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Protection for Owners and Purchasers of New Homes Act, 2017, S.O. 2017, c. 33, Sched. 2

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Protection for Owners and Purchasers of New Homes Act, 2017

S.o. 2017, chapter 33
Schedule 2

Consolidation Period: From December 14, 2017 to the e-Laws currency date.

Note: THIS ACT IS NOT YET IN FORCE. It comes into force on a day to be named by proclamation of the Lieutenant Governor.

Last amendment: 2017, c. 33, Sched. 2, s. 72.

Legislative History: 2017, c. 33, Sched. 2, s. 72.

CONTENTS

PART I
INTERPRETATION AND APPLICATION

1.

Purposes

2.

Definitions

3.

Crown bound

4.

Act prevails

PART II
ADMINISTRATION

Delegation

5.

Designation of warranty authority

6.

Administrative agreement

7.

Information sharing

8.

Compliance by warranty authority

9.

Review

10.

Conflict

11.

Revocation of designation

12.

Condition precedent for exercise of certain powers

Warranty Authority

13.

Competency criteria for board members

14.

Composition of the board

15.

Minister’s appointments to board

16.

Appointment of chair

17.

Public access to corporate information

18.

Employees

19.

Not Crown agency

20.

No personal liability, Crown employee

21.

No Crown liability

22.

Indemnification of the Crown

23.

No personal liability, board members and others

24.

Not public money

25.

Audit

26.

Reports

27.

Administrator

28.

Status of board during administrator’s tenure

Powers and Duties of Warranty Authority

29.

Additional powers

30.

Change to objects

31.

Right to use French

32.

Forms and fees

33.

Advisory councils, advisory process

34.

Duty to inform Minister

35.

Advice to the Minister

36.

Research and public education

37.

Information for regulatory authority

Miscellaneous

38.

Registrar

39.

Director

PART III
WARRANTIES AND OTHER PROTECTION

40.

Plan

41.

Requirements for vendors of new homes

42.

Requirements for builders of new homes

43.

Enrolment of new homes in Plan

44.

Suspension or revocation of qualification of enrolment

45.

Cancellation of enrolment

46.

Notice of proposal

47.

Warranties

48.

Protection of money paid

PART IV
CLAIMS FOR COMPENSATION

49.

Guarantee fund

50.

Compensation from guarantee fund

51.

Non-application of other Acts

52.

Claim procedure

PART V
COMPLAINTS, INSPECTIONS, INVESTIGATIONS AND ENFORCEMENT

Complaints

53.

Complaints

54.

Ombudsperson

Inspections and Investigations

55.

Inspectors

56.

Inspections without warrant

57.

Appointment of investigators

58.

Investigations with warrant

59.

Seizure of things not specified

60.

Searches in exigent circumstances

Enforcement

61.

Offences

62.

Orders for compensation, restitution

63.

Default in payment of fines

64.

Liens and charges

PART VI
GENERAL

65.

Confidentiality

66.

Service

67.

Information to provide to regulatory authority

68.

Lieutenant Governor in Council regulations

69.

Minister’s regulations

70.

Warranty authority regulations

71.

Transition

 

Part I
INTERPRETATION and Application

Purposes

1 The purposes of this Act are,

(a) to establish strong warranties and other measures of protection for purchasers and owners of new homes for residential purposes; and

(b) to promote the construction in Ontario of properly built new homes for residential purposes.

Definitions

2 (1) In this Act,

“administrative agreement” means the agreement described in subsection 6 (1); (“accord d’application”)

“builder” means, subject to the prescribed requirements or restrictions, if any, a person who arranges for, manages or undertakes the construction of a new home or who agrees to do any of those things, whether the person is acting,

(a) for the purposes of selling or transferring the home, as prescribed,

(b) under a contract with a vendor,

(c) under a contract with an owner, or

(d) in the prescribed circumstances; (“constructeur”)

“claim” means a claim for compensation out of the guarantee fund in respect of a new home; (“réclamation”)

“common elements” means all the condominium property except the condominium units; (“parties communes”)

“common elements condominium corporation”, “common expenses” and “common interest” have the same meaning as in the Condominium Act, 1998; (“association condominiale de parties communes”, “dépenses communes”, “intérêt commun”)

“condominium corporation” means a corporation as defined in subsection 1 (1) of the Condominium Act, 1998; (“association condominiale”)

“condominium declaration” means a declaration as defined in subsection 1 (1) of the Condominium Act, 1998; (“déclaration de condominium”)

“condominium property” means property as defined in subsection 1 (1) of the Condominium Act, 1998; (“propriété condominiale”)

“condominium unit” means a unit as defined in subsection 1 (1) of the Condominium Act, 1998; (“partie privative de condominium”)

“delegated provisions” means the provisions of this Act and the regulations that the Lieutenant Governor in Council has designated as such under subsection 5 (2); (“dispositions déléguées”)

“Director” means the Director appointed under subsection 39 (1); (“directeur”)

“employ” means to employ, appoint, authorize or otherwise arrange to have another person act on one’s behalf, including as an independent contractor; (“employer”)

“guarantee fund” means the guarantee fund continued by subsection 49 (1); (“fonds de garantie”)

“information sharing agreement” means any of the agreements described in subsection 7 (3); (“accord d’échange de renseignements”)

“inspector” means an inspector appointed under subsection 55 (2) or the registrar acting as an inspector; (“inspecteur”)

“investigator” means an investigator appointed under subsection 57 (1); (“enquêteur”)

“licensee” means the holder of a licence issued under the New Home Construction Licensing Act, 2017; (“titulaire de permis”, see also “agréé”)

“Minister” means the Minister of Government and Consumer Services or any other member of the Executive Council to whom the responsibility for the administration of this Act is assigned under the Executive Council Act; (“ministre”)

“new home” means, subject to the prescribed requirements or restrictions, if any, any of the following property and any structure or appurtenance used in conjunction with it:

1. A building that is a residential dwelling, whether detached or attached to one or more other buildings by one or more common walls.

2. A residential dwelling in a building with more than one and less than the prescribed number of residential dwellings, all of which are under the same ownership.

3. In the case of a condominium corporation that is not a common elements condominium corporation,

i. a condominium unit that is a residential dwelling, including the common elements in respect of which the unit has an appurtenant common interest as described in the condominium declaration of the corporation, and

ii. the property owned by the corporation.

4. In the case of a common elements condominium corporation,

i. a parcel of land mentioned in subsection 139 (1) of the Condominium Act, 1998 to which a common interest is attached and that is described in the condominium declaration of the corporation, including the common elements in respect of that common interest, unless the parcel of land is not a residential dwelling, and

ii. the property owned by the corporation.

5. Any other prescribed residential dwelling; (“logement neuf”)

“officer” includes,

(a) the chair and any vice-chair of the board of directors, the president and any vice-president, the secretary and assistant secretary, the treasurer and assistant treasurer and the general manager and assistant general manager of a corporation or the warranty authority,

(b) a partner or general manager and assistant general manager of a partnership,

(c) any other individual designated as an officer by by-law or resolution of an organization,

(d) any other individual who performs functions normally performed by an individual occupying an office described in clause (a), (b) or (c), and

(e) any other prescribed individual; (“dirigeant”)

“owner” means, subject to the prescribed requirements or restrictions, if any, a person who,

(a) first acquires an interest or right in a new home from a vendor,

(b) for the purposes of a new home built under a contract with a person other than a vendor, is the owner of the land who has entered into the contract with the builder, or

(c) a prescribed successor to the person described in clause (a) or (b); (“propriétaire”)

“owner-builder” means, subject to the prescribed requirements or restrictions, if any, an individual who constructs or manages the construction of a residential dwelling for the individual’s personal use and occupation and who meets the prescribed requirements, if any; (“constructeur-propriétaire”)

“Plan” means the Ontario New Home Warranties and Protection Plan continued by section 40; (“Régime”)

“prescribed” means prescribed by the regulations; (“prescrit”)

“regulations” means regulations made under this Act; (“règlements”)

“regulatory authority” has the same meaning as in the New Home Construction Licensing Act, 2017; (“organisme de réglementation”)

“Tribunal” means the Licence Appeal Tribunal established under the Licence Appeal Tribunal Act, 1999 or whatever other tribunal is prescribed; (“Tribunal”)

“vendor” means, subject to the prescribed requirements or restrictions, if any, the person who sells or transfers, as prescribed, the prescribed property interest or right of the person in a new home to an owner, whether or not the person is a builder who builds the home under a contract with the owner; (“vendeur”)

“warranty authority” means the corporation that the Lieutenant Governor in Council has designated as such under subsection 5 (1). (“organisme de garantie”)

Interested person

(2) For the purposes of this Act, a person shall be deemed to be an interested person in respect of another person if the person is associated with the other person or if, in the opinion of the registrar,

(a) the person has or may have a beneficial interest in the other person’s activities;

(b) the person exercises or may exercise control either directly or indirectly over the other person; or

(c) the person has provided or may have provided financing either directly or indirectly for the other person’s activities.

