Licence Appeal Tribunal File Number: 17287/ONHWPA

In the matter of an appeal from a Decision of Tarion Warranty Corporation to Deny a Claim under the Ontario New Home Warranties Plan Act, R.S.O. 1990, c.O.31 (the “Act”)

Between:

Liu Cheng and Hong Bo Liu

Appellants

and

Tarion Warranty Corporation

Respondent

DECISION

ADJUDICATOR:

Michael Beauchesne

APPEARANCES:

For the Appellants:

Liu Cheng, Self-Represented Hong Bo Liu, Self-Represented

For the Respondent:

Cheryl Burtch, Warranty Services Representative Amanda Cutinha, Counsel

Court Reporter:

Chelsea Griffiths

HEARD by videoconference: February 2-3, 2026

OVERVIEW

1Liu Cheng and Hong Bo Liu (together, the “appellants”) appeal a decision letter issued by the Tarion Warranty Corporation (the “respondent”) and dated on June 6, 2025 under section 14(3) of the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31 (the “Act”).

ISSUES IN DISPUTE

2The issues to be determined in this case are:

(a) Whether claim items 45, 54, and 58 as listed on the 30-day statutory warranty form constitute a breach of warranty; and

(b) If so, whether the appellants suffered monetary damages resulting from the breaches of warranty and the amount of these damages?

RESULT

3The appellants are not entitled to compensation from the guarantee fund for any of the disputed claim items. I direct the respondent to not pay any amount from the guarantee fund in respect of the claims of this appeal. The appeal is dismissed.

PROCEDURAL MATTERS

The appellants consent to proceed without an interpreter

4At the outset of the hearing, I canvassed the appellants about the status of an accommodation request they had made on November 22, 2025 for an interpreted hearing. An accommodation order released by the Tribunal on December 2, 2025, referenced Rule 4.2 of the Licence Appeal Tribunal Rules, 2023 (the “Rules”) to clarify that the appellants bear the expense of interpretation.

5As such, I enquired as to whether they had asked the Tribunal to approve an interpreter of their own choosing, or had asked the Tribunal to arrange for an interpreter. The appellants confirmed that they did not ask or arrange for an interpreter and were comfortable proceeding in the English language. I therefore directed the parties to proceed accordingly.

The appellants seek to rely on an affidavit they initially sought to exclude

6I consented to admitting the affidavit of Ms. April Abreau (warranty services manager for Tarion) as evidence at the hearing.

7The appellants filed a motion, dated January 13, 2026, to exclude Ms. Abreau’s sworn testimony from the hearing because it was late filed. At the outset of the hearing, the respondent indicated it would consent to the appellants’ motion because it did not intend to rely on the affidavit or call Ms. Abreau to testify. However, the appellants then sought to have the evidence included as an exhibit because it “provided a different perspective on the claim items in dispute.” The respondent explained that the affidavit essentially repeated information that was already in its document brief and therefore would add little insight to the proceedings. The respondent also submitted that Ms. Abreau was not involved with claim items on the 30-day statutory warranty form.

8Rule 9.3 of the 2023 Licence Appeal Tribunal Rules (the “Rules”) establishes that—without the permission of the Tribunal—a party may not rely on a document or thing that does not comply with the Rules, directions, or orders of the Tribunal.

9When I considered the factors at Rule 9.3, I consented to admitting the affidavit to the hearing. While I accept this evidence may be repetitious based on the respondent’s submissions, I also agree with the appellants that it might help the Tribunal reach a full understanding of the issues in dispute. I place weight on the latter consideration. Further, the appellants understood that Ms. Abreau was not scheduled to appear as a witness to be cross-examined on her sworn testimony and did not object to this.

ANALYSIS

The applicability of price indexing the appellants’ damages

10I am persuaded that price indexing the appellants’ damages is an acceptable methodology that can be applied to their claim items.

