Licence Appeal Tribunal File Number: 17288/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:

April Abreau, Warranty Services Manager Amanda Cutinha, Counsel

Court Reporter:

Charlotte St. Croix

HEARD by videoconference: January 26-30, 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 5, 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:

3Whether claim items 10, 11, 14, 15, 16, 21, 22, 28, 29, 30, 31, 32, 34, 38, 40, 41, 44, 46, 47, 49, 50, 51, 52, 55, and 57 as listed on the one-year statutory warranty form constitute a breach of warranty; and

4If so, whether the appellants suffered monetary damages resulting from the breaches of warranty and the amount of these damages?

RESULT

5The appellants are entitled to $2,380.00 from the guarantee fund for claim item 34 and $283.31 for claim item 41. The appellants are not entitled to compensation from the guarantee fund for any of the remaining claim items.

PROCEDURAL MATTERS

The appellants consent to proceed without an interpreter

6At 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.

7As 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 respondent asks to rely on late-filed disclosures

8I consented to admitting the respondent’s late-filed disclosures.

9Prior to hearing evidence at the proceeding, a dispute arose as to certain late-filed documents the respondent sought to rely on. These documents included: (1) an authority [Javed v. Tarion Warranty Corporation, Fernbrook Homes (Seven Oaks) Limited, 2025 CanLII 20834 ON LAT (“Javed”)]; (2) a “Scott Schedule” that served to summarize the respondent’s position on the disputed claim items and cross-reference evidence; and (3) the sworn testimony of an anticipated witness.

10The appellants did not consent to these documents being relied upon in the hearing. They submitted that they had not yet reviewed Javed and, as a consequence, had little knowledge of the case and how it applied to their appeal. They also submitted that it would not be fair to allow the respondent to rely on the Scott Schedule or the affidavit because they were not exchanged or filed in a timely manner. Mr. Cheng added that neither he nor Ms. Liu understood the Scott Schedule and that they had managed to just briefly read only the first three pages of the affidavit prior to the hearing.

11The respondent clarified the purpose of the Scott Schedule and the appellants subsequently consented to its use during the hearing. Given that the witness who provided the affidavit was available to provide oral testimony at the hearing, the respondent was content to withdraw its request to rely on her sworn testimony.

12For Javed, the respondent explained it was filed late on account of ongoing discussions between the parties to avoid the hearing. The respondent submitted that it would be detrimental to proceed with a hearing that was not informed by jurisprudence because the Tribunal’s decision in this matter might be at odds with past decisions or inconsistent with binding law. The respondent indicated that allowing Javed to be relied upon would not prejudice the appellants because it was just one authority.

13Rule 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.

14When I considered the factors at Rule 9.3, I determined the respondent could rely on Javed. While certain factors weighed against the respondent’s position—such as the appellants not consenting and an unpersuasive reason for untimely disclosure—I agreed that the Tribunal would be best informed on the issues with the assistance of jurisprudence. I also found that prejudice to the appellants could be mitigated by allowing time during the proceeding for the appellants to finish reviewing Javed prior to closing submissions when authorities are typically introduced. In my view, these latter factors carried the most weigh. Accordingly, I consented to allowing the respondent to rely on Javed.

Witness statement of Mr. Cheng in appellants’ brief to be treated as an affidavit

15During the hearing, Mr. Cheng was prepared to read into the record, a written account of his position on each claim item. Given that Mr. Cheng had affirmed his testimony at the outset of his direct examination, the parties consented to treat his witness statement as an affidavit to facilitate efficient proceedings. As such, I accepted his witness statement as sworn testimony subject to cross-examination by the respondent.

ANALYSIS

The applicability of price indexing the appellants’ damages

16I am persuaded that price indexing the appellants’ damages is an acceptable methodology that can be applied to their claim items.

17During the hearing, Mr. Cheng often referenced building construction price indexes fixed by Statistics Canada as of November 30, 2025. He produced the index in evidence and fashioned a table to show the math behind his application of index values to claim items. 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.

18The 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.

19I 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

20I find the appellants have not shown that delayed closing costs should apply to this appeal.

21In 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.

22The 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.

23While 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.

24When 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.

25I 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.

26Given 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

27Section 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.

28Section 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 10: The living room window screen door has a rough opening after the builder replaced it during the repair. The gap still exists looking from the exterior.

29I find the appellants have not established they are entitled to compensation for a breach of warranty pertaining to this claim item.

30The appellants submit that when the builder attempted to repair the screen door to their exterior balcony as part of their 30-day warranty items, the contractor used a cutting tool to perform modifications that ultimately left raw edges on the locking latch surround that is exposed each time the door is opened. Further, the appellants maintain that the repairs effected at that time did not resolve the issue of the gap reported on both the 30-day and one-year statutory warranty forms. The appellants request $572.53, inclusive of taxes and a price index adjustment, for a replacement sliding door.

31The appellants submit that 5610 v Tarion Warranty Corporation, 2010 CanLII 100815 ON LAT (“5610”) supports their position on this claim item because 5610 deals with the closing mechanism of a door. In 5610, the Tribunal addressed warranty entitlement to an improperly functioning garage access door that was owing to the builder’s re-installation of the automated closing mechanism in a different location. However, I was not pointed to any application of CPG article 9.8 in 5610—the crux of the dispute between the parties on this claim item—and gave it little weight accordingly.

32As well, the appellants rely on Gale v. Tarion Warranty Corporation, 2024 CanLII 102090 ON LAT (“Gale”) to show that damages done in the process of effecting repairs are warrantable under the Act. In Gale, the Tribunal considered defects in a rubber membrane installed as part of a shower sub-floor. However, the Tribunal’s decision to deny the homeowner’s claim was based on the damages falling outside the scope of the appeal because they were unrelated to the claim items in the decision letter. As such, Gale is of little assistance in assisting with this case because the Tribunal stops short of grappling with whether damages done in the process of effecting repairs are warrantable.

33The respondent does not dispute that the locking latch surround on the end of the sliding screen door felt rough to the touch upon inspection. However, the respondent maintains this claim item nevertheless meets the performance standard set out at CPG article 9.8 because “interior mechanisms” are not specified to be smooth—that is to say, interior surfaces are not typically touched during regular use. The respondent further submits that the rough edges were not readily visible from a normal viewing position or under typical lighting conditions.

34The respondent adds that the builder determined this claim item forms part of the common elements, which I take to mean that the respondent is saying the Tribunal’s jurisdiction is hindered on this claim item. During his testimony, Mr. Brandon Carson (vice-president of customer relations for the builder), explained that, to the “best of his knowledge,” the builder did not address this claim item because this is a common element item per the “suite boundary” section of the Agreement of Purchase and Sale (the “APS”) and its corresponding Schedules.

35I find this claim item is within the Tribunal’s jurisdiction to consider. Section 14(14) of the Act provides that the respondent’s decision may be appealed to the Tribunal. The decision of the respondent on this claim item, per its June 2025 decision letter, is that the defect is not warrantable because the claim item adhered to CPG article 9.8. The decision letter further indicates that Mr. Ross Corallo (warranty services representative for Tarion) conducted a physical inspection of the screen door’s latching system as part of his analysis on this claim item. There is no mention in the decision letter of the screen door being a common element and I therefore conclude this was not part of the rationale for the respondent’s decision at the time it was taken. As such, I find the respondent’s decision on this claim item is appealable to the Tribunal under the Act regardless of whether it forms part of the building’s common elements.

36I find on a balance of probabilities that the damage alleged by the appellants is owing to the workmanship of the builder. Mr. Cheng’s sworn testimony indicates the screen door was replaced by the builder as part of the 30-day repairs, and that he witnessed the contractor use a cutting tool to trim or modify the sliding door opening, which I take to mean the openings in the frame at the location of the locking latch surround. I accept this evidence because the screen door is listed as claim item 59 on the appellants’ 30-day form and this shows it was reported. Further, while Mr. Carson testified that the builder did not address the sliding screen door as part of the 30-day repairs or thereafter, I find his testimony to be unpersuasive. Mr. Carson was inconsistent in his recollection of the builder’s actions on this claim item. During cross-examination, Mr. Carson was adamant that the screen door was a common element and that he “would not have even looked at it,” adding that the screen door was “outside and [the builder] would not have reviewed this door.” However, during direct examination, Mr. Carson confirmed the builder “looked at” (i.e. inspected) the alleged defect despite the screen door being a common element. As well, Mr. Carson allowed that the builder may have repaired the screen door without his knowledge, testifying during cross-examination that “if a repair was done, it was a kind gesture I am unaware of.”

37I accept that the locking latch surround is not a smooth surface. It appears rough in the photo produced by the appellants, as well as in the respondent’s photo that corresponds to its conciliation assessment report of May 29, 2024. In fact, the report acknowledges that the surface is “rough to the touch.”

38Further, when I consider this claim item against the performance standard set out at CPG article 9.8, I find the appellants have shown a warrantable defect. Article 9.8 reads as follows:

“Surfaces that are touched during normal use shall be uniformly smooth. Surfaces not touched during normal use shall appear smooth when viewed without magnification, from a minimum distance of 1,500 mm under normal lighting conditions and from a normal viewing position.”

39Mr. Cheng’s testimony that the locking latch surround is a “normal use” item is not persuasive. While I accept that measurements produced by the appellants show a child could reach the locking latch surround, I find this does not establish this surface is touched during normal use. During cross-examination, Ms. April Abreau (warranty services manager for Tarion) offered a railing as an example of something that would be touched during normal use because its purpose requires physical contact. Mr. Carson testified that the mechanism on the screen door handle would be touched as part of normal use to lock and unlock the door, but not the latching area itself on the adjacent edge of the screen door. I find the testimony of Ms. Abreau and Mr. Carson, when considered with the photos, demonstrates on a balance of probabilities that the locking latch surround is a surface that would not be touched during normal use.

40Turning then to the second aspect of CPG article 9.8 that pertains to surfaces not touched during normal use, I find the appellants have shown that the rough edges of the locking latch surround are, in fact, visible from 1,500 millimetres in normal lighting and viewing conditions, and thereby fall short of the standard set out in CPG article 9.8. While Mr. Corallo did not testify at the hearing, I accept on a balance of probabilities that he took his photo from 1,500 millimetres away because he applies CPG article 9.8 in his analysis. I also find Mr. Corallo applies a lower bar than the one specified at CPG article 9.8 when considering the visibility of the defect. Mr. Corallo indicates the rough edges “could not be easily seen” from a normal viewing position and under normal lighting conditions. I therefore conclude that Mr. Coroallo—from a viewing distance of 1,500 millimetres under normal viewing and lighting conditions—did indeed discern rough edges, albeit not easily. In my view, rough edges visible to any degree from the vantage point specified in CPG article 9.8 falls short of the standard, which says only that the surface shall “appear smooth.” When I look at the respondent’s photo, I accept Mr. Cheng’s testimony that the rough edges on the locking latch surround are indeed visible to the extent that the surface does not appear smooth.

41When I take this evidence together on a balance of probabilities, I find the appellants have shown the rough edges of the locking latch surround constitute a warrantable defect under the Act. However, I disagree with the scope of work proposed by the appellants to remedy the rough edges. The appellants propose damages in the amount of $572.53 for a replacement screen door. Mr. Cheng confirmed this during cross-examination when he acknowledged that he quoted a new screen door to remedy the rough edges on the locking latch surround. In my view, the appropriate scope of work would be consistent with the action proposed at CPG article 9.8, which is that “surfaces not meeting the acceptable condition shall be made smooth and refinished.” The appellants have not shown that this action is incompatible with the warrantable defect and therefore cannot claim a whole screen door replacement in lieu of repair. As such, it follows that they have not shown damages resulting from the breach of warranty as the Act requires, and are therefore not entitled to compensation the guarantee fund.

42In terms of the gaps where the screen door meets an adjacent fixed window frame, I find the appellants have not met their onus. While the respondent did not address this alleged defect in its decision letter, the appellants must still show a defect exists for their claim to succeed. The extent of evidence led by the appellants on this aspect of their claim is a photo taken at the time of their 30-day statutory warranty repair period. I agree this image depicts the upper portion of the screen door not meeting flush with the adjacent frame of a fixed window. However, the appellants did not point to an industry standard in the CPG or otherwise that persuades me this gap constitutes a defect. While OBC section 1.2.2.1 says all materials, appliances, systems, and equipment installed by the builder must possess the necessary characteristics to perform their intended functions when installed in a building, I disagree that this claim item falls short of this standard as argued by the appellants. This is because they did not show the screen door lacks the necessary characteristics to perform its intended function owing to the gap. As such, I find this aspect of this claim item is not warrantable.