Associated persons

(3) For the purposes of this Act, one person is associated with another person in any of the following circumstances:

1. One person is a corporation of which the other person is an officer or director.

2. One person is a partnership of which the other person is a partner.

3. Both persons are partners of the same partnership.

4. One person is a corporation that is controlled directly or indirectly by the other person.

5. Both persons are corporations and one corporation is controlled directly or indirectly by the same person who controls directly or indirectly the other corporation.

6. Both persons are members of the same voting trust relating to shares of a corporation.

7. Both persons are associated within the meaning of paragraphs 1 to 6 with the same person.

Owner of common elements

(4) For the purposes of Parts III and IV, a condominium corporation shall be deemed to be the owner of the common elements in the corporation.

Claim re common elements, etc.

(5) For the purposes of Part IV and despite subsection (4), an owner who is not the condominium corporation described in that subsection may, in the circumstances that are prescribed, make a claim to the warranty authority with respect to the common elements or the property owned by the corporation that is a new home under subparagraph 3 ii or 4 ii of the definition of that term in subsection (1).

Crown bound

3 Subject to the prescribed restrictions, if any, this Act binds the Crown.

Act prevails

4 This Act applies despite any agreement to the contrary.

Part II
ADMINISTRATION

Delegation

Designation of warranty authority

5 (1) The Lieutenant Governor in Council may, by regulation, designate a not-for-profit corporation without share capital incorporated under the laws of Ontario as the warranty authority for the purposes of this Act.

Delegated provisions

(2) Subject to subsection (3), the Lieutenant Governor in Council may, by regulation, designate provisions of this Act and the regulations, except for this Part and sections 68, 69 and 70, as the delegated provisions.

Restriction

(3) In a regulation mentioned in subsection (2), the Lieutenant Governor in Council may restrict the delegated provisions to specified aspects or purposes of the provisions.

Delegation of administration

(4) If the Lieutenant Governor in Council designates a corporation as the warranty authority, the administration of the delegated provisions is delegated to the authority and the authority shall carry out the administration of the delegated provisions.

Administrative agreement

6 (1) The Lieutenant Governor in Council shall not designate a corporation under subsection 5 (1) until the Minister and the corporation have entered into an agreement to be known as the administrative agreement.

Contents

(2) The administrative agreement shall include, at a minimum, terms related to the following matters:

1. The governance of the warranty authority.

2. All matters that the Minister considers necessary for the warranty authority to carry out the administration of the delegated provisions.

3. The maintenance by the warranty authority of adequate insurance against liability arising out of the carrying out of its powers and duties under this Act or the regulations.

4. The financial terms of the delegation of the administration of the delegated provisions, including payments to the Crown, licence fees, royalties and reimbursements for transfer of assets.

Compliance with operating principle

(3) The administrative agreement shall require the warranty authority to comply with the principle of promoting the protection of the public interest in general, and of consumers in particular.

Information sharing

7 (1) The warranty authority shall share the prescribed information with the Minister, the regulatory authority and prescribed persons in accordance with the regulations and in the manner and within the time prescribed.

Personal information

(2) For greater certainty, the prescribed information may include personal information as defined in subsection 2 (1) of the Freedom of Information and Protection of Privacy Act.

Agreements

(3) For the purpose of complying with subsection (1), the warranty authority shall, in accordance with the regulations, enter into agreements with the Minister, the regulatory authority and prescribed persons in the manner and within the time prescribed.

Content of agreements

(4) The information sharing agreements mentioned in subsection (3) shall include the prescribed information, which may include information about,

(a) the enrolment, or qualification for enrolment, of new homes in the Plan;

(b) claims for compensation from the guarantee fund;

(c) the result of the claims mentioned in clause (b); and

(d) all other information that is prescribed.

Sharing of enforcement information

(5) An information sharing agreement may also require the sharing of enforcement information regarding actions that the registrar is taking or is proposing to take in relation to matters set out in subsection (4).

Compliance by warranty authority

8 In carrying out its powers and duties under this Act or the regulations, the warranty authority shall comply with this Act, the regulations, the administrative agreement, the information sharing agreements and other applicable law.

Review

9 (1) The Minister may,

(a) require that policy, legislative or regulatory reviews related to the powers and duties of the warranty authority under this Act, the regulations, the administrative agreement or the information sharing agreements be carried out,

(i) by or on behalf of the authority, or

(ii) by a person or entity specified by the Minister; or

(b) require that reviews of the warranty authority, of its operations, or of both, including, without limitation, performance, governance, accountability and financial reviews, be carried out,

(i) by or on behalf of the authority, or

(ii) by a person or entity specified by the Minister.

Access to records

(2) If a review is carried out by a person or entity specified by the Minister, the warranty authority shall give the person or entity specified by the Minister and the employees of the person or entity access to all records and other information required to conduct the review.

Conflict

10 In the event of conflict, this Act and the regulations prevail over,

(a) the administrative agreement and the information sharing agreements;

(b) the Corporations Act, the Corporations Information Act or a regulation made under either of those Acts; and

Note: On the later of the day section 10 of this Act comes into force and the day subsection 4 (1) of the Not-for-Profit Corporations Act, 2010 comes into force, clause 10 (b) of this Act is amended by striking out “the Corporations Act” and substituting “the Not-for-Profit Corporations Act, 2010”. (See: 2017, c. 33, Sched. 2, s. 72 (1))

(c) the constating documents, by-laws and resolutions of the warranty authority.

Section Amendments with date in force (d/m/y)

2017, c. 33, Sched. 2, s. 72 (1) - not in force

Revocation of designation

11 (1) The Lieutenant Governor in Council may, by regulation, revoke the designation of the warranty authority if the Lieutenant Governor in Council considers it advisable to do so in the public interest.

Revocation for non-compliance

(2) The Lieutenant Governor in Council may, by regulation, revoke the designation of the warranty authority if,

(a) the authority has failed to comply with this Act, the regulations, the administrative agreement, any of the information sharing agreements or other applicable law;

(b) the Minister has allowed the authority the opportunity of remedying its default within a specified time period that the Minister considers reasonable in the circumstances; and

(c) the authority has not remedied its default to the Minister’s satisfaction within the specified time period mentioned in clause (b) and the Minister has so advised the Lieutenant Governor in Council.

Same, no restriction on subs. (1)

(3) Nothing in subsection (2) restricts the ability of the Lieutenant Governor in Council to act under subsection (1).

Revocation on request

(4) The Lieutenant Governor in Council may, by regulation, revoke the designation of the warranty authority on the terms that the Lieutenant Governor in Council considers advisable in the public interest if the authority requests the revocation.

Non-application of other Act

(5) The Statutory Powers Procedure Act does not apply to the exercise by the Lieutenant Governor in Council of a right under this section to revoke the designation of the warranty authority.

Transition

(6) If the Lieutenant Governor in Council revokes the designation of the warranty authority under this section, the Lieutenant Governor in Council may, by regulation, provide for any transitional matter necessary for the effective implementation of the revocation, including,

(a) the transfer, without compensation, of any property, including assets, liabilities, rights, obligations, records, databases, bank accounts and money, that the authority holds in respect of carrying out its activities; and

(b) the assignment, without compensation, of any contracts that the authority has entered into before the revocation.

No Crown liability

(7) No cause of action arises against the Crown, a minister of the Crown, a Crown employee or a Crown agent as a direct or indirect result of the revocation of the designation of the warranty authority or any regulation made under subsection (6).

No proceeding

(8) No proceeding, including but not limited to any proceeding in contract, restitution, tort or trust, shall be instituted against the Crown, a minister of the Crown, a Crown employee or a Crown agent by a person who has suffered any damages, injury or other loss based on or related to any cause of action described in subsection (7).

Condition precedent for exercise of certain powers

12 The Minister may exercise a power under subsection 27 (1) or any other prescribed provision only if the Minister is of the opinion that it is advisable to exercise the power in the public interest because at least one of the following conditions is satisfied:

1. The exercise of the power is necessary to prevent serious harm to the interests of the public, purchasers of new homes or owners.

2. An event of force majeure has occurred.

3. The warranty authority is facing a risk of insolvency.

4. The number of members of the board of the warranty authority is insufficient for a quorum.

Warranty Authority

Competency criteria for board members

13 (1) The Minister may, by regulation, establish competency criteria for members of the board of the warranty authority.

Restriction

(2) A person is qualified to be appointed or elected to the board only if the person meets the competency criteria, if any, established under subsection (1).

Conflict

(3) In the event of a conflict, a regulation made under subsection (1) prevails over a constating document, by-law or resolution of the warranty authority.

Composition of the board

14 (1) The Minister may, by regulation, provide that no more than a fixed percentage of members of the board of the authority shall be drawn from among the persons or classes of persons that are prescribed.

Conflict

(2) In the event of a conflict, a regulation made under subsection (1) prevails over a constating document, by-law or resolution of the warranty authority.

Minister’s appointments to board

15 (1) The Minister may appoint at pleasure one or more members to the board of the warranty authority for a term specified in the appointment.

