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Ontario New Home Warranties Plan Act

R.S.O. 1990, Chapter O.31

Consolidation Period:  From January 1, 2018 to the e-Laws currency date.

Note: This Act is repealed on a day to be named by proclamation of the Lieutenant Governor. (See: 2017, c. 33, Sched. 2, s. 73)

Last amendment: 2017, c. 33, Sched. 4.

Legislative History: 1994, c. 27, s. 94; 1998, c. 18, Sched. E, s. 187-190; 1998, c. 19, s. 185; 1999, c. 12, Sched. G, s. 30; 2000, c. 26, Sched. B, s. 15; 2001, c. 9, Sched. D, s. 13; 2006, c. 21, Sched. F, s. 136 (1); 2009, c. 33, Sched. 10, s. 11; 2015, c. 28, Sched. 1, s. 154; 2017, c. 24, s. 79; 2017, c. 33, Sched. 2, s. 73; 2017, c. 33, Sched. 4.

CONTENTS

Definitions and Administration

1.

Definitions

2.

Designation of Corporation

3.

Registrar

4.

Revenues and expenses

4.

Revenues and expenses

5.

Annual report

5.1

Administrator

5.2

Status of board during administrator’s tenure

5.3

Oversight fees

5.4

Auditor General

Registration of Vendors and Builders

6.

Registration required

7.

Registration of vendors and builders

8.

Refusal to register

9.

Notice of proposal to refuse or revoke

10.

Further applications

Ontario New Home Warranties Plan

11.

Ontario New Home Warranties Plan

12.

Notice of commencing construction

13.

Warranties

14.

Compensation

15.

Condominiums

15.1

Liability of vendor

16.

Notice of decision under s. 14

17.

Conciliation of disputes

Residential Condominium Conversion Projects

17.1

Interpretation

17.2

Application of this Act

17.3

Conditions precedent: enrolment, sale of units

17.4

Confirmation of registration and enrolment

17.5

Pre-existing elements fund

Enforcement

18.

Inspectors

19.

Restraining order

General

20.

Service of notice

21.

Certificate of evidence

22.1

Regulations

22.1

Lieutenant Governor in Council regulations

23.

By-laws

 

Definitions and Administration

Definitions

1 In this Act,

“builder” means,

(a) except in relation to a residential condominium conversion project, a person who undertakes the performance of all the work and supply of all the materials necessary to construct a completed home, whether for the purpose of sale by the person or under a contract with a vendor or owner, or

(b) in relation to a residential condominium conversion project, a person who undertakes the performance of all the work and supply of all the materials necessary to construct a completed home in the project, whether for the purpose of sale by the person or under a contract with a vendor or owner; (“constructeur”)

Note: On a day to be named by proclamation of the Lieutenant Governor, section 1 of the Act is amended by adding the following definition: (See: 2017, c. 33, Sched. 4, s. 1 (1))

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

“Corporation” means the corporation designated under section 2; (“Société”)

“guarantee fund” means the provision made by the Corporation for compensation under the Plan; (“fonds de garantie”)

home” means,

(a) a self-contained one-family dwelling, detached or attached to one or more others by one or more common walls,

(b) a building composed of more than one and not more than two self-contained, one-family dwellings under one ownership,

(c) a condominium dwelling unit, including the common elements, or

(d) any other dwelling of a class prescribed by the regulations as a home to which this Act applies,

and includes any structure or appurtenance used in conjunction therewith, but does not include a dwelling built and sold for occupancy for temporary periods or for seasonal purposes; (“logement”)

“inspector” means an inspector appointed by the Corporation under section 18; (“inspecteur”)

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

“owner” means a person who first acquires a home from its vendor for occupancy, and the person’s successors in title; (“propriétaire”)

Plan” means the Ontario New Home Warranties Plan referred to in section 11; (“Régime”)

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

“Registrar” means the Registrar appointed by the Corporation under section 3; (“registrateur”)

“regulations” means, as applicable,

(a) the regulations made by the Lieutenant Governor in Council under section 22.1, or

(b) the by-laws of the Corporation made under section 23; (“règlements”)

“residential condominium conversion project” means a residential condominium conversion project as defined in subsection 17.1 (1); (“projet de conversion en condominiums à usage d’habitation”)

“sell” includes entering into an agreement to sell; (“vendre”)

“Tribunal” means the Licence Appeal Tribunal; (“Tribunal”)

“vendor” means,

(a) except in relation to a residential condominium conversion project, a person who, on the person’s own behalf, sells a home not previously occupied to an owner and includes a builder, as defined in clause (a) of the definition of “builder”, who acts as such under a contract with the owner, or

(b) in relation to a residential condominium conversion project, a person who, on the person’s own behalf, sells a home in the project to an owner and includes a builder, as defined in clause (b) of the definition of “builder”, who acts as such under a contract with the owner; (“vendeur”)

warranty” means a warranty set out in section 13. (“garantie”)  R.S.O. 1990, c. O.31, s. 1; 1999, c. 12, Sched. G, s. 30 (1); 2001, c. 9, Sched. D, s. 13; 2015, c. 28, Sched. 1, s. 154 (2-4); 2017, c. 33, Sched. 4, s. 1 (2, 3).

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

1999, c. 12, Sched. G, s. 30 (1) - 01/04/2000

2001, c. 9, Sched. D, s. 13 - 29/06/2001

2015, c. 28, Sched. 1, s. 154 (2-4) - 01/01/2018

2017, c. 33, Sched. 4, s. 1 (1) - not in force; 2017, c. 33, Sched. 4, s. 1 (2, 3) - 14/12/2017

Designation of Corporation

2 (1) The Lieutenant Governor in Council shall designate a non-profit corporation incorporated without share capital under the Corporations Act to be the Corporation for the purposes of this Act.  R.S.O. 1990, c. O.31, s. 2 (1).

