BILL 34 – 2007
HOMEOWNER PROTECTION AMENDMENT ACT, 2007
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:
1 Section 1 of the Homeowner Protection Act, S.B.C. 1998, c. 31, is amended
(a) by adding the following definitions:
"appeal board" means the appeal board established under section 43 of the Safety Standards Act;
"authorization" means an authorization issued by the registrar under section 20;
"compliance officer" means a person appointed under section 5 (1) as a compliance officer;
"compliance order" means a compliance order issued under section 28.1;
"monetary penalty" means a monetary penalty imposed under section 28.3;
"public registry" means the registry established under section 29.5 (1); ,
(b) in the definition of "chief executive officer" by striking out "section 3 (3)" and substituting "section 4 (2.1)",
(c) in the definition of "new home" by striking out "newly constructed and intended" and substituting "newly constructed or being constructed and is intended", by striking out "and" at the end of paragraph (c), by adding "and" at the end of paragraph (d) and by adding the following paragraph:
(e) a home that is or is being substantially reconstructed, ,
(d) by repealing the definition of "owner builder" and substituting the following:
"owner builder" means an individual with a valid authorization issued by the registrar under section 20; , and
(e) in the definition of "residential builder" by adding "or agrees to do any of those things" after "construction of a new home".
2 Section 3 (3) is repealed.
3 Section 4 is amended by adding the following subsection:
(2.1) The board must appoint a person as chief executive officer for the office and may determine the remuneration and the terms and conditions of the appointment.
4 Section 5 (1) (b) is amended by adding ", including compliance officers," after "appoint officers".
5 Section 7 (1) is amended by striking out "of residential builders and other persons required to be licensed under this Act." and substituting "for the purposes of this Act."
6 Section 8 (1) is amended
(a) by adding the following paragraphs:
(a.1) to receive and review applications for authorizations from persons who apply to be authorized as owner builders under this Act;
(b.1) to issue authorizations to persons referred to in paragraph (a.1) who meet the requirements of this Act and the regulations; ,
(b) by repealing paragraphs (c) and (d) and substituting the following:
(c) subject to sections 15 and 20.2, to suspend or cancel licences and authorizations;
(d) to maintain a register of
(i) owner builders, licensed residential builders and other persons licensed under this Act, and
(ii) new homes; ,
(c) in paragraph (g) by adding "or authorized" after "persons licensed", and
(d) by repealing paragraph (h) and substituting the following:
(h) to perform any other duties imposed on the registrar by this Act or the regulations.
7 Section 9 is amended
(a) in subsection (1) by striking out "the registrar or a person authorized by the registrar, may, during regular business hours," and substituting "a compliance officer may at any reasonable time",
(b) in subsection (1) (b) (iii) by adding "or authorization" after "licensing",
(c) by repealing subsection (1) (c) and substituting the following:
(c) inspect the records of a person who is authorized or licensed or is required to be licensed under this Act; ,
(d) in subsection (1) by adding the following paragraph:
(e.1) issue a compliance order; ,
(e) by adding the following subsection:
(1.1) The registrar may exercise the powers of a compliance officer set out in subsection (1). ,
(f) in subsection (2) by striking out "person authorized by the registrar" and substituting "a compliance officer",
(g) in subsection (3) by striking out "other authorized person when exercising his or her powers" and substituting "a compliance officer in the exercise of powers",
(h) by adding the following subsections:
(3.1) The registrar or a compliance officer, on the request of a person on the premises the registrar or compliance officer enters, must produce his or her identification card.
(3.2) The chief executive officer must provide the registrar and compliance officers with identification cards for the purpose of subsection (3.1). , and
(i) in subsection 4 (b) by adding "authorized or" after "compliance by persons".
8 Section 10 (1) is repealed and the following substituted:
(1) The registrar must collect the fees required to be paid under this Act.
9 Section 14 is amended
(a) by repealing subsection (2) (a) and substituting the following:
(a) the registrar is satisfied that the person
(i) meets the prescribed qualifications for licensing or has the experience, training or competence equivalent to the prescribed qualifications, and
(ii) meets the prescribed conditions for licensing,
(a.1) in the case of an application by a corporation, none of the individuals about whom disclosure is required under subsection (3) would be disqualified if the individual were an applicant, and ,
(b) by adding the following subsections:
(2.1) For the purposes of determining whether a person has the experience, training or competence referred to in subsection (2) (a) (i), the registrar may set and administer examinations.
