Licence Appeal Tribunal File Number: 17163/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:

Aigyapal Singh Sandhu and Gurjasmeet Singh

Appellants

and

Tarion Warranty Corporation

Respondent

DECISION

ADJUDICATOR: Michael Beauchesne

APPEARANCES:

For the Appellants: Aigyapal Singh Sandhu, Self-Represented Gurjasmeet Singh, Self-Represented

For the Respondent: Ranisha Fernando, Counsel

HEARD: By way of written submissions

OVERVIEW

1Aigyapal Singh Sandhu and Gurjasmeet Singh (together, the “appellants”) appeal claim items that appear in two decision letters issued by the Tarion Warranty Corporation (the “respondent”)—the first on April 28, 2025, and the second on May 7, 2025—under section 14(3) of the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31 (the “Act”).

ISSUES IN DISPUTE

2The issues to be determined in this case are:

(a) Whether claim items 9, 10, 12, 16, 17, 20, 28, 41, 43, 47, 55, 58, and 59 as listed on the 30-day statutory warranty form constitute a breach of warranty; and

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

3For context, all the disputed claim items except 10, 43, 47, and 55 are addressed in the April 2025 decision letter. The corresponding conciliation assessment for these claim items was conducted on August 20, 2024, with the report completed on October 4, 2024. The May 2025 decision letter—in addition to addressing claim items 10, 43, 47, and 55—includes a re-assessment of claim item 28. The conciliation assessment that corresponds to these claim items was conducted on March 10, 2025, with the report completed on March 24, 2025.

RESULT

4The appellants are entitled to repairs to the painted surface of the arched transom at their main entrance per claim item 10, as well as the replacement of their damaged garage door panel per claim item 12, and I direct the respondent to perform or arrange for the performance of this work. The appellants are not entitled to any of the remaining claim items.

ANALYSIS

The appellants’ onus to prove their claim items are warrantable under the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-o31/latest/rso-1990-c-o31.html) requires an objective measure of deficiency

5Throughout their written submissions, the appellants often rely on their own observations, feelings, and opinions to show materials and workmanship are deficient. In most cases, the appellants did not specify an industry standard as evidence to support their written submissions.

6In my view, it is not sufficient for the appellants to point to areas of construction with which they are dissatisfied and expect the Tribunal, in the absence of any other evidence, to conclude that workmanship or materials do not meet industry standards simply because the appellants allege it is so. There must be some objective evidence before the Tribunal defining the industry standard and identifying the way the complaint falls below that standard.

7For example, the Tribunal has often relied on the Construction Performance Guidelines (“CPG”) as a starting point to assess whether workmanship and materials are deficient [see for example: 9147 v Tarion Warranty Corporation, 2015 CanLII 38755 (ON LAT)]. The Tribunal has also considered the Ontario Building Code (“OBC”) to assess whether warranty should apply [see for example: J.Y. v. Tarion Warranty Corporation ONHWPA, 2019 CanLII 101730 (ON LAT)]. I note too that both the original equipment manufacturer’s (“OEM”) recommendations and indicators set out by the Canadian Standards Association (“CSA”) may provide helpful guidance as to whether a defect in workmanship or materials is evident. However, where the appellants fail to point to any of these sources—or other objective indicators to support their claim—I find they are unable to meet their onus. This principle is applied accordingly throughout my analysis of the claim items under appeal.

Damages are part of the appellants’ onus to prove for warranty claims under the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-o31/latest/rso-1990-c-o31.html)

8In addition, I find the appellants did not make submissions or lead evidence to establish damages for most of their claim items. Section 14(3)(b) of the Act, which addresses compensation, says an owner of a home is entitled to receive payment out of the guarantee fund for damages resulting from a breach of warranty if the person has a cause of action against the builder for such damages. As such, the appellants must prove, on a balance of probabilities, that damages resulted from a breach of warranty to receive monetary compensation. I have also applied this principle accordingly throughout my analysis of the claim items under appeal.

Substantive issues

9Section 13(1) of the Act states that every vendor (i.e., builder) 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.

10Section 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.

11The appellants bear the onus under the Act to prove each disputed claim item is a breach of warranty.

Claim item 9: “Hardwood installed in opposite direction in front hallway and other direction in dining and family room.”

12I find the appellants have not shown a breach of warranty for this claim item.

13The appellants submit that the hardwood flooring installation completed by Paradise Developments Valley Oak (the “builder”) in “visually connected and continuous interior spaces” is defective because it was installed in two different directions. The appellants explain that while the hardwood floor was a “substantial financial investment” meant to enhance the appearance and cohesion of these interiors spaces, the installation presents as “visually jarring.” The appellants maintain that the installation is “inconsistent with standard installation practices in similar residential spaces and has diminished the value and enjoyment of the home.” The appellants assert that their agreement of purchase and sale (the “APS”), dated October 22, 2021; their options and upgrades agreement (the “OUA”), dated April 18, 2022; and their pre-delivery inspection form (the “PDI”), dated August 21, 2023, do not specify or authorize the hardwood floor to be installed in this manner. As such, the appellants reason that the absence of prior disclosure or consent for this installation methodology constitutes a failure on the part of the builder to meet reasonable standards of communication and workmanship. This latter point is emphasized in the appellants’ reply submissions as a “misrepresentation of the finished product” to distinguish this claim item from a “simple, aesthetic concern.”