Objects

(2) Upon its designation, the objects of the Corporation are extended to include,

(a) the administration of the Ontario New Home Warranties Plan;

(b) the establishment and administration of a guarantee fund providing for the payment of compensation under section 14, whether by the establishment of a fund for the purpose or by contract with licensed insurers;

(c) assisting in the conciliation of disputes between vendors and owners;

(d) engaging in undertakings for the purpose of improving communications between vendors and owners; and

(e) the planning, implementation and financing related to any amendments made to this Act or the regulations or the repeal of this Act or related to the enactment of any Act that replaces all or any part of this Act, including making payments or loans out of the guarantee fund to any not-for-profit corporation without share capital incorporated under the laws of Ontario that,

(i) is designated to administer any Act that replaces all or any part of this Act, or

(ii) may be designated to administer any Act that replaces all or any part of this Act, based on the information that the Minister provides to the Corporation.  R.S.O. 1990, c. O.31, s. 2 (2); 2017, c. 33, Sched. 4, s. 2 (1).

Application of Insurance Act

(3) The Insurance Act does not apply to the Corporation and its undertakings in respect of any matter within its objects or authorized by this Act.  R.S.O. 1990, c. O.31, s. 2 (3).

No personal liability

(4) No action or other proceeding shall be commenced against a current or former director, officer or employee of the Corporation for any act or omission done in good faith in carrying out the objects described in clause (2) (e). 2017, c. 33, Sched. 4, s. 2 (2).

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

2017, c. 33, Sched. 4, s. 2 (1, 2) - 14/12/2017

Registrar

3 (1) The Corporation shall appoint a Registrar who shall perform the duties and exercise the powers given to the Registrar by this Act and the regulations under the supervision of the Corporation and who shall perform such other duties as are assigned by the Corporation.  R.S.O. 1990, c. O.31, s. 3.

Deputy Registrars

(2) The Corporation may appoint one or more Deputy Registrars who have and may exercise the powers and duties of the Registrar that the Registrar specifies.  1998, c. 18, Sched. E, s. 187.

References to Registrar

(3) If the Registrar so specifies, references in this Act and the regulations to the Registrar shall be deemed to refer to a Deputy Registrar.  1998, c. 18, Sched. E, s. 187.

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

1998, c. 18, Sched. E, s. 187 - 18/12/1998

Revenues and expenses

4 All money payable under this Act to the Corporation shall be retained by the Corporation and applied to defray the expenses incurred and expenditures made in the carrying out of its duties under this Act and otherwise for the purposes of its objects set out in subsection 2 (2).  R.S.O. 1990, c. O.31, s. 4.

Note: On a day to be named by proclamation of the Lieutenant Governor, section 4 of the Act is repealed and the following substituted: (See: 2017, c. 33, Sched. 4, s. 3)

Revenues and expenses

4 The Corporation shall retain all money paid or payable to it under this Act even if the money forms part of the guarantee fund and, subject to the regulations, shall apply the money to defray the expenses that it incurs and the expenditures that it makes in carrying out its duties under this Act or its objects set out in subsection 2 (2). 2017, c. 33, Sched. 4, s. 3.

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

2017, c. 33, Sched. 4, s. 3 - not in force

Annual report

5 (1) The Corporation shall make a report annually to the Minister upon the affairs of the Corporation.  2000, c. 26, Sched. B, s. 15 (1).

Tabling

(2) The Minister shall,

(a) submit the report to the Lieutenant Governor in Council;

(b) lay the report before the Assembly if it is in session; and

(c) deposit the report with the Clerk of the Assembly if the Assembly is not in session.  2000, c. 26, Sched. B, s. 15 (1).

Disclosure by Corporation

(3) The Corporation may give a copy of its report under subsection (1) to other persons before the Minister complies with subsection (2).  2000, c. 26, Sched. B, s. 15 (1).

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

2000, c. 26, Sched. B, s. 15 (1) - 06/12/2000

Administrator

5.1 (1) Subject to subsection (2), the Minister may, by order, appoint an individual as an administrator of the Corporation for the purposes of assuming control of it and responsibility for its activities. 2017, c. 33, Sched. 4, s. 4.

Condition precedent

(2) The Minister may exercise the power described in subsection (1) 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 homes or owners.

2. An event of force majeure has occurred.

3. The Corporation is facing a risk of insolvency.

4. The number of members of the board of the Corporation is insufficient for a quorum. 2017, c. 33, Sched. 4, s. 4.

Notice of appointment

(3) The Minister shall give the board of the Corporation the notice that the Minister considers reasonable in the circumstances before appointing the administrator. 2017, c. 33, Sched. 4, s. 4.

Immediate appointment

(4) Subsection (3) does not apply if there are not enough members on the board to form a quorum. 2017, c. 33, Sched. 4, s. 4.

Term of appointment

(5) The appointment of the administrator is valid until the Minister makes an order terminating it. 2017, c. 33, Sched. 4, s. 4.

Powers and duties of administrator

(6) 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 Corporation. 2017, c. 33, Sched. 4, s. 4.

Same, limitations

(7) In the order appointing the administrator, the Minister may specify the administrator’s powers and duties and the conditions governing them. 2017, c. 33, Sched. 4, s. 4.

Right of access

(8) The administrator has the same rights as the board in respect of the documents, records and information of the Corporation. 2017, c. 33, Sched. 4, s. 4.

Report to Minister

(9) The administrator shall report to the Minister as the Minister requires. 2017, c. 33, Sched. 4, s. 4.

Minister’s directions

(10) The Minister may issue directions to the administrator about any matter within the administrator’s jurisdiction, and the administrator shall carry them out. 2017, c. 33, Sched. 4, s. 4.

No personal liability

(11) 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, 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. 2017, c. 33, Sched. 4, s. 4.

Crown liability

(12) Despite subsections 5 (2) and (4) of the Proceedings Against the Crown Act, subsection (11) does not relieve the Crown of liability to which it would otherwise be subject. 2017, c. 33, Sched. 4, s. 4.

