Rajeshkumar Nakum v. Tarion Warranty Corporation, 2026 CanLII 6219

Licence Appeal Tribunal File Number: 16933/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 to deny a claim for compensation

Between:

Rajeshkumar Nakum

Appellants

And

Tarion Warranty Corporation

Respondent

DECISION

ADJUDICATOR: Michael Beauchesne

APPEARANCES:

For the Appellants: Rajeshkumar Nakum, Self-Represented

For the Respondent: Stewart MacNamara, Warranty Services Representative Ayesha Mehreen, Counsel

Court Reporter: Chelsea Griffiths

HEARD: by videoconference December 15-16, 2025

OVERVIEW

1Rajeshkumar Nakum (the "appellant") appeals a decision letter issued by the Tarion Warranty Corporation (the "respondent") and dated on February 26, 2025, under section 14(3) of the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31 (the "Act").

ISSUES

2The issues in dispute, in accordance with section 14(3)(b) of the Act and confirmed by the parties, are:

(a) Whether claim items 4, 5, 7, 8, 9, 10, and 16 on the year-end warranty form constitute a breach of warranty;

(b) If so, whether the appellant suffered monetary damages resulting from the breach(es) of warranty; and

(c) If so, the amount of these damages?

3The Tribunal must determine whether there is a breach of warranty with respect to each of the items in dispute; whether the breaches, if any, have resulted in damages; and the quantum of the damages. The appellant bears the onus of proving these three components on a balance of probabilities.

RESULT

4The appellant is not entitled to payment from the guarantee fund for any of the disputed claim items. The appeal is dismissed.

ANALYSIS

The appellant has not satisfied his onus to prove his claim items are warrantable under the Act.

5During the hearing, the appellant's testimony often relied on his own observations, feelings, and opinions to show materials and workmanship were deficient. The appellant did not specify an industry standard he was relying on in this context.

6In my view, it is not sufficient for the appellant to point to areas of construction with which he is dissatisfied and expect the Tribunal, in the absence of any other evidence, to conclude that workmanship does not meet industry standards simply because the appellant alleges it is so. There must be some objective evidence before the Tribunal defining the industry standard and identifying the manner in which 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") requirements and indicators set out by the Canadian Standards Association ("CSA") may provide helpful guidance as to the whether a defect in workmanship or materials is evident. However, where the appellant fails to point to any of these sources—or any other industry standards for that matter—to support his claim, I find he is unable to meet his onus. This principle is applied accordingly throughout my analysis of the claim items under appeal.

Claim item 4: The kitchen floor shakes when walked upon.

8I find the appellant has not shown this claim item has a warrantable defect of workmanship or materials.

9The appellant submits that the kitchen floor near the island shakes when it is walked upon because it is not structurally supported properly. He also asserts that an "additional" joist installed by Mattamy Homes Ltd. (the "builder") to reinforce the kitchen floor is proof that the builder accepted there was a "structural defect" causing the floor to shake. The appellant now requests the "added" joist be removed because it raised the entire floor on the ground storey and created instability in other areas.

10The respondent argues that Mr. Stewart MacNamara (Warranty Services Representative for Tarion) inspected the kitchen island area by walking over the area "many" times, in multiple directions, and did not feel or see any dips or bounce in the floor. The respondent also says Mr. MacNamara inspected the basement ceiling under the kitchen island and dining room space where he observed engineered floor joists, engineered beams, and proper joist hangers—all installed in a workmanlike manner. The respondent adds that Mr. MacNamara's inspection of the wood flooring in the kitchen revealed it to be in good condition and installed in a workmanlike manner.

11I accept there is some deflection in the kitchen hardwood floor around the island. The appellant's testimony was consistent with the evidence of Ms. Umangi Rajeshkumar Nakum (the applicant's spouse), who testified about the floor "shaking" to the point of glasses in the sink making noise and water ripples appearing in a pet's water dish. Mr. Walter Oliveira (Senior Warranty Manager for the builder) corroborated deflection in the wood flooring around the island, testifying that he experienced "normal" vibrations during his visits to the home in March and the autumn of 2024, and adding that a hardwood floor will move as it expands and contracts with humidity and dryness.