14The respondent agrees that neither the APS nor the OUA specify a particular direction of flooring installation. However, the respondent argues that the directional change of the flooring pattern between rooms in the appellants’ home does not constitute a defect and further, that Jelic v. Tarion Warranty Corporation and Millstone Homes Inc., 2021 CanLII 40741 ON LAT (“Jelic”) shows aesthetic considerations without a functional component are not warranted. The respondent adds that the appellants have not produced quotes to substantiate damages.

15In my view, this claim item boils down to the appellants being unhappy with the appearance of their hardwood floors in the front hallway, dining room, and family room. While I understand the installation of the flooring does not create the aesthetic desired by the appellants, I find this does not constitute a defect in workmanship or materials because the appellants did not point to evidence of the “standard installation practices” they reference in their written submissions. I accept that the appellants’ email communications with the builder on August 22, 2023, raise concerns with the direction of the flooring in the “front portion of the house.” But in their submissions, the appellants do not point to any industry standards to show the flooring installation falls short of an objective measure. Rather, I find they rely on their own opinion about the direction their flooring should have been installed in certain areas of their home, which is insufficient to meet their onus.

16Given too that the parties agree that the APS and OUA do not specify the direction that the hardwood flooring was to be installed, I find the finished product was not misrepresented as claimed by the appellants. The appellants did not point me to evidence that shows the builder was required to “disclose and explain the manner in which the hardwood flooring would be installed.”

17When I take all this evidence together on a balance of probabilities, I find the appellants have not shown that the workmanship or materials relating to their hardwood flooring is a warrantable defect. As such, I find it unnecessary to address compensable damages for this claim item despite the appellants establishing a cost of $8,999.00 in their OUA for an upgrade to “engineered handscraped flooring” on the main floor.

Claim items 10, 41, 55, and 58 respectively: “Unacceptable craftsmanship: sloppy painting, mudding, and sanding throughout the house. Immediate rectification required. Nails popping out throughout the house, all rooms, washroom, bedrooms, kitchen, family room. All rooms” | “Most windows/trims throughout the house are unfinished, unprofessional work.” | “Uneven surfaces, scratches, nails popping out, unfinished work throughout the house.” | “Ceiling throughout the house is not painted/mudding/sand. We can see drywall underneath the paint and scratches/nails popping out all over.”

18I find the appellants have not established a breach of warranty for these four claim items.

19For claim items 10, 41, and 55, the appellants submit that “raw” drywall compound (i.e. mudding), incomplete or missing paint, and unfinished sections of trim are clearly observable under any “reasonable” viewing conditions. The appellants add that these blemishes represent incomplete work that is separate and distinct from the cosmetic issues contemplated at CPG article 9.9. The appellants also deny that the unfinished appearance of wall and baseboard sections throughout their home constitute “normal wear and tear” as alleged by the respondent because this was the condition they reported at the time they took possession of their home on September 6, 2023. In their reply, the appellants assert that the [b]uilder did not fix the paint defects identified as part of claim item 41, specifically.

20For claim item 58, the appellants submit that multiple ceiling areas throughout their home remain unfinished since they took possession. They cite improper painting, sanding, and detached mudding that has left visible seams, scratches, and nail pops. While the appellants indicate in their written submissions that the builder made some drywall finishing repairs post-possession, they explain that only the areas they pointed out were fixed by the builder despite them raising concerns that blemishes extended throughout the whole home. The appellants say it is “neither practical nor reasonable to expect a homeowner to perform a detailed, technical inspection of every square foot of ceiling in a newly built home” to specify every individual area of concern.

21The appellants point to an e-mail exchange with the builder to support their position on all four claim items, as well as nearly three-dozen photos of blemishes they say are warrantable under the Act. The appellants also produced several other photos of what they describe as deficiencies in the family room and kitchen that they confirm were repaired by the builder.

22The respondent’s position on claim item 10 is that it was not raised as part of the PDI or at the August 2024 conciliation inspection, and further, that photo evidence demonstrates the alleged defect was not present at those times. The respondent also argues that the builder did not perform any painting services in the area specified by the appellants between the first and second conciliation inspections. As such, the respondent concludes the alleged defect was not caused by the builder and that this item is therefore non-warrantable.

23For claim item 41, the respondent argues that the workmanship and materials are acceptable by industry standards because they meet the performance set out in CPG article 9.9. The respondent also contends that the photographs taken by the appellants were not captured from a “normal viewing position” and are therefore of little probative value.

