CITATION: JRC Developments Ltd. v. Tarion Warranty, 2010 ONSC 6205
DIVISIONAL COURT FILE NO.: 06/10
DATE: 20101110
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
FERRIER, MOLLOY AND HERMAN JJ.
BETWEEN:
JRC DEVELOPMENTS LTD.
Appellant
– and –
TARION WARRANTY CORPORATION and ALEXANDER and SHARON PATINIOS
Respondents
Michael R. Swartz, for the Appellant
Michael Doyle and Jennifer Rook, for the Respondent, Tarion Warranty Corporation
Michael Simaan, for the Respondents, Alexander and Sharon Patinios
HEARD at Toronto: November 10, 2010
MOLLOY J.
[1] This is an appeal from a decision of the Licence Appeal Tribunal dated December 1, 2009.
[2] It is accepted by the parties that the standard of review to be applied on such an appeal with respect to questions of mixed fact and law is reasonableness. On questions of law, the Tribunal is required to be correct.
[3] There is no pure issue of law raised in this matter. The interpretation of the relevant statute, and in particular, the definition of ‘builder’ within that statute was correctly undertaken by the Tribunal. The Tribunal then made factual findings and applied the law as it found it to those facts. The Tribunal concluded, based on that analysis that JRC was a builder within the meaning of the Act. That is an issue of mixed fact and law upon which the reasonableness standard of review should be applied.
[4] In our view, the Tribunal did not err in concluding that JRC was a builder as defined by the Act. The presiding Vice-Chair followed the applicable case law and properly considered who was responsible for completing the essential elements of the home and who had control over the construction of the home. Based on that analysis the Tribunal concluded:
“… JRC had primary control of the construction of the home. JRC did all of the essential work to build the home, save for the brickwork…”
[5] The Tribunal noted that the Act is consumer protection legislation and should be interpreted broadly to protect new home owners and Tarion and not builders who seek to shirk their responsibilities.
[6] The Tribunal’s finding on this issue of whether JRC was a builder is consistent with the facts and the case law. JRC supplied and installed the essential elements of the home. The footings and foundations the building envelope (framing), the electrical and plumbing systems, and the heating air conditioning systems. The exterior cladding is the only essential element at issue.
[7] It was open to the Tribunal to conclude as it did that the changes in the contract with respect to the exterior cladding were merely an upgrade and not a substantial change to the contract.
[8] We do not agree that the Tribunal failed to consider the changes to the cladding within the context of the totality of the evidence. The Tribunal referred to all of the work the owners were responsible for under the contract and then concluded: “There can be no question that if the home had been built by JRC in accordance with the contract, JRC would be the ‘builder’”. That was a reasonable conclusion by the Tribunal on the whole of the evidence.
[9] The Tribunal then went on to consider whether the change in respect of the cladding altered that determination. It concluded that, notwithstanding that change, JRC was still a builder. This determination was made within the context of all of the evidence.
[10] The appellant argued that the Tribunal erred by not engaging in a quantitative analysis of the work and materials supplied by the homeowners and JRC respectively, as part of its analysis. Although the Tribunal has in the past engaged in quantitative analysis in similar cases, it is only one of several approaches to the builder issue and is not required in every case. Indeed, in Staples v. Tarion Warranty Corporation, [2006] O.L.A.T.D. No. 175, the Tribunal held:
“While the quantitative rule provides some general guidance … this test should never be determinative … the Tribunal prefers the qualitative or functional test to that of the quantitative test in determining whether or not a contractor is a builder.”
[11] The preference of approaches other than quantitative analysis by the Tribunal does not amount to an error of law and does not render the decision unreasonable.
[12] Indeed, it cannot be said, based on an analysis of the entire decision that this was an unreasonable conclusion by the Tribunal. On the contrary, it was logical, rational, and consistent with both the evidence and the intention of the legislation. It falls within the range of acceptable outcomes that has been determined by the Supreme Court of Canada in Dunsmuir as being one of the hallmarks of a reasonable decision.
[13] We see no basis to interfere.
FERRIER J.
[14] An order will go in favour of the owners, Patinios in the amount of $6,500.00 inclusive of disbursements and HST and $2,500.00 all inclusive for Tarion. I have endorsed the Appeal Book, “The appeal is dismissed for oral reasons delivered this day. Costs to Tarion in the amount of $2,500.00 including disbursements and HST. Costs to the Patinios in the amount of $6,500.00, including disbursements and HST.”
MOLLOY J.
FERRIER J.
HERMAN J.
Date of Reasons for Judgment: November 10, 2010
Date of Release: November 23, 2010
CITATION: JRC Developments Ltd. v. Tarion Warranty, 2010 ONSC 6205
DIVISIONAL COURT FILE NO.: 06/10
DATE: 20101110
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
FERRIER, MOLLOY AND HERMAN JJ.
BETWEEN:
JRC DEVELOPMENTS LTD.
Appellant
– and –
TARION WARRANTY CORPORATION and ALEXANDER and SHARON PATINIOS
Respondents
ORAL REASONS FOR JUDGMENT
MOLLOY J.
Date of Reasons for Judgment: November 10, 2010
Date of Release: November 23, 2010