Citation and Court Information
CITATION: Londonderry Residential Group, Inc. v. Tarion, 2011 ONSC 7433
DIVISIONAL COURT FILE NO.: 515/09
DATE: 20111213
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, DAMBROT AND HARVISON YOUNG JJ.
BETWEEN:
LONDONDERRY RESIDENTIAL GROUP, INC.
Applicant
– and –
TARION WARRANTY CORPORATION
Respondent
Brian Campbell, for the Applicant
Andrew M. Pinto and Christian Vernon, for the Respondent
HEARD at Toronto: December 13, 2011
Oral Reasons for Judgment
DAMBROT J. (orally)
[1] This is an application by Londonderry Residential Group Inc. (“Londonderry”) seeking judicial review of the decision of the Licence Appeal Tribunal (the “LAT”) in which the Vice Chair of the LAT upheld the Registrar’s proposal to revoke Londonderry’s registration under the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. 0.31 (“ONHWPA”). Londonderry argues that a lack of procedural fairness by Tarion Warranty Corporation (“Tarion”) in its decision-making process resulted in unfairness in the LAT hearing.
[2] We note that an appeal was available to this Court from that decision under ONHWPA. The applicant chose instead to bring this application for judicial review. Despite this, the respondent did not object to our hearing the application and we proceeded to do so.
[3] Londonderry submits that:
Tarion breached the principles of natural justice and its duty of fairness to Londonderry by, amongst other things, failing to allow Londonderry to participate in Tarion’s unilateral decision-making process leading to a number of errors in the findings of LAT. In submitting that there was denial of natural justice, the applicant relied entirely on the process in relation to two specific properties, namely, West 1A (“1A”) and Prosser 2A (“2A”).
[4] The Tribunal found that the applicant had failed to demonstrate the conduct and knowledge necessary for continued registration under the Act. Specifically, the Tribunal stated, “The failures to remedy the applicant’s warranty breaches are sufficient to support revocation of its licence without considering the situations posed by property 2A and property 1A.” In the end, the Tribunal stated that it was satisfied that the applicant had failed to demonstrate the conduct and knowledge necessary for continued registration under the Act, again, without reference to the evidence relating to property 1A and property 2A.
[5] The applicant nevertheless argued that the LAT was influenced by the evidence with respect to these properties despite its statement that it reached its conclusion without reliance on the evidence relating to them. The applicant suggests moreover that without the evidence relating to property 1A and property 2A, the finding was perverse.
[6] We would not give effect to either of these submissions.
[7] With respect to the first argument, we see no basis for concluding that the Vice Chair was relying on the evidence relating to property 1A and property 2A in reaching her decision. She specifically said on two occasions in her reasons that she reached her conclusion without regard to this evidence, and the record supports her on this issue. There is no basis for looking behind her reasons.
[8] With respect to the second point, that the decision was perverse, that is an attack on the decision that is not properly before us on this application. This application was brought solely on the basis of a denial of natural justice. But in any event we conclude that the decision of the Tribunal was amply supported by the evidence.
[9] The application is dismissed.
COSTS
JENNINGS J.
[10] Costs of the motion to admit Fresh Evidence and of this application to the respondent, fixed at $17,500.00 inclusive, payable forthwith.
DAMBROT J.
JENNINGS J.
HARVISON YOUNG J.
Date of Reasons for Judgment: December 13, 2011
Date of Release: January 26, 2012
CITATION: Londonderry Residential Group, Inc. v. Tarion, 2011 ONSC 7433
DIVISIONAL COURT FILE NO.: 515/09
DATE: 20111213
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, DAMBROT AND HARVISON YOUNG JJ.
BETWEEN:
LONDONDERRY RESIDENTIAL GROUP, INC.
Applicant
– and –
TARION WARRANTY CORPORATION
Respondent
ORAL REASONS FOR JUDGMENT
DAMBROT J.
Date of Reasons for Judgment: December 13, 2011
Date of Release: January 26, 2012