12However, I am not persuaded that the appellant has met his onus. He relies on a structural deficiency inspection report from iTi Building Permit Designer Inc. ("iTi") that was completed on October 23, 2025, by Vivek Gupta (building code inspector) and Syed Kazmi (professional engineer). The report identified the following deficiencies I find are relevant to this claim item:

(a) The floor on the kitchen side is sloped .5" more;

(b) The main floor between the kitchen and living room is lifted due to "additional" joists added to support the kitchen island;

(c) The kitchen island is not supported properly, causing the floor to move and squeak;

(d) The floor joists are "irregularly" spaced and constructed with improper cross-bridging or bracing consisting of three rows of added 2 x 4 bracing to fix floor movement and "excessive" sound issues; and

(e) The kitchen island area is prone to discomfort due to the floor slope and sound owing to unequally spaced floor joists and different bearing levels.

13I am not persuaded by the iTi report because the assessors note the "engineering design" plans for the appellant's home had not been obtained from the city office or builder's office at the time of their inspection or prior to completion of their report. This hinders the probative value of this evidence because the assessors allege engineering and structural deficiencies in the joist placement. Further, the iTi assessors did not appear as witnesses to provide additional insight into the basis for their conclusions. Accordingly, I place less weight on their findings about "added" joists and "irregular" spacing as evidence of "significant structural irregularities" pertaining to the floor around the kitchen island.

14The photos of levelling instruments in the floor area around the island are not helpful to establish slope because I cannot discern where the bubble rests within the specified parameters. In any event, while the iTi report specifies "applicable architectural and code notes," I find the assessors do not say whether any of these provisions had been breached or cross-reference this information to any of their findings to show a defect in workmanship or material. I am therefore not satisfied the slope would constitute a defect, even if I could discern that the leveling bubble rested outside the parameters.

15The appellant's evidence also includes a remediation and cost estimate by Cruz V Contracting Inc ("Cruz") dated May 7, 2025, and an estimate provided by Sunrise Brothers Flooring and Renovations ("Sunrise") dated June 5, 2025. I find neither document supports the appellant's claim. The Cruz report references several "defects" that require remediation, including the lifting of the main floor between the kitchen and dining room due to added support joists for the island and inadequate island support that causes the floor to move and squeak. However, like the iTi report, the Cruz estimate does not qualify the reported observations as defects against any industry standard. Further, the Cruz estimate does not specify what investigations were undertaken to support the reported findings. In my view, the Cruz estimate merely repeats the findings in the iTi report without providing any investigative basis and I find this diminishes the probative value of the Cruz estimate as evidence of a defect under the Act.

16I find the Sunshine estimate actually hinders the appellant's claim as it specifies its investigation into the appellant's complaints of the kitchen floor shaking revealed the joist work to be completed to OBC standards, requiring no further work.

17I do not accept that an extra floor joist was "added" by the builder, or that it is not a "normal" height as alleged during the appellant's testimony. The appellant did not point me to evidence that persuaded me any floor joists were installed in addition to those specified in the engineering design plan. He did not point to the "normal" height of a joist or direct me to evidence that shows the height of the missing joist was inconsistent.

18In contrast, an April 2024 report completed by SWS Engineering Inc.—which documented the outcome of an on-site inspection aided by the "permit set" of design drawings and OEM floor framing specifications—clarifies that the builder had failed to install a required J5 joist that was located under a basement window. Mr. Oliveira testified that this missing joist was subsequently installed under the dining room (i.e., not the kitchen) and that the only other floor-related installations undertaken by the builder were 2 x 2 "ribbon boards" secured to the joists to add stiffness to the first-story floor. I find this is consistent with the bulk of the evidence in this case.

19When I take all this evidence together on a balance of probabilities, I conclude this claim item is not warrantable under the Act.

Claim item 5: The space between the kitchen countertop and kitchen backsplash is more than normal.

20I find the appellant has not shown a defect in materials or workmanship for this claim item.

21During the hearing, the appellant expressed concern about the space between the kitchen countertop and backsplash wall. He related that the gap there is increasing day by day as the backsplash wall separates from the counter. The appellant attributes this gap to the instability of the kitchen floor, saying that the separation occurs because of all the moving and shaking.

22The respondent argues that Mr. MacNamara inspected the stone countertop and backsplash wall in the kitchen, finding both to be in good condition and installed in a workmanlike manner. The respondent says Mr. MacNamara did not see a defect in the spacing between the backsplash wall and counter.

