Suzette Lake and Rob Lake v. Tarion Warranty Corporation, 2026 CanLII 45584

Licence Appeal Tribunal

Licence Appeal Tribunal File Number: 18079/ONHWPA

In the matter of an appeal of a Decision of Tarion Warranty Corporation under the Ontario New Home Warranties Plan Act, R.S.O 1990, c. O.31 (“Act”) to disallow a claim.

Between:

Suzette Lake and Rob Lake

Appellants

and

Tarion Warranty Corporation

Respondent

MOTION DECISION

Adjudicator: Jan Dymond, Vice Chair

For the Appellants: Suzette Lake, self-represented
Rob Lake, self-represented

For Tarion: Carling Chan, Counsel

Heard by way of written submissions

OVERVIEW

1Suzette and Rob Lake (“appellants”) appeal from a Decision Letter (DL) dated December 5, 2025 issued by Tarion Warranty Corporation (“Tarion”) to deny the appellant’s claim pursuant to s.14(3) of the Ontario New Home Warranties Plan Act, R.S.O 1990, c. O.31 (“Act”) relating to alleged unauthorized substitution of basement insulation.

2A case conference was held on January 30, 2026. A Case Conference Report and Order (“CCRO”) dated February 23, 2026, set the matter for a written hearing to be held on June 24, 2026, and dates by which the parties are required to exchange all documents upon which they intend to rely at the hearing. Exchange/Production of Documents deadlines were set as March 20, 2026 (appellants) and April 24, 2026 (Tarion). At the case conference, the appellants advised that they would file an expert report, and Tarion indicated that they might wish to file a responding expert report.

3Tarion submits that upon review of the appellants’ disclosure documents, they became aware of an expert report dated February 11, 2026, prepared by Terraspec Engineering. In response, Tarion sought the permission of the appellants to permit a further inspection by a Tarion engineer; however, the appellants denied Tarion’s request.

4On April 15, 2026, Tarion filed a Notice of Motion (“NOM”) requesting the Tribunal to issue orders that:

(a) Tarion’s engineer, Building Knowledge Canada Inc. (“Building Knowledge”), be provided access to inspect the existing basement insulation at the home that is the subject of this appeal;

(b) Building Knowledge be permitted to conduct the above inspection by no later than April 30, 2026, or as otherwise agreed to by the parties; and,

(c) Tarion’s production deadline be extended to 7 days after Building Knowledge conducts its onsite inspection.

5The appellants oppose the NOM.

6The Tribunal ordered the matter to be heard by way of written submissions. Both parties submitted submissions in accordance with the deadlines set by the Tribunal.

RESULT

7Tarion’s motion for an order that its engineer be provided access to inspect the existing basement insulation at the home that is subject of this appeal is denied.

8As the request that Tarion’s engineer be provided access to inspect the existing basement insulation is denied, the requests with respect to a deadline for the inspection and an extension of Tarion’s production deadline are moot and, therefore, are not considered.

ANALYSIS

Tarion’s request for an order that its engineer be provided access to inspect the existing basement insulation is denied.

9Tarion submits that the Tribunal should grant the orders requested in its NOM in the interests of procedural fairness. They further submit that the Tribunal has to authority to do so under the Act and under Rules 3.1 and 9.2 of the Licence Appeal Tribunal Rules, 2023 (“Rules”).

10Tarion cites sections 14(6), 14(7) and 14(8) of the Act in its submissions but does not indicate its relevance to the motion before me. Section 14(6) obligates Tarion to investigate a concern giving rise to a claim. Section 14(7) of the Act provides that, in investigating a concern giving rise to a claim under 14(6), the Corporation may make any inquiries, conduct any inspections or apply any technical or other expertise that it considers appropriate. Section 14(8) provides that individuals making inquiry or inspection under s. 14(7) may be accompanied by experts or those with professional knowledge. I note that the provisions under s.14 apply prior to a notice of decision being issued under s.14(13) and prior to any appeal under s.14(14). I find that, had the legislature intended the Corporation to have a right to inspections without once a decision letter has been issued, or for the Tribunal to have the authority to order such inspections after an appeal has been initiated, they would have included that right in Act. If Tarion believes it has a right of inspection without consent under s. 14, they would have no need to apply to the Tribunal. In turning to the Tribunal, Tarion seems to be acknowledging that the provisions under s.14 do not apply at this point in the claim.

11Tarion submits that the Tribunal has the ability to make the requested orders under Rules 3.1 and 9.2 of the Rules. They submit that Rule 3.1 permits a liberal interpretation of the Rules to ensure efficient, proportional and timely resolution of the merits of the proceedings before the Tribunal and that the Tribunal should apply a liberal interpretation of Rule 9.2 to make the requested orders.

12Tarion submits that procedural fairness demands that they have an opportunity to file a responsive report. They submit that the request falls within the purview of Rule 9.2 and is relevant, not duplicative, and will provide the Tribunal with evidence essential to proper adjudication of the appeal on its merits. They further submit that the requested order does not prejudice the appellants while to deny it would be procedurally unfair to Tarion as it would deprive Tarion of a full opportunity to present its case. I agree that the inability to prepare a responsive report may result in prejudice to Tarion; however, nothing precludes Tarion from raising the fact that they were prevented from preparing their own challenge to the appellant’s report at the hearing.

13The Tribunal has the authority to order only what legislation authorizes it to order. The Tribunal’s authority to make rules that deal with disclosure derives from s. 5.4 of the Statutory Powers Procedure Act, R.S.O 1990, c. S.22 (SPPA) which states that the Tribunal may make orders for,

(a) The exchange of documents;

(b) The oral or written testimony of a party;

(c) The exchange of witness statements and reports of experts;

(d) The provision of particulars; and

(e) Any other form of disclosure.

14It is well established that the disclosure of documents and things under Rule 9.2 is limited to those documents and things that exist at the time of the order. I find that neither the SPPA nor the Rules provides the Tribunal with the authority to order a party to produce that which does not exist. By extension, it does not have the authority to order a party to take an action in order for the other party to create a document that does not exist, unless it is authorized to do so by another act. No such power is granted under the Act, nor has Tarion cited any jurisprudence that supports its position.

15Further, I find that the tribunal does not have the power to order Tarion to do something that Tarion is not allowed by law to do. While the Tribunal has certain powers to order things for the purposes of the hearing, if Tarion would not have the power to conduct an inspection (or to enter a home without consent from the owner), then the Tribunal cannot order them to do something that would not be within the law.

16Based on the parties’ submissions and the facts of this case, I find that the Tribunal does not have the authority to order the appellants to provide access to Tarion’s engineer to inspect the existing basement insulation at the home that is the subject of this appeal.

Conclusion

17Tarion’s request for an order that its engineer be provided access to inspect the existing basement insulation at the home that is the subject of this appeal is denied because I find that the Tribunal does not have the authority to order the appellants to provide Tarion’s engineer with access.

18As I have denied Tarion’s request for an order that the engineer be provided with access, the requests to set a deadline for granting access and for an extension of the production deadline is denied.

ORDER

19For the reasons stated above, Tarion’s motion is dismissed.