Majority

(2) The number of members appointed by the Minister shall not form a majority of the board.

Representation

(3) The members appointed by the Minister may include,

(a) representatives of the public, consumer groups, businesses or government organizations; and

(b) representatives of other interests as the Minister determines.

Appointment of chair

16 The Minister may appoint a chair from among the members of the board of the warranty authority.

Public access to corporate information

17 (1) The warranty authority shall make available to the public, on its website and by any other means that the authority determines, the following information within the prescribed time:

1. Prescribed information relating to the compensation of board members, officers and employees and relating to any other payments that the authority makes or is required to make to them.

2. Corporate by-laws of the authority.

3. Any other information that is prescribed.

Compensation information

(2) A regulation made under paragraph 1 of subsection (1) may require that the warranty authority make available to the public under that subsection information relating to the compensation of a board member or officer who is in office on the day this section comes into force or an individual who is an employee on that day, where the information is for a period that begins before that day.

Effect of compliance

(3) If the warranty authority makes available to the public information relating to compensation in accordance with subsection (1), or in the reasonable belief that action is required by that subsection, no court or person shall find that the authority,

(a) has contravened any Act enacted or regulation made before or after this section comes into force; or

(b) is in breach of or has contravened any agreement that purports to restrict or prohibit that action, regardless of whether the agreement is made before or after this section comes into force.

Processes and procedures

(4) The warranty authority shall follow the prescribed processes and procedures with respect to providing access to the public to records of the authority and with respect to managing personal information contained in those records.

Employees

18 (1) Subject to the administrative agreement, the warranty authority may employ or retain the services of any qualified person to carry out any of its powers and duties under this Act or the regulations.

Not Crown employees

(2) The following persons are not employees of the Crown and shall not hold themselves out as such:

1. Persons who are employed or whose services are retained under subsection (1).

2. Members, officers and agents of the warranty authority.

3. Members of the board of the warranty authority, including those appointed by the Minister.

Not Crown agency

19 (1) Despite the Crown Agency Act, the warranty authority is not an agent of the Crown for any purpose and shall not hold itself out as such.

Same

(2) The following persons are not agents of the Crown and shall not hold themselves out as such:

1. Persons who are employed or whose services are retained by the warranty authority under subsection 18 (1).

2. Members, officers and agents of the warranty authority.

3. Members of the board of the warranty authority, including those appointed by the Minister.

No personal liability, Crown employee

20 (1) No action or other proceeding shall be instituted against an employee of the Crown for an act done in good faith in the execution or intended execution of a duty under this Act or the regulations or for an alleged neglect or default in the execution in good faith of that duty.

Tort by Crown employee

(2) Despite subsections 5 (2) and (4) of the Proceedings Against the Crown Act, subsection (1) of this section does not relieve the Crown of liability in respect of a tort committed by an employee of the Crown to which it would otherwise be subject.

No Crown liability

21 (1) No cause of action arises against the Crown, a minister of the Crown, a Crown employee or a Crown agent as a result of any act or omission of a person who is not a minister of the Crown, a Crown employee or a Crown agent, if the act or omission is related, directly or indirectly, to the activities or affairs of the warranty authority or to the administration of this Act.

No proceeding

(2) No proceeding, including but not limited to any proceeding in contract, restitution, tort or trust, shall be instituted against the Crown, a minister of the Crown, a Crown employee or a Crown agent by a person who has suffered any damages, injury or other loss based on or related to any cause of action described in subsection (1).

Indemnification of the Crown

22 The warranty authority shall indemnify the Crown, in accordance with the administrative agreement, in respect of damages and costs incurred by the Crown for any act or omission of the authority or its members, officers, directors, employees or agents in the execution or intended execution of their powers and duties under this Act, the regulations, the administrative agreement or the information sharing agreements.

No personal liability, board members and others

23 (1) No action or other proceeding shall be instituted against a person mentioned in subsection (2) for an act done in good faith in the execution or intended execution of any of the person’s powers or duties under this Act or the regulations or for an alleged neglect or default in the execution in good faith of that power or duty.

Same

(2) Subsection (1) applies to,

(a) members of the board of the warranty authority;

(b) persons who perform functions under this Act or the regulations as employees, agents or officers of the warranty authority or as persons whose services it retains;

(c) members of committees of the warranty authority who perform functions under this Act or the regulations; and

(d) individuals who perform functions under this Act or the regulations.

Liability of warranty authority

(3) Subsection (1) does not relieve the warranty authority of liability to which it would otherwise be subject.

Not public money

24 (1) The money that the warranty authority collects in carrying out its powers and duties under this Act or the regulations is not public money within the meaning of the Financial Administration Act.

Use of money

(2) Subject to section 29 and the administrative agreement, the warranty authority may use the money described in subsection (1) to carry out activities in accordance with its objects.

Note: On the later of the day subsection 24 (2) of this Act comes into force and the day subsection 4 (1) of the Not-for-Profit Corporations Act, 2010 comes into force, the English version of subsection 24 (2) of this Act is amended by striking out “objects” at the end and substituting “purposes”. (See: 2017, c. 33, Sched. 2, s. 72 (2))

Section Amendments with date in force (d/m/y)

2017, c. 33, Sched. 2, s. 72 (2) - not in force

Audit

25 (1) The Auditor General appointed under the Auditor General Act may conduct an audit of the warranty authority, other than an audit required under the Corporations Act.

Note: On the later of the day subsection 25 (1) of this Act comes into force and the day subsection 4 (1) of the Not-for-Profit Corporations Act, 2010 comes into force, subsection 25 (1) of this Act is amended by striking out “the Corporations Act” at the end and substituting “the Not-for-Profit Corporations Act, 2010”. (See: 2017, c. 33, Sched. 2, s. 72 (3))

Access to records and information

(2) If the Auditor General conducts an audit under subsection (1), the warranty authority shall give the Auditor General and employees of the Auditor General access to all records and other information required to conduct the audit.

Section Amendments with date in force (d/m/y)

2017, c. 33, Sched. 2, s. 72 (3) - not in force

Reports

26 (1) The board of the warranty authority shall report to the Minister on its activities and financial affairs as they relate to this Act, the administrative agreement and the information sharing agreements.

Form and contents

(2) The report shall be in a form acceptable to the Minister and shall provide the information that the Minister requires.

Time for reports

(3) The board of the warranty authority shall prepare the report for each year and at the other times that the Minister specifies.

Disclosure by board

(4) The board of the warranty authority shall publish the report on the authority’s website and by any other method within the period and in the manner that the Minister requires.

Administrator

27 (1) Subject to section 12, the Minister may, by order, appoint an individual as an administrator of the warranty authority for the purposes of assuming control of it and responsibility for its activities.

Notice of appointment

(2) The Minister shall give the board of the warranty authority the notice that the Minister considers reasonable in the circumstances before appointing the administrator.

Immediate appointment

(3) Subsection (2) does not apply if there are not enough members on the board to form a quorum.

Term of appointment

(4) The appointment of the administrator is valid until the Minister makes an order terminating it.

Powers and duties of administrator

(5) Unless the order appointing the administrator provides otherwise, the administrator has the exclusive right to exercise all the powers and perform all the duties of the directors, officers and members of the warranty authority.

Same, limitations

(6) In the order appointing the administrator, the Minister may specify the administrator’s powers and duties and the conditions governing them.

Right of access

(7) The administrator has the same rights as the board in respect of the documents, records and information of the warranty authority.

Report to Minister

(8) The administrator shall report to the Minister as the Minister requires.

Minister’s directions

(9) The Minister may issue directions to the administrator about any matter within the administrator’s jurisdiction, and the administrator shall carry them out.

No personal liability

(10) No action or other proceeding shall be instituted against the administrator for an act done in good faith in the execution or intended execution of a duty or power under this Act, the regulations, the delegated provisions, a Minister’s order or the appointment under subsection (1), or for an alleged neglect or default in the execution in good faith of that duty or power.

Crown liability

(11) Despite subsections 5 (2) and (4) of the Proceedings Against the Crown Act, subsection (10) of this section does not relieve the Crown of liability to which it would otherwise be subject.

Liability of warranty authority

(12) Subsection (10) does not relieve the warranty authority of liability to which it would otherwise be subject.

Status of board during administrator’s tenure

28 (1) On the appointment of an administrator under section 27, the members of the board of the warranty authority cease to hold office, unless the order provides otherwise.

Same

(2) During the term of the administrator’s appointment, the powers of any member of the board who continues to hold office are suspended, unless the order provides otherwise.

No personal liability

(3) No action or other proceeding shall be instituted against a member or former member of the board for anything done by the administrator or the warranty authority after the member’s removal under subsection (1) or while the member’s powers are suspended under subsection (2).

Crown liability

(4) Despite subsections 5 (2) and (4) of the Proceedings Against the Crown Act, of this section subsection (3) does not relieve the Crown of liability to which it would otherwise be subject.

Liability of warranty authority

(5) Subsection (3) does not relieve the warranty authority of liability to which it would otherwise be subject.

