Licence Appeal Tribunal File Number: 17267/ONHWPA
In the matter of an appeal of a Decision Letter of Tarion Warranty Corporation under the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31 (the “Act”), to deny warranty claims
Between:
Mojdeh Azizi Rahimi and Amin Rahimi Appellants
and
Tarion Warranty Corporation Respondent
DECISION and ORDER
VICE-CHAIR: Geneviève Painchaud
APPEARANCES:
For the Appellants: Mojdeh Azizi Rahimi, Self-represented Amin Rahimi, Self-represented
For the Respondent: Juliana Tosello-Herakovic, Warranty Services Representative Noah Eklove, Counsel
Court Reporter: Elijah Demasson
Heard by Videoconference: April 8-9, 2026
BACKGROUND
1Mojdeh Azizi Rahimi and Amin Rahimi (the "appellants") appeal a Decision Letter dated May 23, 2025, issued by Tarion Warranty Corporation (the “respondent”) denying their claim for coverage under the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31 (the “Act”).
2The appellants signed an Agreement of Purchase and Sale (“APS”) to purchase a new 4,410 square-foot home from Carnaby Homes (the “Builder”) which was executed on January 21, 2021, with a completion date of May 30, 2022.
3On August 13, 2022, during their selection meeting, a Colour Selection form was completed by the Builder’s representative and signed by the appellants. It indicated their selections of many items such as colour of exterior, countertops, windows, doors, flooring, tile, cabinetry, etc.
4The appellants took possession of the home on June 23, 2023.
5The appellants’ Tarion 30-Day Statutory Warranty Claim Form (“30-Day Form”) dated August 3, 2023, listed 98 items. A Conciliation Assessment Report (“CAR”) dated August 23, 2024, addressed 18 of them. These 18 items are also outlined in the Decision Letter dated May 23, 2025 and are the ones the appellants referred to in their appeal.
6The parties participated in a case conference on September 3, 2025 and narrowed down the issues in dispute to items 1, 9, 23, 27, 46, 71, 83 and 84 of the Decision Letter. The adjudicator ordered dates for the exchange of documents and explained that it was the appellants’ onus to prove that they are entitled to compensation and the amount claimed, as per the case conference report and order released September 16, 2025. A further case conference was also ordered.
7The second case conference was held October 2, 2025. According to the case conference report and order released October 14, 2025, the appellants had missed the deadline to submit their documents, and therefore the parties were provided new deadlines. It was reiterated that it was the appellants’ onus to prove that they are entitled to compensation and the amount claimed.
8This matter proceeded to a two-day videoconference hearing. The appellants were their sole witnesses. I also heard the testimony of two witnesses for the respondent, Juliana Tosello-Herakovic, Warranty Services Representative at Tarion and Joe Catana, President of Carnaby Homes, the Builder.
ISSUES
9The issues in dispute are as follows:
- Was there a breach of warranty under the Act relating to the following items on the Decision Letter?
a. The kitchen countertops (item 1 in the Decision Letter) and the bathroom countertops (item 9)
b. A shower door (item 23)
c. A bathroom window (item 27)
d. The front door (item 46)
e. Main floor interior doors (item 71)
f. The exterior stucco (items 83 and 84)
- If so, what was the amount of the damages?
RESULT
10I find the appellants did not discharge their burden of proof to show that there was a breach of warranty regarding the issues in dispute. As a result, the appellants are not entitled to any warranty compensation under the Act.
EVIDENCE AND ANALYSIS
11The appellants have the onus in this matter.
12Subsection 13(1) of the Act requires the vendor of a home to warrant to the owner, among other things and subject to certain exclusions set out in subsection 13(2), that the home is constructed in a workmanlike manner, free from defects in material, is fit for habitation, and is constructed in accordance with the Ontario Building Code. These warranties apply for one year after the warranty takes effect.
13Subsection 14(3) establishes that, subject to the regulations and conditions set out in that subsection, an owner is entitled to receive payment out of the guarantee fund for damages resulting from a breach of warranty.
