O. Reg. 87/12: ADMINISTRATION OF THE PLAN
filed May 14, 2012 under Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31
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made under the
ontario new home warranties Plan act
Made: May 3, 2012
Filed: May 14, 2012
Published on e-Laws: May 15, 2012
Printed in The Ontario Gazette: June 2, 2012
Amending Reg. 892 of R.R.O. 1990
(Administration of the Plan)
1. (1) Section 1 of Regulation 892 of the Revised Regulations of Ontario, 1990 is amended by adding the following definitions:
“building” means, in respect of a post June 30, 2012 home, the principal structure in which one or more residential dwellings are located, including in the case of condominiums, common element facilities, but excluding in all cases any structure or appurtenance used in connection with a dwelling such as a fence, deck, sauna, swimming pool, spa, antenna, canopy, patio, sidewalk, driveway, utility shed or storage tank; (“bâtiment”)
“co-share arrangement” means an arrangement, in respect of a major structural defect claim made under the Act in respect of a condominium project or a home, under which a registrant who is the vendor of the project or the home, as the case may be, agrees in writing to pay the Corporation,
(a) the least of the following amounts if the claim involves common elements of a condominium project:
(i) the cost to the Corporation of resolving all major structural defect claims in respect of the common elements of the project,
(ii) 5 per cent of the aggregate sale price of all homes in the project,
(iii) $750,000,
(iv) the maximum amount payable on the claim as a result of any other liability cap set out under the Act, or
(b) the least of the following amounts if the claim involves a home but does not involve common elements:
(i) the cost to the Corporation of resolving all major structural defect claims in respect of the home,
(ii) 5 per cent of the sale price of the home,
(iii) $300,000,
(iv) the maximum amount payable on the claim as a result of any other liability cap set out under the Act; (“accord de partage des coûts”)
(2) The definition of “major structural defect” in section 1 of the Regulation is revoked and the following substituted:
“major structural defect” means,
(a) in respect of a post June 30, 2012 home, any defect in work or materials in respect of a building, including a crack, distortion or displacement of a structural load-bearing element of the building, if it,
(i) results in failure of a structural load-bearing element of the building,
(ii) materially and adversely affects the ability of a structural load-bearing element of the building to carry, bear and resist applicable structural loads for the usual and ordinary service life of the element, or
(iii) materially and adversely affects the use of a significant portion of the building for usual and ordinary purposes of a residential dwelling and having regard to any specific use provisions set out in the purchase agreement for the home, or
(b) in respect of a home that is enrolled after December 31, 1990 and that is not a post June 30, 2012 home, any defect in work or materials, including any defect that results in significant damage due to soil movement, major cracks in basement walls, collapse or serious distortion of joints or roof structure and chemical failure of materials, if the defect,
(i) results in failure of the load-bearing portion of any building or materially and adversely affects its load-bearing function, or
(ii) materially and adversely affects the use of such building for the purpose for which it was intended,
but does not include any defect attributable in whole or in part to a Year 2000 compliance problem, flood damage, dampness not arising from failure of a load-bearing portion of the building, damage to drains or services, damage to finishes, malicious damage or damage arising from acts of God, acts of the owners or their tenants, licensees or invitees, acts of civil or military authorities or acts of war, riot, insurrection or civil commotion; (“vice de construction important”)
(3) Section 1 of the Regulation is amended by adding the following definitions:
“post June 30, 2012 home” means,
(a) in the case of a home of a type not described in clause (c) of the definition of “home” in section 1 of the Act, a home where the parties signed the purchase agreement or the construction contract on or after July 1, 2012, and
(b) in the case of a home of a type described in clause (c) of the definition of “home” in section 1 of the Act, a home where the first arm’s length purchase agreement for a home in the condominium project was signed on or after July 1, 2012; (“logement postérieur au 30 juin 2012”)
“structural load-bearing element” means a structural portion or component of a building that is subjected to or designed to carry loads, excluding wind or earthquake loads, in addition to the weight of all permanent structural and non-structural components of the building; (“élément structural porteur”)
(4) The definitions of “warranty claim” and “warranty period” in section 1 of the Regulation are revoked and the following substituted:
“warranty claim” means a claim for breach of warranty under subsection 14 (3) or (4) of the Act; (“réclamation au titre de la garantie”)
“warranty period”, for a warranty described in subsection 13 (1) of the Act, means the period beginning on the date on which the warranty takes effect under subsection 13 (3) or section 15 of the Act and ending on the date that the warranty expires; (“période de garantie”)
