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O. Reg. 637/20: BUILDER AGREEMENTS AND VENDOR AGREEMENTS

under Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31

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Versions
current February 1, 2021 (e-Laws currency date)
November 6, 2020 January 31, 2021

Ontario New Home Warranties Plan Act

ONTARIO REGULATION 637/20

BUILDER AGREEMENTS AND VENDOR AGREEMENTS

Historical version for the period November 6, 2020 to January 31, 2021.

Note: THIS REGULATION IS NOT YET IN FORCE. It comes into force on February 1, 2021, the day subsection 31 (1) of Schedule 5 to the Rebuilding Consumer Confidence Act, 2020 comes into force.

No amendments.

This is the English version of a bilingual regulation.

Definitions

1. In this Regulation,

“builder agreement” means an agreement described in section 3; (“convention du constructeur”)

“builder obligations” means all obligations, liabilities and indebtedness of a builder to the Corporation under the Act, under an agreement with the Corporation, under a Registrar Bulletin or Registrar Directive or otherwise, including without being limited to, obligations, liabilities and indebtedness for,

(a)  all payments made by the Corporation in respect of a claim or potential claim,

(b)  the value of services provided by the Corporation in respect of a claim or potential claim,

(c)  costs incurred by the Corporation relating to a claim or potential claim, including legal fees, expert fees and other consultant fees on a full indemnity basis,

(d)  damages suffered by the Corporation in respect of a claim or potential claim,

(e)  all costs incurred by the Corporation in enforcing the obligations, liabilities and indebtedness of a builder to the Corporation, and

(f)  applicable administration fees, penalties, taxes and interest on anything mentioned in clauses (a) to (e); (“obligations du constructeur”)

“vendor agreement” means an agreement described in section 2; (“convention du vendeur”)

“vendor obligations” means all obligations, liabilities and indebtedness of a vendor to the Corporation under the Act, under an agreement with the Corporation, under a Registrar Bulletin or Registrar Directive or otherwise, including without being limited to obligations, liabilities and indebtedness for,

(a)  all payments made by the Corporation in respect of a claim or potential claim,

(b)  the value of services provided by the Corporation in respect of a claim or potential claim,

(c)  costs incurred by the Corporation relating to a claim or potential claim, including legal fees, expert fees and other consultant fees on a full indemnity basis,

(d)  damages suffered by the Corporation in respect of a claim or potential claim,

(e)  all costs incurred by the Corporation in enforcing the obligations, liabilities and indebtedness of a vendor to the Corporation, and

(f)  applicable administration fees, penalties, taxes and interest on anything mentioned in clauses (a) to (e). (“obligations du vendeur”)

Vendor agreements

2. (1) For the purposes of clause 10.1 (d) of the Act, it is a prescribed requirement that every vendor enter into a vendor agreement with the Corporation.

(2) A vendor agreement shall be in the form, and contain the content, determined by the Registrar and may contain provisions respecting any or all of the following:

1.  Representations and warranties, including representations and warranties respecting the status and characteristics of the vendor, due authorization and delivery of the agreement, compliance with law and status of material obligations and truth and accuracy of information submitted to the Registrar.

2.  Submission of all necessary application information.

3.  Submission of updated and supplemental information from time to time.

4.  Representations and warranties regarding the vendor and the homes that are subject to the vendor agreement.

5.  Ongoing covenants to duly and diligently perform vendor obligations.

6.  Consents, authorizations and permissions regarding credit checks, disclosure of information, and similar matters.

7.  Requirements to provide security and other assurances in respect of vendor obligations at the time of application and from time to time, including to provide for the payment and performance of the vendor obligations to the Corporation which may arise in connection with the full warranty and protection period for each of the homes that are subject to the vendor agreement, and all costs, claims, losses, damages and liabilities that may arise as a result of the vendor failing to pay or perform its vendor obligations.

8.  Requirements to co-operate with the Corporation in the exercise of its mandate.

9.  Access to,

i.  information, documents, records and things, and

ii.  business premises and construction sites.

10.  Acknowledgement and covenant that neither a qualification for enrolment nor an enrolment is transferable.

11.  Payment of fees or assurances of payment of fees as determined by the Registrar.

12.  Covenants to address obligations regarding pre-delivery inspections including,

i.  that every vendor of a new home shall conduct a pre-delivery inspection as determined by the Registrar with either one or both of the owner and the owner’s designate on or before the date of possession, and

ii.  that every construction contract entered into by the vendor with a builder shall include a provision whereby the vendor and builder agree that the vendor, the builder on behalf of the vendor, or both, shall arrange to meet at the home with either one or both of the owner and the owner’s designate, on or before the date of possession, and conduct the pre-delivery inspection of the home.

13.  Any other representations, covenants and assurances as the Registrar may reasonably require in connection with the exercise of the Corporation’s mandate, including for the purpose of reviewing the status of a qualification for enrolment or an enrolment as the case may be, and to permit consideration of risk for the Corporation and the guarantee fund in respect of the homes that are subject to the vendor agreement.

Builder agreements

3. (1) For the purposes of clauses 10.2 (1) (b) and 10.2 (3) (e) of the Act, it is a prescribed requirement that every builder enter into a builder agreement with the Corporation.

(2) A builder agreement shall be in the form, and contain the content, determined by the Registrar, and may contain provisions respecting any or all of the following:

1.  Representations and warranties, including representations and warranties respecting the status and characteristics of the builder, due authorization and delivery of the agreement, compliance with law and status of material obligations and truth and accuracy of information submitted to the Registrar.

2.  Submission of all necessary application information.

3.  Submission of updated and supplemental information from time to time.

4.  Representations and warranties regarding the builder and the homes that are subject to the builder agreement.

5.  Ongoing covenants to duly and diligently perform builder obligations.

6.  Consents, authorizations and permissions regarding credit checks, disclosure of information, and similar matters.

7.  Requirements to provide security and other assurances in respect of builder obligations at the time of application and from time to time, including to provide for the payment and performance of the builder obligations to the Corporation which may arise in connection with the full warranty and protection period for each of the homes that are subject to the builder agreement, and all costs, claims, losses, damages and liabilities that may arise as a result of the builder failing to pay or perform its builder obligations.

8.  Requirements to co-operate with the Corporation in the exercise of its mandate.

9.  Access to,

i.  information, documents, records and things, and

ii.  business premises and to construction sites.

10.  Acknowledgement and covenant that neither a qualification for enrolment nor an enrolment is transferable.

11.  Payment of fees or assurances of payment of fees as determined by the Registrar.

12.  Covenants to address obligations regarding pre-delivery inspections including,

i.  that every builder of a new home shall conduct a pre-delivery inspection as determined by the Registrar with either one or both of the owner and the owner’s designate on or before the date of possession, and

ii.  that every construction contract entered into by the builder shall include a provision whereby the parties agree that the builder and either one or both of the owner and the owner’s designate will, on or before the date of possession, meet at the home and conduct the pre-delivery inspection of the home.

13.  Any other representations, covenants and assurances as the Registrar may reasonably require in connection with the exercise of the Corporation’s mandate, including for the purpose of reviewing the status of a qualification for enrolment or an enrolment as the case may be, and to permit consideration of risk for the Corporation and the guarantee fund in respect of the homes that are subject to the builder agreement.

4. Omitted (provides for coming into force of provisions of this Regulation).