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Ontario New Home Warranties Plan Act

R.R.O. 1990, REGULATION 892

Amended to O. Reg. 246/04

ADMINISTRATION OF THE PLAN

Historical version for the period August 20, 2004 to August 31, 2004.

This is the English version of a bilingual regulation.

CONTENTS

   

Sections

PART I

INTERPRETATION

1

PART II

THE PLAN

 
 

Delivery of Documents

2

 

Certificates of Completion and Possession

3

 

Claims

4-4.1

 

30-Day Claims

4.2

 

Year-End Claims

4.3

 

Second-Year Claims

4.4

 

Delayed Occupancy Claims

4.5

 

Major Structural Defect Claims — Years 3 through 7

4.6

 

Conciliation of Disputes

5-5.1

 

Limits of Liability

6

 

Guarantee Fund

7

 

Enrolment of Homes in the Plan

8

PART III

REGISTRATION

 
 

Application for Registration

9

 

Renewal of Registration

10-12

PART V

SUBROGATION

13

PART VI

WARRANTIES

 
 

Water Penetration

14

 

General

15-16

 

Delayed Closing

17

 

Substitutions

18-19.1

 

Eligibility

20-24

Schedule A

 

PART I
INTERPRETATION

1. In this Regulation,

“business day” means any day other than Saturday, Sunday or a holiday; (“jour ouvrable”)

“certificate of completion and possession” means the certificate required by subsection 13 (3) of the Act; (“certificat d’achèvement et de prise de possession”)

“common elements” of any condominium project has the meaning ascribed by the Condominium Act, 1998; (“parties communes”)

“conciliation” means a process whereby the Corporation determines whether a disputed item listed on a notice of claim given to the Corporation under section 4 or any of sections 4.2 to 4.6 is covered by a warranty and whether repairs or compensation are required; (“conciliation”)

“condominium corporation” means, in respect of any condominium project, the corporation created or continued under the Condominium Act, 1998; (“association condominiale”)

“condominium project” means the lands and interests appurtenant thereto that are described or proposed to be described in any description required by the Condominium Act, 1998 and which include or are proposed to include units to be used as homes; (“projet condominial”)

“construction contract” means an agreement between a builder and an owner of land which provides for the construction of a home on the land; (“contrat de construction”)

“contracted home” means a home constructed pursuant to a construction contract; (“logement sur contrat”)

“Corporation” means Ontario New Home Warranty Program; (“Société”)

“date of possession” means the date on which the home is completed for possession by an owner as specified in the applicable certificate of completion and possession; (“date de prise de possession”)

“date of registration” means the date on which the declaration and description required by the Condominium Act, 1998 are registered in the proper land registry office in respect of a condominium project; (“date d’enregistrement”)

“date of transfer” means the date on which deposits are applied on account of the purchase price payable under a purchase agreement with respect to a home; (“date de transfert”)

“deposit receipt” means a receipt executed by the Corporation, with provision for execution by the vendor and the purchaser, confirming to the purchaser the benefits of the Plan in respect of the purchase agreement; (“récépissé de dépôt”)

“deposits” means, in respect of a home, all money received before the date of possession by or on behalf of the vendor from a purchaser on account of the purchase price payable under a purchase agreement, and, in the case of a condominium dwelling unit, includes money received by or on behalf of the vendor after the date of possession and prior to the date of transfer but does not include money,

(a) paid under the purchase agreement as rent or as an occupancy charge and not part of the purchase price, or

(b) specified in the purchase agreement as money paid under subsection 80 (4) of the Condominium Act, 1998; (“dépôts”)

“insurers” means the insurers for the time being under any contract or contracts of insurance establishing the guarantee fund; (“assureurs”)

“interest” means the interest at the rate or rates prescribed under the Condominium Act, 1998 required to be paid by the vendor on deposits; (“intérêt”)

“major structural defect” means, for the purposes of clause 13 (1) (b) of the Act, any defect in work or materials,

(a) that results in failure of the load-bearing portion of any building or materially and adversely affects its load-bearing function, or

(b) that materially and adversely affects the use of such building for the purpose for which it was intended,

including significant damage due to soil movement, major cracks in basement walls, collapse or serious distortion of joints or roof structure and chemical failure of materials, but excluding any defect attributable in whole or in part to a Year 2000 compliance problem, flood damage, dampness not arising from failure of a load-bearing portion of the building, damage to drains or services, damage to finishes and damage arising from acts of God, acts of the owners and their tenants, licensees and invitees, acts of civil and military authorities, acts of war, riot, insurrection or civil commotion and malicious damage; (“vice de construction important”)

“pre-delivery inspection date” means the date, on or before the date of possession, on which the vendor and either one or both of the purchaser and the purchaser’s designate conduct an inspection of the home; (“date de l’inspection préalable à la prise de possession”)

“principal” of any corporate applicant or registrant means a person who beneficially owns, directly or indirectly, more than 10 per cent of its outstanding voting shares; (“actionnaire principal”)

“purchase agreement” means an agreement between a vendor and any person providing for the purchase by such person of a home; (“convention d’achat”)

“purchaser” means a person who enters into a purchase agreement with a vendor for the purchase of a home and includes an assignee of the purchaser’s interest in a purchase agreement; (“acheteur”)

“soil movement” means subsidence, expansion or lateral movement of the soil not caused by flood, earthquake, act of God or any other cause beyond the reasonable control of the builder; (“mouvement du sol”)

“warranty certificate” means, in respect of any home or the common elements of any condominium project, the warranty certificate to be issued by the Corporation to the owner or condominium corporation, confirming the warranties provided for in section 13 of the Act; (“certificat de garantie”)

“Year 2000 compliance problem” means a problem that results from,

(a) a value for the current date that causes an interruption in operation, degradation in performance, change in functionality or misrepresentation of information,

(b) data-based processing that does not behave consistently for dates prior to, during and after the year 2000,

(c) data calculations involving either a single century or multiple centuries that cause an abnormal ending or generate incorrect results, or

(d) failure to recognize the year 2000, or any year divisible by four, as a leap year. (“problème de conformité à l’an 2000”) R.R.O. 1990, Reg. 892, s. 1; O. Reg. 430/99, s. 1; O. Reg. 138/01, s. 1; O. Reg. 142/02, s. 1; O. Reg. 320/03, s. 1.