14The appellants did not submit any documentary evidence to support their claim nor written estimates of what it would cost to remedy the defects they allege and only offered testimony.
The Kitchen and Bathroom Countertops are not Warrantable (items 1 and 9)
15The appellants submit that the Builder made an unauthorized substitution. They expected the counters in their kitchen and bathrooms to be granite, and they received quartz instead.
16The respondent submits that this was an improper claim of warranty based on substitution as they received the product they selected, and even if it was proper, they received a product of equal or better value and therefore it is not warrantable.
17Section 18 of R.R.O. 1990, Regulation 892 (the “Regulation”) of the Act provides:
Every vendor of a new home warrants to the owner that the vendor shall make no substitutions in those items of construction or finishing for which the purchaser is entitled to make selection pursuant to the purchase agreement without the written consent of the purchaser.
18Section 19 of the Regulation provides:
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.
19The appellants point to Schedule D of the APS that indicates their home will have granite countertops throughout.
20They claim that when they went to make their colour selections with their son, the Builder’s representative only told them to choose colours from samples and did not mention that the colour they selected was not granite. They claim they expressed they wanted granite, that quartz was never mentioned and that there were no labels on the samples. They do not like quartz because it is harder to clean and claim the builder’s representative lied to them and changed what they asked.
21The appellants confirmed they initialized and signed the Colour Selection form in August 2022, but argue that they did not realize 5104 was a quartz colour. They say they would not have chosen 5104 if they realized it was quartz.
22The appellants admit that the countertops installed were the same colour they selected, 5104, that the design matches the aesthetics of the home, flooring and kitchen cabinets. Their position is that they wanted that colour, or something very close to this, but in granite. On the other hand, they also agree that if anything else but 5104 was installed by the Builder, it would have been wrong.
23Mr. Catana testified that he was involved in the APS and that the appellants asked for granite countertops as an upgrade at the time of signing the APS, which was why it was added in Schedule D. While he was not present at the colour selection meeting, he testified that countertop samples clearly indicate the material and are also organized by material type. Nevertheless, when he received the Colour Selection form, he approved the additional upgrade and did not charge the appellants for the upgrade from granite to quartz.
24In addition, Mr. Catana testified that the colour of product 5104 does not exist in granite as granite is very different based on the slab. There was no granite option that was even close in colour to 5104 as granite is not white.
25Ms. Tosello-Herakovic testified that she considers the countertops as an item referred to in the APS, as an inclusion, and not an item that is to be selected by the purchaser that is chosen after the APS and has a dollar value attached. In Ms. Tosello-Herakovic’s opinion, the countertops are not a warrantable deficiency under the Act, but if they were, they would therefore fall under Section 19 of the Regulation.
26The respondent’s evidence includes an invoice dated June 2023 for the countertops installed, with the item description as “Countertop (code 5104) as selected by the purchaser”, and then refers to granite countertops costing $55/sf and quartz countertops costing $60/sf. The respondent also refers to Tarion’s internal estimates that quartz is $46.05/sf vs $31.27/sf for granite. The appellants agree that quartz appears to be more expensive than granite and had no evidence to prove otherwise.
27Tarion’s CAR concluded it was not warrantable because:
a. The initial APS specifies granite countertops in the kitchens and washrooms. No specific amount is attributed to the cost of the granite, and no specific make/model of granite is provided.
b. The selection sheet dated August 2022 specify model “5014” countertops for the kitchen and washrooms and appears to be initialed by the owner.
c. The builder provided information supporting that countertops “5104” is a quartz material.
d. There does not seem to be a dispute that the owner selected “5104” and received “5104” – rather the owner states that they did not understand at the time that 5104 was a quartz material.
e. The owner ultimately received what was contracted for on August 2022, which is countertop material 5104.
f. In the alternative, there is no evidence that quartz material 5104 is of less quality than the unspecified granite countertop listed in the initial APS a year before 5104 was selected. The APS does not specify the cost or quality of the granite material. Quartz can be more expensive than granite and has certain quality advantages over granite including maintenance requirements. Therefore, even if the granite countertop were substituted with quartz, there is no evidence that the quartz is of a less quality than the unspecified granite referenced in the initial purchase agreement.
