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New Home Construction Licensing Act, 2017

ONTARIO REGULATION 245/21

CODE OF ETHICS AND DISCIPLINE AND APPEALS COMMITTEES

Consolidation Period:  From July 1, 2021 to the e-Laws currency date.

No amendments.

This is the English version of a bilingual regulation.

PART I
Code of Ethics

General obligation

1. A licensee shall comply with the Act and the regulations.

Licensee to ensure compliance

2. A licensee shall ensure that its employees, directors, officers, principals, agents and independent contractors carry out their duties in compliance with the Act and the regulations.

Fairness, honesty, integrity

3. In carrying on business, a licensee shall treat every person the licensee deals with fairly, honestly and with integrity.

No discrimination

4. In carrying on business, a licensee shall,

(a)  treat all persons without discrimination, harassment or bullying; and

(b)  provide reasonable accommodation for persons with disabilities.

Protection of the public

5. In carrying on business, a licensee shall ensure the health and safety of all persons is protected.

Conscientious and competent service, etc.

6. In carrying on business, a licensee shall provide conscientious, courteous and responsive service and demonstrate reasonable knowledge, skill, judgment and competence.

Financial responsibility

7. A licensee shall be financially responsible in carrying on business.

Unprofessional conduct, etc.

8. A licensee shall not engage in any act or omission that, having regard to all of the circumstances, would reasonably be regarded as being disgraceful, dishonourable, unprofessional, unbecoming of a licensee or likely to bring the sector into disrepute.

Intimidation, coercion, etc.

9. In carrying on business, a licensee shall not intimidate or coerce any person or subject any person to undue pressure.

Duty to comply with law

10. A licensee shall comply with the laws of every jurisdiction in which the licensee carries on business.

Duty to report charges and findings of guilt

11. (1) A licensee shall promptly report to the registrar in writing upon becoming aware that any of the following persons have been charged with or found guilty of an offence described in subsection (2):

1.  The licensee.

2.  A director, officer, principal or partner of the licensee.

(2) This section applies to charges and findings of guilt in respect of types of offences that a licensee is required to disclose as part of an application for a licence or renewal of a licence, regardless of when the charge or finding of guilt occurs.

Misrepresentation

12. In carrying on business, a licensee shall not engage or be a party to misrepresentation.

Information provided to regulatory authority

13. A licensee shall not provide false, misleading or deceptive information or documents to the regulatory authority.

Forms and documents

14. In carrying on business, a licensee shall ensure that it uses all forms and documents that are required by law.

Business records

15. In addition to the records required under the Act and regulations, a licensee shall make and keep all records that the licensee reasonably requires for the conduct of the licensee’s business.

Obstruction of complaints

16. A licensee shall not obstruct or attempt to obstruct,

(a)  any person from making a complaint to the registrar; or

(b)  the registrar or the registrar’s representative from inquiring with respect to a complaint.

Disclosure, marketing and false advertising

17. (1) A licensee shall be clear and truthful in describing the features, benefits and prices connected with a new home and in explaining the products, services, programs and prices connected with those new homes.

(2) A licensee shall ensure that all representations, including advertising, made by or on behalf of the licensee in connection with a new home are not false, misleading, deceptive or illegal.

Fees and compensation

18. (1) A licensee shall not indicate to any person, directly or indirectly, that any payment, commission, remuneration or other costs in connection with a new home are fixed or approved by,

(a)  the regulatory authority;

(b)  the warranty authority; or

(c)  any government authority.

(2) Subsection (1) does not apply with respect to fees, costs or other charges set by,

(a)  the regulatory authority under section 29 of the Act;

(b)  the warranty authority under the Ontario New Home Warranties Plan Act or its regulations or under the by-laws of the warranty authority; or

(c)  any government authority.

Confidentiality

19. Except as is otherwise authorized or required by law, a licensee shall not disclose to a third party any confidential information without prior written consent of the person to whom the information relates.

Illegal construction or sale of new homes

20. (1) A licensee shall not participate in or facilitate the construction or sale of a new home by a builder or vendor who is not licensed.

(2) A licensee shall not participate in or facilitate a vendor’s sale of a new home, or a vendor’s offer to sell a new home, where the vendor has not received the confirmation referred to in clause 10.1 (e) of the Ontario New Home Warranties Plan Act.

(3) A licensee shall not participate in or facilitate a builder’s construction of a new home, or a builder’s entering into a contract with an owner of land for the construction of a home on the land, where the builder has not received the confirmation referred to in clause 10.2 (3) (f) of the Ontario New Home Warranties Plan Act.

