“The clocks were still striking thirteen”. My observations from a License Appeal Tribunal hearing

IMG_1431 - Copy (l to r): Dr. Aleksandra Ferenc, Mr. Jeffrey Ferland, and blogger/Volunteer Consumer Advocate, Ms. Barbara Captijn
————
It was a bright cold day in April, and the clocks were still striking thirteen.

…George Orwell, 1984

I’ve been attending a hearing at the License Appeal Tribunal (LAT) as a concerned member of the public, for 9 of the last 27 days since it began last September. The applicants are a young, educated, self-represented professional couple, with a small child at home, trying to get their new home fixed under Tarion’s mandatory warranty. The respondent is Tarion Warranty Corporation, with its in-house counsel and legal experts from a top Bay Street firm. The builder is the “Added Party”, which means he’s agreed to “fully co-operate with Tarion.”

Tarion’s heavy-ing up on costly litigators to fight self-represented consumers seems like using a baseball bat to kill a fly. The homeowner is up against two sets of lawyers, Tarion’s and the builder’s, as well as top engineers and technical witnesses.

The homeowners didn’t build the home, yet the burden of proof is on them to prove the defects. The money Tarion has spent so far on engineers and specialized litigators could have been used to fix the home. Lawyers for this type of hearing can cost $1,500 to $4,000 per day, with an up-front retainer costing anywhere from $30,000- $60,000. Its not easy to find a law firm specialized in this area who is not already used by Tarion, the building lobbies, or major builders. No surprises there, that’s where the big money is.

What ordinary new home buyer can afford these legal fees? Not even middle class, two-income families. Tarion can, and does, pay these fees, using the warranty fund which was meant to fix new home defects.

As an Ontario government monopoly “protecting new home buyers” and “regulating the building industry”, Tarion doesn’t have to disclose what it spends on lawyers to fight consumers in court. Who would have thought the government monopoly paid to protect us from building defects would use the warranty fund to fight us in court, letting shoddy builders off the hook, and shifting the cost of someone else’s wrong-doing back to us?

The legislation Tarion administers, the ONHWPA, is “consumer protection legislation”. Its meant to be given “a fair and liberalinterpretation“, according to the courts (Mandos v. ONHWPA, 1995). Anyone observing the LAT would be hard-pressed to find anything going on here which looks even remotely like “consumer protection”. The usual legal tactics of attacking witness’s credibility, withholding evidence as long as possible, using legal procedure to outsmart the other party, delaying the proceedings, wearing down opponents, its all fair game at the LAT against self-represented homeowners.

Tarion enjoys a monopoly and an arms-length relationship to government. The government has created a 900-pound gorilla, and seems to ignore its duty to the public to make this monopoly accountable and transparent. Tarion is not subject to oversight by the Auditor-General of Ontario, nor the Ombudsman of Ontario, nor the Sunshine List which discloses executive salaries. A giant monopoly with a huge public trust function and little or no oversight – is just plain irresponsible.

Tarion brings in about $33 million in mandatory fees annually, and pays itself $26 million in salaries, while paying out only $3.5 million in claims.  Catch me if you can.  And you can’t.

During the LAT hearing I’ve attended – its open to the public – I’ve made notes on things which seem so absurd they could have come right out of a George Orwell novel.

Here are a few:

– The LAT ordered the homeowners to remove all transcripts they’d been given by the LAT itself from their social media site. No reasons given. The hearing is “public”, but apparently not that public. Self-represented consumers often use social media to communicate with support groups, seeking tips on how to deal with the traumatic courtroom experience, just as lawyers routinely consult with colleagues or retired members of the profession. Without free use of their own social media sites, self-reps are cut off from valuable support and useful feedback.
Under the federal Charter of Rights and Freedoms, all Canadians are entitled to “freedom of thought, belief, opinion, expression, including freedom of the press and other media of communication.  Limiting the rights of consumers from discussing what happened in a public hearing on their own websites is puzzling; the court ordering consumers to remove information from their websites, which is neither offensive nor obscene, seems like censorship. Can an LAT adjudicator trump the federal Charter of Rights and Freedoms?

