1957922 Ontario Ltd. v. Registrar, New Home Construction Licencing Act

Tribunals Ontario

Tribunaux décisionnels Ontario

Licence Appeal Tribunal

Tribunal d'appel en matière de permis

Citation: 1957922 Ontario Ltd. v. Registrar, New Home Construction Licencing

Act, 2017, 2022 ONLAT NHCLA 12870

Date: 2022-05-31

File Number: 12870/NHCLA

Appeal from the amended notice of proposal dated August 17, 2020 made by the

Registrar, New Home Construction Licencing Act, 2017 (formerly Tarion Warranty

Corporation) proposing to refuse to renew the registration of the appellant under section

43 of the New Home Construction Licensing Act, S.O 2017, c. 33, Sched. 1

Between:

1957922 Ontario Ltd.

Appellant

and

Registrar, New Home Construction Licencing Act, 2017

Respondent

DECISION AND ORDER

ADJUDICATOR:

APPEARANCES:

Kevin Lundy, Member

For the Appellant:

Valerie Astudillo, Paralegal

For the Respondent:

Montgomery Shillington, Counsel

Heard by Videoconference: July 21, 22, 23, 26, 28, 29, 30, 2021

Decision and Order

12870/NHCLA

A. OVERVIEW

[1] 1957922 Ontario Ltd. (the ‘Appellant’) has appealed an Amended Notice of

Proposal to Refuse to Renew Registration issued by the Tarion Warranty

Corporation (‘Tarion’) on August 17, 2020 to the Licence Appeal Tribunal (the

‘Tribunal’). Tarion’s licencing authority under the Ontario New Home Warranties

Plan Act (the ‘ONHWPA’) was subsequently assumed by the Home Construction

Regulatory Authority (the ‘Registrar’) under the New Home Construction Licensing

Act, 2017 (the ‘Act’) as of February 1, 2021.

[2] The Registrar took the position that the Appellant breached warranties under

section 13 of the ONHWPA for a home in Pelham, Ontario and failed to indemnify

Tarion for the resulting losses. The Registrar has also alleged that the past

conduct of the Appellant’s officer and director, Franca Pingue (‘F.P.’), affords

reasonable grounds to believe that the Appellant’s business undertakings will not

be carried on in accordance with law and with integrity and honesty.

[3] F.P. took the position that she made every effort to fulfill her duties as a registered

builder but was obstructed by difficult homeowners. She also alleged that the

Respondent never put her on notice with respect to the penalty amounts she could

face. Furthermore, she submitted that the Registrar has incorrectly labelled her as

disrespectful and aggressive.

[4] The following witnesses participated in the videoconference: Erin Cahill (‘E.C.’),

Magda Macari (‘M.M.’), Michael Provo (‘M.P.’), Timothy Semenuk (‘T.S.’), F.P. and

Bruce Hindrea (‘B.H.’). Glen McCabe (‘G.M.’) and Pat La Scala (‘P.L.S.’)

participated by telephone. Letizia Filipazzo (‘L.F.’) and F.P. attended the full seven

days as instructing clients to their legal representatives while the other witnesses

were excluded until their evidence was called.

B. PRELIMINARY ISSUES

Change of Adjudicator

[5] The hearing commenced on July 21, 2021 by videoconference and continued on

July 22, 23, 26, 28, 29, concluding on July 30, 2021. As requested by the Registrar

and ordered by the Tribunal, a court reporter was present. However, as the

hearing adjudicator was no longer available to issue the order, the parties agreed

that rather than reconvene the hearing de novo, it would be assigned to another

adjudicator who would re-hear the appeal and issue an order based upon the

audio recordings from the above hearing dates and the submitted exhibits. This

agreement implicitly bound the parties to accept the rulings issued by the original

adjudicator during the course of the hearing.

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Respondent’s Motion to Exclude Appellant’s Late File Documents

[6] The Appellant’s paralegal served and filed a portion of her documents in a 37 page

Book of Authorities titled “Book of Authorities II” on July 20, 2021, well after the

June 26, 2021 deadline ordered by the Tribunal on May 10, 2021. Counsel for the

Registrar requested an order excluding the late documents. The Appellant’s

paralegal stated that she only received the new documents from her client over the

weekend preceding the hearing and immediately transmitted them to the Registrar

and the Tribunal.

[7] The hearing adjudicator admitted the documents on the basis that the witness who

authored them was available for questioning and granted leave to the Registrar to

submit any reply evidence, if necessary, by July 27, 2021. Counsel for the

Registrar was also permitted an exception from the usual prohibition against

discussing evidence with witnesses who had already testified in order to review

the documents in question with those two witnesses, specifically M.P. and M.M.,

as well as a dispensation to recall one or both of those witnesses.

Selective Participation by Telephone

[8] The Appellant’s paralegal advised that three of her witnesses G.M., P.L.S. and

Jozo Mamic (‘J.M.’) would be unable to call into the videoconference and

requested a separate hearing date to participate by telephone. This request was

denied as unnecessary. Both G.M. and P.L.S. were able to call into a separate

teleconference line provided during the scheduled hearing dates. As J.M. was

apparently unable to access the telephone or videoconference, the Appellant

ultimately elected not to call him as a witness.

Appellant’s Adjournment Request

[9] Related to the above issue, at the beginning of the third day of the hearing, the

Appellant’s paralegal requested an adjournment as she was unable to secure

J.M.’s attendance as he was on vacation at that time. The hearing adjudicator

expressed some concern that the witness had apparently not been summoned

weeks or even months prior to the hearing date, particularly given the age of the

file. The Appellant’s paralegal estimated that J.M. would be one of the last

witnesses called to testify. Counsel for the Registrar was amenable to permitting

J.M. to participate by telephone but opposed any adjournment.

[10] The adjournment request was effectively withdrawn as J.M. subsequently agreed

to participate by telephone. As noted above, on the sixth day of the hearing, J.M.

remained unavailable; rather than revisit the issue of adjournment to arrange for

his participation, the Appellant elected to close its case after the testimony of

P.L.S.

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C. RESULT

[11] For the following reasons, and having considered the evidence and submissions, I

find that the Appellant has breached warranties under section 13 of the ONHWPA

with respect to the home at 260 Farr Street, Pelham and failed to indemnify Tarion

for resulting losses. I also find that the Registrar demonstrated that that the past

conduct of the Appellant’s officer and director affords reasonable grounds to

believe that the Appellant’s business undertakings will not be carried on in

accordance with law and with integrity and honesty. Lastly, I also find that the

Appellant’s high ratio of conciliations to enrollments with respect to one house

demonstrates insufficient technical competence. Having considered the possibility

of licencing with conditions, I am not satisfied that any conditions are appropriate

to protect the public interest and I therefore direct the Registrar to carry out its

proposed action pursuant to subsection 43(8) of the Act.

D. LAW

[12] Given the detailed nature of much of the evidence presented, a brief overview of

the statutory context for the role of Tarion in the warranty process for new homes

may be useful for the issues in this appeal, particularly as it engaged transitional

legislation.

[13] Tarion is a private, non-profit corporation designated by the Lieutenant Governor-

in-Council to administer the ONHWPA. Prior to a change in legislation five months

before the present hearing, it served as the Registrar under the Act and applied

and enforced the Act and Regulations.

[14] Each builder or vendor of new homes in Ontario must be licenced with the

Registrar. The licencing process involves an applicant agreeing to standard terms,

either through a Vendor Agreement, Builder Agreement or both, depending on a

particular applicant’s proposed role in new home construction. It is with respect to

this duty that the amended Notice of Proposal, dated August 17, 2020, was

issued.

[15] Tarion does not operate as an insurance company. Rather, its role is to ensure

that builders comply with the statutory warranties set out in the Act. The warranties

are those of the builder, not Tarion. The builder is also required to respond to

warranty claims as submitted by homeowners to Tarion within certain defined time

periods. A homeowner may ask Tarion to intervene by requesting a conciliation

inspection only if a builder fails to complete warranty repairs in a timely manner

and the homeowner believes that one or more warranted items have not been

repaired or resolved within the allowed time limits.

[16] The present proceeding related to two categories of warranty claims, specifically, a

delayed closing claim and a claim under the 30 Day Form. With respect to the

delayed closing claim, when a builder or a vendor sells a new home, he or she is

required to attach an addendum or schedule to every agreement of purchase and

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sale that sets out when the closing date of the agreement will be and includes

clear protocols with respect to extensions. If a new home buyer believes that he or

she received the home after the date that it should have closed according to the

addendum, then the homeowner may file a delayed closing claim with Tarion, after

paying a required fee. Once such a claim has been filed, the builder is notified and

has thirty days to negotiate with the homeowner to satisfy or resolve the claim.

[17] If this negotiation is not successful, Tarion invites the builder to provide input with

respect to his or her perspective on the conflict. A Warranty Service Analyst then

conducts a conciliation to make a determination with respect to whether the

homeowner’s claim is warranted and issues a Warranty Assessment Report

(‘WAR’). If Tarion finds that the claim was warranted, the homeowner’s fee is

refunded.

[18] A builder who disagrees with Tarion’s determination of warrantability or

chargeability in a WAR may be eligible to request an arbitration under the Builder

Arbitration Forum (‘BAF’). An arbitration request may only be made by licenced

builders who attend the conciliation inspections and must be made within 28 days

of receipt of the WAR. The Warranty Service Analyst also assesses whether the

claim is chargeable. A determination that a claim is chargeable represents Tarion’s

finding that the builder ought to have resolved an issue that led to an unnecessary

conciliation. In that instance, Tarion settles the claim directly with the homeowner,

writing a cheque out of its Guarantee Fund and then invoicing the builder for the

amount paid along with a 15% administrative fee. Tarion would also invoice the

builder for the cost of the homeowner’s refunded claim fee.

[19] A 30 Day claim follows a similar process. The ONHWPA imposes a one year

warranty on a wide range of defects with respect to workmanship and materials

and any violation of the Ontario Building Code (the ‘Code’), except as proscribed

by the Regulations. The Regulations also provide a process for a homeowner to

make a claim within the first thirty days after the date of possession. Once the

homeowner files a 30 Day claim, the builder has 120 days to address the items on

the claim. This is known as the first builder repair period. After the 120 days has

elapsed, a homeowner who is dissatisfied with the builder’s efforts to resolve the

items on the 30 Day claim may request a conciliation inspection.

[20] When a homeowner requests a conciliation, Tarion schedules an inspection and

notifies the builder. This starts the second builder repair period in which the builder

is given a further thirty days after the date the homeowner requests the conciliation

inspection to repair or resolve all of the claim items. Unless the homeowner

requests that the conciliation inspection be cancelled, a Warranty Services

Representative from Tarion attends at the home, reviews the homeowner’s claims

and issues a WAR that includes findings of warrantability or non-warrantability for

each disputed item. The builder then has thirty days to appeal Tarion’s decision to

the BAF.

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[21] If Tarion determines that at least one item in the WAR is warranted, barring some

specific exemptions, the conciliation will be deemed to be chargeable against the

builder’s record. The third builder repair period commences upon to the issuance

of the WAR if any items have been found warranted. The builder is then permitted

a further thirty days to conduct repairs, failing which Tarion will then schedule a

claims inspection with the homeowner. In such circumstances, the only issue to be

determined is whether the builder has carried out repairs to those items

determined to be warranted in the WAR. If not, Tarion will arrange to carry out the

repairs or provide cash compensation to the homeowner from its Guarantee Fund,

in the same process as with a delayed closing claim.

[22] In the present case, Tarion issued the Notice of Proposal pursuant to subsection

9(1) of the ONHWPA. However, when the present Act came into force, appeals to

the Tribunal under the ONHWPA that commenced before February 1, 2021, such

as the present proceeding, were continued under the Act.

[23] Section 86.3 of the Act and section 4 of O. Reg. 630/20 provide that licencing

proceedings before the Tribunal commenced under the ONHWPA continue as a

proceeding under the Act. The requirement that vendors or builders be licenced is

set out at subsection 37(1) of the Act.

[24] The grounds for the issuance or renewal of a licence for a corporate builder are

set out at subsection 38(1)(d) of the Act:

38.(1) An applicant is entitled to a licence or a renewal of a licence by the

registrar if, in the registrar’s opinion,

…

(b) the applicant is a corporation and …

(iii) the past and present conduct of its officers and

directors, of all interested persons in respect of its

officers and directors and of all interested persons in

respect of the corporation affords reasonable grounds for

belief that its business will be carried on in accordance

with the law and with integrity and honesty, and

(c) the applicant is not in breach of a condition of the licence, if the

applicant is applying for a renewal of a licence;

(d) the applicant meets the prescribed requirements, if any,

including requirements for competency;

[25] With respect to the ground of honesty, integrity and compliance with the law, in

Ontario (Alcohol and Gaming Commission of Ontario) v. 751809 Ontario Inc., the

Ontario Court of Appeal found that as a standard of proof, “reasonable grounds for

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belief” is lower than the “balance of probabilities.”¹It requires more than mere

suspicion and an objective basis for the belief based upon compelling and credible

information. The Court of Appeal also noted that when examining past conduct,

the Registrar is not limited to the operation of licensee’s business and may

consider both criminal and noncriminal conduct.²Further, according to CS v.

Registrar, Real Estate and Business Brokers Act, 2002, there must be a nexus

between the Appellant’s past conduct and its ability to conduct business under the

Act serving the interests of the public.³

[26] Subsection 39(d) of the Act provides that a licence is subject to prescribed

conditions. “Condition of the licence” is a defined term pursuant to section 3 of O.

Reg. 626/20, of which the following terms relate to the present matter:

3. The following conditions are prescribed for the purpose of clause 39

(d) of the Act:

…

8. A licensee shall comply with all applicable policies, rules, and

directions issued by the Registrar of the warranty authority and by

the warranty authority.

9. A licensee shall comply with all conditions, obligations, and

requirements imposed on the licensee by the warranty authority.

[27] Sections 4 and 5 of O. Reg. 631/20 detail the competency requirements are

prescribed for the purposes of subsection 38(1)(e) of the Act. The provisions

relevant to the present proceeding are:

4. The following legislation is prescribed for the purposes of subclause 38

(1)(c)(ii) of the Act:

1. The Ontario New Home Warranties Plan Act.

2. The Building Code Act, 1992.

5. (1) The following competency requirements are prescribed for the

purposes of clause 38(1)(e) of the Act:

1. With respect to an applicant for a licence or a renewal of a

licence, competency with respect to,

i. business planning and management,

¹2013 ONCA 157.

²Ibid. at para. 29.

³2019 ONSC 1652.

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ii. financial planning and management,

iii. project management and supervision,

iv. legal issues in housing, and

v. customer service requirements and requirements imposed

by the warranty authority.

2. With respect to an applicant for a builder’s licence or a renewal

of a builder’s licence, in addition to the competencies set out in

paragraph 1, competency with respect to,

i. the requirements of Ontario Regulation 332/12 (Building

Code) made under the Building Code Act, 1992 and of

Ontario Regulation 213/07 (Fire Code) made under the Fire

Protection and Prevention Act, 1997, and

ii. construction technology.

(2) The registrar must be satisfied that each applicable competency

requirement set out in subsection (1) is held by at least one of

the following persons in connection with an application:

1. The applicant.

2. An individual identified by the applicant in the application for

a licence or a renewal of a licence.

[28] Lastly, pursuant to subsection 43(8) of the Act, following the hearing, the Tribunal

may either confirm the Registrar’s proposal or substitute its own opinion:

43.(8) If the applicant or licensee requests a hearing in accordance with

subsection (2), the Tribunal shall hold the hearing and may, by order,

(a) direct the registrar to carry out the registrar’s proposed action; or

(b) substitute its opinion for that of the registrar.

[29] In the Notice of Proposal dated August 17, 2020, Tarion proposed not to renew the

Appellant’s licence. When the responsibility for licencing vendors and builders

transferred from Tarion Warranty Corporation to the Home Construction

Regulatory Authority, the Registrar maintained that position. Where the ONHWPA

referred to registration, the present Act refers the same process as licencing.

