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

had been working for Tarion for approximately nine months and at the time of the
conciliation inspection of February 3, 2009, had conducted approximately 15
conciliation inspections. None of them had .dealt with mortar splatter. Her training
with Tarion involved a reasonably intensive academic section, as well as "right seat
training" which meant going out with a more experienced Tarion representative at
on-site inspections.
Tarion also relied on the oral evidence of another Field Claims Representative,
Leighton Brown. Prior to joining Tarion, Mr Brown had taken a six month home
inspectors course and had conducted private home inspections, presumably for
prospective purchasers, for a period of two years. He had conducted 200 or more
conciliations as of the date of his attendance at the home on March 10, 2009 and at
least a dozen of those had involved excessive mortar situations.
Mr Brown attended at the home on March 10 to estimate the cost of remedying the
alleged defect at the expense of the Builder. However, Mr Brown did not proceed
with his assignment, as he spoke to the owner and was advised that the owner had
very recently settled. Nonetheless, Mr Brown's evidence was that in the course of
his attendance, he made observations of the masonry from a distance of 20 feet. He
observed the mortar to be excessive and in his view violated the applicable CPG.
Mr Brown acknowledged that his attendance was more for the issue of remediation
than deficiency identification but, in any event, he too, took no photographs and
made no field notes based on his observations. Similarly, he did not use a tape
measure in identifying the exact location from which he made his observations. In
any event, again, in my view, the applicable date for determining if an item is
warrantable or not, is the date of the conciliation which in this case was February 3,
2009. Accordingly i decline consideration of Mr. Brown's observations on March 10
for the purpose of determining warrantability.
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