Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 17291/ONHWPA
In the matter of an appeal of a Decision Letter of Tarion Warranty Corporation under the Ontario New Home Warranties Plan Act, R.S.O. 1990, O.31 (the “Act”), to deny warranty claims
Between:
Constantin Joseph Fehervari Appellant
and
Tarion Warranty Corporation Respondent
DECISION and ORDER
VICE-CHAIR: Geneviève Painchaud
APPEARANCES:
For the Appellant: Constantin Joseph Fehervari, Self-Represented
For the Respondent: Steve Blayney, Warranty Services Representative Ranisha Fernando, Counsel
Court Reporter: Josh Grieve
Heard by Videoconference: April 21-22, 2026
BACKGROUND
1Constantin Joseph Fehervari (the "appellant") appeals a Decision Letter dated June 2, 2025 (the “Decision Letter), issued by Tarion Warranty Corporation (the “respondent”) denying his claim for coverage under the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31 (the “Act”).
2A Supplementary Decision Letter dated January 23, 2026 was also issued by the respondent linked to the same issue in dispute and was addressed in the hearing.
3The appellant signed a General Contractor Agreement with 2397196 Ontario Inc. o/a Stuart Riley Bespoke Builder (the “Builder”) on May 25, 2023.
4The Tarion Certificate of Completion and Possession/ Warranty Certificate and the Tarion Pre-Delivery Inspection Form confirm the date of possession and the warranty start date as August 23, 2024.
5The appellant’s Tarion Statutory Warranty Form – Initial Form (“Initial Form”) dated October 3, 2024 lists 34 items to be addressed. Only item 10 as listed on this form is an issue in dispute for this hearing and is described as
“principal bath shower: 'howling' noise when operational. Hot water performance - marginal in Principal bathroom
6A conciliation inspection/assessment was conducted on March 24, 2025 followed by a Conciliation Assessment Report (“CAR”) dated April 2, 2025 addressing several items, but again, only item 10 is at issue for this hearing.
7The appellant is seeking $2,401.25 for a plumbing invoice for work incurred in January 2025 and $7,174.37 to remedy the alleged plumbing defect, for a total of $9,575.62.
8This matter proceeded to a two-day videoconference hearing. The appellant was a witness and presented Gregory Weekes, P.Eng. as an expert witness. I also heard the testimony of two witnesses for the respondent, Steve Blaney, Warranty Services Representative at Tarion and Stuart Riley, the Builder’s owner.
ISSUES
9The issues in dispute are as follows:
Whether claim item 10 in the Decision Letter constitutes a breach of warranty;
If so, whether any damages resulted from the breach of warranty; and
If damages resulted from the breach, what is the amount of damages?
RESULT
10I find the appellant did not discharge his burden of proof to show on a balance of probabilities that there was a breach of warranty regarding the issue in dispute. As a result, the appellant is not entitled to any warranty compensation under the Act.
PROCEDURAL ISSUE - EXCLUSION OF WITNESSES
11At the hearing, the respondent sought to exclude Gregory Weekes, the appellant’s witness, on the basis that the norm suggests that witnesses be excluded in proceedings prior to their testimony.
12The appellant argued that the same should apply to Steve Blayney, the respondent’s witness.
13The respondent submitted that the Steve Blayney is the instructing client and not simply a witness.
14The exclusion of witnesses from a hearing is a discretion the Tribunal has as part of its power to control its own process. Witnesses may be excluded to ensure that the Tribunal hears testimony from each witness that has not been tailored or influenced by hearing the testimony of other witnesses. Under s.5.2(4) of the Statutory Powers Procedure Act RSO 1990, c S.22 (“SPPA”), all the parties participating in a hearing must, in an electronic hearing, be able to hear any witnesses throughout the hearing.
15Under s.10.1 of the SPPA, a party may call and examine witnesses, present evidence and submissions and conduct cross-examinations of witnesses. To do so, the party must know what the evidence and representations of the opposing party are. When the party is represented by counsel, they are unable to instruct counsel if they are excluded from the hearing and do not know what the evidence is. To exclude such a party would result in limiting their counsel’s effectiveness by being unable to get instructions during the hearing.
16I found no reason to reject the submissions from the counsel for the respondent that he was taking instructions from Mr. Blayney as the representative for the respondent. I therefore accepted the respondent’s submissions that his presence was required to instruct his counsel. For these reasons, I refused to exclude Mr. Blayney from the hearing.
17On the other hand, the appellant was not represented by counsel, and his witness was not instructing him. I ordered that all other witnesses, including the appellant’s witness, be excluded from the hearing until they testify. Nevertheless, this had minimal to no impact on the appellant as Mr. Weekes was the first witness in the hearing.
