Nora Rosemond v. Tarion Warranty Corporation, 2026 CanLII 6220

RECONSIDERATION DECISION

Before:

Craig Mazerolle, Vice-Chair

Licence Appeal Tribunal File Number:

16877/ONHWPA

Case Name:

Nora Rosemond v. Tarion Warranty Corporation

Written Submissions by:

For the Appellant:

Cal Rosemond, Counsel

For the Respondent:

Christopher Gallo, Counsel

OVERVIEW

1The appellant filed a request for reconsideration on November 13, 2025 in respect of the Licence Appeal Tribunal’s (“Tribunal”) decision released on October 23, 2025 (“decision”).

2The parties participated in a videoconference hearing. In the decision, the Tribunal found the appellant did not prove that there was a breach of warranty in the 14 alleged defects for which Tarion Warranty Corporation (“Tarion” / “respondent”) denied compensation in its Decision Letter, according to the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31 (“Act”) and regulations. These alleged defects can be broken into four categories: elevator; doors/windows; flat roof and balcony drainage; and exterior cladding.

3The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal Rules, 2023 (“Rules”). To grant a request for reconsideration, the Tribunal must be satisfied that one or more of the following criteria are met:

a) The Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness;

b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made; or

c) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.

4Though the appellant only checked off Rule 18.2(b) on the Request for Reconsideration form, her supporting submissions also detail grounds based on procedural fairness and the Tribunal’s jurisdiction. As such, I have assessed the appellant’s request based on both Rule 18.2(a) and Rule 18.2(b).

5The respondent is asking the Tribunal to dismiss the appellant’s request.

RESULT

6The appellant’s request for reconsideration is dismissed.

ANALYSIS

7The test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision, or with the weight assigned to the evidence. The requestor—in this case, the appellant—must show how or why the decision falls into one of the categories in Rule 18.2.

Rule 18.2(a) – Jurisdiction and Procedural Fairness

8The appellant claims the Tribunal acted outside its jurisdiction and breached her right to procedural fairness. I do not find she has established any grounds for reconsideration under Rule 18.2(a).

9To start, the appellant submits the Tribunal exceeded its jurisdiction by ruling on issues that fell outside her appeal, e.g., “dismissing defects Tarion was silent on”.

10Aside from the appellant not identifying what defects she is referring to (despite having the onus on reconsideration), I note that Tarion’s silence on any given issue is not determinative. As the Tribunal stated at paragraph 19 of the decision, the appellant has the onus to prove that “any alleged defect in the construction of her home constitutes a breach of warranty, that she has suffered damages as a result of the breach, and the monetary amount of any such damages”. There is also “no deference” owed to Tarion’s decision. I see no breach of the Tribunal’s jurisdiction in this regard.

11Turning to the alleged breaches of procedural fairness, the appellant raises several grounds, claiming the “cumulative procedural rulings deprived [her] of a full and fair opportunity to present her case”. First, the appellant claims the Tribunal did not consider the evidence of “unaddressed items”. Second, the appellant disputes the denial of her motion to add items to the appeal, “despite Tarion’s written confirmation that a supplemental Decision Letter would be forthcoming.” The appellant also argues on reply that Tarion’s Manager of Warranty Services, Paul Valenti, admitted on cross-examination that a supplemental letter was requested, but never issued. Third, the appellant challenges the Tribunal’s exclusion of her expert evidence “concerning the roof inspection and water-ingress defects”.

12Though the appellant does not specify what is meant by “unaddressed items”, it appears to be related to the second ground concerning the dismissal of her motion to add items to the appeal. This motion was addressed at paragraphs 8 – 13 of the decision:

At the hearing, the appellant submitted that Tarion was silent in its Decision Letter on several items that were claimed as warranty breaches in the Second-Year Forms. The appellant submits, further, that she expected a supplemental decision letter from Tarion, between the filing of the NOA and the hearing, which would identify whether further disputed items could be added to the appeal. The appellant argues that Tarion’s silence on these items does not release it from its warranty responsibilities. The applicant requests to add items to the appeal.

The appellant directed me to an email from Dave Cecatini, Director of Warranty Services with Tarion, from June 18, 2025, indicating that Tarion would be “preparing a supplemental Decision Letter for all remaining items on the case indicated in the original Decision Letter”.

There were 42 items in the Year-End Form, 21 items in Second-Year Form #1, and one item in each of Second-Year Forms #2, #3 and #4. Tarion’s Decision Letter addressed 42 items regarding the Year-End Form, 16 items regarding Second-Year Form #1, and each of the items in Second-Year Forms #2, #3 and #4.

Tarion submits that the Tribunal has authority under s. 14 of the Act to hear only appeals from the Decision Letter and the NOA. Tarion argues that the appellant is required to raise its claims for compensation in the NOA, including any claims of items allegedly missing from the Decision Letter. It argues that items cannot be added to an appeal at the hearing.

