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As a consumer advocate, I sometimes accompany self-represented litigants to court to provide a bit of moral support. I often feel I need to write about what I see.
I found myself recently apologizing to new immigrants to Canada for how they were treated by a major developer during a new home purchase, and the complex legal maneuvering which followed. (This was a freehold home purchase, not a condo.)
I’ll tell you why below, and what I think needs urgent attention.
For nine years now, I’ve watched our politicians drag their feet on reforms to consumer protection laws and changes to the builder/warranty provider, Tarion. Consumers are still left to flap in the wind in too many of these important consumer protection areas.
Other provinces like Alberta and B.C. have a Consumer Protection Watchdog, or Homeowner Protection Office. Ontario has neither. Our members of the provincial Legislature have recently been in the media announcing their “partnering” with building industry officials to build homes faster. They’ve also admitted the regulator/warranty provider, Tarion, is broken, but they still force consumers to deal with a broken agency. The government and industry’s joint PR efforts to make us #homebelievers, and their combined push to “cut red tape”, is concerning.
Who’s protecting the consumer? That’s supposed to be the provincial government under The Consumer Protection Act.
The couple whose court case I attended, I’ll call them Ann and John, submitted copious documents to the court, which I read, as well as the developer’s documents. Ann and John are self-represented litigants up against one of the largest home builders in Ontario. English is not their first language, so they were supported by an interpreter/paralegal.
Here’s a brief summary of their story from the court documents:
Ann and John were one of 350 consumers who obtained a ticket to a sales event organized by a high-profile developer/builder selling 90 pre-construction homes outside Toronto.
At the filled-to-capacity event, they met with two sales representatives of the builder. These are not licensed real estate agents, and they’re apparently not required to be.
Ann and John were told they had to sign a 58-page sales agreement (APS) the same day, if they wanted to buy one of the homes. In a pressure-packed and hurried atmosphere, they chose the model of the home they wanted from several designs shown to them.
They were told they had 15 minutes to review and sign the 58-page APS. There was no highlighting of fine-print clauses waiving certain rights, no explanation of these special clauses.
They signed the APS, and gave the initial deposit required of $25,000 to purchase a specific model of one of the 90 homes.
As the completion date drew near, they made the other payments totaling $150,000 for the deposit.
They were allowed to visit the newly-constructed home on the day before closing. During the builder’s walk-through (the Tarion “PDI”), they noticed a bay window promised in the plans for the second floor was not there, and several interior layout features had been omitted or changed. They objected to this, since it was not what was agreed in the plans. They asked to extend the closing date to resolve this, but their request was denied.
They refused to close because of this. The developer then forfeited their full deposit, held Ann and John in default, and sold the home to someone else.
We trust we have laws to protect consumers from companies who don’t deliver what they say they will in their contracts. We trust reputable, long-standing builders with a positive corporate image. We know government, lawyers and lawmakers have an obligation to act in the public interest. We trust the government agency, Tarion, to publish accurate builder track records, even though this has been critiqued for years as inadequate, and the entire agency is now described by the Minister of Consumer Services as “broken”.
Despite all the laws we have, well-paid government agencies, and their duty to serve the public, I’m concerned about what I learned reading these court documents.
Developers hire top lawyers to draft these APS contracts to protect their interests. They’re filled with fine print, which can deprive you of rights you thought you had. A top litigator once told me you can include any clause in an APS you want, but the developer wants buyers who make no changes and have no conditions. He’ll move on to the next person waiting in line, if you want to add or change anything.
It’s not fair to blame the consumer for not doing research on builders, or being naive. The broken Tarion builder track record is the responsibility of government, and it’s next to useless. Where is one to look for accurate builder track records?
Many of the cases like this one finally get settled with a gag order on the consumer before the media writes about them, so the public can’t get a lot of information on high-pressure sales tactics and lop-sided contracts.
Well-established developers are major advertisers, often high profile philanthropists too, politically well-connected, and backed by powerful industry lobby groups. Consumers tend to believe prominent builders are good corporate citizens, and will be transparent and fair in their business dealings, because that’s the law.
The APS signed by Ann and John contained several clauses which take away certain rights a consumer ordinarily has, and shift too much risk from the developer to the purchaser. Here are a few examples:
The APS waived rights such as:
i) their ability to obtain independent legal advice;
ii) there was no cooling-off period after the signing of the documents, as allowed as in condo purchases;
iii) The consumers were made to agree that disputes must be resolved by arbitration.
But the Consumer Protection Act says even if a consumer signs a contract agreeing to arbitration, he’s not bound by it. However, real estate transactions seem to be specifically excluded from this Act. I found this in reading the developer’s court documents and checking the legislation itself: “The Consumer Protection Act: 2002, SO 2002, c.30, Sch A. ss. 2(2)(f)”. The Act specifically exempts from its application “transactions for the purchase, sale, or lease of real property“. This is not mentioned on the Ministry’s website under the section “Your right to seek help.” Why not?
How can the consumer be aware of this? Several lawyers I asked about this didn’t know real estate transactions were excluded in the Act.
iv) Another clause in the APS states that the buyers must give up their rights to commence or participate in a class-action suit. How can a developer take away anyone’s rights to legal remedies? Shouldn’t this be overruled in the Consumer Protection Act? No, apparently, because the Act doesn’t apply to real estate transactions.
That doesn’t make sense, if the purpose is to protect consumers.
The Tarion warranty doesn’t apply either, unless the deal closes. In any case, Tarion is “broken”, as stated by former Consumer Minister Walker, on Feb. 20, 2019, in the ministry’s news release.
v) The APS also included a list of 18 types of “permitted alterations” the developer can make to the home or lot – “for any reason”. Bay windows, the main feature in dispute, are not mentioned as a permitted alteration. The municipal building plans, also filed as a court document, still show the home still with bay windows, no revisions.