Liability of Corporation

(13) Subsection (11) does not relieve the Corporation of liability to which it would otherwise be subject. 2017, c. 33, Sched. 4, s. 4.

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

2017, c. 33, Sched. 4, s. 4 - 14/12/2017

Status of board during administrator’s tenure

5.2 (1) On the appointment of an administrator under section 5.1, the members of the board of the Corporation cease to hold office, unless the order provides otherwise. 2017, c. 33, Sched. 4, s. 4.

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. 2017, c. 33, Sched. 4, s. 4.

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 Corporation after the member’s removal under subsection (1) or while the member’s powers are suspended under subsection (2). 2017, c. 33, Sched. 4, s. 4.

Crown liability

(4) Despite subsections 5 (2) and (4) of the Proceedings Against the Crown Act, subsection (3) does not relieve the Crown of liability to which it would otherwise be subject. 2017, c. 33, Sched. 4, s. 4.

Liability of Corporation

(5) Subsection (3) does not relieve the Corporation of liability to which it would otherwise be subject. 2017, c. 33, Sched. 4, s. 4.

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

2017, c. 33, Sched. 4, s. 4 - 14/12/2017

Oversight fees

5.3 The Corporation shall pay to the Minister, for each fiscal year of the Province or part of the year, an oversight fee in the amount that the Minister determines in respect of the cost that the Crown incurs in overseeing the activities of the Corporation in carrying out its objects, performing its duties and exercising its powers under this Act. 2017, c. 33, Sched. 4, s. 4.

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

2017, c. 33, Sched. 4, s. 4 - 14/12/2017

Auditor General

5.4 The Auditor General appointed under the Auditor General Act may conduct an audit of the Corporation, other than an audit required under the Corporations Act. 2017, c. 33, Sched. 4, s. 5.

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

2017, c. 33, Sched. 4, s. 5 - 14/12/2017

Registration of Vendors and Builders

Registration required

6 No person shall act as a vendor or a builder unless the person is registered by the Registrar under this Act.  R.S.O. 1990, c. O.31, s. 6.

Registration of vendors and builders

7 (1) An applicant is entitled to registration by the Registrar except where,

(a) having regard to the applicant’s financial position, the applicant cannot reasonably be expected to be financially responsible in the conduct of the applicant’s undertakings;

(b) the past conduct of the applicant affords reasonable grounds for belief that the applicant will not carry on the applicant’s undertakings in accordance with law and with integrity and honesty;

(c) the applicant is a corporation and,

(i) having regard to its financial position, it cannot reasonably be expected to be financially responsible in the conduct of its undertakings, or

(ii) the past conduct of its officers or directors affords reasonable grounds for belief that its undertakings will not be carried on in accordance with law and with integrity and honesty; or

(d) in the case of an application for registration as a builder, the applicant does not have sufficient technical competence to consistently perform the warranties.  R.S.O. 1990, c. O.31, s. 7 (1).

Conditions of registration

(2) A registration is subject to such terms and conditions to give effect to the purposes of this Act as are consented to by the applicant or imposed by the Tribunal or prescribed by the regulations.  R.S.O. 1990, c. O.31, s. 7 (2).

Registration not transferable

(3) A registration is not transferable.  R.S.O. 1990, c. O.31, s. 7 (3).

Refusal to register

8 (1) Subject to section 9, the Registrar may refuse to register an applicant where in the Registrar’s opinion the applicant is disentitled to registration under section 7.  R.S.O. 1990, c. O.31, s. 8 (1).

Revocation and refusal to renew

(2) Subject to section 9, the Registrar may refuse to renew or may suspend or revoke a registration for any reason that would disentitle the registrant to registration under section 7, if the registrant were an applicant, or where the registrant has a record of breaches of warranties or of failure or unwillingness to complete performance of contracts or is in breach of a term or condition of the registration.  R.S.O. 1990, c. O.31, s. 8 (2).

Notice of proposal to refuse or revoke

9 (1) Where the Registrar proposes to refuse to grant or renew a registration or proposes to suspend or revoke a registration, the Registrar shall serve notice of the proposal, together with written reasons therefor, on the applicant or registrant.  R.S.O. 1990, c. O.31, s. 9 (1).

Notice requiring hearing

(2) A notice under subsection (1) shall state that the applicant or registrant is entitled to a hearing by the Tribunal if the applicant or registrant mails or delivers, within fifteen days after service of the notice under subsection (1), notice in writing requiring a hearing to the Registrar and the Tribunal.  R.S.O. 1990, c. O.31, s. 9 (2).

Powers of Registrar where no hearing

(3) Where an applicant or registrant does not require a hearing by the Tribunal in accordance with subsection (2), the Registrar may carry out the proposal stated in the notice under subsection (1).  R.S.O. 1990, c. O.31, s. 9 (3).

Powers of Tribunal

(4) Where an applicant or registrant requires a hearing by the Tribunal in accordance with subsection (2), the Tribunal shall appoint a time for and hold the hearing and, on the application of the Registrar at the hearing, may by order direct the Registrar to carry out the Registrar’s proposal or refrain from carrying it out and to take such action as the Tribunal considers the Registrar ought to take in accordance with this Act and the regulations, and for such purposes the Tribunal may substitute its opinion for that of the Registrar.  R.S.O. 1990, c. O.31, s. 9 (4).

Conditions of order

(5) The Tribunal may attach such terms and conditions to its order or to the registration as it considers proper to give effect to the purposes of this Act.  R.S.O. 1990, c. O.31, s. 9 (5).

Parties

(6) The Registrar, the applicant or registrant who has required the hearing and such other persons as the Tribunal may specify are parties to proceedings before the Tribunal under this section.  R.S.O. 1990, c. O.31, s. 9 (6).

Voluntary cancellation

(7) The Registrar may cancel a registration upon the request in writing of the registrant and this section does not apply to the cancellation.  2009, c. 33, Sched. 10, s. 11.

