CITATION: Grammenis v. Tarion Warranty Corporation, 2010 ONSC 1214
COURT FILE NO.: 136/09
DATE: 20100225
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: Mike Grammenis and Tatyana Grammenis v. Tarion Warranty Corporation and Remington Homes (Georgetown) Inc.
BEFORE: Justices Reilly, Molloy and Dambrot
COUNSEL: Paul Starkman, for the Appellant
Sophie Vlahakis and George Bekiaris, for the Respondent
HEARD: February 23, 2010
E N D O R S E M E N T
Dambrot J.
[1] Remington Homes (Georgetown) Inc. appeals from an order of the License Appeal Tribunal dated February 25, 2009, granting the respondents Mike and Tatyana Grammenis $11,234.00 to remove and replace ceramic tiles that were not installed in accordance with the Ontario Building Code.
[2] The parties have consented to an order setting aside the decision of the Tribunal and ordering the appellant to pay the respondents the sum of $4,000.00 plus G.S.T., and costs in the amount of $1,000.00 plus G.S.T. We consider this settlement to be appropriate, and make the order requested. We have been asked to briefly explain why we are prepared to make the proposed order, and have agreed to do so.
[3] In Cecilio v. Tarion Warranty Corp., [2007] O.J. No. 1692, another appeal to this Court from a decision of the Licence Appeal Tribunal, the Tribunal found that a kitchen floor was not in compliance with the Code and ordered that it be repaired so that it complied.
[4] The Divisional Court set aside this award and ordered the Tribunal to reconsider the matter. Lane J. stated, for the Court:
52 There is more substance to Lexington's second point: that even if the latent defect constitutes damage within the Act, the remedy is overbroad. The life of the floor should have been estimated and compared to the life expectancy of a properly built floor and the difference quantified in monetary terms and given as monetary damages.
53 The remedy awarded by the Tribunal amounts to ordering specific performance by the builder. If that order stands, the floor must be replaced now, when it has much useful life ahead, because it is likely to fail earlier than it should. This remedy entirely discounts that useful life, a result unfair to the builder and unduly beneficial to the owner. As well, consideration ought to be given to methods short of rebuilding that may be available to stiffen the floor and increase its useful life, thus mitigating the loss to the owner.
[5] In this case, the award of $11,234.00 was effectively an order for specific performance. $11,234.00 was the estimated cost of replacing the floor. The Tribunal erred in law in making this award.
[6] The Tribunal acknowledged that there was a second option. There was evidence that the flooring could have been stiffened, and its life prolonged, at a cost of $4,000. But because there was no clear evidence of the life of the floor as built to compare to the life of a properly built floor, the Tribunal concluded that it could not follow the approach required by the judgment in Cecilio, and instead made the award mentioned above.
[7] This, however, overlooks the fact that the onus of proof was on the applicants before the Tribunal. If the applicants had not sufficiently established the approximate life of the floor as built, and therefore had not sufficiently established the quantum of their damages, the appropriate award was not to effectively order specific performance.
[8] In our view, the state of the evidence before the Tribunal could easily have justified an award of $4,000, and we have no hesitation in endorsing the agreement of the parties that an award be made in that amount.
[9] An order will go in the form of the draft filed in Court on February 23, 2010.
Dambrot J.
I agree.
Reilly J.
I agree.
Molloy J.
DATE: February , 2010