Transparency? … full disclosure?
The case is scheduled to proceed in October. Many of these cases can drag on for years, until the consumer is exhausted, financially and emotionally, and gives up.
We need our legislators to step up to the plate and act in the public interest.
I have three specific questions for the new Minister of Consumer Services, Hon. Lisa Thompson, (the third minister in one year in this portfolio):
1) Why is there no cooling-off period mandatory for new freehold home sales, as for condos? Why discriminate based on type of home ownership?
This is a major purchase, and consumers need the 10-day period to review the complex 58+ page contract with an independent, highly experienced lawyer. This might reduce the number of disputes, cut down on court time, make closings more smooth for both parties, and create more harmonious communities.
2) Why are real estate transactions specifically excluded from protections of the Consumer Protection Act?
The new Condo Act protects condo purchasers, but what about freehold home buyers? Why should developers be allowed to mandate the use of arbitration, or forbid class action suits?
3) Why not require written disclosure of any changes to the layout of the home, if it differs from the one attached to the signed APS? Why aren’t all physical changes to the exterior structure required to be filed at the municipal building authority? (Or why is there no enforcement?)
No one likes surprises in contracts. Both parties expect full and timely disclosure. Harmony on closing day is better for both sides.
Good consumer protection laws balance the risks and responsibilities of both parties, and don’t disadvantage the consumers they’re meant to protect. The new Minister should take action to fix these gaps in consumer protection.
– make a standard purchase contract for all new home sales, protecting the rights of both parties;
– create a Consumer Watchdog Office to protect new home buyers from heavy-handed sales tactics by large corporations, and oversee fair and balanced contracts, regardless of type of ownership.
Lambs are no match for lions in court; the lions always seem to be able to afford more justice.
Premier Ford and his government promised to “protect what matters most”, and act #ForThePeople. These gaps in consumer protection laws are concerning. This needs Minister Thompson’s urgent attention.
A promising article in The Toronto Star published on March 28th, 2017, written by an investigative reporter announced –
“Province Stripping Tarion of Builder-regulator Role”.
It quoted the Liberal minister saying Tarion’s multiple roles as warranty provider and regulator “can give rise to a perception of conflict of interest, and could result in actual conflict, or conflicts of interest.”
This came as no surprise to many observers.
Consumers and provincial MPPs have known for years that Tarion is the only government agency on the planet to have the two conflicting roles of warranty provider and builder regulator. We can thank former Premier Bill Davis for this in his 1976 legislation. And every Premier after him, for doing nothing to fix this.
Consumers have complained that Tarion favours builders, leaves homeowners to pay for construction defects, and doesn’t properly regulate builders. The two-headed monopoly should end, that was a key recommendation of Judge Cunningham’s Tarion review released in March 2017.
What has the government done since then?
In June, 2017, former Premier Wynne’s government put together a “working group” to hammer out recommendations for new legislation in June 2017. But the 10-person group was skewed toward Tarion and the building industry executives, who vowed to fight the judge’s review, and to keep the monopoly. The group was sworn to secrecy and instructed to ignore several of the judge’s key recommendations.
I was the only consumer advocate in this working group, and was told several times, once in a whispered coffee-break encounter by a former Tarion CEO, and another time openly in the working group by a senior Tarion official, to stop critiquing Tarion’s policies. The whole point of new legislation is to do just that. However, anyone who’s ever critiqued Tarion’s policies will tell you what it’s like to be on the receiving end of their displeasure..
The Liberals finally introduced a weak bill 166, in late 2017. It called for a standalone builder regulator, but was silent on most other areas of consumer protection recommended in the judge’s review. All Opposition parties voted against the bill as lacking in consumer protection legislation. Which it is.
But where is bill 166 now?
Most of us think if a bill is passed, it becomes law. Not so. Why are laws designed to protect the consumer so difficult to understand, even by those who’ve read the 93-page bill several times? Consumer protection laws should have a summary at the beginning to inform consumers what the bill says, and what it means to them, and when it will become law.
I called a friend of mine this week who follows Queen’s Park and legislation very closely, to ask him to find out what the current status of the bill is. For us as ordinary citizens, minsters are hard to reach, and they often stay aloof from these questions, unless you’re championing one of their issues du jour, or do something outrageous and get media attention.
Here are five quick points he explained to me:
1) A bill passed by the Legislature comes into force “upon proclamation”, i.e. on a date to be set by Cabinet. It is not law until that date. If Cabinet doesn’t set a date, there’s no law. Some laws may be on the books for years, and never proclaimed. Many bills have been put under review by the new Ford government, if they had not previously been proclaimed.
2) Bill 166 consists of five “schedules”. Each schedule can come into force on a date to be named by Cabinet, the Premier’s inner circle of ministers.
3) For schedules 1 and 2, no date has been named. These will only come into force “upon proclamation”, if a date is set. Schedule 2 is the one which creates two separate entities, but neither of the entities is named. As long as no date is chosen, these schedules are not in force.
4) The current government is under no legal obligation to proclaim anything which has not already been proclaimed. Laws could sit there for years, and ultimately expire. (Even Wynne’s Liberals seem to have been reluctant to proclaim their own bill 166. Maybe they too knew it was a lemon.)
5) Schedule 4 allows for some amendments to the existing New Home Warranties Act, and it came into force when the bill was passed by the Liberals last December 2017, largely due to Opposition parties pushing for this. This allows, in section 5.4, for the Auditor-General to conduct value-for-money audits of Tarion.
This is a ray of light.