Continuance pending renewal

(8) Where, within the time prescribed therefor or, if no time is prescribed, before expiry of the registration, a registrant has applied for renewal of a registration and paid the prescribed fee, the registration shall be deemed to continue,

(a) until the renewal is granted; or

(b) where the registrant is served with notice that the Registrar proposes to refuse to grant the renewal, until the time for giving notice requiring a hearing has expired and, where a hearing is required, until the Tribunal has made its order.  R.S.O. 1990, c. O.31, s. 9 (8).

Appeal

(9) Even if a registrant appeals an order of the Tribunal under section 11 of the Licence Appeal Tribunal Act, 1999, the order takes effect immediately but the Tribunal may grant a stay until the disposition of the appeal.  1999, c. 12, Sched. G, s. 30 (2).

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

1999, c. 12, Sched. G, s. 30 (2) - 01/04/2000

2009, c. 33, Sched. 10, s. 11 - 15/12/2009

Further applications

10 A further application for registration may be made upon new or other evidence or where it is clear that material circumstances have changed.  R.S.O. 1990, c. O.31, s. 10.

Ontario New Home Warranties Plan

Ontario New Home Warranties Plan

11 (1) The Ontario New Home Warranties Plan is continued under the name Ontario New Home Warranties Plan in English and Régime de garanties des logements neufs de l’Ontario in French and is comprised of the warranties and the guarantee fund and compensation provided for by this Act.  R.S.O. 1990, c. O.31, s. 11 (1).

Disclosures on entering into contract

(2) When a vendor enters into a contract for the sale of a home to an owner or for the construction of a home for an owner, the vendor shall deliver to the owner such documentation and notices respecting the Plan as are prescribed by the regulations.  R.S.O. 1990, c. O.31, s. 11 (2).

Notice of commencing construction

12 A builder shall not commence to construct a home until the builder has notified the Corporation of the fact, has provided the Corporation with such particulars as the Corporation requires and has paid the prescribed fee to the Corporation.  R.S.O. 1990, c. O.31, s. 12.

Warranties

13 (1) Every vendor of a home warrants to the owner,

(a) that the home,

(i) is constructed in a workmanlike manner and is free from defects in material,

(ii) is fit for habitation, and

(iii) is constructed in accordance with the Ontario Building Code;

(b) that the home is free of major structural defects as defined by the regulations; and

(c) such other warranties as are prescribed by the regulations.  R.S.O. 1990, c. O.31, s. 13 (1).

Exclusions

(2) A warranty under subsection (1) does not apply in respect of,

(a) defects in materials, design and work supplied by the owner;

(b) secondary damage caused by defects, such as property damage and personal injury;

(c) normal wear and tear;

(d) normal shrinkage of materials caused by drying after construction;

(e) damage caused by dampness or condensation due to failure by the owner to maintain adequate ventilation;

(f) damage resulting from improper maintenance;

(g) alterations, deletions or additions made by the owner;

(h) subsidence of the land around the building or along utility lines, other than subsidence beneath the footings of the building;

(i) damage resulting from an act of God;

(j) damage caused by insects and rodents, except where construction is in contravention of the Ontario Building Code;

(k) damage caused by municipal services or other utilities;

(l) surface defects in work and materials specified and accepted in writing by the owner at the date of possession.  R.S.O. 1990, c. O.31, s. 13 (2).

Certificate of completion

(3) The vendor of a home shall deliver to the owner a certificate specifying the date upon which the home is completed for the owner’s possession and the warranties take effect from the date specified in the certificate.  R.S.O. 1990, c. O.31, s. 13 (3).

Term of warranty under subs.(1)

(4) A warranty under subsection (1) applies only in respect of claims made thereunder within one year after the warranty takes effect, or such longer time under such conditions as are prescribed.  R.S.O. 1990, c. O.31, s. 13 (4).

Privity of contract

(5) A warranty is enforceable even though there is no privity of contract between the owner and the vendor.  R.S.O. 1990, c. O.31, s. 13 (5).

Application of warranties

(6) The warranties set out 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.  R.S.O. 1990, c. O.31, s. 13 (6).

Compensation

14 (1) Subject to the regulations, a person who has entered into a contract to purchase a home from a vendor is entitled to receive payment out of the guarantee fund for the amount that the person paid to the vendor as a deposit or other payment to be credited to the purchase price under the contract on closing if,

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

(b) the person has a cause of action against the vendor resulting from the fact that title to the home has not been transferred to the person because,

(i) the vendor has gone into bankruptcy, or

(ii) the vendor has fundamentally breached the contract.  1998, c. 19, s. 185 (1); 2000, c. 26, Sched. B, s. 15 (2); 2017, c. 33, Sched. 4, s. 6 (1).

Same, construction contract

(2) Subject to the regulations, an owner of land who has entered into a contract with a builder for the construction of a home on the land and who has a cause of action against the builder for damages resulting from the builder’s failure to substantially perform the contract, is entitled to receive payment out of the guarantee fund of the amount by which the amount paid by the owner to the builder under the contract exceeds the value of the work and materials supplied to the owner under the contract.  1998, c. 19, s. 185 (1).

Same, breach of warranty

(3) Subject to the regulations, an owner of a home is entitled to receive payment out of the guarantee fund for damages resulting from a breach of warranty if,

(a) the person became the owner of the home through receiving a transfer of title to it or through the substantial performance by a builder of a contract to construct the home on land owned by the person; and

(b) the person has a cause of action against the vendor or the builder, as the case may be, for damages resulting from the breach of warranty.  1998, c. 19, s. 185 (1); 2000, c. 26, Sched. B, s. 15 (3, 4).

Same, major structural defect

(4) Subject to the regulations, an owner who suffers damage because of a major structural defect mentioned in clause 13 (1) (b) is entitled to receive payment out of the guarantee fund for the cost of the remedial work required to correct the major structural defect if the owner makes a claim within four years after the warranty expires or such longer time under such conditions as are prescribed.  1998, c. 19, s. 185 (1).

