“This House is Going to Kill Me”

Our blogger this week is Consumer Advocate Barbara Captijn. Barbara has been an SRL at the License Appeal Tribunal (LAT), and has accompanied other SRLs as a friend to their hearings over the last 9 years. She contributed to Ontario Ministry of Consumer Services consultations on warranty reform in 2017-20, as well as the Justice Cunningham Tarion review, and the Auditor General’s report, as an independent consumer advocate on a volunteer basis. This post was originally published on Barbara’s blog, Consumers’ Reform Tarion on January 5, 2021.You can also find her on Twitter at @ReformTarion and @ONTConsmrRights.

Daniel Emery’s heartbreaking story: from home-believer to home-wrecked, to advocate for change

Daniel in 2015

I hope one day, after almost 10 years of writing about the broken Tarion warranty legislation in Ontario, I’ll be able to write a story on how Tarion has protected consumers in crisis, instead of abandoning or over lawyer-ing them to death.

This is not that day.

Last weekend, homeowner Daniel Browne-Emery passed away after a long battle with a cruel and relentless cancer, and the government agency Tarion, which seemed to him just as cruel and relentless.

Daniel in 2019

This is my personal thank you to Daniel and his family for their years of efforts to make Tarion the consumer protection agency the legislature once intended it to be

Like the rest of us advocates, Daniel wanted the government to follow justice Cunningham’s #1 recommendation in his 2017 review to open the warranty field to competition, and end Tarion’s government-granted monopoly and bias toward builders.

Like most advocates who work toward this goal, many have been victims of Tarion themselves, and have advocated at the Ontario legislature for years for changes to the laws governing Tarion. Daniel was one of us.

Here are some of my memories of this honest, strong, courageous consumer advocate.

I didn’t know Daniel well, but within a few moments of hearing his nightmare story in 2013, anyone could empathize. How is it even possible this could happen in Ontario, a modern democracy with a government agency regulating builders and protecting consumers? Each time I tell his story, it’s met with incredulity and anger. The story continues to haunt us, and should haunt our legislators. But other than the usual platitudes about protecting consumers, they seem focused on keeping the building industry happy.

Tarion is a political problem. It was created by politicians, and only they can solve it. And they have not.

I first met Daniel at the office of an Opposition MPP at the Ontario Legislature in 2013. We were there to support a bill brought by the NDP to fix broken Tarion. That, and many other meaningful bills were never passed by either the Liberal or the PC Parties, both well-known to have close relationships with builders and developers, while telling us they’re champions of the little guy.

What happened to Daniel, and sadly continues to happen to new home buyers in Ontario, should never should have happened, and could have been avoided.

In short, here’s Daniel’s troubling story, which I wrote about on this blog site http://www.consumersreformtarion.com in 2018. I hoped after that the Consumer Ministry would take action, but nothing happened.

Daniel moved into a newly-constructed home in 2007. A few weeks later, he discovered water on the basement floor, which led to flooding. He contacted Tarion, and the builder; Tarion requested the builder take action, but little was done. Months and years passed with Daniel pleading with Tarion to help him. Mold began to take hold, with black slick and patches “as big as pizzas” in Daniel’s words. Tarion finally did some visual mold remediation, but didn’t fix the underlying cause of the water infiltration. By 2008, Daniel said there were four feet of standing water in his basement, and slimy black mold on the staircase carpet and walls.

In 2011, his bank refused to renew his mortgage, because he couldn’t get insurance for the home under these conditions. The bank then foreclosed, and Daniel was left homeless, and lost over $270,000 he’d invested in the home.

Financially devastated, he then was hit with bad health news, a diagnosis of throat cancer. His oncologist asked if he’d ever been exposed to mold. “My heart sank when I heard this”, Daniel explained.

When I spoke to him in the summer of 2018, he could barely talk due to the ravages of cancer and the on-going treatments. He was at work, driving a heavy truck, on one of the routes he liked to drive from Toronto to Quebec City. He stopped to have a coffee at a roadside shop and half-joked to me that he seemed to scare people away now, they looked askance at him with his weight loss, long hair, and misshapen smile.

He said when he read my blog post, it made him break down. He was grateful I’d sent it to the Minister and various journalists to try to get someone to do something about the nightmare he’d suffered.

When a consumer threatens to go public, Tarion often swoops in to stop the wheels turning, secret meetings are held, consumers are sworn to confidentiality, and many who are in dire financial straits have no choice but to sign a non-disclosure agreement (NDA).

