The Mess that is Tarion: Conflict of Interest, Uneven Contests, and Failure to Act

The Mess that is Tarion: Conflict of Interest, Uneven Contests, and Failure to Act

I’ve blogged before about the sorry state of the Licensing Appeal Tribunal process meant to resolve disputes between homeowners and builders under Ontario’s new homes warranty program, Tarion.

What is Tarion?

  • skyscraper-construction-1221448Tarion is a corporation that regulates and licenses the building industry in Ontario
  • Tarion is responsible for administering the government’s home warranty program under the Ontario New Home Warranties Plan Act.
  • Tarion’s Board of Directors and corporate leadership is dominated by industry representatives and lacks consumer representation (written about by national columnists and legal commentators for years – for example by Alan Shanoff).
  • Tarion determines which applications under the warranty program will be allowed, and which will be refused.

 

Wait – what? Need to read those four sentences again?

 

An interim report issued last week by former Ontario Associate Chief Justice Douglas Cunningham goes directly to the structural problem with Tarion – that there is a “perceived” (in Justice Cunningham’s words) or “great big whopping” (my words) conflict of interest between Tarion’s role as both adjudicator and warranty provider under the present government scheme.

 

Uneven contests

If homeowners hang on long enough to bring a dispute over warranty protection to the appropriate tribunal – the Licensing Appeals Tribunal or LAT – this conflict of interest and representational imbalance becomes graphically manifest in the uneven contest fought between builders (represented by Tarion’s expert counsel) and unrepresented homeowners.

NSRLP has for some time expressed grave concern about this imbalance that is typical of almost all hearings before the LAT (see here).

moneyTarion argues that only a small number of disputes reach the LAT, and that the remainder are settled. However the very same uneven contest exists in the process of settlement – Tarion is represented by counsel, homeowners usually are not. We have heard from many homeowners who do not feel the settlement process is fair either.

NSRLP has made efforts over the past several years to persuade the LAT to engage directly with the – increasingly vocal and well-organized – consumer lobby that sees the Tribunal’s pace towards “user-friendly” changes for its self-represented homeowners as glacial. We have conducted training with adjudicators and proposed some of the obvious solutions to enhancing the experience for SRLs – for example, by identifying a person in the Tribunal who could answer their questions and offer legal information, allowing individuals to bring a friend or a support person into the hearing room, or providing case summaries and other information on-line to assist them in preparing for a hearing, or even providing a duty counsel. These ideas are often responded to positively – but then nothing happens.

This imbalance of represented versus unrepresented parties – in addition to other problems with process and consumer education pointed out by Justice Cunningham and before him, Genevieve Chornenki in her 2015 review – is undermining the integrity and credibility of Tarion’s dispute resolution process.

 

The Thomson-Cohl Report

Perhaps the best illustration of how fundamentally flawed the Tarion concept and processes are comes in another recent report, this one by former Justice George Thomson and Karen Cohl of Crystal Resolution Inc.

Retained to investigate a specific complaint brought by an unrepresented couple (Ferenc and Ferland) about the way the Tribunal handled them, their evidence, and the proceedings, Thomson and Cohl write that the representational imbalance at the LAT

… creates a power imbalance that affects self-represented parties’ perception of the fairness of the proceeding. It can also cause frustration for lawyers and adjudicators when a self-represented party does not easily adapt to the protocols expected of parties in a formal, legalistic proceeding.”

I agree that this is also difficult for the lawyers and adjudicators, but would make the obvious point that they have nothing material at stake, and thus a very different type of frustration than the self-represented homeowners. In the words of the report:

Many people we interviewed spoke about the highly emotional context for Tarion appeals. In particular, such cases take a personal toll on appellants who are dissatisfied with work that relates to their home, which is often the largest and most personal expenditure they will ever make.”

Thompson ends with a series of recommendations for enhancing the LAT’s support for SRLs – support presently non-existent – that reflect many of the NSRLP suggestions already made to them. He also recommends in strong language that LAT adjudicators need to be trained to work effectively with SRLs. This takes more than a one-hour presentation at their annual conference by NSRLP – it requires a training program that is concrete, informed by research facts, and practical, and addresses both skills and attitudes.

All these components of an educational program are available now – from NSRLP or the National Judicial Institute, among others. But there is no sign of the LAT asking for this assistance.

The fundamental problem – and what we should know by now about addressing it

The Thomson-Cohl report exposes the inherent unsuitability of an adversarial process to resolve disputes where one side has been educated in the arcane procedures that are used and another is learning as they go along – and regarded as a nuisance, an irritation, and chastised when they push back, raise objections or complain.

We have surely learned this much about the self-represented litigant phenomenon by now – telling disgruntled SRLs that they should sit down and shut up is not an effective strategy for dealing with either a systemic inequity, or distressed individuals who are losing their shirts to legal fees – or the warranty protection on their new home.

 

 

 

 

 

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Comments (10)

  • Larry E Doucet

    The whole system is very corrupt the RCMP protects the rich but the poor are like the Jews that were exacuted it’s gives them more poet and our judges are immune from prosecution,where did they get this power I’d like to know and worst of all and very dangerous our politicians cannot interfere very dangerous that why our senators got away with there stealing it’s a game from the rich winning to the poor paying for it all. The only name for this is communism I had my house stolen and given a fast trial without out a lawyer what a joke the whole thing is very corrupt from judges to the crown and worst of all the RCMP protecting all the rich it’s give them more power.

