Homeowner Protection Act

July 30, 1998

712470149/98031/tlc98031_f

E3tlc98031

Introductory Provisions

Definitions

In this Act:

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;

BC Housing means the British Columbia Housing Management Commission

continued under

section 10 (1) (

b) of the Ministry of Lands,

Parks and Housing Act ;

chief executive officer means the chief executive officer of BC

Housing appointed under

section 5 (1) of the British Columbia Housing Management

Commission Regulation, B.C. Reg. 490/79;

compliance officer means a person designated under

section 7 (1)

as a compliance officer;

compliance order means a compliance order issued under

section

28.1;

home warranty insurance has the same meaning as in

section 141 (1) of

the Insurance Act ;

monetary penalty means a monetary penalty imposed under

section

28.3;

new home means a building, or portion of a building, that is newly

constructed or being constructed and is intended for residential occupancy, and

includes

a self-contained dwelling unit that is

detached, or

attached to one or more other self-contained dwelling units,

a building having 2 or more self-contained dwelling units under one

ownership,

common property, common facilities and other assets of a strata

corporation,

any building or portion of a building of a class prescribed by the regulations

as a new home to which this Act applies, and

a home that is or is being substantially reconstructed,

but does not include a manufactured home unless otherwise prescribed;

owner means a person who

purchases a new home, or

contracts with a residential builder to construct a new home,

and includes

a person who purchases a life interest in a new home,

a strata corporation in respect of the common property, common facilities and

other assets,

a cooperative, corporation or society having an ownership interest in a new

home, and

a subsequent purchaser of a new home;

owner builder means an individual with a valid authorization issued

by the registrar under

section 20;

public registry means the registry established under

section 29.5

(1);

registrar means the person designated under

section 7 (1)

as the registrar;

renovation means a change, addition or alteration to a home, or a

repair to a home, as prescribed by the regulations;

residential builder means a person who engages in, arranges for or

manages all or substantially all of the construction of a new home or agrees to do any

of those things, and includes a developer and a general contractor;

vendor means a person who sells their ownership interest in a new

home;

warranty provider means a person who has a business authorization

under the Financial Institutions Act to carry

on insurance business.

Purposes of the Act

The purposes of this Act are

to strengthen consumer protection for buyers of new homes,

to improve the quality of residential construction, and

to support research and education respecting residential construction in

British Columbia.

A further purpose of this Act is the administration of the reconstruction loan

portfolio, as defined in

section 24.1, in accordance with

Part 9.

Repealed

3-6

[Repealed 2010-2-22.]

Registrar and Compliance Officers

Registrar

For the purposes of this Act, BC Housing must

designate an employee as the registrar, and

designate one or more employees as compliance officers.

The registrar may designate a person who may, in the absence of the registrar,

perform the duties of the registrar.

Duties of the registrar

The registrar has the following duties:

to receive and review applications for licensing from residential builders and

other persons required to be licensed under this Act;

a.1

to receive and review applications for authorizations from persons who apply

to be authorized as owner builders under this Act;

to issue licences to, and renew the licences of, residential builders and

other persons required to be licensed under this Act who meet the requirements of this

Act and the regulations;

b.1

to issue authorizations to persons referred to in paragraph

(a.1) who meet the requirements of this Act and the

regulations;

subject to sections 15 and 20.2, to suspend or cancel

licences and authorizations;

to maintain a register of

owner builders, licensed residential builders and other persons licensed

under this Act, and

new homes;

to make entries in the registers in accordance with this Act and the

regulations;

to keep records, including records of decisions made by the

registrar;

subject to the regulations, to provide information to the public about persons

licensed or authorized under this Act;

to perform any other duties imposed on the registrar by this Act or the

regulations.

Subject to the regulations, the registrar may request reports from licensed

residential builders and other persons licensed under this Act.

Enforcement

For the purposes of this Act and the regulations, a compliance officer may at

any reasonable time do one or more of the following:

subject to subsection (2), enter and examine any

premises;

question any person about

the qualifications of workers,

the work performed by workers, or

iii

any matter that relates to licensing or authorization under this

Act;

inspect the records of a person who is authorized or licensed or is required

to be licensed under this Act;

require a person to produce for inspection a record referred to in paragraph

(c);

on giving a receipt for a record referred to in paragraph (c), remove the

record to make copies or extracts;

e.1

issue a compliance order;

exercise and perform other prescribed powers and duties.

1.1

The registrar may exercise the powers of a compliance officer set out in

subsection

(1).

The registrar or a compliance officer may only enter a place occupied as a

private residence with the consent of an occupant.

A person must not obstruct the registrar or a compliance officer in the exercise

of powers under this section, or withhold from the registrar or compliance officer, or conceal or destroy, a

record relevant to an investigation.