Claim items 11 and 22: The shower has intermittent cracking sounds after taking a shower. The bathtub generates sound when moving around by foot.

43I find the appellants have not demonstrated that claim items 11 and 22 are warrantable under the Act.

44For claim item 11, the appellants submit they can clearly hear movement-related noises (i.e., sudden cracking sounds) coming from the shower base area when the shower is in use and sometimes even hours after use when nobody is standing in it. They claim to have never experienced this in the other condominiums and houses they have lived in previously, and say the problem creates ongoing anxiety about the structural integrity of the shower base. The appellants add that the intermittent and unpredictable nature of this flexing behaviour is unsettling and disrupts Mr. Cheng’s home-working environment and makes it difficult to maintain concentration.

45For claim item 22, the appellants submit that stepping and shifting noises unexpectedly emanate from the master bedroom ensuite tub when in use. The appellants describe this as a sharp noise that affects their ability to relax and makes showering less comfortable and more stressful. The appellants also claim these intermittent noises affect their sleep owing to the proximity of the bathtub to the bed. They reason, therefore, that both claim items are not just defective in workmanship and materials, but that they also render their condo unit unfit for habitation.

46The appellants rely on section 1.2.2.1 of the OBC, the scope of which was referenced earlier in this decision and does not bear repeating here. To establish damages relating to these claim items, the appellants rely on the national average shower replacement cost—as documented online by York Building Materials Inc. on February 28, 2023—to show damages for these claim items amount to $6,119.29 inclusive of price indexing and taxes.

47The appellants submit that 5816 v Tarion Warranty Corporation, 2011 CanLII 101048 ON LAT (“5816”) shows the respondent must consider whether the home is fit for habitation in addition to whether a breach of warranty occurs as a result of defective workmanship and materials. The appellants reason that the respondent failed in its duty to protect them because, in their case, the respondent did not consider whether the flexing noises render their condo unit unfit for habitation.

48In 5816, the Tribunal was asked to decide on the scope of repair to a noisy shower tub that the respondent had warranted. I find the usefulness of 5816 is hindered because the Tribunal’s written reasons do not detail the basis for the respondent’s decision to engage a warranty—whether due to poor workmanship, defective materials, or unfitness for habitation. In fact, the term “habitation” appears only once in the decision and not as part of the Tribunal’s analysis of the issues. As such, 5816, which is not binding on me, imparted little insight into the appellants’ claim.

49I would further point out here that I agree the respondent has a duty under the Act to respond to the appellants’ claim—meaning that it should at least consider whether the home is fit for habitation if raised by the homeowners. In my view, this obligation is underscored in the October 2024 letter from the New Home Ombuds Office, which confirms that the respondent “must weigh all the information and make an assessment that takes everything into account.” However, it remains that the Act puts the onus on the appellants to show their home is unfit for habitation to constitute a warranty breach. As such, establishing that the respondent’s assessment does not take everything into account does not lead to the automatic conclusion that a warranty breach has occurred, whether due to the home being unfit for habitation or owing to defective workmanship or materials.

50For claim item 11, the respondent argues that the shower base was inspected by taking steps within the shower, and that the “minor” squeaking that ensued complies with CPG article 6.11 because “[l]ightweight bathtubs and showers may flex and creak when installed in accordance with [m]anufacturer’s specifications.” For claim item 22, the respondent similarly submits that workmanship and materials comply with CPG article 6.11 because it did not observe any defects relating to the tub base in the ensuite bathroom.

51I find the home videos filed by the appellants support their observations. The shower base does flex, creak, and squeak when stepped upon. It also makes intermittent noises after a shower when the appellants are no longer standing on the shower base. While I accept the intensity of this noise is indeed subjective, in my view, it is more than “minor” as described in the respondent’s conciliation report.

52That said, I disagree that this flexing and the resultant noise constitutes a defect in workmanship or materials. CPG article 6.11 allows for noises of unspecified frequency or loudness owing to the flexing of lightweight fibreglass and acrylic shower bases. The acceptable performance is described as: “[l]ightweight bathtubs and showers may flex and creak when installed in accordance with the [OEM’s] specifications.” CPG article 6.11 goes on to say that “… [f]lexing or creaking sounds can often be heard especially in large soaker-type tubs as they are filled and emptied. These fixtures [fibreglass and acrylic bathtubs and shower enclosures] are designed to withstand this type of flexing; it does not generally represent a manufacturing or installation defect.” I note here that Mr. Carson’s recollection of the appellants’ tub creaking complaint at the time he performed his inspection was that it was made in the context of filling the tub with hot water. The appellants did not dispute this in their testimony.

53While the appellants are not required to point me to the OEM’s installation specifications of their shower base or tub to meet their onus, it remains that they did not. Instead, Mr. Cheng questioned whether the respondent had confirmed the installation is correct and dedicated a great deal of his cross-examination to this question. I find this is a misapprehension of onus. In contrast, Mr. Carson testified that both the installation contractor and the OEM of the shower base and tub conducted an inspection of the material and workmanship of the installation. He referenced a post-inspection letter in evidence from the OEM that I find raises no concerns about the installations meeting specifications. The letter reads: “[t]he bathtubs and shower bases for this project are made of acrylic and fibreglass material. This construction allows these items to be strong and durable while still remaining light. It is standard in the industry for sound to occur when moving around the bathtub or shower base. Sound does not indicate potential issues with manufacturing or installation.”

54While I accept that the retrofit video filed by the appellants shows that the application of mortar under the shower base will resolve these movement-generated sounds, it does not persuade me that this technique is required or even recommended as part of the OEM’s installation specifications. In fact, the contractors in that video observe that flexing noises are a common issue in new home builds because builders “never” put mortar beds beneath shower pans. In my view, this evidence does not support the appellants’ position. Rather, it strikes me as reinforcing the performance standard set out in CPG article 6.11 and the industry standard shared in the OEM’s letter. The contractors also say that the mortar retrofit is a solution “if [the flexing and noise] bothers you that much,” which I find speaks more to inconvenience than pointing to a defect in workmanship.

55This is not to say I minimize the noise created by the flexing of the material used to construct the shower base in the appellants’ condo unit. I deliberately specify the shower base here because there is video evidence that qualitatively corroborates the flexing noise, whereas the appellants did not produce similarly objective evidence of the flexing sounds emanating from their tub. I therefore place less weight on Mr. Cheng’s testimony about their tub. I agree however, that the intermittent flexing noises emanating from the shower base heard in the home videos could be disruptive and intrusive, especially in a small condo-living environment. But this does not assist in showing the shower base is defective when considered in the context of CPG article 6.11, nor that they lack the necessary characteristics to perform their intended functions per section 1.2.2.1 of the OBC. In my view, the bulk of the evidence supports flexing as part of the intended function of fiberglass and acrylic shower bases and tubs.

56That said, I find that the intermittent flexing noise in the shower—which I characterize as a sharp popping sound—is incompatible with section 13(1)(a)(ii) of the Act when I consider this claim item from a common sense and reasoned perspective based on the unique facts of this case. To be clear here, I distinguish between the predictable and recurrent noise produced when using the shower from the random and arbitrary sounds that occur when the shower is not being used. It is specifically the latter that is not compatible with habitation.

57In my view, section 13(1)(a)(ii), which provides that “every [builder] of a home warrants to the owner, that the home is fit for habitation" does not mean the whole condo unit must be unfit to attract warrantable compensation. Given the well-established principle that the Act is remedial legislation intended to protect consumers, the language of this legislation can and should mean something more qualified. By this, I mean that the loss of use, occupation, and enjoyment of any meaningful or material portion of the home is incompatible with a home fit for habitation if that loss deprives the homeowners of enjoying their home as a whole.

58In this case, the appellants live in a condo unit that encompasses 941 square feet according to Schedule B of the APS. Given the size of this living space, I accept Mr. Cheng’s testimony that the flexing is audible in adjacent rooms. I am also persuaded that the sudden and unpredictable nature of this noise is unsettling and intrudes on Mr. Cheng’s focus when he is working. Mr. Cheng testified that he works from home, and I therefore accept that the flexing noises from the shower base are inescapable when they occur during work hours. In the space of the 40 seconds captured in the home video, I count three separate sharp pops, and Mr. Cheng’s sworn testimony is that this can continue for hours after the shower is used. I find that having to live with jarring sounds that occur at random—or alternately having to implement a showering schedule that is compatible with the appellants’ daily living activities, or stopping use of the shower altogether—is unreasonable and incompatible with habitable living spaces as envisioned by the Act. Further, these disruptive sounds essentially deprive the appellants of enjoying their entire home because they permeate the adjacent rooms, which I find includes all the living space in the condo unit save the master bedroom and ensuite per the Schedule B of the APS. That the appellants are spared the shower base flexing noise in their master bedroom is of little consequence given that it is not reasonable to expect them to retreat there for hours after taking a shower. It is equally unreasonable to expect the appellants to rely only on their ensuite tub to support their hygiene routine, given that they paid for a functioning master bathroom with shower per the APS.

59While the respondent more broadly argues that none of the alleged defects in this case make the condo unit unfit for habitation, I am persuaded that the random flexing noises emanating from the shower base rise beyond what the respondent concedes to be a cosmetic feature or mere inconvenience. They are interfering with Mr. Cheng’s ability to perform his work and causing the appellants to feel emotionally unsettled and less secure throughout their home. These conditions are inconsistent with a home fit for habitation.

60When I take all this evidence together on a balance of probabilities, I conclude the appellants have shown that claim item 11 is a breach of warranty, but have not shown claim item 22 is warrantable under the Act.

61In terms of damages for claim item 11, I find the estimate produced by the appellants does little to assist for several reasons. First, it does not distinguish between costs to remedy the shower base and the tub, which form different claim items. The estimate is simply an aggregate monetary value for both claim items and I cannot apply it to analyze damages for the shower base alone. Second, it is simply a national average for a tub and replacement cost and does not contemplate the scope of work required specifically for the appellants’ condo unit. Third, the estimate contemplates complete replacement of the whole shower and tub, and not just the shower base were the warranty breach occurs.

62I would add here too, that the respondent did not point to any cost estimates in evidence that it may have prepared to inform the scope of work for this claim item.

63Therefore, claim item 11 fails despite a breach of warranty because the appellants did not establish damages resulting from the breach as the Act requires them to do.

Claim item 14: The entrance door has a big vertical gap between the flooring and the door trim which has constant strong airflow flowing from the common area to the unit.

64I find the appellants have not demonstrated this claim item is a residential unit element.

65The appellants submit that the entry door to their condo unit has a “large” vertical gap at the bottom that allows “strong” airflow to enter from the corridor. The appellants say this defect lowers the indoor temperature and humidity in their unit during the winter, which makes the living space uncomfortable. They also claim the gap at the bottom of the door introduces hallway noise that makes it difficult to concentrate, and allows unpleasant odours to permeate throughout the unit.

66To prove this claim item is a residential unit element, the appellants rely on Schedule C of the Declaration (“Schedule C”)—made and executed pursuant to the Condominium Act, 1998, S.O. 1998 c.19 (the “Condo Act”)—that was received at their community’s land registry office on June 30, 2022. The appellants say this claim item is defective because it falls short of the standard set out in section 1.2.2.1 of the OBC.

67To establish damages relating to this claim item, the appellants rely on an index-adjusted estimate prepared by Fix-It-Friend Handyman on March 20, 2025, in the amount of $203.99. The scope of work here consists of caulking the gap where the door threshold meets the finished floor.

68The respondent argues that 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 this item if reported by the condominium corporation. The respondent relies on Section 5 of Part One of the Declaration (“Section 5”) to support its decision.

69When I consider the appellants’ photo evidence, I accept that air from the hallway corridor is entering the appellants’ condo unit through a gap that measures one to one- and a-half centimetres wide, right to left, between their main access door and the threshold. A video produced by the appellants depicts air flow issuing into the unit with sufficient volume and intensity to ruffle a suspended tissue paper.

