BUILDER ("Applicant" and TARION WARRANTY CORPORATION ("Respondent ...

It is noted that, unlike many of the BAF cases, no expert evidence was put before
me. I did not have the benefit of expert evidence in assessing the industry standard
and whether or not the mortar splatter was excessive or, on the other hand, routine
In making her determination about warrantability, did the Tarion representative do
everything required by the relevant Guideline? Did she view the splatters and stains
from a distance of 6 metres? Her evidence was that she did so. Unfortunately, on
February 3, she took no photographs from 6 metres. This was the case even though
she acknowledges having been reminded by the Builder's Representative to take
them from the required distance. She had a tape measure with her but admits not
having measured the distance. Similarly, she made no contemporaneous field notes
containing written confirmation of observation from 20 feet. As a result, we are left
with the possibility that the 20 foot observation of the Guideline was not complied
with. The burden of proof is on Tarion and, particularly bearing in mind the
consequences on the Builder, I am unable to conclude that the 20 foot requirement
was met.
The Supervisor stated that excessive mortar splatter consists of raised or protruding
mortar that is "chunky" or globular. Moreover, because it is raised and extends above
the smooth face of the brick, he stated that such "globs" of excess mortar would be
readily apparent from a 20 foot distance even if their dimension or "footprint" was
only the size of a "Loonie" (the Canadian one dollar coin). The Supervisors
evidence was that the Builder made the necessary "repair' by cleaning the masonry
in the manner consistent with the Guideline ( power washing) and that as a result,
the splatter was removed and any remaining stains do not detract from the
appearance of the finished wall when viewed from a distance of 6 metres. He relied
on the 20 foot photographs taken by him and the Builder's Representative (Exhibits
6, 7, 8, and 9 ) a few weeks prior to the hearing, which he maintained show no
detraction to the finished walls.
In assessing whether the remaining stains detract from the masonry walls, the
photographs I have viewed for this purpose are those forming Exhibits 4,6, 7, 8, 9,
12, and 13. Of particular importance are those showing the front of the house. That
is because the Tarion evidence indicated that the back of the house had less of a
12