3.1

The registrar or a compliance officer must produce an identity card on the request of a person on the premises the registrar or compliance officer enters.

3.2

The chief executive officer must provide the registrar and compliance officers

with identification cards for the purpose of subsection (3.1).

On the request of the registrar and for the purposes of this Act and the

regulations,

a warranty provider must provide reports respecting

the risk profile of persons required to be licensed under this Act,

and

other prescribed information, and

a municipality, a regional district or a treaty first nation that, in

accordance with its final agreement, makes laws respecting the construction or

renovation of buildings on its treaty lands must provide reports respecting building

regulation compliance by persons authorized or required to be licensed under this

Act.

The registrar may specify the form and content of a report required by subsection

(4).

Collection of fees

The registrar must collect the fees, including fees under

section 26

and interest owing on them, required to be paid under this Act.

Money collected under subsection (1), except fees prescribed under

section 26

and interest payable on those fees, must be paid to the credit of BC Housing and applied

to defray the expenses incurred in carrying out its functions under this Act.

2.1

Fees prescribed under

section 26, and interest payable on those

fees,

are collected by the registrar under subsection (1) as agent for the

Minister of Finance, and

are held by BC Housing as agent for the Minister of Finance and, except for

amounts that by agreement under

section 27.2 (3) may be deducted, must be paid to

the Minister of Finance in accordance with an agreement under that section, or, if

there is no such agreement, at the times and in the manner the Minister of Finance

directs.

[Repealed 2010-2-25.]

Recovery and refunds of

section 26 fees

10.1

If a residential builder defaults in the payment of a fee prescribed under

section 26

(1) that is due and payable, the registrar may

issue a certificate stating the amount due, the amount remaining unpaid,

including prescribed interest, and the name of the person by whom it is payable,

and

file the certificate with the Supreme Court,

and, when filed, the certificate has the same force and effect, and all

proceedings may be taken on it, as if it were a judgment of the court for the recovery

of a debt for the amount stated in the certificate against the person named in

it.

In addition to any other remedy available, failure to pay a fee prescribed under

section 26

(1) in the amount and at the time required may be cause for the registrar

to refuse to issue or renew, or to suspend, cancel or impose restrictions on, the

licence of a residential builder.

If the registrar is satisfied that the new home for which a residential builder

paid a fee prescribed under

section 26 (1) will not be constructed, the registrar

may refund to the residential builder the amount of the fee and any interest paid on the

fee.

If the registrar pays a refund under subsection (3), the amount refunded may be

deducted, in accordance with an agreement under

section 27.2 (3), from amounts payable

to the Minister of Finance under

section 10 (2.1) (b).

3.1

Industry and Consumer Advisory Council

Industry and Consumer Advisory Council

10.2

An advisory council is established to be known as the Industry and Consumer

Advisory Council consisting of the members appointed under subsection (2).

The chief executive officer may appoint as members of the advisory council under

subsection

(1) participants from the residential construction industry, including architects

and engineers,

owners, and

representatives of local government.

The chief executive officer may designate one of the members as chair of the

advisory council and another member as vice chair.

The chief executive officer may rescind, at any time, an appointment made under

subsection

(2) or a designation made under subsection (3).

The purpose of the Industry and Consumer Advisory Council is to provide advice

to BC Housing and the chief executive officer on all matters coming within their areas

of responsibility under this Act.

Research and Education

Repealed

[Repealed 2010-2-29.]

Research and education responsibilities

BC Housing is responsible for the following:

establishing and maintaining expertise in building science, especially as it

applies to British Columbia and the building regulations within the meaning of the Building Act ;

conducting research into cost effective building techniques, processes and

materials appropriate for use in British Columbia;

cooperating with other organizations to establish what constitutes the best

practice for building and retrofitting housing in British Columbia;

supporting consumer education;

performing other research and education functions consistent with this

Act.

Repealed

[Repealed 2010-2-29.]

Licensing of Residential Builders

Licensing of residential builders

A person must not carry on the business of a residential builder unless licensed

under this Part.

On application to the registrar, a person may be issued with a licence as a

residential builder if

the registrar is satisfied that the person

meets the prescribed qualifications for licensing or has the experience,

training or competence equivalent to the prescribed qualifications, and

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

the person pays any prescribed licence fee.

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

the registrar is satisfied that amending the licence is appropriate in the

circumstances, and

the person pays the prescribed fee.

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.

A residential builder who is authorized by a licence issued under this Part may

use the designation "Licensed Residential Builder".

Unless a person is a licensed residential builder referred to in subsection

(4), the person must not

use or display the designation "Licensed Residential Builder", or

imply, suggest or hold out in any manner that the person is a residential

builder who is licensed under this Part.

A licence issued under this

Part

is valid for one year from the date of issue, or for a shorter period as

determined by the registrar,

may be renewed under

section 14.1, and

is not transferable.