E. ISSUES

[30] The Notice of Proposal initially related to the following three grounds for non-

renewal of the Appellant’s licence:

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1. Pursuant to s. 8(2) of the Act, the Registrar finds that 1957922

Ontario Ltd. has a record of breach of warranty and is in breach of

the term and condition of registration. Specifically:

a. 1957922 Ontario Ltd. has breached warranties under s. 13 of

the Act for the home at 260 Farr Street, Pelham and failed to

indemnify Tarion for resulting losses as set out in Schedule A

and thereby breached the terms and conditions of registration

prescribed by s. 1.3 and s. 1.4 of Regulation 894 under the

Act; and

b. 1957922 Ontario Ltd.’s officer and director, Franca Pingue-

Gionet, has failed or refused to complete the Core

Competency courses of study required by the Registrar and

consented to by 1957922 Ontario Ltd. by correspondence

dated February 9, 2018 and April 12, 2019 and thereby

breached the terms and conditions of registration prescribed

by s. 1.3 and s. 1.4 of Regulation 894 under the Act.

2. Pursuant to s. 7(1)(d) of the Act, the Registrar finds that 1957922

Ontario Ltd. does not have sufficient technical competence to

consistently perform the warranties. Specifically:

a. 1957922 Ontario Ltd. has demonstrated poor customer

service and has a high ratio of 2 chargeable conciliations to 1

possession and has thereby breached the terms and

conditions of registration prescribed by s. 1.3 of Regulation

894 under the Act and s. 2.1 of its Vendor Agreement with

Tarion under s. 9(3)1 of Regulation 892 under the Act

[31] At the second case conference held on December 1, 2020, the Registrar stated

that it was satisfied the appellant has completed the necessary core competency

courses of study required by the Registrar. Accordingly, the Registrar withdrew

item 1.b. from the Notice of Proposal. However, the other two reasons outlined in

the Notice remained unchanged as the basis of the decision to refuse to renew the

Appellant’s licence.

[32] Specifically, the remaining alleged grounds for refusing to renew the Appellant’s

licence are that:

a. The Appellant did not reimburse the Guarantee Fund as required by the

conditions of the licence;

b. The Appellant’s very high ratio of conciliation to enrollments with respect

to one house demonstrates insufficient technical competence; and

c. The conduct of F.P. affords reasonable grounds for belief that the

Appellant will not carry on its undertakings in accordance with the law and

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with integrity and honesty. With respect to this ground for non-renewal,

the Registrar alleged that she has acted in a threatening and intimidating

manner towards homeowners at a conciliation inspection and that she

has been disrespectful and aggressive towards Tarion employees,

disregarding and disputing their advice and assistance.

[33] The issue to be determined at the hearing was whether the Registrar

demonstrated on the balance of probabilities that the remaining grounds for

refusing to renew the Appellant’s licence have been met.

F. EVIDENCE AND ANALYSIS:

Background and Agreement of Purchase and Sale

[34] F.P. is the sole officer and director of the corporate Appellant. She incorporated

the company in November 2016 and stated that it only builds new homes. The

corporation has no employees; however, F.P. vaguely implied that she has

occasionally enlisted her friend and contractor, P.L.S., as her agent to coordinate

after sales service and obtain quotes.

[35] F.P. has a degree in education and took a leave of absence from her full-time

employment with the Niagara Catholic District School Board to start her

construction company in 2016 but returned to her teaching position in or around

November 2019. She also owns and operates a pizza restaurant in St. David, near

Niagara on the Lake.

[36] She has been involved in the construction industry building homes since 2003 and

had been involved with Tarion since 2003 or 2004 through her uncle’s company.

She acknowledged that she has no formal education in construction or the trades

other than the training required by Tarion. At the hearing, she estimated that she

has been involved in the construction of roughly twelve new homes and built

approximately “half a dozen” homes either under her own name or that of her

corporation over the course of her career.

[37] On January 25, 2017, F.P. signed a Vendor Agreement with a representative of

Tarion. That agreement contained the following terms:

2.1 The Registrant shall diligently perform the obligations heretofore or

hereafter imposed upon the Registrar by the Act, the Regulations,

this Agreement and/or the Bulletins and shall indemnify and save

Tarion harmless against all losses, claims, costs, damages and/or

liabilities whatsoever heretofore or hereafter suffered or incurred

by Tarion resulting from (or arising out of) any non-performance or

inadequate performance of such obligations, in whole or in part, at

the times, (and in the manner) as may be provided or

contemplated by the Act, the Regulations, this Agreement and/or

the Bulletins, provided written notice of a claim against the

Registrant, or relating to any homes in respect of which the

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Registrant acted as Vendor (or that were enrolled by the

Registrant) has been given to Tarion within the relevant warranty

period(s).

2.7 The Registrant shall pay to Tarion an administration fee equivalent

to fifteen (15%) per cent (or such other per cent as may be

stipulated from time to time by the Regulations) of each amount

paid out by Tarion to any purchaser(s), homeowner(s) or third

party contractor(s)/consultant(s) in respect of the obligations

imposed upon the Registrant by the Act, the Regulations, this

Agreement and/or the Bulletins.

[38] F.P. agreed that she understood both of the above provisions and that they

applied to her corporation as a licensee. She also agreed that the following term of

the Agreement applied to her company’s licence with Tarion:

3.13 Compliance with the provisions of this Agreement shall form a term

and condition of the registration of the Registrant under the Act.

[39] Prior to the present matter, the Appellant’s licence had never been the subject of a

Notice of Proposal to deny renewal. F.P. testified that as of the date of the hearing,

both the property adjacent to 260 Farr Street and a bungalow that she built in Port

Colborne had been completed, but neither were enrolled with Tarion; the latter is a

rental property that she uses as a model home. She agreed that 260 Farr Street

was the first home enrolled with Tarion by the corporation.

[40] M.P. and Andrea Tyler (‘A.T.’) purchased the single family house at 260 Farr

Street in the Town of Pelham (the ‘Town’) from the Appellant. M.P. has no building

experience or training in home construction and met his then real estate agent,

R.T., at their shared workplace.

[41] In early June 2018, M.P. and R.T. had viewed a number of new and resale homes

in the Niagara Region when they met F.P. at the lot at 260 Farr Street, where she

was building the basement foundation. M.P. returned with A.T. and they discussed

the possibility of adding a basement walkout to the proposed plan for the property,

which F.P. agreed would be feasible given the size of the lot. At her suggestion,

the homeowners viewed her model home in Port Colborne, a bungalow similar in

layout to the plan for 260 Farr Street.

[42] M.P. explained that they had a strict time requirement to move into a new home as

his mother-in-law could not stay at her current residence due to financial and

cognitive issues. He acknowledged that while he informed R.T. of his mother-in-

law’s medical condition, he did not advise F.P. of this issue before moving into the

property. F.P. denied noticing any issues when interacting with A.T.’s mother

whenever she attended at the property.

[43] Since the foundation for the house had already been built, F.P. was confident that

she could meet the homeowners’ proposed deadline for occupation. At the same

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time, given the pace of construction, to accommodate their request for a higher

foundation, she would need them to submit an offer in comparatively short order.

They made the offer approximately two weeks later.

[44] On November 21, 2018, M.P.’s lawyer received a letter from the Appellant’s lawyer

requesting an additional $20,000.00 to be paid to Tarion for the enrollment fee for

the house. The homeowners received this letter on or about the same date. M.P.

did not expect to incur this cost as he had assumed that the house had already

been enrolled since the Appellant was listed with Tarion as a builder. The

homeowners never paid the requested $20,000.00.

[45] F.P. agreed that she posted $20,000.00 as a security deposit when she enrolled

the property in the program. She testified that she did not believe that she was

permitted to enroll the home with Tarion until she paid this deposit. She denied

that 260 Farr Street was the only property that she had enrolled with Tarion and

testified that she had paid a similar deposit for other homes. She did not clarify

whether she referred to homes enrolled after 260 Farr Street or in relation to her

uncle’s company.

[46] This letter also requested confirmation on whether the homeowners intended to

conduct a walkthrough of the property and suggested November 29 or 30, 2018 as

potential dates for this inspection. M.P. confirmed that he and A.T. conducted the

offered walkthrough on or about November 30, 2018. At the hearing, he described

the house at that time as “a beautiful home other than the Code violations that still

needed to be corrected” and confirmed that he mentioned these defects,

particularly those related to the stairs, to F.P. during the inspection. He explained

that he understood that the visible issues with the house represented Code

violations, based upon a building inspector’s report provided to his lawyer shortly

before the closing.

The Delayed Closing

[47] Pursuant to the Agreement of Purchase and Sale and the Statement of Critical

Dates provided by Tarion, the first tentative closing date was Friday, December 3,

2018. There was no dispute that the homeowners did not move into the house

until Monday, December 6, 2018 and no substantial dispute that the delay was

caused by the Appellant’s failure to obtain an occupancy permit before the original

closing date.

[48] On the weekend prior to the closing, the homeowners received an email from R.T.

indicating that F.P. had advised through her lawyer that the Appellant was not

going to close on December 3, 2018. This delay posed a significant inconvenience

to the homeowners as A.T.’s mother-in-law’s house was subject to a conditional

sale closing on December 3, 2018 and she was required to vacate her house as of

that date. They were compelled to rent storage facilities for her furniture and other

property as the moving van had been arranged for December 3, 2018 on the

assumption that they would move her belongings directly into the new house. As

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his mother-in-law was already upset at vacating the house where she had lived for

thirty years, this unexpected complication was very difficult for the family.

[49] When M.P. filed his Delayed Closing/Occupancy Claim Form, he attached the

rather laconic email sent by F.P. on Sunday, December 2, 2018 at 12:24 a.m.,

which stated, “The inspector can only come on Tues. in am for occupancy. Thnx.”

This came as a surprise to the homeowners as they had no prior notice that they

would be unable to move into the house on December 3, 2018.

[50] By contrast, F.P. repeatedly testified that throughout construction, the

homeowners had advised her that they could move into the house well after the

closing date as late as February or March in the following year. She stated that

this was consistent with their pattern of causing delays during construction in

August and September 2018 through late submission of their final plan for the

electrical system and frequent changes to various elements of the house, including

the ceiling in the basement.

[51] However, she testified that when the issue of the pending closing date began to

arise in conversations with R.T., in mid-November 2018, she contacted her lawyer

for an update on the closing, as there could be potential issues with financing. She

did not indicate communicating this urgency to the homeowners. Instead, she

reviewed the architectural plan highlighted with the homeowners’ additions with

R.T. but opted not to have her lawyer review the changes to the plan, despite an

awareness that the small narrow walk out requested by the homeowners would

require an engineer’s plan and approval by the Town. Both the basement walkout

and the higher foundation were not part of the original plan and required municipal

approval.

[52] On Friday, November 30, 2018, an inspector from the Town attended at the

property to assess the remaining items that required inspection before an

occupancy permit could issue. F.P. offered extremely inconsistent evidence with

respect to the details of that meeting. She initially testified that the inspector would

not pass the risers on the walkout stairs as they were not sufficiently uniform in

height and requiring further sanding. She then changed her evidence to claim that

the stairs were passed but that the occupancy permit was not granted due to a

problem with the plumbing in the basement, as well as another unspecified

mechanical issue possibly related to the water heater. She stated that she was

required to bar the top step of the back deck to prevent its use until the

excessively high top step was reduced to the same height as the deck surface. In

his evidence, M.P. denied that any such barrier was ever installed. F.P. then

claimed that the front landings and walkout were passed. This evidence tends to

conflict with Tarion’s later determinations with respect to the poor workmanship

evident in the construction of these items.

[53] While she claimed at the hearing that the occupancy permit was not required to

close, this position conflicted with her own email to her lawyer on December 2,

2018, agreeing with his assessment that the closing could not occur without the

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occupancy permit. During this same period, F.P. was in communication with her

lawyer over scheduling the Pre-Delivery Inspection (the ‘P.D.I.’) before the now

postponed closing. Strangely, she did not know whether the P.D.I. occurred on

December 4, 2018 but speculated that it may have taken place in the evening or

possibly on December 5, 2018.

[54] The only coherent fact arising from F.P.’s meandering and fluid testimony with

respect to the November 30, 2018 inspection was that the occupancy permit was

not granted on that date and that since the inspector was unable to return until

December 4, 2018, it could not be issued until then.

[55] M.P. agreed under cross-examination that he and A.T. had “agreed” to delay the

closing to December 5, 2018 when this delay was proposed to them in an email

from their lawyer. However, this concession should not be viewed as consent to

delaying the closing in general since, in the absence of an occupancy permit, the

homeowners could not legally reside in the house until the Town issued the full

occupancy permit.

[56] I find that F.P.’s inconsistent and repeatedly fluctuating recollections on the

reasons for the delayed occupancy permit falls far short of credible or reliable

evidence. Similarly, her claim that the homeowners were indifferent to the closing

date was never put to M.P. on cross-examination and was first introduced into

evidence during F.P.’s direct examination. This version of events is also

inconsistent with M.P.’s unchallenged evidence that he and A.T. made a prompt

purchase offer to the Appellant primarily due to the urgency of moving A.T.’s

mother into the home as soon as possible and F.P.’s assurances that she could

meet their needs on this timeline. On the balance of probabilities, I prefer M.P.’s

evidence on this issue and find that the homeowners expected the property to

close on December 3, 2018 until they were informed the day before the closing

that this would not occur. In light of M.P.’s largely uncontested evidence regarding

the inconvenience and anxiety caused by the postponement, I reject the

Appellant’s evidence that the homeowners had led her to reasonably believe that

they were indifferent to a delayed closing.

[57] As well, I find that F.P. failed to establish a causal link between earlier delays

during construction and the Town’s refusal to issue the occupancy permit,

particularly as on her own evidence, she was aware that the alterations to the plan

would require municipal approval.

[58] E.C. has been employed with Tarion since 2004 and has served as a Warranty

Service Analyst since 2016. She completed training in the Code at Fanshawe

College as well as extensive training with Tarion. In her present position, she

investigates delayed closing claims, deposit claims and financial loss claims and

estimated that she conducted approximately one hundred warranty assessments

prior to the present matter.

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[59] She testified that the statement of critical dates, attached to an agreement of

purchase and sale, lists potential critical dates, the builder’s ability to extend those

dates and the purchaser’s ability to terminate a purchase, as well details of the

delayed closing warranty and the deposit protection. If purchasers believe that

they are entitled to compensation, they can submit a claim with respect to delayed

closing at any time to Tarion during the first year of occupancy. Homeowners may

claim $150.00 per day to a maximum of $7,500.00 if there is a delay past the firm

closing or occupancy date. She acknowledged that she often sees extended or

delayed closings as these may occur for a number of reasons.

[60] E.C. also explained that the Builder Bulletins provide information to builders with

respect to the legislation in terms of expectations and requirements. For instance,

when a homeowner submits a claim for delayed closing, the builder is expected to

assess the claim by determining the amount of delayed closing compensation

payable based upon the rules set out in the addendum to the Agreement of

Purchase and Sale and the receipts provided by the builder within thirty days and

may provide input to Tarion. E.C. agreed that she had discretion to extend that

timeline on behalf of Tarion. Tarion then issues a WAR determining whether the

claim is warranted or chargeable. If Tarion finds that the builder provided

compensation the homeowner equal or greater to the compensation payable, then

Tarion could make the claim non-chargeable if the homeowner still requested an

assessment.

[61] Builder Bulletin 46 sets out the requirements for changing a critical date by

agreement as follows:

 The builder and purchaser may at any time after signing the

purchase agreement, agree in writing to extend or accelerate one

or more Critical Dates, (e.g., First Tentative Closing Date, Second

Tentative Closing Date, Firm Closing Date or Delayed Closing

Date), in each case to a new specified calendar date.

 The amendment must provide that it is being made voluntarily; that

the builder and purchaser acknowledge that the purchaser has no

obligation to sign the amendment; and that the purchase

transaction will still be valid if the purchaser does not sign the

amendment.

 The amendment must include a new revised Statement of Critical

Dates.

[62] The Appellant never revised the Statement of Critical Dates and never obtained

the required statement that the homeowners waived compensation or accepted

the compensation in full satisfaction of any Delayed Closing compensation

otherwise payable by the builder. At the hearing, F.P. acknowledged that she was

aware of these requirements at the time that the closing date was delayed, but

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after some evasion, essentially blamed her legal representatives for her

company’s failure to comply with these provisions.