24For claim item 55, the respondent relies on CPG article 9.6 to show the drywall blemishes it assessed are not warrantable because: (1) they are not noticeable from a “normal viewing position;” (2) they resulted from normal shrinkage of materials due to drying after construction; and (3) they were reported after the PDI and therefore cannot be attributed to the builder as causing the damage. I find the respondent’s position on claim item 58 is essentially the same as that articulated for claim item 55.

25For all four claim items addressed here, the respondent adds that the appellants have not produced quotes to substantiate damages.

26I have proceeded to analyze these claim items together because I am satisfied they involve essentially the same complaints of poor finishing work on drywall and window trim throughout the home. Further, they all rely on the same evidence.

27I find all four claim items were reported at the time the PDI walkthrough was completed. Item no. 1 on the August 2023 PDI form reports “drywall, trim and paint touch-ups throughout the house.” In my view, this description is consistent with the claim items as documented by the appellants on their 30-day form, irrespective of the lack of specifics offered in either document.

28I disagree, however, with the appellants’ position on the reasonableness of specifying every defect they seek to have remedied as part of those claim items. The onus is squarely on the appellants to prove their claim. As such, they bear the responsibility to point to the defects they want considered for warranty repair and cannot simply delegate to the builder or the respondent by referring to the whole house without any particularization whatsoever.

29In saying so, I do not discount the tedious nature of identifying each individual blemish they seek to have remedied. Based on the photos filed by the appellants, I accept it was a tiresome exercise to mark blemishes in the family room and kitchen areas. However, it remains that the appellants have not led evidence that persuades me they pointed out the defects (i.e. those depicted in the nearly three-dozen photos they filed) to the respondent at the time of either conciliation assessment, save for claim item 10. In fact, their written submissions do not cross-reference the photos they filed to specific areas of the house or to the photos taken by the respondent and included in the conciliation assessment reports. Nor do any of the appellants’ photos show attempts to mark the location of blemishes on walls, ceilings, or window frames as they did in the separate images of the kitchen and family room. Apart from the two photos depicting the arched transom at the main entrance, I do not see a clear nexus between the photos of areas inspected by the respondent during its conciliation assessments and those filed by the appellants. I therefore placed little weight on the series of “painting and mudding” photos as evidence of a warranty breach for these four claim items.

30Moving then to the specific defects assessed in the conciliation reports for these claim items, I find the appellants pointed the respondent to the arched transom at the main entrance for claim item 10. In my view, the evidence establishes that the paint finishing at this location fails to meet the acceptable standard set out at CPG article 9.9. The March 2025 conciliation assessment report says the respondent observed—from a normal viewing perpendicular position under normal lighting conditions—that the painted finish appeared as “fish scale or alligator skin.” This observation is consistent with what I see in the appellants’ photos of this area, albeit from a closer view than the respondent’s photos. Although the report does not specify a CPG reference, I take the analysis articulated in the report to mean that CPG article 9.9 was applied, which states:

“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.”

When I consider this industry standard against the respondent’s observations as documented in the conciliation assessment report, I conclude that claim item 10 is, in fact, a breach of warranty because it is not a properly painted surface and therefore constitutes a defect in either workmanship or materials. I discounted the respondent’s observation that the paint scaling was consistent with the application of an incompatible chemical because this amounts, in my view, to mere speculation without supporting evidence. I would add here too that the photos in the March 2025 conciliation report did not persuade me that the defect was absent at the time of the August 2024 conciliation assessment. This is because I could discern no difference between the images as presented in the report. Further to this, I find the photos in the August 2024 report are distinguishable from images included with the March 2025 report because they involve an investigation of trim joint gaps (i.e., not painted surfaces) that do not appear to directly involve the arched transom.

31While the appellants did not submit evidence to support compensable monetary damages for claim item 10—and therefore cannot prove their entitlement to payment from the guarantee fund—it remains that the damage to their arched transom is warrantable. And when I consider that the remedial nature of the Act is well-established and 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)], I find it appropriate, in this case, to apply sections 14(12) and 14(19) of the Act. That is to say, I direct the respondent to perform or arrange for the performance of the work to repair the damaged paint finish on the arched transom at the main entrance. In my view, this is the action the respondent ought to take, given that its conciliation report describes a painted surface that clearly does not comply with the performance standard set out at CPG article 9.9. I find too, that this approach is consistent with the appellants’ request in their reply to remediate any deficiencies by directing they be “corrected by licensed contractors” as opposed to compensation paid from the guarantee fund that would require the appellants to source their own repairs.

32Pivoting then to the remaining three claim items, when I consider the email communications between the appellants and the builder, I am not persuaded they prove a warrantable defect for claim items 41, 55, and 58. Here are the excerpts relevant to these claim items:

Appellants on September 19, 2023: “… I am writing to express my concerns regarding the workmanship of the painters employed by Painters with Paradise in relation to our recent property purchase … [a]s we prepare to move into our new home, we have encountered several issues that require your immediate attention. Firstly, we have noticed a significant discrepancy in the quality of the paintwork including mudding, and sanding throughout the house. The painters have inadvertently covered electrical outlets and lights with paint, and the overall finish of the walls leaves much to be desired. We don't see any smoothness on the walls. These essential aspects of the property should have been addressed to a satisfactory standard prior to our closing. Moreover, we are moving in and placing our furniture across the walls with unfinished paint and [mud] job. We have scheduled blind installation for next week and the paint job on the window frames is unfinished. Also, I have noticed paint spots on our carpet and hardwood, which indicates that the [p]ainters did not take any precautions to prevent any damage to the floor.”