In reviewing the email from Mr. Cecatini, I could find no evidence that Tarion would be addressing items not already indicated in the original Decision Letter.

I agree with Tarion, that the appellant had an opportunity to raise the issue of allegedly unaddressed items in the NOA. She now seeks to add issues to the appeal via an oral motion at the hearing. Under Rule 15.1 of the Licence Appeal Tribunal Rules, 2023 (the “Rules”), a party bringing a motion, such as adding items to an appeal, must file a notice of motion beforehand, using the form provided on the Tribunal’s website. I find that the appellant had the opportunity to raise the issue of allegedly unaddressed items in her NOA, and subsequently via a written motion in the months leading up to the hearing. Under Rule 15.1, I deny the appellant’s motion to add items to the appeal.

13I do not find the appellant has shown how the dismissal of her motion is a material breach of procedural fairness. It appears that Tarion had not issued a determination on these additional, alleged defects through a further decision letter, such that there was no basis upon which the Tribunal could rule on these new grounds. Though the appellant may point to comments made by Mr. Valenti about a requested—but never issued—supplemental letter, the fact remains that no decision had been rendered by Tarion about these issues. I further note that the Tribunal considered the timing of the motion in its reasons for why it was not appropriate to add these issues at that time. Taken together, I do not see how the denial of this motion constituted a material breach of procedural fairness.

14Finally, the appellant’s concerns about the dismissal of her expert evidence appear to relate to the Tribunal’s decision to not admit a report from a roof inspector. After relying on Rule 9.3 to admit several documents that the appellant presented at the start of the hearing, the Tribunal further determined that this report would not be allowed into the hearing record (at paragraph 17):

Under Rule 9.3, I denied the appellant’s request to add a report from a roof inspector, on the third day of the hearing. The appellant had this report in her possession since February 21, 2024. I find that the appellant had the opportunity to submit evidence according to the CCRO production deadlines. I find that the late submission of this report would prejudice the respondent, in that it would not have time to examine the report and to put it to witnesses who had already testified at the hearing.

15I find the appellant has not established how this ruling amounts to a material breach of procedural fairness. The Tribunal’s reasons show it turned its mind to the relevant considerations under Rule 9.3, and it used the prejudice facing the respondent to deny the request to add this late-filed report. I also note that the decision shows there was an item-by-item assessment of the appellant’s late-filed evidence, with some documents being admitted. These determinations fall well within the Tribunal’s jurisdiction, and the appellant has not explained how the failure to admit this report materially breached her right to a fair hearing.

16Taken together, the appellant has not shown how the Tribunal acted outside its jurisdiction, nor has she established a material breach of procedural fairness.

Rule 18.2(b) – Errors of Fact or Law

17I find the appellant has not shown that the Tribunal erred in a manner that would trigger Rule 18.2(b).

18Overall, the appellant claims the Tribunal did not apply the proper test under s. 13(1)(a) of the Act, as it did not account for how the alleged defects “occasioned significant cost”. She also argues that pieces of evidence (both documentary and oral) were overlooked, and the Tribunal incorrectly required her to “diagnose the problem as opposed to identity it”. In particular, the appellant raises the following, specific errors about three of the four categories of defects dealt with in the decision:

a. For the elevator, the appellant claims:

i. The Tribunal incorrectly interpreted “chronic dysfunction” as a maintenance issue—a finding that did not give adequate weight to “the builder’s admissions and repair history”;

ii. The Tribunal’s finding that the “gap issue” was fixed is wrong;

iii. The Tribunal’s finding that the elevator “was restored to proper function on May 15, 2023” does not account for the evidence;

iv. The Tribunal did not consider the importance of the elevator to her wellbeing, as well as the fact that her husband uses a wheelchair; and,

v. The Tribunal erroneously relied on “a short time” when the elevator was working to find it was not warrantable.

b. For the flat roof and balcony drainage system, the appellant alleges the Tribunal erroneously found these elements complied with the Ontario Building Code (“OBC”), even though there is “uncontroverted evidence of repeated water penetration and moisture damage on the roof in the middle of 5 flat roofed town houses”;

c. For the doors/windows, the appellant claims the Tribunal incorrectly found these alleged defects were “design choices”.

19There does not appear to be any errors raised about the alleged defects to the exterior cladding.