23While I accept the photo evidence produced by the appellant depicts distressed caulking that is separating within the seam where the backsplash and countertop meet, the appellant did not direct me to an industry standard to show this condition constitutes a defect in materials or workmanship. In fact, during the hearing, the appellant said he did not rely on a technical standard and instead offered his own opinion that the gap was abnormal because it allowed water penetration as well as a knife to fit in the space. Similarly, Ms. Nakum's testimony offered only that the caulking gap is "more than normal." I attributed little weight to these opinions as they were not supported by an industry standard. As well, the appellant confirmed during cross-examination that he was not an engineer and had no experience or training in the construction industry.

24I also find the appellant's position on the gap was inconsistent; testifying on one hand that the gap increased day-by-day, but on the other hand saying the gap had stopped increasing when cross-examined. While the appellant maintained that the ongoing movement in his kitchen floor was causing the gap during cross-examination, he was unable to reconcile this opinion with his observation that the gap had stopped increasing. Rather, he offered that the floor vibrations kept breaking the "glue" (i.e., caulking") that had twice previously been fixed by the builder, and that it was not that the gap was getting "bigger" per se, but that it kept being "exposed."

25The appellant's reports did not assist here. The iTi report offered only that the separated caulking was likely due to improper installation or an improperly cleaned area before applying the material. I find this to be speculative and, in any event, not shown in the report to be a defect under any industry standard nor consistent with appellant's opinion that the separation is owing to floor vibrations. As such, I afforded the iTi report little weight as it applies to this claim item. The Cruz report only served to provide a word-for-word reiteration of the iTi finding with no references to industry standards. The appellant did not pinpoint a Sunshine recommendation for this claim item, and I was unable to locate one in the document.

26When I take all this evidence together on a balance of probabilities, I conclude this claim item is not warrantable under the Act.

Claim items 7: The floor is spongy and squeaky when walking near the laundry room door.

27I find the appellant has not shown a defect in workmanship or materials for this claim item.

28The appellant submits that the wooden floor near the laundry room door is spongy and squeaky. He says the builder's efforts to remediate this issue by addressing only the floor planks is insufficient because the sub-floor is the root of the problem. The appellant relies on the iTi report, as well as the Cruz and Sunshine estimates, to show the floor in this area is defective.

29The respondent argues that Mr. MacNamara inspected the area of hardwood floor near the laundry room door on the second level hallway by "stepping down firmly and rocking back and forth," detecting only a "slight" deflection in the floor. The respondent relies on this aspect of the conciliation report to show deflection is an expected condition, and thereby asserts the wood flooring was installed in a workmanlike manner.

30Like the hardwood floor around the kitchen island, I accept the wooden flooring near the laundry room deflects when walked upon. Ms. Nakum's testimony was similar to the appellant's, in that she detected a squeaky and shaky feel when walking upon that area of the floor. However, the appellant did not show me persuasive evidence of squeaks or sponginess in the hardwood floor near the laundry room that constitutes a defect. While I also accept the iTi report says the floor is spongy and squeaky by the laundry room and needs to be addressed, that report does not identify an industry standard that demonstrates this condition is a defect. The Cruz estimate merits little weight because it again only repeats the iTi report finding verbatim without any mention of an independent investigation to corroborate the condition of the floor in this area despite indicating an inspection was conducted at the property. The Sunshine estimate similarly reproduced the iTi findings for this claim item with little evidence of a corroborating investigation or the application of industry standards.

31For what it is worth, the respondent's evidence fell short of demonstrating that the "slight" deflection observed by Mr. MacNamara is within the parameters set out in CPG article 2.6 as included in the respondent's evidence brief. Mr. MacNamara's testimony confirmed he had not applied this standard when investigating this claim item, and I find this to be the case with the other claim items involving complaints of squeaky and spongy floors. Article 2.6 is not refenced in the conciliation report prepared by Mr. MacNamara, and he was unable to say why he did not apply this standard to his observations. However, this did not weigh on my analysis because the onus is not on the respondent to prove its decisions are correct; rather, it is the appellant's onus to prove a defect in workmanship and materials for each of the claim items raised in the appeal.

32The iTi report also says the entire floor needs to be self-levelled, which I take to include the sub-floor as the report specifies that hardwood, laundry room tiles, and bedroom carpet must be removed to effect this remediation. While I accept that the hallway floor dips on a .75" slope based on photos that corroborate a slant in this area, I do not agree that the iTi report shows this to reach the threshold of a defect because it does not measure this slope against any industry standards or confirm the appellant's testimony that the slope does not comply with OBC standards. The iTi assessors merely characterize the slope as a structural issue without providing a basis for this opinion and I find this is not sufficient to meet the appellant's onus.