Subject to the regulations, the registrar may impose conditions on licences

issued under this section.

Licence renewal

14.1

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

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

the person pays the prescribed fee.

Subject to the regulations, the registrar may impose conditions on a licence

renewed under this section.

Suspension or cancellation of licence

The registrar may suspend or cancel the licence of a residential

builder

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,

if the residential 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,

if the residential builder is in breach of a condition of, or restriction on,

the licence or is convicted of an offence under this Act, or

if the licence was issued in error.

Notice of decision and surrender of licence

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

include written reasons for the registrar's decision, and

advise the person of the right under

section 29.1 to request that

the decision be reviewed by the registrar.

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 registrar.

Repealed

[Repealed 2007-20-13.]

Licensing of other persons

If a residential subcontractor or residential renovator is required by the

regulations to be licensed, a reference to "residential builder" in this

Part is deemed to

be also a reference to "residential subcontractor" or "residential renovator", as the case

may be.

Repealed

[Repealed 2003-34-20.]

Owner Builders

Authorizations for owner builders

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

meets the criteria prescribed for owner builders, and

pays the prescribed fees.

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.

An owner builder, with respect to the new home for which the owner builder's

authorization is issued, is not required

to obtain home warranty insurance, or

to be licensed under this Act.

Prohibition on sales and offers to sell

20.1

Subject to subsection (2), an owner builder must not sell or

offer to sell a new home

while the new home is being constructed, or

within the prescribed period of time after the new home has been

built,

unless the registrar permits the sale or offer under subsection

(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

the registrar is satisfied that the person would suffer undue hardship if the

permission is not granted, and

the person pays the prescribed fee.

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

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,

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

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.

Disclosure and security

In this section, purchase period means

the period during which home warranty insurance for a new home is in effect,

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.

An owner builder, and any subsequent purchaser of a new home built by an owner

builder, before selling the owner builder's new home during the purchase period, must provide to

a prospective purchaser of the new home

a disclosure notice in a form satisfactory to the registrar stating whether or

not the home is covered by home warranty insurance, and

if required by the regulations, another form of security instead of home

warranty insurance.

Consumer Protection for New Home Buyers

Mandatory home warranty

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

while the new home is being constructed, or

within 10 years from

the date an occupancy permit was first issued with respect to the new home,

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

the new home is covered by home warranty insurance provided by a warranty

provider, or

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).

Home warranty insurance for a new home must provide coverage for

defects in materials and labour for a period of at least 2 years after the

date on which the warranty begins,

defects in the building envelope, including defects resulting in water

penetration, for a period of at least 5 years after the date on which the warranty

begins, and

structural defects for a period of at least 10 years after the date on which

the warranty begins.

If required by the regulations, a person must not undertake a renovation or

offer for sale or sell a renovated home unless the renovation is covered by home

warranty insurance provided by a warranty provider.

Subsections

(1), (1.1), (1.2) and (3) do not

apply to an owner builder.

Statutory protection

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,

is free from defects in materials and labour and will remain so for a period

of at least 2 years after

the date an occupancy permit with respect to the new home was first issued,

if no occupancy permit has been issued with respect to the new home, the

date the new home was first occupied,

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

the date an occupancy permit with respect to the new home was first issued,

if no occupancy permit has been issued with respect to the new home, the

date the new home was first occupied, and

is free from structural defects, and will remain so for a period of at least

10 years after

the date an occupancy permit with respect to the new home was first issued,

if no occupancy permit has been issued with respect to the new home, the

date the new home was first occupied.

Any term of an agreement that purports to waive, exclude, limit or qualify the

protection under subsection (1) is of no effect.

The protection under subsection (1) is for the benefit of whoever is the

owner of the new home from time to time until the end of the period within which an

action may be brought under subsection (5), and that owner is deemed

to have given good consideration for the benefit of the protection,

and

to be the only person entitled to recover damages for a breach of the

protection.

Despite subsection (3), if the ownership of the new home changes during the course

of an action for breach of the protection under subsection (1), the new owner is

entitled to be substituted as plaintiff and to enforce all rights that the former owner

could have enforced.

An action in respect of the protection under subsection (1) must be commenced

within 10 years after the date of first occupancy of the new home or, in respect of

common property, common facilities and other assets of a strata corporation, the date

the strata plan is deposited in a land title office in accordance with the Strata

Property Act .

Nothing in this

section

excludes, qualifies or limits any other term, express or implied,

relieves any person of liability to which they would otherwise be subject,

subjects a municipality, regional district or treaty first nation to any

greater liability than if this

section were not in force.

This

section does not apply to a new home covered by home warranty

insurance.

Reconstruction Loan Portfolio

Repealed

[Repealed 2010-2-32.]