11During the hearing, Mr. Cheng referenced building construction price indexes fixed by Statistics Canada as of November 30, 2025. He produced the index in evidence and fashioned a table for claim item 58 to show the math behind his application of index values. Mr. Cheng’s intent in doing so, as I understand it, was to accommodate for any increases in damages owing to economic factors since estimates and quotes were obtained.

12The respondent did not object to applying cost indexing to quotes and estimates that were earlier obtained by the appellants to support their claim for damages.

13I accept this methodology. I am satisfied the index used by the appellants is from a credible government source and reflects indexing specific to the community where the appellants live. As such, I considered the index as applied by the appellants during the hearing.

Delayed closing costs pertaining to the appeal

14I find the appellants have not shown that delayed closing costs should apply to this appeal.

15In his closing submissions, Mr. Cheng argued that section 14(3) of the Act does not limit damages to the cost of replacement or repair, and reasoned that this should be interpreted to mean the appellants can more broadly pursue damages for losing use of their kitchen, time invested in appeal preparation, stress and frustration caused by interactions with both the builder and the respondent, and other such grievances related to their appeal from the time of possession to the hearing’s conclusion. He proposed that 10 per cent of the $150.00 daily living expense fee payable for delayed occupancy compensation per paragraph 7(a) of the Addendum to the APS (the “Addendum”) serve as proxy to calculate the compensation quantum.

16The respondent submitted in closings that damages are limited to rectifying the breach and that secondary damages are precluded. The respondent relies on section 6(6) of Regulation 892 under the Act to support its position.

17While this issue was not identified by the parties as a dispute at the case conference, nor at any time up to the hearing, I have nevertheless considered it because both parties made their respective arguments and the respondent did not object to the appellants raising it at this late stage of the proceeding.

18When I consider the appellants’ argument in the context of section 6(6) of the Regulation, I am satisfied they have not shown they are entitled to the broader damages they seek. Section 6(6) provides the following: “Liability under subsection (3) or (4) is limited to damage to the home only [emphasis added] and liability under subsection (5) is limited to damage to the common elements only and there is no liability for any other damage, direct or indirect [emphasis added].” While I accept the appellants are arguing that “loss of use” constitutes direct and not secondary damage, I find this matters little because this aspect of the Regulation, per the emphasized selections, expressly limits damage to the home itself and restricts any other damage, including damage that is direct in nature.

19I note for reference that subsection (4) deals with warranty claims for residential condominium units under section 14 of the Act, which is the case for this appeal.

20Given that section 6(6) of the Regulation applies to this appeal and offers no avenue to pursue the types of “additional and direct” damages the appellants seek, I am persuaded this aspect of the appellants’ claim fails. I therefore find it unnecessary to address the suitability of delayed occupancy compensation as a proxy for quantum.

Substantive issues

21Section 13(1) of the Act states that every vendor of a home warrants to the owner, 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, 1992 (“OBC”). Section 13(1) goes on to add that the home is warranted to be free of major structural defects as defined by the Regulations; and such other warranties as are prescribed by the Regulations.

22Section 14(19) of the Act specifies that the powers of the Tribunal are limited to ordering the respondent to take action in accordance with the Act and its Regulations.

Claim item 45: The window screen in bedrooms doesn't fit the window frame. The excess sharp edges can be a hazard to people living inside.

23I find the appellants have not demonstrated this claim item is a residential unit element, nor that they are entitled to appeal common elements.

24The appellants submit that the screens for their bedroom windows are not properly fitted. I take this to mean the screens are not recessed within the window frame and that the exposed surround has sharp edges that pose a safety hazard. The appellants reason that the screens are therefore defective when articles 3.4 and 9.8 of the Construction Performance Guidelines (the “CPG”) are jointly applied. They also say this safety hazard makes the condo unit unfit for habitation because they are constantly worried about accidental contact and safety risks for their future children.

25The respondent submits this claim item relates to the condominium common elements, and that since the condominium corporation is the owner of the common elements for the purposes of statutory warranty coverage, the respondent can only assess it if reported by the condominium corporation.