Appellants on September 25, 2023: “… I am writing this email to raise concerns about Paradise workmanship and customer service. We did not receive any help from Paradise, we are still waiting for reply in regards to paint since last 2 weeks, and PDI issues. I was told that they are busy with paint schedule and unable to complete their deficiencies.”

Builder on September 26, 2023: “…[The builder] has contacted the painting contractor on your behalf and they have advised they do not have any time in their schedule to accommodate your request any sooner.”

33In my view, these emails establish that the appellants followed up on their PDI observations about workmanship-related concerns with sanding, mudding, and paint application on September 19, 2023, and September 25, 2023. The emails also show that as of September 26, 2023, the builder had not yet commenced any repairs to address these complaints. However, I am not satisfied this evidence is sufficient to meet the appellants’ onus. The emails do not indicate qualitative blemish features that can be objectively measured against an industry standard to corroborate defective performance. Rather, I find the e-mails relate only that the appellants remained dissatisfied with the finishing aspects of their drywall installation and window trim several weeks after closing on the sale of their home.

34For example, the appellants note in their email to the builder that the paint job on their window frames is unfinished. As well, the appellants convey that they do not see any “smoothness” on the interior walls of their home. While I agree that the bulk of the photos the appellants filed to support these claim items do indeed depict visible variations in finish (i.e., blemishes) that include nail pops, scratches and uneven surfaces, I find the probative value of this evidence is diminished because the appellants did not establish any of their filed photos were taken from a “normal viewing position” as indicated in CPG articles 9.6 and 9.9, respectively:

“Interior finished drywall (excluding garages and unfinished areas) shall be free from damage (dents and gouges) at the time of the PDI and be installed according to the Building Code. Blemishes readily noticeable when viewed under normal lighting conditions from a normal viewing position 1,800 mm perpendicular distance from the wall surface are unacceptable. [emphasis added];

and

“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.” [emphasis added]

While the appellants maintain the blemishes are clearly observable under any “reasonable” viewing conditions, I find this argument fails because the appellants do not lead evidence of an industry standard to qualify what is, in fact, a reasonable viewing condition in contrast to the CPG. Put differently, they rely only on their opinion of what a reasonable viewing distance is, which is insufficient to meet their onus. Similarly, I reject the appellants’ position that the CPG articles contemplated by the respondent do not apply to these claim items because the work was never properly completed to begin with—it remains that the appellants have not pointed me to an industry standard to show what constitutes “properly completed” and how these claim items fail to reach that level of performance.

35In contrast, I am persuaded by the August 2023 conciliation report of the respondent, which documents its investigation with photos that I accept depict industry-specified viewing distances and applies its observations to performance standards set out at CPG articles 9.6 and 9.9. For claim item 58, the report concludes that the ceiling surfaces specified by the appellants were observed to be free from damage or unacceptable blemishes when inspected “[u]nder natural and illuminated lighting conditions and from a normal perpendicular viewing position no less than 1,800 millimetres to the [ceiling surface].” For claim item 41, the report concludes that when viewed “without magnification, from a minimum perpendicular distance of 1,500 mm under normal lighting conditions and from a normal position, [the respondent] observed the window trim as acceptable with properly painted surfaces produced on every exposed surface where a painted finish is specified…”. I find the accompanying photos are consistent with, and support the respondent’s documented observations for both claim items. I make the same finding for claim item 55 as documented in accordance with CPG 9.6 in the respondent’s March 2025 conciliation report.

36When I take all this evidence together on a balance of probabilities, I find the appellants have not shown a breach of warranty for claim items 41, 55 and 58. Accordingly, I find it unnecessary to address damages associated with these three claim items.

Claim item 12: “Damaged garage door installed.”

37I find the appellants have demonstrated this claim item is a breach of warranty.

38The appellants submit that they notified the builder about damage to their garage door on September 11, 2023, which I agree is post-PDI and prior to submitting their 30-day statutory warranty form on October 17, 2023. They say the builder confirmed it was aware of the damage at the time of possession, and that the builder initially agreed to fix the damage and had ordered parts to do so. The appellants therefore reason that the builder is obliged to remedy the damage despite later reversing its decision and denying accountability for the damage.

39The respondent argues this claim item did not appear on the appellants’ August 2023 PDI, and that owing to the “pattern of damage” on the door, it is unlikely to have been missed at the time they completed their walkthrough. The respondent also argues that the appellants had already moved into their home a week before reporting the alleged defect, which diminishes their position that the builder installed a damaged door. The respondent adds that the appellants have not produced quotes to substantiate damages.

