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

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This arbitration was conducted to determine whether the repair was done satisfactorily such that the exterior masonry walls did not constitute a breach of warranty and were therefore not chargeable. In determining whether the mortar splatter is excessive, in my view, I am required to assess the condition of the exterior walls as of the date of the conciliation, namely February 3, 2009. I have to decide if the Tarion representative's decision was correct on the date of the conciliation inspection. Repairs to the exterior masonry walls took place prior to the conciliation inspection and I have to determine whether the mortar splatter and stains on the masonry, after having been repaired (by way of cleaning), constitute a breach of warranty. More generally, I have to determine whether the exterior masonry walls were repaired or cleaned to a condition such that they resulted in walls "constructed in a workmanlike manner and free from defects in material". " Workman like manner" involves defects in construction but aesthetics can also be taken into account in determining whether there has been a failure to construct the home in a workmanlike manner. There is no allegation in this case that the mortar splatter affects the structure or function of the walls. Rather, this is a case involving an alleged aesthetic defect. Several cases refer to Re Belvedere v. Ontario New Home Warranties Programme. That case is cited for supporting the proposition that aesthetics is a matter to be taken into account in considering whether the workmanlike standard has been met. The appearance of the work plays a role in this concept, "neither of the highest importance or the lowest of importance but it is of some importance". Re Dirani. (20051 O.L.A.TD. No. 155, a decision of the Ontario Licence Appeal Tribunal, involved complaints regarding exterior stonework. The owners had expected the stonework to look like that of neighbouring homes. The owners were disappointed with the stone as installed. The final appearance struck them as rough and unfinished or unpolished compared to the other homes constructed by the same 14
uilder in the immediate vicinity. There were also complaints about the mortar placed among the stones and the owners considered these mortar joints to be messy. The tribunal considered the case of Re Goulet (20001 O.C.R.A.T.D. No. 51 (a case involving uneven brickwork) which in turn had considered the case of Re Sirbu, another case of the LAT. In Re Sirbu (May 3, 20021 O.L.A.T.D. the tribunal found that many of the items complained of did not constitute a breach of the warranty to construct in a workmanlike manner because the defect was not a "glaring" aesthetics problem or a major defect. In determining whether or not there has been a defect of workmanship in the construction of a new home, the Tribunal stated that aesthetics is certainly a part of the consideration but not the predominant one. The Tribunal in Sirbu went on to say that the warranties stated in the legislation are founded on the concept of " what is reasonable, not on what is perfect". The decision essentially provides that the standard is one of reasonably acceptable and not one of perfection. FINDINGS As indicated, there is evidence of some remaining mortar stains in a moderate number of locations on the brick at the front of the home and on the sides of the home for a length extending about 3 to 4 feet from the front face of the home. They are most apparent, and then not even overtly so, when viewed close up, such as 3 or 4 feet away from the brick face as in the case of the photographs taken by Tarion. The Tarion photos purportedly showing poor workmanship were taken at this very close range and do not really reflect the appearance of the home from a greater distance. When viewed frontally from the standard 6 metre distance, as in the photos taken by the Builder, the stains are faint, subdued, sporadic and only vaguely noticeable in some spots. The overall appearance of the brickwork when viewed from 20 feet, while not perfect, is acceptable. I am unable to find on a balance of probabilities that the Tarion representative complied with the observable distance required by CPG 4.16 on the date of the conciliation, February 3, 2009 which was when she made a finding that the mortar situation was warrantable. I cannot uphold her finding of a breach of warranty in the absence of such a finding. 15
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 and 12: experienced in changing the colour
Page 13: splatter problem than the sides and

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

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