70Both parties agree that Schedule C defines boundaries between the common and residential unit elements. The parties also agree that common element defects are resolved by making a claim through the condominium board. When I consider Schedule C and Section 5 harmoniously, I disagree that the gap at the crux of this claim item is within the unit boundaries.

71Schedule C says the residential unit boundary for exterior doors shall be the unfinished unit side surfaces of the door and frame in a closed position. Schedule C also defines the boundary for floors as the upper surface and plane of the concrete floor slab. The photo and video evidence submitted by the appellants shows a gap between their finished flooring and the area between the bottom of the door and its adjacent framing on the unit side, which I find is consistent with what Schedule C defines as unit boundaries. While I find the probative value of a February 2025 email from Ms. Tiffany Artinian (condominium property manager) is diminished because she was not a witness at the hearing, I afforded it some weight insofar that it agreed this claim item does not form part of the common elements.

72However, I find Section 5 is more persuasive in determining whether this claim item is defined as a common element or a residential unit element. While Section 5 acknowledges the unit boundaries as articulated in Schedule C, it then goes on exclude all exterior doors and door frames, exterior windows and window frames from the residential unit notwithstanding the boundaries set out in Schedule C. In my view, this is consistent with the testimony of Ms. Abreau, who indicated during cross-examination that she saw no discrepancies between the boundary unit considerations in Schedule C and Section 5.

73Given 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. But even if I were to accept the exterior door is properly a residential unit element, I would still find the appellants have failed to show a defect in workmanship or materials. This is because the appellants rely on CPG article 10.24 to show the gap constitutes a breach of warranty, and I find this performance standard does not apply to this claim item. CPG article 10.24 addresses acceptable gaps between baseboard and finished flooring, which is not at issue here. Put differently, the appellants did not establish that the maximum three-millimetre gap permitted between baseboard and finished flooring as defined in CPG article 10.24 can be interpreted to be the same as the allowable gap between finished flooring and a door threshold.

74When I take all this evidence together on a balance of probabilities, I find the appellants are not entitled to dispute this item before the Tribunal because they are not the owners of the common element that forms the basis for this dispute.

Claim item 15: The southwest bedroom door always swings when opening the entrance door. Actually, it swings when there is airflow (e.g., a strong wind outside). This has a negative impact on our living experience.

75I find the appellants have not shown this claim item is a breach of warranty.

76The appellants submit that their master bedroom door is sensitive to air pressure changes, such that it vibrates or makes a sudden rattling noise when other doors in the unit are opened or closed. The appellants produced a video that depicts the door rattling and they contend this behaviour is worse in the winter because indoor pressure is higher owing to closed windows. The appellants submit the noise can become sufficiently frequent and loud to disrupt sleep, adding that they experience ongoing anxiety about being awakened during the night.

77To establish damages relating to this claim item, the appellants rely on an index-adjusted estimate prepared by Fix-It-Friend Handyman on March 20, 2025, in the amount of $277.65. The scope of work here consists of installing a door sweep and securing the lock on the main door that provides access to the appellants’ condo from the hallway.

78The respondent argues that it inspected the latch of the master bedroom door (i.e., the southwest bedroom) and confirmed there were no visible defects in the door's installation, and that it operated as intended.

79When I consider the video produced by the appellants in concert with the observations documented in the respondent’s May 2024 conciliation assessment report, I accept that the door to the appellants’ master bedroom rattles when a change in air pressure occurs because a different door in the condo unit is opened or closed. However, I disagree that CPG article 10.8 applies to this claim item as argued by the appellants. The standard set out at CPG article 10.8 says interior doors shall be installed sufficiently plumb and square so they do not swing by themselves due to the force of gravity alone. This standard pertains to door hinges that are not aligned plumb and does not address air pressure changes pulling open a properly closed door. Further, while Mr. Cheng testified that the door swings open by itself with pressure change, I find this is not made out in the video and is at odds with the respondent’s report, which indicates the master bedroom door was tested and found to work properly (i.e., the door stayed closed despite rattling due to air pressure variances). In fact, Mr. Cheng corroborated the report’s findings during cross-examination.

80I placed little weight on the issue of door latch installation specifications raised by Mr. Cheng when he cross-examined the testimony of Ms. Abreau and Mr. Carson. Mr. Cheng attempted to show that neither the respondent nor the builder had confirmed the master bedroom door latch had been installed correctly when they performed their respective inspections. But again, this is a reversal of onus. It is the appellants’ responsibility to show the latch was incorrectly installed if they wish to rely on that position. The appellants did not lead evidence to establish the installation specifications, let alone whether the workmanship of the builder fell short of complying with those standards.

81While I accept Ms. Liu’s testimony that she experiences door vibrations in the master bedroom during the night hours that wake her up from sleeping and make her anxious, I find this does not make the condo unit unfit for habitation per section 13(1)(a)(ii) of the Act. Unlike claim item 11 where sudden popping sounds could be heard throughout most of the condo unit, Ms. Liu’s loss of enjoyment is constrained to her master bedroom and her testimony does not persuade me that her sleep disturbances and anxiety deprive her of enjoying the condo unit as a whole.

82When I take this evidence together on a balance of probabilities, I am persuaded that the appellants have not shown a breach of warranty for this item. Accordingly, I find it unnecessary to analyze submissions and testimony about damages.

Claim items 16 and 50: The washer presoak-rinse button doesn’t stay in the proper position and the dryer has excess noise like “twisting” when working.

83I find the appellants have not established that their washer and dryer appliances are eligible for the one-year statutory warranty as part of their home.

84For claim item 16, the appellants submit that it is often difficult to select and confirm the correct washing cycle because the presoak button is loose and will not stay in place. They cite the inconvenience of needing to frequently check the machine multiple times to ensure the setting has not shifted. For claim item 50, the appellants submit the dryer produces a loud “knocking” or “twisting” noise during operation that regularly disrupts concentration and especially during daytime working hours while Mr. Cheng is working from his home office space. To establish damages relating to these claim items, the appellants rely on an online quote from an appliance distributer to replace their washer and dryer in the amount of $1,746.95.

85The respondent argues that appliances are not contemplated as an enumerated warranty item at section 13(1) of the Act. The respondent explains that household appliances are not typically part of the home; rather, they are personal property (i.e., “chattels” with no significance or attachment to the home) that can be removed and do not constitute items of construction or finishing covered under the statutory warranty. The respondent also submits that defects with the appliance itself, or the installation, should be handled through the OEM themselves or the builder directly.

86In reply, the appellants submit that appliances are part of the home and should be liberally interpreted as residential unit elements because they serve the unit and are part of its function. The appellants also argue that neither the washer nor dryer are eligible for warranty repairs from the OEM or distributor. They explain that the original washer and dryer worked just fine, but were replaced without authorization by the builder as part of the statutory 30-day repairs because the laundry room sliding door interfered with the loading doors of the appliances. The appellants submit that they called the warranty provider and were advised that the replacement machines were ineligible for repair because the warranty on the original units had expired. The appellants therefore reason that the current defects arose not from normal wear and tear, but are secondary damage arising from the builder’s unauthorized replacement of “previously working” appliances.

87While I accept that section 1.2.2.1 of the OBC pertains to the function of appliances installed in a building, I am not persuaded that this extends to mean that appliance function is eligible for warranty coverage under the Act as argued by the appellants. Rather, section 1(1) of the Act, as it pertains to this appeal, defines “home” as a condominium unit that is a residential dwelling and “includes any structure or appurtenance used in conjunction therewith …”. I find that appliances are not appurtenances as interpreted by the appellants and cannot be liberally construed as such. Ms. Abreau described the washer and dryer as chattels during cross-examination and I agree. In my view, an appurtenance—when taken at its ordinary meaning in a real estate context—is a structure or improvement attached to land, such as a swimming pool, garage, shed, or fence that go with the property when sold. I find this distinguishes the appellants’ washer and dryer as something other than an appurtenance, and that the function of these claim items are therefore ineligible for warranty coverage because they are not defined as part of the home at section 1(1) of the Act or enumerated under section 13(1) of the Act.

88Given such, I find it unnecessary to analyze whether a breach of warranty and resulting damages have occurred. This includes an analysis of the appellants’ arguments that rely on a couple of emails they sent to the builder; the Criminal Code, R.S.C., 1985 c. C-46 (the “CC”); and Trespass to Property Act, R.S.O. 1990, Chapter T. 21 (the “TPA”), to establish the builder unlawfully accessed their unit to conduct an unauthorized substitution of their laundry appliances. For the same reason, I have not considered the warranty materials produced by the respondent to analyze the appellants’ position that an “unauthorized substitution” occurred.

89For completeness however, even if I were to accept the appliances were an enumerated warranty item I would find the appellants fall short of their onus to show a defect in workmanship or materials.

90The appellants claim the washer does not work properly because the cycle selection knob will not stay in the proper presoak position. However, the video produced by the appellants does not show a knob that fails to stay in position on its own. Rather, it simply depicts what appears to be Mr. Cheng pushing the knob inwards and then pulling the knob outwards to its original position. The knob being manually pushed and pulled into each position would not, in my view, demonstrate the knob fails to stay in place on its own. I was not pointed to evidence—whether from the OEM or otherwise—that would persuade me the knob, as depicted in the video, was functioning improperly.

91Similarly, the video of the dryer demonstrates only that it makes mechanical noise while operating. In absence of evidence that proves these noises are inconsistent with normal function, I would not agree the dryer is defective.

92When I take all this evidence together, I find that the appellants have not shown their washer and dryer are covered as enumerated items under the Act. I therefore conclude these claim items do not attract compensation from the guarantee fund.

Claim item 21: The kitchen faucet has a scratch and it spills water mist out of range.

93I find the appellants have not shown a breach of warranty for this claim item.

94The appellants submit that upon moving into the unit, they noticed a scratch on the kitchen faucet that was not present at the time they conducted the pre-delivery inspection (the “PDI”) or occupancy walkthrough. They contend the scratch is highly visible during daily use and makes the fixture appear worn or damaged despite being new. The appellants explain that the builder was still doing work in their home at the time they discovered the damage because their condo unit had not yet been fully completed. The appellants therefore reason that it is unfair to assume the damage was caused by them just because the damage occurred after the PDI.

95The appellants add that the faucet produces a mist that expands the stream issuing from the nozzle and inconveniently spreads water beyond the intended area of use. To prove damages relating to this claim item, the appellants rely on the original equipment manufacturer’s (the “OEM”) spec sheet for the faucet and an online quote for a comparable product from a fixture retailer in the amount of $1,746.95 including indexing and taxes.

96The respondent maintains that while it observed damage (i.e., a scratch) on the top of the kitchen faucet near the spout, the item is not warranted because the appellants did not present evidence that shows this damage was caused by the builder. The respondent further argues that the appellants did not mention any issue regarding the operation of the faucet at the conciliation assessment.

97The parties agree the faucet is damaged and I concur when I consider the photo included with the May 2024 conciliation assessment report. I disagree, however, that the appellants have shown this was caused by the builder as they allege.

98While I accept the builder was still accessing the appellants’ condo unit to perform repairs after the PDI was completed—and even after they had moved in their personal effects two months later—I find this does not establish that the builder caused the scratch to their faucet. The test to apply here is a balance of probabilities. This means I must find it is more likely than not that the builder damaged the faucet to conclude a breach of warranty. And in my view, the evidence is insufficient to meet this test.

99There is a letter from the builder dated March 10, 2022, that confirms the PDI inspection is scheduled for May 6, 2022, and the actual PDI report is dated accordingly. The scratch was not reported on the PDI form and Mr. Cheng testified that it was not present at that time. The appellants also produced a series of repair notices to show the builder accessed their condo unit four times to effect repairs on various PDI items between June 3 and June 30, 2022. However, I find it unlikely the damage was caused on any of these visits because the appellants submitted their 30-day statutory warranty form on June 30, 2022, which coincides with the last documented visit by the builder to make PDI repairs. The faucet scratch was not reported on the 30-day form. From this, I conclude the damage was most likely caused at some point after the appellants moved into their condo on July 4, 2022.

