10/07/13 – Jurisdiction Ontario
Part 35 published on 01/09/11
Tarion warranties run with the land. Also, a claimant’s only remedy against Tarion (for breach of the statutory warranties) is to pursue the statutory claims and appeal process
Part 35 published on 01/09/11
Tarion warranties run with the land. Also, a claimant’s only remedy against Tarion (for breach of the statutory warranties) is to pursue the statutory claims and appeal process
The plaintiffs had sued various parties (including Tarion Warranty Corporation) for alleged deficiencies in the construction of their home. On a motion for summary judgment, the claim against Tarion Warranty Corporation was dismissed for the following reasons:
- The home had been sold by a mortgagee under Power of Sale. Therefore, the plaintiffs were no longer the owners of the home. The Court said that the Tarion warranties and related rights run with the land and are accordingly available only to the current owner of the home from time to time.
- At a time when the plaintiffs still owned the home, Tarion Warranty Corporation had issued a decision denying the plaintiffs’ claim under the Tarion statutory warranties. The plaintiffs had failed to appeal that decision in accordance with the procedures contained in the Tarion Warranty legislation (the Ontario New Home Warranties Plan Act). The court said:
Where consumer protection legislation such as the (Ontario New Home Warranties Plan Act) creates a remedy which did not exist before, it is not open to a claimant to choose his or her forum to make a claim. The procedures set out in the (Ontario New Home Warranties Plan Act) for claims and appeals from a refusal thereof must be followed.
3. In the specific circumstances of this case, the Court also found that there was no claim against Tarion for damages based on delay.