EVIDENCE AND ANALYSIS
18The appellant bears the burden of proving his case on a balance of probabilities.
19Subsection 13(1) of the Act requires the vendor of a home to warrant to the owner, among other things and subject to certain exclusions set out in subsection 13(2), that the home is constructed in a workmanlike manner, free from defects in material, fit for habitation, and constructed in accordance with the Ontario Building Code (the “Code”). These warranties apply for one year after the warranty takes effect.
20Subsection 14(3) establishes that, subject to the regulations and conditions set out in that subsection, an owner is entitled to receive payment out of the guarantee fund for damages resulting from a breach of warranty.
Timeline of Events
21The Initial Form dated October 3, 2024 identified the howling noise as item 10.
22In October 2024, the Builder and the appellant communicated to try to find ways to address the issue and to ask advice of a different plumber than the one used originally.
23On January 8, 2025, the Builder asked this plumber to connect with the appellant to “reduce the pressure to try to avoid noise”.
24On or around January 14, 2025, after discussing it with the applicant, the plumber installed pressure reducing valves (“PRVs”) to mitigate the howling noise. The Builder was not aware of this installation until a couple of months later and did not authorize it.
25On March 18 and 19, 2025, the appellant emailed the respondent stating that some plumbing work had occurred at his expense but that he is not satisfied with the result. In the email, he adds that the Builder claims he has no responsibility as the building permit is closed and that the Builder informed him that this issue is not covered under Tarion warranty.
26On March 24, 2025, Mr. Blayney went to the home to conduct the conciliation inspection/assessment on behalf of Tarion, and Mr. Riley was in attendance for the Builder.
27On March 25, 2025, the plumber issued an invoice to the appellant for the January work, including supplying and installing two PRVs for a total of $2,401.25.
28On March 27, 2025, the appellant e-mailed the respondent, including Mr. Blayney, to seek direction on who should pay the March 25, 2025 plumber invoice and included pictures of the PRVs. The respondent did not respond.
29On March 28, 2025, the appellant wrote to the Builder asking direction on who should pay the plumber’s invoice which was attached. That same day, another e-mail from the appellant followed stating this was a recap of their conversation that day confirming that they agreed the appellant would pay the plumber invoice and if Tarion deems the deficiencies warrantable, the Builder would pay him back.
30On March 30, 2025, the Builder e-mailed the respondent describing that he told the appellant to pay the plumber’s invoice as the appellant requested that work be done. Tarion would then determine if the work is warrantable but in his experience it would not be.
31On April 2, 2025 the respondent issued a CAR confirming they observed a howling noise in the shower, that there were no leaks and that the noise did not affect the intended use of the system. They concluded that there was no defect in workmanship and, therefore, no breach of workmanship warranty so the item was not warranted. A June 2, 2025 Decision Letter followed with the same conclusion.
32On September 23, 2025, at the appellant’s request, Gregory Weekes, P. Eng. authored a letter of submittal concluding that:
a. The velocity of the water entering the shower mixing valve at the nominal 1/2” PE-RT hot and cold inlet fittings, exceeds the code maximum 12 fps velocity by 1.54 times, and the recommended velocity by 2.32 times.
b. The velocity exceeds the code maximum, and thus the PE-RT tubes and fittings are not compliant for the inlet pipe size installed.
c. The exceedance of the code maximum velocity directly contributes and exaggerates the noise at the shower mixing valve.
d. The inlet piping shall be replaced with a compliant pipe size system, such as a PE-RT nominal ¾” system, for all areas where the velocity is too high due to the pipe system being too small.
e. The installed piping system at the inlet of the 1st Floor master washroom, is not in compliance with the OBC.
33On October 28, 2025, Gregory Weekes authored a letter of review regarding the PRVs concluding that:
a. The PRVs installed on both the hot and cold water branches serving the main floor master washroom shower, were effective in a partial reduction of the ‘howling’ noise, by reducing the incoming water pressure and hence flow rate to the pipe branches.
b. The offending ‘howling’ noise was not eliminated, but only somewhat reduced by the installation of the PRVs.
c. The installation of the PRVs does not eliminate any OBC requirements for pipe sizing and pipe velocity, which is still non-conforming.
34On December 5, 2025, the appellant filed a document brief with the respondent and the Tribunal which included his expert reports.
35On January 23, 2026, the respondent issued a Supplementary Decision Letter pointing to s. 13(2)(g) of the Act, stating that in addition to their determination in the June 2, 2025 Decision letter, new information indicated that alterations and deletions were made by the appellant before the conciliation and therefore the item was not warranted.