[63] Builder Bulletin 20 also applied until February 1, 2021 when the new legislation

came into force and included a section on how chargeability was determined and

applied during the material time covered by this appeal. As noted above, if a

builder disagrees with an assessment, he or she may appeal to the BAF. In the

present case, the Appellant never commenced an appeal to the BAF with respect

to this issue.

[64] In their claim, the homeowners entered a calculation of four days for $600.00 total

living expenses. If a builder does not provide at least ten days of a firm closing or

occupancy date, then an automatic addition of ten days for insufficient notice is

available. As a result, the homeowners claimed ten days for insufficient notice of a

Delayed Closing/Occupancy Date at $1,500.00 for a total of $2,100.00 in delayed

closing compensation. The homeowners attached a statement of critical dates

from the Agreement of Purchase and Sale and occupancy permits, as well as

some email correspondence that offered some explanation for the last minute

delay.

[65] On the same date, Tarion acknowledged receipt of the claim in a letter copied to

both parties and providing information that the Appellant had until December 4,

2019 to assess and contact the homeowner, failing which, the homeowners may

request conciliation.

[66] F.P. acknowledged receipt of the Tarion’s confirmation letter but testified that she

did not receive it until an unknown date presumably later in December 2019,

vaguely attributing the delay to unspecified issues with her mail. She stated that

she had been dealing with M.M. on behalf of Tarion at the time and raised the

issue in conversation. She then changed her evidence to state that she discussed

the claim with O.F. at Tarion, then stated that she did nothing at all as she was

waiting to hear from M.M., who she believed was upset with her for missing a

meeting with the homeowners in November 2019. She stated that in response to

several letters from O.F. with respect to the delayed closing, she contacted O.F.

on an unknown date. F.P. stated that O.F. advised that the case was still open and

that F.P. was “entitled to go there now.” F.P. summarized her emails with O.F. and

sent them back to her for unexplained reasons in either January or February 2020.

As the Appellant chose not to call O.F. as a witness at the hearing to clarify her

involvement on the file or to confirm her alleged statements to F.P., I would assign

this evidence very little probative weight.

[67] On December 9, 2019, Tarion notified the Appellant by letter that the homeowners

had requested conciliation and that the Appellant had until January 8, 2020 to

submit any information or documents to support its position or to advise Tarion

that the claim has been resolved. E.C. recalled communicating with the Appellant

by email and by telephone and that it was F.P.’s position that the delay had been

requested by the homeowners and that the Appellant was therefore not

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responsible for the delay. While these emails were not filed as evidence at the

hearing, I do not find that their absence contradicted or undermined E.C.’s

testimony since F.P.’s apparent statements in these emails were consistent with

her position at the hearing that the homeowners had delayed the closing. As well,

the Appellant referenced no corroborating evidence to contradict E.C.’s testimony

that F.P. had claimed that the homeowners had requested the postponement.

[68] E.C. requested a copy of the homeowners’ required written waiver of delay from

the Appellant as this document was required to make an unwarranted

assessment. However, despite allowing additional time, she never received this

waiver from the Appellant. F.P. denied ever communicating with E.C. or that E.C.

ever contacted her. However, as she acknowledged notification that the

homeowners had requested conciliation, I find that if she was confused regarding

the next step in the process, she could have and should have contacted someone

at Tarion.

[69] On February 9, 2020, Tarion sent a general cover letter to the homeowners

confirming that their claim had been accepted for the following reasons:

The vendor failed to provide 90 days’ written notice of the Second

Tentative Closing Date to the purchaser. Therefore, the First Tentative

Closing Date of December 3, 2018 shall for all purposes be the Firm

Closing Date.

The builder’s representative, Franca Pingue, sent an email to the

purchasers on December 2, 2018: “I just spoke with Rudy and after

some hesitation we agree with you that Wednesday, December 5th

would be better to close as they would like it to be the same day as

their walk threw [sic]. The only foreseeable delay is the okay from the

region to the town for the septic. I will keep everyone posted on

Tuesday with occupancy status after inspector leaves as I understand,

at this point, this is required prior to closing.”

Tarion received a copy of the Occupancy Permit from Pelham Niagara

confirming occupancy was granted on December 4, 2018.

The purchasers received occupancy of the home on December 6,

2018.

The vendor was contacted and provided their position stating the

delays were caused by the purchaser. Tarion requested evidence from

the vendor to support their position, however the vendor did not

respond with supporting evidence.

Conclusions:

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The purchasers are entitled to Delayed Closing Compensation for the

time period between December 3, 2018 and December 6, 2018; 3

days.

The purchasers are entitled to an additional $1,500.00 for the vendor

failing to provide 10 days’ notice of a delay prior to the Firm Closing

Date.

The purchasers are entitled to compensation in the amount of

$1,950.00.

[70] E.C. testified that Tarion would have sent a copy of this letter to the Appellant,

along with information on the appeal process to BAF. She explained that Tarion’s

computer system automatically sends a paper copy to both the homeowner and

the builder; a builder may also receive an electronic copy depending on how the

builder has elected to receive correspondence. Under cross-examination, she

agreed that confirmation of this transmission was not included in the Registrar’s

evidence. However, when E.C. offered to provide evidence that would confirm that

the Registrar had such a document in its records generally, the Appellant’s

paralegal refused her offer.

[71] The Appellant’s paralegal chose not to put any specific evidence that may have

contradicted E.C.’s evidence on this point to her, but then attempted to elicit

evidence to the contrary from her own client in direct examination, engaging of the

rule in Browne v. Dunn.⁴In response to the Registrar’s objection, the Appellant’s

paralegal then misrepresented the exchange, claiming that she had asked E.C. for

the missing email, but that E.C. had responded that she was unable to provide it.

As a result, I find that F.P.’s implied denial of any communication from the

Registrar with respect to the process to appeal the delayed closing compensation

should be accorded virtually no probative weight.

[72] E.C. testified that this assessment was also found to be chargeable. The

homeowners signed a form on February 11, 2020 accepting the above payment in

full resolution of their delayed closing claim. On February 19, 2020, Tarion

invoiced the Appellant for the claim, plus the 15% fee and H.S.T. E.C. testified that

she believed that the Appellant had paid the invoice but noted that it was unusual

for a builder not to resolve such a small claim immediately and thereby avoid a

chargeable conciliation.

The 30 Day Form

[73] On December 28, 2018, the homeowners submitted their 30 Day Form. On

January 9, 2019, Tarion sent a letter to the homeowners acknowledging receipt of

the Form, which provided the relevant timelines for the homeowners and the

Appellant:

⁴(1893) 6 R. 67, H.L.

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Your builder is expected to resolve the items covered under the

warranty by May 15, 2019. Please note that there are specific

situations to which this timeline may not apply (such as repairs to the

exterior of your home that require suitable weather conditions). During

this initial repair period, you should work with your builder to resolve

the warranted items submitted on your form.

[74] Other than seasonal items, if the Appellant failed to complete repairs or otherwise

resolve the warranted items by May 15, 2019, the homeowners had thirty days

between May 16, 2019 and June 14, 2019 to contact Tarion to request a

conciliation.

[75] The homeowners’ 30 Day Form contained the following seventeen issues:

a. Basement: Walk up stairs to outside - poor workmanship - risers are not

uniform - treads are too narrow - leading edge of treads don't have a

levelled or rounds edge - no drain at bottom - loose pavers at bottom of

stairs - not agreed upon. Builder not willing to provide builders permit.

b. Rear deck: Risers not uniform - ledger has no flashing. Deck is over 2" ft

in height and wood posts are not anchored to concrete - concrete pier

depth & footing not verified - no side gussets on post and beams function.

Builder not willing to provide builder permits.

c. Front stairs: First stair on grade was covered - finish is rough - no hand

railing installed.

d. Outside grading: Not done.

e. Outside: A/C not installed.

f. Outside: Eaves troughs are leaking on all inside & outside seams.

g. Outside: Parging not complete.

h. Outside: Window wells - garage needs to be removed & stone added to

bottom of windows wells & pipe cut according to OBC.

i. Lower level: Missing 3 sets of interior door handles.

j. Lower bathroom: Missing ceiling bathroom light fixture.

k. Upstairs kitchen: Holes drilled in wrong place for handles.

l. Kitchen – upper: Unauthorized substitution of a Kenmore Elite /55/60" -

fridge & freezer - Should be a Frigidaire 55/60" Professional series.

m. Outside: Missing all screens for windows & doors.

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n. Survey: No updated survey - septic system location not correct on survey.

o. Garage door: Dent in seam – Double garage door.

p. Bedroom #3: Missing folding window crank.

q. Garage: Both windows missing folding window crank.

[76] While M.P. agreed that A.T. had handwritten the above list on the form, both

homeowners collaborated on its content. As a result, the hearing adjudicator

rejected the Appellant’s submission that only A.T. could properly testify to this

evidence. Similarly, while neither homeowner had any formal training with respect

to the Code, like any reasonable person, both could recognize the obvious defects

in the workmanship on the house, as confirmed by the copious photographic

evidence submitted at the hearing. In addition, as noted at paragraph 46 above,

the homeowners had been in possession of the building inspector’s report since

November 30, 2018, roughly one month before they submitted the 30 Day Form.

[77] As several of the items on the 30 Day Form were not resolved by the end of the

initial builder repair period, the homeowners requested a conciliation.

[78] M.P. acknowledged that several of the items were ultimately resolved, albeit not

necessarily within the initial builder repair period. For instance, after some delays

with contractors, the air conditioner was eventually installed. Similarly, the parging

and the issues with the window wells were resolved, as were items i., j. and k.

above. As for the septic system on the survey, he described the placement of this

item as “questionable,” but evidently did not pursue the issue further. After delivery

delays, the window screens and the window hand cranks were eventually supplied

and installed, well after the end of the initial builder repair period.

[79] The eavestroughs were also not repaired during the initial builder repair period. At

the hearing, M.P. testified that they leaked quite heavily in various areas and

trickled elsewhere. The corners were also leaking and the seams were “unsightly”

exhibiting poor workmanship.

[80] F.P. insisted that the homeowners wait one year before finishing the front landings

and the walkout, stating simply that this was her practice as the land was still

settling. Under cross-examination, she was evasive with respect to the basis for

this statement, refusing to state whether the concrete pad was poured in a single

piece and suggesting that the question should be put to an expert on concrete.

She stated that she felt pressured by the homeowners to proceed with the pour as

they wanted it completed in time for the closing date.

[81] F.P. stated that pursuant to the Agreement of Purchase and Sale because she

had accommodated the homeowners’ various late requests for changes to the

plan, they “could not hold her” to imperfections and poor workmanship on the

landings and stairs on the basement walkout.

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The July 30, 2019 Conciliation Inspection and Aftermath

[82] At the request of the homeowners, on June 19, 2019, Tarion scheduled a

conciliation inspection for July 30, 2019 to assess the unresolved items on the 30-

Day Form. During the pre-conciliation builder repair period, the Appellant had until

July 18, 2019 to resolve the items on the form that were covered by the warranty.

During this pre-conciliation repair period, they were advised to continue to work

with their builder to resolve the items.

[83] M.M. has worked in the construction industry since 2003, working for various

builders conducting pre-delivery inspections and administrative duties and for

homeowners. She also completed training at Tarion and obtained her Building

Code Identification Number (‘B.C.I.N.’). As of the date of the hearing, she had

worked for Tarion for three years and four months as a Warranty Services

Representative. Her work involves conducting inspections and writing warranty

assessment reports. By the date of the 30 Day conciliation inspection in this

matter, in addition to years of experience for various builders, she had completed

over 150 inspections for Tarion.

[84] She testified that if an item listed in a 30 Day Form is seasonal, such as a water

test during the winter, the builder will have an extended period to resolve the

issue. For instance, if a form is submitted between November 16 and November

30, the builder would have until September 1 of the following year to complete the

seasonal items. Or, if the completion of an item is simply not feasible for other

reasons, Tarion may schedule a re-inspection at a future date for completion.

[85] F.P. recalled that she asked P.L.S. to conduct work at the house during this period

as the homeowners appeared to get along with him better than the other

contractors. On June 27, 2019, she requested access to the house on July 11,

2019 to conduct work on interior items; however, the homeowners refused this

request.

[86] M.M. conducted a 30 Day inspection of the homeowner’s residence on July 30,

2019 and reviewed all of the items on their form. Both A.T. and M.P., as well as

F.P., were present. During this inspection, M.M. took a number of photographs

and measurements of the outstanding items, which were included in her WAR.

She recalled that although a few of the items were in the interior, the majority of

the issues of concern to the homeowners were on the exterior of the home.

[87] M.P. testified that the inspection began with a discussion inside the house with

respect to the relevant paperwork and the items listed in the 30 Day Form. They

then went outside and examined the walk up area. He recalled that M.M.

examined the exterior items on the Form, as well as the leak into the basement,

followed by an inspection of the deck.

[88] He noted that throughout the inspection, there was some degree of confrontation

and observed that F.P. appeared “agitated” that some of the measurements of the

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disputed items did not appear to be “going her way.” They then entered the house

and examined the cupboards, the refrigerator and the door handles. In response to

F.P.’s complaints that the homeowners had unreasonably refused access to the

property to conduct repairs, M.M. confirmed that she was required to provide at

least two business days’ notice before attending at the home. When F.P. accused

the homeowners of delaying the closing, the discussion became further agitated.

Since the parties had already finished discussing the items on the 30 Day Form

and F.P. began to vent her annoyance over other issues, M.M. opted to terminate

the meeting.

[89] M.M. agreed that the discussions during the inspection were not particularly

amicable and that there was “a lot of arguing” and raised voices commencing

immediately upon discussion of the disputed items. The concrete staircase at the

walkout to the basement at the rear of the home prompted the most heated

exchange between the homeowners’ expectations and the workmanship provided

by the Appellant. She recalled that while both sides engaged in some degree of

bickering, F.P. was very disrespectful to the homeowners, repeatedly raising her

voice when discussing the staircase.

[90] When the parties went into the house, M.M. testified that the situation worsened.

She recalled that she was standing at the kitchen island with the parties on either

side when the topic of responsibility for the delayed closing was raised. She stated

that F.P. became very aggressive and shouted at the homeowners, calling them

names and swearing. M.M. testified that only F.P. engaged in profanity and name-

calling. At one point, she began to approach the homeowners in an aggressive

manner, causing M.M. to fear that she would physically attack them. M.M. blocked

F.P.’s advance with her own body and suggested that the inspection should

terminate. As Warranty Service Representatives are instructed not to make

physical contact with others, she persuaded F.P. that it would be best if she left

the property.

[91] M.P. recalled that as F.P. was walking to the front door to leave, she walked

towards A.T., yelling and pointing in her face that she was “totally disgusted.” A.T.

told F.P. to get out of her house and M.M. repeatedly asked F.P. to leave until F.P.

finally exited the home. When F.P. reached the landing, M.M. had to ask her to

leave “a couple more times after that.” M.P. testified that the incident was “kind of

scary” and “upsetting” particularly as his daughter and mother-in-law were present.

He explained that this incident severely damaged the homeowners’ relationship

with the Appellant and that they preferred not to allow F.P. in the house again

unless M.M. was also present. M.P. stated however that neither he nor A.T.

specifically denied F.P. access to the property even after this incident. While he

testified that he reported the confrontation to Tarion, he agreed that the email

containing this communication was not submitted at the hearing. However, since

M.M.’s description of the event was not challenged under cross-examination, I find

little turns on the absence of an email to another Tarion employee that would have

largely repeated the substance of M.M.’s direct testimony.

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[92] M.M. testified that she has never encountered this level of aggression at an

inspection before and was “quite shaken” by F.P.’s conduct. While she briefly

considered calling the police, this ultimately proved unnecessary when F.P. drove

off the property. M.M. noted that she was unable to discuss the timeline for repairs

at the inspection on July 30, 2019 before F.P. became belligerent towards the

homeowners. She did not provide a description of F.P.’s conduct in the inspection

reports as this was not appropriate to the purpose of these documents. She

nonetheless testified that she reported this incident to her manager by telephone.

