Jain v. Tarion Warranty Corporation, 2026 CanLII 53757

Citation: Jain v. Tarion Warranty Corporation, 2026 ONLAT 17303/ONHWPA

Licence Appeal Tribunal File Number: 17303/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:

Vinay Jain and Ronika Jain

Appellants

and

Tarion Warranty Corporation

Respondent

DECISION

VICE-CHAIR: Kevin Kovalchuk

APPEARANCES:

For the Appellant: Vinay Jain, Self Represented Ronika Jain, Self Represented

For the Respondent: Daniela Corapi, Counsel

Court Reporter: Veritext Court Reporting

HEARD BY VIDEOCONFERENCE: April 28 and 29, 2026.

OVERVIEW

1Vinay Jain and Ronika Jain (the “appellants”) appeal from a decision letter dated June 6, 2025, issued by Tarion Warranty Corporation (“Tarion”) denying the appellants’ claim for 30-day warranty coverage for seven items under section 14(13) of the Ontario New Home Warranties Plan Act R.S.O. 1990, c.O.31 (the “Act”) and for two items not included in the decision letter

ISSUES

2The issues in dispute are:

i. Whether the items claimed, or any of them, are warranted under the Act?

ii. If so, whether the appellants suffered monetary damages resulting from the breaches of warranty?

iii. If so, the amount of those damages.

RESULT

3The Tribunal orders that Tarion deny the appellants’ warranty claims that are the subject of this appeal.

PROCEDURAL ISSUES

4During the hearing the respondent raised an objection to the proposed admission as evidence of photographs and a video, that were taken by the appellants the morning of the second day of the hearing (April 29, 2026).

5I heard oral submissions from the parties with respect to the objection. The appellants did not make any submissions as to why the evidence should be admitted at such a late date. The respondents submitted that it would be procedurally unfair to admit the evidence at such a late date. I determined that as a matter of procedural fairness it would not be fair to the respondent to allow the admission of the evidence, mid hearing. I noted that the Case Conference Report and Order in this matter was dated August 25, 2025, and ordered that on or before November 3, 2025. each party was to file with the Tribunal and serve on every other party a PDF copy of the evidence the party would be relying on at the hearing. The appellant had almost six months to file and serve the proposed evidence prior to the hearing.

6I In addition, with respect to the probative value of the proposed photographic evidence I reviewed the photographs and determined that similar photographs had already been filed and marked as exhibits.

7Based on the above I declined to allow the admission of the evidence.

ANALYSIS

8Under s. 13(1) of the Act, every vendor or builder of a new home warrants to the owner that it is constructed in a workmanlike manner and is free from defects in materials, is fit for habitation, and is constructed in accordance with the Ontario Building Code (“OBC”). Under section 13(1), the builder also warrants to the owner such other warranties as are prescribed by the regulations.

9The appearance of the work, or aesthetics may play a role in some cases, but must be considered in relation to the concept of workmanship and not simply as a matter of the subjective assessment by the parties. This is because s. 13 does not provide for a warranty specifically for aesthetic matters but only for failure to construct in a workmanlike manner.

10Section 14 of the Act sets out the basis for compensation that might accrue to a homeowner if there is a breach of warranty under s. 13. Section 14(3) stipulates that, subject to the regulations, a homeowner is entitled to receive payment out of the guarantee fund for damages resulting from a breach of warranty.

11The onus is on the appellants to prove, on a balance of probabilities, that the defects in the home fall within the warranty coverage, that monetary damages have resulted from the defects and the amount of those damages. In doing so the appellant must establish the relevant standard of workmanship, and that the builder has failed to do the work in accordance with that standard.

12The Tribunal owes no deference to Tarion’s decision.