    September 15, 2016 at 1:08 pm
  • Angelo Zeppieri

    All this tells me that the whole system needs to be revamped, home owners don’t stand a change against these sharks without proper representation, a warranty should be just that not a denial agency forcing home owners in front of a tribunal.

    September 15, 2016 at 1:12 pm
  • Jeffrey Ferland

    This is an excellent piece that outlines the realities of what exist with Tarion and the LAT!

    September 15, 2016 at 1:20 pm
  • evert-jan Steen

    NAH! I say to the “New NSRLP resource: “My Learned Friend” > for he/she is now a carefully educated manipulative insider towing the lines the ‘SYSTEM’ has indoctrinated her/him in to. My experience has shown me the truth. The ‘public’ is fighting a self-serving, insatiable beast that set up its impenetrable ‘Wall’ as a ploy called ‘Justice,’

    We are wasting our time and effort attacking, thinking to change it from the outside. The battle is FAR greater! We need to INSIST on MAJOR REFORMS! I keep saying the same things over and over again, and this may well be the very last time.

    Proportionality? Fairness? Impartiality? Accountability? Proof based on fact?…words/words/words…

    Being called in to the renewed prerequisites of the Civil Service, in ye olde Engelond, the Supreme Court Act states:
    “3 (1) The Chief Justice, Associate Chief Justice and judges have all the powers, rights, incidents, privileges and immunities of a judge of a superior court of record, and all other powers, rights, incidents, privileges and immunities that on March 29, 1870, were vested in the Chief Justice and the other justices of the court.”

    i.e., in their daily routine, a Judge is fully excused of whatever decision he/she decides to hand down. (see my blog: ‘The Lonely Road to Justice’ for more detail here). UN-accountability is set here for those we purportedly hold in the highest regard. Going to the source with proof of wrong-doing by one of their Judges, the Ministry that pays them some $300,000 out of our public coffers, replied to me their Learned Brethren were UN-accountable. “Just because you did not like the decision the judge handed you, doesn’t mean you are entitled to recompense.” (Asst.AG. to BC’s Minister of Justice)

    Can you imagine in 2016, we are still functioning under laws set in 1870? No wonder our system is corrupt, spiralling ever outwards sewing grief and mayhem.

    Although I see pockets of dissenting views and efforts across our land, a kind of ‘complaining’ that is wont to happen in most all societies, in this day and age of Internet Technology, I am wholly surprised not to see a far more coherent effort at tackling these most basic IN-justices…

    It requires a highly focussed, controlled, country wide demand for a COMPLETE overhaul of the rotted foundation where the hypocrisy embodied in the robed Lords and Ladies of our Court System continue to be allowed to reign over us.

    First the REFORM, then we can tackle the Tarions amongst us. PHHT! I have said it > agin!

    September 15, 2016 at 7:23 pm
  • Kleerkut Teknologies

    Thomson-Cohl Report is VERY TROUBLING and adverse to LAT RULE 6.2 Where a person wishes to question the good character, conduct or competence of a party in a proceeding, the person shall provide the party with reasonable information about those allegations prior to the hearing
    Report 4.2 last paragraph – Tribunal staff say they felt/were harrassed by applicants
    4.5 last paragraph – Prior to the first in-person hearing Tribunal staff communicated to Ms Cassidy (adjudicator)
    ALL without particulars contrary to Rule 6.2 AND how prejudicial STAFF communicating with Adjudicator!!! in an appeal in progress
    This is a FAIR process?!?!
    Imagine a court hearing, where STAFF are free to make wild allegations to the judge behind the scenes.
    NOTE: The adjudicator specifically stated that the Applicants conduct was not unreasonable, vexatious, etc.

    September 16, 2016 at 3:36 pm
  • nic lal

    in our case , attempting over 6 years and many LAT sessions to secure justice in our house claim, two adjudicators ruled on our motions without hearing them ….in one case, we politely assisted the adjudicator in clarifying the purpose of the hearing he was presiding …we agree the system is in dire need of revamping…why must a homeowner prove what is blatantly obvious .to all ….except the courts …

    September 16, 2016 at 10:35 pm
  • Isabella C.

    Self Represented Homeowners do not understand legal technical nature of the LAT. Unfair to place this “kangaroo court” on them. Unethical and unprincipled of lawyers to deal with homeowners; complete imbalance of knowledge and power. “Let right prevail” motto of Law Society of Upper Canada sounds great PR but in reality, it is the arcane details and legalese that prevail and befuddle homeowners.

    The warranty provider should offer alternative dispute resolution mechanism already included and paid by warranty fees that are paid by the homeowners.

    Currently, Tarion uses the fees it collects from homeowners to hire counsel to fight homeowners in LAT. The absurdity is incredible. Tarion would do better to service and pay for homeowner claims than to pay for the legal fees they would incur to fight the homeowner.

    September 18, 2016 at 3:30 am
  • bcaptijn

    Very insightful article. Glad you said Tarion is a “great big whopping” conflict of interest. It is. A former MPP said in the Legislature in 2013 Tarion was a “black box”, a “walking conflict of interest”, “another ORNGE”. Yet no action taken. The 900-pound gorilla in the room is the power and money of the building industry, its stranglehold over Tarion, and the reluctance of the governing Liberals to step on the toes of their biggest donors, the building industry.

    October 5, 2016 at 10:51 pm
    • nic lal

      the government motto and dedicated path : FOLLOW THE MONEY ….

      October 8, 2016 at 1:07 am

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