40While I am not persuaded that the builder knew the garage door was damaged prior to it being raised by the appellants, I am satisfied the builder nevertheless took responsibility to remedy the damage as a 30-day warrantable item when I consider the email evidence relied upon by the appellants. The email exchange of September 11, 2023, which I find pertained specifically to the garage door, reads as follows:

Appellants: “… we have noticed that [the] garage door was installed damaged. Please see the attached picture.”

Builder: “Thank you for the pictures, I will send a workorder request out to our garage door company and will have this issue looked at for you.”

41Then, on March 15, 2024, the builder sent an e-mail pertaining to a larger group of 30-day conciliation items that noted the following about the garage door:

Builder: “Garage door panel is on order and once a part is available they will contact you/me for a service date.”

42In my view, the builder’s written confirmation that it: (1) was undertaking a workorder to review the damage; and (2) had subsequently ordered a panel for the garage door with intentions to arrange a future service date, is persuasive evidence that shows it had reviewed and accepted the garage door damage as a warrantable 30-day claim item. The builder’s March 2024 email cites case number 08316120, which validates the garage door panel was ordered as part of the 30-day repairs it was completing because this case number cross-references to the respondent’s 30-day conciliation assessment report completed in October 2024. In my view, the documentary evidence outweighs the respondent’s theory that the appellants could have caused the damage at the time they moved their personal effects into the home. While I agree the respondent’s theory is plausible, it still amounts to mere speculation and it is not supported by the builder’s actions. Further, I disagree that the “pattern of damage” depicted in the photos would be unlikely to be missed at the time of the PDI walkthrough—the damage is at the base of the garage door (i.e. not at eye level) and is not, by my eyes, a sizeable area that would immediately attract attention. In other words, I am satisfied that it is reasonably possible the damage could have been missed.

43When I take all this evidence together on a balance of probabilities, I find the appellants have established this claim item as a breach of warranty. And like claim item 10, I direct the respondent to perform or arrange for the performance of the work to repair the damaged garage door panel in lieu of claimed damages. In my view, this is the action the respondent ought to take, given that the builder had already placed an order for materials and contemplated the scope of repair (i.e., it anticipated scheduling a service date) to remedy the damage prior to the August 2024 conciliation assessment.

Claim item 16: “Missing floor drain in laundry room, I was told they ‘don’t do it.’ Floor drain in laundry is standard facility offered by [b]uilders (this is our third new home). However, it was not installed by [the builder].”

44I find the appellants have not shown a warranty breach for this claim item.

45The appellants submit that Schedule B of the APS contemplates “drainage accommodations” as part of their home’s laundry room design. They therefore reason that the omission of a floor drain in their second-story laundry room—which they assert is inconsistent with the construction practices in all three new homes they previously purchased—fails to satisfy a “basic building code” and an industry standard practice to mitigate flooding risk. In their reply submissions, the appellants add that laundry floor drains are recognized as a “normal” part of home construction in CPG 6.14.

46The respondent argues that the appellants cannot rely on their experience with previous homes to inform the construction of their current home. The respondent also argues that the appellants do not point to industry standards that show a laundry drain is required, or to their APS to show it was planned as part of construction. The respondent adds that the appellants have not produced quotes to substantiate damages.

47I am not persuaded that Schedule B to the APS says that drainage requirements, and specifically floor drains, are a required part of the laundry room design for the appellants’ home. The section relied upon by the appellants is at paragraph 4 of the purchaser’s acknowledgements, which says: “[l]aundry room layout and stairs are particularly susceptible to alteration in order to accommodate building code, municipally approved grading and drainage requirements.” In my view, this says only that municipally approved drainage requirements may cause alterations to laundry room design. The appellants did not lead evidence that persuades me of any laundry drainage requirements approved by the municipality for their home, or even that a floor drain is, in fact, a municipal requirement for their home’s laundry room. In contrast the September 2023 email from the builder specifies that “floor drains are not provided in laundry rooms in any of our models, nor is it [offered as] an upgrade … [the builder] has never installed drains in laundry rooms in any past projects.” As such, I agree the appellants have mischaracterized their APS and therefore attributed little weight to their position.

48While I have no reason to doubt that new homes previously purchased by the appellants had laundry floor drains installed—or that the home builders specified in the appellants’ reply submissions include laundry drains in their construction—I find this falls short of showing the lack of one in their present home constitutes a warranty defect under section 13 of the Act. Further, while I take notice that floor drains in laundry rooms can mitigate flooding risk, it remains that the appellants did not point me to industry standards or building codes that show drain installations in laundry rooms are required as a matter of compliance.

49I disagree that CPG article 6.14 supports the appellants’ position. The fact that laundry drains are mentioned in the context of sewage backups does not establish that the respondent recognizes laundry drains as a “normal” part of home construction. And more to the point, it does not persuade me that laundry drain installations are required by an industry standard.

50When I take all this evidence together on a balance of probabilities, I find the appellants have not demonstrated a breach of warranty for this claim item. Accordingly, I find it unnecessary to consider whether damages are payable from the guarantee fund.