Warranty Claims

13The appellants have made claims for items which they say entitle them to compensation from the guarantee fund established in respect of items that are warranted under the Act. Those items, and my analysis with respect to each of those items are set out as follows. The item numbers reflect the numbers in the appellants’ claim form as well as the appellants’ wording of the items.

i. Floor is defective, poor workmanship squeaking noise all over floorboard, knots and gaps on floorboard everywhere knots are cracked and getting bigger by the day – items 1 and 2

14The appellants focused their testimony mainly on the knots in the flooring. They submitted a number of photographs in evidence, which they allege show knots and check marks in the floor. The appellants did not testify as to the size of the knots or check marks.

15The appellants called as a witness Jowan Preet Singh. Mr. Singh is a Realtor. He has visited the appellants house on at least ten occasions in the past year. His testimony was that the floor exhibits poor workmanship. On cross examination he admitted that he has no qualifications that would allow him to speak to construction deficiencies.

16The appellants also called Harjinder Sokhi as a witness. Mr. Sokhi testified that he is a professional mechanical engineer with a post graduate degree in business management. He is currently a franchise owner of an End of the Roll Flooring Centre in Pickering Ontario. He has been working in wood flooring since 2023 particularly in product design.

17Mr. Sokhi produced a report dated August 16, 2024, with respect to the flooring in the appellant’s home. He attended at the appellant’s home on that date, when he observed and took four pictures of the flooring. In his opinion, the curing of the flooring had not been done properly. In his report he opined that the flooring was milled from a lower graded character lumber with too many larger knots, mineral holes, streaks, poor filling and staining. He concluded that the flooring material must be substandard.

18With respect to the squeaking noise Mr. Sokhi was of the opinion that it was due to poor workmanship/installation.

19On cross examination Mr. Sokhi admitted that the pictures in his report did not show measurements of the knots. He testified that the knot shown in the first picture on page one of his report was 8 to 10 millimeters in diameter. He then admitted that he had made an educated “guess” as to the knot’s diameter. Although he had a measuring tape with him when he visited the appellants’ home, he did not have any notes of measurements. He did not count the number of knots in the flooring on the first and second floors of the house but noted that they were “everywhere”.

20Continuing his cross-examination Mr. Sokhi stated that he was of the opinion that the installer did not spend enough time determining where the planks should go so that the knots would not end up in the center of the room.

21Mr. Sokhi agreed with article 12.27 of the Construction Performance Guidelines (CPG) which states that knots or colour variation are acceptable with different grades of flooring.

22Keri Trelford, Warranty Service Representative for Tarion testified. She attended the appellants’ home on November 22, 2024, to conduct a reinspection. Ms. Telford testified that Article 12.27 of the Tarion Construction Performance Guidelines (CPG) states that “knots of colour variation are acceptable within different grades of flooring”. She also testified that she did not consider the knots in the appellants’ flooring to be unusual in the type of flooring (character grade) she inspected, as the knots are naturally occurring. The CGP while not binding on the Tribunal have been accepted as a helpful tool to determine what is acceptable and common in the residential construction industry.

23Stacey Peticca V.P. of Customer care for Fernbrook Homes testified. She testified that the appellants chose Northern Solid Sawn Wire Brushed Character VVF Red Oak 5-inch Titan flooring form the Fernbrook Interior Colour schedule. Her evidence was that the sample provided by the Fernbrook design center would have contained knots.

24Phil Kavanagh testified. He is the Inventory and Procurement Director for Vintage Hardwood Flooring (“Vintage”). He has been with Vintage for the past twenty-five years. Vintage supplied the flooring for the appellants’ home. Vintage was not the installer. He attended at the appellants home on September 26, 2023, to inspect the flooring. His testimony was that he saw numerous knots of various sizes as well as checks and voids in the flooring which he determined to be within normal tolerance.

25Mr. Kavanagh also testified that character grade flooring allowed for unlimited knots with no limitation of size, open knots which can have voids and may have checks and splits. His testimony was summarised in a report dated September 27, 2023.

26I accept the testimony of Phil Kavanagh that character grade flooring allows for unlimited knots with no limitation of size and that open knots can have voids and may have checks and splits. Mr. Kavanagh has been in the flooring industry for the past 25 years. Because of his experience in the flooring industry, I place a great deal of weight on his testimony.