[93] F.P. provided a differing account of the events on July 30, 2019 but agreed that

the meeting ended a heated confrontation. She testified that she arrived early to

the inspection with items for the house and met with M.M. When they entered the

home, they started the inspection gathered around the dining room table. After

M.M. described the process for the meeting, they began by inspecting the front

steps, which F.P. described as landings. While she agreed that the landings were

cracked, she took the position that the homeowners were searching for any

imperfections to present to M.M.

[94] F.P. acknowledged that when the homeowners directed her and M.M. to the

walkout steps, there may have been bickering, but she emphasized that she

directed most of her statements to M.M. She testified that they next inspected the

deck and its attached stairs, providing a lengthy and meandering digression on the

defects listed in the 30 Day Form, largely complimenting herself on her

construction skills and claiming that M.M. conspired with her in whispered tones to

prevent the homeowners from overhearing their plans to repair the piers under the

deck.

[95] When they returned to the interior of the house, she stated that M.M. listed the

items on the Form. She stated that at that point, some “discrepancies” between

herself and the homeowners started to arise, including their complaint over the

substituted refrigerator. She became “very offended and hurt” as she believed that

the homeowners were not sufficiently grateful for her goodwill gesture in agreeing

to alter the basement ceiling from the building plan. She stated that A.T. then

promptly asked to her leave. She stated that she was pleased to comply as she

was “shaken up” after everything she had done for the homeowners. She recalled

stating that she could “not believe the lies” to which M.M. suggested that she stop

speaking and ushered her out of the house, while repeating, “I’m on your side” to

F.P. She stated that she then apologized to M.M. if she did not maintain her

composure but emphasized that she was justifiably upset at the homeowners as

she had been “so patient and kind” to them. She then went on to describe how

M.P. had been effusively grateful to her for building his dream house, apparently

during the November 30, 2018 inspection. “Demoralized” by their subsequent lack

of appreciation, she never returned to the property.

[96] F.P. denied that she could have intimidated A.T. when they argued in the kitchen

because the kitchen island was very large and A.T. was “ten feet away”; she also

denied approaching A.T. She denied calling the homeowners derogatory names or

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approaching A.T. while pointing her finger. Essentially, she took the position that

she was blameless as she did not physically assault the homeowners or attempt to

do so. She also denied receiving any notice from the homeowners or Tarion that

the homeowners felt intimidated by her conduct. However, in light of the

uncontested evidence that M.P. had requested that she refrain from attending at

the property after this incident, I find that she would have reasonably understood

their position if not agreed with it.

[97] Significantly, F.P.’s alternative version of events, particularly M.M.’s alleged

allegiance with F.P. against the homeowners, was never put to M.M. or M.P. under

cross-examination despite her paralegal’s opportunity to do so.

[98] On the balance of probabilities, I prefer the testimony offered by M.P. and M.M. as

the more accurate description of the events of July 30, 2019. While F.P. attempted

to minimize and rationalize her conduct, she ultimately did not contest their

evidence that she bickered with the homeowners and raised her voice towards

them when disagreements over the inspection arose. While M.P. may have had a

potential interest in depicting F.P. as the aggressor, I find that the Appellant failed

to explain why M.M. would have been motivated to misrepresent the events of July

30, 2019 and none of her evidence was challenged in any meaningful manner. In

light of M.M.’s forthright and detailed testimony regarding how disturbing she found

F.P.’s belligerent conduct during and after the inspection, I find that F.P.’s attempt

to depict M.M. as her covert co-conspirator against the homeowners lacked any air

of reality. Rather, the evidence suggests that F.P. conducted herself in an

aggressive and unprofessional manner precisely as M.M. and M.P. described, but

believed her actions justified in response to her increasingly frustrating relationship

with the homeowners.

[99] Similarly, I do not find that the Appellant substantially refuted M.M.’s description of

F.P.’s belligerent conduct following the conciliation inspection. M.M. testified that

throughout this process, F.P. was “continually very aggressive” towards her.

Although there was no further meeting between her, the homeowners and F.P.

after July 30, 2019, whenever M.M. spoke to F.P. over the telephone, F.P. became

aggressive and disrespectful, “yelling and screaming” at M.M. and would “try to put

words in [her] mouth.” As F.P. was extremely loud, M.M. would inevitably have to

retreat to a private area to attempt to converse with her. M.M. noted that F.P.’s

general lack of knowledge of the process appeared to frustrate her during these

conversations resulting in numerous questions and emails over the same issues

“over and over and over again” also overwhelming M.M. with emails asking the

same questions. M.M. did not know if F.P. sought to obtain a different answer or

simply did not understand the original information; however, it was clear to M.M.

that F.P. had very little understanding of the process. For instance, she could not

comprehend the time limitations for builder repair periods or why she was not

permitted in the home to complete repairs prior to or past the claim inspection

despite M.M.’s best efforts to explain these concepts to her.

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[100] Eventually, M.M. asked F.P. to cease communicating with her by phone as these

conversations were not productive given her abusive conduct. While she

requested that F.P. contact her by email, this too proved counterproductive as F.P.

would bombard her with emails, often three minutes apart for hours at a time,

totalling between thirty to forty emails in a given day. This would interfere with

M.M.’s ability to work on other files. Although she suggested that F.P. summarize

all of her questions in one collective email, this never occurred. Although M.M.

offered to meet with F.P. in public place, F.P. refused, demanding to meet in a

private location of her choosing. In light of F.P.’s aggressive conduct, M.M. did not

feel comfortable meeting her in an unfamiliar area such as an empty house or

office as F.P. suggested, particularly as F.P. intended to bring her own “witness” to

these proposed meetings.

[101] F.P. denied the allegation that she was aggressive and disrespectful to Tarion

employees and speculated that they were confused. In response to the allegation

that she disregarded their advice, her responses were the product of excessive

leading by her representative. She agreed that she was “almost too assertive” as

she believed that the Tarion employees lacked the expertise to answer her

questions. She demanded that they respond to each “in line,” meaning that she

expected them to provide itemized responses to every item in each of her queries.

She took the position that any response that fell short of these criteria did not

qualify as a satisfactory response.

The August 7, 2019 Warranty Assessment Report

[102] On August 7, 2019, Tarion sent the resulting WAR to the Appellant with a

summary of the items found warranted during the inspection. The attached letter

provided the following information with respect to timelines for repairs and as well

as information on appeals to BAF:

Warranted Items

If we have assessed an item as warranted, you are required to resolve

that item by September 6, 2019 (or by the date that may be indicated

in the report for a particular item). We will contact the owner of the

home at the end of this post-conciliation repair period to confirm that

warranted items have been resolved.

…

Chargeability

This conciliation is Non Chargeable for the following reason: No

Warranted Items .

Builder Arbitration Forum

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If you disagree with Tarion’s assessment, you may be able to

challenge it at the Builder Arbitration Forum, as set out in Builder

Bulletin 41R. To do so, you must submit an Arbitration Application

Package to Tarion, with an administration fee of $750 plus HST, by

September 12, 2019. Builder Bulletin 41R, the Arbitration Application

Package and the BAF Rules can be found on our website.

[Emphasis in original]

[103] M.M. ultimately found two of the interior items not warranted. The balance were

exterior seasonal items and therefore not assessed at the inspection on July 30,

2019 due to “unsuitable weather conditions,” allowing the Appellant to resolve

them by September 1, 2019. She also found the issue with the septic system not

warranted as it related a contractual issue beyond the scope of the statutory

warranties. Similarly, she found that the model of refrigerator supplied was “of

equal quality and therefore an allowable substitution.”

[104] Although F.P. took the position that the WAR had vindicated her since none of the

items had been deemed warranted, it should be noted assessment of these items

had been deferred due to their seasonal status, rather than evaluated on the

merits of the homeowners’ complaints. In any event, if the seasonal items were not

resolved by the listed deadline, the homeowners could request a seasonal

inspection. M.M. explained that, as a consequence, there would have been

nothing in the WAR for the Appellant to challenge at the BAF.

The Seasonal Builder Repair Period

[105] On September 13, 2019, Tarion sent the homeowners a letter advising that it had

scheduled a second conciliation inspection for November 14, 2019 to assess the

seasonal items on the 30-Day Form:

Pre-Conciliation Builder Repair Period

Your builder has until July 18, 2019 to resolve the seasonal items on

your form that are covered by the warranty. During this pre-conciliation

repair period, you should continue to work with your builder to resolve

the items. [Emphasis in original]

[106] At the hearing, there was no dispute that the July 18, 2019 deadline above was an

error and F.P. immediately recognized it as such, recalling that she found this date

“beyond weird” when she read the letter. However, while she stated that she

corresponded with O.F. at Tarion by email possibly after receiving the letter, she

did not clarify whether she inquired with respect to the correct deadline for the

seasonal repairs. M.M. explained that these letters are automatically generated by

Tarion’s system and that the July 18, 2019 deadline incorrectly related to the

earlier letter generated on June 19, 2019 in relation to the July 30, 2019

conciliation inspection.

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The November 14, 2019 Conciliation Inspection

[107] M.M. attended at the November 14, 2019 inspection with her colleague, T.S. She

explained that she asked T.S. to accompany her to the inspection since in light of

F.P.’s past behaviour, she did not feel comfortable attending at the house by

herself. However, as F.P. did not attend the inspection, M.M. and T.S. reviewed all

of the items together with the homeowners. In addition, as T.S. is a senior

Warranty Service Representative, he has extensive knowledge of the Code,

expertise that she believed would be helpful given the serious defects evident at

the property.

[108] M.M. recalled that F.P. had advised her after this inspection that she was ill;

however, she denied any prior notice of her absence. This evidence was not

challenged under cross-examination. By contrast, F.P. testified that she had

somehow “expressed” this to M.M. shortly before the inspection by email and then

by telephone, apparently to M.M.’s voicemail after the email was returned

undelivered. Under cross-examination, she confirmed that she was not teaching at

the time and therefore was not unable to attend the inspection due to employment

obligations.

[109] T.S. has been an employee of Tarion for over twenty years and currently serves

as a Senior Warranty Services Representative, a position he has occupied for

approximately ten years. In addition to attending at the November 14, 2019

inspection, he ultimately assumed carriage of the file with respect to the leaking

eavestroughs. In terms of education, he has been certified as an engineering

technologist since 1984 and has passed ministry examinations for the Code and is

registered with the Ministry as a designer. He has also completed in-house training

with Tarion for defect recognition and claims resolution.

[110] M.M. and T.S. found that the basement stairs to the outside exhibited poor

workmanship as the risers were not uniform. M.M. confirmed that she personally

assessed this item and explained at the hearing that the risers on the concrete

walk up stairs to the exterior represented a serious safety risk as someone falling

on these stairs could be severely injured or die. T.S. took several photographs of a

number of these risers with a tape measure showing the varying heights. This item

was warranted.

[111] F.P. agreed that some the risers were not in compliance with Code, but stated that

it would have only represented a breach of the 30 Day warranty “if they noticed it,”

apparently referring to the homeowners. When asked if she failed to correct the

risers at the property by September 1, 2019, she evaded the question and offered

rather nebulous testimony that the building inspector had passed this item in part

on an unspecified date, possibly referring to November 30, 2018.

[112] She was also evasive with respect to whether there was a single handrail installed

on the exterior walkout stairs, claiming that she and the homeowners had agreed

to place this item “off to the side” but ultimately agreed with M.M.’s finding that only

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a single handrailing had been installed. With respect to the missing handrail, she

declined to state whether this was resolved by September 1, 2019, instead

attributing responsibility to P.L.S. and alleging that the homeowners did not want

this item and obstructed its installation.

[113] The related allegation that the treads were too narrow and that the leading edge of

treads did not have a levelled or rounds edge was not assessed. With respect to

this issue, F.P. was evasive and vaguely disagreed that they were in violation of

the Code, possibly referring instead to the risers at the front of the house.

[114] With respect to the drainage issue at the bottom of the basement walkout stairs,

some brief background is needed. On April 14, 2019, A.T. had notified the

Appellant by email that the basement doors leading to the walkout stairs were

leaking. On the same date, F.P. responded that she “must have forgotten to seal

the door where it meets the concrete.” At the hearing, she suggested that the

homeowners may have poured water on their own basement floor to discredit her

but “gave them the benefit of the doubt” and stated that she would have J.M.

attend to this issue when he returned to seal the eavestroughs.

[115] In the same email exchange, she denied that Tarion required builders to provide

“reasonable notice” for the arrival of trades as suggested by A.T., a policy

mandated in Builder Bulletin 20. She offered no cogent explanation for her

departure from this policy, stating only that she “has her reasons” for doing so.

[116] This issue was apparently not resolved since on July 21, 2019, M.P. sent Tarion

several photographs of water pooled on the basement floor with an explanatory

email stating that the door leaked during heaving rainfall and that the caulking

applied by the Appellant on July 11, 2019 had not resolved the issue.

[117] In the homeowners’ photographs, interlocking brick is visible outside the glass

double doors at the bottom of the small landing immediately outside the basement.

M.P. testified that the drain for this recessed area was covered by the brickwork,

causing collected water to drain into the house instead of away from the dwelling.

A.T. had taken a number of similar photographs of the same recurring issue and

sent them to Tarion in a separate email on July 30, 2019.

[118] During the inspection on November 14, 2019, although M.M. and T.S. discovered

a drain in the landing, they confirmed that it had been covered and blocked by

interlocked paver stones. A photograph taken by T.S. showed a paver stone

removed by M.P. with the drain for the landing underneath. Wooden shims had

been placed between the paver stones and the concrete pad, apparently to permit

water flow under the stones. T.S. noted that the addition of these rudimentary

supports and the paver stones at the base of the stairwell served to exacerbate

the variations in the riser heights above and complicated potential maintenance to

the drainage system.

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[119] The homeowners did not explicitly include the pooling issue in the 30-Day Form

because the form was submitted in December and the issue did not become

apparent until the outdoor temperature rose the following spring and rainfall

entered the house. M.P. clarified that the listed issue of drainage in the 30 Day

Form directly related to the later pooling. M.M. explained that because she and

T.S. determined that this constituted a safety issue, they were required to include it

in the WAR. T.S. also measured the steps leading to the walk out basement

entrance and found that the substantial variations in the heights of the risers

violated Code requirements.

[120] While the substitution of pavers for the concrete pad in the Agreement of Purchase

and Sale was not found warranted, because the pavers were loose and not

secured to the substrate below, this item was warranted. As noted in the report,

“the warrantability of this claim refers only to the loose pavers.” F.P. disagreed that

this item should have been warranted and took the position that the mere

presence of the drain under the pavers was sufficient and denied that the pavers

had been loose. She did not call any evidence to support her disagreement with

this aspect of the report.

[121] F.P. explained that she had offered to allow the homeowners to negotiate directly

with her suppliers in order to expedite the repairs. However, when they appeared

to cherry-pick who could attend at the house, she began to suspect that they

would rather receive a cash settlement from Tarion than actually resolve the

issues on the 30 Day Form. For example, she recalled an incident when the

homeowners asked P.L.S. to leave the property, thereby frustrating her ability to

address the leaking issue in the basement. She advised them that they should

cooperate with her efforts to address this emergency issue to prevent mould or

further damage to the home. She testified that the leaking issue and the drain

blockage were eventually resolved after several instances of refused access to

P.L.S.

[122] Because the garage door was too narrow for the homeowners’ mother-in-law’s

wheelchair to pass, the homeowners were compelled to rely entirely on access

through the stairs leading to the front door, the first step for which M.P. described

as “too treacherous to use.” The state of the stairs also presented a safety and

liability issue as homecare workers attend at the house on a routine basis. F.P.

disputed the use of the term “front stairs” as she called them “landings” but did not

substantively dispute that she was aware of the identity of the item in question.

She was evasive however with respect to the accuracy of Tarion’s assessment

that this item was defective.

[123] The risers on the stairs to the rear deck were also not uniform as confirmed by the

photographic evidence. T.S. testified that although they discovered substantial

variation in the heights of the risers, unlike the steps to the basement, these

disparities fell within the range permitted by the Code. As a result, that issue was

found not warranted.