(2.2) On application to the registrar, a person who holds a licence issued under this Part may have the licence amended if
(a) the registrar is satisfied that amending the licence is appropriate in the circumstances, and
(b) the person pays the prescribed fee. ,
(c) by repealing subsection (3) and substituting the following:
(3) A corporation applying for a licence or its renewal, in addition to any other disclosure required under this Act, must file with the registrar a statement disclosing, to the satisfaction of the registrar, the identity of the individuals who control or who are able to control the corporation. ,
(d) in subsection (6) (b) by adding "under section 14.1" after "renewed", and
(e) in subsection (7) by striking out "or renewed under this Part." and substituting "under this section."
10 The following section is added:
Licence renewal
14.1 (1) On application to the registrar within 30 days of its expiry, a person who holds a licence issued under section 14 may have the licence renewed if
(a) the registrar is satisfied that the person would meet the requirements of section 14 (2) (a) or (a.1) if the person were an applicant under that section, and
(b) the person pays the prescribed fee.
(2) Subject to the regulations, the registrar may impose conditions on a licence renewed under this section.
11 Section 15 is amended
(a) by striking out "refuse to renew, or may suspend, cancel or impose restrictions on," and substituting "suspend or cancel",
(b) by repealing paragraph (a) and substituting the following:
(a) for any reason that would disqualify a residential builder from eligibility for a licence under section 14 if the residential builder were an applicant under that section, , and
(c) by striking out "or" at the end of paragraph (b), by adding ", or" at the end of paragraph (c) and by adding the following paragraph:
(d) if the licence was issued in error.
12 Section 16 is repealed and the following substituted:
Notice of decision and surrender of licence
16 (1) If the registrar refuses to issue a licence to or renew the licence of a residential builder, or suspends, cancels or imposes conditions on the licence of a residential builder, the registrar must serve notice of the decision on the residential builder, and the notice must
(a) include written reasons for the registrar's decision, and
(b) advise the person of the right under section 29.1 to request that the decision be reviewed by the registrar.
(2) If the registrar suspends, cancels or refuses to renew a residential builder's licence, the residential builder must as soon as practicable surrender the licence to the office.
13 Section 17 is repealed.
14 Section 20 is repealed and the following substituted:
Authorizations for owner builders
20 (1) On application to the registrar, a person who intends to build, for personal use, a new home of a prescribed type may be issued an authorization if the person
(a) meets the criteria prescribed for owner builders, and
(b) pays the prescribed fee.
(2) The registrar may issue an authorization under subsection (1) to a person who does not meet the criteria referred to in subsection (1) (a) if the registrar is satisfied that special circumstances justify doing so.
(3) An owner builder, with respect to the new home for which the owner builder's authorization is issued, is not required
(a) to obtain home warranty insurance, or
(b) to be licensed under this Act.
Prohibition on sales and offers to sell
20.1 (1) Subject to subsection (2), an owner builder must not sell or offer to sell a new home
(a) while the new home is being constructed, or
(b) within the prescribed period of time after the new home has been built,
unless the registrar permits the sale or offer under subsection (2).
(2) On application to the registrar, an owner builder may be permitted to sell or offer for sale a new home despite the requirements of subsection (1) if
(a) the registrar is satisfied that the person would suffer undue hardship if the permission is not granted, and
(b) the person pays the prescribed fee.
(3) The registrar may impose conditions on a permission granted under subsection (2).
Suspension or cancellation of authorization
20.2 The registrar may suspend or cancel an authorization
(a) for any reason that would disqualify the owner builder for an authorization under section 20 if the owner builder were an applicant under that section,
(b) if the owner builder has made a false statement on a material matter in the application or refuses to provide information on a material matter when requested to do so by the registrar, or
(c) if the owner builder fails to comply with a compliance order or to pay a monetary penalty as required under section 28.3 (10).
Notice of refusal to issue, or suspension or cancellation of, authorization
20.3 If the registrar refuses to issue an authorization under section 20, or suspends or cancels an authorization under section 20.2, the registrar must serve on the applicant or owner builder, as the case may be, notice of the decision, together with written reasons for the decision.