No independent authority such as the Auditor-General’s office has ever been able to look at Tarion through the microscope, or analyze its effectiveness or efficiency in carrying out its mandate to protect consumers. Sunshine is a good disinfectant.
Tarion should finally be open to scrutiny, show the public why it denies claims, show if its dispute resolution is impartial, show what it pays executives, and if its board includes any bona fide consumer advocates, etc.
The Auditor-General’s office now has the authority under bill 166 to examine Tarion from a value for money perspective. This audit will apparently be released sometime in 2019.
As for the new PC government, Premier Ford promised to be a leader #ForThePeople , to fight for the little guy. But many of us are seeing strong indications that developers have his ear. His minister’s social media posts show them smiling and socializing with members of the major building lobby groups. Ford is apparently against anything he sees as “anti-business”.
But there’s nothing more anti-business than allowing shoddy builders to sell new homes with construction defects to consumers. No reputable builder would want to do this, or survive in any business doing this.
The problem is Tarion too often shields the bad apples from accountability, uses heavy-lawyering, technicalities of the warranty, and delay tactics to wear down the consumer. This too often results in builders walking away scot free, and the consumer left to pay for their wrong-doing, or facing long, unaffordable legal battles.
The Tarion CEO’s compensation of over a million dollars is made up of 60% bonus, but no one knows what the bonus is based on. With eight builders on Tarion’s board approving it, this is one conflict of interest which begs an answer.
As the Consumer minister said in the 2017 in The Toronto Star article, : “Tarion is too far removed from government”.
True, and that’s bad for business. Without consumer protection, which creates consumer confidence, there will be fewer new home sales.
We have no clear answer why the Ford government is not acting on the legislation by at least choosing a date for proclamation of the other schedules, or announcing it will come with its own bill. Non-answers like we’re studying the issues, etc., are all we have.
The judge’s review already studied Tarion in a year-long review. It takes no more than 3 or 4 hours for an average person to read and understand most of it. Why the delay in implementing it, or even announcing anything whatsoever? The ministry’s website is a big void on this important consumer protection subject.
More years of discussion, debate, and research won’t change the well-known problems with this 40-year old legislation. Many agree with Premier Ford that government shouldn’t have a monopoly in anything. Monopolies are an outdated business model and provide poor service. To open up the new home warranty field for competition would be good for business, and good for the clients of those businesses too. Consumer protection legislation is to protect consumers. Time to do that.
“If the people cannot trust their government to do the job for which it exists – to protect them and to promote their common welfare – all else is lost.” – Barack Obama
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 soil 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
It seems to obvious to say a consumer protection organization should welcome consumer feedback. Like saying 2 +2 = 4. But anyone who’s ever dealt with the Ontario government’s arms-length monopoly, Tarion Warranty Corporation, knows sometimes 2+ 2 can equal 7.
Tarion was entrusted with protecting consumers who discover construction defects in their new homes, and regulating new home builders. You’d think their lifeblood would be consumer feedback. Dialogue with consumers helps companies get constructive feedback, and fix what’s wrong.
Consumers aren’t interested in Tarion’s builder awards, golf tournaments or charity donations. They want what they paid for, a new home free of construction defects, which they’re entitled to under Ontario law.
Tarion blocks consumers on social media if they don’t like their policy critique. The Ministry who’s supposed to oversee this monopoly confuses consumers by taking the side of Tarion, backing off when Tarion says boo, or telling consumers to get a lawyer.
Who’s on the consumer’s side?
Why do we need a government warranty if their advice is to contact a lawyer? Tarion also tells consumers ro take their cases to the License Appeal Tribunal, where consumers lose 85% of the time, or to the internal Tarion ombudsperson, who doesn’t get involved in claims, and reports to Tarion. What good is either?
A case in point is Tarion’s recent “Annual Public Meeting” May 24th, 2018. It’s annual, but not “public” in any meaningful way.
- It’s conducted via webcast only, with no 2-way live communication,
- the board of directors is not introduced to the public;
- only some pre-selected questions sent by e-mail are answered; the answers are rote and predictable, often referring consumers to websites, and some answers are misleading;
- Each year there are technical glitches, this year the sound and video failed and left partly garbled text feeding across the screen. The Tarion-ism “conciliation“, (puzzling even when spelled correctly), was rendered as “con-sill-viation”, the computer not knowing what to make of this either.
Beware of the posturing and spin, which doesn’t give the full picture from the new home buyer perspective. For example:
1) The Chair of the board, one of 8 builders on the board, said Tarion has now “enhanced consumer protection” and “improvement in dispute resolution.” He gave no examples. No one I’ve spoken to in the last year can point to any improvements at all. Saying it’s so doesn’t make it so.
2) The internal Tarion “Consumer Advisory Council” which is supposed to inform board members of the consumer perspective, is smoke and mirrors. The Tarion Chair stated these members have “vast experience” with Tarion, but they are anonymous, and can’t be contacted by consumers. A condo lawyer, a former building inspector, a real estate agent, and “consumer reps”, we are told, are part of this council. I’ve met two of these members by chance at other meetings, and found them alarmingly uninformed about Tarion. One said to me “I don’t know anything about Tarion, I haven’t been briefed yet.” This makes sure they won’t be giving any meaningful feedback on consumer problems. The CEO told me in 2016 he can’t have consumers troubling these council members. This is irresponsible.
3) One pre-submitted question was re developers selling pre-construction condos, then abruptly cancelling the project. Tarion’s K. Brodie, V.P. of Warranty Services, said they can ask the builder for reasons and then review them, but basically they have no power to do anything. So if a builder cancels a project to later re-market it at a higher price, Tarion is a toothless regulator, even if the reasons appear “improper”. What are the consumer’s rights? “Talk to your real estate lawyer“, says Tarion. Consumers who’ve done so have had lawyers literally laugh in their face at the futility of finding any consumer protection here.