Claim item 17: “Washer and Dryer has been installed in opposite directions. Extremely difficult to transfer laundry from washer to dry.”

51I find the appellants have not established a breach of warranty for this claim item.

52The appellants submit that the builder failed to properly design the laundry room layout to allow for practical and functional appliance installation. They say their washer and dryer can only be installed in opposing directions because of where the utility connections are located for plumbing, venting, and electrical. The appellants explain that this causes the front-loading doors to open into each other, thereby restricting the in-between space used to transfer laundry between the appliances.

53The respondent argues that Schedule E of the APS puts responsibility on the appellants to install their own appliances, including their washer and dryer. As such, the respondent reasons that the thrust of the appellants’ complaint about the “awkward” set up is not warrantable because it does not pertain to materials or workmanship provided by the builder. The respondent further submits that there is no functional or operational issues with the washer and dryer. Like claim item 9, the respondent relies on Jelic to show aesthetic considerations without a functional component are not warranted. The respondent adds that the appellants have not produced quotes to substantiate damages.

54While I agree that Schedule E of the APS puts the onus on the appellants to install their appliances, I am also satisfied that the appliances themselves were to be provided by the builder as part of the purchase price of the home. Schedule E says: “[t]he purchase price [of the home] shall include the following … [builder] to supply and purchaser to install standard fridge, stove, washer, dryer, and dishwasher … [w]hite washer and dryer from [s]tandard [l]ine.” As such, it follows that the builder ought to provide appliances that work with the electrical, plumbing, and venting systems it installed, as well as function in the living space they occupy.

55The photo evidence does not persuade me that the laundry room layout is dysfunctional, or that the appliances are ill-suited to the laundry room design. While I agree that front-loading doors opening into each other interferes with the overall functionality of the appliances—in that it restricts available space to perform efficient laundry transfers between machines—I am not satisfied that the location of utility connections prevents the appellants from simply switching the positions of their machines to resolve the door issue. The photo produced by the appellants does not depict where the dryer vent is located or the placement of the electrical outlets. Further, the appellants did not point to any installation recommendations from the OEM to show that the utility connections as constructed by the builder are incompatible with swapping the positions of the appliances. While the appellants are not required by the Act to provide photos of utility connection placement or produce OEM installation recommendations to prove their case, it remains that they did not and therefore failed to persuade me that their laundry appliances must be installed in their present configuration.

56What I can discern from the photo included with the October 2024 conciliation assessment report, is that the faucets which presumably service the washer appear to be positioned closer to the centre of the wall than either of the sides, affording flexibility to install the washer in either position. I find this evidence diminishes the appellants’ position.

57When I take all this evidence together on a balance of probabilities, I find the appellants have not demonstrated a breach of warranty for this claim item. Accordingly, I find it unnecessary to consider whether damages are payable from the guarantee fund.

Claim item 20: “Drywall/walls at multiple locations are [not] straight, we can see drywall/framing is not straight. U[nprofessional work]/[u]nskilled work.”

58I find the appellants have not demonstrated a breach of warranty for this claim item.

59The appellants submit—both in their written submissions and reply—that the drywall and baseboard at multiple locations throughout the home appear misaligned and exhibit a “wavy” appearance. They discount the respondent’s application of CPG article 3.2 on the basis that this claim item extends well beyond “localized variances” to include inconsistent framing and visibly substandard walls in multiple areas throughout their home. The appellants also submit that the methodology used by the respondent to measure wall deviations was inadequate.

60The respondent argues that the August 2024 conciliation assessment revealed no distortions in wall construction that exceed the 15-millimetre standard set out at article 3.2 of the CPG. The respondent also relies 7506 v. Tarion Warranty Corporation, 2012 CanLII 71130 ON LAT (“7506”) to show that the appellants’ “unsubstantiated representations” about wall bowing cannot give rise to a warranty breach. The respondent adds that the appellants have not produced quotes to substantiate damages.

61While I agree that CPG article 3.2 specifies local areas of distortion, I disagree with the appellants’ position that CPG article 3.2 should not be applied to this claim item because wall bowing occurs in multiple areas of their home. Put differently, I find that where multiple areas of bowing exist, CPG article 3.2 indicates a localized measurement be taken for each of those areas. I do not see this as being incompatible with the claim item as described by the appellants.

62Rather, I accept CPG article 3.2 as a useful starting point to interpret when wall bowing—whether in just one localized area of the home or in multiple areas of the home—would qualify as a defect in workmanship or materials under section 13 of the Act. CPG article 3.2 says that where bowed framing causes local distortion, the variation shall not be more than 15 mm from the specified plane. CPG article 3.2 also provides that bows exceeding the acceptable condition shall be repaired.

63The appellants did not lead evidence in their written submissions that shows wall bowing in excess of the performance standard set out at CPG article 3.2. Similarly, I was unable to locate any reference to this claim item in the document brief index they provided. I find the appellants did not produce any measurements of their own to quantify the degree of wall bowing in the localized areas that were specified during the conciliation assessment.

