2017 ONSC 2503, 2017 ONSC 2503

CITATION : Birani v. Tarion, 2017 ONSC 2503 COURT FILE NO.: 51/16 DATE: 20170421 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Birani Homes Limited (Appellant) and Tarion Warranty Corporation, V. Joshi and J. Joshi (Respondents) BEFORE: Templeton J. COUNSEL: B. Cowan and Valerie Crystal, for the Moving Party, The Licence Appeal Tribunal C. Campbell, for the Responding Party (Birani Homes Limited) D.

Peck, for the Responding Party (Tarion Warranty Corporation) E N D O R S E M E N T [ 1 ] The Licence Appeal Tribunal (the 'Tribunal") seeks an order granting the Tribunal leave to intervene, to file a Factum and to present oral argument at the hearing of an appeal launched by Birani Homes Limited ('Birani'). Birani is opposed to this motion. Background [ 2 ] Birani has appealed a decision of the Tribunal under the Ontario New Home Warranties Plan Act (the ' ONHWPA ') [1] directing the Respondent Tarion Warranty Company ('Tarion') to pay $300,000 to the Respondents V. and J.

Joshi for the replacement of their house foundation and interior concrete walls. Birani had been added as a party to the proceeding before the Tribunal. [ 3 ] Birani has raised twenty-two (22) grounds of appeal. According to counsel for Tarion, Tarion has yet to determine whether it will oppose any or all of these grounds of appeal at the hearing. [ 4 ] The Tribunal takes no position with respect to the ultimate disposition by the court hearing the appeal. It does seek to intervene at the hearing, however, as a friend of the court with respect to the following issues: (

a) the standard of review applicable to the various grounds of appeal raised; (

b) the Tribunal's jurisdiction under the ONHWPA to dispose of appeals arising out of a year-end claim and the Tribunal's powers in disposing of a year-end claim versus a major structural defect claim; (

c) the Tribunal's Rules of Practice and Procedure regarding its discretion to add parties to a proceeding and the Rules applicable to disclosure; (

d) reasonable apprehension of bias; and

(

e) any other information that may assist the court. [ 5 ] The Tribunal submits that in the Notice of Appeal, systemic and jurisdictional issues have been raised. A specific number of grounds of appeal concern the administrative regime of the Tribunal. It has special expertise with respect to the

interpretation of its powers under the ONHWPA and is able to provide useful and important information to the Court in this regard. [ 6 ] As indicated, Birani is opposed. Birani submits that this appeal concerns whether the Tribunal erred in interpreting the statutory requirements for a successful claim for compensation under the ONHWPA as a result of which Birani was found liable for the amount Tarion was ordered to pay to the Respondents V. and J. Joshi. [ 7 ] It is Birani's position that: (

a) the submissions proposed by the Tribunal will duplicate the submissions of the parties at the hearing; (

b) the Tribunal is not in a unique position to offer special expertise that the parties themselves are unable to offer to the Divisional Court hearing the appeal; (

c) there is no evidence to suggest that the parties to the appeal or the Court is incapable of properly interpreting the ONHWPA or that any submissions will be anything other than redundant and prejudicial to Birani; (

d) there is no evidence to suggest that the Court would benefit from the Tribunal's intervention or that its participation is required with respect to the ground of appeal concerning a reasonable apprehension of bias; (

e) it is inappropriate and unprecedented for the Tribunal to be granted standing to intervene and participate in an appeal of its own decision particularly in light of the issue of tribunal impartiality. In such circumstances, clear prejudice would be caused to Birani. [ 8 ] Tarion takes the position that it does not follow that the Tribunal would not be helpful to the Court at the hearing of the appeal simply because it has not yet determined a position regarding all grounds of the appeal advanced by Birani. Tarion consents to the Tribunal appearing at the hearing of the appeal as an intervenor.

Analysis [ 9 ] The test for the intervention of this tribunal as a friend of the court is set out in Rule 13:02 of the Rules of Civil Procedure [2] . The factors to be considered were explained with approval by the Ontario Court of Appeal in Peel (Regional Municipality) v. Great Atlantic and Pacific Co. of Canada Ltd. [3] .