PART II
THE PLAN

Delivery of Documents

2. In connection with the sale or construction of a home, the requirements for the delivery of documents under the Plan are as follows:

1. In the case of a condominium project, promptly following the provision of the required security acceptable to the Corporation and the enrolment of the common elements of the condominium project, the Corporation shall, upon request by the registrant, deliver to the registrant a deposit receipt for every dwelling unit for which security was provided.

2. On the date of possession, the vendor shall deliver to the owner a combined certificate of completion and possession and warranty certificate.

3. In the case of a condominium project that qualifies for warranty coverage on the common elements under the Act, on or promptly following the date of registration of the condominium corporation, the vendor shall deliver to the condominium corporation a combined certificate of completion and possession and warranty certificate for the common elements.

4. For every home with a date of possession on or after October 1, 2003, the vendor shall deliver to the purchaser, on or before the pre-delivery inspection date, the most current freehold or condominium edition, as applicable, of the document entitled Homeowner Information Package published by the Corporation.

5. For every home with a date of possession on or after October 1, 2003, the vendor shall, on the pre-delivery inspection date, complete and sign a certificate of completion and possession form and a pre-delivery inspection form approved by the Corporation and deliver a copy of the completed and signed forms to the purchaser.

6. Within 15 days from the date of possession of each home sold by a vendor, the vendor shall submit to the Corporation the completed and signed forms mentioned in paragraph 5. O. Reg. 142/02, s. 2; O. Reg. 320/03, s. 2.

Certificates of Completion and Possession

3. (1) When, pursuant to a purchase agreement or construction contract, a home is completed for possession by the owner, the vendor or builder shall complete and execute the form of certificate of completion and possession required by the Corporation setting forth the date of possession and the name of the builder (if other than the vendor), identifying any surface defects in work and materials not accepted by the owner and listing any unfinished work. R.R.O. 1990, Reg. 892, s. 3 (1); O. Reg. 142/02, s. 3 (1).

(2) In the case of a condominium project that qualifies for warranty coverage on the common elements under the Act, the vendor shall similarly complete and execute the form of certificate of completion and possession required by the Corporation for the common elements, setting forth the date of registration, identifying any surface defects in work and materials in respect of the common elements not accepted by the condominium corporation and listing any unfinished work required in connection with the common elements. R.R.O. 1990, Reg. 892, s. 3 (2); O. Reg. 142/02, s. 3 (2).

Claims

4. (1) Each person with a claim under the Plan shall give written notice of the claim to the Corporation. R.R.O. 1990, Reg. 892, s. 4 (1).

(2) Forthwith upon receipt by the Corporation of such notice, the Corporation shall furnish the claimant with such forms as it or the insurers may reasonably require for the purpose of establishing and verifying the claimant’s loss. R.R.O. 1990, Reg. 892, s. 4 (2).

(3) If the Corporation fails to furnish such forms, the claimant is entitled to make the claim by giving written notice to the Corporation setting forth in reasonable detail information relating to the claim. R.R.O. 1990, Reg. 892, s. 4 (3).

(4) Promptly after receipt by the Corporation of all information reasonably required to be furnished to it in respect of the claim and after determination of any disputes between the claimant and the vendor as to the liability of the vendor, the Corporation shall serve notice of its decision under section 14 of the Act. R.R.O. 1990, Reg. 892, s. 4 (4).

(5) Claims or conciliations for delayed closing or delayed occupancy made under section 17 for all homes with a date of possession on or after May 1, 2004 shall be made in accordance with the administrative procedures for delayed closing or delayed occupancy published by the Corporation. O. Reg. 117/04, s. 1.

(6) The fees payable by the vendor in connection with conciliations for delayed closing or delayed occupancy made under section 17 for all homes with a date of possession on or after May 1, 2004 are as set out in paragraph 6 of Schedule A. O. Reg. 117/04, s. 1.

4.1 (1) This section and sections 4.2 to 4.6 apply, and section 4 does not apply, to all claims made in respect of homes with a date of possession on or after October 1, 2003, excluding,

(a) claims made in respect of the common elements of a condominium project; and

(b) claims for delayed closing or delayed occupancy made under section 17 in respect of homes with a date of possession on or after May 1, 2004. O. Reg. 117/04, s. 2 (1).

(2) In this section and sections 4.2 to 4.5,

“warranty claim” means a claim for breach of a warranty under subsection 14 (3) of the Act; (“réclamation au titre de la garantie”)

“warranty period”, for a warranty described in subsection 13 (1) of the Act, means the period commencing on the date on which the warranty takes effect under subsection 13 (3) of the Act and expiring on the date that the warranty expires. (“période de garantie”) O. Reg. 320/03, s. 3.

(3) During the first year of the warranty period, the owner shall submit to the Corporation a warranty claim only within one or both of the following time periods:

1. 30 days from the date of possession.

2. The final 30 days of the first year of the warranty period. O. Reg. 320/03, s. 3.

(4) The Corporation may, in its sole discretion, extend or abridge any times specified in this section, sections 4.2 to 4.6 and section 5.1 if it determines that,

(a) the vendor is unable or unwilling to repair or resolve the claim items covered by a warranty; or

(b) the warranty claim involves items requiring seasonal repairs, items involving health and safety or items involving other extraordinary circumstances. O. Reg. 320/03, s. 3.

(5) A person whom this section or any of sections 4.2 to 4.6 requires to submit a form to the Corporation shall submit the form by hand, courier, facsimile transmission or, except during a general interruption of postal service, regular mail or registered mail. O. Reg. 320/03, s. 3.

(6) Submission by hand or courier is effective on the day that the Corporation receives it, if that day is a business day, and otherwise on the next business day. O. Reg. 320/03, s. 3.