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[124] However, as noted at paragraph 75(b) above, there was a second component to

the homeowners’ claim with respect to this item, specifically that the ledger lacked

flashing. T.S. confirmed that although flashing had been installed overhanging the

concrete foundation immediately outside the deck area, this protective covering

was missing under the deck. In the photographic evidence, the building wrapping

is visible protruding from under the wood and is not sealed, terminated or flashed

out over the foundation. This aspect of the claim was therefore warranted.

[125] On November 14, 2019, neither M.M. nor T.S. were able to climb under the deck

to inspect the defects underneath due to unsafe weather conditions, specifically

snow and ice on the ground as well open excavation around the piers under the

stairs. As a result, although they were able to view and photograph the area from

the exterior, they asked the homeowners to take some measurements under the

deck once the weather improved. On November 19, 2019, M.P. emailed several

photographs to M.M., as well as a text listing of the requested measurements. T.S.

confirmed that this photographic evidence was taken into account when Tarion

issued the WAR and that it corresponded with his own visual inspection of the

deck from the outside during the inspection. Although he could see the exposed

building wrap from the exterior, the other issues were not visible from his vantage

point outside the structure on the day of the inspection.

[126] Photographs taken by M.P. and sent to Tarion confirmed that although the support

beam under the center of the deck was thirteen feet in length, it does not extend

the full sixteen feet of the deck or support the two joists nearest to the foundation

wall. T.S. concluded that the lumber used for the beam was not sized to its

application. There were also no fasteners attaching the ledger board to the frame

of the house above. While the deck structure may have been anchored by small

deck screws, T.S. testified that this would be inadequate to support the weight,

compared to the large bolts usually employed. These items were warranted.

[127] Similarly, T.S. noted that there were no side gussets on the post and beams and

no brackets attaching the beam to the support post. A number of shims were

inserted into a significant space between one of the posts and the beam; another

post was not attached to the beam at all. Both posts are also considerably off

centre from where they should contact the beam and set on the corner of their

respective concrete piers. As there was insufficient support for the deck, T.S.

found that this represented a serious structural defect. Similarly, the middle

vertical support beams was cracked from the point where it met the joist via an

inserted shim and there was no flashing under the deck to run water away or any

bolts into the ledger that attaches the deck structure to the foundation wall. These

items were warranted.

[128] Although the homeowners alleged in their 30 Day Form that the pier depth was not

verified, this issue formed no part of the WAR. T.S. recalled that excavation

subsequently confirmed that the piers were properly installed, although that

assessment was not conducted by Tarion. M.P. denied that he and the Appellant

had entered into an agreement to replace the deck.

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[129] On the front stairs, the first stair on the landing was covered by gravel. However,

as the report stated, “the Builder has until July 10, 2020 to complete the Special

Seasonal items,” including issues related to grading. However, there was also a

rough finish to the front concrete landings from inconsistent and messy broom

finishing:

The second part of the claim is the rough finish on the front concrete

landings. Tarion observed and measured the areas of concern. The

landings had rough finish, especially on the edges and closest to the

risers. The landings were also bowed on the edges of the treads and

had uneven risers. The left to right difference in height was

approximately 25 mm. It is Tarion's position that this constitutes a

defect. As a result, this part of the claim has been deemed warranted.

[130] The stairs were uneven in excess of allowable amounts and no hand railing had

been installed contrary to the Agreement of Purchase and Sale. T.S. noted a curve

to the concrete steps suggesting that the forming for the concrete was not

executed properly but acknowledged that a uniformly straight line may have been

difficult to maintain given the width of the steps. These items were warranted. M.P.

noted that as of the date of the hearing, the grading had still not been completed.

However, he stated that the homeowners intended to address this issue

themselves without Tarion’s assistance.

[131] Two other items were not separately assessed on November 14, 2019.

Specifically, the homeowners alleged that the stair treads above were too narrow

and that their leading edges lacked a levelled or rounded edge was covered by the

issue described at paragraph 75(a) above. Although the details section of the

report stated that “A warranty assessment was not made because the owner

withdrew this item,” M.M. explained that this was the only option available in a

drop-down menu to mark this issue as not assessed and that the homeowners had

not actually withdrawn the item.

[132] The leaking eavestroughs could not be assessed through the necessary water test

on the date of inspection due to the freezing weather and snowfall. This item

required additional information before a warranty assessment could be made.

Also, as this was a seasonal item, the Appellant had until September 1, 2020 to

complete it. At the hearing, M.M. explained that this deadline was derived from the

original WAR issued on August 17, 2019.

The November 26, 2019 WAR

[133] On November 26, 2019, Tarion issued the resulting WAR that described the

various items found to be warranted and not warranted from the November 14,

2019 inspection. The attached assessment summary detailed the warranted items

as serious examples of poor workmanship and non-compliance with the Code. A

letter attached to the Appellant’s copy of the WAR included deadlines to complete

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repairs on the warranted items as well as information with respect to appeals to

BAF:

Warranted Items

If we have assessed an item as warranted, you are required to resolve

that item by January 6, 2020 (or by the date that may be indicated in

the report for a particular item). We will contact the owner of the home

at the end of this post-conciliation repair period to confirm that

warranted items have been resolved.

…

Builder Arbitration Forum

If you disagree with Tarion’s assessment, you may be able to

challenge it at the Builder Arbitration Forum, as set out in Builder

Bulletin 41R. To do so, you must submit an Arbitration Application

Package to Tarion, with an administration fee of $750 plus HST, by .

Builder Bulletin 41R, the Arbitration Application Package and the BAF

Rules can be found on our website.

[Emphasis in original]

[134] Under cross examination, both T.S. and M.M. agreed that the deadline for appeals

to BAF was missing from the latter paragraph and that this was an error. The

reported noted that the builder was not present at this inspection. Although F.P.

repeatedly emphasized that she had asked Tarion to send all notices in hardcopy

to her by regular mail, she did not substantively dispute receipt of any of their

communications, including the November 26, 2019 WAR. Under cross-

examination, she acknowledged receipt of this document and that she would have

seen the missing deadline above.

[135] F.P. stated that after the inspection, M.M. contacted her upset that she had not

attended. She testified that M.M. stated that she had missed her message and

would contact her later to review the results of the inspection with her. She stated

that M.M. urged her not to attend at the property in the interim, a statement

seemingly at odds with her claim that M.M. was upset at her absence, itself a

claim in conflict with M.M.’s own evidence and challenged under cross-

examination. F.P. then claimed that she never heard from M.M. again.

[136] As she was regularly corresponding with O.F., F.P. was unconcerned that M.M.

had not contacted her with respect to the November 2019 WAR. Eventually, she

contacted O.F. with respect to numerous invoices received, which she presumed

related to the delayed closing. While she was apparently aware that M.M. had

carriage of the file, she preferred to communicate with O.F. as she believed that

O.F. was “very compassionate” to her and had access to the file. Her self-serving

hearsay that O.F. was strongly aligned to her interests should be accorded very

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little weight since as noted above, O.F. was not called to testify at the hearing and

none of these communications were submitted in writing as exhibits at the hearing.

In any event, the evidence indicates that despite her knowledge that of the

conciliation inspection on November 14, 2019, she did not exercise appropriate

diligence in obtaining the results of the report in order to effect repairs within a

reasonable period following its issuance.

[137] Similarly, although F.P. acknowledged that she had a basic understanding of the

role of the BAF, she opted not to pursue this option or inquire with respect to the

missing date as she believed to do so would have been premature. She added

that she assumed that the paragraph referencing BAF was simply boilerplate that

Tarion inserted in all of its notices.

[138] Pursuant to the report, the Appellant had until July 10, 2020 to resolve the issue

with the grading as this was a special seasonal item. M.M. explained that this was

a chargeable conciliation inspection as there was no exception to chargeability. As

a result, Tarion invoiced the Appellant for the conciliation. M.M. stated that,

according to the Vendor Builder Invoice History, the Appellant had paid that

invoice.

The Claim Inspection

[139] On January 10, 2020, Tarion sent a letter to the homeowners and the Appellant

advising that Tarion had scheduled a claim inspection for January 22, 2020. F.P.

contacted M.M. to advised that she was not aware that the WAR had been issued

or that the subsequent builder repair period had expired. Several telephone and

email conversations followed in which F.P. expressed confusion over the purpose

of the claim inspection and alleged that she did not receive the WAR. However,

M.M. informed her during these communications that Tarion had confirmation that

the WAR had been issued to the Appellant’s email on file. There was no evidence

that this email was returned as undeliverable.

[140] Before the claim inspection, F.P. advised M.M. that the homeowners had denied

her access to the property to conduct repairs. As a result, on January 21, 2020,

M.M. asked her to provide written documentation of this denial. M.M. testified that

the Appellant did not provide the requested documents.

[141] On January 21, 2020, F.P. contacted M.M. by email, requesting additional time to

correct the outstanding issues from the conciliation inspection to protect her public

image as a builder. At the hearing, she explained that she viewed her interaction

with the homeowners as a unique situation that merited additional time for

resolution given the multiple times the homeowners had denied her contractors

access to the property. M.M. denied the request for the extension. She claimed

that M.M. recommended that she make a monetary offer to the homeowners,

preferably at a rate higher than her own costs. This “advice” was not documented

in any of the emails submitted at the hearing and not put to M.M. under cross-

examination. However, on the same date, M.M. advised F.P. by email that the

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homeowners had refused her settlement offer and were not interested in another

offer. Instead, they intended to proceed with the claim inspection process.

[142] M.M., M.P. and two contractors attended at the claim inspection on January 22,

2020. As the homeowners had requested that F.P. not be present at the

inspection, she did not attend. However, through discussions with F.P. prior to this

inspection, there was no dispute that the items listed in the WAR were not

completed; as a result, Tarion retained the contractors to provide quotes on the

work to be done. To that end, Service1 Enterprise Inc. provided a quote on

February 24, 2020 for $77,100.00 plus H.S.T. to repair the warranted items on the

WAR and found not completed at the claim inspection. Similarly, Unlimited

Building Solutions (‘U.B.S.’) provided an estimate on the same day for the same

work in the amount of $68,434.00 plus H.S.T. An internal Tarion estimate provided

by inhouse experts provided an estimate of $88,579.35 plus HST.

[143] F.P. acknowledged that she received both of the above third party quotes but

dismissed them as inflated in scope and alleged that they contained various

unspecified errors with respect to measurements and quantities of materials used.

She speculated that she would have raised these alleged errors with M.M. and

possibly T.S., but referenced no communications to support this assumption.

[144] After she did not receive a response agreeing with her assessment and M.M.

asked her to stop consulting with O.F. on the file, F.P. escalated the issue to

someone she believed to be M.M.’s superior, possibly T.S. She testified that when

someone asked her for details on the errors in the quotes, she stated that she

submitted an itemized list of the improper items to this person, again possibly T.S.

She stated that no one responded to this document. She also claimed that she

had proposed various alternatives to the work contemplated by Tarion’s quotes but

could not proceed with the construction as she received no response. She agreed

that she did not have any agreements with the homeowners to proceed with her

proposed alterations.

[145] She also stated that M.M. asked her to generate quotes for the same work

prompting her to research the appropriate costs through unspecified authorities in

the industry and information on the internet. She then provided extremely vague

testimony with respect to her attendance at a meeting on an unknown date with

various named individuals apparently employed by Tarion, but whose relationship

to this matter was never explained. However, on her own evidence, vague though

it was, the other attendees at this meeting did not accede to F.P.’s requests and

terminated the meeting when she became overly aggressive and attempted to

dominate the discussion. They later declined to respond to her demands for an

itemized response to her review of Tarion’s quote.

[146] Significantly, the Appellant’s paralegal chose not to ask either M.M. or T.S. any

questions about this evidence, thereby failing to resolve the multiple ambiguities in

F.P.’s testimony.

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[147] On April 6, 2020, Tarion issued a claim resolution and release document with

respect to a cash settlement to the homeowners for the unresolved items in the

amount of $73,100.00. This amount was determined by an analysis of the work to

be completed and the best estimate for the project. The settlement resolved all of

the uncompleted items in the WAR and the claim inspection report. Tarion then

invoiced the Appellant for this above amount offered and accepted by the

homeowners, plus a 15% administration fee and H.S.T. for a total of $85,490.45.

According to the Vendor Builder Invoice History, the Appellant has paid

$15,990.01 of this invoice, leaving an outstanding balance of $69,500.44. M.P.

confirmed that he and A.T. received this payment from Tarion.

[148] F.P. did not deny that her deposit and some interest had been applied to the

invoices sent to the Appellant with respect to the property. She testified that she

paid an additional amount to O.F. in respect of the amount charged for two days

for the delayed closing. Although she offered no documentary evidence to support

this claim, counsel for the Registrar agreed that the invoice history indicated that a

payment received in February 2020 tended to support her testimony on this point.

While refusing to agree that according to Tarion, she still owed $69,500.44 with

respect to 260 Farr Street, she testified that she had calculated an alternative

amount $25,000.00 based upon her own subjective and substantially more

favourable assessment of the cost to replace items at the property that she

believed did not require replacement.

[149] Significantly, even putting aside the fact that no provision in the Act, the

Regulations or the Vendor Agreement permitted the Appellant to unilaterally

substitute her own accounting for the balance outstanding, as of the date of the

hearing, she had not paid even this alternative amount to indemnify Tarion.

[150] As the issue with the leaking eavestroughs issue was not resolved at the

November 14, 2019 inspection, this issue was rescheduled to a later inspection.

Both T.S. and M.P. confirmed that the claim settlement did not include the costs to

resolve this issue.

Access to the Property

[151] Throughout the hearing, F.P. took the position that her efforts to resolve the issues

on the 30 Day Form were routinely impeded by the homeowners’ repeated

refusals to allow access to the property, thereby preventing her from resolving the

defects in a timely manner. Last minute cancellations often posed difficulties as

larger suppliers were already their way to the house by the time that F.P. received

notice from the homeowners that they intended to refuse access to the property.

As well, she explained that companies often could not dedicate a full day to

accommodate the narrow windows for delivery specified by the homeowners

during the week.

[152] M.P. recalled that although the homeowners had requested that F.P. give them

two days’ notice and that workers attend during normal business hours, often

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workers would show up without notice or the homeowners’ permission to be on the

property. This resulted in inconveniences as the homeowners needed to arrange

for a support person to stay with A.T.’s mother in case she became anxious over

the contractors’ presence and construction noise. He recalled that the Appellant

often made demands for immediate access in the last days before a critical date

such as a scheduled inspection.

[153] After several incidents of refused access, on May 23, 2019, F.P. documented the

ongoing access issues to the property in an email to M.P., copied to Tarion. In this

email, she noted that one of the workers had reported that M.P. had used profanity

to him. At the hearing, she confirmed that the worker in question was G.M.

[154] G.M. has known F.P. for three or four years, having met her at her pizza

restaurant in St. David. He recalled that she not only owned but worked at this

restaurant and had done so in early 2019 and continued to do so to the date of the

hearing. He picked up various materials for F.P. and delivered them to the

construction site at 260 Farr Street, worked on the cement stairs at the back and

the front stairs at the front of the house, as well as some painting and clean-up

work. He did so in the capacity as a friend rather than as an employee of the

Appellant and had no role in coordinating customer service.

[155] He estimated that he conducted work at the property between thirty and forty times

over a six month period, including two or three times when he was turned away by

the homeowners. It was his understanding that he was turned away as it was

inconvenient for him to attend on those occasions. He recalled that M.P. would

inform him that his presence was not expected and would ask why he had

attended. He recalled speaking with M.P. on May 17, 2019 in the course of picking

up window screens from the property to deliver them somewhere else and testified

that M.P. said to him, “Franca doesn’t know what the f*** she is doing; she should

learn her job.” Not wanting to engage in a confrontation, he left and delivered the

items to F.P., mentioning what had just occurred.

[156] P.L.S. described a similar experience with the homeowners. He installed tiles in

the bathrooms and conducted parging around the house and the stairwell at the

property in 2018 and 2019 as a contractor for the Appellant. With respect to the

homeowners, he mostly dealt with M.P. and occasionally with A.T. He recalled

being told to leave the property as he was not allowed to be at the property due to

what he assumed was a disagreement with the Appellant. While he agreed that

their conduct was somewhat aggressive, when this occurred, he respected their

wishes and departed. He recalled no other problems with this project.

