A 1987 court decision was recently brought to our attention: York Condominium Corp. No. 528 and Ontario New Home Warranty Program, 1987 CanLII 4073 (ON SC), Justices Griffiths, Eberle and Rosenberg, held:
“It would be impractical and unfair to expect the unit owners and the condominium corporation to advise the respondents within the one-year period not only of the symptoms of the problem but the cause of the problem and the appropriate method of correcting the defects. In actual practice as happened in this case, the symptoms were noted, extensive investigations were undertaken, including opening up the wall, some methods of repair were attempted, such as the adding of flashing to the point where the balconies attach to the structure. It is only through this type of inspection, consultation with experts, and trial and error with regard to attempted remedies, that the appropriate method of correcting the deficiencies can be determined. Accordingly, I would set aside the decision of the Tribunal and in its place I would give judgment in favour of the appellant against the respondent for $762,287.04, plus interest …”
https://www.canlii.org/en/on/onsc/doc/1987/1987canlii4073/1987canlii4073.html
We are unaware of any case law that has overturned this 1987 decision. But we are aware that Tarion has continued to require homeowners to show the cause of the problem in order to substantiate their claims to Tarion - and that the LAT has allowed Tarion to use this argument in some of its hearings.
Justice Cunningham also raised this issue in his 2016 Tarion Review Report: "Onus of proof - There is currently considerable ambiguity about who must prove what. This should be clarified in the legislation. The
homeowner is not the technical expert and must rely on the builder to carry out what is contracted for, engage competent
trades people, and have the necessary oversight in place to ensure quality workmanship. A new home owner purchases an
end-product and should not be expected to have the expertise to be able to assess whether something is a defect, even if given
an opportunity to “inspect”. Consequently, the most a new home owner can be expected to do is provide credible evidence of
the symptoms they are experiencing or observing. A homeowner will know the symptoms but should not be expected to prove
the cause...."
Justice Cunningham included this related recommendation: "viii) Homeowners must only prove “credible symptoms” of the defect, not the cause of the defect" (#25)
Here is one example from the LAT - File 8549 in 2015. “Tarion quoted precedents: - As stated by this Tribunal, at paragraph 16 of the case of Re Muller, released February 5, 2008: “…The onus is on the Applicants to show that the item they have claimed should be warranted, that the warranty has been breached and that they have suffered damage as a result of the breach…” (File 7549).
We have recently written to both Tarion and the LAT about this. Given that Tarion lost the court case in 1987, why has Tarion continued demanding that homeowners go beyond showing credible evidence of symptoms - and why is the LAT allowing Tarion to do this?
#EndTarionMonopolyNOW #AppointAnAdministratorNOW #DumpTheLAT #NeverGiveUP