(7) Submission by facsimile transmission is effective on the day sent, whether it is a business day or not. O. Reg. 117/04, s. 2 (2).

(8) Submission by regular mail is effective on the post-mark date if the Corporation receives it within five days of the expiry of the period during which this section or any of sections 4.2 to 4.6 permit the submission. O. Reg. 320/03, s. 3.

(9) Submission by registered mail is effective on the post-mark date and the receipt issued in accordance with the regulations relating to registered mail made under the Canada Post Corporation Act (Canada) is admissible in evidence as proof of the post-mark date, in the absence of evidence to the contrary. O. Reg. 320/03, s. 3.

30-Day Claims

4.2 (1) In this section,

“30-day form” means a form that the Corporation requires for a warranty claim that an owner submits to the Corporation within 30 days from the date of possession. O. Reg. 320/03, s. 3.

(2) In order to make a warranty claim within 30 days from the date of possession, the owner shall complete and submit to the Corporation a 30-day form. O. Reg. 320/03, s. 3.

(3) An owner may submit only one 30-day form for a home and the Corporation shall be deemed to have received only the first 30-day form for a home that the owner submits. O. Reg. 320/03, s. 3.

(4) Subject to subsection (5) and section 5.1, if an owner submits a 30-day form to the Corporation within 30 days from the date of possession, the vendor shall have until the 150th day from the date on which the Corporation receives the form to repair or resolve the claim items that are listed on the form and that are covered by a warranty. O. Reg. 320/03, s. 3.

(5) If the vendor does not repair or resolve all of the claim items listed on the 30-day form by the 120th day from the date on which the Corporation receives the form, the owner may request a conciliation by contacting the Corporation at any time between the 121st day and the 150th day, both inclusive, from the date on which the Corporation receives the form. O. Reg. 320/03, s. 3.

(6) If the owner does not request conciliation under subsection (5), the owner shall be deemed to have withdrawn all claim items listed on the 30-day form that the vendor does not repair or resolve by the 150th day from the date on which the Corporation receives the form. O. Reg. 320/03, s. 3.

(7) The owner may re-submit a warranty claim, at the prescribed times, for any claim item that subsection (6) deems the owner to have withdrawn if the warranty period applicable to the claim item has not expired before the date of re-submission. O. Reg. 320/03, s. 3.

Year-End Claims

4.3 (1) In this section,

“year-end form” means a form that the Corporation requires for a warranty claim that an owner submits to the Corporation within the final 30 days of the first year of the warranty period. O. Reg. 320/03, s. 3.

(2) In order to make a warranty claim during the final 30 days of the first year of the warranty period, the owner shall complete and submit to the Corporation a year-end form. O. Reg. 320/03, s. 3.

(3) If more than one year-end form is submitted for a home during the final 30 days of the first year of the warranty period, the claim items listed on the last year-end form submitted to the Corporation for the home shall replace the claim items listed on all other year-end forms submitted for the home. O. Reg. 320/03, s. 3.

(4) Subject to subsection (5) and section 5.1, if an owner submits a year-end form to the Corporation within the final 30 days of the first year of the warranty period, the vendor shall have until the 150th day from the later of the date on which the Corporation receives the form and the day before the first anniversary of the date of possession to repair or resolve the claim items that are listed on the form and that are covered by a warranty. O. Reg. 320/03, s. 3.

(5) If the vendor does not repair or resolve all of the claim items listed on the year-end form by the 120th day from the later of the date on which the Corporation receives the form and the day before the first anniversary of the date of possession, the owner may request a conciliation by contacting the Corporation at any time between the 121st day and the 150th day, both inclusive, from the later of the date on which the Corporation receives the form and the day before the first anniversary of the date of possession. O. Reg. 320/03, s. 3.

(6) If the owner does not request conciliation under subsection (5), the owner shall be deemed to have withdrawn all claim items listed on the year-end form that the vendor does not repair or resolve by the 150th day from the later of the date on which the Corporation receives the form and the day before the first anniversary of the date of possession. O. Reg. 320/03, s. 3.

(7) The owner may re-submit a warranty claim, at the prescribed times, for any claim item that subsection (6) deems the owner to have withdrawn if the warranty period applicable to the claim item has not expired before the date of re-submission. O. Reg. 320/03, s. 3.

Second-Year Claims

4.4 (1) In this section,

“second-year form” means a form that the Corporation requires for a warranty claim that an owner submits to the Corporation during the second year of the warranty period. O. Reg. 320/03, s. 3.

(2) In order to make a warranty claim during the second year of the warranty period, the owner shall complete and submit to the Corporation a second-year form. O. Reg. 320/03, s. 3.

(3) Subject to subsection (4) and section 5.1, if an owner submits a second-year form to the Corporation in the second year of the warranty period, the vendor shall have until the 150th day from the date on which the Corporation receives the form to repair or resolve the claim items that are listed on the form and that are covered by a warranty. O. Reg. 320/03, s. 3.

(4) If the vendor does not repair or resolve all of the claim items listed on the second-year form by the 120th day from the date on which the Corporation receives the form, the owner may request a conciliation by contacting the Corporation at any time between the 121st day and the 150th day, both inclusive, from the date on which the Corporation receives the form. O. Reg. 320/03, s. 3.

Delayed Occupancy Claims

4.5 (1) In this section,

“delayed occupancy form” means a form that the Corporation requires for a warranty claim that an owner submits to the Corporation in respect of a claim under section 17. O. Reg. 320/03, s. 3.

(1.1) This section applies to warranty claims made under section 17 in respect of homes with a date of possession between October 1, 2003 and April 30, 2004, both inclusive. O. Reg. 117/04, s. 3.

(2) In order to make a claim under section 17, the owner shall complete and submit to the Corporation within 30 days from the date of possession or during the final 30 days of the first year of the warranty period, a delayed occupancy form, together with copies of all receipts. O. Reg. 320/03, s. 3.

