Licence Appeal Tribunal File Number: 17681/ONHWPA

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

Between:

Tito Cantalini and Monica Giammaria

Appellants

and

Tarion Warranty Corporation

Respondent

and

Zancor Homes (Innisfil) Ltd.

Added Party

PRELIMINARY ISSUE DECISION

ADJUDICATOR:

Bernard Trottier

APPEARANCES:

For the Appellants:

Tito Cantalini, self-represented Monica Giammaria, self-represented

For the Respondent: Added Party:

Christopher Gallo, Counsel Stephen Brunswick, Counsel Victoria Ostrovsky, Counsel

Heard:

By way of written submissions

1Tito Cantalini and Monica Giammaria (the “appellants”) appeal the Decision Letter issued, pursuant to s. 14(13) of the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31 (the “Act”), by Tarion Warranty Corporation (the “respondent” or “Tarion”), dated August 26, 2025, in relation to the appellants’ claim under s. 7(2) of Regulation 165/08 of the Act for Delayed Closing compensation. The appellants were granted $7,500 in compensation.

2The appellants filed a Notice of Appeal from the Decision Letter with the Licence Appeal Tribunal (the “Tribunal”) on September 15, 2025. The appeal seeks compensation in the amount of $278,244.60.

3At the case conference of October 31, 2025, Zancor Homes (Innisfil) Ltd. (the “builder”) was added as a party to the proceeding, pursuant to s. 14(18) of the Act and s. 12 of Regulation 627/20, on consent of the parties, because the Tribunal found the builder’s economic interest in the proceeding to be significant.

PRELIMINARY ISSUE

4The preliminary issue to be determined is whether the Tribunal has jurisdiction to award compensation for a Delayed Closing claim that exceeds the maximum compensation stated under s. 7(2) of Regulation 165/08 of the Act.

RESULT

5I find that the Tribunal does not have jurisdiction to award compensation for a Delayed Closing claim that exceeds the maximum of $7,500 under s. 7(2) of Regulation 165/08 of the Act.

6Because Tarion has already awarded the appellants the maximum of $7,500, the appellants cannot succeed on an appeal at the Tribunal for a further award for Delayed Closing compensation.

7The appeal of the Decision Letter is dismissed.

ANALYSIS

Background

8The appellants are the owners of a residence located at 1318 Stevens Road, Innisfil (the “home”). The home was purchased as a new construction home, via an Agreement of Purchase and Sales (“APS”) dated October 5, 2019. The APS set out a first tentative closing date of July 29, 2021, a second tentative closing date as late as November 26, 2021, and a firm closing date as late as March 28, 2022.

9On March 30, 2020, the builder provided the appellants with a First Unavoidable Delay Notice, due to the COVID-19 pandemic, stating that it could not estimate the duration of the delay and that it would keep the appellants informed of developments. On January 14, 2022, the builder sent the appellants a letter indicating that they had started construction of the home. On June 30, 2023, the builder sent the appellants a letter advising them that the revised firm closing date was October 12, 2023. The appellants closed on the home on October 12, 2023.

10On September 14, 2024, the appellants submitted a claim for Delayed Closing compensation to Tarion. In its Conciliation Assessment Report dated May 21, 2025, Tarion found that the appellants were entitled to Delayed Closing compensation of $7,500. Subsequently, the appellants requested that Tarion provide them with a Decision Letter to enable them to appeal to the Tribunal. On August 26, 2025, Tarion sent the appellants its Decision Letter, re-stating that the appellants were entitled to compensation in the amount of $7,500 as the maximum under the Act and the Regulation.

The Tribunal’s jurisdiction under s. 14 of the Act and the Regulation

11The powers of the Tribunal are set out at s. 14(19) of the Act, which states that the Tribunal may direct Tarion to take any action that the Tribunal considers it ought to take in accordance with the Act and regulations. The Tribunal owes no deference to Tarion’s decision. Also, the Tribunal may substitute its opinion for that of Tarion.