Powers and Duties of Warranty Authority

Additional powers

29 (1) The warranty authority may carry out activities in addition to those provided for under this Act in accordance with its objects, subject to subsection (2).

Note: On the later of the day subsection 29 (1) of this Act comes into force and the day subsection 4 (1) of the Not-for-Profit Corporations Act, 2010 comes into force, the English version of subsection 29 (1) of this Act is amended by striking out “objects” and substituting “purposes”. (See: 2017, c. 33, Sched. 2, s. 72 (4))

Commercial activities

(2) The warranty authority shall not engage in commercial activity through a person or entity that is related to the authority.

Section Amendments with date in force (d/m/y)

2017, c. 33, Sched. 2, s. 72 (4) - not in force

Change to objects

30 The warranty authority shall not make any changes to its objects unless the Minister’s written approval is obtained in advance.

Note: On the later of the day section 30 of this Act comes into force and the day subsection 4 (1) of the Not-for-Profit Corporations Act, 2010 comes into force, the English version of section 30 of this Act is amended by striking out “objects” and substituting “purposes”. (See: 2017, c. 33, Sched. 2, s. 72 (5))

Section Amendments with date in force (d/m/y)

2017, c. 33, Sched. 2, s. 72 (5) - not in force

Right to use French

31 (1) A person has the right to communicate in French with, and to receive available services in French from, the warranty authority.

Definition

(2) In subsection (1),

“service” means any service or procedure that is provided to the public by the warranty authority in carrying out its powers and duties under this Act or the regulations and includes,

(a) responding to inquiries from members of the public, and

(b) any other communications for the purpose of providing the service or procedure.

Board’s duty

(3) The board of directors of the warranty authority shall take all reasonable measures and make all reasonable plans to ensure that persons may exercise the right to use French given by this section.

Limitation

(4) The right to use French given by this section is subject to the limits that are reasonable in the circumstances.

Forms and fees

32 (1) The warranty authority may,

(a) establish forms related to the administration of the delegated provisions and provide for their content;

(b) in accordance with processes and criteria established by the authority and approved by the Minister, set and collect fees, costs or other charges related to the administration of the delegated provisions; and

(c) make rules governing the payment of the fees, costs and charges described in clause (b).

Setting fees

(2) In setting the fees, costs and charges described in clause (1) (b), the warranty authority may specify their amounts or the method for determining the amounts.

Publication of fee schedule

(3) The warranty authority,

(a) shall publish the fees, costs and charges, processes, criteria and rules on its website or by any other electronic means required under the administrative agreement; and

(b) may publish that information in any other format that the authority considers advisable.

Advisory councils, advisory process

33 The Minister may require the warranty authority to,

(a) establish one or more advisory councils;

(b) include, as members of an advisory council, representatives of the public, consumer groups, businesses or government organizations and other persons as the Minister determines; or

(c) undertake an advisory process in which it seeks advice from one or both of the public and persons with experience or knowledge relating to this Act.

Duty to inform Minister

34 The warranty authority shall advise the Minister with respect to,

(a) any material fact that could affect the authority’s ability to perform its duties under this Act or the regulations; or

(b) any urgent or critical matter that is likely to require action by the Minister to ensure that the administration of the delegated provisions is carried out properly.

Advice to the Minister

35 (1) The warranty authority shall advise or report to the Minister on any matter that the Minister refers to it and that relates to this Act or the administration of the delegated provisions.

Suggestions for legislative amendments

(2) The warranty authority may suggest to the Minister amendments to Ontario legislation that it considers would,

(a) further the purpose of this Act; or

(b) assist the authority in carrying out its powers and duties under this Act or the regulations.

Research and public education

36 (1) The warranty authority shall participate, as prescribed, in,

(a) doing research into cost effective building techniques, processes and materials; and

(b) identifying, in cooperation with other organizations, best practices for new home construction.

Consumer education

(2) The warranty authority shall engage in efforts to support consumer education and awareness about new home construction, ownership and maintenance.

Public information officer

(3) The warranty authority may appoint a public information officer.

Duties

(4) If appointed, the duties of the public information officer shall include assisting the warranty authority in carrying out its consumer education and awareness efforts.

Information for regulatory authority

37 (1) The registrar may require vendors, builders and other prescribed persons to disclose to the registrar, in accordance with regulations, the information that is related to the administration of this Act, that is prescribed or that is designed to assist the regulatory authority in carrying out its duties under section 33 of the New Home Construction Licensing Act, 2017.

Forwarding information

(2) In accordance with the information sharing agreements and the regulations, the warranty authority shall forward to the regulatory authority the information that it collects under subsection (1).

Miscellaneous

Registrar

38 (1) The board of the warranty authority shall appoint a registrar for the purposes of this Act and may appoint one or more deputy registrars.

Deputy registrars

(2) A deputy registrar may exercise the powers and perform the duties of the registrar that the registrar specifies and shall, if the registrar so directs, act as the registrar in the registrar’s absence.

If more than one deputy registrar

(3) If more than one deputy registrar is appointed, only one deputy registrar may act as the registrar under subsection (2) at any one time in respect of the powers and duties that the registrar specifies.

Director

39 (1) Subject to subsection (2), the board of the warranty authority shall appoint a Director for the purposes of this Act and may appoint one or more Deputy Directors.

Restriction

(2) A person appointed as the registrar or a deputy registrar under section 38 shall not be appointed as the Director or a Deputy Director under subsection (1) of this section.

Deputy Directors

(3) A Deputy Director shall perform the duties that the Director assigns and shall, if directed by the Director, act as the Director in the Director’s absence.

If more than one Deputy Director

(4) If more than one Deputy Director is appointed, only one Deputy Director may act as the Director under subsection (3) at any one time in respect of the powers and duties that the Director specifies.

PART III
WARRANTIES AND OTHER PROTECTION

Plan

40 The Ontario New Home Warranties Plan is continued under the name Ontario New Home Warranties and Protection Plan in English and Régime ontarien de garanties et de protection pour les logements neufs in French and is comprised of the warranties, protection, guarantee fund and compensation provided by this Act.

Requirements for vendors of new homes

41 A vendor shall not sell or offer to sell a new home unless the vendor,

(a) is licensed as a vendor under the New Home Construction Licensing Act, 2017;

(b) has provided the registrar with the particulars that the registrar requires and in the manner that the registrar requires;

(c) has paid the registrar the fee that the registrar requires;

(d) has complied with the other requirements, if any, that are prescribed;

(e) has received confirmation from the registrar that the home,

(i) qualifies for enrolment in the Plan, if construction of the home has not commenced, or

(ii) has been enrolled in the Plan, if construction of the home has commenced; and

(f) has provided the registrar appointed under section 35 of the New Home Construction Licensing Act, 2017 with a copy of the confirmation described in clause (e).

Requirements for builders of new homes

42 (1) Subject to the prescribed requirements or restrictions, if any, a builder shall not offer to enter into a contract with an owner of land for the construction of a new home on the land unless the builder,

(a) is licensed as a builder under the New Home Construction Licensing Act, 2017; and

(b) has complied with the other requirements, if any, that are prescribed.

Offering to commence construction

(2) A builder shall not offer to commence constructing a new home unless the builder has complied with clauses (1) (a) and (b).

Contract for construction

(3) Subject to the prescribed requirements or restrictions, if any, a builder shall not enter into a contract with an owner of land for the construction of a new home on the land unless the builder,

(a) is licensed as a builder under the New Home Construction Licensing Act, 2017;

(b) has notified the registrar of the intention to commence construction;

(c) has provided the registrar with the particulars that the registrar requires and in the manner that the registrar requires;

(d) has paid the registrar the fee that the registrar requires;

(e) has complied with the other requirements, if any, that are prescribed;

(f) has received confirmation from the registrar that the home has been enrolled in the Plan; and

(g) has provided the registrar appointed under section 35 of the New Home Construction Licensing Act, 2017 with a copy of the confirmation described in clause (f).

Commencing construction

(4) A builder shall not commence constructing a new home unless the builder has complied with clauses (3) (a) to (g).

Enrolment of new homes in Plan

43 (1) A vendor or a builder of a new home that has not been constructed may apply to the registrar for a determination whether the home qualifies for enrolment in the Plan.

Same, enrolment

(2) A builder of a new home may apply to the registrar to enrol the home in the Plan.

Application

(3) An application described in subsection (1) or (2) shall be in the form and manner that the registrar requires and shall include the information that the registrar reasonably requests with respect to the new home and the other information, if any, that is prescribed.

Determination of registrar

(4) Upon receiving an application described in subsection (1) or (2), the registrar shall, subject to section 46, determine whether to grant it and may consider the past and present financial position or conduct of the applicant, an interested person in respect of the applicant or any other prescribed person.

Conditions

(5) Subject to section 46, the registrar may impose conditions that must be satisfied,

(a) before the registrar makes a determination that a new home qualifies for enrolment in the Plan;

(b) in order for a new home to continue to qualify for enrolment in the Plan; or

(c) before the registrar enrols a new home in the Plan.