Elevator Defects

20The Tribunal addressed the alleged defects to the elevator from paragraphs 26 – 57 of the decision. Specifically, after reviewing the parties’ evidence (including the appellant’s testimony and the recommendations provided by a company she engaged to inspect the elevator, i.e., Apple Elevator Corporation [“Apple”]), the Tribunal provided its analysis at paragraphs 52 – 56 (emphasis in original):

Based on the weight of the evidence before me, I find that the elevator was restored to proper function after the repairs performed by Regal before May 15, 2023. Subsequent reports by Pace, KJA and Noah indicate to me, on a balance of probabilities, that the safety logic in the elevator’s [programmable logic controller (“PLC”)] is performing as intended when the light beams were disrupted or the door lock switches were triggered, either intentionally or unintentionally. I find the weight of the opinions of the various elevator specialists persuasive, that the elevator, with its moving parts and sensors, needs to be maintained regularly via a preventive maintenance program to function properly.

I find Apple’s recommendation, in June of 2025, to re-install the PLC software unpersuasive in light of the observed functioning of the elevator for several years, albeit with disruptions, from 2021 to 2025. I prefer the opinions of Pace, KJA and Noah, that the PLC logic is performing as intended.

I find further that Apple’s recommendation to replace the hydraulic valve is unpersuasive, because this measure is inconsistent with the diagnostics performed by other technicians who inspected the elevator. I find the reports of Pace, KJA and Noah are consistent in that the valve operated as intended, after the adjustments performed by Regal in early 2023.

Regarding Apple’s recommendation on access holes in the hoistway doors, this is not an issue identified in the Decision Letter or in the NOA, and it is not before me as an item in dispute. I make no finding on this recommendation.

For the elevator, I find as follows:

1. Year-End Item 14: Elevator inoperable. I find the elevator operable when it is maintained and adjusted by an elevator technician. There is no breach of warranty.

2. Second Year Item 8: Elevator returns to basement. I find the elevator performs as expected when it detects a fault condition. There is no breach of warranty.

3. Second-Year Item 9: Elevator occasionally stops below floor, frequently returns to basement. I find this condition was rectified by Regal in early 2023. There is no breach of warranty.

4. Second-Year Item 13: Adjustment noises from elevator. I find the elevator makes adjustments, such as returning to the basement when idle, according to the logic in the PLC. There is no breach of warranty.

5. Second-Year Item 14: Interior door envelope of elevator unfinished, with gaps. I find there is no requirement in the OBC to have the interior of the elevator shaft finished. In the hearing, Tarion testified that the gaps between the doors and the car were rectified, and the appellant made no submissions that they were not. There is no breach of warranty.

21After considering the detailed analysis conducted by the Tribunal, I find the appellant’s arguments on reconsideration largely amount to requests to re-weigh evidence considered at first instance. As noted above, the reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the weight assigned to the evidence. Rather, to engage Rule 18.2(b), the requesting party must show that a factual or legal error occurred, and that this error would likely have impacted the outcome. While the appellant is entitled to disagree with the Tribunal’s findings, disagreement alone will not be sufficient to meet her onus on reconsideration.

22The errors alleged by the appellant involve disagreements with findings made by the Tribunal about the state of the elevator. As the quotation above demonstrates, the Tribunal carefully considered evidence from both parties, and it made findings based on its assessment of this evidence. It is not sufficient to state that these findings are wrong, or to make general comments about how the evidence as a whole supports one position over another. These general statements will not meet the standard under Rule 18.2(b).

23I also note that the appellant claims the Tribunal did not account for the health and wellbeing of her and her husband when it rendered its decision about the elevator. However, it appears there was at least some consideration of the husband’s health at paragraph 29:

The appellant submits that the elevator is a central reason they bought the home. The appellant’s husband has arthritis, making stair climbing difficult. The appellant submits that, at the time of the hearing, the elevator was not functioning, and that they want to obtain a functioning elevator without any further intervention from Tarion or the builder.

24Further, even if the appellant’s own health was not explicitly mentioned in the decision, the Tribunal understood that the elevator was “a central reason” for why the couple purchased this specific home.

25Finally, I note that the appellant added further detail to her Rule 18.2(b) submissions about the elevator in reply. First, she claims there are numerous examples in the evidence to show that the elevator was not working (e.g., the elevator reports and her testimony), and that witnesses called by the respondent “had no experience with this elevator”. She also submits it cannot be established what “maintenance” would entail in these circumstances. Second, the appellant submits that the maintenance exclusion under s. 13(2)(f) of the Act has no application, because the elevator was never “reliably operational”. Further, according to the appellant, it is a legal error to accept “maintenance as a bar to warranty coverage”, as it effectively “shifted the burden onto the homeowner to correct a defect before it was acknowledged.” The appellant also claims the respondent wanted to reverse the onus by suggesting that she should have followed the elevator maintenance requirements laid out in the technicians’ manual—a document that is not meant for homeowners.