27I further accept the testimony of Keri Trelford that upon inspection she did not find the knots in the flooring to be unusual for character grade flooring. Further I accept Article 12.27 of the CPG that knots are not unusual in character grade flooring.

28I also accept the testimony of Ms. Peticca that the sample provided by the Fernbrook design center would have contained knots. Her testimony was uncontradicted.

29I place less weight on the testimony of Mr. Singh based on his admission in cross examination that he has no qualifications that would allow him to speak to construction deficiencies.

30Because Mr. Sokhi did not measure the knots when he attended the appellants’ home (despite having a measuring tape with him), did not count the number of knots, but simply testified that the knots were “everywhere,” I find his testimony to be unhelpful.

31Further, I find that because Mr. Sokhi agreed with the CPG which states that “knots or colour variation are acceptable with different grades of flooring”, his testimony buttressed that of Keri Trelford with respect to the CPG being an applicable standard to apply to the flooring.

32Based on the above noted testimony of the various witnesses I am not satisfied that the knots and check marks in the flooring are a defect in material or workmanship but rather a matter of aesthetics. I find that this item is not warranted.

33With respect to the floor squeaking, Mr. Sokhi testified that he heard squeaking sounds when walking on the flooring. His testimony was that he “inferred” this to be an issue with how the floor was nailed down. He admitted that the only way to confirm that the squeaking was caused by a nailing issue was through destructive testing.

34The appellants did not present any other evidence as to the cause of the squeaking.

35Mr. Kavanagh testified that humidity levels could be a cause for floor squeaking. He agreed that destructive testing was needed to determine the cause of squeaking.

36Because the appellants could not point to any deficiency in workmanship or materials, I find that the appellants have not met their onus of proving on a balance of probabilities that this item is warranted under the Act.

37With respect to the gaps in the flooring Mr. Sokhi testified that the gaps were caused by poor workmanship. He did not present any evidence in support of his conclusion.

38The appellants did not present any evidence as to the size of the gaps.

39Keri Trelford testified that when she attended at the appellants’ home on November 22, 2024, she was shown uneven floorboards. She measured elevation differences and found them to be no greater than 0.5 millimetres. She referenced the CPG which states that “strip hardwood flooring or parquet flooring shall be installed to provide a surface where adjacent strips have no more than a 2 mm difference in elevation”.

40I accept the evidence of Ms. Trelford that the floorboards met the CPG guidelines, because she conducted measurements of the flooring. I have already noted that although the CPG while not binding on the Tribunal have been accepted as a helpful tool to determine what is acceptable and common in the residential construction industry.

41I find that the appellants have not met their onus of proving on a balance of probabilities that this item is warranted under the Act. They did not provide any objective evidence to substantiate their claim that there were gaps in the floorboards.

ii. Builder put colour on trim to match with flooring, colour is coming off everywhere and not looks good – item 3

42Mr. Sokhi testified that there should be no variation in colour between the trim and the flooring.

43Ms. Pettica testified that section 114 of the Agreement of Purchase and Sale (APS), (which the appellant Vinay Jain admitted to signing) states that “the vendor is not responsible for shade difference occurring from different dye lots on all materials such as … hardwood flooring, wood stairs”.

44I find that the appellants’ have not met their onus of proving on a balance of probabilities that there was a defect in workmanship or materials. The appellant Vinay Jain testified that he had signed and was aware of the APS.

45I find this item is not warranted.

iii. Staircase step damaged – item 4

46The appellants did not present any evidence on this issue.

47I find that the appellants’ have not met their onus of proving on a balance of probabilities that this item is warranted under the Act.

iv. Upper floor bedroom and living room ceiling not finished properly – item 5

48The appellants did not present any evidence as to why the bedroom ceiling was not constructed in a workmanlike manner.

49Keri Trelford testified that when she attended at the appellants’ home on November 22, 2024, she observed the bedroom ceiling under normal lighting conditions from a normal viewing position with the blinds open and closed. She did not observe any visible lines or imperfections and found the ceiling to be installed in a workmanlike manner.