Interpretation, substantial performance

(5) For the purposes of this section, a contract is substantially performed if it is substantially performed within the meaning given by subsection 2 (1) of the Construction Lien Act.  1998, c. 19, s. 185 (1).

Note: On July 1, 2018, the day named by proclamation of the Lieutenant Governor, subsection 14 (5) of the Act is amended by striking out “Construction Lien Act” at the end and substituting “Construction Act”. (See: 2017, c. 24, s. 79)

Note: On a day to be named by proclamation of the Lieutenant Governor, section 14 of the Act is amended by adding the following subsections: (See: 2017, c. 33, Sched. 4, s. 6 (2))

Evidence required of claimant

(5.1) Subject to subsection (5.2), a claimant under 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 (1) or (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. 2017, c. 33, Sched. 4, s. 6 (2).

Exception

(5.2) Subsection (5.1) does not apply to,

(a) a claim after the Corporation makes a decision mentioned in subsection (1) in respect of the claim; or

(b) a claim in respect of common elements or prescribed property of a condominium corporation. 2017, c. 33, Sched. 4, s. 6 (2).

Other recovery

(6) In assessing the amount for which a person is entitled to receive payment out of the guarantee fund under this section, the Corporation shall take into consideration any benefit, compensation, indemnity payable, or the value of work and materials furnished to the person from any source.  1998, c. 19, s. 185 (1).

Performance

(7) The Corporation may perform or arrange for the performance of any work in lieu of or in mitigation of damages claimed under this section.  1998, c. 19, s. 185 (1).

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

1998, c. 19, s. 185 (1) - 05/05/2001

2000, c. 26, Sched. B, s. 15 (2-4) - 05/05/2001

2017, c. 24, s. 79 - 01/07/2018; 2017, c. 33, Sched. 4, s. 6 (1) - 14/12/2017; 2017, c. 33, Sched. 4, s. 6 (2) - not in force

Condominiums

15 For the purposes of sections 13 and 14,

(a) a condominium corporation shall be deemed to be the owner of the common elements of the corporation;

(b) subject to clauses (c) and (d), if dwelling units are included in the property of a condominium corporation, the warranties on the common elements of the corporation take effect on the date of the registration of the declaration and description;

(c) no warranties shall take effect on the common elements of a common elements condominium corporation or a vacant land condominium corporation;

(d) the warranties on common elements of a phased condominium corporation, that are added to the corporation after the registration of the declaration and description take effect on the date of the registration of the amendments to the declaration and description that created them; and

(e) the amalgamation of two or more condominium corporations does not affect or extend the warranties on the common elements of the amalgamating corporations.  1998, c. 19, s. 185 (2).

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

1998, c. 19, s. 185 (2) - 05/05/2001

Liability of vendor

15.1 For the purposes of sections 13 and 14, a person, who at any time has registered as a vendor under this Act with respect to a home, for which the builder has complied with section 12 and has substantially completed the construction, shall be deemed to be a vendor of the home even if another person sells the home to an owner or completes a transaction to sell the home to an owner.  1998, c. 18, Sched. E, s. 188.

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

1998, c. 18, Sched. E, s. 188 - 18/12/1998

Notice of decision under s. 14

16 (1) Where the Corporation makes a decision under section 14, it shall serve notice of the decision, together with written reasons therefor, on the person or owner affected.  R.S.O. 1990, c. O.31, s. 16 (1).

Notice requiring hearing

(2) A notice under subsection (1) shall state that the person or owner served is entitled to a hearing by the Tribunal if the person or owner mails or delivers, within fifteen days after service of the notice under subsection (1), notice in writing requiring a hearing to the Corporation and the Tribunal.  R.S.O. 1990, c. O.31, s. 16 (2).

Powers of Tribunal

(3) Where a person or owner gives notice in accordance with subsection (2), the Tribunal shall appoint a time for and hold the hearing and may by order direct the Corporation to take such action as the Tribunal considers the Corporation ought to take in accordance with this Act and the regulations, and for such purposes the Tribunal may substitute its opinion for that of the Corporation.  R.S.O. 1990, c. O.31, s. 16 (3).

Parties

(4) The Corporation, the person or owner who has required the hearing and such other persons as the Tribunal may specify are parties to proceedings before the Tribunal under this section.  R.S.O. 1990, c. O.31, s. 16 (4).

Conciliation of disputes

17 (1) The Corporation may, upon the request of an owner, conciliate any dispute between the owner and a vendor.  R.S.O. 1990, c. O.31, s. 17 (1).

Idem

(2) Where there is a dispute between a vendor and an owner arising out of the contract, neither party shall commence any proceeding in respect thereof until after fifteen days after the party notifies the Corporation of the dispute for the purpose of giving the Corporation an opportunity to effect conciliation.  R.S.O. 1990, c. O.31, s. 17 (2).

Information to Corporation

(3) Each party to a dispute shall supply the Corporation with such particulars thereof as the Corporation requires.  R.S.O. 1990, c. O.31, s. 17 (3).

Arbitration

(4) Every agreement between a vendor and prospective owner shall be deemed to contain a written agreement to submit present or future differences to arbitration, subject to appeal to the Divisional Court, and the Arbitrations Act applies.  R.S.O. 1990, c. O.31, s. 17 (4).