– Both the Chair and Tarion’s counsel have said “the Ontario Building Code(OBC) “isn’t particularly relevant to Tarion” (Chair); the “Ontario Building Code is not relevant“; “the Ontario Building code is not the basis for Tarion coverage” (Tarion’s counsel); and “anything in the OBC wouldn’t have much bearing on the day to day operations of Tarion” (Tarion’s “inspector”). “I don’t have to know Building Code” (builder). That’s all baffling  to new home buyers who rely on the Ontario Building Code as a minimum standard in new home construction, with strict enforcement. If the OBC is taken so lightly by the industry regulator, builders, and the justice system, what’s it for anyway? The installation of smoke detectors, for example, is also covered in the OBC to protect the public. Is this also “not particularly relevant” to builders, Tarion, or the LAT?

– “Concrete has no stiffness” – an astonishing quote from one of Tarion’s expert engineers.

– What is “first-hand knowledge”? Tarion’s “inspector” says first-hand knowledge can also mean something he’s read.

– The builder’s “I DUN-no, I DUN-no….” seems almost sane in the context of the above.

The LAT process seems to treat the homeowner like he’s the villain. He’s the one on trial for a home with construction defects he didn’t build. The builder rarely makes an appearance, undoubtedly reluctant to pay his lawyer the $1,500 – $3,000 (ex-HST) per day. Sometimes I sit there and wonder – where’s the guy who built this home? He’s the only one who knows what he did. But Tarion defends his interests, and their own, and brings in all the heavy artillery they need to get the claim dismissed. The builder’s objective is to avoid liability and defects listed on his Tarion record, and Tarion wants to limit their own liability. All undoubtedly “legal”, but unjust.  This is not good for consumers or communities left with a stock of homes with deficiencies. Further, there’s no deterrent for shoddy builders: they can lawyer their way out of responsibility for their work with big brother Tarion’s help. This is not consumer protection, its builder protection. What the LAT has ended up doing is shielding shoddy builders from accountability, and Tarion itself from liability and its commitment to administer consumer protection legislation.

The homeowners in the case I’m following have been fighting for 1 1/2 years to get their home fixed, and they return every night to a new home with construction defects.

We all can understand why lawyers and judges don’t like dealing with self-represented parties. Consumers don’t like dealing with lawyers and the courts either. We understand why surgeons don’t like dealing with untrained personnel in the operating room. Two plus two equals four. But the multi-million-dollar corporation charged with solving home defects and regulating the building industry is not doing an adequate job. Tarion continues to advise consumers to go the LAT to get resolution. Nice advice from a company who wins 93% of the cases.  Tarion’s own “internal ombudsman” (isn’t that an oxymoron?) advises consumers to go to the LAT. No one’s fooled anymore by him saying he’s not biased in favour of the company paying his paycheck and doing his performance reviews. Yet top Ministry officials continue to sell us this silliness.

Many consumers have given up on the LAT with its 93% failure rate, and proceeded to sue their builders in provincial court where Tarion is not a party. But why have a Tarion warranty at all then? Its costing us money, and costing taxpayers money to fund the LAT; its not a user-friendly forum, not solving problems, and creating legal nightmares for all involved, while filling the pockets of Bay Street lawyers at the consumer’s expense.

It seems the consumer’s the villain at the LAT, the wrong-doer is defended by the “regulator”, and the justice system is willing to move the goalposts when the deep-pocketed monopoly cries foul.

It seems absurd to me, just like something out of George Orwell’s “1984” or “Animal Farm”. Two plus two is five, and sometimes three. The Ministry of Consumer Services has become the Ministry of Un-Consumer Services, the Ministry of Justice the Ministry of In-Justice. No one’s responsible, no one’s accountable, so lets shift the blame to the most vulnerable party, the homeowner.  And the clock strikes thirteen.