Registrar’s confirmation

(6) When the registrar grants an application described in subsection (1) and all conditions imposed under clause (5) (a) have been met, the registrar shall provide the confirmation that the home qualifies for enrolment in the Plan to the applicant under the application and any other prescribed person in the prescribed manner.

Same, enrolment

(7) When the registrar grants an application described in subsection (2) and all conditions imposed under clauses (5) (b) and (c) have been met, the registrar shall provide the confirmation that the home has been enrolled in the Plan to the builder and any other prescribed person in the prescribed manner.

Licensing conditions

(8) At any time after the registrar provides a confirmation described in subsection (6) or (7) to a licensee under that subsection, the registrar may notify the registrar appointed under section 35 of the New Home Construction Licensing Act, 2017 of conditions that the warranty authority requests be attached to the licence of the licensee or, subject to subsection (9), that it requires be attached to the licence.

Mandatory licensing conditions

(9) The registrar may not require the registrar appointed under section 35 of the New Home Construction Licensing Act, 2017 to attach conditions to the licence of the licensee except in the prescribed circumstances.

Owner-builder

(10) The prescribed provisions of this section apply to an owner-builder in the prescribed circumstances, if any, subject to the conditions, if any, that are prescribed.

Suspension or revocation of qualification of enrolment

44 Subject to section 46, at any time after the registrar has made a determination that a new home qualifies for enrolment in the Plan and before the registrar enrols the home in the Plan, the registrar may suspend or revoke the determination.

Cancellation of enrolment

45 Subject to section 46, at any time after the registrar enrols a new home in the Plan, the registrar may cancel the enrolment if the registrar determines that the home ceases to meet the definition of a new home.

Notice of proposal

46 (1) The registrar shall notify an applicant or person if the registrar proposes to,

(a) refuse to grant an application described in subsection 43 (1) or (2);

(b) impose conditions under subsection 43 (5);

(c) suspend or revoke a determination that the home qualifies for enrolment in the Plan;

(d) cancel the enrolment of a new home in the Plan.

Content of notice

(2) The notice shall set out the reasons for the registrar’s proposed action and shall state that the applicant or person is entitled to a hearing by the Tribunal if the applicant or person mails or delivers, within 15 days after service of the notice, a written request for a hearing to the registrar and to the Tribunal.

Service of notice

(3) The notice shall be served on the applicant or person in accordance with section 66.

Service of hearing request

(4) A request for a hearing under subsection (2) is sufficiently served if it is sent to the registrar and to the Tribunal by personal delivery, by registered mail or in accordance with the rules of the Tribunal.

Same

(5) If service is made by registered mail, it shall be deemed to be made on the third day after the day of mailing.

Other methods

(6) Despite subsection (4), the Tribunal may order any other method of service.

If no request for hearing

(7) If the applicant or person does not request a hearing in accordance with subsection (2), the registrar may carry out the proposed action.

Hearing

(8) If the applicant or person requests a hearing in accordance with subsection (2), the Tribunal shall hold the hearing and may, by order,

(a) direct the registrar to carry out the registrar’s proposed action; or

(b) substitute the conditions that it sees fit instead of the conditions described in clause (1) (b) or substitute its opinion for that of the registrar, as applicable.

Powers of Tribunal

(9) In addition to its powers under subsection (8), the Tribunal may attach conditions to its order or to a determination that a new home qualifies for enrolment in the Plan or to the enrolment of a new home in the Plan.

Parties

(10) The registrar, the applicant or person and the other persons that the Tribunal specifies are parties to the proceedings under this section.

Immediate effect

(11) Even if the applicant or person appeals an order of the Tribunal, the order takes effect immediately, unless the order provides otherwise, but the Divisional Court may grant a stay until the disposition of the appeal.

Warranties

47 (1) Subject to subsection (2), every vendor and builder of a new home warrants to the owner that the home is,

(a) constructed in accordance with the Building Code within the meaning of the Building Code Act, 1992 and other applicable law, as prescribed;

(b) constructed in a skilful manner and is free from defects in material;

(c) fit for habitation;

(d) free of major defects as prescribed; and

(e) protected by the other warranties, if any, that are prescribed.

Exclusions, etc.

(2) The regulations may specify exclusions, qualifications or limitations in respect of a warranty described in subsection (1).

No privity of contract required

(3) A warranty is enforceable even though there is no privity of contract between the owner and one or both of the vendor and the builder of the new home in respect of the warranties described in subsection (1).

Application of warranties

(4) The warranties described in subsection (1) apply despite any agreement or waiver to the contrary and are in addition to any other rights the owner may have and to any other warranty agreed upon between the owner and one or both of the vendor and the builder.

Protection of money paid

48 (1) Subject to this section, a vendor shall ensure that all money, together with interest earned on it, is received, held and used in accordance with the regulations, as soon as a person makes a payment,

(a) with respect to reserving a right to enter into an agreement of purchase and sale for the purchase of a new home from the vendor;

(b) on account of an agreement of purchase and sale of a new home with the vendor; or

(c) on account of a sale of a new home by the vendor.

Payment from builder

(2) Subject to the prescribed requirements or restrictions, if any, an owner of land who has entered into a contract with a builder for the construction of a new home on the land, is entitled to receive payment from the builder of the amount by which the amount paid to the builder under the contract exceeds the value of the work and materials supplied to the owner under the contract, if the builder has not substantially completed the home, as prescribed.

Exception, fixtures

(3) Subsections (1) and (2) do not apply to any amount received on account of the purchase of personal property that is included in the new home and that is not to be permanently affixed to land.

Payment upon rescission, etc.

(4) Subject to the prescribed requirements or restrictions, if any, a person described in subsection (1) is entitled to receive payment from the vendor for the amount of money, together with interest earned on it, that the vendor received,

(a) if the person has exercised a right to rescind the contract before closing; or

(b) if the other circumstances that are prescribed apply.

Delayed occupancy or closing

(5) Subject to the prescribed requirements or restrictions, if any, a person described in subsection (1) is entitled to receive payment from the vendor in the event of,

(a) a delay in occupancy of the new home, as determined by the regulations, or

(b) a delay in closing the agreement of purchase and sale, as determined by the regulations.

Other rights to payment

(6) A vendor or builder, as prescribed, shall, in accordance with the regulations, pay compensation to a person who has entered into an agreement in respect of the purchase of a new home from a vendor in respect of other rights, if any, that are prescribed.

Other recipients

(7) The entitlement to receive payment under subsection (2), (4), (5) or (6) also applies to the other persons, if any, that are prescribed.

No waiver

(8) The entitlement to receive payment under this section with respect to a new home applies despite any agreement or waiver to the contrary and is in addition to any other rights the owner may have and to any other protection agreed upon between the owner and one or both of the vendor and the builder of the home.

PART IV
CLAIMS for compensation

Guarantee fund

49 (1) The guarantee fund established under Regulation 892 (Administration of the Plan) of the Revised Regulations of Ontario, 1990 made under the Ontario New Home Warranties Plan Act, as it exists on the day this section comes into force, is continued for the purpose of providing compensation under the Plan.

Same

(2) The guarantee fund includes all financial arrangements that are in place for providing money to the fund.

Management of fund

(3) The warranty authority shall maintain, manage and administer the guarantee fund and shall ensure that the money in the fund is adequate for the purpose of providing compensation under the Plan.

Powers

(4) The warranty authority may do anything necessary to carry out its duties under subsection (3), including,

(a) making payments or loans out of the guarantee fund to the regulatory authority, or, if no regulatory authority has been designated, to a not-for-profit corporation without share capital incorporated under the laws of Ontario that may be designated as the regulatory authority, based on the information that the Minister provides to the warranty authority; and

(b) using the fund to make payments in respect of any transitional matter that arises as a result of the coming into force of all or any portion of this Act or as a result of a designation made under section 5 and that is necessary for the effective implementation of this Act or the regulations.

Compensation from guarantee fund

50 (1) Subject to the prescribed requirements or restrictions, if any, an owner of a new home is entitled to receive compensation out of the guarantee fund for damages resulting from a breach of a warranty described in subsection 47 (1) if,

(a) the person became the owner of the home through,

(i) receiving a transfer of title to it,

(ii) the substantial completion, as prescribed, of it on land owned by the person; or

(iii) other circumstances as prescribed; and

(b) the person has suffered damages resulting from the breach of warranty.

Same, for additional entitlements

(2) Subject to the prescribed requirements or restrictions, if any, a person is entitled to receive compensation out of the guarantee fund if the person is entitled to receive a payment from a vendor or a builder under subsection 48 (2), (4), (5), (6) or (7) and the vendor or the builder, as the case may be, fails to comply with the applicable subsection.

Non-application of other Acts

51 (1) The Insurance Act does not apply to the warranty authority and its undertakings in respect of any matter authorized by this Act except as otherwise prescribed.

Same, SPPA

(2) The Statutory Powers Procedure Act does not apply to any decisions made or proceedings conducted under this Act with respect to a claim.

Claim procedure

52 (1) A claim for compensation out of the guarantee fund shall be made to the warranty authority in accordance with the prescribed procedure.