Residential Condominium Conversion Projects

Interpretation

17.1 (1) In this section and sections 17.2 to 17.5,

“capital replacement plan”, in relation to a residential condominium conversion project, means a plan that,

(a) contains,

(i) details of any of the pre-existing elements of the project that can reasonably be expected to require prescribed repair during the initial period determined in accordance with subsection (2),

(ii) a schedule outlining the expenditures that can reasonably be expected for any prescribed repair of the pre-existing elements mentioned in subclause (i) during the initial period determined in accordance with subsection (2), and

(iii) any other prescribed information, and

(b) is prepared by a prescribed person in accordance with the prescribed criteria; (“plan de remplacement d’immobilisations”)

“commencement date”,

(a) in relation to a residential condominium conversion project that does not include a phase, means the date on which construction of the project is commenced as set out in subsection (3), or

(b) in relation to a phase of a residential condominium conversion project that constitutes a phase, means the date on which construction of the phase is commenced as set out in subsection (4); (“date de début”)

“phase” has the same meaning as in subsection 145 (3) of the Condominium Act, 1998; (“étape”)

“pre-existing elements” means the physical portions or components of a property or proposed property,

(a) that are or will be incorporated into,

(i) a residential condominium conversion project by the commencement date of the project, or

(ii) a phase of a residential condominium conversion project by the commencement date of the phase,

(b) that existed before the applicable commencement date mentioned in clause (a), and

(c) whose primary use before the applicable commencement date mentioned in clause (a) was,

(i) a use other than residential, or

(ii) a prescribed use; (“éléments préexistants”)

“pre-existing elements fund” means a fund that applies to the pre-existing elements of a residential condominium conversion project; (“fonds des éléments préexistants”)

“pre-existing elements fund study” means a fund study that,

(a) applies to the pre-existing elements of a residential condominium conversion project,

(b) contains the prescribed information, and

(c) is prepared by a prescribed person in accordance with the prescribed criteria; (“étude du fonds des éléments préexistants”)

“property” has the same meaning as in the Condominium Act, 1998; (“propriété”)

“property assessment report” means a report that,

(a) provides details of the condition of a property or proposed property that is a residential condominium conversion project,

(b) is prepared by a prescribed person in accordance with the prescribed criteria, and

(c) contains the prescribed information; (“rapport d’évaluation de propriété”)

“proposed property”, “proposed unit” and “purchaser of a unit” have the same meaning as in the Condominium Act, 1998; (“propriété projetée”, “partie privative projetée”, “acquéreur d’une partie privative”)

“residential condominium conversion project” means a project that,

(a) consists of a property or proposed property,

(b) includes or is proposed to include units capable of being used as self-contained dwellings for year-round residential occupancy, and

(c) contains pre-existing elements; (“projet de conversion en condominiums à usage d’habitation”)

“unit” has the same meaning as in the Condominium Act, 1998. (“partie privative”). 2015, c. 28, Sched. 1, s. 154 (7).

Initial period

(2) The initial period mentioned in the definition of “capital replacement plan” in subsection (1) is the period that begins on the date determined in the prescribed manner with respect to a residential condominium conversion project and ends on the prescribed anniversary of that date or, if no anniversary is prescribed, on its third anniversary. 2015, c. 28, Sched. 1, s. 154 (7).

When construction is commenced

(3) For the purposes of this section and sections 17.2 to 17.5, construction of a residential condominium conversion project that does not include a phase is commenced,

(a) if any portions or components of the foundation of the project include pre-existing elements, on the date when any work on the project, other than prescribed work, is commenced; or

(b) if no portions or components of the foundation of the project include any pre-existing elements, on the earlier of,

(i) the date when excavation on the project, other than prescribed work, is commenced, or

(ii) the date when other preparatory or related work for the installation of portions or components of the foundation of the project, other than prescribed work, is commenced. 2015, c. 28, Sched. 1, s. 154 (7).

Same, phase

(4) For the purposes of this section and sections 17.2 to 17.5, construction of a phase of a residential condominium conversion project is commenced,

(a) if any portions or components of the foundation of the phase include pre-existing elements, on the date when any work on the phase, other than prescribed work, is commenced; or

(b) if no portions or components of the foundation of the phase include any pre-existing elements, on the earlier of,

(i) the date when excavation on the phase, other than prescribed work, is commenced, or

(ii) the date when other preparatory or related work for the installation of portions or components of the foundation of the phase, other than prescribed work, is commenced. 2015, c. 28, Sched. 1, s. 154 (7).

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

2015, c. 28, Sched. 1, s. 154 (7) - 01/01/2018

Application of this Act

17.2 (1) This Act applies to a residential condominium conversion project and to a unit or a proposed unit in it only if,

(a) the builder is registered as a builder under this Act in respect of the project;

(b) the vendor is registered as a vendor under this Act in respect of the project; and

(c) the project, the units or proposed units of it and the common elements of it have been enrolled in the Plan. 2015, c. 28, Sched. 1, s. 154 (7).

Limitation, pre-existing elements

(2) Despite subsection (1) and despite anything else in this Act, subclause 13 (1) (a) (i) does not apply with respect to pre-existing elements. 2015, c. 28, Sched. 1, s. 154 (7).

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

2015, c. 28, Sched. 1, s. 154 (7) - 01/01/2018

Conditions precedent: enrolment, sale of units

17.3 (1) The conditions listed in subsection (2), in addition to any other conditions under this Act that apply, must be satisfied before,

(a) a residential condominium conversion project, the units or proposed units of it and the common elements of it are enrolled in the Plan; or

(b) a person sells or offers for sale any unit or proposed unit in a residential condominium conversion project. 2015, c. 28, Sched. 1, s. 154 (7).

Same

(2) The conditions mentioned in subsection (1) are the following:

1. The vendor has provided to the Registrar, in the prescribed manner and within the prescribed times,

i. a property assessment report for the residential condominium conversion project,

ii. a capital replacement plan for the project, and

iii. a pre-existing elements fund study for the project.

2. The Registrar has determined, in accordance with the prescribed criteria, that the project qualifies for enrolment in the Plan.

3. The vendor has provided evidence satisfactory to the Registrar that,

i. the pre-existing elements fund has been established in the prescribed manner, and

ii. the vendor has complied with any other requirements imposed by the Registrar or with any prescribed requirements with respect to the pre-existing elements fund.

4. The vendor has provided evidence satisfactory to the Registrar that,

i. the funding amount required by the Registrar has been placed in the pre-existing elements fund, in accordance with the prescribed requirements, or

ii. if the Registrar has given the vendor written permission to act under this subparagraph, the funding amount required by the Registrar will be placed in the pre-existing elements fund, in accordance with the prescribed requirements, on or before the date of registration of the declaration and description under the Condominium Act, 1998. 2015, c. 28, Sched. 1, s. 154 (7).