2. Subsections 4.1 (4), (5), (6) and (7) of the Regulation are revoked.
3. (1) Subsection 4.6 (2) of the Regulation is amended by adding “that is not a post June 30, 2012 home” after “home”.
(2) The French version of the following provisions of the Regulation is amended by striking out “formule de vice de construction important” wherever that expression appears and substituting in each case “formule relative aux vices de construction importants”:
1. Subsection 4.6 (2).
2. Subsection 4.6 (3), in the portion before clause (a).
3. Clauses 4.6 (4) (a) and (b).
4. Sections 5.3 and 5.4 of the Regulation are revoked.
5. Subsection 5.6 (2) of the Regulation is revoked.
6. (1) Subsection 5.7 (1) of the Regulation is amended by adding “that does not include any post June 30, 2012 homes” after “condominium project”.
(2) Subsection 5.7 (2) of the Regulation is revoked.
7. The Regulation is amended by adding the following sections:
Post June 30, 2012 Homes — Major Structural Defect Claims — Years 3 through 7
5.9 (1) In order to make a major structural defect claim in respect of a post June 30, 2012 home, the owner shall complete and submit to the Corporation a major structural defect form during the major structural defect claim period.
(2) If an owner submits a major structural defect form to the Corporation during the major structural defect claim period, the vendor shall have until the 90th day from the day on which the Corporation receives the form to repair or resolve the claim items that are listed on the form and that are covered by a warranty.
(3) If the vendor does not repair or resolve all of the claim items listed on the major structural defect form by the 90th day from the day on which the Corporation receives the form, the owner may request a conciliation by contacting the Corporation at any time from the 91st day to the 120th day after the date on which the Corporation receives the form.
(4) If the owner does not request a conciliation under subsection (3) or cancels the conciliation requested under that subsection, the owner shall be deemed to have withdrawn all claim items listed in the major structural defect form that the vendor does not repair or resolve by the 90th day from the day on which the Corporation receives the form.
(5) If the owner requests a conciliation under subsection (3), the Corporation shall schedule a conciliation within a reasonable time after the request is made.
(6) If the conciliation of the claim requires physical investigation, the owner shall provide reasonable access and co-operation to the Corporation and the vendor to allow the Corporation or any person designated by the Corporation to conduct whatever investigation is reasonably required for the purpose of assessing the claim.
(7) If the owner does not comply with subsection (6), the Corporation may deny the claim.
(8) After conducting the conciliation, the Corporation shall issue a report setting out its finding as to whether or not each claim item constitutes a major structural defect and, if so, a recommendation for either compensation or repair.
(9) Within 10 days from the date the Corporation issues the report described in subsection (8), the vendor shall enter into,
(a) an agreement with the owner and the Corporation under which the vendor undertakes to resolve the defect directly with the owner, either by way of repair or compensation; or
(b) a written co-share arrangement with the Corporation in respect of each claim item.
(10) The Corporation shall resolve the claim directly with the owner, either by paying compensation out of the guarantee fund to the owner or performing or arranging to perform the required work, if,
(a) the vendor does not comply with subsection (9);
(b) the vendor enters into an agreement described in clause (9) (a) but fails to comply with it and the owner is not in any way responsible for the failure; or
(c) the vendor enters into an arrangement described in clause (9) (b).
General
5.10 The Corporation may, in its sole discretion, extend or abridge any time specified in sections 4.1 to 4.6, 5.1, 5.2, 5.5 to 5.7 and 5.9 if it determines that,
(a) the vendor is unable or unwilling to repair or resolve the claim items covered by a warranty;
(b) the warranty claim,
(i) relates to items involving health and safety, seasonal repairs or an emergency, or
(ii) involves other extraordinary circumstances; or
(c) the specified times begin in, end in or span the period from December 24 of one year to January 1 of the following year, both inclusive.