There’s been no meaningful action from our government, except window-dressing weak bills, and posturing about how Tarion protects consumers.

Daniel’s local MPP had written a letter on his behalf on Sept. 27, 2013, to the then Liberal Minister, stating: “He lost his home due to the actions, or more specifically the lack of action from Tarion. Mr. Emery was forced to foreclose on the home and lost everything waiting for Tarion to take action again the builder.”

Exactly.

Now this long-time PC MPP is part of the current PC government, but he’s gone silent. In the meantime, the builder has gone on building more homes, with nothing mentioned on his Tarion record, and no way for future home buyers to be forewarned.

In the fall of 2019, Daniel felt the cancer again pressing at his heels. He wanted to make sure, if he couldn’t do anything in his own case, that others wouldn’t be devastated like him. He offered to drive to Toronto and tried to arrange meetings with journalists, even though he was weak and could barely speak.

I asked if there was one point which encapsulated his ordeal, one dark moment when he was about to give up. He thought for a split second, and said, yes. Every Saturday, he said to me, he’d spend scraping black, slimy mold from the basement staircase and walls, with his dog often beside him. In a moment of desperation, he turned to his dog and said, “I think this house is going to kill me”.

Tarion refused to give Daniel certain reports, like the mold report they had commissioned, and which was requested by his oncologist. Tarion told him repeatedly his case was closed, because he no longer owned the house. They also refused to issue him a “Decision Letter” which would have allowed him to have his claim heard at the License Appeal Tribunal.

If two major corporations want to battle it out for years on a legal matter, fine, they’re equal adversaries, and fighting on a level playing field, with comparable finances and resources. But most new home buyers are on their own, self-represented, and can’t afford $400-$1,000 per hour for experienced lawyers, and even more for engineers reports. This is not the time for a consumer protection agency to bring out the heavy legal artillery, hard-hitting emails, and heavy-handed tactics. But that’s what Tarion did in Daniel’s case. And too many others I’ve seen.

This tragedy should have been prevented. If the root cause of water infiltration isn’t addressed, it will recurand get worse. Tarion failed to get to the root of the problem and fix it. Treating symptoms doesn’t work long term. The builder and Tarion ended up blaming the homeowner, as happens too often, and they let time slip away until Daniel was too ill and financially devastated to keep fighting for justice.

One of the serious problems with Tarion is it says it can’t force the builder to do anything, the warranty is the builder’s, and Tarion is only there to ‘back-stop” it, and make sure they fulfill their obligations. But often they don’t even do that. The Auditor General’s report (Oct. 2019) found that in 64% of cases from 2014-18, Tarion did not get builders to fix warranted defects.

Why is this still going on?

Too much influence from builders, too much concern about protecting the builder’s “privacy”, no teeth to enforce the Building Code, buck-passing from municipalities to builders to Tarion, too lax oversight by government. Still a deeply flawed system.

But builder lobbyists like it, say it’s “working well”. However, the legislation wasn’t created to protect builders, but to protect new home buyers.

Daniel and his wife finally got a meeting with Tarion’s CEO in early 2020, thanks to the continued advocacy of a not-for-profit consumer organization. The current Tarion CEO is a former in-house lawyer, as are many of his VP colleagues. All are well-versed in legal tactics to protect Tarion and builders, and get claims dismissed.

This last contact Daniel had with Tarion top executives at their head office, was physically and emotionally painful, he told me. He was asked to sign a non-disclosure agreement. A dying man? What’s the objective of that, where’s the decency?

He told me a few details of the meeting. One made him smile, he said, telling me he knew it sounded childish, but as he was leaving, he asked the CEO if he knew where he could get one of the glass coffee mugs with the Tarion logo they had in their offices. The CEO said he wasn’t sure. His colleague lawyer then disappeared into the kitchen and came back with a mug.

After 13 years of battling Tarion, maybe this was for Daniel a spoil of war, something physical taken from the enemy to prove you’ve survived.

Refusing to give this dying man a mold report so he could give it to his oncologist, is an unnecessary bully tactic; making a dying man sign a non-disclosure agreement for a meager settlement while he’s lost his life savings through the actions of a shoddy builder, while he relied on this government agency to protect him, is unforgivable. Not listing these defects on the builder’s record is adding insult to injury, and worse, complicit with shoddy builders, and a disservice to future new home buyers.

I know Daniel would have liked to hear that his work in the end counts, and won’t be forgotten. The house may have killed him, but Tarion and our lawmakers look like willing accomplices.