26In response, the appellants maintain that the window screens are not a common element, and that even if they were, the respondent still has a duty to assess this claim item because the Act does not preclude conciliation for this reason. To prove this claim item is a residential unit element, the appellants rely on the “Declaration” made and executed pursuant to the Condominium Act, 1998, S.O. 1998 c.19 (the “Condo Act”)—specifically “Schedule C” and “Section 5” of Part One. Further to the Declaration, the appellants maintain that common elements had only been “proposed” at the time of the 30-day inspection, and that they should not be subject to the Declaration’s terms and conditions because they did not receive a copy of it at the time they were assigned the APS by the original purchasers of the home.

27I find the appellants have not shown me that they are entitled to appeal common elements to the Tribunal under the Act. This greatly hinders their case because they relied heavily on this position to support this claim item. While Ms. Burtch testified during cross-examination that she did not know if the Act required common elements to be reported for statutory warranty coverage by the condominium corporation—and relied only on the Declaration and an “internal review” to inform her decision—I find this weighs little on my analysis because the onus is on the appellants to show that the Act entitles them to appeal common elements.

28The extent of Mr. Cheng’s testimony is to assert the respondent has a duty to assess this claim item because it does not say anywhere in the Act that common elements are not subject to conciliation; that the Act does not say common areas are excluded; and that according to the Act, it is never a practice that you have to get warranty for common elements separately. I find this evidence is insufficient to meet the appellants’ onus because Mr. Cheng does not specify what section of the Act he relies on to show that common elements may be appealed by the residential unit homeowner as opposed to the condominium corporation.

29In contrast, the respondent points to sections 14(3) and 15(a) of the Act, and I agree they read harmoniously to diminish the appellant’s position. Section 14(3) of the Act says an owner of a home is entitled to receive payment out of the guarantee fund for damages resulting from a breach of warranty if the person has a cause of action against the builder for damages resulting from the breach of warranty. Section 15(a) of the Act says that for the purposes section 14, a condominium corporation shall be deemed to be the owner of the common elements in the corporation. I therefore agree that the owner of common elements is, in fact, the condominium corporation and not the appellants. It follows then, that the appellants have no avenue to appeal a common element—it must be the condominium corporation, which I find is not a party to this dispute.

30Turning then to whether the windows screens are, in fact, a residential unit element, I considered the arguments raised by the appellants. The first as I understand it, is that the Declaration does not apply to this claim item because the appellants took possession of their condo unit and submitted their 30-day statutory warranty form before the Declaration became binding on June 30, 2022. The second is that their appeal should not be bound by the terms and conditions of the Declaration because the appellants did not receive a copy at the time the APS was assigned to them by the original owners. The third argument is that Schedule C and section 5 qualify the window screens as residential unit elements.

The applicability of the Declaration

31While I agree the land registry office of the appellant’s municipality received the Declaration on June 30, 2022, I find it was earlier executed on May 11, 2022, which is prior to the appellants’ possession of their condo unit on May 20, 2022 and the same day they submitted their 30-day statutory warranty form. During cross-examination, Mr. Carson was asked when the Declaration “has force.” Mr. Carson testified that representatives of the builder act as the condominium corporation for the purposes of the Declaration until the condominium registers with the municipality. This is at odds with the appellants’ position that up until and including June 30, 2022, the Declaration is only “proposed” and therefore not binding as unit owners “have to report common elements until the condo board is able to do it.” Given this discrepancy and the appellants’ failure to show, with evidence, that the Declaration is legally required to be registered with the municipality before it can bind the respective parties to its terms and conditions, I am persuaded that the Declaration (i.e., Schedule C and Section 5) as executed in May 2022 should apply to this claim item. As such, I disagree with the appellants’ position that common items were “not in place” at the time they completed their 30-day statutory warranty form.

