Licence Appeal Tribunal File Number: 16533/ONHWPA

In the matter of an appeal from a decision letter of Tarion Warranty Corporation under s. 14 of the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31 (the “Act”).

Between:

Muthukumar Venguidassalame

Appellant

and

Tarion Warranty Corporation

Respondent

and

J. Rauti Custom Homes Ltd.

Added Party

DECISION

ADJUDICATOR:

Bruce Stanton

APPEARANCES:

For the Appellant:

Muthukumar Venguidassalame, self-represented

For the Respondent:

Anthony Keirouz, Warranty Services Representative

Christopher Gallo, Counsel

For the Added Party:

Toula Pizzuti, Representative

Court Reporter:

Shimin Rahman

Heard by videoconference:

April 13 and 15, 2026

OVERVIEW

1Muthukumar Venguidassalame, the appellant, appeals from the decision letter of the respondent, Tarion Warranty Corporation, issued November 5, 2024, in which the respondent denied claim item 9 of the appellant’s Year-end statutory claim form.

2The appellant filed a Notice of Appeal of the decision letter with the Licence Appeal Tribunal (the “Tribunal”) on December 17, 2024.

3At a case conference in this matter held February 7, 2025, J. Rauti Custom Homes Ltd. (the “builder”), the builder/vendor of the appellant’s home, was added as a party to the proceeding.

PRELIMINARY ISSUES

Hearing stood down to April 15, 2026

4The Case Conference Report and Order issued in this matter on February 21, 2025 (“CCRO”) indicated that the appellant would be calling 2 to 3 witnesses; the respondent would be calling 3 to 4 witnesses; and the builder would be calling 2 to 3 witnesses. The Tribunal ordered a three-day hearing considering the number of witnesses the parties intended to call. The hearing was scheduled for April 13, 14 and 15, 2026.

5At the outset of the hearing on the first day, the parties informed me that each would be calling only one witness. The appellant would be testifying on his own behalf; the respondent would be calling one witness, and the builder would be testifying on its own behalf.

6With the introductory portion of the hearing having been completed on the first day, only 3 witnesses being called for the remainder of the hearing, and as is outlined below, additional time being required to review late-filed documents, at 11:45 a.m., I stood the hearing down until Wednesday, April 15, 2026, at 9:30 a.m.

Appellant’s documents and evidence for the hearing

7In the hour prior to the start of the hearing, the appellant filed with the Tribunal, and served to the other parties, several electronic documents for the hearing. They included:

a. Word document, with six files imbedded in it, entitled, “The documents that I want to share with the Adjudicator”. This email appears to have been initially filed and served at 10:45 p.m. on April 12, 2026. The six imbedded documents included:

i. Notice of Appeal dated December 17, 2024;

ii. Request for Adjournment, noted as November 24, 2025, of the hearing then scheduled to commence December 15, 2025;

iii. Copy of a service work order dated November 11, 2025 by Eagle Heating & Cooling Inc.;

iv. Copy of a letter from Eagle Heating & Cooling Inc., dated October 23, 2025, addressed to J. Rauti Custom Homes, in relation to the appellant’s home;

v. Copy of a two-page letter, undated, with the title, “Reasons You and Making this Appeal”. The appellant submits this is the same 2-page letter which accompanied his Notice of Appeal filed with the Tribunal on December 17, 2024; and

vi. A Word document titled “Winter 2026 Temperature Testing between MBR and MBR Walk-in closet – Photo Evidence” which includes images of a wall thermostat and temperature monitoring device, associated with various dates and times; and

b. Email with 10 photo images; and

c. Email with 6 video files.

8Items 7(i) and 7(v), above (the Notice of Appeal and accompanying “reasons for appeal” letter) were previously filed and already properly before the Tribunal. Item 7(ii), the Request for Adjournment of November 24, 2025, would have been distributed to the parties as part of the Tribunal’s correspondence in this matter.

9The CCRO required that the appellant file and serve its book of authorities and any documents he intended to rely on, 31 calendar days prior to the date of the commencement of the hearing. The respondent and the builder were required to file and serve their books of authorities and documents they wished to rely on, 17 days prior to the date of the commencement of the hearing.

10As the parties had notice of, or were previously in receipt of, items 7(i), 7(ii), and 7(v) in advance of the notice period stipulated in the CCRO, they are admissible as evidence.

