June 19, 2004
No clear winners in this builder-owner wrangle
It's time to play You Be The Judge. Here's a case that highlights the
contrasting expectations of buyers who want their homes to be flawless,
and builders who believe they are delivering the best homes they can.
You're buying your dream home and decide to blow the bundle on polished
granite flooring throughout the main floor. The builder quotes $34,500.
You figure why not?
After you take possession, you notice several granite tiles are cracked,
some are loose, and the grout is missing in several areas.
You file a complaint with the Ontario New Home Warranty Program (now
Tarion Warranty Corp.). ONHWP's position is the ``cracks'' are merely
"natural fissures" it deems normal in granite and marble.
Unhappy with the result, you hire a lawyer to sue the builder for
damages for breaching the agreement of purchase and sale.
The case gets to trial. Over the first four days, the judge hears the
evidence of the parties and two expert witnesses.
The owners' expert is a home inspector who reports evidence of cracked
granite tiles and "deflections" visible in all directions. He also notes
loose grout in various areas. The door sills to all adjacent rooms are
missing, he says, creating a trip hazard.
The builder hires a chartered surveyor who testifies the tiles were
installed and laid to normal industry standards. The micro-cracks in the
grouted joints, he says, are from normal "seasonal movement in the house
frame" and daily wear and tear.
As the trial judge, you are now faced with the conflicting expert
evidence of two witnesses. Uncertain who to believe, you adjourn the
trial for four months and order a third expert report this one from an
independent expert associated with the Terrazzo, Tile and Marble
Association of Canada (http://www.ttmac.com).
When the trial resumes, the independent expert testifies the granite
tile is not defective, nor of inferior quality. Aesthetically, he says,
the appearance of the floor is satisfactory, but some of the wider
micro-fissures detract from the overall appearance.
He explains natural fissures or faults occur in the formation of granite
and can resemble cracks. Fissures, he says, are natural in many types of
The granite floor has natural fissures, says the expert, but only one
cracked tile. All other cracks were micro-fissures.
In essence, the expert testifies good tiles were properly installed, but
remedial work has to be done. He defines remedial work as something that
should not have been needed to be done.
The facts reported here are true, except for the upgrade cost which I
doubled to account for inflation since the house was built in 1991. The
facts are taken from the court's decision in a case where Rocco and
Margaret Smeriglio sued the builder of their Aurora dream home.
You're the judge. What do you do?
Justice Douglas Lissaman had to exercise the wisdom of Solomon. In a
masterpiece of understatement, he wrote: "In my view the parties to this
case became allergic to each other. The builder clearly thought the
Smeriglios were being unreasonable and demanding. On the other hand, the
Smeriglios thought the defendants were being sloppy and not standing
behind their work."
Ultimately, the judge decided some remedial work was required, and he
awarded the plaintiffs $6,000 in damages against the total upgrade cost
The money was awarded as compensation for the floor that was improperly
installed and for the inconvenience of having remedial work done and
having to live with the defects.
The court decision didn't say who had to pay costs, but my guess is that
both parties lost money after paying their lawyers for a five-day trial.
Sometimes, nobody wins in court cases no matter what the judge
decides. This case points out the need for builders and homeowners to
act reasonably, realistically and responsibly in resolving their
Bob Aaron is a
Toronto real estate lawyer. Send questions to Bob Aaron, 10 King Street
Toronto, Ontario M5C 1C3,
or by e-mail to bob@ aaron.ca , phone 416-364-9366, or fax 416-364-3818.
Bob Aaron is a Toronto real estate lawyer. He can be reached by email at firstname.lastname@example.org, phone 416-364-9366 or fax 416-364-3818.
Visit the Toronto Star column archives at http://www.aaron.ca/columns for articles on this and other topics or his main webpage at www.aaron.ca.