No Declaration provided at time of APS assignment

32Similarly, I did not afford much weight to the appellants’ argument that this claim item should not be subject to the Declaration because the appellants were not provided a copy at the time the condo APS was assigned to them. The parties agree the appellants’ condo unit was an assignment sale, which I understand to mean the APS was assigned to the appellants by the original owners prior to the possession date. Mr. Carson testified during cross-examination that it was not the builder’s responsibility to provide the appellants with the Declaration upon assignment, and that the builder had provided a copy to the original purchasers. While I have no reason to doubt that the appellants did not receive a copy of the Declaration from the previous owners or the builder at the time they were assigned the APS, I find they have not shown me this should mean this claim item is exempt from the terms and conditions of the Declaration.

Are window screens a common element or do they belong to the residential unit?

33I am satisfied that Section 5 does not establish window screens as a residential unit element. Mr. Cheng testified that window screens are contemplated in Section 5 as a residential unit item and specifically as an “apparatus” because the screen faces inside and only serves the appellants’ unit. I disagree. Ms. Burtch testified that the items listed at section 5 relate to distribution systems as opposed to window components and offered the heating, ventilation and air conditioning system (“HVAC”) as an example. I find Ms. Burtch’s explanation is persuasive given the context of section 5, which specifies “pipes, wires, cables, conduits, ducts, and mechanical or similar apparatus that supply and service that particular Residential Unit.” In my view, window components like screens are not “similar apparatus” to those listed at section 5.

34When I consider the appellants’ evidence pertaining to Schedule C, I find it too falls short of meeting their onus. Paragraph 3 of Schedule C reads as follows:

“In the vicinity of windows and exterior doors, the unit boundaries shall be the unfinished unit side surfaces of doors and door frames, windows and window frames and the unit side surfaces of all glass panels located therein, the said windows and exterior doors being in a closed position.“

Despite this explanation—which, in my view, qualifies the appellants’ bedroom window screens as residential unit elements—I am persuaded by the respondent’s reference to Section 5(b)(ii) of the Declaration, which establishes that “notwithstanding the boundaries set out in Schedule C,” each residential unit shall exclude: “[a]ll exterior doors and door frames, exterior windows and window frames …”. While windows screens are not explicitly mentioned in either Section 5 or Schedule C, I accept they constitute part of the window frame or larger window system excluded by Part 5. Ms. Burtch testified that the screen is considered part of the window frame, and Mr. Carson’s testimony corroborates this by indicating the bedroom window fixtures are supplied as a “whole system” by the original equipment manufacturer (the “OEM”). Further, the appellants did not produce objective evidence, such as the OEM’s specifications for example, to persuade me that screens are not, in fact, a separate item from the bedroom windows supplied for their condo unit. While the Act does not require the appellants to produce OEM specifications to prove their claim, it remains they did not and therefore failed to persuade me I should afford less weight to evidence at odds with their position.

35Given my finding that this claim item is not a residential unit element, I find it is improperly before the Tribunal because section 15 of the Act provides that the owner of common elements is the condominium corporation and not the appellants. The condominium corporation is not a party to this dispute. Accordingly, I find it unnecessary to determine if a breach of warranty and resulting damages have occurred.

36When I take all this evidence together on a balance of probabilities, I find the appellants are not entitled to appeal this item to the Tribunal because they are not the owners of the common element that forms the basis for this dispute.

Claim item 54: Builder didn't install stacked washer and dryer according to the agreement.

37I find the appellants have not demonstrated that the builder substituted their washer and dryer without their consent.

38The appellants submit the builder did not provide a stacked washer and dryer as promised in the APS. Rather, they submit they received a “laundry centre” substitution that they did not agree to, and which is separate and distinct from standalone front-loading laundry appliances that are stackable. Put differently, the appellants feel they should have received two separate machines that could be placed one on top of the other should they wish. The appellants say they did not consent to the builder substituting a laundry centre and rely on the Consumer Protection Act, 2002, S.O. 2002, Chapter 30 Schedule A (the “CPA”) to show that ambiguity in the APS should be resolved in their favour.