Information to the warranty authority

(2) The following persons shall provide to the warranty authority the information and particulars regarding the claim that are prescribed:

1. The claimant making the claim.

2. The vendor or builder of the new home in respect of which the claim is made.

3. Other persons that are prescribed.

Evidence required of claimant

(3) Subject to subsection (4), a claimant making a claim,

(a) shall explain, in accordance with the regulations, the reasons for the concern giving rise to the claim;

(b) if the claim does not relate to an entitlement to receive compensation out of the guarantee fund under subsection 50 (2) or is not a prescribed claim, shall include in the reasons for the concern giving rise to the claim a description of the symptoms of the concern that have been observed or experienced, unless the regulations provide otherwise; and

(c) is not required to prove the cause of the concern giving rise to the claim if the claimant has complied with clauses (a) and (b), unless the regulations provide otherwise.

Exception

(4) Subsection (3) does not apply to,

(a) a claim after the warranty authority makes a decision mentioned in subsection (12) in respect of the claim; or

(b) a claim in respect of common elements or prescribed property of a condominium corporation.

Response of warranty authority

(5) The warranty authority shall investigate the concern giving rise to a claim to verify that it relates to an entitlement to receive compensation out of the guarantee fund under subsection 50 (1) or (2) and, if it does, shall determine whether the claimant is entitled to receive such compensation and how it will deal with the claim.

Inquiries, etc.

(6) In investigating a concern under subsection (5), the warranty authority may make any inquiries, conduct any inspections or apply any technical and other expertise that it considers appropriate.

Expert help

(7) An individual making an inquiry or conducting an inspection under subsection (6) on behalf of the warranty authority may be accompanied by one or more persons with special, expert or professional knowledge, and other persons as necessary, as the individual considers advisable.

Conduct of inquiries, etc.

(8) The warranty authority shall ensure that any actions it takes under subsection (6) are done in accordance with the regulations, if any.

Process of dealing with claims

(9) In dealing with a claim, the warranty authority may use a range of processes for inquiring into the claim and for engaging with the claimant and other affected parties.

Other recovery

(10) In determining the amount for which a claimant is entitled to receive payment out of the guarantee fund, the warranty authority shall, subject to the prescribed requirements or restrictions, if any, take into consideration any benefit, compensation, indemnity payable or the value of work and materials furnished to the claimant from any source.

Performance

(11) The warranty authority may perform or arrange for the performance of any work in lieu of or in mitigation of damages that are claimed.

Notice of decision

(12) When the warranty authority makes a decision in respect of a claim, it shall serve notice of the decision, together with reasons for the decision, on the claimant and the other persons, if any, that are prescribed.

Appeal to Tribunal

(13) A notice under subsection (12) shall state that the claimant is entitled to appeal the decision to the Tribunal by providing notice to the Tribunal and the other persons, if any, that are prescribed, in the form and within the time that is prescribed.

Dispute resolution

(14) The right to a hearing before the Tribunal does not preclude the warranty authority from making available one or more voluntary dispute resolution processes for a claim.

Tribunal hearing

(15) If the Tribunal receives a notice of appeal under subsection (13), it shall appoint a time for and hold a hearing.

Parties

(16) The warranty authority and the claimant are the parties to the proceedings before the Tribunal under this section.

Order

(17) After holding a hearing, the Tribunal may, by order,

(a) direct the warranty authority to take the action that the Tribunal considers the authority ought to take in accordance with this Act and the regulations; and

(b) for the purposes of the order, may substitute its opinion for that of the warranty authority.

Other remedies unaffected

(18) Unless the regulations specifically provide otherwise, nothing in this Act restricts the remedies otherwise available to an owner or any other prescribed person for the failure of another person to perform a duty imposed by this Act.

PART V
Complaints, Inspections, Investigations AND ENFORCEMENT

Complaints

Complaints

53 (1) If the registrar receives a complaint about a licensee or a prescribed vendor or builder in respect of a claim, the registrar may request information in relation to the complaint from any licensee or from any prescribed vendor or builder.

Request for information

(2) A request for information under subsection (1) shall indicate the nature of the complaint.

Duty to comply with request

(3) A licensee or prescribed vendor or builder who receives a written request for information shall provide the information as soon as is reasonably possible.

Procedures

(4) In handling complaints, the registrar may do any of the following, as appropriate:

1. Attempt to mediate or resolve the complaint.

2. Give the licensee or prescribed vendor or builder a written warning that if the person continues with the activity that led to the complaint, action may be taken against the person.

3. Refer the matter, in whole or in part, to the regulatory authority.

4. Take further action as is appropriate in accordance with this Act.

Ombudsperson

54 The warranty authority shall make available an ombudsperson to carry out the following duties:

1. To inquire into and to respond to the administration of this Act by the authority.

2. To make recommendations in respect of the administration of this Act by the authority.

3. To carry out the other duties, if any, that are prescribed.

Inspections and Investigations

Inspectors

55 (1) The registrar is, by virtue of the registrar’s office, an inspector.

Appointment

(2) The registrar shall appoint persons to be inspectors for the purposes of conducting inspections under this Act.

Certificate of appointment

(3) The registrar shall issue to every inspector a certificate of appointment bearing the registrar’s signature or a facsimile of it.

Proof of appointment

(4) Every inspector who is conducting an inspection under this Act shall, upon request, produce the certificate of appointment as an inspector.

Inspections without warrant

56 (1) An inspector may, without a warrant or court order, conduct an inspection in accordance with this section for the purpose of,

(a) ensuring compliance with this Act and the regulations;

(b) inspecting a new home during construction; or

(c) dealing with a complaint under section 53.

Power to enter premises

(2) As part of an inspection, an inspector may, without a warrant or court order, enter and inspect, at any reasonable time, the business premises of a licensee.

Expert help

(3) An inspector conducting an inspection under this section may be accompanied by one or more persons with special, expert or professional knowledge, and other persons as necessary, as the inspector considers advisable.

Powers on inspection

(4) While carrying out an inspection, an inspector,

(a) is entitled to free access to all money, valuables, documents and records of the person being inspected that are relevant to the inspection;

(b) may make reasonable inquiries of any person, orally or in writing, with respect to anything relevant to the inspection;

(c) may require a person to produce any document or record relevant to the inspection and to provide whatever assistance is reasonably necessary, including using any data storage, processing or retrieval device or system to produce, in any form, the document or record;

(d) may use any data storage, processing or retrieval device or system used to engage in activities of a licensee in order to produce information that is relevant to the inspection and that is in any form;

(e) may, upon giving a receipt for them, remove for examination and copy anything relevant to the inspection, including any data storage disk or other retrieval device in order to produce information, but shall promptly return to the person being inspected the thing that was removed; and

(f) may, alone or in conjunction with the other persons described in subsection (3), make examinations or inquiries or take tests, as are necessary for the purposes of the inspection.

No use of force

(5) An inspector shall not use force to enter and inspect premises under this section.

No obstruction

(6) No person shall obstruct an inspector conducting an inspection or a person accompanying the inspector under subsection (3) or withhold from the inspector or that other person or conceal, alter or destroy any money, documents or records that are relevant to the inspection.

Compliance

(7) If an inspector under clause (4) (c) requires a person to produce a document or record and to provide assistance, the person shall produce the document or record or provide the assistance, as the case may be.

Admissibility of copies

(8) A copy of a document or record certified by an inspector to be a true copy of the original is admissible in evidence to the same extent as the original and has the same evidentiary value.

Appointment of investigators

57 (1) The Director shall appoint persons to be investigators for the purposes of conducting investigations under this Act.

Certificate of appointment

(2) The Director shall issue to every investigator a certificate of appointment bearing the Director’s signature or a facsimile of it.

Proof of appointment

(3) Every investigator who is conducting an investigation under this Act shall, upon request, produce the certificate of appointment as an investigator.

Investigations with warrant

58 (1) Upon application made without notice by an investigator, a justice of the peace may issue a warrant, if satisfied on information under oath that there is reasonable ground for believing that,

(a) a person has contravened or is contravening this Act or the regulations; and

(b) there is,

(i) in any building, dwelling, receptacle or place anything relating to the contravention of this Act or the regulations, or

(ii) information or evidence relating to the contravention of this Act or the regulations that may be obtained through the use of an investigative technique or procedure or the doing of anything described in the warrant.

Powers under warrant

(2) Subject to any conditions contained in it, a warrant obtained under subsection (1) authorizes an investigator,

(a) to enter or access the building, dwelling, receptacle or place specified in the warrant and examine and seize anything described in the warrant;

(b) to make reasonable inquiries of any person, orally or in writing, with respect to anything relevant to the investigation;

(c) to require a person to produce the information or evidence described in the warrant and to provide whatever assistance is reasonably necessary, including using any data storage, processing or retrieval device or system to produce, in any form, the information or evidence described in the warrant;

(d) to use any data storage, processing or retrieval device or system used to engage in the activities of a licensee in order to produce information or evidence described in the warrant, in any form; and

(e) to use any investigative technique or procedure or do anything described in the warrant.