5.11 (1) A person who submits a form to the Corporation under any of sections 4.1 to 4.6, 5.1, 5.2, 5.5 to 5.7 and 5.9 shall submit the form,
(a) by hand, courier or facsimile transmission;
(b) to the Corporation’s designated portal for purchasers on the Internet; or
(c) by regular mail or registered mail except during a general interruption of postal service.
(2) Submission by hand or courier is effective on the day that the Corporation receives it, if that day is a business day, and otherwise on the next business day.
(3) Submission by facsimile transmission or to the Corporation’s designated portal for purchasers on the Internet is effective on the day sent, whether it is a business day or not.
(4) Submission by regular mail is effective on,
(a) the post-mark date if the Corporation receives it within 10 days of the expiry of the period during which the applicable section requires the submission; or
(b) the date that the Corporation receives it, otherwise.
8. Section 15 of the Regulation is amended by adding the following subsection:
(2.1) A major structural defect claim in respect of a post June 30, 2012 home does not extend to any damages or claims,
(a) in respect of any elevating device as defined in subsection 1 (1) of Ontario Regulation 209/01 (Elevating Devices) made under the Technical Standards and Safety Act, 2000 but does not include the surrounding structure of the building housing the device;
(b) in respect of any appliances that form part of the heating or cooling apparatus, equipment or system, whether for water, air or other substances, including furnaces, air conditioners, chillers and heat recovery ventilators;
(c) resulting from dampness not arising from failure of a structural load-bearing element of the building;
(d) resulting from acts or omissions of an owner, a tenant, a licensee or invitee;
(e) resulting from acts of civil or military authorities or acts of war, riot, insurrection or civil commotion;
(f) resulting from a flood not caused by the vendor or builder; or
(g) resulting from anything to which a warranty does not apply under subsection 13 (2) of the Act.
9. Subparagraph 3 (1) of Schedule A to the Regulation is revoked and the following substituted:
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Enrolment and Re-enrolment Fee |
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3. (1) |
The enrolment fee for every home of a type referred to in clauses (a), (b) and (c) of the definition of “home” in section 1 of the Act is as follows: |
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Sale Price of the Home |
Fee |
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$100,000 or less |
385 |
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over $100,000 up to and including $150,000 |
430 |
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over $150,000 up to and including $200,000 |
500 |
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over $200,000 up to and including $250,000 |
570 |
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over $250,000 up to and including $300,000 |
640 |
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over $300,000 up to and including $350,000 |
710 |
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over $350,000 up to and including $400,000 |
780 |
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over $400,000 up to and including $450,000 |
850 |
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over $450,000 up to and including $500,000 |
920 |
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over $500,000 up to and including $550,000 |
1,000 |
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over $550,000 up to and including $600,000 |
1,050 |
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over $600,000 up to and including $650,000 |
1,100 |
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over $650,000 up to and including $700,000 |
1,150 |
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over $700,000 up to and including $750,000 |
1,200 |
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over $750,000 up to and including $800,000 |
1,250 |
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over $800,000 up to and including $850,000 |
1,300 |
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over $850,000 up to and including $900,000 |
1,350 |
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over $900,000 up to and including $950,000 |
1,400 |
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over $950,000 up to and including $1,000,000 |
1,450 |
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greater than $1,000,000 |
1,500 |
Commencement
10. This Regulation comes into force on the day it is filed.
Made by:
Pris par :
Tarion Warranty Corporation:
Le président,
Harry Herskowitz
Chairman
Le secrétaire de la Société,
Tim Schumacher
Corporate Secretary
Date made by the directors: May 3, 2012.
Pris par les administrateurs le : 3 mai 2012.
Date confirmed by the members in accordance with the Corporations Act: May 3, 2102.
Ratifié par les membres conformément à la Loi sur les personnes morales le : 3 mai 2012.
Le secrétaire de la Société,
Tim Schumacher
Corporate Secretary
Date certified: May 11, 2012.
Attesté le :11 mai 2012.