64For clarity, this is not to say the respondent’s evidence establishes the performance standard at CPG article 3.2 is met. On the contrary, the October 2024 conciliation assessment report does not articulate or include photos that depict the measurement methodology used, or even specify the measurements that may have been taken. As such, I find the respondent’s warranty decision is unsupported. However, given that the onus is on the appellants to prove a warrantable defect, the low probative value of the respondent’s evidence matters little where the appellants’ own evidence falls well short of proving their claim.

65When I take all this evidence together on a balance of probabilities, I find the appellants have not demonstrated a breach of warranty for this claim item. Accordingly, I find it unnecessary to consider whether damages are payable from the guarantee fund.

Claim items 28 and 47, respectively: “Exhaust for powder room venting in backyard. We are unable to locate any house in the neighbourhood with same exhaust location. Unprofessional work.” | “[V]ery cheap quality exhaust fans throughout the house, not enough CFM, very noisy.”

66I find the appellants have not shown a breach of warranty for these two claim items.

67For claim item 28, the appellants submit that the ineffectiveness of an inadequately sized exhaust fan in their powder room is exacerbated by an “unusually long” venting duct. They also submit from a common-sense perspective that venting the exhaust to the backyard is inappropriate because of “nuisance odours” and moisture that encroach on space commonly used for outdoor activities and relaxation. The appellants assert—both in their written submissions and reply—that the respondent’s methodology for assessing the exhaust fan’s performance was inadequate and does not measure the true performance of the exhaust system. The appellants further contend in their reply that the purpose of the venting system is to “remove odours” as opposed to simply dispersing them to the outdoors.

68For claim item 47, the appellants submit that “with heat calculations and size of the room, the fans installed by the builder are not enough for adequate ventilation in all washrooms and laundry room.”

69The respondent argues that claim item 28 was assessed during both conciliation assessments, and that neither inspection determined a breach of warranty. The respondent explains that the location of the exterior exhaust vet is not specified in the APS or OUA, and further, that the ventilation system operated as intended when tested. The respondent submits for claim item 47 that the supplemental exhaust fans installed in the appellants’ bathrooms comply with the OCB and the ventilation requirements of the municipality.

70For both claim items, the respondent adds that the appellants have not produced quotes to substantiate damages.

71I have addressed these items together because the appellants’ written submissions combine these claim items and rely on the same evidence.

72The appellants have not shown that the ducting used in the powder room exhaust fan system is “unusually long” or constitutes a defect. The appellants’ written submissions do not direct me to evidence of duct length requirements, whether as part of a 50 cubic feet per minute (“CFM”) fan exhaust system or otherwise. While their reply submissions mention that the respondent’s “own referenced materials indicate limits on duct length,” they did not pinpoint where this is indicated or what materials they are referencing. Further, I note that the appellants indicate in their document brief index that a five-inch duct was installed instead of the six-inch duct recommended in the bathroom fan installation manual. I placed little weight on this evidence because the appellants did not establish that five-inch duct work was, in fact, installed. And even if I did accept that the installed duct sizing was not consistent with the OEM’s recommendations, I would still attribute little weight here because the appellants have not persuaded me that their bathroom fan is venting improperly.

73I find the heating, ventilation and air conditioning (“HVAC”) drawings and floor plans the appellants filed do not assist with proving either claim item because their written submissions do not pinpoint what aspects of these many document pages they rely on to support their position (i.e., where do they indicate a different fan is recommended or an alternate powder room exterior vent location?). Similarly, the appellants’ written submissions do not pinpoint evidence in their brief to support their assertion that 50 CFM fans are inadequate to ventilate all washrooms and the laundry room. While they did file an installation manual and specifications sheet for an 80 CFM fan (i.e., model ZB80M) with their evidence, I find the appellants did not establish that this model is, in fact, the recommended model for their home as opposed to the existing 50 CFM fan model. Further, the appellants did not lead evidence of any “heating calculation” that demonstrates the fans in their washrooms and laundry room are sized improperly.

74None of this is to say that the bulk of the respondent’s evidence on these claim items is any more persuasive. On the contrary, the March 2025 conciliation report does not specify what aspect of the OBC it relied on to confirm the supplemental fans were compliant. It vaguely refers to “documented evidence” submitted by the builder and the respondent’s written submissions do little to clarify. Similarly, the respondent’s written submissions do not pinpoint what aspect of the municipality’s requirements apply to either claim item.

75Further, I do not accept the calculation of supplemental air exhaust intake performed by the respondent. I see no mention of the reference values or embedded chart at the coordinates pinpointed in the respondent’s written submissions (i.e., page five of Tab 12). I would say too, that the respondent’s position on these claim items was hindered by its failure to consecutively number pages at Tab 12 as ordered by the Tribunal. In any event, I reiterate here that the appellants bear the onus to prove their case, so the persuasiveness of the respondent’s evidence is of less importance where the appellants’ own evidence falls short.