28Tarion’s Decision Letter dated May 23, 2025 confirmed the denial of the claim based on the same reasons stated in the CAR and added that the appellants agreed there was no defect in workmanship.
29While I do find that on a balance of probabilities, the appellants had an expectation that their counters would be granite and that 5104 was a granite colour, this alone does not make an item warrantable.
30I accept that the applicants signed the Colour Selection form that mentioned 5104 as the colour, but there is no documentary evidence, or evidence from other witnesses, to prove they were told this colour was not granite. The Builder’s representative that was present and filled out the Colour Selection form was not present at the hearing to confirm or deny any discussions about the countertops. On the other hand, miscommunication and expectations are not sufficient to make an item warrantable under the Act.
31I also agree with the respondent that the countertops are not an item considered to be selected by the appellants, as it formed part of the APS, and therefore s. 19 of the Regulation applies and the builder can substitute the item to be one of equal of better quality than the item referred to in the APS. The fact that the item was listed in the APS does not equate it being a selection by the appellants subject to s. 18. Even if it did fall under s. 18, there would be no breach as all evidence, including their signature, prove that the appellants chose 5104.
32As the appellants and the respondent acknowledged, if the Builder had installed any other countertops than 5104, it would have been a breach of their agreement under s.19 of the Regulation, and the item would have been warrantable. Therefore, it cannot logically be also warrantable if they installed 5104. The appellants did choose the 5104 sample and got what they selected. The parties all agree there were no defects. For these reasons, I find that the appellants choosing the wrong material is not a matter covered under the Act.
33While I do not find s. 19 applies, it still would not make the item warrantable as the appellants have not provided evidence to support that there was a breach due to quartz being of lesser value than granite, and on the other hand, they agree quartz is a more expensive product. Thereby they would not have met their onus.
34I conclude that based on a balance of probabilities and the evidence presented, the countertops are not a defect or a breach of warranty under the Act.
The Missing Shower Door in Bathroom 3 is not Warrantable (item 23)
35The appellants claim that there is a glass shower door missing in bathroom 3 and that they were told all showers would have glass doors. They add that the model home does have a glass door by the bathtub so they expected to be the same in their home and they were told all shower doors would be in glass. One of their neighbours had the same issue and the Builder changed it for them.
36I note that while this claim is described as a shower door, the appellants are referring to a piece of glass on the side of a bathtub that they claim is missing. The other 3 showers that have glass doors in the home are standalone shower stalls.
37Since there was no glass door by the bathtub, they needed to install a shower curtain.
38Tarion’s Decision Letter dated May 23, 2025, confirmed the denial of the claim based on the same reasons stated in the CAR being that it reviewed the APS, the Selections Sheet and the permit drawings, and could not locate throughout the documentation that a shower door should be installed where the bathtub is located.
39The respondent submits and the appellants agree that:
i. There is no mention of the shower door in the APS;
ii. There is no door on the bathtub/shower in question on the floor plans;
iii. This relates to a bathtub/shower as opposed to the standalone showers that have glass doors installed; and
iv. The Colour Selection form shows different descriptions for the standalone shower selections in other bathrooms compared to the bathtub/shower in the subject bathroom.
40Mr. Catana testified that the Builder does not install glass on bathtubs.
41The appellants have not led any documentary evidence to support their claim that a glass “door” on the side of the bathtub was part of the APS or any other agreement. While the appellants were not able to decipher if the Colour Selection form mentioned “3” shower doors, I find it did mention “3” and definitely not “4” shower doors and there are 3 standalone showers in the home.
