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

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 therefore not chargeable to the Builder.
An item is not warrantable under section 13 of the Ontario New Homes
Warranty Plan Act unless it fails to meet the requirements of that section.
Section 13 (1) reads as follows:
Warranties
13. (1) Every vendor of a home warrants to the owner,
(a) that the home,
(i) is constructed in a workmanlike manner and is free from
defects in material,
(ii) is fit for habitation,
is constructed in accordance with the Ontario Building Code;
(b) that the home is free of major structural defects as defined by the
regulations; and
(c) such other warranties as are prescribed by the regulations. RS.O.
1990, c.0.31,s.
This arbitration was conducted to determine whether the exterior masonry wall
mortar splatter constituted a breach of warranty and was therefore chargeable to the
Builder. In effect, this would determine if the repair was done satisfactorily. There is
no allegation in this case that the mortar splatter affects the structure or fitness for
habitation or constitutes a violation of the Ontario Building Code. Rather, this is a
case involving an alleged aesthetic defect.
In determining whether the mortar splatter is excessive, in my view, I am required to
assess the condition of the exterior walls at the date of the conciliation, namely
February 3, 2009. I have to decide if the Tarion conciliator's decision was correct on
that date.
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