These factors include the nature of the case, the issues which arise and, the likelihood of the moving party to be able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties. [ 10 ] The propriety of the participation of an administrative tribunal on an appeal from the tribunal's own decision was considered by the Supreme Court of Canada in Ontario (Energy Board) v. Ontario Power Generation Inc . [4] .

In that case, the court held that "because of their expertise and familiarity with the relevant administrative scheme, tribunals may in many cases be well positioned to help the reviewing court reach a just outcome." The court also indicated that the following factors are relevant in informing the court's exercise of its discretion as to whether to allow participation of a tribunal: "statutory provisions addressing the structure and the processes and role of the particular tribunal and the mandate of the tribunal.

This latter factor concerns whether the function of the tribunal is to adjudicate individual conflicts between parties or whether it serves a policy-making, regulatory or investigative role, or acts on behalf of the public interest." [ 11 ] It is also fundamental in the exercise of its discretion that the court balance the need for fully informed adjudication against the importance of maintaining tribunal impartiality. [ 12 ] Having reviewed the evidence before me and considered the submissions of counsel in the context of the case law provided to me, I find that I am satisfied that it would be appropriate for the Tribunal to participate in the hearing of the appeal.

However, the Tribunal's participation must be limited to the following issues only: (

a) the standard of review applicable to the various grounds of appeal raised [ 13 ] The Tribunal deals with twenty-seven statutes. Intervenor status has been granted on a number of occasions to an administrative tribunal to explain the record and advance its view of the appropriate standard of review. [5] The court would benefit from the Tribunal's perspective in this regard. [ 14 ] The issue concerning the standard of review to be applied by the court in this case is distinct from any issue concerning the merits of the appeal. I am not satisfied that the participation of the Tribunal would cause any prejudice to the parties. (

b) the Tribunal's jurisdiction under the ONHWPA to dispose of appeals arising out of a year-end claim and the Tribunal's powers in disposing of a year-end claim versus a major structural defect claim [ 15 ] The Tribunal has a special expertise and bank of information and knowledge regarding matters litigated under the ONHWPA. The Tribunal is in a position to provide useful information to the court concerning the concept of a "year-end claim" and the concept of a "major structural defect claim" under the statute. The appeal court would benefit from the tribunal’s contribution with respect to its

interpretation of the relevant provisions in the ONHWPA and the regulations regarding the time limits, process and substantive content of year-end claims and major structural defect claims and other relevant interrelated provisions and regulations. I concur with the Tribunal's submissions before me that because the Tribunal is the sole decision-making authority that hears disputes under the ONHWPA, it can offer a unique perspective with respect to the legislation and its regulations.

(

c) the Tribunal's Rules of Practice and Procedure regarding its discretion to add parties to a proceeding and the Rules applicable to disclosure [ 16 ] For these reasons, I am also satisfied that submissions concerning the Tribunal's Rules of Practice and Procedure regarding its discretion to add parties to a proceeding and the Rules applicable to disclosure would be useful to the court and is necessary for the court to be fully informed in this regard. [ 17 ] On the other hand, I find that it is neither necessary nor appropriate to grant intervenor status to the Tribunal with respect to the issue concerning the appellant's claim of a "reasonable apprehension of bias." The appellate court is well informed regarding the legal concept of "reasonable apprehension of bias".

The right to a full and fair hearing by an impartial arbiter is fundamental to our entire system of justice.

The right to a hearing by an impartial panel and the duty of that hearing panel to render an impartial verdict or decision is not unique to administrative law or this Tribunal. [ 18 ] To permit intervention of the Tribunal with respect to this last issue would, in my view, border on allowing the Tribunal to defend its decision, would permit unnecessary argument and would create the potential for serious injustice or prejudice to the parties. [ 19 ] As a word of caution to the Tribunal in any event, the Tribunal is not permitted to supplement its decision with new arguments on appeal.

It may not defend its decision on a ground it did not rely on in its decision. In other words, to quote the Supreme Court of Canada in Ontario (Energy Board) [6] , notwithstanding its intervenor status as granted herein, the Tribunal "may not impermissibly step beyond the bounds of its original decision in its arguments before the Court." Conclusion [ 20 ] The Tribunal is granted intervenor status subject to the limits defined herein. [ 21 ] I will entertain very brief submissions with respect to costs should the parties be unable to agree. Justice L. Templeton Templeton J. DATE: April 21, 2017