[157] F.P. emphasized that her May 23, 2019 email to M.P. did not resolve the ongoing

issues as the homeowners continued to refuse access to the property, as

confirmed by additional emails from late May to mid-June 2019. For example, on

June 18, 2019, A.T. accused F.P. of harbouring an unknown agenda in attempting

to gain access to the home to address minor issues when more urgent items

remained unresolved. F.P. interpreted this allegation as a stalling tactic on the part

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of the homeowners. On the same date, A.T. emailed F.P. to advise that while the

homeowners would allow the window supplier access to the home as scheduled,

they would not permit F.P. to attend on the advice of Tarion, “due to your

behaviour on previous visits to our home and your propensity for fabricating

accusations.”

[158] However, the homeowners’ insistence on two business days notice was not an

arbitrary stipulation, but derived from the larger customer service policy in Builder

Bulletin 20, which states that Tarion’s expectations of conduct to apply to all

interactions between builders and homeowners. These expectations include the

following:

a. A builder (and its trades) is expected to act in a respectful, courteous and

cooperative manner in all aspects of the claims process.

b. A builder is expected to have a system to track and verify that all the

items listed on the Warranty Form have been resolved.

c. A builder is responsible for paying attention to a claim and providing a

resolution in a timely manner. If a builder consistently performs repairs at

the last minute, it may have an impact on future licensing considerations,

including prescribing mandatory customer service training.

d. A builder is expected to provide details of proposed repairs in a timely

manner, if requested by the homeowner, in advance of the conciliation.

e. A builder should be fair and reasonable in scheduling repairs and reliable

in terms of following up on the agreed to dates and times. Most

homeowners have to book time off work to accommodate the scheduling

arrangements. A minimum period of two (2) business days’ notice should

be provided to homeowners when scheduling repairs.

[159] As the Vendor Agreement incorporates the Builder Bulletins into its terms and

conditions, the above requirements form provisions of the Appellant’s duties as a

Tarion licensee. While F.P. agreed that these policies applied to all builders

licenced with Tarion including her own company, she took the position that the

notice requirements did not necessarily apply in the case of perceived

emergencies. She offered no authority for this alleged exemption. Ironically, in her

own example of an emergency repair with respect to the basement leak, she did

not send her contractor to the property until nine days after A.T.’s notification.

[160] In the same bulletin, Tarion imposes expectations on homeowners, including the

following:

a. A homeowner will facilitate a more favourable resolution by allowing a

builder (and its trades, suppliers, subcontractors) reasonable access to

the home during business hours (Monday to Friday, 8:00 a.m. to 5:00

p.m.) to investigate and remedy defects.

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[161] When asked whether it would be reasonable for a homeowner to insist upon

access during business hours, she replied that this was “a matter of opinion” and

that a contractor’s busy schedule should take priority. Specifically, she stated that

for a large company such as JELD-WEN, the window supplier, it was “unheard of”

for the homeowners to expect deliveries only when they were home.

[162] The homeowners were concerned over delays particularly with respect to the

drainage issues and problems with the stairs that impeded access to the house.

However, despite M.M.’s confirmation to F.P. at the July 30, 2019 inspection that

the Appellant was indeed required to provide two business days notice before

attending at the property to conduct work, M.P. testified that occasionally, he and

A.T. would consent to late notice, but would at other times return to the house, find

workers present and request that they leave.

[163] Their insistence upon advance notice of service calls and deliveries was motivated

by more than a mere robotic adherence to Tarion’s protocol. Typically, while the

homeowners were at work during the day, A.T.’s mother would be alone in the

house. She had a “health button” that she could press if she required assistance

after a fall or some other emergency. When A.T. left work to attend to her mother,

she occasionally found workers at the house and told them to leave as they were

not scheduled to attend on that date. While G.M. and P.L.S. both interacted with

A.T.’s mother and did not perceive any symptoms of her dementia, M.P.

emphasized that his mother-in-law often became upset and frightened when

workers attended at the house without notice and the homeowners were unable to

prepare her for their presence. M.P. estimated that this occurred on four or five

occasions.

[164] Although the Appellant’s evidence of contractors being refused access to the

property was generally uncontested, the evidence indicated that these

inconveniences would not have occurred so frequently if at all if F.P. had simply

cooperated with the homeowners by providing proper notice. By failing to respect

the homeowners’ requests to accommodate A.T.’s mother, F.P. prioritized her own

convenience over the homeowners’ reasonable requests for advanced notice as

required by Builder Bulletin 20 and by incorporation, her own Vendor Agreement

with Tarion.

[165] In addition, I find that F.P.’s repeated demands to attend at the property near the

end of builder repair periods or even their deadlines stemmed from a lack of

comprehension with respect to how those periods are calculated. For instance, on

June 17, 2019, she sent an email to A.T. stating the following incoherent

interpretation of Tarion’s policies regarding repair periods:

From speaking with Tarion, they will be unable to warrant your claims

for a number of reasons tho [sic] primarily, not being permitted access.

In the unlikely event that your claim is warranted, the builder is still

given 30+14 Christmas days+120+30+30+30+30days to resolve the

warranty claim.

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[166] When asked if she still believed if the above erroneous formula accurately

reflected the builder repair periods, she twice evaded the question, then claimed

that someone else had directed her to insert this calculation in the email, blamed

her training with Tarion and ultimately changed the subject to irrelevant matters.

When asked to apply her understanding of the repair periods to specific items in

the homeowners’ claims, she consistently offered evasive responses, veering off

on tangents to unrelated topics. While she interpreted the above formula to

provide her with 240 days to repair warranted items, Builder Bulletin 42 clearly

states that the initial builder repair period is 120 days, starting 31 days after the

homeowner takes possession, excluding the December 24th to January 1st

Holiday Period. Subsequent builder repair periods are predicated on specific

events rather than part of a generic 240 day allowance as F.P. asserted.

[167] F.P. took the position that Tarion did not support her or provide her with sufficient

notice that her licence could be in jeopardy over a single house construction.

Although she acknowledged awareness of the information contained in the Builder

Bulletins, she suggested that Tarion had been colluding with the homeowners as a

scheme to replenish the Guarantee Fund through inflated penalties and claims or

simply intended to drive small builders from the industry as part of an agenda to

favour their larger competitors. Unsurprisingly, she was unable to offer evidence to

support these conspiracy theories. This position also conflicts with her frequent

claims throughout the hearing that M.M., O.F. and her stakeholder relations

contact, B.T., frequently expressed support and commiseration for her difficulties

dealing with these difficult homeowners.

[168] Emails between F.P. and M.P. on April 18, 2019 relating to the delivery of kitchen

doors showed F.P. pressuring the homeowners to accept the delivery on the

weekend and on a date that she believed to be a statutory holiday. At the time,

she had returned to her day job with the Niagara Catholic School Board and

agreed that her own schedule may have slightly limited the options she offered to

the homeowners for attendances at their house. She explained that she was able

to take an occasional day off to attend to her construction business and was not

conducting the actual work at the house, but simply supervising contractors. She

explained that it was her understanding from Tarion that for outdoor items, she or

her contractors could simply attend and conduct the work provided that they make

some effort to work with the homeowners.

[169] When incorrect window screens were delivered in April 2019, roughly one month

passed before this issue was resolved. F.P. testified that part of the problem was

the homeowners’ insistence on being home for the delivery. An email exchange

between F.P. and A.T. dated April 18, 2019 confirmed that the homeowners had

offered several dates to May 17, 2019 to which F.P. had replied “got it,” indicating

agreement. She testified that she had attempted to deliver the screens as early as

March 2019, a statement seemingly at odds with the established timeline to

replace the incorrect items delivered in April 2019.

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[170] Pursuant to a letter sent by Tarion to both parties on January 9, 2019, the builder

repair period for the 30 Day Form ended on May 15, 2019 for non-seasonal items.

However, email correspondence between F.P. and the homeowners confirmed

that she was still attempting to schedule work at the property during the days

following that deadline.

[171] When the homeowners advised F.P. in late May or early June 2019 that the

builder repair period had ended and that she was no longer permitted to attend at

the property to conduct repairs, she insisted upon her erroneous calculation that

permitted at least 240 days starting from an indeterminate date. While she testified

that someone at Tarion, possibly B.T., had told her that she could still attend at the

property to conduct repairs, this alleged statement was hearsay as B.T. did not

testify at the hearing and his precise statements, including their context, were not

submitted as evidence. Essentially, she interpreted the end of the builder repair

period as a meaningless end point since she believed that nothing prevented her

from conducting repairs on the property after this date. She dismissed the formula

on the Builder Bulletin as unreliable as these documents are subject to updates.

[172] When asked if she agreed with M.P.’s evidence that no one attended on May 16,

2019 to deliver the screens, she was evasive and stated that G.M. attended and

was asked to leave, possibly on a later date one week later. She denied cancelling

delivery of the screens, stating that she became confused over her rights to

access the property and insisted on delivering the items at a time more convenient

to herself and the supplier. An email exchange between F.P. and her contact at

JELD-WEN on June 18, 2019 confirmed however that F.P. cancelled the

appointment the following day to deliver the window parts as she preferred to

postpone this delivery and combine it with other work on a single collective visit in

the interests of “efficiency.” There was no indication that the homeowners had

objected to the JELD-WEN delivery on June 19, 2019. Also on June 18, 2019,

M.P. emailed F.P. to question why she was adamant about gaining access to the

house with respect to these comparative minor issues when the more serious

issues such as the rear deck, the walk out and the stairs remained in violation of

the Code. He stated in the emails that he and A.T. were “unsure of [her] agenda.”

[173] While she reluctantly agreed under cross examination that homeowners were

entitled to refuse access after the end of the builder repair period, she took the

position that they were nonetheless wrong to do so as insisting upon their rights

interfered with her due diligence in resolving the outstanding issues. Eventually,

the homeowners took delivery of the hardware from F.P. when she brought them

to the conciliation inspection on July 30, 2019 and installed these items

themselves.

[174] Although F.P. characterized her persistent attempts to access the property as

evidence of a stalwart dedication to resolving the issues at the property, she

offered no persuasive rationale for failing to conduct the work within the prescribed

periods or to work within the reasonable parameters requested by the

homeowners.

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Eavestroughs and Roofing Issues

[175] B.H. operates Hindrea Roofing and Siding and had worked in the roofing industry

for forty-seven years as of the date of the hearing. He testified that in August 2018,

F.P. asked him for an estimate to install the metal roof at the property. He had no

prior relationship with the Appellant. He explained that there is a fifty year warranty

on the roof, with twenty years for the coating; after twenty years, the manufacturer

would supply material, but the homeowners would be responsible for the labour

costs to replace the roof. He did not communicate with the homeowners during the

installation and was unaware of any problems with the roof for almost two years

until he was contacted by the homeowners. He also denied receiving any

communications from the Appellant with respect to problems with the roof after

installation. He also did not observe any water tests conducted on the roof or

return to the property until November 2020.

[176] M.P. recalled that during the period between September 1, 2019 and November

14, 2019, the Appellant sent a worker to the property to attempt to fix the

eavestroughs. As F.P. had provided two business days notice, the homeowners

permitted this attendance. M.P. explained that the gutters had not been installed

properly and that the drip edge is intended to lead inside the gutter. Instead, the

gutter had been installed on the face of the drip edge, causing the water to run

between the gutter and the edge of the roof. M.P. testified that the homeowners

and the Appellant agreed that the worker would remove and reinstall the gutter

under the drip edge. While M.P. testified that this agreement was made by email,

that communication was not submitted as evidence at the hearing.

[177] However, this was not the solution adopted by JJM Aluminum Siding and Windows

Inc. (‘JJM’), the company the Appellant sent to repair the eavestroughs. Instead,

J.M. attended and installed a flashing over the top of the drip edge, applied

caulking and screwed flashing to the drip edge around the entire perimeter of the

house. This was visible from the ground in some areas and not only failed to

resolve the leak, but worsened the problem in some areas. Photographs taken by

M.P. show large applications of caulking material applied by JJM between the drip

edge and the gutter, open screw holes as well as a dent in the gutter caused

during this work and crudely folded aluminum at the corner of the eavestrough,

leaving an opening at the bottom of the eaves.

[178] On November 13, 2019, M.P. sent an email to M.M. with respect to his

dissatisfaction with J.M.’s repairs. The attached photographs showed caulking

added to the two rows of interlocking steel layers closest to the edge of the roof,

immediately before the eavestroughs. M.P. noted in his email that the large

amount of caulking used may indicate a more serious issue while simultaneously

having no effect on the drainage problem. He stated that both the installation of

the gutter and the misuse of the caulking represented poor workmanship.

[179] M.P. testified that the seams on the roof also opened when the Appellant’s worker

walked on its surface. At the hearing, he indicated an area further up the roof

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where the worker’s actions had caused one of the shingle-like layers to detach,

resulting in a raised edge.

[180] B.H. agreed that the eavestroughs had been improperly installed over the drip

edge with the hangers fastened over the drip edge. He recalled observing that

someone had caulked the seams along the bottom edge of the roof. He and his

son added a sealer over this material that would expand and contract with

changing temperatures and matched the roof surface.

[181] M.P. recalled that on or about November 30, 2019, J.M. attended on the last day

of the builder repair period. The homeowners were confused with respect to his

presence as the Appellant had stated that she planned to put together a proposal

with B.H. for a different solution to the issues with the roof that did not involve

J.M.’s company. B.H. advised A.T. that F.P. had sent him to the house as it was

raining and he asked to inspect the leaks. A.T. showed him an area at the rear of

the house and he stated that there was likely an issue with roof and promptly left.

M.P. clarified that neither he nor A.T. asked J.M. to leave.

The September 2020 Conciliation

[182] On September 17, 2020, Tarion conducted a water test to determine if the

Appellant’s repairs to the eavestroughs had fixed the problem. T.S. recalled that

the restrictions related to the COVID-19 pandemic likely delayed this test to

September 2020 as all of Tarion’s inspections had been rescheduled to after

August 2020. Conversely, he noted that pandemic restrictions would not have

necessarily delayed the Appellant’s ability to conduct repairs since construction

was deemed an essential service. He was not aware of how many inspections

may have been conducted in the area where the property is located, but was

aware of some virtual inspections that proceeded in the Windsor area.

[183] The homeowners requested that F.P. not attend at the property but did agree to

allow a qualified tradesperson to represent the Appellant at the conciliation and

observe the water test. At the request of Tarion, the Appellant provided the names

of three companies with the necessary insurance coverage and the homeowners

selected Gutterserve from this list.

[184] Tarion investigated the eavestrough by hiring contractors to inspect and water test

the troughs to verify the operation of the troughs. T.S., the homeowners and J.K.

and K.A. for UBS attended to conduct the water test.

[185] M.P. and T.S. testified that M.D., the representative from Gutterserve, was late to

the water test and arrived while UBS was examining the eavestroughs; he left the

property without explanation after approximately ten minutes. Shortly thereafter,

someone else arrived in a black Jeep and watched the water test for some time

before exiting his vehicle. After some evasion with respect to his identity, he

introduced himself as a representative for Gutterserve, attending on the

Appellant’s behalf. T.S. asked for some identification and that he introduced

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himself as J.V. to A.T. A.T. contacted Gutterserve to verify his employment;

Gutterserve advised that no one by that name worked for the company; J.V.

promptly departed. At the hearing, F.P. explained that J.V. is in fact a real estate

agent.

[186] J.K. and K.A. examined the eavestrough installation on September 17, 2020 and

ran water on the roof with a garden hose to test the operation. The resulting WAR,

dated October 21, 2020, was distributed to the homeowner and the Appellant. F.P.

refused to state whether the eavestrough continued to leak by the date of T.S.’s

inspection, preferring to complain that because her agent J.V. was made to feel

“very unwelcome,” he left the property.