4) If Tarion won’t honour your warranty claim, you can go to the License Appeal Tribunal, which is “independent”, says Tarion. What they don’t tell you is consumers lose 85% of these cases. Tarion is always represented by lawyers, and you’re up against 2 sets of counsel, Tarion’s and the builder’s. Most consumers have to self-represent due to the high cost of hiring specialized litigation lawyers. This is not fair or balanced dispute resolution.
5) Tarion’s V.P. Ms. Waraich, past-president of the Liberal Party, seemed pleased to state: “this is the builder’s warranty”. Not the whole truth. The builder pays the warranty fee initially, then passes it on to the consumer in the purchase contract, and it’s usually not itemized. The warranty is mandatory under Ontario law, you can’t opt out of it, you’re stuck with Tarion.
6) Re policy-making, the new chair said Tarion is un-biased toward builders, and develops policies to protect consumers. He gave the usual example of making builders pay for major structural defects, whereas this was previously paid for out of the warranty fund. Not so either. We understand from several sources that good builders were fed up paying for sloppy builders’ work, and wanted them to pay for their own defects, so this new policy was developed. But Tarion spins this as – look how consumer-friendly we are! These are the same board members who try to sell us “builders are all consumer members”, and “builders are the best ones to speak for the consumer.” They seem to think we’re fools.
At the end of the 2-hour webcast, the CEO lamented “Tarion is a misunderstood organization”, and “staff at Tarion truly cares“, “but we can’t be the lightning rod for everything which goes wrong“.
He won’t find a lot of sympathy for this. Tarion is a government-granted monopoly, has no competitors, operates free of any real oversight, pays sky-high “secret” executive compensation, and sits on over $400 million, most of it collected from warranty fees passed on to consumers.
They’ve built firewalls to suppress real consumer feedback, they block homeowners on social media, and hide behind a webcast annual meeting. They drop the “L“-word (lawyer) whenever they can to scare off pesky consumers, block consumer advocates from board or senior positions, and their annual meeting is, frankly, embarrassing to watch.
Why does our Ontario government keep trying to sell us the idea this is a “consumer protection” organization? Because builder lobby groups are deep-pocketed, politically well-connected, and new home building is a huge economic engine the government is reluctant to reign in. And powerful industries don’t like being reigned in either. Consumers have to fend for themselves, and have no access to power-brokers or policy-making. The government is supposed to be on the consumer’s side, but it seems they’ve followed the money and power.
Hopefully a change in government, widely expected on June 8th, 2018, will finally take real action. A new government must show this “black box” for what it really is, another builder lobby group, this one financed by the consumer.
If you buy a newly-built home in Ontario and find construction defects in it, you may be refused compensation by Ontario’s monopoly warranty programme, Tarion. You may then end up as a self-represented litigant (SRL) fighting Tarion and the builder at the License Appeal Tribunal (LAT) to try to get your home fixed.
Most new home buyers can’t afford $450-$800 per hour to hire an experienced lawyer, let alone technical experts. Even for those who could afford $5,000 or $20,000 in legal fees, they also lose time away from work, and go through the anxiety of a complex legal battle, with no way of knowing what the outcome or final costs will be. Most homeowners self-represent. They lose over 80% of the time.
Consumers say “self”-represented, lawyers and judges say “un”-represented. To consumers, the latter implies no one is representing their side, hence the preferred term is self-rep, or SRL.
How can imbalances in the system be righted? How can these problems of real or perceived unfairness be fixed?
Bill Gates once said: “Your most unhappy customers are your greatest source of learning.” I hope the focus group I conducted this month, with a summary below, will encourage legal authorities to listen to consumers and improve access to justice.
I spoke to eight self-represented litigants who’d experienced the LAT, and asked them seven questions. The group of 8 were from varied educational, language and ethnic backgrounds, represented a wide range in age and family size, and were from different parts of Ontario. Some of the cases I followed personally over the last 7 years. I decided to indicate the participants anonymously, as consumers #1-8, since some had to sign non-disclosure agreements, and others feared consequences from Tarion or builders for speaking out.
Here’s a summary of the results:
Question #1: Do you think you got justice at the LAT? Explain.
All 8 participants said no. Reasons ranged from the imbalance of power with two lawyers (builder and Tarion) against the homeowner, and delays caused by engineers, lawyers and adjudicators scheduling their time. Two consumers said they won at the LAT, but later found out that Tarion is not obliged to comply with LAT orders: “enforcement is not within our jurisdiction”, consumer #5 was told.
Two homeowners gave up their case due to motions and high legal costs, one gave up after paying $5,000 for one day, another paid $2,500 for one day and feared running out of money if this continued. Another was asked for a $40,000 retainer with the law firm he was considering using, otherwise they wouldn’t take his case. Tarion refused to give him a Decision Letter, so he couldn’t appeal to the LAT. Consumers can’t use legal fees as a tax-deductible expense as corporations can, so this money comes off their kitchen table.
Why would the LAT hear cases but not enforce their decisions? From a common sense perspective this makes no sense, and it’s also a waste of taxpayer money which funds the LAT.
Consumer #2 was told the Supreme Court of Canada’s decision of Pintea vs. John (regarding a self-rep’s right to get an explanation of the rules and procedures) was “irrelevant”. He also felt the teleconference format chosen for his hearing put him at a disadvantage.
Consumer #5 felt the adjudicators in his multiple hearings were courteous, but the process was too complex for self-reps.
