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

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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. 4
Reference will frequently be made to Construction Performance Guideline 4.16 ("CPG 4.16"). The Construction Performance Guidelines are to be used by Tarion in determining whether or not a building condition is covered by the statutory warranty. Construction performance Guideline 4.16 ("MORTAR SPLATTERS AND STAINS ON EXTERIOR MASONRY") sets out the Acceptable Performance/Condition as follows: Exterior masonry shall not have mortar splatters and stains detracting from the appearance of the finished wall when viewed from a distance of 6 m under natural lighting conditions when dry. It should be noted that the CPG observation from 6 metres equates to 19.8 feet. However, for convenience I have rounded the number at 20 feet and have used the distance of 6 metres and 20 feet interchangeably throughout this award. I also note that I found each witness to be responsible, businesslike and credible notwithstanding that in certain areas where the evidence differed, I (often marginally) preferred the evidence of one witness over the other. TARION EVIDENCE Tiffany Hallatt, the Tarion Field Representative, testified that when she attended the site on February 3, 2009, to perform the conciliation, she saw excessive mortar splatter based on observations from six metres or more away from the house. Her evidence was that she saw a large number of significant sized mortar splatters in many locations on several areas of the house. Hallatt testified that she applied the Construction Performance Guideline 4.6 and determined that the mortar splatters and stains on the exterior masonry were warrantable. Ms. Hallatt acknowledged in her testimony that, the Builder's representative, was present at the conciliation inspection on February 3, and reminded her (Hallatt) to stand six metres away when making her observations. 5
Page 1 and 2: IN THE MATTER OF THE ONTARIO NEW HO
Page 3: March 9, 2009 was the deadline for
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 and 14: splatter problem than the sides and
Page 15 and 16: uilder in the immediate vicinity. T

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

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