100The mere fact that the builder continued to perform work in the unit after the appellants occupied it with their personal effects falls short of persuading me that it was most likely the builder that caused the damage. To be clear, this evidence also does not infer or establish that the appellants most likely caused the damage. My point here is that the evidence does not prove who damaged the faucet on a balance of probabilities. While Mr. Cheng questioned Ms. Abreau as to why the respondent would require the appellants to prove the builder caused the damage instead of requiring the builder to prove it did not damage the faucet, I reiterate here that the Act puts the onus of proof squarely on the homeowner.

101I did not afford much weight to the appellants’ argument that the builder contravened the CC and TPA because it did not have their consent to be in the condo unit to effect repairs after the PDI and up to the discovery of the damage sometime after July 2022 and prior to completing of the one-year statutory warranty form in May 2023. In my view, this is not relevant to determining whether this claim item is a breach of warranty. Further, the builder has a statutory right—and a duty under the Act—to make warrantable repairs and is entitled to reasonable access.

102I am not persuaded that water is misting improperly from the faucet. The May 2024 conciliation assessment report notes only that the scratch was raised for inspection. Further, the appellants did not point to objective evidence of water misting that was outside the specification of the faucet OEM or that contravened an industry standard. As such, I am left to weigh only Mr. Cheng’s sworn testimony that the faucet is inconvenient to use owing to water misting, and I find this evidence is insufficient to persuade me that this claim item is warrantable.

103I placed little weight on section 13(1)(a)(ii) of the Act for this claim item because I find a faucet scratch does not make the condo unit unfit for habitation when I apply a reasoned and common-sense approach to my analysis. Neither Ms. Liu nor Mr. Cheng’s testimony offered persuasive evidence of this claim item rendering their condo unit unfit for habitation as a whole. While the “overall family impact” document provided by the appellants 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. In fact, Mr. Cheng agreed, at the conclusion of his direct examination testimony, that his experiences with the builder and respondent while engaging in the claim process were irrelevant to whether the claim items under appeal were warrantable or not.

104When I consider this evidence together on a balance of probabilities, I am persuaded the appellants have not met their onus to show a breach of warranty for this claim item. As such, I have not addressed damages.

Claim items 28, 32, 38, and 57: The paint surrounding the shower hanger isn’t flush and complete. Paint is not flush surrounding outlets, switches, and receptacles. The wall behind the heating, ventilation and air conditioning (“HVAC”) controller is damaged. The walls surrounding the doors aren't flush and smooth, especially the top area.

105I find the appellants have not shown a breach of warranty for these claim items.

106The appellants submit there are visible paint imperfections (i.e., uneven texture that does not blend smoothly with the surrounding wall surfaces) in high-visibility areas in the main bathroom, around bedroom closets, and in the area of the HVAC controller in the living room. The appellants disagree that these inconsistencies are “brush marks” as maintained by the respondent and produced online photos of brush marks to contrast with the photos relating to their claim items. For claim item 28 specifically, the appellants say the builder’s previous attempt to fix the inconsistently painted surface—where the builder re-installed a towel bar—was unsuccessful.

107To establish damages, the appellants produced a paint sample and online quotes for comparable paint products. For claim item 28 specifically, they rely on the scope of work outlined by the respondent in a November 2024 claim resolution schedule for a similar claim item that was warranted for repair during the 30-day statutory warranty period. The appellants rely on the estimate prepared by Fix-It-Friend Handyman on March 20, 2025 to address claim items 32, 38, and 57. The appellants estimate indexed damages at $453.30 for claim item 28, $1,813.21 collectively for claim items 32 and 38, and $1,359.90 for claim item 57.

108For claim item 28, the respondent argues that it observed “slight” brush marks near the brackets of the towel bar, which comply with CPG article 9.9 because brush marks are acceptable in cut-in areas and on trim and may vary in appearance with paint type. For claim item 32, the respondent argues that it inspected the paint around the receptacle cover plates “recently” installed by the appellants and did not observe any defects with the paint finish. The respondent submits that this claim item also complies with CPG article 9.9. For claim item 38, the respondent argues the workmanship is consistent with the performance standards in CPG article 9.9 because it inspected the wall where the thermostat is located in the living room and did not observe any defect in the paint finish. For claim item 57, the respondent argues that it inspected the finish of the casing around the doors of the master bedroom and observed no defects on the finish from a perpendicular distance of 1,500 millimetres under normal lighting conditions.

109The dispute for these claim items centers on the application of CPG article 9.9. which addresses when paint finish is unacceptable. The performance standard set out here is as follows:

“A properly painted surface shall be produced on every exposed surface where a painted finish is specified. A properly painted surface shall be assessed by viewing, without magnification, from a minimum perpendicular distance of 1,500 mm under normal lighting conditions and from a normal viewing position. Where a properly painted surface is not achieved repairs shall be made. Brush marks are acceptable in cut-in areas and on trim and may vary in appearance with paint type.”

110While I agree there are imperfections evident in the photos produced by both parties on these claim items, I am not satisfied that they fall outside this standard.

111For claim item 28, the appellants did not establish that the photo they produced of the towel bar depict the paint variation from 1,500 millimetres. In my view, either magnification is used or the photo was taken inside the specified distance. Similarly, despite my observation that paint inconsistency near the towel bar is not visible in the photo taken by Mr. Corallo during the May 2024 conciliation assessment, I find this evidence is also of low probative value because the corresponding report does not apply the 1,500-millimetre standard, nor indicate the assessment was performed from this distance.

112For claim items 32 and 38, I agree that the comparative photos of proper paint application produced by the appellants contrast with the photos of the alleged defects. However, I find the appellants’ position is hindered by their own replacement of cover plates prior to the May 2024 conciliation inspection. In my view, this action frustrates the respondent’s ability to assess the original paint condition when the builder-installed cover plates were in place. Further, section 13(2) of the Act excludes warranty coverage for defects in materials, design, and work supplied by the owner.

113During his testimony, Mr. Cheng corroborated information in the May 2024 conciliation report—and Mr. Carson’s testimony—about replacing the covers and the thermostat. Mr. Carson maintained that the covers supplied and installed by the appellants were a different size, and that the appellants’ replacements exposed unpainted wall that had previously been behind the builder-installed covers. Mr. Cheng countered that the cover replacements do not contribute to the unacceptable paint condition because the wall area behind the outlets should have been painted. I disagree. CPG article 9.9 applies to an “exposed surface” where a painted finish is specified. I take notice that the wall behind an outlet cover is not exposed. Further, the appellants’ evidence does not persuade me that the wall surface exposed after they replaced the cover plates is, in fact, consistent with surface exposed at the time the builder-supplied cover plates were installed. By my observation, the bulk of the paint variances appear to be lines representative of where the painted surface met the cover plates installed by the builder.

114I make a distinction here regarding the thermostat cover plate, which I accept is a builder-supplied material. Mr. Cheng testified that although he swapped out the thermostat dial with help from a family member who is a “master electrician,” the same cover plate was used. However, I am not satisfied that the condition of the paint around the cover, as depicted in the parties’ photos, is indicative of the builder’s workmanship at the time the builder installed it. When I consider the photo produced by the appellants, I find the cover plate would have been removed and then re-installed when the appellants replaced the thermostat dial. Therefore, I conclude the appellants have not shown that the condition of paint finish around the cover is a defect arising from the builder’s workmanship.

115For claim item 57, I reviewed the photos produced by the parties as well as the appellants’ video. I accept the appellants’ evidence establishes paint finish variations that are not attributable to the brush strokes permitted at CPG article 9.9. However, I am not persuaded these variations constitute an unacceptable paint finish because the appellants again failed to establish, on a balance of probabilities, that their evidence depicts the paint surface from a viewing position of 1,500 millimetres as specified at CPG article 9.9. I am satisfied that the video was certainly not at 1,500 millimetres. In my view, this is a close-up inspection that is well inside this distance. When I contrast the appellants’ photos to those taken by Mr. Corallo, I find they appear to be magnified or taken within a closer viewing distance. Although Mr. Corallo did not appear as a witness to provide testimony, I accept the photos included with his report were more likely than not taken from a viewing distance of 1,500 millilitres because Mr. Corallo indicates in his report that the master bedroom closet doors were inspected from this distance. Accordingly, he applies this standard in the analysis he prepared for the May 2024 conciliation assessment report.

116I placed little weight on section 13(1)(a)(ii) of the Act for these claim items because I find the paint variations on wall and trim as depicted in the parties’ evidence do not make the condo unit unfit for habitation when I apply reason and common sense. I also apply my earlier observations pertaining to the testimony of Ms. Liu and Mr. Cheng as well as the “overall family impact” statement they filed [for example, see my analysis at claim item 21].

117When I take this evidence together on a balance of probabilities, I am persuaded that the appellants have not demonstrated a breach of warranty. Accordingly, I have not further considered damages resulting from these claim items as no compensation is payable from the guarantee fund.

Claim item 29: Inconsistent wall trim applied. Aluminum is used instead of black matte ceramic.

118I find the appellants have not established a breach of warranty for this claim item.

119The appellants submit that the outside corner aluminum trim in the main bathroom is an unapproved repair and is inconsistent with ceramic wall trim finishing applied in all other areas of the bathrooms in their condominium unit. They say this contrast in materials present an unfinished look that detracts from the uniform design they expected with a new home purchase.

120The respondent agrees that the tile baseboard in the main washroom was installed with an aluminum edge on the vertical plane of the outside corner to the right of the shower. The respondent submits this is acceptable because the material used for this claim item is consistent with the remainder of baseboard trim materials used in the bathroom.

121I understand this dispute to focus on the materials used as opposed to the installation workmanship. Put simply, the appellants are unhappy that the black matte baseboard trim used elsewhere throughout their home was substituted for aluminum material to mend a gap on one corner of their master bathroom.

122While the bulk of Mr. Cheng’s testimony raised issues with the workmanship of the aluminum trim installation by the builder, I afforded this little weight because the issue raised for conciliation pertained to the materials used by the builder. The issue, as raised in the appellants’ May 2023 one-year statutory warranty form, specifies: “Inconsistent wall trim applied. Aluminum is used instead of black.” When I consider the corresponding conciliation assessment report, I similarly find it is unlikely the appellants raised issues with the builder’s workmanship. The conciliation report says that at the time of the inspection, [Mr. Cheng] reported he ”… was concerned with the aluminum tile edge installed vertically at the outside corner of [the] main washroom to the right of the shower.” In my view, this description is consistent with the issue as articulated by the appellants when they submitted their one-year statutory warranty form and does not relate the workmanship-related concerns voiced at the hearing (i.e., bent and deformed edges and installation gaps between the edging and ceramic baseboard in excess of 1.5 millimetres). As such, I did not consider the appellants’ application of CPG article 10.15 because they did not persuade me it relates to this claim item and because the respondent does not address gaps in the baseboard trim or other aspects of the builder’s installation in its decision.

123Turning then to the material of the trim itself, I am not persuaded that the aluminum edging qualifies as defective because the appellants deem it cosmetically incompatible. I was not pointed to a performance standard in the CPG or otherwise that supported this position. When I look at the photos of the appellants’ bathroom, the top edging on the baseboard appears to be similar to the trim used on the outside corner for this claim item. I find there is consistency in colour and materials. While I am alive to Mr. Cheng’s passion for uniformity in design, I reject aesthetics alone as a reason to find the material is defective. In my view, the builder took a reasonable measure of care to use repair materials that gave the bathroom a consistent look and feel. It attempted to closely match the aluminum trim used in a separate application and Mr. Carson testified that he builder first applied caulking to the baseboard trim, but subsequently installed aluminum edging after being unhappy with cosmetic outcome of the silicone treatment.

124I gave little weight to the comparative photos produced by the appellants because they depict materials and design used in common element washrooms that, by my eye, do not appear to be comparable with the appellants’ unit because they do not feature any baseboard trim where wall and floor tile meet.

125I also did not give a great deal of weight to Mr. Cheng’s testimony about the repair being unauthorized and his disagreement with the methodology of repair. While the appellants rely on an online brochure produced by the respondent to inform homeowners about new condo warranty coverage, Mr. Cheng did not point me to any aspect of the Act or its Regulations that addresses substitutions of materials or a nexus with a warranty breach under section 13(1). The reference to “safeguards against unauthorized substitutions” in the respondent’s publication that Mr. Cheng relied on was explained by Ms. Abreau during cross-examination to pertain to the APS. However, the appellants did not direct me to their APS for evidence concerning their substitution concerns. The appellants did not lead evidence that shows the substitution of aluminum edging in their bathroom contravenes their APS—or any aspect of the Act or its Regulations for that matter.