36On February 16, 2026, Gregory Weekes authored an addendum to his letter of review regarding the PRVs concluding that:
The PRVs do not aggravate or modify the offending symptom or OBC violations within the washroom piping. The PRVs actually provide a mitigating effect to the offending violation symptom. The owner is mitigating his damages by the installation of the PRVs by any objective analysis; a distinction without a difference as it pertains to the issue.
It is noted that the Tarion response of January 2026 does not in any way confirm the owner’s ongoing issue of the howling noise, the OBC piping violation, or the provision of mitigating damages until a permanent solution is implemented. The Tarion response incorrectly states a PRV installation is an addition and alteration to the system of piping in question, as the offending piping system was not changed. The OBC code violation of the piping system remains with the pipe being too small. The howling noise also remains; further aggravated by the excess flow velocity from the wrong pipe-size being installed. The Tarion statement of a change to the system is without merit.
The parties' positions
37The appellant takes the position that the howling noise described in item 10 is caused by a plumbing Code violation. Therefore, the item should be warrantable as s. 13(1) provides that the home be constructed in accordance with the Code. It argues that modifications made were to try to mitigate the sound.
38The respondent takes the position that the item is not warrantable for three reasons:
a. The appellant altered the plumbing system prior to the conciliation process triggering s. 13(2)(g) which provides that warranties under s. 13(1) do not apply in respect of alterations, deletions or additions made by the owner;
b. The Tribunal does not have the jurisdiction to hear matters outside of the Decision Letters, and the Code issue raised is different than what is in the Decision Letters; and
c. There is no defect as there is not functional or performance impairment.
The application of s. 13(2)(g) of the Regulation
39I find that the warranty extended under s. 13(1) does not apply as the appellant made alterations to the plumbing system involved in the noise issue, triggering s. 13(2)(g).
40Subsection 13(1) provide that every vendor of a home warrants to the owner,
(a) that the home,
(i) is constructed in a workmanlike manner and is free from defects in material,
(ii) is fit for habitation, and
(iii) is constructed in accordance with the Code.
41Section 13(2) provides that warranty under s.13(1) does not apply in respect of:
(g) alterations, deletions or additions made by the owner.
42The appellant argues that the piping installed was undersized which is what contributes to the howling noise and that it does not comply with s. 7 of the Code as concluded by his expert, Gregory Weekes. He submits that he followed the process from Tarion.
43It is undisputed that the appellant had several discussions about the howling noise with the Builder and that they were both trying to figure out how to improve the situation over several months. It is also undisputed that the Builder put the appellant in touch with a plumber other than the one used to build the home to get a second opinion.
44The appellant testified that he worked actively with the Builder to rectify the issue prior to the conciliation at the encouragement of the respondent. E-mail evidence demonstrates that the appellant advised the respondent prior to the conciliation that he had made modifications to the plumbing system.
45The appellant also testified that the Builder took the position it would not pay for the PRV work if the respondent did not deem it warrantable. He believes he may have told the Builder that the plumber was going to be doing the work but does not recall how he advised Mr. Riley. He admits the Builder did not tell him to install PRVs but that the Builder was aware the PRVs would reduce the noise. He did not seek permission from the respondent nor the Builder prior to having the work performed.
46When asked why he did not wait to do the repairs until after the conciliation, the appellant said the noise was unbearable when this shower was in use, and that the PRV installation did reduce the noise, but not enough. He confirmed there were other showers in the home.
47The appellant’s expert witness, Mr. Weekes, testified that he observed the plumbing system only after the installation of PRVs. When he tested it with the valve open, he was confident this allowed him to observe the noise level as very similar to what it was before the PRVs were installed, although not identical. With the PRVs the noise was reduced approximately by half as they reduced the pressure coming into the house.
48The respondent argues that the appellant chose to have the new plumber perform alterations to the plumbing system by adding PRVs while in the middle of the Tarion warranty process, making the claim non-warrantable. Alterations impact what the respondent is able to inspect as it cannot observe the original state of an item and also deprives builders the opportunity to remedy an issue.
49It argues that the alterations changed the item to the point that the sound was different at the conciliation versus what it was originally and could therefore not observe it in its original state. The appellant did agree that the frequency and pitch of the noise was reduced at the time of the conciliation.
50Mr. Blayney testified that he did observe the howling noise from the shower at the conciliation and that the Builder stated he would stand by his product and resolve if it was deemed warrantable. He knew PRVs had been installed but believed the Builder had installed them and did not recall if he received e-mails about this prior to the conciliation. He stumbled upon new information proving the Builder had not installed the PRVs which is what triggered the Supplementary Decision Letter in January 2026 explaining the claim was also denied because the homeowner had made modifications/alterations prior to the conciliation.