22 Comments

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22 responses to ““The clocks were still striking thirteen”. My observations from a License Appeal Tribunal hearing

  1. nicole lalonde

    this post could not say it any more completely and accurately …. NEW HOMEOWNERS…..Buying/building a new home is exciting and rewarding , not counting the tremendous lifetime investment you are embarking upon ….until and if you find serious home construction defects….With the current systems. builder, Tarion and LAT , you have no one to turn to . Be prepared to pay …emotionally and financially. Why do we not hear from successful Tarion appellants , those who have found satisfaction in their appeal to Tarion ?
    Are there any ?

  2. Jan

    I applaud the author. We fought the builder, the municipality and Tarion just to get our home to meet the Ontario Building Code. Tarion was one frustration after another, delay after delay and LAT – it is about as neutral as Tarion. We should not have to fight so hard and so long for consumer protection that we pay for through our warranties. With all the OBC infractions and issues we found in our house our builder almost looks like an angel according to the chargeables. The new bulletin – still totally up to the Tarion inspector- rules should be rules not interpretable and up to the inspector or person at Tarion in charge of warranties.

    • nicole lalonde

      that indeed is ONLY one of the items that is so wrong : we , having to fight so hard for consumer protection. We also fought through the legal system all 4, builder, Tarion, municipality AND the engineer who had to oversee the repairs as per Tarion regulation !!! They all felt very comforted by the fact that the Tarion goliath lawyer led the pack against us , self represented and new at this ….no choice for us !

  3. Barbara,

    You nailed it! I have to say I think I enjoyed this blog post as much as any. As good as any article I have read about consumer protection as it relates to Tarion and the LAT (or any article period)!

    This should also run in the Star, Globe, National Post..etc… Persuasive and powerful reporting that should leave little doubt that change is needed! Perhaps my favorite part is your reporting

    – The builder’s “I dunno, I dunno, I dunno” seems almost sane after my 9 days of attendance.

    It is nice to know that others are on the same wave length after being part of the 27 day circus that has been called our Appeal of Tarion’s Decisions at the LAT.

    We may be up against a 900 pound gorilla, politicians funded heavily by the construction industry, a well oiled machine (Tarion) that is an expert at quieting homeowners concerns but we have Barbara!

    Awesome, entertaining, funny and sobering!

    Jeffrey & Aleks

  4. Naz

    Barbara,
    Another post that was so meaningful and spot on. It is so absurd, the things that are said and the rulings that are made, you just have to ask yourself if it is really happening. The truth is so much harder to accept and it is people like you and all that are fighting that will bring this absurdity to reality.
    There will be some major changes happening. The blindfold of justice has to come off because the scales cannot be tipped in the favor of money hungry, dishonest, unethical corporations any longer.

  5. The public is very fortunate to have Barbara Captijn’s commentary on this hearing underway at the LAT. Please remember, what is going on at the LAT is part of Ontario’s “justice” system.

    Attorney General Meilleur has been made aware of very serious issues at the LAT, yet she simply referred us to the SLASTO Executive Chair Lamoureux, who advised us that she needs 12 – 18 months to fix the serious problems at the LAT – while this case and others are subjected to the broken LAT – under her watch. The Ombudsman of Ontario, Mr. Marin, and the Auditor General of Ontario, Ms. Lysyk, both have jurisdiction over the LAT, and again, despite numerous communications to them, they remain mum. Minister Orazietti, who has responsibility for consumer protection and the mandatory monopoly Tarion remains mum. Premier Wynne also remains mum. This lack of meaningful and appropriate action from all of these officials is simply mind-boggling and extremely disheartening to most who are aware of it.

    For NINE years now, Canadians for Properly Built Homes has been analyzing and reporting on the outcomes of the LAT – and asking officials to investigate and address these serious issues. Here is a link with our most recent analysis: http://canadiansforproperlybuilthomes.com/html/whatsnew/2015/march/2014LATanalysisFinal.pdf. This analysis shows that in 2014, consumers lost 93% of the time.