126I do not apply section 13(1)(a)(ii) of the Act to this claim item. I find that a baseboard trim substitution in one corner of a room does not rise to the level of making the condo unit unfit for habitation when I apply a reasoned and common-sense approach to my analysis. I also apply my earlier observations pertaining to the testimony of Ms. Liu and Mr. Cheng as well as the “overall family impact” statement they filed [for example, see my analysis at claim item 21].

127When I consider this evidence together on a balance of probabilities, I am persuaded the appellants have not met their onus to show a breach of warranty for this claim item. As such, I have not addressed damages.

Claim item 30: The shower water supply is sometimes reduced (for about 30 seconds to one minute) and then recovered.

128I find the appellants have not shown a warrantable defect for this claim item.

129The appellants did not make submissions or lead evidence on the shower water supply in the main bathroom during the hearing. Rather, they addressed the performance of the sink faucet in this bathroom and maintained it was defective as opposed to the water supply. I find the respondent’s May 2024 conciliation assessment report and subsequent decision letter supports this faucet’s performance as the thrust of the appellants’ claim item and have therefore proceeded with my analysis accordingly.

130The appellants submit that the bathroom next to the living room (i.e., the main bathroom) has the “weakest” water flow among all faucets in the unit, and that the low water pressure is a persistent and daily issue that makes washing and cleaning take “significantly” longer. The appellants say that they canvassed this issue with the property manager of the condominium, who related that the building’s overall water pressure is normal and that the low pressure is specific to their unit. The appellants therefore reason that the weak water pressure presents as a defect in the faucet when considered against the performance standard set out in CPG article 6.9.

131To establish damages, the appellants rely on an online quote from a retailer for two comparable faucets that totals $1,191.02 including tax at $696.00 per faucet. When the index is applied, the appellants request a total of $1,194.45 in compensation from the guarantee fund. I note too, however, that the estimate from Fix-it-Friend Handyman adds another $380.00 to install two bathroom faucets. For clarity, the appellants seek to replace not just the faucet in the main bathroom, but also in the master ensuite.

132The respondent argues that this claim item is beyond the scope of the statutory warranty because CPG article 6.1, which deals with inadequate water supply, provides that water supply from municipal sources may vary with supplied pressure.

133I accept that the flow rate of the main bathroom faucet is slower than the others tested by the appellants. The videos in evidence compare the amount of time it takes to fill a 500-millimetre container with water from various faucets throughout the house. In my view, the faucet in the master bedroom ensuite (which the appellants refer to as the “main” bathroom in the video) was a relevant comparable because it appears to be the same fixture as the faucet in the main bathroom, which the appellants describe as the “guest” bathroom in the video. The ensuite faucet discharged 500 millimetres of water in 17 seconds. The main bathroom faucet, however, took 30 seconds to discharge the same volume.

134However, I am not satisfied that this comparative test shows the main bathroom faucet is defective. The specification sheet for this faucet specifies a maximum flow rate at 60 pounds per square inch (“psi”). However, the appellants did not establish, with evidence, whether they are receiving 60 psi at the main bathroom faucet to achieve the maximum flow rate. While the January 2024 work order from Hart Pump details various psi settings that range between 85 and 45 throughout the condominium building, the appellants did not specify which of these settings, if any, apply to their unit. Accordingly, I do not conclude that the main bathroom faucet is out of spec (i.e. defective) because it takes 30 seconds to discharge 500 millimetres of water. It follows then, that the appellants have not shown that the faucet is performing outside the standard set out at CPG article 6.8, which provides that plumbing fixtures, appliances or trim fittings shall be free of both visual and performance defects.

135I would point out here too that CPG article 6.8 says damage resulting from improper maintenance is excluded from the statutory warranty. While I find Mr. Carson’s testimony about gasket maintenance was of little importance because I was not presented with evidence of leaks from the faucet, I did place some weight on the May 2024 email from Ms. Artinian that was produced by the appellants. This email notes that “many” residents had resolved the water pressure issues in their units by replacing the aerator or cartridge in their faucets, which is part of homeowner maintenance. This resolution is echoed more than a year later in a June 2025 letter from Ms. Artinian that says similar complaints of water pressure fluctuation and weakness in the condo building had been resolved through cartridge replacement. Given that the appellants did not point to evidence that excluded cartridge replacement as a remedy to the slower flow rate of the main bathroom faucet, I find their position on a warranty breach for this claim item is further diminished and falls short of meeting their onus.

136I do not apply section 13(1)(a)(ii) of the Act to this claim item. Like Mr. Cheng’s affidavit evidence, Ms. Liu testified that the water pressure coming from the faucet is so weak that it takes her three to five times longer to brush her teeth and wash her face. She added that it wastes her time waiting for water and makes this daily routine ‘tiring and difficult.” While I accept the appellants feel inconvenienced and frustrated by the rate of water flow from the main bathroom faucet, I am not satisfied that this rises to the level of depriving them from occupying or enjoying their condo unit as a whole.

137When I consider this evidence together on a balance of probabilities, I am persuaded the appellants have not met their onus to show a breach of warranty for this claim item. As such, I have not addressed damages.

Claim item 31: Aluminum trim is not tightly fitted at joints and edges.

138I find the appellants have not established a breach of warranty for this claim item.

139Like claim item 30, I find there is a discrepancy between what the claim involved at the time it was raised on the statutory one-year warranty form and what was addressed at the time of the conciliation assessment. The appellants articulate this claim item as “aluminum trim is not tightly fitted at joint and edges” on their one-year form. However, the respondent’s conciliation assessment report indicates the appellants raised different issues during the inspection, namely that instead of filling the gaps with silicon as originally planned, the builder had replaced the defective section of trim without permission and with materials that did not match the original trim. To confirm, the appellants focused on these latter issues at the hearing as well.

140Given that the respondent proceeded to assess the consistency of the trim material used to remedy joint gaps and issued a decision on this basis, I have proceeded in my analysis accordingly.

141To my understanding, the thrust of the appellants’ argument on this claim item during the hearing is that the builder installed an unauthorized trim replacement with materials that are different in size, colour, and composition than the original trim installed in the bathroom—and throughout the rest of their unit and the condo building for that matter. The appellants seek compensation in the amount of $414.28 and rely on a quote for an online retailer to support these damages.

142The respondent’s decision letter says the replacement trim was an acceptable repair because it was observed to be the same colour and material as the rest of the tile edge in the room.

143I afforded little weight to Mr. Cheng’s testimony about trim overlap behind the toilet. This is because he did not produce evidence that demonstrated this was raised to the respondent at the time of conciliation or inspected as part of the assessment. The respondent’s conciliation assessment report and decision letter speak only to the trim replaced along the wall to the right of the toilet. I find this is the same area of trim identified by the appellants when they made their one-year warranty claim. During the hearing, Mr. Cheng pointed to a photo he alleges to have submitted with his one-year claim that depicts a gap in the original aluminum trim. To my eye, this is the corner junction of the trim along the wall to the right of the toilet (i.e., the same area inspected by the respondent at conciliation and not behind the toilet as raised at the hearing). Given that section 14(14) of the Act provides an avenue to appeal only a decision made by the respondent—and the lack of evidence to show the respondent even contemplated a decision about trim overlap behind the bathroom toilet or elsewhere—I find this aspect of the appellants’ argument is outside the scope of the claim item and therefore not properly before the Tribunal.

144The appellants did not point to an objective performance standard in the CPG or elsewhere that shows the replacement trim is defective because it is not the same as the original. The appellants did not point to their APS or elsewhere to establish that the builder was required to replace the original trim with the same product. And while I accept the bulk of the evidence establishes the replacement trim is not the same product as the original—not the least of which being Mr. Carson’s testimony that conceded the builder used a different replacement trim—I disagree this means the replacement trim is incompatible and therefore a breach of warranty. Indeed, I find the two trim styles are reasonably consistent in colour and appearance when I consider the photo evidence produced by the parties. In my view, both trims visually present with an aluminum finish. The “grey lines” on the replacement trim that Mr. Cheng referenced are not readily apparent to me, nor are the differences in edging style (i.e., rounded versus flat).

145To be clear here, I am not saying these differences do not exist. Nor am I minimizing their importance to Mr. Cheng as a design professional. I am only pointing out that the inconsistencies raised by Mr. Cheng do not, in my view, rise to the level of being incompatible with one another—and certainly do not present as defects in absence of any objective standard that contemplates cosmetic compatibility performance between different materials. This goes as well for the width variance between the replacement and original trim, which amounts to just half a centimetre according to the appellants’ measurements. To agree with the appellants, I would essentially have to ignore the well-established principle that the standard of repair is not perfection, but what is reasonable [see, for example: Goulet, [2000] OCRATD No. 51; and 9946 v. Tarion, 2016 CanLII 36788].

146When I consider the appellants’ claims that the builder’s repairs were unauthorized—meaning that the appellants did not agree with or consent to the builder’s repair methodology—I find they have little merit.

147Mr. Cheng pointed to Registrar Bulletin No. 4 (the “Bulletin”), issued by the respondent on February 1, 2021, to show a builder must resolve warranted items by either: (1) repairing the item in a manner that satisfies the warranty obligation (i.e., the obligation goes beyond simply completing the repair); or (2) arranging an alternate resolution that is acceptable to the homeowner.

148For the first point, I reiterate here that I find the builder repaired the trim gap in a way that satisfies the warranty obligation, and further, that builders generally have a right to resolve warranted items by properly repairing or replacing items during the statutory repair periods prescribed by the Act and its Regulations. While I agree it is good in principle for homeowners and builders to be on the same page with repair methodology, I disagree that the Bulletin speaks to a requirement for builders to adopt the homeowners preference or otherwise obtain consent on methodology before making repairs in order to be proper and fulfil warranty obligations. I would add here too that the appellants did not establish such a requirement exists in the Act or its Regulations either.

149On the second point, the Bulletin provides that a builder may arrange an alternate resolution with the homeowner if that solution is documented by a written waiver from the homeowner that acknowledges the claim item is withdrawn from the warranty process. I find the appellants did not do this and therefore cannot claim relief from repairs conducted by the builder that they disagree with, or that they say are unauthorized.

150I do not apply section 13(1)(a)(ii) of the Act to this claim item. While I recognize that Mr. Cheng characterized this claim item as a “painful process” that left him “heartbroken” and “angry,” I find that his feelings towards the claims process and the builder bear little on whether his home is fit for habitation. Put differently, I was not pointed to evidence that shows the appellants’ feelings about this claim item caused a loss of occupancy or meaningful use of the bathroom that extends to deprive them of enjoying the condo unit as a whole.

151When I consider this evidence together on a balance of probabilities, I am persuaded the appellants have not met their onus to show a breach of warranty for this claim item. As such, I have not addressed damages.

Claim item 34: The shower wall is not flat (with ceramic tiles).

152I find the appellants have established a breach of warranty for this claim item.

153For context, this claim item was assessed on several occasions, including the first conciliation in May 2024 as well as one performed on July 22, 2024 and then on August 9, 2024. Ms. Abreau’s testimony confirmed that the first two inspections concerned the application of CPG article 3.2 to the appellants’ claim, and that the third assessment was to assess this claim item against CPG article 12.32. My analysis pertains specifically to the decision taken by the respondent at the August 2024 conciliation because, per the decision letter, it was at this point the appellants clarified their concern was not about the wall being flat (i.e., bowed), but rather that the tiles were not sitting flush. Mr. Cheng confirmed at the hearing that the scope of his appeal on this claim item was limited to CPG article 12.32, which he relied on to prove a warrantable defect and characterized as a “more reasonable methodology” than the application of CPG article 3.2 during the first two conciliation assessments. I have conducted my analysis accordingly.

154The standard set out in CPG article 12.32 reads as follows:

“Adjacent marble units and/or adjacent ceramic tiles shall be installed generally flush, taking into account the texture and intended aesthetic application of the finished surface. Tile installations not meeting the acceptable performance shall be repaired.”

155During the hearing, Mr. Cheng testified that the measurements he took to determine whether the tiles sat generally flush were more scientific and should therefore carry more weight. By this, he meant that he had consulted and applied the methodology at CPG appendices 4, which pertains to measuring variation from the specified plane using a plane of reference. I agree that applying CPG methodology to assess CPG article compliance will most likely produce the most reliable results.