76While the appellants are critical of the methodology used by the respondents to test the ventilation system, I find they did not establish, with evidence, what adequate testing would otherwise consist of. The March 2025 conciliation assessment report says the exterior vent cover louvres remained closed when the fan was off and opened when the fan was turned on, indicating the fan was removing stale interior air to the outside of the home as intended. I accept this as a persuasive indicator of performance more so than the appellants’ opinion that an “air bomb” or “CFM measurement test” should have been performed to determine the “true performance” of the installed equipment. In my view, it was open to the appellants to have such tests conducted and put before this Tribunal for consideration. They did not do this. They also did not establish an industry standard that requires a ventilation system to remove odours as opposed to simply dispersing them outside where they can re-enter the home through an open door or window. I therefore conclude that the appellants have not met their onus to show a breach of warranty based on underperforming ventilation equipment.

77For completeness, I note here too that “noise” was raised as part of claim item 47 when the appellants submitted their 30-day statutory warranty form. However, the extent to which they address this aspect of their claim in their written submissions is to annotate product sheet entries in their document brief index. I find they make no discernible arguments about fan noise level in their written submissions to provide the context necessary to support their case. When I consider that the product sheets specify noise levels up to 3.5 sones, I find this is insufficient to meet the appellants’ onus because they do not point me to an industry standard for exhaust fan noise that demonstrates 3.5 sones is outside compliance levels. In contrast, the respondent’s submissions point to OBC section 9.32.3.9, which I accept establishes 3.5 sones as the maximum sound rating for bathroom fans. While I accept that the noise generated by exhaust fans approaching the OBC-specified limit may be “significant” as argued by the appellants in their reply—and that the fans themselves are perhaps of lesser quality than the appellants would prefer—it remains that the noise rating of the bathroom and laundry room fans in the appellants’ home complies with a verifiable industry performance standard and are therefore not warrantable under the Act.

78When I take all this evidence together on a balance of probabilities, I find the appellants have not demonstrated a breach of warranty for this claim item. Accordingly, I find it unnecessary to consider whether damages are payable from the guarantee fund.

Claim item 43: “R[ailing] above the front porch, huge risk for damage to person walking into our house. Unfinished work/[safety concern].”

79I find the appellants have not established a breach of warranty for this claim item.

80The appellants submit that their front porch parapet is not high enough to retain snow or ice accumulation and requires some type of railing or guard to prevent melting ice and snow from falling onto persons approaching or entering the home. While the appellants acknowledge that the APS does not specify a railing or ice guard for the front porch parapet, they assert that the builder has a responsibility to deliver homes that are “reasonably safe” and meet practical safety standards.

81The respondent argues that there is no requirement for an ice guard specified in the APS or OUA. The respondent adds that the appellants have not produced quotes to substantiate damages.

82The extent of the evidence filed by the appellants for this claim item is a photo of the parapet from what appears to be a second story bedroom window. This is not sufficient to meet their onus. Again, the appellants rely on their opinion without corroborating evidence of non-compliance with an industry standard to prove their claim. For example, the appellants’ written submissions do not direct me to evidence that shows the parapet fails to meet “practical safety standards” or is not “reasonably” safe. In fact, they do not specify what safety standards they rely on.

83When I take all this evidence together on a balance of probabilities, I find the appellants have not demonstrated a breach of warranty for this claim item. Accordingly, I find it unnecessary to consider whether damages are payable from the guarantee fund.

Claim item 59: “Light in master bedroom is not in centre of the room, at least 3-4ft off.”

84I find the appellants have not demonstrated a breach of warranty for this claim item.

85The appellants are dissatisfied with the placement of their master bedroom ceiling light. While the appellants do not dispute that the location of the overhead light fixture is unspecified in the APS, the appellants deny that this grants the builder discretion to “arbitrarily” install light fixtures in locations that are “visibly awkward and aesthetically unacceptable.” The appellants add that the APS does not allow the builder to deviate from “standard industry practice” or to place lighting in a manner that “clearly disregards room symmetry and functionality”.

86The respondent relies on Jelic to show that aesthetic concerns alone do not indicate a warranty breach and maintains that its inspection determined there are no functional issues with the light fixture. The respondent adds that the appellants have not produced quotes to substantiate damages.

87The appellants have not pointed me to the “standard industry practice” they rely on to show that the builder’s workmanship is defective. Their evidence consists of two photos of the overhead light, which is turned on and appears to be functioning as described in the respondent’s submissions. As such, I conclude that this claim item relies only on the appellants’ opinion, which is not sufficient to show a warranty breach.

88When I take all this evidence together on a balance of probabilities, I find the appellants have not demonstrated a breach of warranty for this claim item. Accordingly, I find it unnecessary to consider whether damages are payable from the guarantee fund.

ORDER

89The appellants are entitled to repairs to the painted surface of the arched transom at their main entrance per claim item 10, as well as the replacement of their damaged garage door panel per claim item 12, and I direct the respondent to perform or arrange for the performance of this work. The appellants are not entitled to any of the remaining claim items.