33In any event, the appellant acknowledged during the hearing that the iTi report does not attribute the thrust of his claim—a spongy and squeaky floor—to a slanting floor. Further, the appellant agreed he did not report concerns with the slope of the floor to the respondent at the time of conciliation in July 2024, testifying that while he had the sensation of slope when he walked on it at that time, he perceived it as sponginess and was unaware of the slope until detected by instrumentation by the iTi assessors in October 2025. I find the respondent had taken no decision at conciliation—or afterwards up to the time of the hearing—as to whether slope constitutes a warrantable defect. Section 14(14) of the Act only provides the appellant with an avenue to appeal the respondent's decisions on claim items. As such I have not considered this aspect of the appellant's claim further because it is not properly before the Tribunal.

34I would say here too, for brevity, that I make the same finding for the remaining claim items where the appellant raised floor slope as a warrantable defect at the hearing. At no time during the hearing was I presented with persuasive evidence that showed any slopes identified during inspections of the appellant's home were defects according to an industry standard. Neither was evidence produced that satisfied me that the respondent made a decision about floor slope, or that slope was even put before the respondent and investigated at the time of conciliation or thereafter by the respondent.

35When I take all this evidence together on a balance of probabilities, I conclude this claim item is not warrantable under the Act.

Claim items 8 and 9: The standing shower in the ensuite bathroom has a spongy floor and the floor shakes in the master bedroom closer to the bathroom wall.

36I find the appellant has not shown a warrantable defect in materials or workmanship for these claim items.

37I have addressed these claim items together because the appellant says they are inter-related. Specifically, the appellant submits that the spongy floor of the ensuite shower and shaky floor in the master bedroom share the same section of unstable sub-floor. During the hearing, the appellant reasoned that the closet floor in the master bedroom should also be remediated because it too occupies this same section of sub-floor and has gotten worse since the conciliation inspection occurred. However, during cross-examination, the appellant conceded that the master bedroom closet was not raised as part of this appeal prior to his testimony at the hearing. Given too that I was not pointed to evidence of the respondent undertaking an investigation or making decision with regard to the master bedroom closet, I have not considered it further here.

38For claim item 8, the respondent argues that Mr. MacNamara inspected the base of the master bedroom's ensuite shower against the standard set in CPG article 6.11 and detected a "slight" flex in the shower base, which it alleges is normal. The respondent adds that Mr. MacNamara observed that the wall tile next to the shower base is in good condition with no damage to tile or grout. For claim item 9, the respondent argues that Mr. MacNamara inspected the primary bedroom's carpeted floor by walking this area several times and detecting no excessive movement.

39The iTi report identified the following deficiencies I find are relevant to this claim item:

(a) Floor and sound movement are observed in the master bedroom that is "uncomfortable," albeit minimal;

(b) The floor is squeaky and spongy at "many" spots of the master bedroom;

(c) Remediation of the master bedroom floor involves removing the carpet and subfloor to add more braces where needed; and

(d) The ensuite bathroom needs a "tub" replacement with base support to eliminate movement and squeaking.

40I did not place much weight on the iTi observations—as well as those duplicated in the Cruz and Sunshine estimates—because the assessors do not show how the reported deficits fall short of any industry standards and there is no record of the investigations undertaken to support the assessors' opinions. The photos included with the iTi report are unhelpful as they do not depict the conditions documented by the assessors—at least to the extent they would be able to—and I was not pointed to photo evidence that persuades me a sub-floor inspection was completed by either the iTi, Cruz, or Sunshine assessors. While the appellant testified that the iTi assessors conveyed remediation of the sub-floor was necessary to correct the slant, I refer back to my earlier analysis that concludes slant is not applicable to this appeal. And even if it were, the slopes detected by the iTi assessors were not referenced against any industry standards to prove they qualify as defects.

41I find that the base of the ensuite shower is not defective in materials or workmanship. The appellant acknowledged during cross-examination that he was not relying on a technical standard to meet his onus here. Rather, he was "going with his feelings," which I find is insufficient to meet his onus.