156I find Mr. Cheng’s measurements to be persuasive. The photos he submitted for the hearing demonstrate he applied the CPG methodology. In those photos, I can visually discern that the bottom length of the left wall tile does not follow a parallel plane with the edge of the shower base (i.e., the reference plane). It moves inward from the outside corner of the shower enclosure. The bottom of the narrower right tile also moves inward along the shower base, but from the inside corner. The effect is that of a peak where the two tiles meet as opposed to a flat surface. Put differently, the two tiles jut from the wall, forming the apex at their junction.

157Mr. Cheng testified that he measured three spots along the wall at the shower base: the outside corner where the glass door is located, the inner corner, and the apex of the jut. I accept that those measurements, all in millimetres at 25.5, 24.0, and 18.5, respectively, are consistent with the photo evidence. It follows then, that I agree with Mr. Cheng’s assessment of the variance from the reference plane as being between seven and five- and a-half millimetres.

158In contrast, I find the respondent’s evidence on this claim item is not reliable.

159There was considerable confusion during Ms. Abreau’s examinations as to which measurement photos pertained to the August 2024 conciliation assessment, whether Ms. Abreau attended the August 2024 conciliation assessment, and at what point the respondent assessed CPG article 12.32.

160To my understanding, Ms. Abreau testified that the inspection photos at page 128 of Exhibit 2 were taken during the initial conciliation assessment (i.e., May 2024) to determine the degree of wall bowing per CPG article 3.2. However, I find these photos were attached to the August 2024 conciliation assessment report, which assessed CPG article 13.32. Despite indicating that she was unsure of “what they were doing [in the photo],” Ms. Abreau later testified that these same photos at pages 128, 129, and 231 of Exhibit 2 were the “correct photos of the inspection she was at,” adding that she attended the conciliation assessment in August 2024. I find this is unlikely and accept Mr. Cheng’s recollection that she was not present. While Ms. Abreau’s name appears as an attendee alongside Mr. Ernest Spadafora (warranty services representative) in the July 2024 conciliation assessment report, only Mr. Spadafora’s name is listed as a Tarion representative in the August 2024 conciliation report.

161Ms. Abreau further testified that she was present when measurements were taken to assess whether the tiles were flush under CPG article 12.32, and that those measurements determined a reference plane variance of two millimetres. She explained that the photo at page 157 of Exhibit 2 is a close-up view of this measurement being taken. I find there are several inconsistencies with this testimony. First, the only reference to the respondent’s contemplation of CPG article 12.32 compliance is in the August 2024 conciliation report and I am not persuaded that Ms. Abreau attended this assessment. Second, the close-up photo referenced by Ms. Abreau does not appear as part of the August 2024 conciliation report and therefore cannot relate to CPG article 12.32. For that matter, the photo does not even appear as part of the report that corresponds with the July 2024 conciliation assessment, which is the only conciliation assessment that I accept Ms. Abreau attended. The photo is, in fact, attached to the May 2024 conciliation report, which assesses compliance with CPG article 3.2 and not CPG article 12.32.

162Given all these discrepancies, I place no weight on the respondent’s evidence pertaining to this claim item. Even if I did assign weight to the measurement taken by the respondent in August 2024, I would still prefer Mr. Cheng’s measurement because he used the straight edge of a fixed object that spanned the entire length of the adjacent tiles as his reference plane, which is not evident in any of the photos of measurements taken by the respondent. In my view, Mr. Cheng’s approach is better suited to assess whether the tiles are generally flush per CPG article 12.32 because it provides a more accurate measurement of the reference plane variance.

163Turning back then to the applicability of Mr. Cheng’s measurement to CPG article 12.32, I find there is no specific variance dimension that informs the compliance threshold. Rather, CPG article 12.32 speaks only to adjacent tiles being “generally flush” as the performance standard and the appellants argue that a seven-millimetre variance does not constitute generally flush. I agree. The measured variance is visibly discernible in the photos, so I conclude this is inconsistent with adjacent tiles that are generally flush. The respondent relies on the 15-millimetre allowable variance set out in CPG article 3.2 to inform compliance under CPG article 12.32, arguing that there is no defect because the appellants’ measurements fall within the permitted range. However, I reject the rationale that CPG articles 3.2 and 12.32 relate in this manner because Ms. Abreau testified during cross-examination that wall bowing and non-flush tiles are two different complaints, and that this was why both CPG articles were applied.

164When I take all this evidence together on a balance of probabilities, I find the appellants have shown a breach of warranty for this claim item.

165For damages, I order compensation in the amount of $2,380.00 from the guarantee fund. The appellants rely on a November 2025 estimate prepared by a tile installer in the amount of $4,760.00 that was not indexed by the appellants. While I accept the scope of work appears consistent with the types of activities associated with tile repair and replacement in a shower enclosure, I was not pointed to the details the appellants provided to the installer to inform the scope of the project. For example, the estimate does not include the tiles or specify the number of tiles required, so I do not know, as fact, if the estimate contemplates re-tiling the whole shower or repairing just the two adjacent tiles that do not sit generally flush. I also considered that the appellants did not establish the tile installer visited the appellants’ condo to verify the scope of work, or even whether photos of the defect were shared by the appellants.

166While these factors diminish the persuasiveness of the appellants’ claim for damages, I find they do not extinguish it entirely. It remains that the Act is remedial legislation intended to protect the consumer, and the appellants have established they suffered damages, albeit not to the full extent they propose. As such, I find it reasonable to discount the requested damages by 50 per cent.

Claim item 40: A hole in the cabinet close to the microwave.

167I find the appellants have not shown this claim item is a breach of warranty.

168The appellants submit that several visible holes in a “prominent and high-use location” on the wall beside the microwave are defects. They also seek to address, as part of this claim item, multiple other screw holes and plugs in kitchen cabinetry discovered as part of claim item 58 during the May 2024 conciliation assessment despite this claim item not appearing in the decision letter. I agree to do so per section 14(14)of the Act, given that the conciliation assessment report establishes the respondent analyzed and arrived at a decision on claim item 58.

169Concerning all the screw holes and plugs that form the basis for claim items 40 and 58, the appellants assert that the texture and finish of the plugs installed by the builder do not match the surrounding black surfaces of the cabinetry and create an unfinished and inconsistent appearance. The appellants say the plugs do not comply with CPG article 9.8, which requires surfaces to be smooth. The appellants seek to replace the sides of the microwave cabinet surround at an indexed cost of $1,057.33, which the appellants say is the proportional share of a $2,800.00 (plus tax) estimate obtained in March 2025 to purchase new kitchen cabinetry. The appellants did not lead evidence of damages pertaining to screw holes and plugs at claim item 58.

170The respondent argues that it inspected the screw cap covers on the kitchen cabinets and deemed them acceptable because they were colour-matched and standard practice.

171When I consider the parties’ photo evidence in concert with Mr. Cheng’s testimony, I accept that the microwave cabinetry surround has machined holes on both sides of the interior surface, and that these holes have plugs inserted into them. I disagree, however, that the holes or plugs are defects. The May 2024 conciliation assessment report indicates the holes are for screws and the appellants did not lead evidence that persuades me otherwise. I accept Mr. Carson’s testimony that the screw holes and plugs are standard items that form part of the cabinet design. I thereby conclude that machined holes in cabinetry to accommodate screws are deliberate features to be expected and do not constitute a defect. As well, I agree with the observation in the conciliation assessment report that the plugs are colour matched to the cabinetry when I consider the photos produced by the parties. While the material used to fashion the plugs may not be wood-like, I find the appellants have not shown that the plug material is incompatible on this basis. Further, the surface of the plugs themselves appear to be uniformly smooth in the photo, which I find complies with the performance standard at CPG article 9.8 regardless of whether the inside cabinetry is touched during normal use or not. I place no weight on the lack of analysis pertaining to CPG article 9.8 in the respondent’s reporting because the respondent does not bear the onus of proof.

172I do not apply section 13(1)(a)(ii) of the Act to this claim item. I find that screw holes and plugs incorporated into interior cabinet finishes do not rise to the level of making the condo unit unfit for habitation when I apply a reasoned and common-sense approach to my analysis. I also apply my earlier observations pertaining to the testimony of Ms. Liu and Mr. Cheng as well as the “overall family impact” statement they filed [for example, see my analysis at claim item 21].

173When I consider this evidence together on a balance of probabilities, I am persuaded the appellants have not met their onus to show a breach of warranty for this claim item. As such, I have not addressed damages.

Claim item 41: The dishwasher bottom rack doesn’t align well and it often hits the sides when in pulled-out position.

174I find the appellants have established this claim item is a breach of warranty.

175The appellants submit that the bottom rack of their dishwasher frequently hits the left side of the track and becomes misaligned when loading or unloading items. They attribute this to the dishwasher not being level, which they assert is a warrantable defect in the builder’s workmanship.

176Similar to claim items 16 and 50, the respondent argues that household appliances are not typically part of the home and are therefore ineligible for warranty coverage under the enumerated items in section 13(1) of the Act.

177When I consider the appellants’ home video and photo evidence in concert with their testimony, I am persuaded these exhibits harmonize to establish the builder’s installation of the dishwasher was most likely not completed in a workmanlike manner. The photos of the front panel depict irregular spacing gaps between the adjacent cabinetry that suggest the dishwasher is not level. This is reinforced in the video, which shows the left side of the front panel is physically rubbing against the adjacent cabinetry when being closed. Ms. Liu testified that the dishwasher rack gets stuck when loading or unloading items, causing her to continually re-align the rack during each use. I accept this is symptomatic of a dishwasher that is not installed level side-to-side.

178I find the bulk of the instructional video filed by the appellants, which was created by a major appliance OEM that includes dishwashers in its product line, addresses front-to-back levelling issues that cause the rack to roll out of the dishwasher on its own when the door is opened. This is not what the appellants describe, or what is depicted in their home video. However, I find the instructional video nevertheless has probative value insofar that it describes the type of door-to-cabinet rubbing depicted in the appellants’ home video as a levelling issue and confirms an unlevel dishwasher is an installation issue not to be confused with a defect in the appliance itself. I prefer this evidence to Mr. Carson’s testimony that installation issues would not cause the symptoms associated with this claim item. This is because Mr. Carson also related he was unaware of any dishwasher installation issues in the appellants’ condo unit and had not looked at it because appliances are not warranty items. As well, I am satisfied that the video informs the scope of work required to level the dishwasher, given that Mr. Cheng testified that the dishwasher in the condo unit was made by the same OEM that produced the video.

179I do not place full weight on Ms. Abreau’s testimony that the respondent cannot conclude this claim item arises from anything other than normal wear-and-tear on the basis it was not reported during the PDI or 30-day inspections. The evidence establishes that while the appellants took possession of their home in May 2023, they did not occupy it until July 4, 2023—four days after they performed their 30-day inspection. As such, I do not think it is reasonable to conclude that the symptomology associated with this claim item would have been apparent to the appellants at the time of their PDI and 30-day inspection because it is not likely they would have operated the dishwasher at that point. This makes normal wear-and-tear an unlikely reason for the bottom rack alignment issue when considered in the context of Ms. Abreau’s testimony.

180I find this claim item is distinguishable from claim items 16 and 50, where I found the appliances to be ineligible for new home warranty coverage because they were decidedly not appurtenances. While I similarly agree that dishwashers do not qualify as appurtenances from the perspective that they are not attached to land, I considered too that dishwashers are more likely to go with the property when sold because their installation tends to be built into surrounding cabinetry. This is made out in the instructional video, where one of the steps involves physically securing the dishwasher to the underside of the countertop with several screws. In the appellants’ case, I note from the photos that the front door of the dishwasher is outfitted with a cabinetry surface to seamlessly blend in. In my view, this signals that the dishwasher is intended to stay as part of the home and disqualifies it as a chattel.

181While I recognize this is perhaps a broad and liberal interpretation of an appurtenance, I am satisfied that the case-specific facts colour the dishwasher as more of an appurtenance than a chattel, and that the remedial nature of the Act requires the Tribunal to not be rigid and restrictive in its analytical approach [see, for example: para 59 of Liddiard v. Tarion Warranty Corporation, 2009 CanLII 65801 (ON SCDC)]. Further, I find this claim item relates directly to the workmanship of the builder’s installation, which falls squarely under the enumerated warranties provided at section 13(1) of the Act.