39The respondent submits, per its June 2025 decision letter, that this item does not fall within the scope of the statutory warranty because appliances are considered chattels and are therefore excluded as they do not form a constructed portion of the home and are not inclusive to the construction methods and construction materials used.

40In response, the appellants submit that the respondent’s decision is not supported by its investigation, which they say was an APS review to determine whether a breach of warranty exists because an unauthorized substitution of a “specified” or “selected” item occurred per the conciliation assessment report dated February 16, 2023.

41I find the respondent cannot rely on the rationale it offers for denying this claim item in its decision letter because it is inconsistent with its conciliation decision. At the time of its February 2023 conciliation assessment—and thereafter up to the point of issuing the decision letter more than two years later—I am satisfied that the respondent did not raise or even suggest it was contemplating the issue of whether this claim item fell outside the scope of warranty provided in the Act.

42During cross-examination, Ms. Burtch explained that she relied on internal policy and consultations to inform her decision letter finding that appliances are chattel that fall outside the scope of warranty coverage provided by the Act. This is an unpersuasive explanation that fails to mitigate what strikes me as an arbitrary decision. There is a lack of corroborating documentation in evidence. For example, Ms. Burtch did not point to a desk assessment that supported her decision or communicated details of the internal policy or even the relevant aspects of the internal consultations she alleges to have engaged. Accordingly, I place little weight on Ms. Burtch’s testimony and do not further consider whether this claim item is outside the scope of the statutory warranty under the Act. Rather, I accept the appellants are entitled to appeal this claim item to the Tribunal on the basis of the decision made by the respondent at the time of conciliation per section 14(14) of the Act.

43Turning then to the respondent’s decision as communicated at the time of the conciliation assessment, I agree with the appellants’ position that the respondent failed to revise its assessment as promised. The conciliation assessment report determines the claim item was not warranted because there was insufficient evidence to conclude a breach of “substitution warranty” had occurred on a “specified” or “selected” item. The report noted that the appellants had “14 days from the date of the assessment to provide the [APS] and that it would revise its assessment once received.”

44I am satisfied the appellants provided the APS for review as requested. The APS was attached to an email sent to the respondent by the appellants on February 17, 2023 (i.e., the day after the conciliation report was completed). Ms. Burtch’s testimony confirmed that she reviewed the APS. She also testified that she determined the stacked washer and dryer provided by the builder complied with the APS, and further, that the appliance was installed and functional with no safety violations. However, I find the weight of her testimony is diminished by the lack of an update report (i.e., a desk assessment) to the appellants that communicates this re-assessment rationale as the outcome of her APS review. In fact, during cross-examination, the appellants established that Ms. Burtch did not address this claim item in her desk assessment of February 23, 2023. For what it’s worth, I would also add here that I fail to understand how Ms. Burtch could testify she found the appliances were functional in the context of her APS review, considering that the February conciliation report makes no mention whatsoever that the washer and dryer were physically inspected.

45But despite what I find are considerable shortcomings in the respondent’s evidence, it remains the appellants’ onus to show that a breach of substitution warranty occurred. I find the appellants have fallen short of this onus.

46For starters, the appellants did not point to aspects of the Act that pertain to substitution warranty, or show that their consent was required to make a substitution to the washer and dryer as indicated in the APS. I find their reliance on the respondent’s “Warranty coverage for your new condo” booklet to be insufficient evidence that an “unauthorized” substitution occurred, as this document does not specify what an unauthorized substitution is, its legal context, or even how it is assessed for that matter. This lack of coherent legal context hinders their case.

47The appellants instead rely on section 11 of the CPA to show that the ambiguity they perceive as to whether they received what the APS promised them should be resolved in their favour. I am persuaded that this argument fails. I disagree a discrepancy exists between what the APS indicates for a washer and dryer, and what the appellants were provided by the builder. When I consider the evidence holistically, I discern no ambiguity.

