Shivek Saini and Shashank Saini v. Tarion Warranty Corporation, 2026 CanLII 8148

RECONSIDERATION DECISION

Before: Craig Mazerolle, Vice-Chair

Licence Appeal Tribunal File Number: 16936/ONHWPA

Case Name: Shivek Saini and Shashank Saini v. Tarion Warranty Corporation

Written Submissions by:

For the Appellants: Shivek Saini and Shashank Saini, Appellants

For the Respondent: Suzanne Chandrakumar, Counsel

OVERVIEW

1The appellants filed a request for reconsideration on December 22, 2025 in respect of the Licence Appeal Tribunal’s (“Tribunal”) decision released on December 1, 2025 (“decision”).

2The parties participated in a videoconference hearing. In the decision, the Tribunal found the appellants did not prove that they were entitled to a refund of the deposit monies paid towards the purchase of a condominium townhouse under s. 14(1) of the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31 (“Act”). The Tribunal further found they did not establish entitlement to Delayed Closing/Occupancy Compensation. In sum, the Tribunal upheld Tarion Warranty Corporation’s (“Tarion” / “respondent”) denial of their claim.

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.

4The appellants are relying on Rule 18.2(a) and Rule 18.2(b) to support their request for reconsideration.

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

RESULT

6The appellants’ 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 appellants—must show how or why the decision falls into one of the categories in Rule 18.2.

Rule 18.2(a) – Procedural Fairness

8The appellants claim the Tribunal materially breached their right to procedural fairness by relying on Tarion’s allegedly incomplete review of their claim. Specifically, the appellants submit that the hearing revealed certain information that Tarion did not take into account, e.g., Tarion did not assess a cheque from July 2023 that was cashed by the builder; it did not assess the payment plan the builder had accepted, etc. According to the appellants, Tarion confirmed these gaps after the hearing, and it issued an “updated brief”. Overall, the appellants claim the Tribunal’s decision to uphold Tarion’s denial, despite these acknowledged gaps, amounts to a denial of a “fair determination based on the complete evidentiary record.”

9The respondent challenged this position by claiming that these gaps were irrelevant, as the appellants “had a full opportunity to present their arguments and evidence at the hearing and the onus was on them to prove their case.” Additionally, the respondent submits it never sent any post-hearing correspondence to the appellants, so it disputes there was an updated brief.

10On reply, the appellants add that “reference to evidence does not equate to meaningful legal consideration”. Even though the Tribunal acknowledged payments plans, retained cheques, post-termination conduct, etc., the appellants claim it “declined to assess the legal consequences of that conduct.”

11I do not find the appellants have shown a material breach of procedural fairness.

12As the Tribunal stated at paragraph 12 of the decision: “The onus lies on the appellants to show, on a balance of probabilities, that they are entitled to warranty coverage.” Put another way, regardless of the information available to, or presented by, the respondent, the appellants had the obligation to establish their entitlement to the amounts at issue. As such, I do not see how the respondent’s lack of information about the claim would have had any material bearing on how the hearing was conducted, especially as the appellants concede that this evidence was at least referenced in the decision.

13Procedural fairness is based on the principle that parties have the right to be heard. As such, parties challenging a decision based on procedural fairness must show how the Tribunal’s process negatively impacted this right, e.g., they did not have proper notice of the issues; they did not have a chance to present relevant evidence, etc. Though the appellants may claim the Tribunal did not properly assess the evidentiary record (an allegation I will explore more below), they have not shown how the procedure used to render the decision was unfair. Rather, the appellants had the onus to establish their entitlement to the amounts at issue, and they have not directed me to any aspect of the hearing process that impeded their ability to meet this onus.

14Taken together, the appellants have not established a material breach of procedural fairness, pursuant to Rule 18.2(a).

Rule 18.2(b) – Errors of Fact or Law

15I find the appellants have not shown that the Tribunal erred in a manner that would trigger Rule 18.2(b).