(3) If an owner submits a delayed occupancy form in accordance with subsection (2), the vendor shall have until the 150th day from the date on which the Corporation receives the form to pay the owner the compensation required under section 17 or to settle the claim. O. Reg. 320/03, s. 3.

(4) If the vendor does not pay the owner the compensation required under section 17 or settle the claim by the 150th day from the date on which the Corporation receives the form, the owner may request an assessment of the claim by contacting the Corporation. O. Reg. 320/03, s. 3.

(5) The Corporation shall, at any time between the 30th day and the 40th day, both inclusive, from the date of the owner’s request, issue to the owner and the vendor a report setting out the Corporation’s assessment of whether compensation is payable by the vendor under section 17 and, if so, the amount. O. Reg. 320/03, s. 3.

(6) The vendor shall have 30 days from the date that the report is issued to pay the amount payable. O. Reg. 320/03, s. 3.

(7) If the vendor does not pay the amount payable within the time period specified in subsection (6), the Corporation shall make payment from the guarantee fund to the owner. O. Reg. 320/03, s. 3.

Major Structural Defect Claims — Years 3 through 7

4.6 (1) In order to make a claim under subsection 14 (4) of the Act for a home, the owner shall complete and submit to the Corporation a major structural defect form in the form that the Corporation requires. O. Reg. 320/03, s. 3.

(2) Within 10 days of receiving the form, the Corporation shall,

(a) conduct an inspection of the home or an assessment of the claim items listed on the form, without doing an inspection of the home; and

(b) issue to the owner a report setting out the Corporation’s assessment of whether the claim items listed on the form are eligible for compensation under subsection 14 (4) of the Act. O. Reg. 320/03, s. 3.

Conciliation of Disputes

5. (0.1) Section 4 applies, and subsection 5 (2) and section 5.1 do not apply, to claims and conciliations for delayed closing or delayed occupancy made under section 17 for all homes with a date of possession on or after May 1, 2004. O. Reg. 117/04, s. 4.

(1) An owner who requires conciliation of a dispute between the owner and the vendor shall make request therefor to the Corporation and both the owner and the vendor shall each pay to the Corporation the applicable conciliation fee set out in Schedule A. R.R.O. 1990, Reg. 892, s. 5 (1).

(2) Within fourteen days of the commencement of the conciliation proceedings, the Corporation shall provide the vendor and the owner with a decision in writing setting forth such remedial work, if any, as may be required to settle the dispute. R.R.O. 1990, Reg. 892, s. 5 (2).

(3) If the Corporation determines that the remedial work will require time to complete, the Corporation shall continue to conduct such inspections of the home as the Corporation considers necessary until the work has been completed. R.R.O. 1990, Reg. 892, s. 5 (3).

(4) If the award of the Corporation is in favour of the owner or if the Corporation rules that the request for conciliation was justified in any event, the conciliation fee paid by the owner shall be refunded by the Corporation. R.R.O. 1990, Reg. 892, s. 5 (4).

5.1 (1) This section applies, and subsection 5 (2) does not apply, to all homes, excluding the common elements of a condominium project, with a date of possession on or after October 1, 2003. O. Reg. 320/03, s. 4.

(2) If an owner requests conciliation in accordance with section 4.2, 4.3 or 4.4, the Corporation shall, at any time between the 30th day and the 40th day, both inclusive, from the date of the request for conciliation, conduct a conciliation and issue to the owner and the vendor a report setting out the Corporation’s assessment of whether the claim items are covered by a warranty and the repairs or compensation, if any, required. O. Reg. 320/03, s. 4.

(3) The vendor shall have a further 30 days from the date on which the report is issued to complete the repairs or pay the compensation required in the report. O. Reg. 320/03, s. 4.

(4) If the vendor does not complete the repairs or pay the compensation, the Corporation shall, subject to subsection 14 (3) of the Act and section 6, pay the compensation out of the guarantee fund to the owner or shall perform or arrange for the performance of the repairs. O. Reg. 320/03, s. 4.

Limits of Liability

6. (1) In the case of a home of a type referred to in clause (a) or (b) of the definition of “home” in section 1 of the Act, the maximum amount payable to a person out of the guarantee fund in respect of a claim under subsection 14 (1) or (2) of the Act is,

(a) $20,000 in respect of a claim in relation to a purchase agreement, or a construction contract, entered into before February 1, 2003; or

(b) $40,000 in respect of a claim in relation to a purchase agreement, or a construction contract, entered into on or after February 1, 2003. O. Reg. 2/03, s. 1.

(2) In the case of a home that is a condominium dwelling unit, the maximum amount payable to a person out of the guarantee fund in respect of a claim under subsection 14 (1) of the Act is $20,000, plus the amount of interest that has accrued, until the time of payment, on the net principal amount payable out of the guarantee fund in respect of the claim. O. Reg. 2/03, s. 1.

(2.1) In subsection (2),

“net principal amount” means the lesser of,

(a) $20,000, and

(b) the amount of deposit paid by the person to a vendor as a credit towards the purchase price under the contract on closing minus amounts required to be deducted from the deposit amount under subsection 14 (6) of the Act. O. Reg. 2/03, s. 1.

(3) In the case of a home of a type referred to in clause (a) or (b) of the definition of “home” in section 1 of the Act, the maximum amount payable to an owner out of the guarantee fund in respect of a claim made after August 1, 1989 under subsection 14 (3) or (4) of the Act is $100,000. O. Reg. 118/91, s. 1 (1); O. Reg. 138/01, s. 2 (2).

Note: On September 1, 2004, subsection (3) is revoked and the following substituted:

(3) In the case of a home of a type referred to in clause (a) or (b) of the definition of “home” in section 1 of the Act, the maximum amount payable to an owner out of the guarantee fund in respect of a claim made under subsection 14 (3) or 14 (4) of the Act is,

(a) $100,000 if the claim relates to a purchase agreement, or a construction contract, entered into before September 1, 2004; or

(b) $150,000 if the claim relates to a purchase agreement, or a construction contract, entered into on or after September 1, 2004. O. Reg. 246/04, s. 1 (1).