Homeowner #1 said he and his wife were bullied and humiliated by the adjudicator over a 2-year period, and filed a complaint about this, which was dismissed by the same adjudicator.
Why should the same adjudicator act as both judge and jury regarding their own conduct? How objective is this?
All 8 participants cited the imbalance of power between experienced lawyers and self-reps, a 2-against-1 where consumers are out-smarted and out-maneuvered in procedural knowledge and cross-examination skills by both Tarion’s and the builder’s lawyers.
Bill 166, passed in late 2017 by the Liberals, now says consumers don’t have to prove the cause of the defects, only show symptoms. But this creates a further imbalance, since Tarion and builders will certainly get their experts and lawyers to present technical evidence to bolster their own cases, while the consumer will have nothing. This is sending the homeowner into the battlefield with no ammunition.
Consumer #4 said she felt intimidated facing 7 opponents in a pre-hearing, with Tarion lawyers and the builder’s lawyer, and their various assistants and experts all facing her. She felt this was an intimidation tactic, and it prevented her from keeping her composure and making her best case. She was also told she couldn’t bring a friend into the pre-hearing (now called a “case conference”) as moral support. Why? Tarion objected to it, and the adjudicator complied.
Consumer #8 said her husband was forbidden from assisting her during the chief cross-examination because Tarion said her husband was not specifically on title as owner, even though the couple co-owned the home under family law. The adjudicator complied with Tarion’s request.
Consumer #8 said that although Tarion and the builder were able to dismiss her claim for a heating defect using a warranty technicality (late reporting), the LAT should have forced Tarion, as builder regulator, to get the builder to fix the defect. She had to proceed to Provincial court to get this problem addressed, creating another burden on the taxpayer and the busy court system.
2. Did the adjudicator explain legal concepts clearly to you? ie: rules, forms, asking non-leading questions, use of case law, burden of proof…?
Consumer #1 was not allowed to call a witness he’d subpoena-ed because he was told he’d used the wrong form, even though he had served all the documents properly. This is a witness he found critical to his case.
Homeowner #3 faxed her case from a Staples office outlet to the LAT management indicating the number of pages, but later was told the LAT never received some of the pages indicated on the covering sheet, so she was not allowed to use that information in her case.
Homeowner #8 was told her witness with 40 years experience in installing heating systems was excluded from giving testimony at Tarion’s request, because he needed a specific government of Ontario license number to do so.
Several consumers #2, 7, 8, said they had trouble with the confused and sometimes contradictory state of the LAT case law re Tarion appeals. Some adjudicators told self-reps #1, 2, and 7 that case law is “not really relevant” at the LAT.
Two consumers said the opponents delivered over 100 pages of case law to them, in one case on the eve of the hearing. This they found an intimidation tactic. Without legal training, several consumers #1, 2, and 7, who spent many hours preparing their cases, had trouble deciding what was relevant or what applied to their own case. Law students take years to master this, so it seems unreasonable to expect self-reps to do it within a few weeks.
3) Did the LAT staff help you answering questions you had about your hearing?
All interviewees mentioned there is no one at the LAT to explain the Rules of Procedure (which are designed for legal professionals, not consumers). The LAT administrative staff kept repeating “we can’t give legal advice”. This is one of the most frustrating recurring themes SRLs voiced during these discussions. If having a lawyer is essential to justice, why is self-representation allowed at all? Why not provide independent mediation for self-reps?
Or, why isn’t there a duty counsel on hand to answer legal or procedural questions? Wouldn’t this cost less than letting a hearing drag on for 2 years, as in the case of consumers 1, 2, and 7?
4) Did you get transcripts of your hearing when requested?
Homeowners 1, 2 and 7 said that some recordings of their hearings were “missing” from the official record they asked for, and LAT staff couldn’t account for these gaps, other than to say it was possibly “inadvertence” by adjudicators or staff. Two homeowners said they felt the gaps were deliberate, since this was critical information for their cases. Their efforts to get to the bottom of this were unsuccessful.
How can a hearing be appealed if there’s no accurate record of it? We understand the LAT’s oversight body, SLASTO, is now considering eliminating all recordings of LAT hearings. Who would benefit from that?
5) What other experiences can you share which might help make this process more balanced and fair for self-rep litigants?
Several homeowners struggled with trying to formulate non-leading questions in cross-examining their witnesses; one said she found out too late she was allowed to ask leading questions to the opposing side’s witnesses. She felt in a straight-jacket all through the hearing because she thought this restrictive rule applied to all questioning.
Four of the eight consumers said they were rattled and put off balance by frequent interruptions by opposing counsel due to objections. Two of the consumers felt adjudicators always allowed the objections of Tarion/builders, but none of theirs. This contributed to their feeling of not being heard or understood.
Several consumers had difficultly getting expert witnesses or engineers to testify for them against Tarion. Consumers 1, 4, 6, 7, and 8 experienced this. Experts are reluctant to testify against a powerful government monopoly and builders, since these corporations are the source of future business for them, but they are unlikely to ever see the homeowner again.
Consumer # 1 said some of his well-meaning actions were misinterpreted by the adjudicator, who took them as a sign of disrespect. For example, when he tied to give documents to the opposing counsel during the hearing, he walked behind the adjudicator’s podium, thinking this was more respectful than walking in front. But the adjudicator took this as a sign of disrespect and sharply admonished him in front of all present. When he used the term “Madame ..X.. ” to speak to her instead of “Madam Vice-Chair”, she took this as an affront to her status, and sharply admonished him again in front of all present. His attempts to confer with his wife during difficult moments in the hearing were also interpreted by the adjudicator as disruptive and disresepctful, while lawyers do this all the time. Shouting at and admonishing a self-rep in front of the opposing parties weakens their resolve and is highly intimidating.
