As consultations in the Tarion review kicked off in Toronto last week, the former trial judge commissioned to independently examine the Ontario New Home Warranties Plan Act and the corporation that administers it said that he has assured those who have expressed concerns that he has “no marching orders.” In an interview April 13, in between industry and public consultation sessions, Justice J. Douglas Cunningham told CondoBusiness that he would not have accepted the assignment if it came with constraints.
“I can look at every aspect of Tarion, from the governance issues, to the structure, to the day-to-day operations, and make recommendations accordingly,” said Justice Cunningham. “What I recommend may or may not be accepted by the government, but that’s not for me to be concerned about.”
In his interview with CondoBusiness, Justice Cunningham identified accountability, communication and dispute resolution as some of the key issues on his radar. He also said he intends to consider the big questions, such as whether new home warranties should be delivered by the private sector, as occurs in some other jurisdictions, and whether Tarion’s regulator and warranty provider functions should be broken up.
Focus groups occurred in the two weeks leading up to the industry and public consultations, including one that brought together condo board members as well as engineering, legal and property management professionals. Some of the views that Justice Cunningham said were expressed to him there were that condo conversions aren’t covered but they should be, that deposits were being released too soon and that the warranty period should be extended.
Six professionals, representing a mix of homebuilding, engineering and legal voices, participated in the industry/organization consultation in Toronto on April 13. Some of the challenges they highlighted included that the Tarion process is confusing for consumers and that decisions about what is and isn’t a warrantable item are inconsistent.
Of the public consultations to follow, Justice Cunningham said he anticipated that he would hear from consumers who have interacted with Tarion.
“That’s good because I think from those individual experiences we can learn how the system operates, and obviously some of these people are very unhappy about how they’ve been treated,” he said. “I’ll hear them.”
However, the Canadians for Properly Built Homes, who have met with Justice Cunningham, remain concerned about the way consumer input is being collected. In an April 14 email to Justice Cunningham, Karen Somerville, president of the non-profit organization, raised alarm about the turnout of only a handful of consumers for the public consultations in Toronto.
“Toronto is a key location, with considerable shoddy construction and many problems with Tarion reported in the media for the past few years now,” she wrote. “The room should have been overflowing with consumers.”
She renewed earlier calls by the Canadians for Properly Built Homes for Justice Cunningham to confidentially survey consumers, obtain appropriately redacted copies of relevant consumer correspondence to the ministry over the last decade and offer at least a limited number of one-on-one meetings to consumers.
In the April 13 interview, Justice Cunningham said that he’s unable to meet with every unhappy home buyer. He explained that he has tried to meet one-on-one with people who aren’t just sharing individual situations, but who may have gone through a personal experience with Tarion and now also represent other consumers.
“Look, there are some people out there who, no matter what I do, or no matter what Tarion does, or what anybody does, are never going to be completely satisfied with the process, and I understand that,” he said, “but I’m going to strive to make recommendations that will make whatever it is I recommend in terms of Tarion a better organization, a fairer organization and an organization that is perhaps a bit more transparent than what we have now.”
Justice Cunningham said that he is still in a fact-finding phase and couldn’t speak to what that might look like. He was originally scheduled to finalize his report with recommendations to Minister of Government and Consumers Services David Orazietti before June 30 but now expects to so in the fall.
Michelle Ervin is the editor of CondoBusiness.
I am shocked by the small turnout at Justice Cunningham’s Toronto and Mississauga town hall meetings. Attendance at Tarion’s Annual Public Meetings speaks to the fact that there is a multitude of new home/condo buyers dissatisfied with the status quo. Are the time and place of these town hall meetings being sufficiently advertised? I do not doubt that Justice Cunningham will conduct this review of Tarion with integrity but I am concerned about the government’s intent. Will Justice Cunningham’s request for additional time be honoured?