12As stated in s. 14(19), the Act is to be interpreted via consequent regulations. For Delayed Closings, the relevant regulation is the Warranty for Delayed Closing or Delayed Occupancy, O. Reg 165/08 (the “Regulation”).

13The APS for the home was executed on October 5, 2019. Therefore, the relevant section of the Regulation is s. 7(2) regarding APSs for freehold homes after October 1, 2012 and before February 1, 2021, which states the following:

(2) If parties enter into a purchase agreement for a freehold home or a vacant land condominium home on or after October 1, 2012 and before February 1, 2021, the vendor warrants to the purchaser that the vendor will comply with the requirements applicable to the home that are imposed by section 7 of the applicable Addendum that paragraph 1 of subsection (1) requires form part of the purchase agreement, even if the vendor has not complied with that paragraph.

14The Regulation incorporates a mandatory addendum (the “Addendum”) into every APS for a new home in Ontario, as a schedule attached to the APS identified as the “Statement of Critical Dates – Freehold Form (Tentative Closing Date)”. The Addendum contains the following mandatory paragraphs:

Delayed Closing Compensation

(a) The Vendor warrants to the Purchaser that, if Closing is delayed beyond the Firm Closing Date (other than by mutual agreement or as a result of Unavoidable Delay as permitted under sections 4 and 5), then the Vendor shall compensate the Purchaser up to a total amount of $7,500, which amount includes: (i) payment to the Purchaser of a set amount of $150 a day for living expenses for each day of delay until the date of Closing; or the date of termination of the Purchase Agreement, as applicable under paragraph (b) below; and (ii) any other expenses (supported by receipts) incurred by the Purchaser due to the delay.

Addendum Prevails

The Addendum forms part of the Purchase Agreement. The Vendor and Purchaser agree that they shall not include any provision in the Purchase Agreement or any amendment to the Purchase Agreement or any other document (or indirectly do so through replacement of the Purchase Agreement) that derogates from, conflicts with or is inconsistent with the provisions of this Addendum, except where this Addendum expressly permits the parties to agree or consent to an alternative arrangement. The provisions of this Addendum prevail over any such provision.

15I am directed by the Divisional Court’s decision in Ashcroft Homes v. Tarion Warranty Corporation, 2023 ONSC 6527 (“Ashcroft”), where the Court found that the Addendum is required by the Regulation to form part of every purchase agreement for a new home in Ontario, and that Tarion does not have discretion to ignore express requirements of the warranties.

The Tribunal does not have jurisdiction to award more than $7,500

16I find that the Tribunal does not have jurisdiction to award compensation for a Delayed Closing claim that exceeds the maximum of $7,500 under s. 7(2) of Regulation 165/08 of the Act.

17The onus is on the parties raising the preliminary issue, in this case Tarion and the builder, to demonstrate on a balance of probabilities that the Tribunal does not have jurisdiction.

18Tarion submits, citing Ashcroft, that the Tribunal cannot order compensation that exceeds the $7,500 maximum for Delayed Closing compensation set out in the Addendum, as prescribed by the Regulation. Tarion argues that multiple Tribunal decisions have supported the proposition that $7,500 is the maximum amount for Delayed Closing, and that Tarion was not aware of any case law to the contrary.

19Tarion submits that the Addendum prevails over any delay compensation claims that might be the subject of a claim outside of the Tribunal’s jurisdiction. Tarion argues, citing 7963 v. Tarion, 2013 CanLII 58469 (ON LAT), that the “Tribunal’s mandate does not extend to authority over contractual claims outside of what the Act specifies.”

20The builder submits that the APS with the appellants included the mandatory Addendum, and that it adopts and relies upon the arguments set out by Tarion regarding the preliminary issue.

21The appellants submit that the builder misused the Unavoidable Delay provisions of the Addendum and failed to provide the required updates to the Critical Dates under the Addendum. The appellants argue, therefore, that the builder breached the APS and Addendum, and that they are entitled to damages above the $7,500 maximum under s. 7(a) of the Addendum.

22The appellants argue that the Delayed Closing cap of $7,500 applies to compensation under the Regulation, but that it does not apply to breaches of contract or for damages outside of the Act’s framework.

