade around the house will carry the discharge to a swale, ditch or storm sewer. The respondent relies on the report and testimony of Mr. Devries.

106Mr. De Vos referred to a photograph that showed an O-pipe exiting the house and laying on the surface of the yard. Mr. De Vos testified that the O-pipe discharged into the yard, rather than directly into the storm sewer. Mr. De Vos interpreted the requirement in the APS that the sump pump discharge into a water management system as a requirement that the O-pipe run all the way to the drainage ditch.

107Mr. Devries testified that the grade around the home sloping towards the drainage ditch would count as part of the water management system. He further testified that the OBC does not specify the distance from a house that a sump pump must be discharged. I give more weight to Mr. Devries' testimony as it is based on his years of construction experience and knowledge of the OBC. While I understand that Mr. De Vos would have preferred that the O-pipe run all the way to the drainage ditch, I find that that is not a specification in the APS or a requirement in the OBC.

108Therefore, I find that the appellants have not proven that item 303 is a breach of warranty under the Act.

Item 325-326 respecting faulty breakers

109I find that these items are a breach of warranty, but the appellants have not proven that they suffered any damages as a result.

110The appellants submit that the specified breakers were faulty and would trip when in use. They rely on the testimony of Mr. De Vos.

111The respondents submit that Mr. Devries tested the breakers during his inspection and they did not display any problems. It relies on the testimony and report of Mr. Devries.

112Mr. De Vos testified that while the specified breakers worked during Mr. Devries' test during the inspection, they continued to trip on occasion afterwards. He did not provide any testimony or documents to demonstrate that he had the breakers replaced or repaired, or the cost of such repairs.

113I accept the testimony of both Mr. Devries and Mr. De Vos, which do not conflict with each other. I find it likely that the there was a defect in the specified breakers that is warranted under s. 13 of the Act. However, I find that the appellants have not proven, on a balance of probabilities, that they incurred damages as a result of the breach of warranty, or the quantum of those damages.

Item 340 respecting the placement of the entry door to the garage

114I find that item 340 is not a breach of warranty.

115The appellants submit that the entry door from the porch into the garage was installed flush with the porch surface rather than requiring a step up, which would match the level of the front door. Mr. De Vos testified that he was shown a completed house where the door to the garage required a step up, so he believed that was what he was being promised by the builder. The appellants further alleged that the placement of the door was the result of substandard workmanship.

116The respondent submits that the placement of the door to the garage was not specified in the APS and the placement of the door does not violate any requirements of the OBC or reflect a deficiency of materials or workmanship. The respondent relies on the testimony and report of Mr. Devries and the APS.

117I find that the details of any completed home that Mr. De Vos was shown by the builder do not form part of the APS unless they were expressly included in the APS. I note that paragraph 42 of the APS specifies that no representations made by the parties outside of those expressly included in the APS form part of the agreement between the parties. I further find that the APS does not contain specifications respecting the placement of the door to the garage.

118Mr. Devries testified that by the time he inspected the door, the appellants had already had someone adjust the placement of the door so that it was located where they preferred. The appellants provided the respondent with a photograph showing its original placement. Mr. Devries testified that the original placement did not violate the OBC or any standards of workmanship.

119I give less weight to the testimony of Mr. De Vos because his claim that the placement of the door was a reflection of substandard workmanship was based on his personal preferences. I note that Mr. De Vos did not direct me to any evidence setting out standards with respect to the placement of doors in a home.

120Therefore, I find that the appellants have not proven, on a balance of probabilities, that item 340 was a breach of warranty.

Items that were denied due to the alleged denial of access to the builder during the repair periods

121I find that the appellants have not proven that they acted reasonably when they denied access to the builder during the repair period, preventing the builder from repairing the items deemed warranted in the second conciliation report, and preventing the respondent from conducting a further inspection of the items that could only be properly inspected once the siding was removed from the home.

122Section 50.10(c) of the Regulation provides that the respondent, in its sole discretion, may extend any of the timelines specified for builder repair, if it determines that the extension would facilitate the resolution of a claim item.

123The appellants submit that they did not deny access to the builder. They submit that they placed reasonable restrictions on the builder's access due to the builder's threats and antagonistic behaviour and to accommodate Mr. De Vos' work travel schedule. They rely on the testimony of Mr. De Vos and a number of emails between Mr. De Vos, the builder and the respondent.

124The respondent submits that it agreed to the appellants' restrictions on access, but determined that the restrictions would require an extension of the repair period in order to give the builder a fair opportunity to execute all the repairs. The respondent extended the 30 day repair period to 120 days and advised the appellants and the builder. The respondent submits that the appellants refused to acknowledge the extension and refused to allow the builder access to the home for repairs after the end of the first 30 days of the repair period.

125Mr. De Vos testified at length about the reasons for the restrictions he placed on the repairs done by the builder during the repair period, such as not permitting Mr. Charron, the owner of the builder, to enter the property, only permitting trades to attend when Mr. De Vos was at home, and requiring trades to provide proof of insurance. While I accept Mr. De Vos' testimony, I find that nothing turns on it as the respondent accepted the restrictions that the appellants insisted be put in place.

126Mr. Devries testified that the respondent extended the 30-day builder repair period after the second conciliation report to 120 days. Mr. Devries testified that he communication this extension to the appellants and to the builder. Mr. De Vos disagreed that the respondent could unilaterally extend the timeline for the builder repair period and refused to allow access to the home after the expiration of the first 30 days. Mr. Devries testified that he warned the appellants that they may lose entitlement to their warranty if they denied access. I accept Mr. Devries' testimony as it is supported by a number of emails between Mr. Devries, his manager at Tarion, and the appellants.

127I find that the 30-day builder repair period was extended to 120 days, but the appellants denied access to the home after the expiration of the first 30 days. They did so despite having been advised that the respondent had extended the building repair period and warned about the effects of a denial of access on their warranty.

128I find that the appellants did not point to any reasonable excuse for refusing to grant access to the home after the expiration of the 30 days. This refusal cannot be tied to any of the allegations the appellants made respecting threatening behaviour of the builder, which were alleged to have occurred during previous builder repair periods in 2023. The appellants continued to allow access to their home until the expiration of the first 30 days of the repair period in March 2025. The appellants did not give a reason for the refusal other than they did not agree with the extension. I find that the respondent has the authority to extend the builder repair period without the agreement of either the homeowner or the builder.

129I do not agree with the appellants' submission that the builder had sufficient time during previous repair periods to complete the repairs. The Regulation provides for multiple builder repair periods. Some are elective on the part of the builder and there is no requirement that the builder effect repairs until a conciliation report has been issued. In this case there were two conciliation reports issued, at the request of the appellants, which meant there was an extra builder repair period. While I understand that by March 2025 the appellants were frustrated with the process and felt like the builder had been given sufficient opportunity to conduct the necessary repairs, this does not amount to a reasonable denial of access.

130For these reasons I find that the appellants have not proven, on a balance of probabilities, that they acted reasonably when they denied the builder access to the home during the extended repair period.

Conclusions

131I find that items 281 (the hot water tank) and 325-326 (the breakers) were breaches of warranty. However, the applicants did not prove that they suffered any damages as a result of these breaches. I find that the appellants have not proven that the remaining category 1 items were breaches of warranty under the Act. The appellants are disentitled to compensation for the category 2 items because they unreasonably denied the builder access to their home during the repair period.

ORDER

132Therefore, I direct the respondent to deny the appellants' claims, pursuant to s. 14(19) of the Act.