    Despite many repeated attempts, to date, Dr. Ferenc and Mr. Ferland have not been able to get the main stream media to report on what is going on in their court room. For example, they have alleged bullying by the LAT adjudicator, and a number of other serious “irregularities” through their FaceBook site “Make Tarion Accountable”. While some main stream journalists have expressed an interest in their case, nothing has been published by them yet. Instead, the main stream media seems to be preoccupied — perhaps possessed — by stories such as Rob Ford and the beer monopoly. Far too many families such as Dr. Ferenc and Mr. Ferland, and their baby daughter, are suffering greatly because of a newly built home with Ontario Building Code violations, an unresponsive builder, an unresponsive Tarion, and a broken LAT.

    Fortunately, Barbara Captijn, who is a tireless, dedicated, and very astute volunteer consumer advocate — who also happens to be a gifted writer — is helping to open the world’s eyes to what is REALLY going on at the LAT — through social media. Thank you, Barbara!

    Ontarians first need to know what is going on at the LAT, and then rally together to make sure there are no more victims of a broken LAT. It goes without saying that Ontarians need – and deserve – much better than this. Please write to your MPP – now.

    Karen Somerville
    President, Canadians for Properly Built Homes
    http://www.canadiansforproperlybuilthomes.com
    Twitter: @cpbh01

  6. Lynn O.

    This shocking treatment of Ontario new home buyers, economic powerhouses that they are, is trumped only by the shocking truth that the Ontario goverment condones and supports it. This cannot be the Ontario I know.

    The people who work for the concerned areas of the Ontario goverment, Tarion, the LAT, law firms, builders and everyone else involved in this shameless ruse, they cannot be my neighbours, the parents of my kids’ friends, the people I see at the gym. These cannot be my people. If they are, what have we become?

    The simple application of a sense of decency by all involved would inform their behaviour to set this right. Decency and dignity: Aren’t these things we want our kids to learn? If so, they’ll need some examples.

    In the meantime, something new is happening here, so take heart. The network of people who have experience with the system is growing. This is the 21st Century: You can’t stop them from connecting and the degrees of separation are shrinking. It is unlikely that they or anyone they know will ever buy a newly built home. I know I won’t. The logical extension of that is a fearsome one for all the purveyors of this injustice. For all their might, they are slowly but surely shooting themselves in the foot. So keep connecting.

    It’s a long, painful process all ’round. Meanwhile, the Ontario government has an opportunity to end this horrible sharade and do the honourable, decent and dignified thing for the people of Ontario (the folks they work for). Their silence sends a deafening message. We hope they are hearing it now because the rest of us sure can.

    Lynn O

    • So right. In my entire lifetime living in Ontario, sharing the values you outline above, I have never seen anything like this. The framers of the ONHWPA legislation would roll over in their graves to see how it is being used to fight consumers instead of protect them. The Ontario governmment has created, and nurtured, a monster.

  7. Earl Shuman

    I’ve said it before (at the news conference I gave at Queen’s Park in December) and I’ll say it again. What’s behind this folks is a cor….pt and out of control legal community in Ontario and the lack of enforcement of our criminal laws against white collar crimes like fraud. A ‘successful sociopathy’ exists between Tarion and the civil litigation bar in Ontario both of which profit from the chaos created by the manipulation and exploitation of the Warranties Plan Act at the expense of the general public. In plain language, we are up against sociopaths and psychopaths with little or no concern for the rule of law. Take it from me who has been fighting them for the last twenty five years and counting.