50Ms. Trelford also referenced CPG 9.2 which states “In a room or area, applied ceiling texture (i.e. stipple) shall appear generally uniform when viewed from a normal viewing position under normal lighting conditions”.

51I find that the appellants’ have not met their onus of proving on a balance of probabilities that there was a defect in workmanship or materials with respect to the ceiling.

52I find that this item is not warranted under the Act.

53With respect to the living room ceiling, Section 14(14) of the Act allows for an appeal to the Tribunal of a decision made by Tarion in respect of a claim. As this item was not included in the DL of June 6, 2025, I find that it is not properly before the Tribunal.

v. AC installed on walk was not safe and block way to go in my backyard – item 6

54The appellant, Vinay Jain testified that the air conditioning unit “sticks out” four feet from the side of his house making it difficult for him to walk from the front of his house to his backyard without walking on his neighbour’s property. He would prefer that the air conditioning unit was at the back of his house.

55In cross examination Mr. Jain testified that the air conditioner works as intended and that he has no issues with its operation, only its location.

56Ms. Trelford testified that it is not uncommon for an air conditioning unit to be installed at the side of a house.

57Ms. Pettica testified that there is nothing in the Agreement of Purchase and Sale about where an air conditioning unit should be installed. In addition, she testified that the appellants’ house has a back door which would allow them access to their backyard.

58I find that the appellants have not met their onus of proving on a balance of probabilities that this item is warranted under the Act. The air conditioner functions as intended, and the appellant testified that he had no issues with its operation, only its placement. I find that its placement is a matter of aesthetics. As noted earlier in these reasons, s. 13 does not provide for a warranty specifically for aesthetic matters but only for failure to construct in a workmanlike manner.

vi. Kitchen cabinet door handle rubbing refrigerator door - item 7

59The appellant Vinay Jain testified that when the left door of the refrigerator is opened it makes contact with the handle on the kitchen cabinet next to it.

60On cross examination Mr. Jain was shown a document titled Appliance Specifications Acknowledgement dated April 23, 2022. He admitted that he was familiar with the document. The document notes that if the purchaser is planning on having built in appliances installed in their kitchen, they must provide specifications as this will require cabinetry changes which are also affiliated with additional upgrade charges.

61Ms. Pettica testified that purchasers are given a choice regarding appliances by Fernbrook Homes. They can take the appliances offered by the builder or they can take a cash allowance from the builder and purchase their own appliances. However, if a purchaser buys their own appliances, they must advise the builder of the dimensions of the appliances in order to ensure that the chosen appliances fit the kitchen cabinetry. If the appliance does not fit the kitchen cabinetry additional upgrade charges would be imposed on the purchaser to alter the kitchen cabinetry to allow the appliance to fit.

62Ms. Pettica testified that the appellants took the cash to purchase appliances, but they did not pay for the appropriate upgrades to their kitchen cabinetry to accommodate for the depth of the refrigerator the appellants’ purchased.

63Mr. Jain testified that he paid to upgrade his kitchen cabinets but could not remember how much he paid. He did not point to any evidence that he paid for an upgrade.

64I find that the appellants’ have not met their onus of proving on a balance of probabilities a defect in workmanship or materials and as such this item is not warranted.

vii. Garage step board is cracked - item 8

65Section 14(14) of the Act allows for an appeal to the Tribunal of a decision made by Tarion in respect of a claim. As this item was not included in the DL of June 6, 2025, I find that it is not properly before the Tribunal.

Conclusion

66I am not satisfied that the defects alleged by the appellants are warranted under the Act. Even if I did find one or more of the alleged defects to be warranted under the Act the appellants did not provide any evidence as to the quantum of damages they were seeking for any of the claimed items.

ORDER

67For the above reasons, and pursuant to s. 14(19) of the Act, the Tribunal orders that Tarion deny the appellants’ warranty claims that are the subject of this appeal.