Seven of the eight consumers said the process felt unfair, complex, and out of balance.. Some of the reasons are already outlined above. Four consumers said they felt the adjudicator reacted more favourably toward the parties represented by counsel and showed more respect and collegiality toward the lawyers than the self-reps. They often used terminology and referred to statutes and case law which are foreign to even the best prepared self-reps, terms like “estoppel”, for example.
Several of the participants explained that they had much more at stake than the lawyers, adjudicators and LAT staff. A new home is the biggest investment they make in their lives, while to a lawyer this is just another case. They’re paid to win, to get claims dismissed for their client, not get homes fixed or deliver justice.
The reason the legal profession was created in the first place was to remove the client’s emotional involvement, and focus only on the facts and the law. But self-rep can’t do that: they have a very personal stake in the trial. They return each day to a newly built home with construction defects; they want to get what they paid for and are entitled to by law, but they’re losing time and money trying to do this in a game with rules which are foreign to them. Like sending ordinary citizens into an operating room for a heart transplant, with no training.
I hope this informal focus group can be the beginning of a dialogue between end-users and service providers. The most dissatisfied customers of the legal business are those who know what needs to improve. There are many suggestions here which don’t require a change in legislation or years to implement. But unfortunately the the self-rep still seems to be viewed with suspicion by the legal profession.
We’d all hire the best lawyer on the planet if we could afford it, since that would greatly improve our chances of winning. But the cost of lawyer-ing and the time spent doing it shouldn’t exceed the size of the problem. The playing field has to be fair and balanced, and the consumer shouldn’t feel the goalposts and the rules are being shifted to his disadvantage.
Legal reform and regulatory bodies should include the victims of the system in their policy discussions in order to get it right going forward. Otherwise we’re creating more problems, overburdening the taxpayer and the court system, creating more financial and emotional stress for families, and we’re still Venus talking to Mars.
Anyone who’d like to do a follow-up focus group, or a discussion about this one, please get in touch by posting a comment on my blog. Lawyers, judges, and law students welcome. Thank you to the participants, and my readers.
The Liberal government’s Bill 166, the “Strengthening Protection for Ontario Consumer’s Act” unfortunately adds to a decade of broken promises on new home buyer protection in Ontario.
The bill received zero support from any of the Opposition parties when it was pushed through the Legislature in December 2017 by the Liberal majority. It was extensively critiqued for months by Opposition MPPs, the Ministry Critics and consumer advocates. It doesn’t fix the decades of problems consumers have had with dispute resolution, conflicts of interest, and lack of transparency of this government monopoly, Tarion.
In December 2016 Premier Wynne was given a clear road-map for solving these problems: the Tarion review conducted by justice Cunningham after a year of research and consultation, costing the taxpayer $750,000.
But without explanation which the public deserved, Wynne decided to ignore most of the judge’s 37 recommendations, siding with industry and Tarion interests.
Leading up to the bill, her government put together a consultation group skewed toward the building industry and Tarion, and limited the scope of discussions to favour a pre-determined outcome which ignored most of the judge’s recommendations. I was asked as the only consumer advocate to volunteer to participate in this consultation. I voiced clear objections to the lack of consumer input and the limited scope of discussions. To no avail.
Bill 166 leaves Tarion largely intact. It does not include consumer advocates on Tarion’s board, (don’t dare touch our builder board members!, warned the builder lobbyists), and it gives builders their own regulator, with minimal independent oversight.
The most frustrating issue for consumers over the years has been dispute resolution. This bill does nothing to fix that, and may even make things worse.
– The existing dispute resolution process is not transparent or balanced and seems to favour Tarion’s and the builder’s interests. There is no clear procedure or transparency in the claims process, or reliable builder track record.
– The License Appeal Tribunal is maintained as the forum for dispute resolution. But consumers can’t afford experienced lawyers, and Tarion and builders always use lawyers to fight claims.
– Making the internal ombudsperson mandatory is no help. This office has existed at Tarion since 2009, and doesn’t get involved in dispute resolution. So what good is it? A time-waster and source of extreme frustration for anyone who’s had experience with it. This is one of the red herrings in the bill, giving consumers the impression something is being improved, while it is not.
– Bill 166 provides for oversight of Tarion by the Auditor-General, but this is insufficient. The Liberals refused to include oversight by the Ombudsman of Ontario or applicability of Freedom of Information Act in the bill. Without explanation. Who will oversee whether claims are handled fairly, or have been improperly dismissed or inadequately compensated, and who will assure these are listed on the builder’s track record?
– The “AA” model which Tarion falls under, an “Administrative Authority”, has far too weak oversight. Responsibility for consumer protection is a government responsibility, but it’s being out-sourced to arms-length agencies. Why would anyone be in favour of less transparency and accountability? Monopolies enjoy their monopoly power, government likes to avoid liability, and industries like to control their industries. But who’s protecting the consumer?
– Bill 166 says consumers won’t have to prove the underlying cause of defects in their new homes. But Tarion and builders certainly will have this proof, with the legal and technical resources they have. This is like sending the consumer into the battlefield with no ammunition. Imagine the consumer saying my basement is leaking, and Tarion and the builder saying that’s normal, here’s the technical report which proves it. End of story. How does this make the process more balanced and fair?
Tarion is still telling consumers they can go the LAT (License Appeal Tribunal) to have disputes resolved, while omitting to say consumers lose 90% of these cases. Tarion’s CEO says this is an informal consumer-friendly forum, while consumers say its like sending them to the slaughterhouse, financially and emotionally. The taxpayer also subsidizes Tarion’s dispute resolution by funding the court system. This is unfair and unnecessary, given the $400+ million Tarion has in its coffers.