42In contrast, the respondent relies on CPG article 6.11 (i.e., lightweight fibreglass and acrylic bathtub or shower base flexes and creaks), which states: "[l]ightweight bathtubs and showers may flex and creak when installed in accordance with Manufacturer's specifications." The appellant did not point me to evidence that showed the ensuite shower was not installed in accordance with the OEM recommendations. As such, I find the squeaking—which Ms. Nakum characterized as a "popping" sound upon entry and exit to the shower in her testimony, is not a defect, as article 6.11 goes on to explain that "[f]lexing or creaking sounds can often be heard … [t]hese fixtures are designed to withstand this type of flexing; it does not generally represent a manufacturing or installation defect."

43When I take all this evidence together on a balance of probabilities, I conclude this claim item is not warrantable under the Act.

Claim item 10: The floor in the study is squeaky and spongy.

44I find the appellant has not shown this claim item is a warrantable defect of workmanship or materials.

45The appellant submits that the carpet floor near the door of the second-floor study is squeaky and spongy.

46The respondent says that while the study floor did make normal, random, non-repetitive creaking noises, Mr. MacNamara did not find it to be squeaky or spongy when stepping down firmly and walking on the area repeatedly.

47I place little weight on the appellant's recollection that Cruz assessors inspected the subfloor in this area by removing the carpet to inspect the subfloor. There are no photos of this, and the estimate provided by Cruz makes no mention of undertaking this type of investigation. Further, there is conflicting evidence as to the scope of the floor's condition. Ms. Nakum corroborated the appellant's testimony by saying the floor presented as problematic only at the entrance and not the whole area of the study, while the iTi and Sunshine evidence says the floor is squeaky and spongy at "many" spots. In any event, the Cruz, iTi, and Sunshine documents carry little weight in my analysis because they provide no reference to a specific industry standard to show the floor's condition qualifies as defective.

48When I take all this evidence together on a balance of probabilities, I conclude this claim item is not warrantable under the Act.

Claim item 16: Caulking is coming off the interior trim of the windows.

49I find the appellant is not entitled to compensation under the Act for this claim item.

50The appellant submits that the caulking applied to the interior trim of certain upstairs and stair-landing windows was coming off. He maintains that a builder's technician acknowledged the caulking was a "problem" but never returned to remedy this condition after requesting that repairs be deferred for efficiency because more cosmetic items were anticipated at the end of the first year of occupancy.

51The respondent argues that Mr. MacNamara inspected the windows identified by the appellant and concluded that since the interior trim of windows is not required to be caulked, the windows are installed in a workmanlike manner.

52The appellant's evidence falls short of meeting his onus on this claim item. I was not pointed to the iTi report, or the Cruz and Sunshine estimates for an assessment of this issue. While the conciliation photos in evidence clearly show caulking peeling away and missing from the interior trim of window frames, the appellant did not direct me to an industry standard to show this constitutes a defect as opposed to normal wear and tear that would be a matter of homeowner maintenance as proposed by Mr. MacNamara.

53For what it is worth, I reject the respondent's position that this claim item would not be warrantable on the basis that the disputed caulking is not needed to preserve the insulating function of the window itself. The parties do not dispute that the builder installed the caulking. Section 13(1) of the Act provides that the home be constructed in a workmanlike manner free from defects in materials. In my view, it matters little that the window itself remains fully sealed with no airflow issues—the installed caulking still needs to be applied in a workmanlike manner and be free of defective materials, even if it is applied purely for cosmetic purposes. In fact, under cross-examination, Mr. MacNamara allowed that cosmetic issues were covered under the one-year warranty period.

54During cross-examination, the appellant explained that he was not sure how many of the nine windows in his home were affected by peeling caulking. While he estimated that perhaps four of five would need to be remedied, Ms. Nakum's testimony recalled that the window "close to staircase in middle" and a "living room" window were affected, and Mr. MacNamara testified that he was directed to only two or three windows. I find the uncertainty as to how many and which windows are affected by peeling caulking hinders the appellant's ability to establish quantum of damages, which he is required to do by the Act. And in any event, he produced no evidence to establish damages owing for this claim item.

55When I take all this evidence together on a balance of probabilities, I conclude this claim item is not warrantable under the Act.

CONCLUSION

56The appellant has not met his onus to prove any of the claim items for this appeal constitute a breach of warranty in accordance with section 14(3)(b) of the Act. As such, I find it is not necessary for me to consider whether the appellant suffered monetary damages arising from a breach or the amount of these damages.

ORDER

57The appellant is not entitled to payment from the guarantee fund for any of the disputed claim items. Pursuant to section 14(19) of the Act, I direct Tarion not to pay any amount to the appellant from the guarantee fund as a result of this appeal. The appeal is dismissed.