16The appellants submit the Tribunal erred in two ways. First, they claim the Tribunal misapplied the test under s. 14(1) of the Act, as it “treated any historical deviation from the original deposit schedule as an absolute bar to deposit protection.” Specifically, the appellants contend that s. 14(1) does not bar refunds where payment was tendered and accepted; the builder waived strict compliance and continued the agreement; and termination occurred long after the alleged default. Instead, the proper test is whether the purchaser was (emphasis removed) “in default at the time of the builder’s failure or termination, not whether a technical default ever occurred.”

17Second, the appellants claim the Tribunal overlooked several key facts when it determined the builder was not in breach, e.g., the builder issued 15 rolling occupancy extensions; extensions were issued after a termination letter, etc. According to the appellants, these facts undermine the Tribunal’s finding that the builder’s conduct was compliant.

18The respondent disputes the submission that the Tribunal misapplied s. 14(1), arguing that the appellants have not provided any support for this assertion. Additionally, the respondent submits that the Tribunal was entitled to weigh evidence about the builder’s conduct, and the appellants have not explained “why they believe the Tribunal misunderstood or misapplied the information.”

19On reply, the appellants added that the Tribunal incorrectly looked for express waiver, rather than conduct-based waiver. They also highlighted a further, alleged error by claiming that post-termination conduct is “legally relevant to enforceability and forfeiture”. Accordingly, ignoring this conduct is a legal error.

20As 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. Despite the appellants’ submission that they are not attempting to re-litigate their positions from the hearing, I find they are, in effect, asking the Tribunal to re-weigh evidence that was considered at first instance.

21Section 14(1) of the Act states:

Subject to the regulations, a purchaser is entitled to receive payment out of the guarantee fund for the amount that the purchaser paid to the vendor as a deposit or other payment to be credited to the purchase price under the purchase agreement on closing if,

(a) the purchaser has exercised a statutory right to rescind the purchase agreement before closing; or

(b) the purchaser has a cause of action against the vendor resulting from the fact that title to the home has not been transferred to the purchaser because,

(i) the vendor has gone into bankruptcy, or

(ii) the vendor has fundamentally breached the purchase agreement.

22At paragraphs 2 – 5 of the decision, the Tribunal laid out key dates surrounding the completion and termination of the appellants’ and builder’s agreement of sale and purchase (“APS”):

… The appellants signed the APS on December 17, 2021 and the builder executed it on January 5, 2022.

The APS set out a firm occupancy date of September 16, 2022 and an outside occupancy date of January 15, 2024. A notice to end of unavoidable delay notice due to COVID-19 pandemic revised the firm occupancy date to April 2, 2024 and the revised outside occupancy date to July 2, 2025.

The APS also set a schedule for payment of deposits, but the builder extended the timeline for the deposits at the appellants’ request several times, up to October 2023.

On December 4, 2024, the builder advised the appellants that the purchase agreement was terminated because of the purchasers’ default of its obligations under the APS as the deposits had not been paid in full.

23Focusing on s. 14(1)(b)(ii) of the Act, the appellants argued that “the builder fundamentally breached the agreement by subjecting [them] to a multitude of delays that were not in accordance with the Act”: see paragraph 20. Considering the timeline of the occupancy delays (as well as the stated reasons for the delays), the Tribunal found the appellants did not establish a fundamental breach on the part of the builder (at paragraphs 26 – 29):

The appellants submit that the delays were unreasonable and non-compliant with Tarion Builder Bulletin 22 due to many having short timeframes thereby not being in compliance with Tarion’s 90-day rule. The respondent submits that there is no such bulletin nor such rule, but that there are bulletins that suggest best practices. The appellants were unable to provide me with said bulletin or rule to support their claim that the delays amounted to a fundamental breach of the APS.