15 Section 21 is repealed and the following substituted:
Disclosure and security
21 (1) In this section, "purchase period" means
(a) the period during which home warranty insurance for a new home is in effect, or
(b) if home warranty insurance for a new home has not been obtained, the period during which home warranty insurance would have been in effect had it been obtained.
(2) An owner builder, and any subsequent purchaser of a new home built by an owner builder, before selling his or her new home during the purchase period, must provide to a prospective purchaser of the new home
(a) a disclosure notice in a form satisfactory to the registrar stating whether or not the home is covered by home warranty insurance, and
(b) if required by the regulations, another form of security instead of home warranty insurance.
16 Section 22 is amended
(a) by repealing subsection (1) and substituting the following:
(1) A person must not build a new home unless the new home is registered for coverage by home warranty insurance provided by a warranty provider.
(1.1) Subject to subsection (1.2), a person must not sell or offer to sell a new home
(a) while the new home is being constructed, or
(b) within 10 years from
(i) the date an occupancy permit was first issued with respect to the new home, or
(ii) if no occupancy permit has been issued with respect to the new home, the date on which the registrar is satisfied the new home was first ready for occupancy,
unless
(c) the new home is covered by home warranty insurance provided by a warranty provider, or
(d) the new home or the person is exempt by regulation from the requirement of this subsection.
(1.2) On application to the registrar, a person may be permitted to sell or offer for sale a new home despite the requirements of subsection (1.1) if the registrar is satisfied that the person would suffer undue hardship if the permission is not granted.
(1.3) The registrar may impose conditions on a permission granted under subsection (1.2). , and
(b) in subsection (4) by adding ", (1.1), (1.2)" after "Subsections (1)".
17 Section 23 (1) is repealed and the following substituted:
(1) A residential builder or an owner builder and a vendor of a new home are both deemed to have agreed with the owner of the new home, to the extent of labour, materials and design supplied, used or arranged by the residential builder, owner builder or vendor, that the new home, except to the extent prescribed by regulation,
(a) is free from defects in materials and labour and will remain so for a period of at least 2 years after
(i) the date an occupancy permit with respect to the new home was first issued, or
(ii) if no occupancy permit has been issued with respect to the new home, the date the new home was first occupied,
(b) is free from defects in the building envelope, including defects resulting in water penetration, and will remain so for a period of at least 5 years after
(i) the date an occupancy permit with respect to the new home was first issued, or
(ii) if no occupancy permit has been issued with respect to the new home, the date the new home was first occupied, and
(c) is free from structural defects, and will remain so for a period of at least 10 years after
(i) the date an occupancy permit with respect to the new home was first issued, or
(ii) if no occupancy permit has been issued with respect to the new home, the date the new home was first occupied.
18 The following Part is added:
Part 9.1 — Enforcement
Compliance orders
28.1 (1) A compliance officer, in writing, may issue to a person a compliance order under this section if the person fails to comply with this Act or the regulations.
(2) A compliance order under subsection (1) must
(a) name the person to whom the compliance order is addressed,
(b) specify the action the person must take, stop or modify,
(c) state the date by which the person must comply with the compliance order,
(d) state the reasons for the compliance order,
(e) advise the person of the right under section 29.1 to request that the compliance order be reviewed by the registrar,
(f) be dated the day the compliance order is made, and
(g) be served on the person to whom it is addressed.
(3) Without limiting subsection (2) (b), a compliance order may specify any of the following requirements:
(a) that a person must apply to obtain or renew a licence, obtain an authorization or be granted an exemption in accordance with this Act;
(b) that a person must obtain home warranty insurance;
(c) that a person must provide to a prospective purchaser a copy of the disclosure notice under section 21 (2);
(d) that a person must provide documentation to a compliance officer to assist the officer in the execution of the officer's duties;
(e) that a person who is not licensed under this Act must cease holding himself or herself out as being licensed.
(4) A compliance officer may amend a compliance order, and subsection (2) applies to the amendment.
(5) If satisfied that the circumstances that gave rise to a compliance order are no longer present or have been affected by other circumstances, a compliance officer may terminate the compliance order by providing written notice of the termination to the person to whom the order was addressed.