See: O. Reg. 246/04, ss. 1 (1), 2.

(4) In the case of a condominium dwelling unit, the maximum amount payable to an owner out of the guarantee fund in respect of a claim made after August 1, 1989 under subsection 14 (3) or (4) of the Act is $100,000. O. Reg. 118/91, s. 1 (2); O. Reg. 138/01, s. 2 (2).

Note: On September 1, 2004, subsection (4) is revoked and the following substituted:

(4) In the case of a condominium dwelling unit, the maximum amount payable to an owner out of the guarantee fund in respect of a claim made under subsection 14 (3) or 14 (4) of the Act is,

(a) $100,000 if the claim relates to a purchase agreement, or a construction contract, entered into before September 1, 2004; or

(b) $150,000 if the claim relates to a purchase agreement, or a construction contract, entered into on or after September 1, 2004. O. Reg. 246/04, s. 1 (1).

See: O. Reg. 246/04, ss. 1 (1), 2.

(5) A condominium corporation that has a claim under subsection 14 (3) or (4) of the Act with respect to a condominium project is entitled, subject to subsection (8), to be paid out of the guarantee fund the cost of rectification of defective work in respect of the common elements of the condominium project. R.R.O. 1990, Reg. 892, s. 6 (5); O. Reg. 138/01, s. 2 (2).

(6) Liability under subsection (3) or (4) is limited to damage to the home only and liability under subsection (5) is limited to damage to the common elements only and there is no liability for any other damage, direct or indirect. R.R.O. 1990, Reg. 892, s. 6 (6).

(7) Liability in respect of the cost of completion of a home is limited to 2 per cent of the sale price of the home or $5,000, whichever is the greater. R.R.O. 1990, Reg. 892, s. 6 (7).

(8) The maximum amount payable out of the guarantee fund in respect of a claim relating to the common elements of a condominium project is the lesser of,

Note: On September 1, 2004, subsection (8) is amended by adding “Subject to subsection (8.1)” at the beginning. See: O. Reg. 246/04, ss. 1 (2), 2.

(a) $2,500,000; or

(b) an amount equal to $50,000 multiplied by the number of condominium dwelling units in the condominium project. O. Reg. 118/91, s. 1 (2).

Note: On September 1, 2004, section 6 is amended by adding the following subsection:

(8.1) As part of the maximum amount payable out of the guarantee fund to a condominium corporation under subsection (8), the maximum amount payable in respect of a claim relating to the common elements of a condominium project registered on or after September 1, 2004, for damage caused by environmentally harmful substances or hazards, deleterious substances, mould or any other fungal or bacterial contamination, is the lesser of,

(a) $100,000; or

(b) an amount equal to $2,000 multiplied by the number of condominium dwelling units in the condominium project. O. Reg. 246/04, s. 1 (3).

See: O. Reg. 246/04, ss. 1 (3), 2.

(9) The limits under subsections (3), (4), (5), (7) and (8) with respect to a home or condominium project are reduced by the amount of any payments previously made under subsection (3), (4), (5), (7) or (8) with respect to the home or condominium project, less any amount recovered by the Corporation or the insurers from any person other than the insurers, by way of indemnity or subrogation. R.R.O. 1990, Reg. 892, s. 6 (9).

(10) As part of the maximum amount payable to an owner out of the guarantee fund under subsection (3), (4) or (8), the maximum amount payable in respect of a sewage disposal system is $25,000 per home, in the case of a home that the builder was required to enrol in the Plan after June 30, 1993 and under section 8. O. Reg. 334/93, s. 1.

Note: On September 1, 2004, section 6 is amended by adding the following subsection:

(11) As part of the maximum amount payable to an owner out of the guarantee fund under subsection (3) or (4), the maximum amount payable in respect of homes sold under purchase agreements, or constructed under construction contracts, entered into on or after September 1, 2004, for damage caused by environmentally harmful substances or hazards, deleterious substances, mould or any other fungal or bacterial contamination, is $15,000 per home. O. Reg. 246/04, s. 1 (3).

See: O. Reg. 246/04, ss. 1 (3), 2.

Guarantee Fund

7. (1) The Corporation shall establish and maintain a guarantee fund with a licensed insurer or insurers acceptable to the board of directors under a contract or contracts approved by the board from time to time. R.R.O. 1990, Reg. 892, s. 7 (1).

(2) Under such a contract, the insurers shall agree to indemnify the Corporation for those sums which the Corporation is obligated to pay by reason of settlement of any dispute, judgment, action or claim arising under the Plan during the term of the contract. R.R.O. 1990, Reg. 892, s. 7 (2).

(3) Despite subsections (1) and (2), the Corporation may establish and administer an uninsured fund as part of the guarantee fund and out of which it may pay claims made under the Plan. R.R.O. 1990, Reg. 892, s. 7 (3).

Enrolment of Homes in the Plan

8. (1) Forthwith upon the issue of a building permit authorizing the construction of a home, other than a condominium dwelling unit, but including a contracted home, the builder shall enrol the home in the Plan by submitting to the Registrar a completed enrolment form as provided by the Corporation together with the enrolment fee set out in Schedule A. R.R.O. 1990, Reg. 892, s. 8 (1).

(2) Not less than thirty days prior to the commencement of construction of a condominium project, the builder shall enrol the condominium project and each unit thereof in the Plan by submitting to the Registrar a completed enrolment form as provided by the Corporation together with the enrolment fee set out in Schedule A. R.R.O. 1990, Reg. 892, s. 8 (2).

(3) Upon the sale by a vendor of any home, including a contracted home, the builder shall provide to the Corporation confirmation in the prescribed form of the final sale price, to enable the Corporation to confirm or adjust the enrolment fee paid under subsection (1) or (2), as the case may be. R.R.O. 1990, Reg. 892, s. 8 (3).