PART II
Discipline and Appeals Committees

Composition of Committees

Composition and appointment of committees

21. (1) For the purposes of subsection 57 (3) of the Act, the discipline committee and appeals committee shall each consist of at least five members, at least one of whom has never been,

(a)  a licensee;

(b)  a registrant under the Ontario New Home Warranties Plan Act;

(c)  a shareholder, officer, director, employee or principal of a person described in clause (a) or (b);

(d)  an interested person in respect of a person described in clause (a) or (b);

(e)  an officer, director or employee of a trade association that represents licensees or the interests of licensees;

(f)  a member of the board of the regulatory authority; or

(g)  a member of the board of the warranty authority.

(2) A person may be appointed under subsection 57 (3) of the Act as a member of both committees.

(3) A member of the board of the regulatory authority shall not be appointed under subsection 57 (3) of the Act as a member of the discipline committee or the appeals committee.

(4) An appointment made under subsection 57 (3) of the Act expires at the end of,

(a)  the day specified in the appointment, if the appointment specifies an expiry day; or

(b)  the day before the third anniversary of the day the appointment took effect, if the appointment does not specify an expiry day.

(5) A member of the discipline committee or appeals committee is eligible for reappointment after the end of the member’s term of office.

(6) If the term of office of a member of the discipline committee or appeals committee who has participated in a hearing expires before the hearing is completed or a final order is issued, the term is deemed to continue, but only for the purpose of completing the hearing and participating in the issuing of the final order and for no other purpose.

(7) The board of the regulatory authority may at any time terminate, for cause, an appointment made under subsection 57 (3) of the Act.

(8) Subsection (6) does not apply to a member whose appointment is terminated for cause under subsection (7).

Chairs and vice-chairs

22. (1) The board of the regulatory authority,

(a)  shall appoint, from among the members of the discipline committee, one member as chair of the committee;

(b)  shall appoint, from among the members of the discipline committee, one member as vice-chair of the committee; and

(c)  may appoint, from among the members of the discipline committee, one or more additional members as vice-chairs of the committee.

(2) The board of the regulatory authority,

(a)  shall appoint, from among the members of the appeals committee, one member as chair of the committee;

(b)  shall appoint, from among the members of the appeals committee, one member as vice-chair of the committee; and

(c)  may appoint, from among the members of the appeals committee, one or more additional members as vice-chairs of the committee.

(3) Subsections 21 (4) and (7) apply, with necessary modifications, to an appointment under subsection (1) or (2) of this section.

(4) Subject to subsection (5), if the chair of a committee so requests, or if the chair is absent or unable to act, the vice-chair may exercise and perform the powers and duties of the chair.

(5) If more than one vice-chair of the committee has been appointed, the following person may exercise and perform the powers and duties of the chair:

1.  The vice-chair of the committee whom the chair specifies.

2.  The vice-chair of the committee who has the greater experience as vice-chair if the chair does not specify a vice-chair under paragraph 1.

Oath or affirmation of office

23. Every person appointed under subsection 57 (3) of the Act as member of a committee and every person appointed under subsection 22 (1) or (2) of this Regulation as a chair or vice-chair of a committee shall, before beginning their duties, take and sign the following oath or affirmation in either English or French:

I solemnly swear (affirm) that I will faithfully, impartially and to the best of my skill and knowledge execute the duties of .......................... and that, except as I may be legally authorized or required, I will not disclose or give to any person any information or document that comes to my knowledge or possession by reason of my being ...........................

So help me God. (Omit this line in an affirmation.)

Procedure of Discipline Committee

Limitation

24. The registrar shall not refer a complaint to the discipline committee under paragraph 5 of subsection 56 (4) of the Act after the second anniversary of the day on which the facts on which the complaint is based first came to the knowledge of the registrar.

Panel

25. (1) When a matter is referred to the discipline committee, the chair of the committee shall assign a panel in accordance with this section to hear and determine the matter under subsection 57 (1) of the Act.

(2) The panel has all the jurisdiction and powers of the discipline committee with respect to hearing and determining the matter.

(3) Subject to subsection 4.2.1 (1) of the Statutory Powers Procedure Act, the panel must be composed of at least three members of the discipline committee.

(4) If the panel is composed of three or more members of the discipline committee,

(a)  at least two of the members of the panel must be licensees or officers or directors of a licensee;

(b)  at least one of the members of the panel must never have been,

(i)  a licensee,

(ii)  a registrant under the Ontario New Home Warranties Plan Act,

(iii)  a shareholder, officer, director, employee or principal of a person described in subclause (i) or (ii),

(iv)  an interested person in respect of a person described in subclause (i) or (ii),

(v)  an officer, director or employee of a trade association that represents licensees or the interests of licensees,

(vi)  a member of the board of the regulatory authority, or

(vii)  a member of the board of the warranty authority;

(c)  if a builder is the subject of the proceeding, at least one of the licensees must be a builder; and

(d)  if a vendor is the subject of the proceeding, at least one of the licensees must be a vendor.

