As of July 1, 2021, in most cases, if you disagree with Tarion’s assessment of your warranty claim, you can request Tarion to participate in mediation to resolve it.

Mediation is an option that allows homeowners to resolve warranty claim disputes regarding their new home with Tarion. The dispute is settled only if the homeowner (or the condominium corporation, where applicable) and Tarion agree to the settlement. Mediation also applies to warranty claim disputes involving common elements in condominium corporations with residential units.

Mediation is a collaborative process supported by a neutral and impartial mediator. It takes place in a private, informal setting with a non-confrontational atmosphere. It provides an alternative way to resolve a warranty claim dispute before needing to go to the Licence Appeal Tribunal (LAT) or court.

This process is outlined in the Mediation Prior to Notice of Decision regulation and applies to mediations requested by a homeowner or offered by Tarion after July 1, 2021.

Requesting mediation

To request mediation, you can contact Tarion directly.

Tarion would be required to participate in mediation if all three conditions are met:

  • you asked Tarion to determine if your warranty claim is covered by the warranties provided under the Ontario New Home Warranties Plan Act by requesting conciliation
  • Tarion issued an assessment report about the claim and rejected any part of the claim, and
  • Tarion has not yet issued a notice of decision about the claim
    • If Tarion has issued a notice of decision about the claim, you are permitted to appeal the decision to the LAT or to court

If these conditions are met and you requested mediation because you disagree with Tarion’s assessment of your warranty claim, Tarion will participate in mediation and could only decline in the following circumstances:

  • if you and Tarion have previously reached a settlement on the same issue
  • if mediation related to the same issue ended for reasons permitted by the Mediation Prior to Notice of Decision regulation
  • if the request for mediation is an abuse of process

Role of the mediator

The mediator is a neutral and impartial person who can help you and Tarion find an agreeable solution.

Additionally, the mediator:

  • does not make decisions about the warranty claim dispute and cannot impose solutions
  • helps to establish ground rules for the mediation
  • manages the mediation process and ensures it proceeds smoothly
  • guides discussions between you and Tarion to help reach a voluntary settlement agreement
  • respects the confidentiality of the process
  • may, after consulting with you and Tarion, decide to end the mediation because of a lack of resolution

Selecting a mediator

You and Tarion must jointly appoint a qualified person to act as a mediator for your warranty claim dispute.

A person may be qualified to act as a mediator if they have experience, training or education in mediation, such as:

  • qualifications or professional designations in mediation – for example, Qualified Mediator (Q.Med) or Chartered Mediator (C.Med)
  • membership in a professional organization, such as an alternative dispute resolution (ADR) institute
  • knowledge of and experience in new home dispute resolution in Ontario
  • knowledge of relevant Ontario laws and dispute resolution processes

Consider asking more than one potential mediator for their résumé and their references to make an informed choice.

You can find mediators through professional associations, such as the ADR Institute of Ontario’s Directory of Ontario Dispute Resolution Professionals.

A person who is approached to be a mediator or who is acting as a mediator must disclose:

  • if they have any current or potential conflicts of interest
  • if any circumstances exist that might make them biased

After such a disclosure, a mediator can only continue as the mediator of your dispute if both you and Tarion agree.

Who can participate in mediation

Mediation takes place between you and Tarion. You can each bring a representative (such as a lawyer) or a support person.

If you and Tarion both agree, you can also invite other people, including your builder, to attend the mediation. However, they are not required to attend.

Only you and Tarion have rights and obligations in the mediation process, except for the obligation to maintain confidentiality, which applies to everyone who attends mediation.

Cost of mediation

Before mediation starts, you and Tarion must agree on how the costs of mediation will be shared between the two of you. The costs of mediation are the fees and expenses of the mediator and the cost of facilities to host the mediation, if any.

By default, Tarion is responsible for paying at least half of the costs of mediation, or the standard dollar amount that it publishes on its website, whichever is greater. You must pay for the remainder of the costs of mediation.

Confidentiality at mediation

Those involved in mediation must keep information about the mediation confidential, unless 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

This would not apply to information that:

  • is publicly available
  • is needed to determine if the mediator has failed to disclose a current or potential conflict-of-interest or any circumstances that might make them biased

Preparing for mediation

It is important to prepare for mediation. Gather any documents you have about your warranty claim dispute, including statements, invoices and photographs.

The mediator may ask you and Tarion to share information before the first mediation session so that everyone can become familiar with the claim dispute.

This could include:

  • the facts or circumstances that led to the dispute
  • the issues that need to be resolved and each party’s stand on those issues
  • steps that have been taken to settle the dispute (for example, negotiations or settlement proposals)
  • the outcome that each party is seeking

The mediation process

You, Tarion and the mediator may discuss and agree to the rules and procedures that will be followed during mediation. These could be suggested by the mediator. In general, a mediation process has several key phases.

1. Opening the mediation

The mediator explains the process and reviews rules and procedures that will be followed during mediation. They also describe their role in the mediation process. The parties may agree on changes to the way the mediation will be conducted to support a productive mediation process.

2. Defining and discussing the problem

The mediator gives each party an opportunity to explain their side of the dispute and how they would like the dispute to be resolved. The mediator helps the parties to clearly identify the issues that are in dispute.

3. Generating options and negotiating solutions

The mediator helps the parties identify potential options and solutions and assess related costs and benefits in the pursuit of an agreement that is satisfactory to both parties.

4. Conclusion of mediation

The mediation process can end with or without an agreement between the parties. Mediation would end when:

  • you and Tarion reach a settlement
  • you decide to end the mediation, or
  • the mediator, after consulting with you and Tarion, decides to end the mediation because of a lack of resolution