I attended the town hall in Mississauga. On the onset, attendees were told that the information expressed would be confidential and private. However, I had serious misgivings about one of the attendees. I felt that an individual acted in a manner that was suggestive of one there to “take” rather than provide input to the Tarion Review. The next day, I voiced my concerns of privacy and confidentiality to the Justice. I was told that the town hall meetings are open to everyone and they did not want to turn away people. The Justice expects that individuals would voluntarily abide by the ground rules and NOT RECORD the meeting. However, they cannot guarantee this and stop it from happening!
My thoughts are that the Justice says that the “open public consultation” are confidential and private. But the very open public nature of these consultations is contrary to the concept of confidentiality and privacy. I suggest other alternate ways that a homeowner can bring their input to the Justice that will be confidential and private and thus people can freely speak. Thus feedback would be accurate and reflective when people have no concerns of retribution.
We hope Justice Cunningham’s review will bring much-needed changes to this un-transparent monopoly, at arms-length from meaningful government scrutiny. No doubt builders, Tarion, engineers, lawyers, and real estate agents will make their interests understood to the reviewer, that’s part of their jobs. But this is consumer protection legislation, and the most vulnerable party is the consumer. It’s hard for homeowners to speak out publicly against Tarion and builders, since the latter are often lawyered-up and ready for an adversarial fight. Also, many consumers in the same development have been stifled by other owners who don’t want anyone spilling the beans publicly on shoddy building, since this could affect re-sale values. One-on-one confidential meetings/phone interviews with consumers are important to get a the full picture. When a consumer buys a new home, he pays the entire food chain: builders, lawyers, real estate agents, engineers, government, and Tarion. Consumers want what they paid for, a new home “free of defects in workmanship and materials”. The Tarion/builder culture of portraying some consumers as perpetual malcontents is part of the builder-friendly culture many see embedded at Tarion. But blame the victim, shoot the messenger cultures are unhelpful and don’t solve problems: they often create more. Maybe competition from other warranty providers would bring better consumer protection to the new home warranty system in Ontario. Without the little guy spending his life savings on a new home, the whole food chain is out of a job.
It is troublesome to try to find logic in why a body would commission an investigation of its own responsibility area with a genuine intent to reform if found inappropriate. Will Justice Cunningham ‘s recommendations, as meritorious as they may be , in the end be made public and does the Ministry have power of ratification over the report before it is publicized ? NO DOUBT that Tarion and its system needs REFORM and TOTAL OVERHAUL , the first being in our estimation that it needs to be either the ” building industry regulator ” or the ” homeowner protector ” ; how in all sanity can it be both ? We have told our stories and the basics of all stories are similar enough to be understood and if there is a ” political ” will to do so , to warrant this corrupt system modification.
If Justice Cunningham reads all the emails, FB postings and letters he has received, it should be evident what has and continues to go on within Tarion, the manner in which the new home buyer has been treated and the injustices that exist. While it is unfortunate attendance couldn’t have been higher, many people have already expended far too much time fighting the good fight and have clearly expressed their disgruntlement loudly and clearly. Maintaining confidentiality and one’s privacy plays a big factor in many folks’ hesitations to speak in a public forum. If Justice Cunningham feels he hasn’t been able to gather adequate information from those letters/emails and FB postings, he should request individuals provide contact telephone numbers and make arrangements to speak with each person on a one-to-one basis AND request an extension of the timeframe originally set out to complete his investigation.
Nothing more than a charade to appease the masses. It doesn’t matter what Cunningham recommends or doesn’t, the fact remains that Government will protect the Tarion feeding trough no matter what. The consumer will never really know his true recommendations.
We have sent our written submissions to Mr. Cunningham and hope he will consider them.
Quite simply Tarion is a monopoly in Ontario that makes their own laws which regulate how they administer the warranty.
The Board of Directors at Tarion is controlled by Builders and has little or no consumer advocates.
The result is a warranty that puts Tarion and the Builder first and the homeowner second.
The current system needs fundamental change and I hope Mr. Cunningham has the integrity to say so.
Justice Cunningham has been unable to accommodate our request to speak with him one on one even by telephone. We understand he must be busy we hope learning from homeowners what they experienced if they had to deal with Tarion. We hope he will take into consideration our written submissions for his investigation.