11The hearing dates ordered in the CCRO were subsequently adjourned on three occasions pursuant to orders issued by the Tribunal on May 1, 2025, June 25, 2025, and December 1, 2025. On April 8, 2026, the appellant sought a further adjournment of the hearing scheduled to commence today but the adjournment request was denied by an order of the Tribunal on April 9, 2026. Notably, the adjournment orders of May 1, 2025 and April 9, 2026 stipulate that, except for the provisions contained therein, all previous orders made by the Tribunal remain in full force and effect.

12Accordingly, I find that the following documents and things were not filed in accordance with the CCRO:

a. Email with 10 photo images;

b. Email with 6 video images;

c. Service work order of Eagle Heating & Cooling dated November 11, 2025;

d. Letter from Eagle Heating & Cooling dated October 23, 2025; and

e. Winter 2026 Temperature Testing document.

13Rule 9.3 stipulates that, where a party fails to comply with any rule, direction or order with respect to the disclosure, exchange or production of a document or thing, the party may not rely on it as evidence without the permission of the Tribunal.

14After receiving submissions from the parties in relation to any such failure to comply with the Rules, the Tribunal determines whether to grant permission for the subject disclosures or productions to be relied on and may consider any relevant factor, including;

i. the reasons for non-compliance;

ii. whether a party will be prejudiced by the admission or exclusion of the evidence and the extent to which that prejudice can be mitigated by any other order;

iii. the extent to which the substance of the information lies within the knowledge of the other party;

iv. whether the other party opposes admission of the evidence; and

v. the relevance of the document, thing to an issue in dispute in the proceeding.

15The appellant submits that he wishes to rely on the 5 documents listed in paragraph 12, above. He submits that he did not file them until this morning because he had expected today’s hearing would be adjourned. He notes that previous adjournment requests were granted.

16The appellant submits that the emails with 6 videos and 10 photos consist of images and videos of the interior elements of his home and are not specific to the claim item in dispute (cold walk-in closet adjacent the master bedroom). He filed them so that the Tribunal could be informed of the character and elements of the interior of his home.

17The respondent objects to the admission of the appellant’s remaining 5 late filed documents and things for the following reasons:

a. Although the two documents from Eagle Heating & Cooling are known to the respondent, it had no knowledge, until today, that the appellant intends to rely on them. It submits that if the appellant had served his documents on time, it could have considered calling a witness from Eagle Heating & Cooling to testify.

b. The respondent objects to the admission of the two emails consisting of 10 photos and 6 videos because it is seeing these files for the first time and has had no time to review them and prepare a response. It submits there is significant prejudice to the respondent by the admission of this evidence.

c. The respondent objects to the Winter 2026 Temperature Testing document file because it is seeing these files for the first time and it was filed less than an hour before the hearing started. It submits there has been no time to review the document, put it to an expert, or prepare a response, and it would need up to 7 days to review this document and provide a responding submission for the hearing.

18The builder had no objections to the two documents in relation to Eagle Heating & Cooling being admitted. Eagle Heating and Cooling is a regular sub-contractor of the builder. The builder submits that it has not previously seen the 10 photos and 6 videos filed by the appellant today and did not make submissions on whether they should be admitted as evidence. The builder submits that the thermostat pictured in the Winter 2026 Temperature Testing document was not installed by the builder. The appellant submits that the thermostat pictured was purchased after he took possession of the home. The thermostat pictured was supplied/recommended by Enbridge Gas, the home’s natural gas supplier, following a promotion for “smart” thermostats.

19After hearing the parties’ submissions and considering the factors in Rule 9.3, I grant permission for the appellant to rely on the two documents from Eagle Heating & Cooling and the Winter 2026 Temperature Testing document, for the following reasons:

a. Although I am not persuaded by the appellant’s reasons for non-compliance, considering that the adjournment order of December 1, 2025 stated that the Tribunal would grant no further adjournments, I am persuaded to grant permission that he may rely on all three documents because they appear to be directly relevant to the issues in dispute;

b. The Eagle Heating & Cooling documents are within the knowledge of the respondent and builder. The limited prejudice to the respondent and builder from the admission of these documents is mitigated by the hearing being adjourned until Wednesday, April 15, 2026, giving an opportunity to review and respond to them, if necessary, when the hearing resumes;

c. Neither the respondent nor the builder was aware of the existence of the Winter 2026 Temperature Testing document or that the appellant would be relying on it. Its late filing presents significant prejudice to the respondent and builder. However, the prejudice will be mitigated by standing down the matter until Wednesday, April 15, 2026. The brief adjournment will provide time for the responding parties to review and respond to the document when the hearing resumes; and

d. The responding parties will have the opportunity to argue the weight to be assigned these documents during their closing statements.