Premier Wynne has been asked these questions at her townhall meetings within the last few months. She says she’s recognized the problems and fixed them. No one is fooled by this. Asked why no one voted for bill 166, except her own party, she clearly sensed a danger zone, and diverted to a softball question from a young person who asked about getting into politics. (Brampton townhall, Dec. 13, 2017).
It seems the Wynne government thought they could fool us with this fake “consumer protection” bill.
Bill 166 should be repealed and replaced by the party who wins the up-coming provincial election in June 2018. Consultations should be re-done to include a meaningful balance of consumers and a full discussion of the 37 recommendations of the judge’s Tarion review.
As a political insider said last month, this bill is a nothing burger.
A half-baked one at that.
As 2017 closes, I want to thank all the consumers and consumer advocates who’ve worked so tirelessly for years to get the Ontario new home warranty legislation fixed. Everyone has contributed in their own special way, based on time and resources available. You’ve made a big impact on getting this broken system fixed.
I once asked the Minister of Consumer Services this question: if building lobbyists and Tarion are looking after their own interests, who’s looking after the consumer’s? It seems no one. We expect government to do this, but in my 7-year experience, they seem to understand the builder’s/Tarion’s perspective better than the consumer’s. There are few bona fide consumer advocates at policy-making levels, or none at all. For years, builder lobby organizations, Tarion executives, some condo lawyers, and ministry officials have tried to tell us they’re all consumer advocates. About as credible as the fox saying he’s protecting the chicken coop.
2018 may present new opportunities for a new bill which actually, finally, protects consumers. If the current Liberal government is not re-elected in June 2018, there may be a chance to seriously amend bill 166 to include more of the judge’s review recommendations, or bring new legislation which is consumer-focused.
Premier Wynne, at her town hall meetings these last two months, has been driving the theme of “fairness”. However she seemed irritated by questions about Tarion, on Nov. 20 and Dec. 13. She side-stepped policy questions put to her, and responded with – I’ve already spoken to “you”, I’ve already answered this, we’ve fixed the problems, speak to my staff, …. next question. This deflection reinforces the impression there’s something to hide in how the new legislation was arrived at. Such as stacking the consultations in favour of the industry and Tarion, and limiting the scope of discussions to produce the government’s desired outcome.
If Premier Wynne is really concerned about fairness, why wouldn’t she appoint a corporate monitor at Tarion – right now – reporting to the ministry to oversee fairness in dispute resolution until the new legislation takes effect in 2020? Three more years of waiting is unfair to consumers suffering under the current system. The judge’s review cited conflicts of interest at Tarion, yet consumers are supposed to just grin and bear it until 2020, while paying for this mandatory warranty under Ontario law. Leaving consumers vulnerable with no one on their side is not fair. The government not taking immediate action to protect consumers, knowing full well the existing conflicts of interest, is doubly unfair, even irresponsible.
To all those of you who’ve attended town halls, the judge’s consultations, contacted or visited your MPPs, or joined discussions on Twitter, Facebook, or blogs, you’ve made a big impact this year. Thank you. If we can’t get our own home defects fixed, or have been gagged by non-disclosure agreements, we can still help family and friends who are the new home buyers of the future.
Bill 166 may not be final; its failure to protect consumers may not be fatal; your work and determination will help fix the problems. Thank you to all, and best wishes for a healthy, safe, and consumer-friendly 2018.
(Quotation from Winston Churchill)
In 2018, please join the discussion on my second Twitter account: @ONTConsmrRights
(Cartoon from The New Yorker magazine)
One step forward, five steps back
At the highest levels of the legal profession, alarm bells have been ringing for years about the growing access to justice crisis for ordinary middle-class people who can’t afford the high hourly cost of lawyers to resolve everyday legal problems. Access to justice in Canada has been described by senior officials as “abysmal”.
Lawyers, judges, and lawmakers have all been urged to be part of the solution, not add to existing problems.
Premier Wynne, her Attorney-General Mr. Naqvi, and Minister of Consumer Services, Ms. MacCharles, seem to have not received the memo.
Here’s a timeline on an access to justice ticking time bomb the Wynne/McGuinty government has known about for decades, has publicly acknowledged, but failed to fix.
1) After years of complaints from consumers that they can’t get their new home construction defects resolved through the government’s monopoly, Tarion Warranty Corporation, Premier Wynne ordered a review of this arms-length agency of government in Nov. 2015.
2) The year-long review was conducted by a well-respected judge, consulted broadly with stakeholders, cost $750,000, and was released in 2017. It found “conflicts of interest”, “fundamental problems” with Tarion. It advised 37 changes, the main one to abolish the monopoly and bring in a competitive model for new home warranties.
3) The government brushed aside most of the review, without explanation, especially the key advice to abolish Tarion’s monopoly.
4) A consultation group was set up by the Ministry of Consumer Services, and was presented with a different framework than the judge recommended. The participants were stacked toward Tarion, those with business ties to Tarion, and members of the legal profession. Government lawyers were also present. Much of the judge’s key advice was ruled out of scope, for unexplained reasons.
5) The government introduced new legislation, bill 166, in November 2017, which gave the industry and Tarion what they wanted: to keep the monopoly Tarion, and give builders their own regulator. Consumers were left wondering where’s the consumer protection?
6) It seems we’re back now to where we started, a few baby steps forward, giant steps backward. Back to the Tarion in-house legal department protecting Tarion’s interests not the consumer’s, a monopoly with minimum oversight paying cushy executive salaries, the License Appeal Tribunal for disputes where the consumer loses 90% of the time, and the same internal ombudsperson reporting to Tarion, not perceived by the consumer as independent or impartial, and who avoids getting involved in warranty disputes.