48I find that Schedule A of the APS features a “[s]tacked washer and dryer.” While I accept that Mr. Cheng established, as fact, that he received a “laundry centre” from the builder, I disagree this is inconsistent with what the APS says. During cross-examination of his testimony, Mr. Cheng agreed that a “laundry centre” is described as “stacked” in the document (i.e. “Opt for Standalone Stackable Units or a Laundry Centre”) he filed as evidence to support his case. I note here too, that the type of standalone washer and dryer the appellants feel the APS promises them are described as “stackable” in that same document. I make a distinction here between the terms “stacked” and “stackable” that live at the crux of this dispute. The laundry centre is designed to be installed and operated only as a stacked unit, which I find is apparent from the screen shots of product descriptions filed by the appellants. In contrast, the standalone units are designed to be stackable, meaning the owner may choose to put one on top of the other or alternatively operate them side-by-side. This too is made out in the evidence produced by the appellants.

49I reiterate here that the APS does not indicate “stackable” washers and dryers as features. It specifies “stacked.” While Mr. Carson agreed during cross-examination that a stacked washer and dryer does not have to be one unit (i.e., a laundry centre), the fact the appellants’ washer and dryer is one unit is does not mean it fails to comply with the APS, nor that the APS is ambiguous. This is because the bulk of the evidence establishes a clear difference between laundry appliances that are designed to be installed and operated as stacked and those that are stackable. As such, I am satisfied that the laundry centre is consistent with the APS description.

50Even if I did agree the appellants had established ambiguity in the APS as it pertains to their laundry appliances, I would not apply the provisions of the CPA relied upon by the appellants. At the hearing, Mr. Cheng indicated that I should interpret Schedule A of the APS in the appellants’ favour because this is what the CPA requires. However, Mr. Cheng did not establish a nexus between the CPA and the Act for me to consider. While the well-accepted modern approach to statutory interpretation encourages me to read sections of the Act harmoniously, I am not persuaded that this extends to inter-statute analysis. In my view, there must be some explicit trigger in legislation that connects it with a different statute to apply them collectively. For example, section 2(f) of the CPA says it does not apply in respect of consumer transactions for the purchase, sale or lease of real property. Further, the CPA establishes its own appeal process for disputes [see, for example: section 109(5) and section 111(3)]. These aspects of the CPA persuade me that it would likely be an error in law to apply CPA provisions to any aspect of this appeal under the Act, let alone this specific claim item.

51When I take all this evidence together on a balance of probabilities, I find that the appellants have not shown a substitution warranty breach. The builder provided a stacked washer and dryer that are consistent with Schedule A of the APS. As such, I find it unnecessary to consider damages.

Claim item 58: Missing countertop according to the floorplan. (Close to the window).

52I find the appellants have not demonstrated this claim item is a breach of warranty.

53The appellants submit that while the drawings of their condo unit show a countertop extending to the kitchen window, the builder installed a counter that stops at the refrigerator, resulting in a 15-inch span of empty space to the window. The appellants maintain that the omission of the countertop in this space is a warranty breach because the builder did not provide the requisite notice and because there is no evidence this change of plan was required to comply with building site conditions, or municipal, structural and architectural requirements. The appellants also say the exclusion of the countertop and corresponding cabinetry fails to comply with section 1.2.1.1 of the OBC because the kitchen system cannot perform its intended storage function with missing cabinetry and countertop space. They further assert that the APS should prevail and be considered to the exclusion of the kitchen OEM’s layout provided by the builder. As well, the appellants point to sections 11 and 5(1) of the CPA to show, respectively, that (1) any ambiguity in the drawings should be resolved in their favour; and (2) that where a supplier is required to disclose information under the CPA, the disclosure must be clear, comprehensible and prominent. Their position is that the builder failed to comply with both CPA requirements.