182When I take all the evidence together on a balance of probabilities for this claim item, I find the appellants have established a breach of warranty.

183For compensation, I order a payment of $283.31 from the guarantee fund. The appellants produced a March 2025 estimate of $250.00 from Fix-it-Friend Handyman for this claim item and applied the index. I considered that this contractor did not physically visit the appellants’ condo unit to verify the scope of work and provided scant details about the scope of work informing the proposed repair cost. However, I nevertheless accepted the estimate as sufficient evidence of damage because the limited scope of work it does provide—that the dishwasher will be disconnected, levelled , and reinstalled—is consistent with the levelling process demonstrated in the OEM’s installation video.

Claim item 44: Part of the living room ceiling is not in 9 feet high.

184I find the appellants have not demonstrated a breach of warranty for this claim item.

185The appellants submit that a portion of their ceiling in the living room and front hallway measures about eight feet high, which is lower than the “advertised” nine-foot ceilings. The appellants also submit that the balcony ceiling height—measured from the concrete base to the concrete ceiling—is approximately 9.5 feet high, which demonstrates that the builder had enough interior space to accommodate a ceiling height of more than eight feet.

186While it is clear to me that the respondent’s position is that a bulkhead encroachment on ceiling height is not a breach of warranty in this case, the basis for this position is not clear. The decision letter relies on Schedule B of the APS to show that ceiling height details are approximate and subject to change without notice. However, Ms. Abreau testified that the respondent relies “totally” on Schedule A of the APS to show ceilings should be nine feet in height except where there are bulkheads. Given that these aspects of Schedules A and B are compatible and essentially amount to the same thing in the context of this claim item, I accept that the respondent relies on both for the purpose of my analysis.

187I find the persuasiveness of the appellants’ position on this claim item is hindered by a misapprehension of onus. Throughout his testimony and witness examinations, Mr. Cheng emphasized that neither the respondent nor the builder had demonstrated that bulkheads were required. This is further emphasized in Mr. Cheng’s June 2024 email to the respondent, where Mr. Cheng contends “[t}here is no proof to support that bulkheads are needed/necessary to install in those areas by material fact (comply with building site, municipal/vendor requirements. etc.).” While Mr. Cheng testified that the APS says changes can only be made if required to comply with the OBC—and therefore reasons that the onus is on the builder to show the change was made for this purpose—it remains that the Act puts the onus squarely on the appellants to prove their claim and not the other party (i.e., the respondent).

188In terms of evidence the appellants produced to meet their onus, I find the annotated photos and diagrams of the unit, while certainly helpful to establish the degree to which the lower ceiling intrudes on their living space, are of little probative value to prove this claim item is warrantable. The parties do not dispute the fact that the ceiling where the bulkhead is installed is less than nine feet high.

189Rather, I am persuaded by provisions of the APS that speak to ceiling height. For example, the feature list at Schedule A to the APS provides for “[c]eiling heights of approximately 9’ (excluding areas with dropped ceilings and bulkheads).” I find too that Schedule G to the APS informs my analysis because section 6 stipulates that the appellants acknowledge and agree that the builder may alter elements of the condo unit as illustrated at Schedule B to the APS to insert or add items like bulkheads without limitation. When I consider the other relevant parts of Schedule G and read all these provisions harmoniously, I disagree with the appellants’ position that the fine print at Schedule B of the APS is incompatible, says something different, or supersedes any other part of the APS. That fine print specifies that “[a]ll details are approximate and subject to change without notice in order to comply with building site conditions and municipal, structural, and [v]endor and/or architectural requirements.” In my view, this fine print is consistent with the rest of Schedule G, which confirms that “[a]ny reference to ceiling heights in [the APS] or the [attached] Schedules shall mean the approximate height from unfinished floor slab surface to unfinished ceiling slab surface and such heights will be reduced by sound attenuation features, finishes of floors and ceilings and installations such as bulkheads, etc.”

190Even if I were to accept that the builder required justification to add bulkheads in areas of the condo unit where they were not specified, I would still find no breach of warranty. The bulkhead photos in evidence depict venting grates, safety alarms, and circular installations that Mr. Carson described as fire sprinklers. In my view, these are all necessary mechanical functions and the placement of such items in other condo units within the appellants’ building weighs little on whether the ceiling height in the appellants’ unit is defective.

191I decline to apply the Consumer Protection Act, 2002, S.O. 2002, Chapter 30 Schedule A (the “CPA”) to this claim item as proposed by the appellants. At the hearing, Mr. Cheng indicated that I should interpret the APS ceiling height provisions 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.

192Turning then to whether the lower ceilings render the unit unfit for habitation, I considered Ms. Liu’s testimony that despite modifying her exercise routine, she constantly worries about hitting the ceiling in an upward motion because of the lower height. I also considered Mr. Cheng’s sworn testimony, which essentially mirrored that of Ms. Liu. I am not persuaded that this evidence supports a warranty breach at section 13(1)(a)(ii) of the Act. I accept the appellants are dissatisfied with the ceiling height, but find they are still able to exercise with some modifications which suggests they are not completely deprived of enjoying this activity. While the appellants are not required to show that other areas of their condo without bulkheads are unsuitable for exercise, it remains they did not. As such, I conclude that their diminished enjoyment of the living space they prefer to exercise in does not deprive them of enjoying the rest of their condo unit.

193When I consider this evidence together on a balance of probabilities, I am persuaded the appellants have not met their onus to show a breach of warranty for this claim item. As such, I have not addressed damages.

Claim item 46: The closets’ doors are aligned with the wall vertically. Either the closet doors or the wall aren’t straight.

194I find the appellants have not met their onus to show a breach of warranty for this claim item.

195The appellants submit that the top and bottom of closet doors in both bedrooms and at the hallway entrance are misaligned because they are not vertically parallel with the adjacent walls. For damages, the appellants request an all-in payment of $480.00 to adjust each of the four misaligned closet doors using existing hardware, or alternatively $3,166.65 in the event the walls need to be made square as part of the scope of work.

196The respondent argues that it inspected the sliding closet doors of all the bedrooms and observed minor gapping caused by the trim used at the base of the closet door jambs. The respondent maintains the doors were installed in a workmanlike manner and that no defects were observed.

197The appellants have not met their onus. In saying so, I accept that the video evidence shows a gap at the top of the closet door featured by the appellants. Similarly, the measurement photos taken by the appellants show the same type of gaps. This is not surprising, given that I can discern in most of the photos that the builder installed baseboard trim along the closet wall at the openings of the sliding doors.

198Despite these gaps, neither party pointed me to an objective performance standard in the CPG or otherwise to inform my analysis of this claim item. Mr. Cheng acknowledged this in his testimony, saying that he did not see an objective measurement and instead relied on visual inspection to provide an evidence-based argument.

199In my view, it is not sufficient for Mr. Cheng to point to areas of construction with which he is dissatisfied and expect the Tribunal to conclude that workmanship is defective simply because he alleges it is so. There must be some objective evidence before the Tribunal defining the industry standard—whether that be the CPG, OBC, the OEM recommendations, or the Canadian Standards Association (the “CSA”)—and identifying the manner in which the complaint falls below that standard. Where the appellants fail to point to any of these sources—or any other industry standards for that matter—to support their claim, I find they are unable to meet their onus. As such, I find Mr. Cheng’s testimony falls short of establishing that the builder’s workmanship is defective because the closet installations in each bedroom are not consistent with one another.

200I do not apply section 13(1)(a)(ii) of the Act to this claim item. I find that closet doors not sitting fully flush with the wall in the closed position does not rise to the level of making the condo unit unfit for habitation when I apply a reasoned and common-sense approach to my analysis. I also apply my earlier observations pertaining to the testimony of Ms. Liu and Mr. Cheng as well as the “overall family impact” statement they filed [for example, see my analysis at claim item 21].

201When I consider this evidence together on a balance of probabilities, I am persuaded the appellants have not met their onus to show a breach of warranty for this claim item. As such, I have not addressed damages.

Claim item 47: The kitchen sink bottom surface isn’t angled properly to drain water from the sink edges to the center of the sink.

202I find the appellants have not shown this claim item is a breach of warranty.

203The appellants submit that water collects along the edges of the sink installed in their kitchen, which constitutes a warrantable defect because it does not comply with CPG article 6.9.

204The respondent argues that it inspected the kitchen sink and observed, with the water turned on, water flowing towards the drain with no visible defects in the sink or its installation. The respondent maintains the sink operated as intended.

205The thrust of the appellants’ argument on this issue is that the sink is defective because it has a faulty design that causes water to accumulate in the corners of the sink. As such, they want it replaced. But I am not persuaded that the evidence supports this position. When I consider the photos produced by the parties, I discern scant evidence of water accumulating along the sink edges. While I agree areas of the sink, including the corners, appear wet in most of the photos, I do not see evidence of water being trapped, per se, along the edges of the sink by my eye.

206Further, I am persuaded that water accumulation along the edges that may occur during and after use will drain from the sink, albeit perhaps more slowly than the appellants would like. The May 2024 conciliation report indicates the respondent investigated the appellants’ concerns about water on the edge of the sink not flowing to the center because of an improperly angled bottom surface. The observation made at the time was that water flowed towards the drain when the faucet was engaged. Mr. Carson, who was present at that assessment, corroborated this observation during his testimony. While Mr. Carson went on to specify that he did not see the “ponding” described by Mr. Cheng during the assessment, I assigned little weight to this evidence because Mr. Carson allowed that he did not inspect the corners. However, I accept the corners were most likely inspected by Mr. Corallo and Mr. Spadafora because their report indicates they were alive to this concern and do not mention water accumulating along the sides of the sink, which is supported by the photos they included with their report.

207I also grappled with the June 2023 letter in evidence for this claim item, which Mr. Carson testified is from the sink OEM. I find it does not support the appellants’ claim that the design of the sink is faulty. Rather, it explains the design aspects that cause it to drain water more slowly:

“Due to square sinks being handmade, as per their design, they will generally have flat bottoms when compared to pressed sinks which will have a greater curve bottom. The flat bottom on square sinks cause water to drain slower which is why we have crease cuts into the bottom of the sink to aid in draining speeds.”

208I find the OEM’s explanation combines with the photos in evidence and the respondent’s reported observations to diminish the persuasiveness of Mr. Cheng’s testimony that there is always water remaining at the edge of the sink owing to a design defect. I therefore conclude from this that the sink complies with the first standard set out in CPG 6.8 because it is free of performance defects.

209I also conclude the sink complies with the second standard set out at CPG 6.9, which is that it must be free of visual defects. While Ms. Liu testified that the sink never looks fully clean because the sink’s square edges easily trap dirt around the corners and cause stains to accumulate, I find the photos of the sink do not substantiate her observations. I was not pointed to evidence of staining or dirt along the edges and did not see any in the photos. To my eye, the sink appeared clean.

210I do not apply section 13(1)(a)(ii) of the Act to this claim item. I find that the mere inconvenience of having to maintain a sink that perhaps requires a higher level of care and attention to keep clean does not rise to the level of making the condo unit unfit for habitation when I apply a reasoned and common-sense approach to my analysis.

211When I consider this evidence together on a balance of probabilities, I am persuaded the appellants have not met their onus to show a breach of warranty for this claim item. As such, I have not addressed damages.

Claim item 49: Excess glue material on the window door latch.

212I find the appellants have not shown this claim item is a breach of warranty.

213The appellants submit that they can see a “small” amount of excessive white adhesive along the edge of the balcony door frame each time it is opened. The appellants maintain that this is a constant reminder of poor finishing because the white colour stands out sharply against the surrounding metal components of the door. The appellants rely on CPG 9.8 to show this glue is a warrantable defect.

214The respondent argues that this 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 this item if reported by the condominium corporation.