20The admissibility of the emails containing the 10 photos and 6 video files will not be determined on a preliminary basis. Rather, their admissibility will be determined, if necessary, on a case-by-case basis during the hearing based on their relevance to the issues in dispute.

21The hearing was stood down at 11:45 a.m. on April 13, 2026 and will resume at 9:30 a.m. on Wednesday, April 15, 2026.

ISSUES

22The issues to be determined are:

a. Whether the defect set out in claim item 9 of the Year-end statutory claim form constitutes a breach of warranty;

b. If so, whether damages resulted from the breach of warranty; and

c. If so, the amount of the damages.

RESULT

23The appellant has not established that the defect reported in claim item 9 constitutes a breach of warranty. The claim is denied.

ANALYSIS

The warranty claim

24The appellant filed his Year-end claim with the respondent on July 12, 2021. Claim item 9 of the Year-end form is described by the appellant as, “MBR [master bedroom] bathroom and walk-in closet are all cold during the winter times.” The appellant adds, in the description, why he believes the rooms are cold; “no plywood behind the walk-in closet wall on the garage side; garage attic is not insulated properly.”

25The administrative requirements of year-end claims are set out in s. 4.3 of O. Reg. 892 (the “Regulation”) under the Act. Section 4.3(6) of the Regulation stipulates that after a Year-end claim form has been filed with the respondent, the builder or vendor of a new home has 120 days to address, repair or correct the reported defect. If the vendor/builder fails to address the defect to the satisfaction of the homeowner in those 120 days, the homeowner can request conciliation by contacting the respondent. If conciliation is sought, the builder/vendor has an additional 30 days to rectify the reported defect.

26Documents filed by the respondent reveal that the respondent arranged for ProTrades Mechanical Inc. to investigate the cold walk-in closet and washroom issue in the appellant’s home. ProTrades’ report of March 7, 2022 stated that the heating system was functioning properly but there was potentially an issue with poor insulation around the walk-in closet. The appellant testified that the walk-in closet and a significant portion of the adjacent MBR bathroom were constructed above the garage ceiling within what would otherwise be the “attic space” above the garage ceiling.

27The respondent investigated the issue on March 7, 2022 and issued a conciliation assessment report (“CAR”) on May 27, 2022. The respondent’s investigation reveals that, during a day when the outside temperature registered 0°C and the thermostat in the MBR was set at 21.0°C, the interior temperature in the closet measured 16.5°C and the temperature in the MBR was 21.6°C, i.e., a 5.1° differential between the walk-in closet and the MBR.

28The CAR of May 27, 2022 referenced the ProTrades report of March 7, 2022, in which the heating system had been run for 30 minutes at maximal output after which the closet temperature reached 71.5°F (21.9° C). The respondent determined that claim item 9 was “warranted”, in other words it was a breach of warranty, because under section (1)(a) of article 9.33.3.1 of the Ontario Building Code (“OBC”) (Indoor Design Temperatures), at outside design temperature, required heating facilities must be capable of maintaining an indoor temperature of 22°C in all living spaces. The walk-in closet is considered a “living space”.

29The respondent’s documents reveal that the builder installed a heating vent/register to the walk-in closet on or about January 20, 2023.

30The respondent conducted a conciliation re-inspection on February 20, 2024 and reported its results in a CAR dated March 13, 2024. The respondent declared that claim item 9 was now “not warranted”. It noted that a new supply register had been added to the closet and that “every room reaches 22°C”. Specifically, it noted the surface temperatures in the closet ranged from 23.5°C at the ceiling to 13.9°C at the floor; these readings taken when the outside temperature measured 0°C and the MBR thermostat set at 21°C. The respondent concluded that “the closet air temperature meets OBC requirements therefore the claim was determined to not be a breach of warranty.

Further investigations into the potential insulation issues with the walk-in closet

31On February 26, 2025, the respondent notified the appellant that it was going to pursue a further investigation of the insulation surrounding the walk-in closet. At the request of the respondent, Murray Contracting Ltd. (“Murray”) undertook destructive testing of the garage ceiling and wall of the walk-in closet (into the attic space above the garage ceiling) to ascertain the nature and capability of the insulation system around the walk-in closet (walls, floor ceiling). Murray reported the results of its investigation to the respondent on March 19, 2025 advising that there was no vapour barrier between the garage ceiling and the MBR washroom and walk-in closet above. It reported the lack of a vapour barrier in the garage ceiling was an OBC violation. Article 9.25.4.3 of the OBC requires that a vapour barrier be installed on the warm side of walls, ceilings and floor assemblies.

