BUILDER ("Applicant" and TARION WARRANTY CORPORATION ("Respondent ...
BUILDER ("Applicant" and TARION WARRANTY CORPORATION ("Respondent ... 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
splatter problem than the sides and the front. Also, the sides of the house, at least past the first few feet near the front of the house, are largely obliterated from the street by the close proximity of the homes on each side of the subject house. Further, the Homeowner himself testified that the front of the house had the least problem. In summarizing the photographs reflecting the front of the house and including views of the second story and above the garage door, I find a few pale white spots of modest size the most substantial one appearing above the garage door but closer to the second story than the top of the garage door. These small spots are modest in number and frequency and with two exceptions, very pale and faint and almost indiscernible. Even the two most significant spots, over the garage door, are reasonably explained by the Builder's Supervisor as a possible chipped brick in one case and bird droppings in the other. In my view, these few remaining stains when viewed from a distance of 6 metres under natural lighting conditions and when dry, do not detract from the appearance of the finished walL. I note the e-mail from the Builder's Representative to Tarion made on March 9, 2009. It states that 9,200 bricks were incorporated into the home, apparently all of them on the exterior walls. The number of bricks affected by mortar splatter and stains, at least after the cleanings by the Builder, and based on the photographs, are a small fraction of that. THE LAW The Builder seeks a declaration that the disputed item in the Warranty Assessment Report ("the WAR") is not warrantable and that the costs of the conciliation are not chargeable to the Builder. As stated earlier, an item is not warrantable under section 13 of the Ontario New Homes Warranties Plan Act unless it fails to meet the requirements of that section. j 13
- Page 1 and 2: IN THE MATTER OF THE ONTARIO NEW HO
- Page 3 and 4: March 9, 2009 was the deadline for
- Page 5 and 6: Reference will frequently be made t
- Page 7 and 8: Tiffany Hallatt reattended at the s
- Page 9 and 10: BUILDER'S EVIDENCE The first witnes
- Page 11: experienced in changing the colour
- Page 15 and 16: uilder in the immediate vicinity. T
splatter problem than the sides <strong>and</strong> the front. Also, the sides of the house, at least<br />
past the first few feet near the front of the house, are largely obliterated from the<br />
street by the close proximity of the homes on each side of the subject house.<br />
Further, the Homeowner himself testified that the front of the house had the least<br />
problem.<br />
In summarizing the photographs reflecting the front of the house <strong>and</strong> including views<br />
of the second story <strong>and</strong> above the garage door, I find a few pale white spots of<br />
modest size the most substantial one appearing above the garage door but closer to<br />
the second story than the top of the garage door. These small spots are modest in<br />
number <strong>and</strong> frequency <strong>and</strong> with two exceptions, very pale <strong>and</strong> faint <strong>and</strong> almost<br />
indiscernible. Even the two most significant spots, over the garage door, are<br />
reasonably explained by the Builder's Supervisor as a possible chipped brick in one<br />
case <strong>and</strong> bird droppings in the other. In my view, these few remaining stains when<br />
viewed from a distance of 6 metres under natural lighting conditions <strong>and</strong> when dry,<br />
do not detract from the appearance of the finished walL.<br />
I note the e-mail from the Builder's Representative to Tarion made on March 9, 2009.<br />
It states that 9,200 bricks were incorporated into the home, apparently all of them on<br />
the exterior walls. The number of bricks affected by mortar splatter <strong>and</strong> stains, at<br />
least after the cleanings by the Builder, <strong>and</strong> based on the photographs, are a small<br />
fraction of that.<br />
THE LAW<br />
The Builder seeks a declaration that the disputed item in the Warranty Assessment<br />
Report ("the WAR") is not warrantable <strong>and</strong> that the costs of the conciliation are not<br />
chargeable to the Builder.<br />
As stated earlier, an item is not warrantable under section 13 of the Ontario New<br />
Homes Warranties Plan Act unless it fails to meet the requirements of that section.<br />
j<br />
13
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