51He added that modifications and alterations breach the warranty as the respondent needs to know the original condition to fully understand the defect alleged and that if the Builder makes a modification, then it becomes the Builder’s responsibility to warranty the item for one year.
52Mr. Riley testified for the Builder and explained that he and the appellant had tried to remedy the sound issue by having the cartridges changed in the shower and speaking to the manufacturer to troubleshoot what could fix the issue. Although he put the appellant in touch with the plumber, it was only for a second opinion, and he did not know the appellant hired him to install the PRVs. He did not think it was a warrantable issue as it was water noise. He thought perhaps there was a switch to adjust the water pressure for the whole house.
53Based on e-mails provided by the appellant, I find that the respondent did have the information that the appellant had made alterations to the plumbing system prior to the conciliation and that perhaps Mr. Blayney missed it or did not turn his mind to its impact on the claim when preparing the CAR. The June 2, 2025 Decision Letter concluded that there was no defect in workmanship and the item was not warranted. The appellant then started the appeal process and hired an expert who opined there was a breach of the Code. The respondent then issued a Supplementary Decision Letter saying it also relied on s. 13(2)(g) to deny the claim.
54As per Ragoobar v. Tarion Warranty Corporation, O’Dwyer Fine Homes Ltd., 2022 CANLOO 46851 (LAT) which addresses s. 13(2)(g):
“…paragraph (g) does not require that the “alterations, deletions or additions made by the owner” have any measurable effect on the operation of the disputed item, positive, negative or even neutral. It is sufficient only that they were unilaterally imposed by the homeowner and thereby deprived Tarion of its right to accurately assess the subject of the claim. While the window may or may not have permitted water to enter the house independent of the drainage problem, this is irrelevant to whether the exemption applies.” [para 226]
55I find that the undisputed facts reveal that the appellant, and not the Builder, hired a plumber to make modifications to the plumbing system even prior to the conciliation. The Builder was involved in trying to remedy the issue, yet the homeowner decided to take over and proceed with the PRV install rather than having the Builder hire and pay the plumber to do the work. Since the appellant had the modifications done to the plumbing system, this voids his warranty under s. 13(2)(g). Had that been done been done by the Builder, the warranty would not have been voided by s. 13(2)(g).
56While Mr. Riley asked the plumber to contact the appellant to “reduce the pressure to try to avoid noise”, I accept that he did not authorize the installation of the PRVs and only discovered its installation two months later, at the conciliation. By altering the plumbing system, the appellant did deprive the respondent the right to accurately inspect it.
57The evidence from Mr. Weekes opines that there were no alterations to the plumbing pipes that violate the Code, yet I find this runs counter to the overwhelming evidence that proves that the PRV alteration to the plumbing pipes did have a significant impact on noise reduction. I find this alteration was made to the plumbing system that was causing the noise listed on the Initial Form. I accept that the PVRs did not solve the issue entirely, but the appellant did instruct the plumber to alter the plumbing system to address the howling noise. As per Ragoobar, the impact of the modification is irrelevant to whether the exemption applies.
58To benefit from the Tarion warranty process, it is the homeowner’s responsibility to abide by the warranty claims process and ensure it does not infringe into the warranty by making alterations. On the other hand, the evidence demonstrates that the appellant was under the impression he could make alterations prior to the conciliation, and that if the respondent found that the item was warrantable, the Builder would simply pay him back. This is not what the Act provides.
59It is unfortunate that the Builder did not advise or warn the appellant not to make alterations to the plumbing and that doing so would breach the warranty. On the other hand, I also accept the Builder was not aware the appellant was undertaking these alterations. The Builder seemed to be simply under the understanding that there was no warrantable breach, and that if Tarion decided otherwise, then the Builder would cover the PRVs. That is not a proper understanding of the process and could possibly have led the appellant to make the wrong decision. It nevertheless does not override the Tarion warranty scheme and process.
60I find that the item is not warrantable due to the exclusion under s. 13(2)(g), and therefore I do not need to make findings regarding the other arguments over the Code violation.
61Based on the evidence and a balance of probabilities, I conclude that the howling noise in the shower is not a deficiency under the Act and is therefore not warrantable.
ORDERS
62I ordered that all witnesses, other than the parties, be excluded from the hearing until called to give evidence.
63For the reasons above, and pursuant to s. 14(19) of the Act, I order the appeal be dismissed and direct Tarion to deny the claim.
Geneviève Painchaud
Vice-Chair
Released: May 7, 2026