32Murray set out a scope of work to address the vapour barrier issue. The respondent endorsed the proposed scope of work and added that a cold air return to the furnace system should be provided to the walk-in closet. The proposed work included removing sections of the garage ceiling, applying 6” of spray foam insulation above the garage ceiling (which would insulate as well as provide a vapour barrier), topping up blown-in insulation above the garage ceiling and around the walls of the walk-in closet to an R-60 level, and refinishing the garage ceiling with drywall and matching paint.

33The builder appears to have accomplished the work, advising the appellant on September 24, 2025 that it had completed the Murray scope of work in its entirety. The appellant acknowledged the completion of the Murray scope of work (to address the vapour barrier non-compliance) in an email to the respondent on October 26, 2025.

Claim item 9 is not a breach of warranty

34I find that the appellant has not met his burden in establishing that the temperature imbalance between his walk-in closet/MBR washroom and the MBR constitutes a breach of warranty.

35Under s. 13(1) of the Act, every vendor or builder of a new home warrants to the owner that it is constructed in a workmanlike manner and is free from defects in material, is fit for habitation, and constructed in accordance with the OBC. The builder also warrants to the owner such other warranties as are prescribed by the regulations.

36Section 14 of the Act sets out the basis for compensation for a homeowner when there is a breach of warranty under s. 13. Section 14(3) stipulates that, subject to the regulations, a homeowner is entitled to receive payment out of a guarantee fund administered by the respondent (the “Fund”) for damages resulting from a breach of warranty. The respondent essentially serves as backstop to the builder/vendor warranty in cases where a builder or vendor fails to address a defect or deficiency in a home as defined in s. 13 of the Act, subject to the applicable regulations.

37The appellant has the onus of establishing that the deficiency reported in claim item 9 constitutes a breach of warranty.

38The appellant submits that the walk-in closet and MBR washroom are persistently colder than the temperature that is achieved in the MBR at the desired thermostat setting and that this differential or imbalance is unacceptable in a new home. He acknowledges that the spray foam insulation, additional blown-in insulation in the garage attic, and supplementary supply and return vents into the walk-in closet have improved the situation from what it was when he first reported it, but the temperature differential (during the heating season) remains unacceptable.

39The appellant acknowledges that adding supplementary heat appliances/radiant heaters to the walk-in closet and/or the garage area, that were recommended by the builder, might alleviate the issue, but these remedies would also result in higher energy costs. He does not accept that he must incur higher equipment and energy costs because of what he considers to be a flaw in the design of the heating and insulation system in his home. The appellant seeks further steps from the builder and/or the respondent to correct the imbalance of heating results in this area of his home.

40The respondent submits that it, and the builder, have undertaken steps to address the uneven temperature situation in the MBR area that are well beyond what would typically be required in circumstances like this. The respondent recognizes that the walk-in closet and bathroom are cooler than the MBR under normal operating conditions but submits that it is the appellant’s burden to demonstrate this imbalance is a warrantable defect. It submits, he has not established this is a breach of warranty and it seeks an order from the Tribunal confirming the denial of claim item 9.

41The builder submits that temperature variance in the subject area is not a construction defect but rather, a subjective dissatisfaction with the comfort in his home. It submits that the appellant has not established any breach of warranty and therefore the denial of the appellant’s claim should be confirmed.

42I find that the appellant has not established that the temperature imbalance in the MBR area constitutes a warrantable defect under s. 13(1) of the Act. He has not demonstrated any deficiency of workmanship, defect in materials, or non-compliance with the OBC that persuade me that claim item 9 is a breach of warranty.

43The appellant produced evidence of the temperature differential between the MBR and walk-in closet, recorded during January and February of 2026, i.e., during the last cold-weather season.

44The appellant referred me to photos he had on taken of the thermostat inside the MBR alongside the temperature readings of an electronic, La Crosse Technology, temperature gauge. The reading for the “outside” temperature displayed on the device was taken from a temperature sensor (usually used for the “outside” temperature) that was situated on a table inside the walk-in closet. The appellant testified that he was attempting to demonstrate the difference between temperature the heating system was achieving in the MBR vs. the walk-in closet, at different, though normal interior thermostat settings, on different days and times during January and February 2026. The appellant’s temperature data from the photos is as follows:

Date (2026)

Time

Thermostat Set in MBR at:

Thermostat “actual” temperature reads:

La Crosse Closet Sensor reads:

La Crosse Master Bedroom temperature gauge reads:

Outside Temp. °C, Env. Canada

January 19

11:21 a.m.