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

2015, c. 28, Sched. 1, s. 154 (7) - 01/01/2018

Confirmation of registration and enrolment

17.4 (1) With respect to a residential condominium conversion project, the Registrar shall provide confirmation of the facts set out in subsection (2), in the prescribed manner,

(a) to the builder and the vendor; and

(b) to any other prescribed person. 2015, c. 28, Sched. 1, s. 154 (7).

Same

(2) The facts mentioned in subsection (1) are,

(a) the fact that the residential condominium conversion project, the units or proposed units of it and the common elements of it have been enrolled in the Plan;

(b) the fact that the builder of the project is registered as a builder in respect of the project under this Act; and

(c) the fact that the vendor of the project is registered as a vendor in respect of the project under this Act. 2015, c. 28, Sched. 1, s. 154 (7).

Prohibition

(3) No person shall commence construction of a residential condominium conversion project unless the Registrar has provided the confirmation described in subsection (1). 2015, c. 28, Sched. 1, s. 154 (7).

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

2015, c. 28, Sched. 1, s. 154 (7) - 01/01/2018

Pre-existing elements fund

17.5 (1) The vendor of a residential condominium conversion project shall establish and maintain the pre-existing elements fund for the project in accordance with the prescribed requirements and shall not seek reimbursement of any portion of the funding from the owner or purchaser of a unit or proposed unit, from the corporation, as defined in subsection 1 (1) of the Condominium Act, 1998, in respect of the project or from another corporation. 2015, c. 28, Sched. 1, s. 154 (7).

Use of fund

(2) The pre-existing elements fund shall be,

(a) held in accordance with the prescribed requirements; and

(b) used and accounted for in accordance with the prescribed requirements. 2015, c. 28, Sched. 1, s. 154 (7).

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

2015, c. 28, Sched. 1, s. 154 (7) - 01/01/2018

Enforcement

Inspectors

18 (1) The Corporation shall appoint inspectors for the purposes of this Act.  R.S.O. 1990, c. O.31, s. 18 (1).

Power of entry

(2) An inspector may, for the purpose of inspecting a home during its construction, enter in or upon and inspect the premises constituting the site of the construction at any time without a warrant.  R.S.O. 1990, c. O.31, s. 18 (2).

Powers of inspector

(3) For the purposes of an inspection, the inspector may,

(a) require the production of the drawings and specifications of a home or any part thereof, including any drawings prescribed by the regulations, for his or her inspection and may require information from any person concerning any matter related to a home or part thereof;

(b) be accompanied by any person who has special or expert knowledge of any matter in relation to a home or part thereof; and

(c) alone or in conjunction with such other person or persons possessing special or expert knowledge, make such examinations, tests, or inquiries as are necessary for the purposes of the inspection.  R.S.O. 1990, c. O.31, s. 18 (3).

Obstruction of inspectors

(4) No person shall hinder, obstruct, molest or interfere with or attempt to hinder, obstruct, molest or interfere with an inspector in the exercise of a power or performance of a duty under this Act.  R.S.O. 1990, c. O.31, s. 18 (4).

Restraining order

19 (1) Where it appears to the Corporation that any vendor or builder does not comply with this Act or the regulations, despite the imposition of any penalty in respect of such non-compliance and in addition to any other rights it may have, the Corporation may apply to the Superior Court of Justice for an order directing such person to comply with such provision and, upon the application, the court may make the order or such other order as the court thinks fit.  R.S.O. 1990, c. O.31, s. 19 (1); 2000, c. 26, Sched. B, s. 15 (5).

Appeal

(2) An appeal lies to the Divisional Court from an order made under subsection (1).  R.S.O. 1990, c. O.31, s. 19 (2).

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

2000, c. 26, Sched. B, s. 15 (5) - 06/12/2000

General

Service of notice

20 Any notice or document required by this Act to be served or given may be served or given personally or by registered mail addressed to the person to whom notice is to be given at the person’s last known address and, where notice is served or given by mail, the service shall be deemed to have been made on the fifth day after the day of mailing unless the person to whom the notice is given establishes that the person, acting in good faith, through absence, accident, illness or other cause beyond the person’s control, did not receive the notice, or did not receive the notice until a later date.  R.S.O. 1990, c. O.31, s. 20.

Certificate of evidence

21 The following statements are admissible in evidence as proof, in the absence of evidence to the contrary, of the facts stated in them for all purposes in any proceeding or prosecution, without the need for proving the office or signature of the Registrar, if the statements purport to be certified by the Registrar:

1. A statement as to the registration or non-registration of any person.

2. A statement as to the filing or non-filing of any document or material required or permitted to be filed with the Corporation.

3. A statement as to any other matter pertaining to a registration, non-registration, filing or non-filing of any person.  1998, c. 18, Sched. E, s. 189.

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

1998, c. 18, Sched. E, s. 189 - 18/12/1998

Offences

22 (1) Every person is guilty of an offence who,

(a) knowingly furnishes false information in any application under this Act or in any statement or return required to be furnished under this Act or the regulations;

(b) contravenes section 6 or 12 or subsection 18 (4); or

(c) contravenes subsection 17.4 (3). 2015, c. 28, Sched. 1, s. 154 (10).

Directors and officers

(2) Every director or officer of a corporation who knowingly concurs in an offence described in subsection (1) is guilty of an offence. 2015, c. 28, Sched. 1, s. 154 (10).

Penalties

(2.1) A person who is convicted of an offence under subsection (1) or (2) is liable to,

(a) a fine of not more than $250,000, if the person is a corporation; or

(b) a fine of not more than $50,000 or to imprisonment for a term of not more than two years less a day, or both, if the person is an individual. 2015, c. 28, Sched. 1, s. 154 (10).

Limitations

(3) A proceeding under clause (1) (a) shall not be commenced after the first anniversary of the day on which the facts upon which the proceeding is based first came to the knowledge of the Registrar.  1998, c. 19, s. 185 (3); 2015, c. 28, Sched. 1, s. 154 (11).