[187] T.S. testified that he personally inspected the eavestroughs and observed water

leaking from the corner joints of the eavestrough and down the back of the

eavestrough between the eavestrough and the fascia. UBS took photographs and

provided these images to Tarion with their findings in a report dated October 21,

2020. T.S. relied on these photographs when he drafted his assessment.

[188] He confirmed that because the Appellant had installed the eavestroughs on top of

the leading edge of the roofing material rather than behind it, water collected from

the roof surface was channeled behind the eavestroughs rather than into them. In

addition, parts of the roofing material particularly at the mitre corners of the roof

were not properly interlocked, but crudely folded, resulting in gaps. As well, the

eavestrough itself is buckled and distorted in areas, resulting in wider gaps

between the edge of the roof and the eaves, allowing water running off the roof to

run down the wall behind eavestrough, missing it altogether. Photographs

provided by UBS confirmed that the eavestrough was improperly installed over the

roof edge around the entire house. At the hearing, F.P. expressed confusion at

this evidence as she could not discern any issues with the eavestrough assembly,

later admitting under cross-examination that she was aware of at least one leak

from information provided by J.M.

[189] JJM had smeared copious amounts of caulking along the roofline in an attempt to

seal the gap between the drip edge and the eavestrough and along the open

seams on the roof surface. Both the original assembly and the inept repairs

represent poor workmanship. T.S. noted that the use of caulking in this instance

cannot be relied upon as a long term solution as it is intended as a maintenance

material and did not alleviate the leaks. Tarion later received information from the

manufacturer that caulking is not intended as a means of sealing joints on this

style of roof. F.P. defended this repair on the basis that because T.S. had declined

her request for an extension, this was the best that could be done.

[190] Photographs provided by UBS show areas of damage to the surface of the steel

roof where the granular coating has been scuffed away by foot traffic. T.S. noted

that M.P.’s own photographic evidence of the damage to the roof concurred with

his own assessment of the issue.

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[191] Lastly, a diagram in the UBS report shows that the water test revealed numerous

sites of leaking all around the perimeter of the roof. T.S. observed the UBS

workers highlighting the areas of leakage on a rough draft of this diagram as they

encountered leaks during the test. He confirmed that the diagram was an accurate

representation of the locations and prevalence of the leaks revealed by the water

test.

The 2020 Builder Repair Period

[192] On October 8, 2020, T.S. emailed F.P. and the homeowners, advising that

because he had not yet received the report from UBS to assess the eavestrough

leaks, there was “currently no builder repair period in place for the repairs” and

that it was “probably to everyone’s benefit to wait for the report before determining

the type and extent of repairs required.” He then asked F.P. to advise who she

preferred to conduct repairs to the eavestroughs, noting that the homeowners

would likely require more details regarding her proposed alternative contractor

before they offered a response. In the same email, he reminded F.P. that Tarion

was still waiting on the contact information for “the gentleman that attended this

home on your behalf after Michael Dawson left the site.” F.P. understood this

email to mean that she should wait until Tarion contacted her to resume repairs to

the eavestroughs. As a result, I find that in this case, F.P. may have been

reasonably confused with respect to the timing of the builder repair period

following the September 17, 2020 inspection, at least until T.S. issued his report

three weeks later.

[193] Tarion’s WAR, dated October 29, 2020, reported the results of the water test as

follows:

Tarion investigated the eaves trough by hiring a contractor to inspect

and water test the troughs to verify the operation of the troughs.

Unlimited Building Solutions examined the eave trough installation on

September 17, 2020 and ran water on the roof with a garden hose to

test the operation. Their report dated October 21, 2020 was distributed

to the homeowner and builder.

Leaks through the eaves trough joints and water bypassing the

troughs were identified in numerous locations. Water was observed to

bypass the roofing system and leaked out under the roofing in some

isolated locations. Damage to the roofing was observed including scuff

marks on the granular surfacing and caulking applied to the surface of

the roofing. Liberal amounts of caulking along the top of the back edge

of the trough in isolated locations was observed. The inspection also

revealed areas of the roofing where the roof sheathing materials

remain exposed at the bottom of hips.

[194] The WAR provided a deadline of November 30, 2020 to resolve the issues with

the eavestroughs or “by the date that may be indicated in the report for a particular

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item.” T.S. testified that another thirty day builder repair period followed the

issuance of the WAR to allow the Appellant to resolve the warranted items.

[195] M.P. confirmed he was aware of this repair period but did not recall any significant

scheduling or access issues with respect to the completion of repairs to this area

after September 17, 2020, other than several inquires from the Appellant’s

contractor with respect to timeframes and the homeowners’ requirement of two

business days’ notice. While F.P. may have been confused by T.S.’s comments on

October 8, 2020, upon receipt of the WAR, she should have reasonably

understood that the applicable builder repair period terminated on November 30,

2020.

[196] T.S. did not recall any appeal by the Appellant to the BAF in response to the WAR.

However, F.P. explained that the Notice of Proposal had suspended her licence

and in turn her eligibility to engage the BAF appeal process. The Appellant’s

ineligibility to commence an arbitration through the BAF was confirmed in a late

submitted letter dated May 6, 2021 from Tarion that referenced BAF Procedural

Rule 3 that bars builders whose licence is subject to a Notice of Proposal from

commencing such an appeal.

[197] Although the homeowners had not listed the damage to the roof in the 30 Day

Form, this damage was caused by subsequent foot traffic on its surface when the

Appellant’s workers attempted to repair the problems with the eavestroughs, an

issue that was listed on the 30 Day Form. Tarion found that the eavestroughs were

covered by the warranties and that the Appellant must resolve them. This warranty

did not cover the dent in the eavestrough described by M.P. in his testimony and

photographic evidence as Tarion had no means of confirming his theory that this

damage was caused by workers attempting to repair the roof. Although warranted,

the eavestroughs were not chargeable as the original conciliation had been

chargeable and Tarion only charges one conciliation to a Form. In other words,

although the Appellant was required to repair this item because it had been found

warranted, it would not be charged the set $1,000.00 fee for a chargeable item as

this had already been imposed.

[198] T.S. recalled that the Appellant gained access to the property and conducted

some repairs, specifically screwing sheet metal to the fascia board above the

eavestroughs. M.P. also testified that Gutterserve installed flashing at some point

after the issuance of the WAR. He stated that this repair was subsequent to JJM’s

earlier work which involved further application of caulking. He photographed the

piece of bent and wavy flashing loosely screwed to the edge of the roof above the

gutter during the latter repairs. He testified that UBS returned to confirm that the

repairs involving the flashing had resolved the issue.

[199] The homeowners notified T.S. with respect to the crudely installed flashing and

T.S. discussed this with F.P., expressing concerns that a sharp edge to the

flashing that projected away from the surface perpendicular to the drip edge could

injure anyone attempting to maintain the eavestroughs. He believed that it was

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subsequently changed to a hemmed edge since he did not observe any horizontal

flashing at the subsequent claim inspection. A number of other images taken by

the homeowners likely depicted earlier attempts to correct the leaking issue before

April 2021.

[200] The Appellant emailed T.S. to request a change to the method of repair on or

about the twenty-fifth day of the period and asked for an extension to

accommodate the alternative repair strategy. T.S. encountered some difficulties in

getting a clear description of the planned repairs and requested details of this

planned work in writing. While he never received this written description, he

learned that after the repair period had ended, the Appellant had proposed to

remove and reinstall all of the eavestrough and portions of the roof.

[201] T.S. forwarded the extension request to other staff at Tarion for consideration and

noted that the other department ultimately denied the extension request. He

explained that Tarion usually extends a repair period in instances where a

particular material is not available or it may take more than thirty days to order it,

such as custom-made kitchen cupboards or windows which often take some time

to order. In this case, the reason for the request related to a course change in the

middle of the repair period, which Tarion believed would unfairly prejudice the

homeowners by serving to drag out the process. He conveyed Tarion’s decision to

F.P., who responded by repeating the same argument for extension.

[202] B.H. testified that on Friday, November 13, 2020, he spoke with A.T., who

informed him that there was a problem with the eavestroughs. He advised her that

since there was a 90% chance of rain on November 15, 2020, she should check

for leaks and call him the following Monday, November 16, 2020 to attend and

inspect the roof. When he attended at the property on November 16, 2020, he

discovered evidence that someone had walked on the roof and that the panels had

separated as a result of this contact. He explained that there is a specific way to

walk on such a roof without causing damage, but had no idea who had caused this

damage.

[203] He stated that his son sealed the panels and touched up these areas to match the

original colour. At the front entrance at the left side where the valley meets the

trough and the fascia, his son found an opening not sealed by the trough installer,

which he sealed. When they came down from the roof, A.T. directed his son to the

mitre at the corner of the roof. While B.H. was not aware of the precise nature of

the latter problem, he testified that his son repaired this issue and they departed

the property.

[204] When the builder repair period ended on November 30, 2020, the eavestroughs

had not been repaired and the homeowners were dissatisfied with the work to that

point. As a result, Tarion scheduled a claim inspection for this item.

[205] On December 1, 2020, B.H. contacted F.P. to detail the scope of the work required

to resolve the remaining issues with the roof and eavestroughs, specifically

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replacing the first layer of the shingles the eavestroughs and the drip edge. He

advised F.P. of the estimated cost to complete these repairs and speculated at the

hearing that it would have cost approximately $5,000.00. He ordered the new drip

edge from Boral Roofing (‘Boral’), the manufacturer and was ready to commence

the work. Boral had taken over from the predecessor company and changed all of

the available colours; however, he advised F.P. that at the time that the project

was contemplated, the colour for the roof was still available. It has since ceased to

be available and he would be unable to match the colour of the existing panels

with the replacement materials now available, resulting in higher costs.

[206] However, he did not carry out the repairs as A.T. never called him back to confirm

the project. It was his understanding based upon something that he read that A.T.

had refused to have this work done. He noted that the manufacturer’s warranty

would not have covered modifications or work conducted on the roof by someone

other than a contractor certified by the manufacturer. The warranty similarly would

not have covered the eavestroughs or damage caused by someone walking on the

roof.

The April 14, 2021 Claim Inspection

[207] On April 14, 2021, T.S. attended at the property and conducted a claim inspection.

The homeowners and L.S. from UBS attended the inspection. The Appellant was

neither present nor represented at this test. UBS conducted another water test on

the gutters and disassembled part of the flashing to assess its functionality with

respect to the earlier repairs by JJM. The water test confirmed that the

eavestroughs continued to leak down the wall and at the mitre joints.

[208] Both T.S. and L.S. took several photographs during the inspection, all of which

were considered in the resulting assessment. Tarion hired UBS to ascend the roof

as Tarion staff do not climb ladders or work at heights. Photographs taken by L.S.

and presented at the hearing showed the brown flashing added by JJM over the

eavestroughs and the earlier caulking smeared into the roof seams. Images of the

water test show water applied to the roof surface by L.S. bypassing the

eavestrough and running down the face of the wall. UBS detached the brown

flashing in one area to reveal caulking underneath smeared along the

eavestroughs. The water test demonstrated that neither the caulking nor the

flashing prevented the leaks. As a result, the added flashing provided no

significant improvement.

[209] Also evident in the inspection were several scuff marks on the surface of the roof.

UBS echoed the comments made by T.S. in its report to Tarion that the caulking

represented an ineffective method of local repair when the roof manufacturer

recommended complete replacement. While the claim that prompted this

inspection related to the leaking eavestroughs, T.S. agreed with the homeowners’

theory that workers sent by the Appellant had caused this damage by walking on

the roof without proper precautions against scuffing its granular surface. Under

cross-examination, he testified that the homeowners had shown him photographs

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of contractors walking on the roof but conceded that these images were not

submitted as evidence. However, he emphasized that if trades are responsible for

causing damage in the course of conducting repairs, they are also responsible for

those damages.

[210] T.S. testified that the repairs carried out by the Appellant did not meet warranty

standards and exhibited poor workmanship. Tarion issued its report on July 12,

2021 and found the item warranted as “the eaves trough still leak despite the

recent repairs.” The report confirmed that the roofing “was not installed properly

and will need to be removed to install the eaves troughs.”

[211] It is worth noting that this WAR was issued only ten days before the second day of

testimony when this evidence was presented. As a result, T.S. stated that Tarion’s

next step would be to resolve the claim with the homeowners. As of the date of the

hearing, Tarion was in the process of obtaining estimates for the costs of the

repairs. Multiple quotes are required as it would appear that the roof must be

removed and replaced.

[212] T.S. could not comment on F.P.’s conduct as he had never met her due to the

homeowners’ preference that she not attend inspections after he became involved

in the file. He corresponded with her primarily by email. He testified that to his

knowledge, this home was the only property constructed by the Appellant and

enrolled in the Tarion program. He did not know how long the Appellant had been

licenced, but in his experience, the two chargeable conciliations for a first and only

build was unusual and “not a good record.”

Analysis

[213] Like the ONHWPA before it, the present Act represents consumer protection

legislation intended to protect purchasers of new homes in Ontario.⁵That the

Appellant may be comparatively new to the regulatory scheme does not offer it a

defence against its obligations under the Act or the Regulations. As the Tribunal

held in Ashlar Construction Ltd. v. Registrar, Ontario New Home Warranties Plan

Act:

The Act is consumer protection legislation, and the stakes are high for

homebuyers. They expect that Tarion has satisfied itself when

registering a builder that the builder will be able to build well-

constructed homes, on time, and in accordance with regulatory

requirements, including meeting its warranty obligations, both

financially and from an after sales service perspective. Whether it is a

relatively new builder, such as Ashlar, or a large, established builder,

the expectations are the same. In other words, there is no

“probationary period” where the builder learns the ins and outs of the

various Builder Bulletins and regulations. The homeowners at 1605

⁵Tarion Warranty Corporation v. Kozy (2011), 109 O.R. (3d) 180 at para. 2 (Ont. C.A.).

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may have been challenging clients, but it was not for Mr. Hamed to

conclude that they had forfeited their right to warranty coverage by

virtue of their behaviour.⁶

[214] As the findings of the first two warranty assessment reports were never challenged

through an arbitration at the BAF, it is not open to the Tribunal to question the

determinations made within these documents with respect to poor workmanship.

[215] Builder Bulletin 42 sets out the process to appeal findings in WARs as follows:

BUILDER ARBITRATION FORUM

A builder who disagrees with Tarion’s determination of warrantability

or chargeability in a Warranty Assessment Report may be eligible to

request an arbitration under the Builder Arbitration Forum. An

arbitration request may only be made by registered builders who

attend the conciliation inspections and must be made within 28 days of

receipt of the Warranty Assessment Report. For full eligibility

requirements and other information, please refer to Builder Bulletin 41:

Builder Arbitration Forum. [Emphasis in original]

[216] In the present case, the Appellant did not follow this process following issuance of

E.C.’s or M.M.’s WARs.

[217] In Ashlar, the Tribunal considered the role of BAF as the appropriate form for a

builder to dispute settlement amounts paid by Tarion to the homeowners:

Mr. Hamed expressed frustration and did not agree with the settlement

amounts paid to the homeowners. He believed that the homeowners

were, to some extent, at fault due to their lack of communication with

him and their manipulation of the Tarion system. Upon receiving

Tarion’s invoice, he wrote a letter, citing several points of

disagreement. He stated that he had “continuously inquired when

speaking with [the homeowners] if everything we were doing was to

their liking. They confirmed it was with the only exception being the

stucco columns not having a top-coat as they wanted.” He further

stated that the homeowners’ “lack of communication, deliberate

misleading and lying” led to the builder repair periods having been

exhausted. In the same letter, he asked to appeal the decision to hold

Ashlar in breach of warranty. However, as noted above, he did not file

an appeal with the BAF, as was his right.

The Tribunal was clear, at the outset of the hearing, that this was not

the forum to hear or determine questions regarding the warrantability

of claims or the chargeability of inspections. The BAF would have

been the appropriate venue for Mr. Ashlar to voice his concerns

⁶2017 35337 at 13 (ON LAT) (‘Ashlar’)

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regarding the homeowners’ alleged actions - upon which he claims to

have relied - to his detriment, in this case.

…

Mr. Hamed did not attend the January 26th conciliation inspection. By

that time, the relationship between the 1605 homeowners and Ashlar

had deteriorated. In particular, Mr. Hamed and M.P., an employee who

performed some customer service and administrative work for Ashlar,

testified that the male homeowner demonstrated intimidating and

volatile behaviour. Mr. Hamed described the homeowner as an “edge

case” and Ms. P. indicated in her testimony that Ashlar had

“constantly” been denied access to the home, despite its attempts to

resolve the warranted items.