23.0°

22.5°

18.3°

22.6°

-8.4°

January 20

10:57 p.m.

20.0°

23.0°

18.4°

23.7°

-13.0°

February 2

8:37 a.m.

20.0°

21.0°

16.5°

21.3°

-12.2°

February 17

11:00 a.m.

23.0°

22.5°

17.9°

21.7°

4.6°

February 20

10:56 a.m.

23.0°

23.0°

18.5°

22.1°

-1.2°

45Although the appellant did not report the outside temperature at the time of these readings, I take notice of the Environment Canada temperature data for Windsor on these dates and times that is published at climate.weather.gc.ca and have added it to the chart above for reference.

46The appellant’s temperature measures reveal that, across the five days during January and February 2026, the average difference in temperature between the two areas was 4.36°C.

Date

Difference between MBR and walk-in closet °C

January 19, 2026

4.3°

January 20, 2026

5.3°

February 2, 2026

4.8°

February 17, 2026

3.8°

February 20, 2026

3.6°

Average

4.36°

47These temperature differences were recorded after the vapour barrier, extra insulation, and additional supply/return vents work was accomplished in the garage attic space in 2023 and 2025 and they offer a point of reference to the temperature variance that was recorded at the time claim item 9 was first determined to be a warrantable defect in March 2022.

48The respondent’s investigation of the imbalance, reflected in the CAR report of March 7, 2022 reveals that, with an outside temperature of 0°C and the MBR thermostat set at 21.0°, the variance in temperature between the MBR and walk-on closet was recorded at 5.1°C (21.6° less 16.5°). I am persuaded by the appellant’s temperature readings from earlier this year, that the temperature imbalance has improved considerably. On comparative days, when the outside temperature was around 0°C, the performance of the heating and insulation system around the walk-in closet improved from an imbalance of 5.1°C on March 7, 2022 to 3.6° on February 20, 2026.

49Neither party presented evidence of how the heating system now performs using the same test that ProTrades used on March 7, 2022, when the respondent determined the heating system for the walk-in closet failed to meet the OBC standard of 22° and declared claim item 9 to be a warranted defect.

50There is no evidence before me that replicates the ProTrades test of March 7, 2022 (heat at maximal for 30 minutes to see if the walk-in closet can be sustained at 22°C). The ProTrades test showed that the system could sustain the walk-in closet at only 21.9°, 0.1° below the required 22°. Considering the new vapour barrier, insulation and supply and return vents that have been accomplished since March 2022, and the appellant’s evidence reveals an improvement in the imbalance between the two areas (from 5.1° to 3.6°), I find that the improved heating and insulation system is likely able to crest the 0.1° deficit and meet the 22°C OBC standard in the walk-in closet.

51Anthony Keirouz, the warranty services representative of the respondent, who managed the appellant’s warranty claim after the March 13, 2024 CAR, referred to the manufacturer’s side-by-side Accuracy Test of the La Crosse Technology temperature measuring device, which states that the device has an accuracy tolerance of +/- 2°C.

52I accept that the La Crosse Technology device publishes an accuracy tolerance of +/- 2° and I find that, in the absence of any evidence to the contrary, they demonstrate, across 5 recent days during the cold season, that the imbalance in the two areas has improved on account of the additional works undertaken. Accordingly, I am persuaded that the walk-in closet area is more likely than not in compliance with the OBC.

53Although the appellant’s recent temperature imbalance evidence is persuasive of the apparent improvement to the insulation performance and heating results of the walk-in closet, that is likely sufficient for it to be OBC compliant, the appellant has not presented evidence to persuade me that claim item 9 constitutes a breach of warranty, which is his burden in this case.

Conclusions

54I find on a balance of probabilities that the performance of the insulation and heating system in and around the walk-in closet and MBR washroom has been sufficiently improved, by the works undertaken in 2023 and 2025 (vapour barrier, extra insulation in the garage attic and additional supply and return vents in the walk-in closet), meets the OBC requirement of 22°C for indoor design temperatures.

55I find the appellant as not met his onus to establish that claim item 9 is a breach of the builder’s Year-end warranty.

ORDER

56I direct the respondent to deny claim item 9 of the appellant’s Year-end claim.

Released: April 29, 2026

__________________________

Bruce Stanton

Adjudicator