Monthly Archives: January 2015

For months since Premier Wynne appointed yet another new Minister of Consumer/Government Services (the 5th in 6 years), consumer groups have spent hours meeting with the new Minister and his staff to bring them up to speed on serious consumer problems with Tarion and the License Appeal Tribunal.

While doing this, many of us have wondered – where’s all the information we’ve presented to this Minister’s predecessors? Why are we using our precious time as volunteers to constantly re-brief a revolving door of new Liberal Ministers and staff? Isn’t that what public servants get paid for? Where is the record of all our e-mails and meetings on this topic dating back to 2009-14?

I must be very old school, but it used to be that you’d have to read and understand files BEFORE meeting with various concerned stakeholders. I guess this business practice has also gone the route of the dinosaur.

Tarion Warranty Corporation, the Ontario government’s arms-length monopoly and the appeal body, the Licence Appeal Tribunal (LAT), have failed many consumers who discovered construction defects in their newly built homes.

A surprise to us two days ago was a copy of a letter sent (07/10/2014) to  Tarion’s CEO from the Assistant Deputy Minister, Mr. Denton,  offering kindly to help Tarion fix several serious consumer complaints (among other things) about their use of the LAT.

It stated the following: (re the LAT legal body for appeals of Tarion’s decisions):

“A less litigious and adversarial process would also address concerns the ministry has heard from homeowners that they are dissuaded from pursuing LAT appeals because the existing processes are not transparent, and are complicated, time-consuming, costly, and unbalanced. The Ministry would be pleased to assist Tarion with …development of a possible mediation process and/or other efforts to improve the dispute resolution process for homeowners. We understand that the Tarion board chair committed to a review of this issue (…) April 30, 2014. “

So where has this letter been for the last four months? Why has the Ministry been playing cat-and-mouse games for months about the nature and seriousness of these problems with consumers and advocacy groups?

Consumers continue to proceed like sheep-to-the-slaughter-house to appeal Tarion’s dismissed warranty claims, losing 83-96% of the cases.  The government oversight body of the LAT (SLASTO) admitted in December last year, whoops we really should train our adjudicators in dealing with  self-represented litigants, and consumer-ize our “terrible” website.

It appears this Ministry letter has been a well-kept secret at Tarion for months too, where senior executives continue to say the only consumers complaining about Tarion/LAT are a small group of tough-luck cases and perpetual malcontents.

It seems we’ve been played.

Where has this letter been for the last 4 months, and what has become of the 9-month old “commitment” of April 2014 to reform Tarion’s heavy-handed use of the LAT?

Knowing the new Minister has this information, and has had it for several months, we wonder how he could possibly refuse to vote for Bill 60, new legislation to bring accountability and transparency  to Tarion.

The governing Liberals have a trust and credibility problem with consumers on this issue. They need to “do the right thing” and protect consumers, not Tarion, not the LAT, and not their comfortable connections to the building lobbies.

Chris Arnold, Ottawa lawyer, mediator, collaborative law specialist, University of Ottawa law professor, shared this statement with us last week on LinkedIn. (Reproduced below with his permission).

“(…) My experience with Tarion (when I did real estate and civil lit): a massive  fr…..d on homebuyers. Tarion masquerades as consumer protection but I’ve seen nothing but a mix of incompetence and combativeness, where every technicality is used to deny coverage. Builders love it, waving the empty “protection” like a flag or hiding behind it.  – Rarely forced to fix errors.  Recourse? The License Appeal Tribunal (same body where appeals of hot-dog vendor licenses go). Take a sec and e-mail/call your MPP to ask them to support this Bill”.                            …..Chris Arnold

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Thank you, Chris, for speaking up for Ontario consumers. Thank you for underlining the urgent need for a major overhaul of Tarion’s UN-transparent, UN-accountable system. We agree with you, we need to support Bill 60 to bring transparency and accountability to Tarion.

