Independent Mediation

If a homeowner disagrees with a warranty assessment made by Tarion, they can request a mediation. This page offers information and links to resources to help homeowners understand the mediation process, select a potential mediator and answer questions about what to expect.

Mediation is only available for warranty claim disputes and is not used for deposit protection, financial loss or delayed occupancy/closing claims.

The mediation is process is independent from Tarion because the mediators are qualified third parties not employed by Tarion. The mediators typically have professional mediation qualifications and approach the mediation as a “neutral” with the objective of helping the parties better understand their positions and potentially assist them toward a collaborative solution.

Some mediators may have past experience with the Tarion process, for example they may have construction experience, they may have mediated or arbitrated Tarion disputes, they may have experience with judicial Tribunals that have heard appeals of Tarion decisions, or they may have been new home buyers themselves. Potential mediators should disclose any relevant past experiences which may be helpful to the homeowner when deciding who to select as a mediator.

The objective of mediation is to find ways to resolve warranty claim disputes without having to go through a formal adjudicative process at the Licence Appeal Tribunal or civil court. This type of mediation is covered by a provincial regulation, which came into effect on July 1, 2021. More information on the legislation.

The setting and conduct of the mediation is confidential, in order to foster open discussions, and is also intended to be relatively informal, non-legalistic and non-confrontational. Unless specifically requested by the homeowner, for example, the mediation will not involve lawyers or the builder.

It’s important to note that mediation is not an appeal process and there is no guarantee that it will resolve the dispute. However, mediation can be an effective way to achieve a satisfactory resolution of a claim.

This type of mediation is between the homeowner and Tarion only. It does not involve the builder unless both the homeowner and Tarion agree that the builder will be invited to participate.

On request, a homeowner may ask that a support person attend the mediation with them (but the owner of the home must participate in the mediation).

Mediation is conducted by an independent, external mediator. The homeowner and Tarion need to jointly agree on a qualified person to act as a mediator.

The mediator will not make a judgement on the warranty issue being discussed and cannot issue a binding decision.. The role of the mediator is to facilitate the discussion of the issue and to help the homeowner and Tarion reach a resolution.

Yes. Confidentiality is a best practice in mediation as it helps facilitate discussions by allowing both parties to speak freely without any concern that what is discussed during the mediation will be shared or held against them if the matter does not resolve.

In the case of Tarion mediations, the confidentiality requirement is set out in the provincial mediation regulation.

To ensure that everyone is aware of the confidentiality and what it means, it is normal for a mediator to ask the parties (Tarion and the homeowner) to sign a mediation agreement that will outline the confidentiality guidelines. Those involved in mediation must keep information about the mediation confidential.

In general, confidentiality applies to the discussions and information that the parties share with each other in the mediation. Information that is provided to you by the other party or by the

mediator is confidential. Offers made and positions taken in the mediation are also confidential.

In general, confidentiality does not apply to information that is publicly available, or your own personal information, which you had prior to the mediation. For example: going to mediation about a problem in your floor does not mean that you cannot talk to anyone about your floor after the mediation. The confidentiality would apply to information shared with you during the mediation by Tarion about Tarion’s assessment of your floor. It is the new information shared with you during the mediation that is confidential.

Confidentiality can be waived only if the disclosure of the information is:

· agreed to by the parties;

· required by law;

· required to carry out or enforce a settlement agreement;

· required for a mediator to respond to a claim of misconduct; or

· required to protect the health or safety of any person.

A homeowner can request a mediation if:

1. they have requested that Tarion conciliate a warranty claim dispute between the homeowner and their builder;

2. Tarion has issued a written assessment from the conciliation (Conciliation Assessment Report) that rejects at least one part of the claim; and

3. Tarion has not yet issued a decision letter for the claim.

Tarion may also offer mediation in other circumstances where Tarion determines that mediation might facilitate resolution of a homeowner’s concerns.

To make mediation accessible to all homeowners who might benefit from it, Tarion covers the standard fees charged by mediators up to a full day of mediation. The cost of a half day mediation is usually about $1,500.

Generally, if a homeowner chooses a mediator who charges more than the standard fee noted above, then the homeowner will be responsible for the difference. The homeowner and Tarion can also share the costs differently, as long as they both agree (for example, if a homeowner wishes to pay for all or part of the mediation they may do so). Before mediation starts, the homeowner and Tarion need to determine the costs of mediation for which they are each responsible. If the homeowner mediation will be in excess of a day, the costs of the mediation beyond one day would be shared.

The homeowner can choose a mediator using the following options:

· The Alternative Dispute Resolution Institute of Ontario offers lists of qualified mediators on their website.

· Tarion has a list of mediators who have been involved in past warranty claim mediations. The list provides contact information and details regarding each mediator’s qualifications and background. This list is provided as a resource only and there is no requirement to choose a mediator from this list.

· The homeowner can put forward a qualified mediator for consideration if they have the required experience, training and education in mediation.

For a mediation to commence, both the homeowner and Tarion must agree on the chosen mediator.

Once a mediator is chosen, Tarion will schedule the mediation at a mutually agreeable date and time. Every effort will be made to schedule the mediation at the earliest opportunity.

A mediation is generally booked for a half day or full day. The length of the mediation will depend on the number and complexity of the issues involved.

Typically, mediations are held as a virtual meeting. This makes it convenient for all parties, allows for easier scheduling, and saves costs.

Before the mediation date, the mediator will send the homeowner and Tarion a mediation agreement, which will outline the process and any information or documentation the mediator would like the parties to provide. The mediator will give the parties a date by which that information and documentation must be submitted to the mediator and the other party in advance of the mediation. The mediator may also ask the parties to provide an outline of their positions on the issue(s) to be discussed.

When providing information and documentation in advance of the mediation, a homeowner should consider including the following:

· Any additional information or documentation not previously provided to Tarion;

· Any information or documentation they believe was overlooked or not considered in Tarion’s assessment; and

· Any information or documentation that will help Tarion and the mediator understand the resolution they are seeking.

Mediation is an informal, private and confidential meeting that involves the homeowner, a Tarion representative, and the mediator. This process is meant to provide an alternative to a formal legal proceeding. The goal of mediation is for the homeowner and Tarion to negotiate and resolve the warranty claim dispute.

Generally, the mediation will proceed through these steps:

1. Mediator will explain the process and the rules and procedures that will be followed.

2. Both parties will have the opportunity to explain their side of the dispute and how they might like it resolved.

3. Mediator will help both parties identify potential options and solutions.

4. Mediation will conclude, ideally with a resolution between the parties.

The mediation is not an appeal of the Tarion decision, and it is not the mediator’s role to ‘rule’ either for or against either party. It is possible that the mediation does not result in a resolution. However, in our experience, many (but not all) homeowners have been able to reach some agreement with Tarion after a mediation.

Yes. Mediation is voluntary, and you are able to stop the mediation at any time if you do not wish to continue.

If mediation is unsuccessful and no agreement is reached, you can resume your warranty claim with Tarion, including requesting a decision letter that will give you the right to appeal to the Licence Appeal Tribunal. The License Appeal Tribunal is an independent body from Tarion that has the power to review Tarion decisions and replace Tarion’s assessments with its own.

If you feel that there are fairness concerns relating to the mediation process, then you can contact the New Home Ombuds and request assistance.  Please note that the New Home Ombuds cannot review complaints about the mediator or the outcome of the mediation.

A condominium corporation who disagrees with Tarion’s warranty assessment of a common element warranty claim may also request independent mediation.