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

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.
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