42While there may possibly have been such a feature of a glass door on the bathtub/shower in the model home, I have no documentary evidence demonstrating there was such a door nor evidence that everything shown in the model home were inclusions in this home. Finally, what may have happened in another home is not relevant to this dispute.
43Based on the evidence provided and a balance of probabilities, I conclude the missing shower door is not a deficiency under the Act and is therefore not warrantable.
The Bathroom Window is not Warrantable (item 27)
44The appellants claim on their 30-Day Form that one bathroom window was different than all the other windows in the home and the interior portion of it was black instead of white.
45The CAR included pictures of the subject window compared to another bathroom window in the home. At that time, the subject window had been painted white on the inside. Tarion found the window was operational and that it had a slightly rounded trim compared to the other rooms. The appellants agree it is operational.
46In testimony, the appellants stated that the window could not be painted and therefore the paint did not look nice. In addition, they did not like the design and found it was a different shade of white than other windows. They did not provide any pictures or other evidence to support their claim.
47The appellants had difficulty identifying the window in question from the two bathroom pictures shown, as they are very similar.
48The respondent argued that there are no specifics about window styles in the APS.
49It is the appellants’ onus to prove that there is a warrantable defect. They have not demonstrated that the slight difference in design in one window compared to other windows is a warrantable defect. The issue listed in the Decision Letter was that it was the wrong colour and that seems to have been addressed prior to the conciliation. I also do not find that the appellants now alleging the paint was not the same white colour or that there is a paint issue, both of which had no supporting evidence, is enough to meet their onus that this constitutes a warrantable defect.
50Based on the evidence provided and a balance of probabilities, I conclude that the bathroom window is not a deficiency under the Act and is therefore not warrantable.
The Front Door is not Warrantable (item 46)
51The appellants’ 30-Day Form indicates that the front door is damaged and defective.
52Tarion’s Decision Letter dated May 23, 2025 confirmed the denial of the claim based on the same reasons stated in the CAR, that it tested the door by opening and closing it and that it was operational and installed with no defect.
53Ms. Tosello-Herakovic testified that the only defect she was told about at the time was that it was not shutting properly and does not recall any mention of the door height.
54The parties agree that the allegation of the front door being damaged has been resolved and that the only issue for the hearing is if it is defective.
55At the hearing, the appellants claimed that the door is installed too low which prevents them from putting a rug in front of it. When they open the door, it pushes against the rug. They have not been using the front door as people would dirty the floor if there was no carpet by the door, and they use the garage door or the side door instead.
56The respondent states that the door height is a new issue that was not raised previously nor was it raised at the inspection and that this should not form part of the appeal. The picture in the CAR shows a carpet on the inside by the front door.
57The appellants have not met their onus of proving on a balance of probabilities that this is a warrantable item. They provided no documentary evidence to show the door being too low and on the other hand, the only picture in evidence shows a rug in front of the door which leads me to believe it was opened and closed when the assessment took place as part of the assessment was to verify the door could open and close properly.
58Based on the evidence and a balance of probabilities, I conclude that the front door issue is not a deficiency under the Act and is therefore not warrantable.
The Interior Doors on the Main Floor are not Warrantable (item 71)
59The appellants claim that all the interior doors on the main floor are too high off the ground and that it is not standard.
60Tarion’s Decision Letter dated May 23, 2025 confirmed the denial of the claim based on the same reasons stated in the CAR stating that the doors were assessed with reference to Article 8.9 of Tarion’s Construction Performance Guidelines (“CPG”) that states that generally, a minimum of 25 mm space under interior doors above the finished flooring should be provided for airflow. The picture in the report indicated a distance of 27-28 mm of space under the door.
61The appellants state that other doors have a higher gap than the picture shown in the CAR and that the respondent had told them they would be warrantied. They argue that noise can travel under the door because of the gap and that the doors should be about ½ an inch (12.7 mm).
62The respondent explained that although there were issues with doors on the second floor, those had all been addressed as a separate issue and do not form part of this appeal, and that the appellants only pointed to one door on the main floor. The appellants agreed that only one door was looked at on the main floor.