54The respondent submits that the layout specifications used by the kitchen OEM are consistent with what was provided and installed, which is to say no sections were missing. In saying so, however, the respondent clarifies that the issue reported by the appellants at conciliation relates to a missing section of kitchen cabinetry. Mr. Cheng corroborated this in his closing submissions by reasoning that a freestanding counter in the vacant space would not make sense because all the areas with counters in the condo unit have cabinets both overhead and under-counter. Given the parties’ willingness and apparent state-of-readiness to dispute omitted cabinetry in addition to missing countertop as part of this clam item, I have proceeded with my analysis accordingly.

55I disagree with the appellants’ position that the APS should be considered and not the OEM’s kitchen layout specifications diagram (the “specs”). Rather, I find this claim item is best informed when both documents are reviewed together. And when I do this, I find they harmonize to yield insight that is at odds with the appellants’ position. The specs clearly indicate a stone countertop that extends only to the refrigerator. I note interruptions in the counter at each end of the stove surface as well as in the contested empty space between the refrigerator and window.

56I find this layout is consistent with the explanations offered for the APS drawing by both Ms. Burtch and Mr. Carson. Both witnesses testified that a refrigerator-to-window countertop is not contemplated in the “blackline” drawings or “rendering,” which I understand to mean the unit drawing at Schedule B of the APS that is relied upon by the appellants. Ms. Burtch pointed to the “median dash line” as “typically” denoting overhead cabinetry and thereby also informing the location of the countertop. I accept this testimony is consistent with the specs when taken in concert with Mr. Carson’s testimony about the blackline rendering. Mr. Carson explained that the box surround—which I find Mr. Cheng interpreted as countertop and cabinetry during his testimony—denotes the floor area designated as the kitchen, and that dashed lines within the box surround “show something is there,” which he qualified to mean a countertop, dishwasher, overhead cabinetry, etc. (i.e., it is not empty space). Mr. Carson put a finer point on this explanation in direct examination when he testified that a countertop with cabinets was not confirmed by the blackline rendering in the space between the refrigerator and the window. I agree there are no dashed lines within the area between the refrigerator and window despite that area being encompassed by the box surround. And when I consider this explanation in the context of the specs, I find it supports Mr. Carson’s testimony.

57Mr. Cheng argued in his closing submissions that the respondent’s decision letter never considered the specs. I disagree. The decision letter states: “The builder provided the [specs] for your unit. Tarion confirmed no section to be missing in accordance with the [specs].” In my view, this establishes the respondent was not only alive to the specs, but relied on them to inform its warranty decision. For that matter, Ms. Burtch’s testimony indicated the appellant produced a blackline rendering that was consistent with the one in the APS, which she considered during the conciliation inspection. So I am satisfied that both documents were reviewed by the respondent to inform its decision.

58I placed little weight on Mr. Cheng’s application of the CPA to this claim item for the same reasons I provided in my analysis of claim item 54.

59While I accept Ms. Liu’s testimony that the countertop is one of her biggest daily inconveniences, I find this does not mean the condo unit is unfit for habitation per section 13(1)(a)(ii) of the Act. In fact, Ms. Liu added that not having all the counter and storage capacity she anticipated “diminished her everyday enjoyment of the space,” which I take contextually to mean the kitchen area and not her enjoyment of the whole condo unit per se. While the “overall family impact” document provided by the appellants also conveys considerable stress, frustration and anxiety, I find the bulk of these grievances contextually arise from the claim process itself and what the appellants perceive as difficult interpersonal dealings with both the builder and the respondent. In my view, this has little-to-no bearing on whether their condo unit is fit for habitation.

60When I take all this evidence together on a balance of probabilities, I find that the appellants have not shown a breach of warranty for this claim item. As such, I find it unnecessary to consider damages. I also have not further considered the appellants’ arguments on whether the builder met the “certain conditions” included in Schedule B of the APS to exclude the countertop and cabinetry between the refrigerator and window because I am satisfied these items were not indicated in the first place.

ORDER

61The appellants are not entitled to compensation from the guarantee fund for any of the disputed claim items. I direct the respondent to not pay any amount from the guarantee fund in respect of the claims of this appeal. The appeal is dismissed.