  8. Linda Bissonnette

    Well said in my book Tarion should be scrap and all the people working for this outfit FIRED. There is absolutely no warranty on new houses none what so ever you are on your own. You buy a car you have a warranty by the dealer or the manufacturer, you buy the biggest investment in your life a house and you are on your own no warranty. Tarion is a joke I’ve fixed my house myself paid for the repair got stiffed over $1000.00 for the Tarion warranty to feed these thi…ves. FIRE EVERYBODY AT TARION AND SCRAP THE WHOLE JOKE. There go on welfare you thi…ves and see how it feels to try to fix your house without any warranty and try to get ends meet at the end of the month

  9. nicole lalonde

    Totally agree with Earl and Linda….the challenge : how to rid society of inherent deceit….. the naive THINK that the legal system is the answer until one confronts it ….you plan, you research, you discuss, you agree, you pay … that is the home buying process…in a nutshell…..you get scr…ed and you pay, you pay , you pay / ….does the builder/Tarion feel the same way ???

    • Naz

      When there is huge amounts of money to be made. … no one in this “corporate club” cares. .. their conscience is trumped by their paycheck. …

  10. Bert

    The subject article describes perfectly the Machiavellian attitude of the builder, Tarion, and legal cartel. However, our clever writing will not change the situation unless the Government changes the rules. Since they have not done the government is part and parcel of the cartel. Given that the individual homeowner will never succeed in obtaining justice once the home has been built, the only way is to draft an airtight APS before signing on the dotted line. I did attempt to take this approach 2 years ago. Well, the builder simply through up (literally) both arms and both hands and walked out of the model home: “This is not working for me!”
    Still feel a 10% holdback would work better than the current Tarion Route that has no consequences for the builder unless the builder’s performance is published. Shouldn’t one expect that the builder for the Ferenc/Ferland case does not get another single contract?

    • A 10% hold-back on the APS seems like a good idea. But many consumers who’ve asked their lawyers put this into the contract have been met by the same “I’m outta here” – by the buider. As long as builders can count on Tarion to defend them, why should they put up with a 10% hold-back, goes their thinking.

  11. nicole lalonde

    Given much thought to how we could have avoided the nightmare house. And came to the conclusion that a funds holdback should have solved some of the difficulties ; but as Barbara mentions, this is not a customary NOR mandatory building practice and ” Im outta here ” would have definitely been the response . However how did this ever come to be ? Where else does one have to pay full dollars with no guarantee of some type of compensation /refund/retribution if things go amiss . Is this not what an ” insurance provider “and in this case Tarion , is there for ?? and around the merry go round we go….

  12. Nothing even remotely consumer protection-like at LAT with Tarion!

  13. Bert

    Barbara, the comments you heard about the relevance of the Ontario Building Code are exceedingly surprising.. Can I flout the Building Code without dire consequences. My builder, who obviously knows nothing about building garages, delivered a quasi non-usable garage claiming the OBC forced him into a corner. My problems would indeed be solved if I could cut off 10 inches from the width of a landing/staircase monstrosity. In fact the provisions of the OBC with respect to private garages are asinine.

    • Hi Bert, Maybe there are parts of the OBC which make little sense to us. I’ve written to the Building Code Development Division (Ministry of Municipal Affairs and Housing) about some issues in the past . No response at all, not even an acknowledgement of my letters. Seems a pattern with this government. But if there’s no adherence to basic minimum standards of building, for example in structure and safety matters, we’ll be living in a worse Wild West than we are now, that’s scary.

  14. W M

    I can share in everyone’s concerns and CPBH was most helpful in my ordeal with Tarion. But even though I was successful in my claim with Tarion, the whole process felt very dirty to me.

    A simple solution for Tarion would be to impose a standard of care to every builder, which I suggested to Howard Bogatch, several years ago. Therefore, if a file was to go to LAT, the onus would be put on the builder to prove that they met that standard and not the homeowner.

    If I am buying a new home again, I am not handing over my check until it is thoroughly inspected by an independent, certified engineer.

  15. Sylwia

    We hear where your coming from,our basement has been leaking from day 1 and now it’s 2 years later and the basement still leaks.between the builder and Tarion stalling to come up with a solution is very frustrating.

  16. nic

    you are fortunate Sylwia if indeed both of the parties mentioned are TRYING TO COME UP WITH A SOLUTION ??? in many cases , it is simply delay delay delay for the sake , it appears , of delaying …

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