Now the consumer won’t have to prove the cause of the defects apparently, but Tarion and builders undoubtedly will, since their interests are to deny claims and limit the amount of pay-outs, leaving consumers with one of the conflicts of interest the judge highlighted.
In order to be credible and balanced, dispute resolution has to be independent, impartial, cost-efficient, and timely. Each party has to have equal access to independent experts, and fair and balanced advice.
Bill 166 seems totally inadequate and overly vague. It’s fake consumer protection, with the usual posturing about consumers first, fairness and transparency, without delivering much of any of it.
This bill may lead to more problems. There’s still no fair, timely, cost-efficient, and balanced dispute resolution process which is clearly defined for consumers to rely on. Telling consumers they don’t have to prove the cause of the defect, while the opponents most certainly will, is not leveling the playing field, but shifting the goalposts, giving the most vulnerable party a false sense of security.
This government will likely pass bill 166, despite important amendments urged by Opposition MPPs, consumers, and consumer groups this week in depositions to the Social Policy Committee.
Lawmakers had one chance in 40 years to fix the Tarion problem once and for all. The problems and solutions were objectively researched and presented to Premier Wynne, Ministers MacCharles and Naqvi, and government lawyers. Instead of fixing the problems, they seem to have left us with more access to justice misery.
Dear Premier Wynne and Minister MacCharles,
Bill 166 which you introduced last week to address years of complaints about the Tarion monopoly has largely ignored Justice Cunningham’s review released in March, 2017.
Concerns I raised on behalf of consumers in the consultations you conducted in June through August this year have all been brushed aside.
To reiterate, here are a few major consumer concerns with Bill 166:
- There is no clearly defined purpose statement in the bill. This has been an on-going concern with the former legislation, the ONHWPA. The judge’s 2017 review said new legislation should clearly state the consumer protection intent of the act. Bill 166 is called “Strengthening Protection for Ontario Consumers”, and includes concert ticket purchasers, who clearly don’t have the same risk profile, or anywhere near the long-standing history of complaints as new home buyers.
- The judge’s #1 recommendation was the multi-provider model for new home warranties. You ruled this out of scope for the ministry consultations, providing no reason. It was clear during consultations that Tarion wanted to hold onto it’s monopoly. How does protecting Tarion’s monopoly protect consumers? You publicly stated, Premier Wynne, (April, 2013), “the days of monopolies are done.” You haven’t explained why this doesn’t apply to Tarion.
- The “modern transparency and accountability measures” you promised in March 2017 seem to be just one: the Auditor-General’s power to conduct audits. This isn’t nearly enough. It ignores consumer and Opposition MPP calls for oversight by the Ombudsman of Ontario, and applicability of the Freedom of Information and Registered Lobbyist Acts. What are your reasons for not including these? Bill 166 states (pg. 43) that Tarion fees passed on to consumers “are not public money“. Yet consumers see them as such: they are mandatory, passed on to consumers by builders, money which in turn funds the warranty. This is an indirect tax we are required by law to pay. If not the public’s money, whose money is it?
- The Administrative Authority model you’ve chosen to continue has been critiqued for over a decade as “rowing and steering” at the same time, i.e, setting policy and moving it along with minimal checks and balances. Bill 166 brings consumers little proof Tarion will act in the public interest. The judge’s review cited problems with a potential conflict in Tarion both protecting the warranty fund and deciding whether to pay out claims. This remains.
- Builders still have a heavy presence on Tarion’s board. Where is the mandatory consumer representation on the board, a major concern for over a decade?
- To say (pg. 85) consumers don’t have to prove the cause of defects may seem positive, but there’s no assurance Tarion won’t use its legal department or financial resources to dismiss legitimate claims. Where is the transparency for consumers to find out if claims are handled in a fair and balanced way? The internal ombudsman, reporting to Tarion’s board, has not been perceived as balanced and impartial. Yet you chose to keep this position. A compliance officer reporting to the ministry would have provided more independence and objectivity for consumers.
- You’ve changed the wording of a major consumer protection clause (section 47 (b) because you say it had to be made gender-neutral. This has unfortunately watered-down the consumer protection content of the original wording. Changing the words “defect in workmanship“ to “built in a skillful way” is much more vague and easier for lawyers to manipulate to their advantage.
- The License Appeal Tribunal has been preserved as the appeal mechanism for claims, despite a decade of concerns that homeowners lose over 90% of the cases.
- The regulation-making authority of Tarion has been maintained, (pg. ii), despite consumer concerns. The annual oversight fee Tarion pays to the ministry for its own oversight has also been maintained. Board composition requirements (pg. 8) also seem un-changed, with no consumer advocates required.
Premier Wynne and Minister MacCharles, as the only consumer advocate in your 11-person working group, I strongly and repeatedly voiced concerns about ignoring the judge’s review, limiting the scope of discussions, and weighting the participants to favour Tarion and industry interests. I am told, I was “heard“, but nothing was done.
Builders got what they wanted from this bill: their own regulatory authority. Tarion got what it wanted: to keep its powerful monopoly with minimal oversight. What meaningful protection did consumers get?
You say nothing will be implemented until at least 2020. Regulations will take even longer. What of the consumers struggling under the current weak legislation? This ignores the urgency of these problems and leaves consumers to deal with 40-year-old legislation which doesn’t protect them in the biggest investment they make in their lives. An over-priced concert ticket may be forgotten five years from now. A new home with unresolved defects may bring financial and emotional hardship which can last a lifetime.
Bill 166 needs significant amendments to gain credibility among Ontario’s new home buyers.
B.M.C., Oct. 10, 2017