Entry of dwelling

(3) Despite subsection (2), an investigator shall not exercise the power under a warrant to enter a place, or part of a place, used as a dwelling, unless,

(a) the justice of the peace is informed that the warrant is being sought to authorize entry into a dwelling; and

(b) the justice of the peace authorizes the entry into the dwelling.

Conditions on warrant

(4) A warrant obtained under subsection (1) shall contain the conditions that the justice of the peace considers advisable to ensure that any search authorized by the warrant is reasonable in the circumstances.

Expiry of warrant

(5) A warrant issued under this section shall name a date of expiry, which shall be no later than 30 days after the warrant is issued, but a justice of the peace may extend the date of expiry for an additional period of no more than 30 days, upon application without notice by an investigator.

Time of execution

(6) An entry or access under a warrant issued under this section shall be made between 6 a.m. and 9 p.m. local time, unless the warrant specifies otherwise.

Use of force

(7) An investigator may call upon police officers for assistance in executing the warrant and the investigator may use whatever force is reasonably necessary to execute the warrant.

No obstruction

(8) No person shall obstruct an investigator executing a warrant under this section or withhold from the investigator or conceal, alter or destroy anything relevant to the investigation being conducted pursuant to the warrant.

Expert help

(9) The warrant may authorize persons who have special, expert or professional knowledge and other persons as necessary to accompany and assist the investigator in respect of the execution of the warrant.

Compliance

(10) If an investigator under clause (2) (c) requires a person to produce information or evidence or to provide assistance, the person shall produce the information or evidence or provide the assistance, as the case may be.

Return of seized items

(11) An investigator who seizes anything under this section or section 59 may make a copy of it and shall return it within a reasonable time.

Admissibility of copies

(12) A copy of a document or record certified by an investigator as being a true copy of the original is admissible in evidence to the same extent as the original and has the same evidentiary value.

Seizure of things not specified

59 An investigator who is lawfully present in a place pursuant to a warrant or otherwise in the execution of the investigator’s duties may, without a warrant, seize anything in plain view that the investigator believes on reasonable grounds will afford evidence relating to a contravention of this Act or the regulations.

Searches in exigent circumstances

60 (1) An investigator may exercise any of the powers described in subsection 58 (2) without a warrant if the conditions for obtaining the warrant exist but by reason of exigent circumstances it would not be reasonably possible to obtain the warrant.

Dwellings

(2) Subsection (1) does not apply to a building or a part of a building that is being used as a dwelling.

Use of force

(3) The investigator may, in executing any authority given by this section, call upon police officers for assistance and use whatever force is reasonably necessary.

Applicability of s. 58

(4) Subsections 58 (8) to (12) apply, with necessary modifications, to a search under this section.

Enforcement

Offences

61 (1) A person or entity, other than the warranty authority, is guilty of an offence if the person or entity,

(a) furnishes false information to the warranty authority in any application under section 43, any claim, any statement required under this Act or any circumstance that is prescribed;

(b) fails to comply with any condition imposed under subsection 43 (5);

(c) fails to comply with any order or other requirement under this Act; or

(d) contravenes or fails to comply with any section of this Act or the regulations.

Officer or director of corporation

(2) An officer or director of a corporation who fails to take reasonable care to prevent the corporation from committing an offence mentioned in subsection (1) is guilty of an offence, whether or not the corporation has been prosecuted or convicted.

Other individuals

(3) Any of the following individuals who act on behalf of an entity and who fail to take reasonable care to prevent the entity from committing an offence mentioned in subsection (1) are guilty of an offence, whether or not the entity has been prosecuted or convicted:

1. A partner or general manager and assistant general manager of the entity, if the entity is a partnership.

2. Any other individual designated for the purpose of this subsection by a by-law or resolution of the entity.

3. Any other individual who performs functions normally performed by an individual described in paragraph 2.

Penalties

(4) A person or entity that is convicted of an offence under this Act is liable to,

(a) a fine of not more than $50,000 or imprisonment for a term of not more than two years less a day or both, in the case of an individual; or

(b) a fine of not more than $250,000, if the person or entity is not an individual.

Limitation

(5) No proceeding under this section shall be commenced more than two years after the facts upon which the proceeding is based first came to the knowledge of the Director.

Orders for compensation, restitution

62 (1) If a person or entity is convicted of an offence under section 61, the court making the conviction may, in addition to any other penalty, order the person or entity convicted to pay compensation or make restitution.

If insurance or warranty authority has paid

(2) If an order is made in favour of a person or entity under subsection (1) and that person or entity has already received compensation or restitution from an insurer or from the guarantee fund, the person or entity ordered to pay the compensation or make restitution shall deliver the amount to the insurer or warranty authority, as applicable.

Default in payment of fines

63 (1) If a fine payable as a result of a conviction for an offence under section 61 is in default for at least 60 days, the Director may disclose to a consumer reporting agency the name of the defaulter, the amount of the fine and the date the fine went into default.

If payment made

(2) Within 10 days after the Director has received notice that the fine has been paid in full, the Director shall inform the consumer reporting agency of the payment.

Liens and charges

64 (1) If a fine payable as a result of a conviction for an offence under section 61 is in default for at least 60 days, the Director may, by order, create a lien against the property of the person or entity that is liable to pay the fine.

Liens on personal property

(2) If the lien created by the Director under subsection (1) relates to personal property,

(a) the Personal Property Security Act, except Part V, applies with necessary modifications to the lien, despite clause 4 (1) (a) of that Act;

(b) the lien shall be deemed to be a security interest that has attached for the purposes of the Personal Property Security Act; and

(c) the Director may perfect the security interest mentioned in clause (b) for the purposes of the Personal Property Security Act by the registration of a financing statement under that Act.

Liens and charges on real property

(3) If the lien created by the Director under subsection (1) relates to real property, the Director may register the lien against the property of the person or entity liable to pay the fine in the proper land registry office and on registration, the obligation under the lien becomes a charge on the property.

Initiation of sale proceedings prohibited

(4) The Director shall not initiate sale proceedings in respect of any real property against which the Director has registered a lien under subsection (3).

Proceeds of sale

(5) If a lien is perfected by registration under subsection (2) or is registered against real property under subsection (3) and the related real or personal property is sold, the Director shall ensure that the funds the Director receives as a result of the sale are used to pay the fine.

Discharge of lien

(6) Within 10 days after the Director has knowledge of the payment in full of the fine, the Director shall,

(a) discharge the registration of any financing statement registered under clause (2) (c); and

(b) register a discharge of a charge created on registration of a lien under subsection (3).

PART VI
GEneral

Confidentiality

65 (1) A person who obtains information in the course of exercising a power or carrying out a duty related to the administration of this Act or the regulations shall preserve secrecy with respect to the information and shall not communicate the information to any person except,

(a) as is required in connection with a proceeding under this Act or in connection with the administration of this Act or the regulations;

(b) to a ministry, department or agency of a government engaged in the administration of legislation similar to this Act or legislation that protects consumers or to any other entity to which the administration of legislation similar to this Act or legislation that protects consumers has been assigned;

(c) as authorized under the Regulatory Modernization Act, 2007;

(d) to a prescribed entity or organization, if the purpose of the communication is consumer protection;

(e) to a law enforcement agency;

(f) to the counsel of the person communicating the information; or

(g) with the consent of the person to whom the information relates.

Testimony

(2) Except in a proceeding under this Act, no person shall be required to give testimony in a civil proceeding with regard to information obtained in the course of exercising a power or carrying out a duty related to the administration of this Act or the regulations.

Service

66 (1) Any notice, order or request is sufficiently given or served if it is,

(a) delivered personally;

(b) sent by registered mail; or

(c) sent by another manner if the sender can prove receipt of the notice, order or request.

Deemed service

(2) If service is made by registered mail, the service shall be deemed to be made on the third day after the day of mailing unless the person on whom service is being made establishes that the person did not, acting in good faith, through absence, accident, illness or other cause beyond the person’s control, receive the notice, order or request until a later date.

Exception

(3) Despite subsections (1) and (2), the Tribunal may order any other method of service it considers appropriate in the circumstances.

Information to provide to regulatory authority

67 (1) Subject to the prescribed requirements or restrictions, if any, the registrar shall provide the following information to the registrar appointed under section 35 of the New Home Construction Licensing Act, 2017:

1. Information about the enrolment, or qualification for enrolment, of new homes in the Plan.

2. Information about claims that the registrar has received.

3. All other information, if any, that is prescribed.

Note: On a day to be named by proclamation of the Lieutenant Governor, subsection 67 (1) of this Act is repealed and the following substituted: (See: 2017, c. 33, Sched. 2, s. 72 (6))

Public information

(1) Subject to the prescribed requirements or restrictions, if any, the registrar shall make available publicly on the website of the warranty authority and by any other means that the registrar determines,

(a) information about the enrolment, or qualification for enrolment, of new homes in the Plan;

(b) information about claims that the registrar has received; and

(c) all other information, if any, that is prescribed. 2017, c. 33, Sched. 2, s. 72 (6).