(4) Subject to subsection (5), where a builder has enrolled in the Plan a home, construction of which has not been commenced or which has been commenced but which is not fit for habitation, and where the home is acquired from the builder by a vendor, by way of conveyance, foreclosure or otherwise, it shall be re-enrolled in the Plan by submitting to the Corporation a completed enrolment fee set forth in Schedule A. R.R.O. 1990, Reg. 892, s. 8 (4).

(5) If a home referred to in subsection (4) vests in a trustee in bankruptcy, it shall be re-enrolled only if it was or is subject to a purchase agreement and if the Corporation has paid or is liable to make a payment to the purchaser under subsection 14 (1) of the Act. R.R.O. 1990, Reg. 892, s. 8 (5); O. Reg. 138/01, s. 3; O. Reg. 195/01, s. 2.

PART III
REGISTRATION

Application for Registration

9. (1) Each applicant desiring registration under the Plan shall complete, execute and deliver to the Registrar such form or forms of application as the Registrar may require from time to time. R.R.O. 1990, Reg. 892, s. 9 (1).

(2) The application shall set forth the full name and address of the applicant, the type of business organization of the applicant, the names and addresses of all officers, directors and principals of corporate applicants and of all partners and members of applicants who are partnerships and other unincorporated associations, a brief history of the applicant’s business experience, customer references, particulars of bonding arrangements, an estimate of the number and type of homes expected to be built by the applicant during the twelve months following the date of application, inventories of homes and such other information as the Registrar may reasonably require. R.R.O. 1990, Reg. 892, s. 9 (2).

(3) The applicant shall furnish to the Registrar:

1. An agreement between the applicant and the Corporation providing for the respective rights and obligations of the parties as to the enrolment of homes under the Plan, the performance of work by builders, the sale of homes by vendors and such other matters as the Corporation may reasonably require, such agreement to be in such form as may be required by the Corporation and to be fully completed and executed by the applicant in duplicate.

2. A letter from a bank chartered under the Bank Act (Canada) or from a corporation registered under the Loan and Trust Corporations Act, as to the financial position of the applicant.

3. Financial statements of the applicant and such other information relating to the applicant’s financial affairs as the Registrar may require.

4. Where the applicant is not a builder, evidence satisfactory to the Registrar that the applicant has a continuing agreement or agreements with at least one registrant who is a builder whereby such registrant agrees to perform the work required to meet the warranty obligations of the applicant under the Plan.

4.1 Security for any claim relating to the applicant for any loss, cost or expense paid or payable by the Corporation in such amount and in such form as the Registrar may determine.

5. Such additional documentation related to the application as the Registrar may reasonably require. R.R.O. 1990, Reg. 892, s. 9 (3); O. Reg. 430/99, s. 2 (1).

(4) With each application for registration under the Plan, the applicant shall pay to the Corporation the prescribed registration fee set forth in Schedule A. R.R.O. 1990, Reg. 892, s. 9 (4).

(5) An applicant who fails to comply with the requirements of this section may be refused registration by the Registrar. O. Reg. 430/99, s. 2 (2).

Renewal of Registration

10. (1) Every registration and renewal thereof expires one year after the date it is granted to the registrant. R.R.O. 1990, Reg. 892, s. 10 (1).

(2) Every registrant shall apply for renewal of registration not less than 30 days before the date on which the registration expires, giving full particulars of any change in the facts set forth in the most recent application for registration or renewal of registration on record. O. Reg. 142/02, s. 4.

(3) Every applicant for renewal of registration shall complete, execute and deliver to the Registrar such form or forms of application and such other documentation as the Registrar may provide from time to time. R.R.O. 1990, Reg. 892, s. 10 (3).

(4) With each application for renewal of registration under the Plan, the applicant shall pay to the Corporation the prescribed renewal fee set forth in Schedule A. R.R.O. 1990, Reg. 892, s. 10 (4).

11. Revoked: (PART IV) O. Reg. 430/99, s. 3.

12. Revoked: (PART IV) O. Reg. 430/99, s. 3.

PART V
SUBROGATION

13. (1) The Corporation shall be subrogated to all rights of recovery of a person to whom payment in respect of a claim has been made out of the guarantee fund under the Act and may maintain an action in its own name or the name of the person against any other person against whom the action lies in respect of such rights of recovery. R.R.O. 1990, Reg. 892, s. 13 (1).

(2) The Corporation is entitled under its rights of recovery to conduct legal proceedings, including an action for damages, the quantum of which shall be limited to the amount paid out of the guarantee fund by the Corporation to the person whose rights are subrogated to the Corporation, including any legal costs, plus all costs incurred by the Corporation in the subrogated action. R.R.O. 1990, Reg. 892, s. 13 (2).

(3) Any amount recovered by the Corporation shall be applied,

(a) first, to payment of costs actually incurred by the Corporation in any action or any related action and in levying execution;

(b) second, to reimbursement of the Corporation for the amount of compensation paid by the Corporation to the person out of the guarantee fund; and

(c) third, the balance, if any, to payment of the person whose rights are subrogated. R.R.O. 1990, Reg. 892, s. 13 (3).

(4) Any settlement or release does not bar the rights of the Corporation unless the Corporation has concurred therewith in writing. R.R.O. 1990, Reg. 892, s. 13 (4).

(5) Any person who has been paid money out of the guarantee fund by the Corporation shall forthwith notify the Corporation of any action that such person has brought against any person who caused or contributed to the damages that resulted in the said payment by the Corporation out of the guarantee fund. R.R.O. 1990, Reg. 892, s. 13 (5).

PART VI
WARRANTIES

Water Penetration

14. Every vendor of a new home warrants to the owner that there will be no water penetration through the basement or foundation of the home for two years after the date upon which the home is completed for possession. R.R.O. 1990, Reg. 892, s. 14.

