It seems the longer a legal fight drags on, the more complex and bitter it becomes. Over time, more problems are created, adversaries become more adversarial, while at the outset common sense, fairness, and empathy may have solved the problem.
Few cases illustrate this better than the painful experience of Daniel Emery.
A snapshot of Daniel’s story:
In October 2007 Daniel took possession of a newly constructed home, built to replace his original home destroyed by fire. After about 15 days, the basement flooded. He notified the builder and Tarion Warranty Corporation, the government monopoly responsible for new home warranties and licensing and regulating builders. The builder visited the home, but no action.
By December 2008, there were over four inches of standing water in Daniel’s basement, in addition to Building Code violations he discovered. More delays, no remedy.
Tarion visited the home in April, 2009 and did an investigative inspection. The inspector advised Daniel he had caused the water infiltration, and recommended he buy some bleach to get rid of the mould. Tarion instructed the builder to re-route the sump pump discharge pipe until another solution could be found. In 2009 Tarion did a mould remediation which took away the visible mould, but did not address the underlying problem.
Living with slimy, black mould in a new home
Daniel describes what he tried to do:
“I pleaded and waited for nearly four years for repairs to be made regarding water and mould throughout my new home. I spent four years with black, slimy mould dripping down the basement walls, mushrooms growing from carpets, all the while waiting for Tarion to honour their warranty. They never did. This after receiving a letter from Tarion stating “all defects are covered by your warranty.”
A homeowner’s nightmare
“These defects negated the issuance of the final Occupancy Permit to legally inhabit the home. Then in the 4 years while I was waiting for Tarion to resolve this, my mortgage came up for renewal, and I was unable to get home insurance, so consequently the bank would not renew my mortgage on this 4-year old home. The bank then foreclosed on me, and I was homeless. I was financially devastated after the foreclosure, and was then diagnosed with throat cancer.”
I spoke to Daniel today who, in his raspy, post-cancer-treatment voice, told me:
“One of the questions my oncologist asked me was if I’d ever been exposed to a mouldy environment. My heart sank”.
The bank foreclosed on his home on Nov. 2011. Major unresolved defects meant no home insurance, no insurance meant no mortgage, no mortgage, no home.
To this day Daniel’s been denied compensation under Tarion’s new home warranty. He received replies from senior Tarion officials, one saying i) “yours was not a contract home“; 2) “you did not own the land prior to construction“; 3) “you cannot prove financial loss“. Daniel says he can prove Tarion is wrong on all three points. They still refuse to give him a copy of the mould report, saying it’s none of his business.
Consumer protection legislation should protect consumers
A consumer protection agency of government created to protect consumers, should do just that. The Tarion case-law often quotes judges saying “it is common ground that Tarion is consumer protection legislation.”
So how could this go so wrong?
I first met Daniel in 2013 with another group of consumers who had come to Queen’s Park to urge MPPs to fix the 40-year-old Tarion legislation. I was shocked at his story then, I’m shocked now. Fast forward to 2018, no fix. The legislation is still badly flawed.
How Tarion legislation is flawed:
i) Tarion says it can’t force builders to do anything to fix construction defects, it doesn’t have the “compliance tools”. (Quote from Tarion interim report)
ii) There’s a conflict of interest in Tarion adjudicating disputes and guarding the purse-strings on pay-outs. Disputes should be handled by an independent body.
iii) Tarion can’t be both regulator of builders and sole warranty provider. This is an oddball model which exists nowhere else. Because it doesn’t work.
iv) Tarion’s financials continue to raise eyebrows: $26+ million paid in salaries, $12+ million in administrative expenses, only $6+ paid in claims in 2017. Does this organization cost more to run than it’s worth in consumer protection results? (see Tarion Annual Report, pg. 59).
Politics can ruin your life
Mould and water infiltration in one’s new home is not, at the outset, a legal problem. It requires someone with skill to fix it in a timely and cost-efficient manner, and make sure it doesn’t happen again. The courtroom, threatening legal letters, or making homeowners responsible for someone else’s wrong-doing, is not consumer protection. No outcome should leave the homeowner financially and emotionally destroyed.
Justice Cunningham’s Tarion review in 2017 recommended a separate builder regulator and multiple warranty providers, in total 37 recommendations to protect consumers. Our legislators need to re-read it and implement it.
Hoping legislators will right these wrongs
Daniel has returned to a job where he has a lot of time, alone, to think. His thoughts are still consumed with the nightmare he’s experienced. He still hopes for some compensation. What consequences did the builder suffer, if any? Did he get his license to build removed? Is there a note on his Tarion record warning other consumers? No.
Ontario builders are politically well-connected and well-funded, so they look after their own interests through their own lobby groups. Who’s standing up for the consumer?
Members of the Provincial legislature need to hear Daniel’s plea below:
I join him and other consumers and advocates who’ve been working to get Tarion fixed for over a decade.
In his words:
...”My time on the mortal coil may be limited. Please help future new home buyers, by following Justice Cunningham’s recommendations to dismantle Tarion and offer consumers a choice of warranty provider and a separate builder regulator.”… Respectfully, Daniel Emery, 27/08/2018