Yet, once again, Ashlar did not appeal Tarion’s findings of

chargeability to the BAF. While the Tribunal is prepared to accept

Ashlar’s evidence regarding the difficulties it faced when dealing with

the 1605 homeowners, we reiterate that this is not the forum in which

a builder may dispute Tarion’s findings of warrantability or

chargeability.⁷

[218] In the present case, the Registrar issued the Notice of Proposal before T.S. issued

his WAR on November 26, 2019. The evidence indicated that the Appellant did

attempt to commence an appeal with BAF with this WAR but was ineligible to

proceed as her licence was then under notice of proposal. As a result, the findings

in that WAR may be open to some examination. However, since that WAR

contained no chargeable items, it did not adversely contribute to the Appellant’s

record with respect to the ratio of chargeable items to possessions. There was

also no substantive dispute that the eavestroughs continued to leak when T.S.

found them to be warranted as of the date of inspection on September 17, 2020,

particularly as F.P. was in contact with B.H. as late as December 1, 2020 with a

plan to fix the issues with the roof.

[219] The Appellant failed to indemnify the Guarantee Fund for damages arising from

multiple breaches of warranty. According to Tarion’s evidence, $69,500.44

remained outstanding, not including any anticipated amount related to the

eavestroughs repair. While B.H. estimated that this work would cost $5,000.00 in

2020, he noted at the hearing that it would now cost more as the manufacturer no

longer produces roofing materials in this colour. As of the date of the hearing, T.S.

was still in the process of gathering quotes.

[220] This balance is consistent with F.P.’s own evidence that her $20,000.00 deposit

had been applied to invoices and that she may have made an additional payment

to O.F. However, she did not dispute E.C.’s evidence of the balance outstanding,

⁷Ibid. at 8-9.

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instead offering an alternative accounting based upon her own assessments of the

cost of materials and labour to resolve the outstanding defects with the property.

Significantly, T.S. was never challenged under cross-examination with respect to

the accuracy of the charged amounts and the Appellant called no witnesses to

corroborate the reasonableness of her own calculations with respect to her

preferred total of $25,000.00, despite the opportunities for both. T.S. explained

that the claim was the product of multiple estimates, two provided by arm’s length

contractors, while F.P. offered a vague summary of unspecified conversations with

anonymous sources and undisclosed research to arrive at a significantly lower

figure, largely informed by her own subjective dismissal of the homeowners’

complaints for many of the defects. On the balance of probabilities, I prefer the

charged amounts and total submitted by Tarion in the claims assessment as the

more reliable evidence.

[221] Pursuant to section 2.1 of the Vendor Agreement, the warranty is that of the

builder and it bears the responsibility to indemnify the Guarantee Fund, not Tarion.

In Re Charmchi, the Tribunal noted that pursuant to then section 8(2) of the

ONHWPA, “the Registrar may refuse registration where the registrant has a record

of breaches of warranties or of failure or unwillingness to complete performance of

contracts or is in breach of a term or condition of the registration.”⁸In that case,

the applicant builder had a one possession, but three chargeable conciliations to

one possession, two arising from the same incident. As the adjudicator noted, “It is

not a long record; it is not a good record.”⁹The Tribunal further noted that the

breach of the condition to indemnify is a serious breach and should have a

consequence. It also provided further and legitimate concern as to the builder’s

willingness and ability to be regulated.¹⁰The Tribunal took the position that the

consumer protection purpose of the legislation required that the consequences

must relate to the issue of registration:

The Act is to protect consumers both before and after they take

possession of their new home. How the Applicant deals with the

problems and concerns, which arise after possession is, among other

things, critical to determining whether he should be in the industry.¹¹

[222] Similarly, in B & C Contracting (Kenora) Inc. (Re), the Tribunal directly considered

the issue of unpaid invoices related to unresolved construction defects:

There is no dispute that the Applicant has made no effort to indemnify

TWC for any of the settlement funds advanced to homeowners as a

result of the Applicant failing to remedy deficiencies found warranted

in the construction of its homes. It is also clear this obligation is

derived from contractual agreements signed at the time of registration,

⁸[2008] O.L.A.T.D. No. 270 (‘Charmchi’).

⁹Ibid. at para. 116.

¹⁰Ibid. at para. 128.

¹¹Ibid. at para. 141.

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no less than from the terms and conditions of registration under

section 1.3 and 1.4 of Regulation 894.¹²

[223] As the Appellant remains in breach of the Vendor Agreement, I find that it is not

entitled to renewal of its licence pursuant to paragraphs (d) and (e) of subsection

38(1) of the Act. As explained below, I am not satisfied that renewal of the

Appellant’s licence with conditions would be appropriate in this case.

[224] F.P.’s lack of understanding of the builder repair periods also represented

insufficient technical competence. The 30 Day Form included a mix of ordinary

and seasonal claims, leading to two different timelines for repairs. For one of the

seasonal items, when it came time for assessment, it was too cold to conduct a

water test, resulting in assessment at a later date and in turn another timeline.

Further complicating the latter issue, some of the claims fell over the holiday

season and Tarion does not include the period from December 24 to January 1 as

part of the builder repair periods.

[225] The homeowners’ 30 Day Form included a number of ordinary non-seasonal

claims. Based upon the information outlined in Builder Bulletin 42, the following

timeline applied:

a. The homeowners had thirty days from the December 6, 2018 date of

possession to file a claim, excluding December 24, 2018, to January 1,

2019, resulting in a deadline of January 14, 2019.

b. The initial builder repair period was 120 days from the end of the

homeowner claim period, ending on May 15, 2019.

c. Tarion notified the Appellant that the homeowners had requested a

conciliation on June 19, 2019, which triggered the 30 Day builder pre-

conciliation period, ending on July 18, 2019.

d. The conciliation inspection took place June 30, 2019. All the items were to

be resolved at or before that time.

[226] The homeowners’ 30 Day claim form contained a number of seasonal claims. The

following timeline applied to all of these items, except the eavestroughs:

a. As with the ordinary items, the homeowners were required to file their

claim by January 14, 2019.

b. The initial builder repair period for the seasonal items ended September

1, 2019.

c. The Appellant was notified that the homeowners had requested a

conciliation on June 19, 2019, which triggered the 30-day builder pre-

¹²[2007] O.L.A.T.D. No. 107 at para. 87 (ON LAT).

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conciliation period, ending on July 18, 2019. However, this was a moot

point, as the initial builder repair period for seasonal items extended

beyond that date.

d. The conciliation inspection of all seasonal items except the eavestroughs

took place on November 14, 2019. The WAR was issued on November

19, 2019. The builder post conciliation period was thirty days from the

warranty assessment report, excluding December 24, 2019, to January 1,

2020, resulting in a deadline of January 6, 2020.

[227] The remaining seasonal item from the homeowners’ claim (the eavestroughs)

could not be assessed at the same time as the others because it was too cold to

conduct a water test. The following timeline applied to the eavestroughs:

a. The conciliation inspection of the eavestroughs took place on September

17, 2020. Tarion issued the WAR on October 29, 2020. The builder post

conciliation period was thirty days from the warranty assessment report,

terminating on November 30, 2020.

[228] The timeline for a delayed closing claim is even more straightforward. A

homeowner has one year to submit a claim. A builder has thirty days from the date

of the claim to resolve it, failing which Tarion will conduct an assessment and

issue a WAR. In this case, the homeowners filed their claim on November 4, 2019.

The builder failed to resolve the claim and Tarion issued its warranty assessment

report on February 10, 2020.

[229] The Appellant’s almost total failure to comply with the builder repair periods

provides a backdrop for its lack of technical competence. For instance, the

screens for the windows were not delivered until March 2019, but even these were

the wrong screens. In April, May and June 2019, the homeowners were still asking

for the proper screens. In July 2019, the homeowners made arrangements directly

with the supplier; however, emails from F.P. showed that she was actively

attempting to block delivery of this item. Other interior items were only resolved

when F.P. delivered items at the conciliation inspection, leaving the homeowners

to install these items themselves. This does not demonstrate a good customer

service record.

[230] Emails from the homeowners and testimony at the hearing demonstrated that F.P.

also did not approach her responsibilities as a builder with sufficient seriousness.

For instance, she failed to act in a respectful, courteous and cooperative manner

in all aspects of the claims process or to provide resolutions in a timely manner,

often attempting to resolve issues at the last minute or later.

[231] She also failed to be fair and reasonable in scheduling repairs and reliable in

terms of following up on the agreed to dates and times. As noted in Builder Bulletin

20, most homeowners have to book time off work to accommodate the scheduling

arrangements. As a result, a minimum period of two business days’ notice should

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be provided to homeowners when scheduling repairs. In the present case, M.P.

testified that A.T.’s mother suffered from dementia and the homeowners worked

full time. A.T.’s mother was confused by the arrival of unannounced trades.

[232] With respect to exterior items other than the eavestroughs, the Appellant had until

September 1, 2019 to conduct repairs. However, the items listed on the 30 Day

Form were not resolved by this date and, other than the seasonable items, were

found warranted by M.M. They were found to be chargeable items and

represented serious and expensive defects including Code violations and health

and safety issues. The Appellant’s efforts to resolve these issues were excessively

slow and represented at best half measures. For instance, the deck had obvious

and multiple structural problems. These items cost the Guarantee Fund

$73,100.00 to resolve.

[233] Even after this experience, the Appellant still demonstrated a poor grasp of her

customer service responsibilities, largely reiterating her unreasonable positions

during the hearing. For instance, when confronted under cross-examination with

respect to her faulty interpretation of the builder repair periods as set out in her

email of June 17, 2019, she continued to insist that she had 240 days to repair any

item, according to her own nonsensical formula and in direct conflict with the

explanatory materials in the Builder Bulletin.

[234] Rather than acknowledge her errors, F.P. continued to blame the homeowners

and attack their character. For instance, the evidence overwhelmingly confirmed

that the Appellant failed to follow the formal process for extending the closing date.

However, rather than acknowledge her mistake, she blamed the homeowners for

requesting modifications to the agreement of purchase and sale.

[235] F.P.’s allegations that she was denied access to the property also lacked

substance. The email exchanges relied upon by the Appellant equally convey an

attempt to cooperate with her to resolve the interior items at least until the builder

repair period expired. At that point, the emails show their frustration over F.P.’s

failure to understand her responsibilities or the relevant repair periods and let

months pass before resolving even simple items such the delivery of window

screens.

[236] B.H. was not contacted with respect to a comprehensive solution to the defects

with the roof until December 1, 2020, one day after the end of the final builder

repair period and almost two full years after the date of possession. On the

evidence, there were multiple shoddy attempts to the eavestrough that may have

caused additional damage to the roof in the process. At this point, the

homeowners were entitled to deal directly with Tarion to resolve the issue.

[237] While the present record includes two chargeable conciliations for one possession,

one less than in Charmchi, this Appellant’s performance high ratio of two

chargeable conciliations to one possession amply demonstrates a lack of

competence.

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[238] In Limo Homes (Re), the Tribunal considered the significance of chargeability with

respect to the builder’s record:

The Tribunal does not accept Mr. Campbell's assertions that

chargeable conciliations are irrelevant in assessing a builder's record.

Under the Act, the builder makes warranties to the homeowner as of

the date of possession and the homeowner has set periods of time

after the date of possession to make a claim to Tarion for breaches of

these warranties. The builder has the right to repair items complained

of both before and after the conciliation inspection. The purpose of a

conciliation inspection is for Tarion to make a determination as to

whether the items complained of are warrantable items under the Act.

Therefore, the conciliation inspection is a milestone in the Tarion

process and chargeable conciliations represent Tarion's first

assessment of the validity of the homeowners' complaints.¹³

[239] The Appellant also lacks the institutional resources to understand and address

warranty claims. The company lacks any employees including a dedicated

customer service department. While F.P. frequently referred to her company in the

first person plural, this was invariably intended to include arm’s length contractors

rather than actual employees. As a result of her other full time obligations including

her restaurant and her teaching duties, as well as managing her rental properties,

her availability to address the needs of the homeowners was severely narrowed.

This inevitably would detract from her ability to dedicate sufficient time to her

responsibilities under the Act and the Regulations.

[240] The evidence submitted by M.M. and M.P. with respect to the events of July 30,

2019 at the conciliation inspection was extremely consistent. Both testified that

F.P. aggressively approached A.T. with her finger extended and her voice raised.

That both G.M. and P.L.S. have found her professional and courteous is laudable,

but cannot overshadow the overwhelming evidence that she subjected the

homeowners to conduct falling far short of the minimal standard detailed in Builder

Bulletin 20.

[241] While F.P. readily identified one letter from Tarion as incorrect with respect to a

stated deadline, many other informational letters sent by Tarion were largely

ignored. To that end, I find no merit in the Appellant’s submission that Tarion

should have accommodated her failure to comply with builder repair periods by

offering extensions to deadlines missed due to her own lack of diligence and

arbitrary refusal to provide reasonable notice to the homeowners of scheduled

work at the property. With respect to the eavestroughs in particular, had Tarion

granted the requested extension, as the item in question was seasonal, this could

have postponed resolution of this issue for another calendar year, thereby

¹³[2007] O.L.A.T.D. No. 349 at para. 27 (ON LAT).

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severely prejudicing the homeowners who had already waited two years from the

date of possession to resolve this issue.

[242] F.P.’s deluge of emails to M.M., many repetitive and aggressive, caused M.M.

anxiety and interfered with her other duties. This combined with her pattern of

aggressive arguing with Tarion employees and disregarding their advice caused

Tarion to reasonably believe that the Appellant will not carry on its business

undertakings in accordance with the law and with integrity and honesty. Given my

findings with respect to the Appellant’s conduct, particularly that of F.P., I agree

with Tarion.

[243] While the Appellant’s paralegal argued at the start of the hearing that non-renewal

of the licence would imperil F.P.’s livelihood, this is irrelevant to the Appellant’s

duties under the Act and the Regulations. The Tribunal is also not a court of

equity. In any event, the evidence demonstrated that F.P. has several other

sources of income and has made no significant educational investments in her

construction business.

[244] Counsel for the Registrar emphasized that the Act sets minimum standards for

licencing for all new home builders regardless of size. That the Appellant lacks any

customer service department is a separate issue of insufficient resources on the

part of the Appellant, not a systemic bias favouring large corporate builders.

[245] Although subsection 43(9) of the Act permits the Tribunal to attach conditions to

the renewal of the Appellant’s licence, given the substantial outstanding debt still

owed to the Guarantee Fund as of the date of the hearing and F.P.’s

demonstrated refusal to take any responsibility for her substandard customer

service and conduct, I do not find that any conditions would realistically address

the serious issues raised by the Registrar. As the evidence indicated no

reasonable prospect that the Appellant’s conduct will change, it is reasonable to

refuse the imposition of such terms.

[246] That having been said, section 46 of the Act permits the Appellant to reapply for a

licence in the future should material circumstances change:

46.Once a decision of the registrar to refuse a person a licence or a

renewal of a licence or to revoke a licence of a person has become

final, the person may reapply for a licence only if,

(a) the time prescribed to reapply has passed since the refusal or

revocation; and

(b) the person satisfies the registrar that new or other evidence is

available or that material circumstances have changed.

[247] Ultimately, in light of all the evidence, I find that the Registrar has met its

evidentiary onus to demonstrate on the balance of probabilities that:

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a. the past conduct of the Appellant’s officer and director affords reasonable

grounds to believe that the Appellant’s undertakings will not be carried on

in accordance with law and with integrity and honesty;

b. the poor workmanship employed in the construction and repairs to the

property represent multiple breaches of warranty under section 13 of

ONHWPA for the home at 260 Farr Street and failed to indemnify Tarion

for resulting losses; and

c. the Appellant’s high ratio of conciliations to enrollments with respect to

one house demonstrates insufficient technical competence.

G.

ORDER:

[248] For the reasons set out above and pursuant to subsection 43(8) of the Act, I direct

the Registrar to carry out its proposed action in the amended Notice of Proposal

dated August 17, 2020 and deny the Appellant’s appeal.

LICENCE APPEAL TRIBUNAL

_______________________

Kevin Lundy, Member

Released: May 31, 2022

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