Premier Wynne and her new Minister Orazietti have made it known they prefer to tinker around the edges of their out-dated, lax “DAA” accountability model. With a shaky track record so far on oversight of arms-length agencies of the government, this seems like the ostrich sticking its head in the sand.  Perhaps the Liberals have backed themselves into a corner, having received substantial donations for their re-election from the building industry. Perhaps its pay-back time.

Who can explain to us why Premier Wynne continues to promise us transparency and accountability, but refuses to apply these principles to Tarion Warranty Corporation? The Premier has yet to show us there is ANY system of checks and balances keeping this monopoly “honest” towards the consumer.

If you think the Ontario License Appeal Tribunal (LAT) is doing a poor job as a court for homeowners to get new home defects resolved, you’re not alone. What you may not know, and neither did we until last month, is that the oversight body of the LAT seems to agree!

The Executive Chair of SLASTO (Safety, Licensing Appeals and Standards Tribunals, Ontario), Ms. Linda Lamoureux, said this to Dr. Karen Somerville, President of the Consumer organization CPBH on Dec. 9th, 2014. She stated:

1)  The LAT’s website is “terrible”. (Ms. Lamoureux’s words). Consumers have been telling the LAT this for years. Its impossible to search builder records without the exact date and year of the appeal,  there’s no explanation of the meaning of “ONHWPA”, no organization of cases according to type of defect or name of builder, no indication of whether its a precedent-setting decision, or whether the builder is a repeat LAT defendant. All things a consumer might want to know about a builder.

2) Chairs NEED TRAINING in dealing with self-represented parties. Consumers are subject to a two-on-one at the LAT, fighting two sets of lawyers, Tarion’s and the builder’s. To balance the interests of fairness to consumers, specific training is required, and this specific training is not what current adjudicators have.

3)  SLASTO is aware that 83% of consumers lose their cases at the LAT.  The LAT, and the Ministry of Consumer and Government Services has been aware of this data for over 6 years. (CPBH research on the LAT, 2007-2013)

4) The SLASTO Chair is well aware of the “Access to Justice in Civil and Family Matters” report initiated by the Chief Justice of Canada to make the courts more cost-efficient, and user-friendly for ordinary citizens. She has however not implemented any of these recommendations at the LAT.

5) The LAT needs to improve its transparency and accountability to the public. Also a point agreed by the SLASTO Chair in her meeting with CPBH on Dec. 9th.

It’s outrageous the Executive Chair says she’ll take 12 to 18 months to address these short-comings of the LAT – which the LAT has known about for years. Anyone in the private sector who would say they need 1 1/2 years to do their job  would be shown the door. Not in the public sector.

Our public servants may forget they are there to serve the public, not their own timetables and organizations. They seem to ignore the human cost of their policy decisions, make us endure endless delays and finger-pointing, creating financial hardship for families.

Many honest, hard-working consumers who through no fault of their own found construction defects in their new home, are suffering and losing their shirts at the LAT. Who can afford a lawyer at $1,200+ a day for a week or more? This is excluding technical reports and expert witness’s hourly fees. Tarion (using our warranty fund money) can certainly afford it, as can builders, since its for them a tax-deductible “cost of doing business”.

My message to Ms. Lamoureux, Chair of SLASTO: 

Why is the courtroom being used at all as a forum to resolve home defects? Neither the homeowner nor the taxpayer is being well-served by this.

Many problems don’t need a courtroom or lawyers. Home defects cannot be solved FAIRLY in a forum where the applicants can’t afford legal representation. Being right, and being able to prove in a court of law, are two different things. Whoever said legal cases are 15% facts, 15% law, and 70% procedure and  tactics must have been to the LAT.  Lawyers always win this game. Consumers can’t afford this costly, stressful, time-consuming process where even the best-prepared and well-educated are at a distinct disadvantage.

Ms. Lamoureux: the LAT is not a fair forum for consumers to resolve new home defects.