Same

(4) A proceeding under clause (1) (b) shall not be commenced after the second anniversary of the day on which the facts that gave rise to the offence were discovered.  1998, c. 19, s. 185 (3).

Same

(5) A proceeding under clause (1) (c) shall not be commenced after the second anniversary of the day on which the facts upon which the proceeding is based first came to the knowledge of the Registrar. 2015, c. 28, Sched. 1, s. 154 (12).

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

1998, c. 19, s. 185 (3) - 05/05/2001

2015, c. 28, Sched. 1, s. 154 (10, 12) - 01/01/2018; 2015, c. 28, Sched. 1, s. 154 (11) - 01/11/2017

Regulations

22.1 The Lieutenant Governor in Council may make regulations prescribing,

(a) the manner of determining the date mentioned in subsection 17.1 (2);

(b) the anniversary mentioned in subsection 17.1 (2);

(c) requirements for the purposes of clause 17.5 (2) (a). 2015, c. 28, Sched. 1, s. 154 (13).

Note: On a day to be named by proclamation of the Lieutenant Governor, section 22.1 of the Act is repealed and the following substituted: (See: 2017, c. 33, Sched. 4, s. 7)

Lieutenant Governor in Council regulations

22.1 The Lieutenant Governor in Council may make regulations,

(a) governing the expenses and expenditures to which section 4 applies;

(b) governing the evidence described in subsection 14 (5.1) and any matter relating to providing it;

(c) prescribing the manner of determining the date mentioned in subsection 17.1 (2);

(d) prescribing the anniversary mentioned in subsection 17.1 (2);

(e) prescribing requirements for the purposes of clause 17.5 (2) (a);

(f) providing for any transitional matter necessary for the effective implementation of,

(i) a revocation by the Lieutenant Governor in Council of a designation under subsection 2 (1), or

(ii) the repeal of this Act and its replacement in full or in part by another Act. 2017, c. 33, Sched. 4, s. 7.

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

2015, c. 28, Sched. 1, s. 154 (13) - 01/01/2018

2017, c. 33, Sched. 4, s. 7 - not in force

By-laws

23 (1) The Corporation may make by-laws,

(a) governing applications for registration of vendors and builders and the expiration and renewal of registration;

(b) subject to the approval of the Minister, prescribing the terms and conditions of registration;

(c) requiring the payment of fees on applications for registration or renewal of registration and prescribing the amounts thereof;

(d) prescribing the fees payable by builders to the Corporation in respect of the construction of a home or any class of home;

(e) governing applications for and the issuance of certificates under subsection 13 (3);

(f) governing agreements entered into between the Corporation and vendors or builders;

(g) providing for the establishment and maintenance of the guarantee fund and governing procedures for claiming and determining claims for compensation from the guarantee fund;

(h) subject to the approval of the Minister, governing the procedures for conciliation of disputes;

(h.1) providing for the payment and refunding of fees respecting requests for conciliation;

(i) subject to the approval of the Minister, prescribing classes of dwellings that are homes;

(j) subject to the approval of the Minister, specifying warranties in addition to those provided for in clause 13 (1) (a) or (b) and the time of expiration thereof;

(k) subject to the approval of the Minister, defining major structural defects for the purpose of clause 13 (1) (b);

(l) requiring vendors and builders to be bonded or to provide other security in such form, on such terms and with such collateral security as are prescribed, and providing for the forfeiture of bonds or other security and for the disposition of the proceeds;

  (l.1) subject to the approval of the Minister, specifying information that a person is required to include in a claim for compensation from the guarantee fund;

(m) subrogating the Corporation or a named insurer to any right of recovery of a person in respect of a claim paid out of the insurance under the Plan and costs and providing the terms and conditions under which an action to enforce such rights may be begun, conducted and settled;

(m.1)  allowing prescribed persons to inspect homes during or after their construction and requiring builders or vendors to pay the costs of the inspections;

(m.2)  subject to the approval of the Minister, governing deposits or other payments for the purpose of subsection 14 (1), including,

(i) what payments are included as deposits or other payments,

(ii) the way in which a vendor or builder is required to hold and deal with a deposit or other payment,

(iii) the security and other financial obligations that a vendor or builder is required to fulfil, and

(iv) the reporting that a vendor or builder is required to make to the Corporation in respect of deposits or other payments;

(m.3)  subject to the approval of the Minister, governing the entitlement of an owner to payment out of the guarantee fund, including interest, as compensation under section 14;

(n) prescribing any matter required or authorized by this Act to be, or referred to in this Act as, prescribed by the regulations except a matter listed in section 22.1;

(o) prescribing forms for the purposes of the Corporation and forms for claims for compensation from the guarantee fund. R.S.O. 1990, c. O.31, s. 23 (1); 1994, c. 27, s. 94; 1998, c. 18, Sched. E, s. 190; 1998, c. 19, s. 185 (4-7); 2015, c. 28, Sched. 1, s. 154 (14); 2017, c. 33, Sched. 4, s. 8.

Legislation Act, 2006, Part III

(2) A by-law passed under subsection (1) shall be deemed to be a regulation to which Part III (Regulations) of the Legislation Act, 2006 applies.  R.S.O. 1990, c. O.31, s. 23 (2); 2006, c. 21, Sched. F, s. 136 (1).

Act binds Crown

(3) This Act, except sections 6 to 10, binds the Crown.  R.S.O. 1990, c. O.31, s. 23 (3).

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

1994, c. 27, s. 94 - 09/12/1994; 1998, c. 18, Sched. E, s. 190 - 18/12/1998; 1998, c. 19, s. 185 (4-7) - 05/05/2001

2006, c. 21, Sched. F, s. 136 (1) - 25/07/2007

2015, c. 28, Sched. 1, s. 154 (14) - 01/01/2018

2017, c. 33, Sched. 4, s. 8 (1-4) - 14/12/2017

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