215Unlike claim item 14, I find the respondent cannot rely on the rationale in its decision letter, which is that this claim item is outside the scope of this appeal because it is a common element. This is because I am satisfied that it assessed and rendered a decision on the warrantability of this claim item at the time it performed its conciliation, thereby providing an avenue of appeal to the appellants per section 14(14) of the Act. The analysis of the respondent in its report, which is devoid of any mention of whether the claim item pertains to a common element, reads as follows:

“At the time of the inspection, Tarion inspected the sliding door to the balcony in the open position and observed glue had been used around the lock mechanism of the door to ensure proper water seal. Tarion further observed that the glue was not visible with the door in the closed and/or locked position and the glue does not adversely effect the operation of the door. Tarion found no defect in workmanship and materials and therefore, Tarion finds this item not warranted”.

216When I consider the testimony of Mr. Cheng, I find the appellants have again confused onus. Mr. Cheng testified that he disagrees that the glue is for water sealing. However, his rationale for this position is that the respondent provided no proof to support its opinion. For Mr. Cheng to support his opinion, I find he needed show the glue is excessive and not intended as a proper water seal. He did not do this.

217I disagree that CPG article 9.8 is relevant to this claim item because the appellants did not show me how a small amount of glue on the strike plate of a sliding door relates to whether a surface is smooth or appears to be smooth. Put differently, the appellants did not lead evidence to establish how the excess glue does not comply with CPG article 9.8. Mr. Cheng simply testified that the glue was similar in concept to claim item 40 and that the standard should be uniformly applied. I find this is insufficient to meet his onus without specifying the characteristics of the glue that he believes are at odds with the standard.

218I placed little weight on the appellants’ application of 5610 to this claim item. The appellants rely on 5610 to show that Tarion accepted a front door replacement as a warranted item because of the builder’s failed efforts to repair it. But I do not see how 5610 is contextually analogous because, unlike this claim item, a door became loose on its hinges after the builder replaced it and almost fell off. For this matter, the appellants are not alleging the glue resulted from repairs by the builder. In fact, Mr. Carson testified during cross-examination that the glue was applied at the time of original installation. The appellants are not claiming that the glue interferes with the function of the door and the respondent confirmed the glue did not adversely affect the operation of the door at the time of conciliation. The appellants are voicing only cosmetic concerns arising from what I understand they perceive as sloppy workmanship. This is remarkably different from the circumstances that led Tarion to apply a warranty to a door in 5610, and I therefore find 5610 does not assist in establishing whether the excess glue on the door constitutes a breach of warranty.

219I do not apply section 13(1)(a)(ii) of the Act to this claim item. I find that visible glue on the strike plate of a sliding door does not rise to the level of making the condo unit unfit for habitation when I apply a reasoned and common-sense approach to my analysis. I also apply my earlier observations pertaining to the testimony of Ms. Liu and Mr. Cheng as well as the “overall family impact” statement they filed [for example, see my analysis at claim item 21].

220When I consider this evidence together on a balance of probabilities, I am persuaded the appellants have not met their onus to show a breach of warranty for this claim item. As such, I have not addressed damages.

Claim item 51: The toilet flush buttons are loose.

221I find the appellants have not shown this claim item is a breach of warranty.

222The appellants submit that the flush buttons on their toilets are “loose and unstable,” which makes them feel unreliable during use. The appellants point to CPG article 6.9 to show the loose flush buttons are a warranty breach because they constitute a visual defect. The appellants seek two new toilet tanks at a cost of $212.42 each. The appellants justify replacing the tank of each toilet on the basis that the flush buttons are not a “common part” and that the toilet make and model is unknown.

223The respondent argues that it inspected the flush mechanisms at the top of each toilet within the unit and observed the toilets operated as intended. The respondent submits it did not observe any defect in workmanship and materials.

224While I agree the video evidence shows the flush buttons on top of the ensuite and main bathroom toilets have play in them, I am not persuaded that this constitutes a warrantable defect in materials or workmanship. I see no visual defects in the flush buttons. The appellants did not show me that the stiffness of the buttons to the touch relates to visual performance. Further, Mr. Cheng agreed in his testimony that the flush buttons do not have performance defects and the appellants did not show the toilets fail to function properly as a result of the loose flush buttons. This is consistent with the respondent’s May 2024 conciliation assessment report, which notes the flush buttons at the top of each toilet were inspected and observed to function as intended.

225I do not apply section 13(1)(a)(ii) of the Act to this claim item. I find that loose flush buttons on a properly functioning toilet does not rise to the level of making the condo unit unfit for habitation when I apply a reasoned and common-sense approach to my analysis. I also apply my earlier observations pertaining to the testimony of Ms. Liu and Mr. Cheng as well as the “overall family impact” statement they filed [for example, see my analysis at claim item 21].

226When I consider this evidence together on a balance of probabilities, I am persuaded the appellants have not met their onus to show a breach of warranty for this claim item. As such, I have not addressed damages.

Claim item 52: One of the air vents above the kitchen isn’t working properly to blow air when the living room thermostat is running.

227I find the appellants have not established this claim item is a breach of warranty.

228The appellants submit that they experience temperature imbalance in both secondary bedrooms, such that these two rooms feel warmer than the master bedroom during the winter and colder than the master bedroom in the summer.

229The respondent argues that it observed the thermostat was working as intended and confirmed with the appellants that they were not experiencing issues related to the room temperatures within the unit.

230I find this is another situation where the appellants have made submissions that essentially attempt to introduce a new claim item. Mr. Cheng testified that he detected a temperature variance of one to two degrees in the bedrooms and that this is what gave rise to him listing this claim item for warranty. I find this testimony is not supported by the appellants’ one-year statutory warranty form, which makes no reference whatsoever to temperature variance or the bedrooms in the condo unit.

231Mr. Cheng also testified that he raised the issue of temperature variance in the bedrooms at the time of conciliation in May 2024. While I accept the respondent did look into at least one bedroom during conciliation on the basis of Mr. Carson’s testimony, I am not satisfied that temperature variance in the bedrooms was raised at this point because the corresponding report of the assessment explicitly says the “appellant” (i.e. Mr. Cheng) related no concerns relating to the temperature of the rooms within the unit, and that the respondent also confirmed this with Mr. Cheng. I find this too is consistent with the appellants’ one-year statutory warranty form.

232When I consider Mr. Cheng’s email to the respondent on June 2, 2024—one month after the conciliation assessment and within a week of the corresponding report—it does not persuade me that bedroom temperature variance forms part of this claim item, even when taken in concert with Mr. Carson’s testimony that the respondent went in a bedroom “and looked at it” because the “appellant” (i.e., Mr. Cheng) “raised it.” It is not clear to me what issue was raised that led the respondent to look into the bedroom and this was not canvassed in cross examination. The email, which contests the validity of the respondent’s conciliation findings based on “temperature feedback” from Mr. Cheng, is of limited probative value because it does not specify this feedback relates to either of the bedrooms or provide any details as to what the temperature feedback entailed. For that matter, it also fails to confirm when the feedback was provided. In short, finding that temperature variance in the bedrooms was in fact raised by Mr. Cheng at the time of conciliation would require me to fill in too many blanks, which amounts to nothing more than mere speculation. I therefore decline to further consider temperature variance in the bedrooms as part of this claim item. This includes Mr. Cheng’s conflation of claim item 56 about duct defects, which is not disputed in this appeal and which I find was raised in the context of temperature variance per his June 2024 email.

233I now turn to the claim item as articulated in the one-year statutory warranty form.

234For context, the appellants went to great lengths to demonstrate a controlled test of the air flow in this unit. These tests involved assessing the air flow performance of vents throughout the house when the bedroom and living room thermostats were operated independently of one another. When I consider this video evidence, and specifically the performance of the kitchen vents that form the basis for this claim item, I do not agree that the results of the test bear out the condition articulated by the appellants.

235In the video where Mr. Cheng demonstrates that the living room thermostat is on and the bedroom thermostat is off, I observe clearly that air is issuing forth from both vents in the kitchen. While I agree the tissue paper used by the appellants appears to respond less to air flowing from the vent furthest from the kitchen window, I am not persuaded that this means it is not working properly. In fact, I do not know if either vent is working properly because Mr. Cheng did not establish what the HVAC OEM’s specifications are for air flow. While the Act does not require the appellants to refer to the OEM’s specifications to prove this claim item, it remains that they did not and I find that a blowing tissue—while helpful to show the presence of air flow—is insufficient evidence to demonstrate whether the observed air flow is out of spec with the intended performance.

236It follows then that the appellants cannot show that air flowing from their kitchen vents fails to comply with section 1.2.2.1 of the OBC. To demonstrate non-compliance here, the appellants would need to establish that their HVAC system does not have the necessary characteristics to perform its intended functions. Given that the video demonstrates that air is freely flowing from both kitchen vents, I find the appellants’ evidence falls short on this measure.

237While I recognize the appellants also argue that they never received their occupancy permit to confirm whether their HVAC was installed to meet the requirements of the OBC, I find this does not establish the installation is, in fact, deficient by OBC standards. I reiterate here that the onus is not on the respondent to show the HVAC system was installed in accordance with the OBC. It is the appellants’ onus to show it was not so installed if they rely on non-compliance with the OBC to support their claim. Simply not receiving a copy of the occupancy permit falls short of meeting this onus.

238I do not apply section 13(1)(a)(ii) of the Act to this claim item. I find that an unquantified variance in air flow between two vents does not rise to the level of making the condo unit unfit for habitation when I apply a reasoned and common-sense approach to my analysis. I also apply my earlier observations pertaining to the testimony of Ms. Liu and Mr. Cheng as well as the “overall family impact” statement they filed [for example, see my analysis at claim item 21].

239When I consider this evidence together on a balance of probabilities, I am persuaded the appellants have not met their onus to show a breach of warranty for this claim item. As such, I have not addressed damages.

Claim item 55: The plastic on top of the window wall track is broken and short.

240I find the appellants have not shown a breach of warranty for this claim item.

241The appellants submit that they identified broken plastic on the balcony sliding door track during the PDI. They describe it as a small, isolated plastic insert that appears to be unfinished and defective. While the appellants do not dispute whether the inserts perform as intended, they rely on CPG article 9.8 to show the plastic ends of the insert are defective from a visual perspective.

242The respondent submits that it observed a plastic guide in the track during conciliation and noted that both pieces appeared smooth at the ends, without visible signs of cutting or breakage. The respondent adds that this item was not reported on the one-year statutory claim form.

243I accept this item was reported during the PDI. Mr. Cheng testified that he “thought” he pointed it out to the builder’s representative at the time but was not certain. He claimed that this item was likely reported on page two of the PDI form as a “gap in front of the bedroom door.” However, I believe the reference Mr. Cheng intended to make was to a “beauty cap” having a large gap in front of the living room balcony door.

244While Mr. Cheng did not point to where this claim item was reported on his one-year statutory warranty form (or the 30-day form for that matter), the respondent nevertheless included it as part of the conciliation process and advised of its decision accordingly. I therefore accept this claim item is properly appealed because, per section 14(14) of the Act, the appellants are entitled to appeal a decision of the respondent to the Tribunal.

245When I consider the photos produced by the appellants for this claim item, I find it is difficult to discern whether this was formerly one piece of plastic that has been broken into two pieces or whether they are actually two separate inserts. There is a lot of debris in the photos that hinders my analysis. From what I can tell, the exposed end of the plastic piece on the left appears to be somewhat irregular with stress marks (i.e. whiter colouring that is noticeably different) along its uttermost edge. This would suggest to me that it is the remnant of a larger plastic insert that was perhaps broken off. However, this condition is not indicated on the abutting edge of the other piece of plastic, which, in contrast, is uniform and straight in appearance. Further I do not agree that these abutting edges join harmoniously as Mr. Cheng maintained during his testimony.

246In any event, I find the appellants have not established damages relating to this item. They request $204.79 and rely on a settlement amount provided for several 30-day items that include visible gaps in bathroom flooring, visible dents on bedroom sliding doors, and broken window trim. The appellants did not lead evidence to show that any of these items are comparable with this claim item. In my view, the damages they seek is an arbitrary amount with no persuasive evidentiary basis. As such, I find the appellants cannot meet the requirements of the Act to obtain compensation from the guarantee fund for this claim item regardless of whether a breach of warranty is made out. I therefore decline to order any compensation.

ORDER

247The appellants are entitled to $2,380.00 from the guarantee fund for claim item 34 and $283.31 for claim item 41. The appellants are not entitled to compensation from the guarantee fund for any of the remaining claim items.

Released: April 27, 2026

__________________________

Michael Beauchesne

Adjudicator