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

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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. 8
BUILDER'S EVIDENCE The first witness for the Builder was a customer service representative who had worked for the Builder for approximately 11 years and was involved in pre-delivery inspections. She acknowledged that she had no particular expertise with mortar issues. The Builder Representative was present when Tiffany Hallatt attended at the conciliation on February 3, 2009. She testified that she told Ms. Hallatt to take photographs from 6 metres distance. She saw Ms. Hallatt take the 3 to 4 foot range photographs on February 3 (the Exhibit 5 photographs) but states firmly that she did not see Hallatt either observe, view or photograph from 6 metres away. She further stated that there was no active snow descending when Hallatt took the pictures but snow was falling from the roof. A Supervisor also gave evidence on behalf of the Builder. He had operated his own house building company for about 15 years and built in the range of 250 custom homes before working as a site supervisor for other builders. In this supervisory capacity he had been involved in the construction of at least another 400 homes, most of them involving brick masonry. He has worked for the Builder for several years. The Supervisor's evidence was that approximately 90 percent of the spots identified by Hallatt on some of the 37 photographs which she took on March 10 were efflorescence and only 10 percent were mortar stains. The percentage differed on the various photos but he identified a definite majority as efflorescence. The significance is that, firstly, efflorescence is generally normal and secondly, was not identified on the Warranty Assessment Report as a defect. Moreover, efflorescence is dealt with under a totally different C.P.G. The Supervisor's evidence was that if the markings on the bricks were mortar splatter, the spot would be grey. This is because mortar has a grey tone to it. Conversely, if the mark was white, as were so many of the marks identified by Hallatt, it was efflorescence. 9
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: Tiffany Hallatt reattended at the s
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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