63Mr. Catana testified that a 1-inch gap (25.4 mm) is very typical, especially for bathroom doors.
64The onus is on the appellants, and they did not have evidence to demonstrate the height of the gaps under the other doors. They state that the gaps are more than 2-3 inches but did not know the exact measurements and had no pictures in evidence. It is not enough to simply allege an allegation exists in order to meet the onus of demonstrating a deficiency. I also have no evidence of any standards that would demonstrate the maximum height there should be under a door.
65I find that the gap under the door in evidence being 27-28 mm is very close to the minimum of 25 mm indicated in the CPG Article 8.9. If the height of the gap was ½ inch as the appellants would have liked, it would have been a breach of CPG Article 8.9. I have no documentary evidence which demonstrate the gap under the door is a warrantable defect.
66Based on the evidence provided and a balance of probabilities, I conclude that the height of the gap under the main floor interior doors is not a deficiency under the Act and is therefore not warrantable.
The Exterior Stucco is not Warrantable (items 83 and 84)
67The appellants’ 30-Day Form indicates issues with the exterior stucco having major dents, scratches and lines.
68Tarion’s Decision Letter dated May 23, 2025 confirmed the denial of the claim based on the same reasons stated in the CAR. Its position was that the assessor walked around the perimeter of the home and observed the stucco from 6 meters away and could not identify cracks and lines. It relied on CPG Article 4.22 which provides that stucco on a drained cladding system shall not have unintentional gaps or cracks visible from a distance of no less than 6 meters.
69In testimony, the appellants described the issue with the stucco being as a result of work done on the front of the house to add a railing, which was installed on the wrong window and needed to be moved. When it was moved, it created holes which were not fixed. When asked where the holes could be seen on the pictures from the CAR, they could not point to them. The appellants agreed that perhaps this alleged damage happened after the CAR. They did not have documentary evidence to demonstrate this alleged defect. When asked about the stucco around the perimeter as per the claim, they had no documentary evidence and did not recall what the damage was.
70I find that the appellants have not met their onus as they are not even sure there is damage to the stucco on the perimeter of the home as claimed and have not provided evidence of it. Any subsequent issue with the stucco is not an issue in dispute for this hearing.
71Based on the evidence provided and a balance of probabilities, I conclude that the alleged defect to the outdoor stucco as listed in the Decision Letter is not a deficiency under the Act and is therefore not warrantable.
CONCLUSION
72I am satisfied that prior to the hearing, the appellants were explained that they had the onus in this appeal. While there is a slight language barrier, at both case conferences, their son was in attendance to assist them and both case conference report and orders mention the onus and deadlines to provide documentary evidence. They were also provided the opportunity to bring an interpreter which they chose not to.
73As per Ragoobar v. Tarion Warranty Corporation, O’Dwyer Fine Homes Ltd., 2022 CANLII 46851 (LAT):
the Appellants bore the evidentiary burden to prove every allegation of a breach of warranty. As the Tribunal explained in Re Ontario 8149/ONHWPA:
It is trite law to state that in proceedings under the Act the burden of proof lies on the Applicant. The Applicant must prove that an item in dispute falls within the warranty protections in the Act. It is insufficient to simply allege a defect. The Applicant must prove the existence of such a defect and how the defect falls short of the acceptable standard.
74With only their testimony as evidence, and therefore having to rely on the respondent’s documentary evidence, the appellants were not able to meet their onus to prove warrantable deficiencies existed in their issues in appeal. Even if they had proven any, they had not provided any documentary estimates for damages.
75As I find that the items in dispute are not warrantable deficiencies under the Act, no compensation may be ordered.
ORDER
76For these reasons, and pursuant to s. 14(19) of the Act, I order the appeal be dismissed and direct Tarion to deny the claim.
Geneviève Painchaud
Vice-Chair
Released: April 27, 2026