Parties

26. The parties to a proceeding before the discipline committee are the licensee who is the subject of the proceeding, the regulatory authority and any other person added as a party by the discipline committee.

Notice of hearing

27. Subject to section 6 of the Statutory Powers Procedure Act, the discipline committee shall give the parties to a proceeding at least 45 days notice of a hearing by the committee.

Disclosure of evidence

28. (1) A party who intends to tender evidence at a hearing before the discipline committee shall, not later than the date specified by subsection (3), disclose the following to every other party:

1.  In the case of written or documentary evidence, a copy of the evidence.

2.  In the case of oral evidence of a witness, the identity of the witness and a written statement containing the substance of the witness’ anticipated oral evidence.

3.  In the case of oral evidence of an expert, the identity of the expert and a copy of a written report signed by the expert containing the substance of the expert’s anticipated oral evidence.

4.  In the case of evidence that is not oral, written or documentary evidence, a written description of the evidence.

(2) A party who intends to tender written or documentary evidence, or other evidence that is not oral evidence, at a hearing before the discipline committee shall give every other party a reasonable opportunity to examine the original evidence before the hearing.

(3) The date mentioned in subsection (1) is,

(a)  in the case of evidence tendered by the regulatory authority, the date that is 30 days before the date the hearing begins; and

(b)  in the case of evidence tendered by any other party, the date that is 15 days before the date the hearing begins.

Disclosure from closed hearing

29. If a hearing before the discipline committee is closed to the public, the committee may order that evidence given and submissions made at the hearing not be disclosed to any member of the public.

Notice of final order to complainant

30. If a proceeding before the discipline committee arises from a complaint, the committee shall send the person who filed the complaint a copy of its final order, including the reasons if any have been given, at the same time that it complies with section 18 of the Statutory Powers Procedure Act.

Notice of appeal rights

31. When the discipline committee sends a copy of its final order to a party who participated in the proceeding, or the party’s representative, under section 18 of the Statutory Powers Procedure Act, it shall also send a notice outlining the party’s right to appeal under subsection 57 (5) of the Act and the procedures applicable to an appeal.

Appeals

Commencement of appeals

32. (1) A party may commence an appeal under subsection 57 (5) of the Act by delivering the following to the appeals committee within 30 days after the discipline committee sends notice, under section 18 of the Statutory Powers Procedure Act, of the order being appealed:

1.  A notice of appeal that,

i.  identifies the appellant and the other parties to the appeal,

ii.  identifies the final order being appealed,

iii.  sets out the grounds for the appeal, and

iv.  sets out the relief that is sought.

2.  The fee for commencing the appeal, as set by the regulatory authority under clause 29 (1) (b) of the Act, payable to the regulatory authority.

(2) The appellant shall, within the 30-day period mentioned in subsection (1), deliver a copy of the notice of appeal mentioned in paragraph 1 of that subsection to the other parties to the appeal and to the discipline committee.

(3) When a party commences an appeal under subsection 57 (5) of the Act, the discipline committee shall, at the earliest practical opportunity, forward to the appeals committee the record compiled under section 20 of the Statutory Powers Procedure Act.

Panel

33. (1) The chair of the appeals committee shall assign a panel in accordance with this section to hear and determine an appeal to the committee under subsection 57 (5) of the Act.

(2) The panel has all the jurisdiction and powers of the appeals committee with respect to hearing and determining the appeal.

(3) Subject to subsection 4.2.1 (1) of the Statutory Powers Procedure Act, the panel must be composed of at least three members of the appeals committee.

(4) If the panel is composed of three or more members of the appeals committee,

(a)  at least two of the members of the panel must be licensees or officers or directors of a licensee;

(b)  at least one of the members of the panel must never have been,

(i)  a licensee,

(ii)  a registrant under the Ontario New Home Warranties Plan Act,

(iii)  a shareholder, officer, director, employee or principal of a person described in subclause (i) or (ii),

(iv)  an interested person in respect of a person described in subclause (i) or (ii),

(v)  an officer, director or employee of a trade association that represents licensees or the interests of licensees,

(vi)  a member of the board of the regulatory authority, or

(vii)  a member of the board of the warranty authority;

(c)  if a builder is the subject of the proceeding, at least one of the licensees must be a builder; and

(d)  if a vendor is the subject of the proceeding, at least one of the licensees must be a vendor.

(5) A person who was a member of the panel of the discipline committee that made the order being appealed must not be assigned to the panel of the appeals committee that hears and determines the appeal.

Parties before appeals committee

34. The parties to a proceeding before the appeals committee are the appellant, the other persons who were parties to the proceeding before the discipline committee, and any other person added as a party by the appeals committee.

Proceedings before appeals committee

35. Sections 27 to 30 apply, with necessary modifications, to proceedings before the appeals committee.

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

 

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