Protection for Owners and Purchasers of New Homes Act, 2017

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No published amendment links yet for this Act.

Sections92

• [s0]

  Part I INTERPRETATION and Application

• 1Purposes

  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.

• 2Definitions

  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, 1…

• 3Crown bound

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

• 4Act prevails

  4 This Act applies despite any agreement to the contrary.

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  Part II ADMINISTRATION

• [s6]

  Delegation

• 5Designation 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 th…

• 6Administrative 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 opera…

• 7Information 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 enrolm…

• 8Compliance 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.

• 9Review

  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 inf…

• 10Conflict

  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

• 11Revocation 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. Sa…

• 12Condition 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.

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  Warranty Authority

• 13Competency 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.

• 14Composition 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.

• 15Minister’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.

• 16Appointment of chair

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

• 17Public 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 …

• 18Employees

  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.

• 19Not 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.

• 20No 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. Note: On the later of the day section 33 of Schedule 17 (Crown Liability and Proceedings Act, 2019) to the Protecting What Matters Most Act (Budget Measures), 2019 comes into force and the day subsection 20 (2) comes into force, subsection 20 (2) of the Act is amended by striking out “subsections 5 (2) and (4) of the Proceedings Against the…

• 21No 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).

• 22Indemnification 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.

• 23No 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 …

• 24Not 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

• 25Audit

  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

• 26Reports

  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.

• 27Administrator

  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 aut…

• 28Status 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. Note: On the later of the day section …

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  Powers and Duties of Warranty Authority

• 29Additional 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

• 30Change 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

• 31Right 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.

• 32Forms 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 oth…

• 33Advisory 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.

• 34Duty 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.

• 35Advice 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.

• 36Research 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.

• 37Information 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).

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  Miscellaneous

• 38Registrar

  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.

• 39Director

  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.

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  PART III WARRANTIES AND OTHER PROTECTION

• 40Plan

  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.

• 41Requirements 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).

• 42Requirements 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…

• 43Enrolment 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. Con…

• 44Suspension 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.

• 45Cancellation 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.

• 46Notice 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 i…

• 47Warranties

  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 warrantie…

• 48Protection 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 buil…

• [s55]

  PART IV CLAIMS for compensation

• 49Guarantee 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…

• 50Compensation 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…

• 51Non-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.

• 52Claim 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 desc…

• [s60]

  PART V Complaints, Inspections, Investigations AND ENFORCEMENT

• [s61]

  Complaints

• 53Complaints

  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 matt…

• 54Ombudsperson

  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.

• [s64]

  Inspections and Investigations

• 55Inspectors

  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.

• 56Inspections 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 re…

• 57Appointment 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.

• 58Investigations 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 d…

• 59Seizure 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.

• 60Searches 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. Note: On the day subsection 58 (1) of Schedule 2 to the Strengthening Protection for Ontario Consumers Act, 2017 comes into force, the Act is amended by adding the following section: (See: 2019, c. 14, Sched. 10, s. 15 (2))

• [s71]
• 60.1Report when things seized

  60.1 (1) An investigator who seizes any thing under the authority of section 58, 59 or 60 shall bring it before a justice of the peace or, if that is not reasonably possible, shall report the seizure to a justice of the peace. 2019, c. 14, Sched. 10, s. 15 (2). Procedure (2) Sections 159 and 160 of the Provincial Offences Act apply with necessary modifications in respect of a thing seized under the authority of section 58, 59 or 60 of this Act, reading the reference in subsection 160 (1) of that Act to a document that a person is about to examine or seize under a search warrant as a reference to a thing that an investigator is about to examine or seize under the authority of section 58, 59 or 60 of this Act. 2019, c. 14, Sched. 10, s. 15 (2). Section Amendments with date in force (d/m/y) 2019, c. 14, Sched. 10, s. 15 (2) - not in force

• [s72]

  Enforcement

• 61Offences

  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…

• 62Orders 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.

• 63Default 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.

• [s76]
• 64Liens 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 …

• [s77]

  PART VI GEneral

• 65Confidentiality

  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 l…

• 66Service

  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.

• 67Information 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 enro…

• 68Lieutenant 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 …

• 69Minister’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 prescribi…

• 70Warranty 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.

• 71Transition

  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. 2017, c. 33, Sched. 2, s. 71 (1). Note: On a day to be named by proclamation of the Lieutenant Governor, subsection 71 (1) of the Act is amended by striking out “the day this section comes into force” at the end and substituting “the day this subsection comes into force”. (See: 2020, c. 14, Sched. 5, s. 33 (1)) 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. 2017, c. 33, Sched. 2, s. 71 (2). Note: O…

• 72

  72 Omitted (provides for amendments to this Act). Part VIII (OMITTED)

• 73Repealed

  73 Repealed: 2020, c. 14, Sched. 5, s. 33 (8). Section Amendments with date in force (d/m/y) 2020, c. 14, Sched. 5, s. 33 (8) - 14/07/2020

• 74

  74-79 Omitted (amends, repeals or revokes other legislation). Part IX (OMITTED)

• 80

  80 Omitted (provides for coming into force of provisions of this Act). 2017, c. 33, Sched. 2, s. 80; 2020, c. 14, Sched. 5, s. 33 (8). Section Amendments with date in force (d/m/y) 2020, c. 14, Sched. 5, s. 33 (8) - 14/07/2020

• 81

  81 Omitted (enacts short title of this Act). ______________