You have said you are bound by current provincial legislation. That’s what your public servant colleagues have told us, for years. No one seems to be able to fix problems, but all concerned continue to acknowledge them. Government created this unfair system, now we rely on someone at senior levels of government to fix it. Please contribute to a fair solution for homeowners, such as providing mediation services, and other early resolution options – with equal representation for consumers. That would be taxpayer money better spent.

Please consider the human cost of having consumers wait for 1 1/2 years for your organization to address these urgent problems. If you cannot personally influence legislation, I’m sure you have direct and personal access to those who can. We rely on your and your organization with responsibility for the LAT to take leadership and bring meaningful change, urgently, to rectify this uneven playing field.

Dear Minister Orazietti
Minister of Consumer and Government Services, Ontario

I recently read a letter you sent (Dec. 9, 2014) to a new homeowner with long-standing serious problems with Tarion.

As you know, for several months individual consumers, advocates, and consumer organizations have met with you and your staff to underline many serious, on-going, festering problems with Tarion. We had hoped you might be the first in a long chain of seemingly complacent Ministers to finally understand and address consumer problems with Tarion.

Reading your letter of Dec. 9th, however, it seems our efforts have fallen on deaf ears. Your Ministry seems content to keep getting Tarion’s report card from Tarion itself.

We are all aware that arms-length agencies of the Liberal government have produced several shocking spending scandals within the last year such as ORNGE, e-Health, OPG, MaRS, the Pan-Am Games, and the billion-dollar GAS PLANT debacle. We’ve been asking your Ministry to take pre-emptive action on Tarion. We’ve been asking you to provide independent oversight to prevent further serious problems. But we continue to see, despite periodic window-dressing, nothing has been done.

Your letter of Dec. 9th indicates you seem content with the current arms-length accountability model of the Ministry as a sort of customer service and communications partner of Tarion. You use phrases like “I am advised that Tarion…”, and “I understand that Tarion…”. This is worrying to us since it paints you as a passive receiver, instead of an independent verifier, of the information Tarion produces.

You state “You understand” Tarion’s Chair made a commitment at its Annual Public Meeting (30/04/14), to change its use of the License Appeal Tribunal. But who’s going to make sure they actually DO anything? A full eight months on, nothing has been done. Consumers have received no answers to their inquiries.

Tarion’s PR and Marketing machinery tells us, as you do in your letter, “Tarion has a history of…progressive steps to improve governance, transparency, customer service and consumer protection”. Sounds good, but who’s verifying this? Tarion?

Who’s overseeing Tarion’s in-house “ombudsperson”? Tarion itself.

With its government-granted monopoly, revenues of $33 million, (2013), salaries and benefits of over $24 million, $9 million in administrative costs, yet a mere #3.5 million paid out in homeowner claims, Tarion’s financial picture cries out for independent scrutiny. There is none.

Consumers have for years complained to your Ministry that Tarion’s policy-making is biased toward the interests of the building industry. There is no meaningful conduit for consumers to give feedback to Tarion’s senior levels. The President of the Liberal Party of Ontario, responsible for fundraising, is a Tarion senior V.P. This can hardly be expected to encourage trust in Tarion’s independence from the powerful and affluent building lobbies. Since eight prominent builders sit on Tarion’s board, that’s undoubtedly good for fund-raising, but doesn’t do much for consumers. Yet Tarion was created to protect consumers, not builders.

We are scandal-weary in this province. We are skeptical of arms-length agencies of government operating their monopolies with little or no oversight. Tarion has been given an important public trust function. Why are no preventive measures being taken to scrutinize how this indirect tax on every new home buyer is being used?

Tarion seems a prime example of “the butcher inspecting his own meat”.

We’d like to trust Tarion, Minister Orazietti, as you demonstrably do. But experience has taught us “trust but verify” is the better policy.

Sincerely,
B.Captijn

Volunteer Consumer Advocate
http://www.consumersreformtarion.com
Twitter:@ReformTarion