23The appellants argue, further, that the Tribunal now has authority under Schedule 21, s. 6(1) of the Cutting Red Tape, Building Ontario Act, 2024, S.O. 2024, c. 28 - Bill 227 (the “Cutting Red Tape, Building Ontario Act”) to determine what payments a builder must make, and the Tribunal is therefore not restricted by the $7,500 cap when addressing additional losses caused by a builder’s breach of contract.

24In its reply submissions, Tarion submits the Act does not provide the Tribunal with jurisdiction to award damages to an appellant directly from a builder. Tarion submits, further, that Tarion is the only source for Delayed Closing compensation found in the statutory warranties.

25Tarion submits that the appellants’ proposition, that the $7,500 maximum compensation does not apply to breaches of contract (including the Addendum), is unsupported by any legal authorities. Tarion submits that the correct forum for disputes outside of the Act’s warranty framework would be the Superior Court of Justice, not the Tribunal.

26Regarding the appellants’ submissions on amendments to the Act under the Cutting Red Tape, Building Ontario Act, Tarion argues that these amendments changed s. 14(1) of the ONHWPA dealing with compensation, but it did not increase the Tribunal’s jurisdiction, nor did it grant the Tribunal the power to order builders to pay compensation directly to homeowners. Tarion argues that the appellants have not directed me to any sections of the Cutting Red Tape, Building Ontario Act that identify any expansion of the Tribunal’s jurisdiction.

27In its reply submissions, the builder argues that the claims raised by the appellants in their submissions are inconsistent with the appellants’ Notice of Appeal, where they stated that they were “seeking compensation exceeding the $7,500 maximum under the warranty program”. The builder argues that the Tribunal does not have jurisdiction to award compensation for a Delayed Closing greater than $7,500, because the appellants are raising claims for damages outside of the Act’s warranty framework and not identified in their Notice of Appeal.

28I find that that Tarion and the builder have demonstrated that the Act, the Regulation and the Addendum do not authorize the Tribunal to award claims that are outside of those covered by the Act. I find that the appellants have not directed me to any sections of the Act, the Regulation and the Addendum that provide the Tribunal with the jurisdiction claimed by the appellants.

29I find that the appellants and the builder had a valid APS and a mandatory Addendum that specified the basis for claims for Delayed Closing under the Act. I find, further, that s. 7(a) of the Addendum is specific, in that $7,500 is the maximum amount of compensation for Delayed Closing under the Act.

30The appellants argue that the builder breached the APS and the Addendum, and therefore the $7,500 maximum no longer applies under the Act. I disagree. The appellants have not directed me to any section of the Act, the Regulation, the Addendum, or any authorities, that states that s. 7(a) of the Addendum is abrogated when there is a breach of contract. To the contrary, I find that s. 7(a) of the Addendum addresses, specifically, the warranty that applies when there is a breach of the Firm Closing Date, which is a breach of contract (the APS). In addition, the appellants have not directed me to any alternative arrangement to the Addendum, under s. 13 of the Addendum, that would derogate from the provisions of the Addendum.

31I find that the appellants’ claim, that the Cutting Red Tape, Building Ontario Act expands the jurisdiction of the Tribunal to determine what payment a builder must make, is unfounded. In reading the section of the Cutting Red Tape, Building Ontario Act to which the appellants directed me, I found no mention of expanded powers of the Tribunal.

32For the reasons above, I find that the respondent and the builder have met their onus to prove that the Tribunal does not have jurisdiction to award compensation for a Delayed Closing claim that exceeds the maximum of $7,500 under Regulation 165/08 of the Act.

ORDER

33I find that the Tribunal does not have jurisdiction to award compensation for a Delayed Closing claim that exceeds the maximum of $7,500 under s. 7(2) of Regulation 165/08 of the Act.

34Because Tarion has already awarded the appellants the maximum of $7,500, the appellants cannot succeed on an appeal at the Tribunal for a further award for Delayed Closing compensation.

35The appeal of the Decision Letter is dismissed

Released: January 21, 2026

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