General

15. (1) In this section,

“building envelope” means the wall and roof assemblies that contain the building space, and includes all those elements of the assembly that contribute to the separation of the outdoor and indoor environments so that the indoor environment can be controlled within acceptable limits; (“enveloppe”)

“delivery and distribution systems” include all wires, conduits, pipes, junctions, switches, receptacles and seals, but does not include appliances, fittings and fixtures; (“réseaux de distribution”)

“exterior cladding” means all exterior wall coverings and includes siding and above-grade masonry as required and detailed in the relevant sections of the Ontario Building Code under which the Building Permit was issued. (“habillage extérieur”) R.R.O. 1990, Reg. 892, s. 15 (1).

(2) Every vendor of a new home warrants to the owner,

(a) that the home is constructed in a workmanlike manner and is free from defects in materials including windows, doors and caulking such that the building envelope of the home prevents water penetration;

(b) that the electrical, plumbing and heating delivery and distribution systems are free from defects in material and work;

(c) that all exterior cladding of the home is free from defects in material and work resulting in detachment, displacement or physical deterioration;

(d) that the home is free from violations of the Ontario Building Code regulations under which the Building Permit was issued, affecting health and safety, including but not limited to fire safety, insulation, air and vapour barriers, ventilation, heating and structural adequacy; and

(e) that the home is free of major structural defects. R.R.O. 1990, Reg. 892, s. 15 (2); O. Reg. 697/92, s. 1.

(3) The warranties described in subsection (2) apply only in respect of claims made within two years after the home was completed for possession, in respect of homes that were enrolled, or should have been enrolled, after the 31st day of December, 1990. R.R.O. 1990, Reg. 892, s. 15 (3).

(4) The warranties described in subsection (2) are prescribed under clause 13 (1) (c) of the Act. R.R.O. 1990, Reg. 892, s. 15 (4).

16. Where a home was enrolled after the 31st day of December, 1990, the claim for damages because of a major structural defect may be made within seven years of the date specified in the certificate of completion and possession. R.R.O. 1990, Reg. 892, s. 16.

Delayed Closing

17. (1) Every vendor of a new home of a type referred to in clause (a) or (b) of the definition of “home” in section 1 of the Act warrants to the owner that in the event of a delay in closing that is more than five days beyond,

(a) the date originally fixed for closing the purchase agreement; or

(b) an extension referred to in clause 3 (a) or (b),

the vendor shall compensate the owner for all direct costs caused by the delay in an amount that does not exceed $100 a day for living expenses and $5,000 in total. R.R.O. 1990, Reg. 892, s. 17 (1).

(2) Subsection (1) does not apply to the period of delay in closing caused by a strike, fire, flood, act of God or civil insurrection. R.R.O. 1990, Reg. 892, s. 17 (2).

(3) Subject to paragraph 5 of the Addendum referred to in paragraph 12 of section 1 of Regulation 894 of the Revised Regulations of Ontario, 1990, subsection (1) does not apply where,

(a) the vendor extends the closing beyond the original closing date after giving written notice to the purchaser at least sixty-five days before the original closing date; or

(b) the vendor extends the closing for not more than fifteen days beyond the original closing date or beyond the extended closing date referred to in clause (a), after giving written notice to the purchaser at least thirty-five days before the original closing date or the extended closing date referred to in clause (a). R.R.O. 1990, Reg. 892, s. 17 (3).

(4) Where a claim is made under subsection (1), compensation shall be calculated from the original closing date or the closing date as extended under clause (3) (a) or (b). R.R.O. 1990, Reg. 892, s. 17 (4).

(5) Every vendor of a new home of a type referred to in clause (c) of the definition of “home” in section 1 of the Act warrants to the purchaser that in the event of a delay in occupancy of the condominium dwelling unit that is more than five days beyond,

(a) the confirmed occupancy date fixed as set out in subsections (6) and (7); or

(b) any extension of the confirmed occupancy date under clause (12) (a) or (b),

the vendor shall compensate the purchaser for all direct costs caused by the delay in an amount that does not exceed $100 a day for living expenses and $5,000 in total. O. Reg. 117/91, s. 1.

(6) Every agreement of purchase and sale in respect of a condominium dwelling unit shall contain a confirmed occupancy date or a tentative occupancy date, clearly identified as such. O. Reg. 117/91, s. 1.

(7) If the agreement of purchase and sale contains a tentative occupancy date, a confirmed occupancy date shall be established by written notice delivered to the purchaser,

(a) not more than thirty days after the completion of the roof slab or of the roof trusses and sheathing, as the case may be, or on an earlier date or event set out in the agreement of purchase and sale; and

(b) at least 120 days before the confirmed occupancy date. O. Reg. 117/91, s. 1.

(8) A confirmed occupancy date established under subsection (7) shall not differ from the tentative occupancy date unless the purchase agreement so permits. O. Reg. 117/91, s. 1.

(9) Where a tentative occupancy date has been given, and the vendor fails to set a confirmed occupancy date as specified in subsection (7) at least ninety days before the tentative occupancy date, the tentative occupancy date becomes the confirmed occupancy date for the purpose of calculating compensation under subsection (5). O. Reg. 117/91, s. 1.

(10) Where the vendor is able to provide occupancy before the confirmed occupancy date, the vendor warrants that occupancy before that date will not be required unless the purchaser consents in writing, and upon such consent the revised date becomes the confirmed occupancy date for the purpose of calculating compensation payable under subsection (5). O. Reg. 117/91, s. 1.

(11) Subsection (5) does not apply to a period of delay in occupancy caused by strike, fire, flood, act of God or civil insurrection. O. Reg. 117/91, s. 1.

(12) The vendor may extend the confirmed occupancy date,

(a) by a maximum of 120 days if written notice is given to the purchaser at least sixty-five days before the confirmed occupancy date; or

(b) by a maximum of fifteen days if written notice is given to the purchaser at least thirty-five days before the confirmed occupancy date or an extension of it under clause (a). O. Reg. 117/91, s. 1.

(13) Where a claim is made under subsection (5), compensation shall be calculated from the confirmed occupancy date or any extension of it under clause (12) (a) or (b). O. Reg. 117/91, s. 1.