Court ordered compliance
28.2 (1) If a person refuses or fails to comply with a compliance order and the appeal board has not stayed or rescinded the compliance order, the registrar may apply to the Supreme Court for an order to direct compliance with the compliance order.
(2) The court may order compliance with the compliance order on any conditions the court considers necessary.
Monetary penalty
28.3 (1) The registrar, in accordance with the regulations, may impose a monetary penalty on a person who fails to comply with any of the following:
(a) a provision of this Act or the regulations, the contravention of which is set out in the regulations as making the person liable to a monetary penalty;
(b) a compliance order;
(c) a condition of a licence or of an authorization.
(2) A monetary penalty may be
(a) a single amount, or
(b) an amount for each day that the contravention continues.
(3) If, in the opinion of the registrar, a person who is the subject of a monetary penalty under subsection (1) (b) is taking reasonable measures to remedy the non-compliance, the registrar, in writing, may suspend the application of a daily penalty under any terms and conditions the registrar considers appropriate.
(4) The total monetary penalty imposed on a person under this section for a contravention must not be greater than $25 000.
(5) If a monetary penalty is imposed on a person under this section, the registrar must serve on the person notice imposing the monetary penalty.
(6) A notice under subsection (5) must state the following:
(a) the name of the person liable to pay the monetary penalty;
(b) the reasons for imposing the monetary penalty;
(c) the date on which the monetary penalty is to take effect;
(d) the amount of the monetary penalty and whether it is imposed as a single amount or as an amount for each day that the contravention continues;
(e) the date by which the monetary penalty is to be paid;
(f) that the person liable to pay the monetary penalty may request under section 29.1 that the imposition of the penalty or the amount of the penalty, or both, be reviewed.
(7) A person subject to a monetary penalty under this section must pay the amount of the penalty to the office.
(8) If a monetary penalty is reduced or cancelled on review or appeal, the amount to be returned by the office to the person must include interest at the rate set under the Financial Administration Act.
(9) If a corporation is liable to pay a monetary penalty imposed under this section, every director, officer or other person who authorized, permitted or acquiesced in the contravention is personally liable for the monetary penalty.
(10) A monetary penalty imposed under this section must be paid
(a) within 30 days after the date on which the notice referred to in subsection (5) is served on the person, or
(b) if an appeal is commenced respecting the monetary penalty, within 30 days after the amount of the monetary penalty is determined by the appeal board, or within a longer time specified by the appeal board.
Enforcement of monetary penalties
28.4 (1) When the appeal period has expired or the appeal board has dismissed the appeal in whole or in part,
(a) the monetary penalty constitutes a debt payable by the person on whom the monetary penalty is imposed, and
(b) the registrar may enforce the monetary penalty by filing in the Supreme Court or Provincial Court a certified copy of the notice imposing the monetary penalty and, on being filed, all proceedings may be taken on the notice as if it were a judgment of that court.
(2) If the appeal board varies a monetary penalty, subsection (1) applies to the monetary penalty as if the order of the appeal board were the notice referred to in subsection (1) (b).
19 The following Part is added:
Part 10.1 — Reviews and Appeals
Review
29.1 (1) A person may request that the registrar review a decision made under any of the following:
(a) section 14 (2) or (7) [licensing of residential builders];
(b) section 14.1 [licence renewal];
(c) section 15 [suspension or cancellation of licence];
(d) section 20 (1) [authorizations for owner builders];
(e) section 20.1 (2) or (3) [prohibition on sales and offers to sell];
(f) section 20.2 [suspension or cancellation of authorization];
(g) section 22 (1.2) [mandatory home warranty insurance];
(h) section 28.1 (1) or (4) [compliance orders];
(i) section 28.3 (1) [monetary penalty].
(2) A request under subsection (1) must be made
(a) within 30 days after receiving notice of or reasons for the decision, or
(b) within the period specified by the registrar, if the registrar is satisfied that
(i) special circumstances existed which precluded the filing of a request for review within the period required by paragraph (a) of this subsection, and
(ii) an injustice would otherwise result.
(3) The registrar may allow any other person affected by a decision made under section 28.1 to request a review of that decision under subsection (1) of this section.
(4) A decision of the registrar under subsection (3) refusing a request for a review is not appealable to the appeal board.
