Myers v. Ontario New Home Warranty Program, (1998) 113 O.A.C. 329 (DC)

• Judge: Kerr, Rutherford and Roy, JJ.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: April 29, 1998
• Jurisdiction: Ontario
• Citations: (1998), 113 O.A.C. 329 (DC)

Myers v. New Home Warranty (1998), 113 O.A.C. 329 (DC)

MLB headnote and full text

Temp. Cite: [1998] O.A.C. TBEd. OC.003

William and Sharon Myers (appellant) v. Ontario New Home Warranty Program (plaintiff/respondent)

(Court File No. 1221/96)

Indexed As: Myers v. Ontario New Home Warranty Program

Ontario Court of Justice

General Division

Divisional Court

Kerr, Rutherford and Roy, JJ.

September 10, 1998.

Summary:

Homeowners appealed a decision of the Commercial Registration Appeal Tribunal denying their claim under ss. 14(1)(a) and (b) of the Ontario New Home Warranty Plan Act for the costs of completing the con­struction of their home and correcting defects after a contractor abandoned the work.

The Ontario Divisional Court, Roy J., dissenting, dismissed the appeal.

Building Contracts - Topic 3369

Liability of builder - New home warranty programs - Interpretation of legislation - Homeowners claimed under s. 14(1)(a) of the Ontario New Home Warranty Plan Act for the costs of completing the construction of their home and correcting defects after a contractor abandoned the work - The Commercial Registration Appeal Tribunal (majority) held that the contractor was not a "builder" in accordance with s. 14(1)(a) because the homeowners undertook plumb­ing and heating work themselves - The Ontario Divisional Court dismissed the owners' appeal where the majority's view was not unreasonable or incorrect - The owners took over a significant portion of the con­struction - Thereafter, the contractor no longer met the definition of "builder" as he was no longer responsible for the per­form­ance of all the work and the supply of all the materials necessary to build the house - See paragraphs 1 to 14.

Cases Noticed:

Grudzinski et al. v. Ontario New Home Warranty Program (1997), 32 O.R.(3d) 376 (Div. Ct.), refd to. [para. 25].

Director of Investigation and Research, Competition Act v. Southam Inc. et al. (1997), 209 N.R. 20; 144 D.L.R.(4th) 1 (S.C.C.), refd to. [para. 25].

Morin v. Ontario New Home Warranty Program (1992), 54 O.A.C. 347; 89 D.L.R.(4th) 122 (Div. Ct.), refd to. [para. 33].

Counsel:

Shawn J. O'Connor, for the appellants;

Netanus Rutherford, for the respondent.

This appeal was heard on April 29, 1998, before Kerr, Rutherford and Roy, JJ.A., of the Ontario Divisional Court. The judgment of the court was released on September 10, 1998, including the following opinions:

Rutherford, J. (Kerr, J., concur­ring) - see paragraphs 1 to 15;

Roy, J., dissenting - see paragraphs 16 to 35.