Substitutions

18. (1) Every vendor of a new home warrants to the owner that the vendor shall make no substitutions in those items of construction or finishing for which the purchaser is entitled to make selection pursuant to the purchase agreement without the written consent of the purchaser. R.R.O. 1990, Reg. 892, s. 18 (1).

(2) Subsection (1) does not apply where,

(a) the purchaser, having been notified, does not make a selection within thirty days after executing the purchase agreement or within such other time period as may be agreed; or

(b) an item selected under clause (a) is not available and the purchaser does not make a selection within seven days of receiving written notice from the vendor or within such other time period as may be agreed that the item is unavailable. R.R.O. 1990, Reg. 892, s. 18 (2).

(3) Every vendor of a new home warrants to the owner that where the purchaser fails to make a selection under clause (2) (a) or (b) that the vendor will make a selection on the purchaser’s behalf that is of equal or better quality than the original selection as set out in the purchase agreement. R.R.O. 1990, Reg. 892, s. 18 (3).

19. Every vendor of a new home warrants to the purchaser that, where the vendor makes a substitution with respect to an item that is referred to in the purchase agreement that is not an item that is to be selected by the purchaser, the item will be of equal or better quality than the item referred to in the purchase agreement. R.R.O. 1990, Reg. 892, s. 19.

19.1 (1) The warranty in section 17 applies to purchase agreements with closing dates on or after the 1st day of September, 1988. O. Reg. 697/92, s. 2.

(2) The warranties in subsection 18 (1) and section 19 apply to purchase agreements entered into after the 30th day of June, 1988. O. Reg. 697/92, s. 2.

Eligibility

20. A claim may be made under subsection 17 (1), subsection 18 (1) or section 19 only where,

(a) the transaction closes; and

(b) the claim is made by an owner within one year after the date upon which the home is completed for possession. R.R.O. 1990, Reg. 892, s. 20.

21. For the purposes of sections 17 and 18, written notice may either be given personally or sent by prepaid ordinary mail to the purchaser at the address in the purchase agreement or at the last known address, in which case it shall be deemed to have been received by the purchaser on the fifth business day following the date of its mailing, except in the event of a postal stoppage or interruption, in which case all notices shall be given personally. R.R.O. 1990, Reg. 892, s. 21.

22. A claim may be made under subsection 17 (5) within one year after the date of possession, if the condominium dwelling unit is occupied and the purchaser is not in default of the purchaser’s obligations under the agreement of purchase and sale. O. Reg. 117/91, s. 2.

23. (1) The warranty in subsection 17 (1) applies to purchase agreements with closing dates on or after the 1st day of September, 1988. O. Reg. 117/91, s. 2.

(2) The warranty in subsection 17 (5) applies to condominium purchase agreements entered into on or after the 1st day of April, 1991. O. Reg. 117/91, s. 2.

(3) The warranties in subsection 18 (1) and section 19 apply to purchase agreements entered into after the 30th day of June, 1988. O. Reg. 117/91, s. 2.

24. A breach of the warranties contained in section 17 is a breach of warranty for the purposes of subsection 14 (3) of the Act and a claim under section 17 is limited to a claim for compensation for costs directly related to the delay. O. Reg. 117/91, s. 2; O. Reg. 138/01, s. 4.

SCHEDULE A

Registration Fee

 

1.

The fee for registration is

$600

Renewal of Registration Fee

 

2.

The fee for renewal of a registration is

300

Enrolment and Re-Enrolment Fee

 

3. (1)

The enrolment fee for every home of a type referred to in clauses (a), (b) and (c) of the definition of “home” in section 1 of the Act is as follows:

 
 

Sale Price of the Home

Fee

 

$100,000 or less

325

 

over $100,000 up to and including $150,000

350

 

over $150,000 up to and including $200,000

400

 

over $200,000 up to and including $250,000

450

 

over $250,000 up to and including $300,000

500

 

over $300,000 up to and including $350,000

550

 

over $350,000 up to and including $400,000

600

 

over $400,000 up to and including $450,000

650

 

over $450,000 up to and including $500,000

700

 

over $500,000

750

      (2)

The sale price of a home referred to in subparagraph (1) is the total amount payable by an owner in an agreement of purchase and sale or construction contract, excluding any applicable taxes.

 

      (3)

The re-enrolment fee per home is

50

Conciliation Fee

 

4.

The fee payable by an owner for a conciliation of a dispute is

50

5.

The fee payable by a vendor for a conciliation of a dispute is,

 
 

    (a) for the first conciliation with respect to each 25 units or fewer sold by the vendor

no fee

 

    (b) for each conciliation after the first conciliation with respect to each 25 units or fewer sold by the vendor

550

Delayed Occupancy Fees

6. (1)

In this paragraph,

 
 

“Delayed Occupancy Administration Fee” means the fee payable by the vendor fixed by the Corporation for a request for conciliation of a claim made under section 17 for every home with a date of possession on or after May 1, 2004, in accordance with the Corporation’s administrative procedures;

 
 

“Delayed Occupancy Re-assessment Fee” means the fee payable by the vendor fixed by the Corporation for re-assessment of a decision of the Corporation in respect of a claim made under section 17 for every home with a date of possession on or after May 1, 2004, in accordance with the Corporation’s administrative procedures.

 

      (2)

This paragraph applies, and paragraph 5 of this Schedule does not apply, to all requests for conciliation of a claim made under section 17 for every home with a date of possession on or after May 1, 2004.

 

      (3)

The Delayed Occupancy Administration Fee is:

 
 

    (a) for all homes with a date of possession between May 1, 2004 and December 31, 2004, both inclusive

600

 

    (b) for all homes with a date of possession between January 1, 2005 and December 31, 2005, both inclusive

1,200

 

    (c) for all homes with a date of possession on or after January 1, 2006.

600

      (4)

Delayed Occupancy Re-assessment Fee, which is non-refundable, is

350

O. Reg. 81/01, s. 1; O. Reg. 320/03, s. 5; O. Reg. 117/04, s. 5.