(5) A request under subsection (1) must be in writing, must identify the error the person believes was made or the other grounds on which the review is requested and must be accompanied by the prescribed fee.
(6) The registrar may refer a request for a review directly to the appeal board.
(7) Within 30 days after the service of a compliance officer's decision under section 28.1, the registrar, on his or her own initiative, may initiate a review of that decision by serving notice of the intention to do so on the person on whom the decision was served, and section 29.2 applies.
Registrar's decision
29.2 (1) Unless the registrar refers a request for a review under section 29.1 to the appeal board under section 29.1 (6), the registrar, as soon as practicable after receiving a request under section 29.1 (1) or initiating a review under section 29.1 (7), must review the decision and
(a) confirm, vary or cancel the decision or, in the case of a decision made by a compliance officer under section 28.1, refer the matter back to the compliance officer with or without directions,
(b) notify the person in writing of the following:
(i) the registrar's decision;
(ii) the reasons for the decision;
(iii) the person's right to appeal the decision to the appeal board, and
(c) in the case of a decision made by a compliance officer under section 28.1, provide a copy of the notice referred to in paragraph (b) of this subsection to the compliance officer who made the decision.
(2) The registrar
(a) must consider the submissions of the person who requests a review of a decision, and
(b) may review the matter on the basis of documents only, or may make any investigation of the matter that the registrar considers necessary.
Right to appeal
29.3 A person who has received notice of a decision made by the registrar under section 29.2 may, within 30 days after receiving the notice, appeal the decision to the appeal board.
Appeal board
29.4 (1) When hearing appeals, the appeal board must consider the purposes of this Act as set out in section 2.
(2) The appeal board must
(a) decide who is a party to the appeal, and
(b) serve notice of the date, time and place of the hearing to the parties to the appeal, any intervenors and any other person it considers to be sufficiently interested in the appeal.
(3) The commencement of an appeal does not operate as a stay or suspend the operation of the decision being appealed unless the appeal board orders otherwise.
(4) The appeal board or a panel or member of the appeal board may order that the decision being appealed is stayed for a period of time or subject to conditions, or both.
(5) Subsection (4) does not apply if an application under section 28.2 to the Supreme Court to enforce an order for compliance has been made in respect of the decision under appeal.
(6) A certified copy of an order of the appeal board may be filed in the Supreme Court by the registrar and on being filed all proceedings may be taken on it as if it were an order of the Supreme Court.
(7) Sections 45, 52 (2), 53, 59 and 60 of the Safety Standards Act apply with respect to appeals under this Act.
(8) Sections 1, 11 to 22, 24, 28, 29, 31 (1) (a) to (e), (2) and (3), 32, 33, 34 (3) and (4), 35 to 42, 44, 46.3, 47 to 58, 60 and 61 of the Administrative Tribunals Act apply to the appeal board.
20 Part 11 is amended by adding the following section:
Public registry
29.5 (1) The registrar must establish and maintain a public registry consisting of the following information:
(a) the name, business address and phone number of each person to whom a licence has been issued under section 14 (2);
(b) the licence number and expiry date of a licence issued under section 14 (2);
(c) the information accepted by the registrar under section 14 (3);
(d) the current status of the licence of a person referred to in paragraph (a) of this subsection;
(e) the name of each person to whom an authorization has been issued;
(f) a record of suspensions or cancellations of a person's authorization or of a person's licence issued under section 14 (2);
(g) the facts relating to a monetary penalty or compliance order, including the amount of the monetary penalty and the terms of the compliance order, if the period referred to in section 29.1 (2) (a) or (b) or 29.3, as the case may be, has elapsed or an appeal has been heard with respect to that monetary penalty or compliance order and the monetary penalty or compliance order has not been cancelled or rescinded;
(h) the name of each person convicted of an offence under this Act or the regulations and a reference to the provision of the Act or regulations that was contravened;
(i) the address of a new home built by an owner builder, the name of the owner builder who built the new home and a statement as to whether or not the new home is covered by home warranty insurance.
(2) The public registry is a public record and must be made available for inspection at the office by any person during the regular business hours of the office.
(3) The registrar may establish and maintain an online registry consisting of all or any portion of the information in the public registry.