Searchable information

(2) The information described in subsection (1) shall be searchable, including by the name of the person or entity to which the information relates, by the name of directors, officers and principals of that person or entity, and as otherwise prescribed.

Section Amendments with date in force (d/m/y)

2017, c. 33, Sched. 2, s. 72 (6) - not in force

Lieutenant Governor in Council regulations

68 (1) The Lieutenant Governor in Council may make regulations,

(a) governing any matter that is described in this Act as prescribed or dealt with in the regulations, except for any matter that this Act describes as being prescribed by the Minister or dealt with in regulations made by the Minister;

(b) specifying anything that is described in any other Act as prescribed for the purpose of any provision of that Act by regulations made under this Act;

(c) governing the revocation of the designation of the warranty authority;

(d) governing security and other financial arrangements in respect of the enrolment, or qualification for enrolment, of a new home in the Plan;

(e) governing agreements between the warranty authority and a vendor or builder, including in respect of the enrolment, or qualification for enrolment, of a new home in the Plan;

(f) specifying the date a warranty described in subsection 47 (1) or an entitlement to receive payment under subsection 48 (2), (4), (5), (6) or (7) takes effect and the time it expires;

(g) governing rules and procedures for determining whether exclusions apply under subsection 48 (2);

(h) governing procedures for making and determining claims and for providing payment out of the guarantee fund, including services in lieu of payment;

Note: On the later of the day subsection 68 (1) of this Act comes into force and the day subsection 11 (1) of the Construction Lien Amendment Act, 2017 comes into force, subsection 68 (1) of this Act is amended by adding the following clause: (See: 2017, c. 33, Sched. 2, s. 72 (9))

(h.1) governing the procedures for resolution of disputes between any of a claimant, the warranty authority, a vendor and a builder, including prescribing circumstances when a person is not entitled to refer a dispute to adjudication under Part II.1 of the Construction Act;

(i) respecting the payment out of the guarantee fund in respect of claims in respect of which the warranty authority has made a determination to make payment out of the fund and respecting the procedures and rules to be followed in respect of the payment, including prescribing maximum amounts that may be paid out of the fund, including different maximum amounts for different circumstances;

(j) governing the subrogation of the warranty authority to any rights of a person in respect of a claim;

(k) governing the right of recovery of the warranty authority in respect of payments made out of the guarantee fund and costs incurred relating to a claim;

(l) prescribing the circumstances in which a person is required to reimburse the guarantee fund in respect of a payment out of the fund of a claim, or the value of services provided by the warranty authority in respect of the claim, and prescribing rules respecting the time and manner for the reimbursement and the imposition of penalties and interest;

(m) requiring the warranty authority to make available to the public decisions that it makes in respect of claims, prescribing the manner in which the decisions are to be made available to the public, including requiring their publication, and governing the personal information contained in the decisions that shall not be made available to the public;

(n) defining any word or expression used in this Act that has not already been expressly defined in this Act;

(o) exempting any person or entity or any class of persons or entities from any provision of this Act or the regulations and attaching conditions to an exemption;

(p) delegating to the Minister or to the warranty authority any power to make a regulation under this subsection;

(q) respecting any matter necessary or advisable to carry out the intent or purpose of this Act;

(r) providing for any transitional matter necessary for the effective implementation of this Act or the regulations or related to the repeal of the Ontario New Home Warranties Plan Act, including,

(i) deeming information provided under that Act to have been provided under this Act, and

(ii) governing fees and other amounts paid under that Act and deeming them to have been paid under this Act.

Approval required

(2) The Lieutenant Governor in Council may make the regulation-making power delegated to the Minister under clause (1) (p) subject to its approval.

Residual authority to act

(3) Despite any delegation to the Minister under clause (1) (p) and without having to revoke the delegation, the Lieutenant Governor in Council continues to have authority to make regulations in respect of the power that is the subject of the delegation.

Making regulation not revocation

(4) If the Lieutenant Governor in Council makes a regulation to which subsection (3) applies, the regulation does not have the effect of revoking a delegation under clause (1) (p) unless the regulation so specifies.

Minister’s regulations preserved

(5) The Lieutenant Governor in Council may, by regulation, revoke a delegation to the Minister under clause (1) (p), but the revocation of a delegation does not result in the revocation of any regulation made by the Minister under the delegated power before the revocation of the delegation.

Conflict

(6) If there is a conflict between a regulation made under subsection (1) and a regulation made by the Minister under section 69 or the warranty authority under section 70, the regulation of the Lieutenant Governor in Council prevails.

Section Amendments with date in force (d/m/y)

2017, c. 33, Sched. 2, s. 72 (9) - not in force

Minister’s regulations

69 (1) The Minister may make regulations,

(a) requiring the registrar to share with the Minister the information that the registrar collects under subsection 37 (1);

(b) requiring the warranty authority to provide the Minister, the regulatory authority or any other person prescribed by the Minister with the information specified in the regulation and governing the providing of the information, including the form, manner and time for providing the information;

(c) governing applications for a determination that a new home qualifies for enrolment in the Plan and evidence of the qualifications that an applicant for the determination must submit in the application;

(d) governing applications for enrolment of a new home in the Plan and the evidence that an applicant for enrolment must submit in the application;

(e) governing the duties of the ombudsperson under section 54, including prescribing additional duties of the ombudsperson;

(f) respecting any matters for which the power to make regulations is delegated by the Lieutenant Governor in Council to the Minister under clause 68 (1) (p);

(g) delegating to the warranty authority any power to make a regulation under this subsection.

Approval required

(2) The Minister may make the regulation-making power delegated to the warranty authority under clause (1) (g) subject to the Minister’s approval, and in that case shall not approve regulations unless, in his or her opinion, they have been made in accordance with the consultation process and criteria set out in the administrative agreement.

Residual authority to act

(3) Despite any delegation to the warranty authority under clause (1) (g) and without having to revoke the delegation, the Minister continues to have authority to make regulations in respect of the power that is the subject of the delegation.

Making regulation not revocation

(4) If the Minister makes a regulation to which subsection (3) applies, the regulation does not have the effect of revoking a delegation under clause (1) (g) unless the regulation so specifies.

Warranty authority’s regulations preserved

(5) The Minister may, by regulation, revoke a delegation to the warranty authority under clause (1) (g), but the revocation of a delegation does not result in the revocation of any regulation made by the authority under the delegated power before the revocation of the delegation.

Conflict

(6) If there is a conflict between a regulation made under subsection (1) and a regulation made by the warranty authority, the regulation of the Minister prevails.

Warranty authority regulations

70 (1) The warranty authority may make regulations respecting any matter for which the power to make regulations is delegated to it by the Lieutenant Governor in Council or the Minister.

Regulations

(2) A regulation made by the warranty authority under this section is a regulation within the meaning of Part III (Regulations) of the Legislation Act, 2006.

Note: On the day section 73 of the Act comes into force, section 71 of the Act comes into force. (See: 2017, c. 33, Sched. 2, s. 80 (2))

Transition

71 (1) In this section, a reference to the Ontario New Home Warranties Plan Act or any provision of it is a reference to that Act or the provision of it as that Act or the provision, as the case may be, read immediately before the day this section comes into force.

Enrolment of new home

(2) A new home that qualified for enrolment in the Ontario New Home Warranties Plan or that was so enrolled immediately before the day this section comes into force is deemed to be enrolled in the Ontario New Home Warranties and Protection Plan on that day.

Security

(3) Security that a person has provided under clause 23 (1) (l) of the Ontario New Home Warranties Plan Act immediately before this section comes into force is deemed to be security provided under clause 68 (1) (d) of this Act.

Claims

(4) A claim that a person has made to the Corporation within the meaning of the Ontario New Home Warranties Plan Act and for which that Corporation has not made a decision under section 14 of that Act to pay compensation out of the guarantee fund by the day this section comes into force is deemed to be a claim made under this Act.

Unpaid claims

(5) If the Corporation within the meaning of the Ontario New Home Warranties Plan Act has made a decision under section 14 of that Act to pay compensation out of the guarantee fund in respect of a claim before the day this section comes into force but no compensation has been paid out of the guarantee fund by that day in payment of the claim, the decision is deemed to be a decision made by the warranty authority under section 52 of this Act.

Money

(6) Despite the repeal of the Ontario New Home Warranties Plan Act, subsections 2 (2) and (3) and section 4 of that Act continue to apply to the Corporation within the meaning of that Act.

Proceedings

(7) A prescribed proceeding that the Corporation within the meaning of the Ontario New Home Warranties Plan Act had commenced as of the day before the day that Act was repealed is continued as a proceeding of the warranty authority under this Act.

Part VII (OMITTED)

72 Omitted (provides for amendments to this Act).

Part VIII (OMITTED)

73-79 Omitted (amends, repeals or revokes other legislation).

Part IX (OMITTED)

80 Omitted (provides for coming into force of provisions of this Act).

81 Omitted (enacts short title of this Act).

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