The appellants also take the position that the unavoidable delays were not reasonable as the COVID-19 pandemic was over by December 2022 but did not provide evidence to support the claim that the builder delays were not impacted by the pandemic until 2023. The respondent points to the definition of unavoidable delay mentioned above which supports that a pandemic or a strike are valid reasons for an unavoidable delay notice and that the notices given were compliant with the Addendum.

While the appellants may find the delays significant, which I do not disagree with, they have not proven that the delays resulted in a fundamental breach of the APS. The delays did not deprive the appellants of substantially the whole benefit which it was the intention of the parties that he should obtain from the contract. The contract was still in place during the delays and not the cause of the appellants not obtaining possession.

I agree with the respondent that the appellants’ breach of payment of deposits happened prior to the revised outside occupancy date of July 2, 2025. The date of termination of the agreement by the builder also happened on December 4, 2024, also prior to July 2, 2025.

24The Tribunal further found that the appellants fundamentally breached the APS when they did not fully pay their deposits in accordance with this agreement and the further payment plan agreements. In turn, this breach allowed the Tribunal to find that the builder was allowed to terminate the agreement and keep the deposits: see paragraphs 31 – 63 of the decision.

25As this summary demonstrates, the Tribunal conducted a comprehensive review of both the timeline of events surrounding the builder’s alleged breach, as well as the various arguments that the appellants put forward to support their position. I also note that this summary shows the Tribunal did not, as the appellants claim, limit its analysis to “any historical deviation from the original deposit schedule as an absolute bar to deposit protection.” Rather, the Tribunal conducted a detailed analysis of the different events that took place between the appellants and the builder following the execution of the APS.

26The appellants may disagree with the outcome of this analysis, but it is not enough to say the Tribunal should have interpreted one’s case in a different way. Instead, the party requesting reconsideration must establish that a legal or factual error was committed. I find the appellants’ submissions amount to a request to re-weigh the evidence considered at first evidence. As such, they have not met their onus under Rule 18.2(b).

27Additionally, while they may claim that certain evidence was ignored by the Tribunal, the appellants have not shown how these alleged oversights would likely have impacted the outcome. The appellants claim that the Tribunal overlooked “undisputed evidence” of the builder’s conduct, and, if it had considered “the full factual record”, the Tribunal would likely have reached a different conclusion. I do not agree. The Tribunal assessed the builder’s conduct at length, and the appellants have not shown how this assessment failed to fully account for the relevant evidence at hand. Also, in light of this detailed review, they have not satisfied me that any of these alleged errors would likely have impacted the outcome of the decision.

28Turning to the arguments made on reply, I find the appellants have not shown how the Tribunal focused solely on express waiver, as its reasons show a detailed assessment of the builder’s conduct when it assessed the argument about waiver. For instance, at paragraph 58, the Tribunal explained its reasoning on this point as follows:

I do not accept the position of the appellants that by accepting cheques that were submitted late, the respondent waived its strict reliance on the original deposit schedule either. The burden to pay the deposits on time is on the appellants and allowing for extensions in some circumstances does not stop the builder from being able to exercise their rights to keep the schedule and terminate the APS later on.

29The appellants have not explained how or why the Tribunal erred in reaching this conclusion. Rather, it appears they disagree with this interpretation, and disagreement alone will not trigger Rule 18.2(b).

30Finally, the appellants claim the Tribunal ignored their position about the builder’s post-termination conduct, but this submission is not made out in the decision. Citing a lack of evidence or caselaw on this point, the Tribunal dismissed the appellants’ argument that certain “confusing communication” following the builder’s termination letter constituted a fundamental breach: see paragraphs 64 – 68. I am satisfied that the Tribunal considered this argument at length, and the appellants have not explained why this reasoning is incorrect in fact or law.

31Taken together, the appellants have not shown any errors in the decision that would trigger Rule 18.2(b).

CONCLUSION & ORDER

32The appellants’ request for reconsideration is dismissed.

Craig Mazerolle Vice-Chair