21 Section 31 is amended by adding the following subsection:
(3) An interim injunction may be granted under subsection (2) whether or not it has been established that irreparable harm will be done to a purchaser of a new home or to any class of purchasers of new homes if the interim injunction is not granted.
22 The following section is added:
Service of documents and notices
31.1 (1) If this Act or the regulations require or authorize an order, notice, decision or other document to be given or served, it may be served in the following manner:
(a) on a person whose address is recorded in the registry, by ordinary mail or by delivery to that address;
(b) on a person whose address is not recorded in the registry, by ordinary mail or by delivery to the address at which that person resides;
(c) personally, by leaving it with the individual to whom it is addressed;
(d) if the person to be served is a corporation, by leaving the document at, or mailing it by registered mail to, the registered office of the corporation, or by personally serving it on a director or officer of the corporation;
(e) by any other method specified by the court under subsection (3).
(2) If an order, notice, decision or other document is served
(a) under subsection (1) (a) or (b) by leaving it at the address for service, the document is deemed to have been received 3 days after it was delivered to that address,
(b) under subsection (1) (d) by leaving it at the registered office of the corporation, the corporation is deemed to have received the document 3 days after it was left at the registered office, and
(c) by ordinary mail, the person to whom it is addressed is deemed to have received the document 14 days after the mail was deposited with Canada Post at any place in Canada.
(3) On application by any person, the Supreme Court, for the purposes of this Act, may
(a) give directions on how to give notice to or serve a document on a person, or
(b) by order, dispense with service of a document if the court is satisfied that the person already has actual notice of the contents of the document and is avoiding service.
(4) If the court makes an order under subsection (3) (b) dispensing with service of a document, the document takes effect without being served.
(5) This section does not apply to the appeal board.
23 Section 32 is amended
(a) by repealing subsection (2) (b), (g) and (h),
(b) in subsection (2) by adding the following paragraphs:
(h.1) prescribing periods of time for the purposes of section 20.1 (1), including prescribing different periods of time for different persons or classes of persons;
(h.2) prescribing exceptions for the purposes of section 23 (1);
(h.3) respecting the imposition of monetary penalties, the criteria for determining appropriate monetary penalties, setting different limits on different monetary penalties and setting out those provisions of this Act or the regulations which, if contravened, make a person liable to a monetary penalty;
(h.4) providing for increased monetary penalties for repeated contraventions and specifying the time within which a contravention is to be considered a repeat contravention of an earlier contravention; ,
(c) by repealing subsection (3) (e), and
(d) by adding the following subsection:
(4) The Lieutenant Governor in Council may make regulations respecting authorizations issued under this Act as follows:
(a) prescribing types of new homes for the purposes of section 20 (1) and criteria for the purposes of section 20 (1) (a);
(b) prescribing fees for authorizations;
(c) respecting the issue, suspension and cancellation of authorizations.
24 Section 33 is amended by adding the following paragraphs:
(d) prescribing information that must be provided by warranty providers to the registrar;
(e) prescribing the terms, conditions, kind and amount of security for the purposes of section 21.
25 Section 34 is amended
(a) in subsection (1) (a) by adding ", form, report" after "statement",
(b) in subsection (1) (b) by striking out "21 or 22 (1)" and substituting "20.1 (1), 21 (2) or 22 (1) or (1.1)" and
(c) by adding the following subsections:
(6) The time limit for laying an information to commence a prosecution for an offence under this Act is
(a) one year after the date on which the act or omission that is alleged to constitute the offence occurred, or
(b) if the registrar or compliance officer issues a certificate that certifies the date on which the registrar or compliance officer learned of the act or omission referred to in paragraph (a), one year after the certified date.
(7) A certificate purporting to have been issued by the registrar or a compliance officer certifying the date referred to in subsection (6) (b) is proof of that date.
Transitional — substitution of section 20
of the Homeowner Protection Act
26 Section 20 of the Homeowner Protection Act, as enacted by section 14 of this Act, does not apply to a new home that is under construction or was constructed
(a) under a building permit for which application was made on or before the date that section 14 of this Act comes into force, or
(b) if the construction of the new home did not require a building permit, as of or before the date section 14 of this Act comes into force.
Commencement
27 This Act comes into force by regulation of the Lieutenant Governor in Council.