26Again, I find these arguments (while more specific than those provided in her initial submissions) are requests for a re-weighing of the evidence. For instance, the appellant points to sections of the transcript where witnesses are discussing Apple’s findings, as well as her testimony about the state of the elevator. She also claims there is ample support in the evidentiary record to show the elevator “continues to remain inoperable outside the scope of preventative maintenance.” Once again, the parties’ evidence was considered at length, with reasons provided for these evidentiary assessments in the decision. This review included the elevator reports and the appellant’s testimony, and the Tribunal explained what role “a preventative maintenance program” played in its analysis of the appeal. Unless the appellant can show how it erred in these determinations, the Tribunal is entitled to assign weight to the evidence. It is also entitled to apply this evidence to the statutory framework. The appellant’s reply submissions continue to ask for different assessments to be made about the evidence and their application to the Act, so I find she has not met her onus.

27The appellant does argue that none of the respondent’s witnesses had specific knowledge of the elevator, e.g., she highlights a comment from Andrew Wells, senior vice-president from KJA Consultants Inc., who confirmed as much during his testimony. However, I do not find the appellant has shown how this fact amounts to an error on the part of the Tribunal, nor has she shown how correcting this alleged error would likely have impacted the outcome. In particular, the Tribunal’s analysis relied heavily on the parties’ reports—documentary evidence that allowed it to make the key finding that the elevator had been restored to proper function after May 15, 2023. In contrast, the appellant has not shown how the oral testimony of the respondent’s witnesses played a role in helping the Tribunal to reach this key finding.

28Finally, though the appellant contends the respondent attempted to reverse the onus through its arguments about the maintenance requirements in the technicians’ manual, I do not see how this argument can be seen as an error on the part of the Tribunal. Though there is a brief reference to “the installation manual and the owner’s manual” at paragraph 38 of the decision, the Tribunal was summarizing the respondent’s arguments. This argument does not appear to have played any role in the Tribunal’s analysis of the appellant’s claim.

Flat Roof and Balcony Drainage System Defects

29Turning to the flat roof and balcony drainage system, the appellant claims there is “uncontroverted evidence” of water penetration and moisture damage, yet the Tribunal did not find she was entitled to any compensation. I find this ground is a further attempt to have the Tribunal re-weigh evidence from the hearing.

30The Tribunal assessed this part of the appeal at paragraphs 74 – 97. It concluded that the evidence commissioned by the builder showed no water penetration through the roof membrane. Additionally, the appellant did not satisfy the Tribunal that this drainage system was non-compliant with the OBC. The Tribunal summarized its findings at paragraph 96:

The balance of evidence before me indicates that the roofing system was constructed in compliance with the OBC, that it was constructed in a workmanlike manner and that it is free from defects in material. I find that the balance of evidence indicates that water penetration into the home was caused by blocked scupper drains which require regular cleaning, for which the appellant is responsible.

31These findings show the Tribunal weighed the parties’ evidence, including evidence from experts who investigated these alleged defects. The Tribunal is entitled to assign weight to these opinions, and, unless the party requesting reconsideration can show this assessment was incorrect in law or fact, these findings will not be disturbed on reconsideration. Despite her contention that there was “uncontroverted evidence” to support her claim, the appellant has not shown how the Tribunal erred in its weighing of the parties’ evidence.

Doors/Windows Defects

32The final category under review involves the doors and windows. The appellant submits that the Tribunal erred by finding these alleged defects were “design choices”. On reply, the appellant adds the respondent’s witnesses found functional and safety concerns—testimony that shows the Tribunal’s finding regarding these alleged “design choices” is incorrect. I do not agree.

33The Tribunal assessed this part of the claim at paragraphs 58 – 73. After reviewing the evidence, the Tribunal concluded there the doors and windows operated as intended, and there were no established OBC violations. I also note that the Tribunal highlighted how the appellant had the opportunity to raise concerns about these parts of the home prior to purchasing it (at paragraph 72):

While the appellant is dissatisfied with the window/door units’ functionality, she had the opportunity to view them as installed before purchasing the home, and she could have made a different purchase decision or could have amended the [agreement of purchase and sale (“APS”)] accordingly.

34The Tribunal reviewed the evidence and found there was insufficient evidence to support the appellant’s position. What is more, the Tribunal noted that there was a missed opportunity for the appellant to make amendments to the APS about these doors and windows.

35The appellant submits that the respondent’s witnesses accepted that there were functional and safety concerns with this part of the home, but I do not find these references to the transcript support her position. First, the appellant highlights how Jeff Kansun, managing partner with the builder, noted that he was unsure “what happened on what date” concerning a townhouse that flooded in June 2022, but he was certain “there was not one event where every single unit flooded.” The appellant also relies on a comment from Mr. Valenti who noted that, when it comes to removing the screen, a sliding screen door is easier to use than a fixed screen. I find the appellant has not shown how these two, isolated comments show the reasoning in the decision is erroneous.

36Taken together, the appellant has not shown any errors in the decision that would trigger Rule 18.2(b).

CONCLUSION & ORDER

37The appellant’s request for reconsideration is dismissed.

Craig Mazerolle

Vice-Chair