Definitions

24.1

In this Part:

Homeowner Protection Office means the corporation established under

section 3 of this Act as that

section read immediately before its repeal by the

Budget Measures Implementation Act, 2010 ;

initial application does not include an application, based on a

reassessment of the costs of home reconstruction, for an increase in the amount of

financial assistance previously approved for an eligible homeowner under the

reconstruction program;

reconstruction loan portfolio means, subject to an order under

section 56 (3) of the Budget Measures Implementation Act, 2010 , the

rights, property and assets and the obligations and liabilities, including contingent

liabilities, of the Homeowner Protection Office related to the reconstruction program as

of the date this

section comes into force, and includes, without limitation, amounts

received by the Minister of Finance, and liabilities incurred by, or accruing or accrued

to, the Minister of Finance, for the purposes of this Part on and after that

date;

reconstruction program means the program established under

section 24

of this Act as that

section read immediately before its repeal by the Budget

Measures Implementation Act, 2010 .

Reconstruction loan portfolio

24.2

The Minister of Finance must administer the reconstruction loan portfolio in

accordance with this Part.

Repealed

[Repealed 2010-2-33.]

Reconstruction loan portfolio fee

The Lieutenant Governor in Council may make regulations prescribing for the

purposes of the reconstruction loan portfolio a fee that must be paid with a licence fee

under

section

14 (2) by a residential builder in relation to prescribed categories of new

homes.

For the purposes of subsection (1), the Lieutenant Governor in Council may

prescribe formulas for calculating the amount of the fee prescribed under subsection

(1) and the time for payment of that fee.

Payments from consolidated revenue fund in relation to the reconstruction

loan portfolio

The Minister of Finance or BC Housing as agent for the Minister of Finance may

approve an application for a reassessment of financial assistance previously approved

for an eligible homeowner only if the homeowner's initial application to the

reconstruction program was received by the Homeowner Protection Office on or before July

31, 2009.

Despite

section 21 (3) of the Financial

Administration Act , the Minister of Finance may pay the

following amounts out of the consolidated revenue fund:

financial assistance in the amount approved by the Homeowner Protection Office

for an eligible homeowner whose initial application to the reconstruction program was

received by the Homeowner Protection Office on or before July 31, 2009;

financial assistance in the amount approved on an application under subsection

(1).

The following are debts due to the government:

amounts outstanding in respect of loans made to a homeowner under the

reconstruction program and interest payable on those amounts;

amounts outstanding in respect of loans made by the Minister of Finance under

subsection

(2) and interest payable on those amounts;

amounts paid out under the terms of a guarantee given under the reconstruction

program to another person in respect of a loan made to a homeowner and interest

payable on those amounts;

amounts paid out under the terms of a guarantee given by the Minister of

Finance to another person in respect of a loan made to a homeowner and interest

payable on those amounts;

any other amounts payable to the government in relation to the reconstruction

loan portfolio.

An initial application to the reconstruction program for financial assistance

for home reconstruction that was received by the Homeowner Protection Office after July

31, 2009 is conclusively deemed not to have been made or received.

Collections

27.1

Amounts referred to in

section 27 (3) that are not paid when due may be

recovered by the Minister of Finance by

issuing a certificate stating

the recoverable amount due,

the amount remaining unpaid and interest payable on that amount,

and

iii

the name of the person required to pay it, and

filing the certificate with the Supreme Court.

A certificate filed under subsection (1) (

b) is of the same force and effect,

and all proceedings may be taken on it, as if it were a judgment of the court for the

recovery of a debt in the amount stated in the certificate against the person named in

it.

Agreements with BC Housing

27.2

In this section, information-sharing agreement means an

agreement to exchange personal information in relation to eligible homeowners who were

approved by the Homeowner Protection Office to receive financial assistance from the

reconstruction program on initial applications received on or before July 31,

The Minister of Finance may enter into an information-sharing agreement with BC

Housing authorizing the exchange of personal information as necessary for the

administration of the reconstruction loan portfolio.

The Minister of Finance may enter into an agreement with BC Housing respecting

the reconstruction loan portfolio, including, without limitation,

the role of BC Housing, its chief executive officer and the registrar in the

administration of the reconstruction loan portfolio, and

accounting matters between BC Housing and the Minister of Finance in respect

of the reconstruction loan portfolio.

Without limiting subsection (3), an agreement under that subsection may

provide, despite the Financial Administration Act , for BC

Housing deducting from amounts payable to the Minister of Finance under

section 10 (2.1)

(

b) an amount or proportion as remuneration for all services performed under this

Act or the agreement by BC Housing in relation to the reconstruction loan portfolio,

and

amounts refunded by the registrar under

section 10.1 (3).

Repealed

[Repealed 2010-2-36.]

9.1

Enforcement

Compliance orders

28.1

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.

A compliance order under subsection (1) must

name the person to whom the compliance order is addressed,

specify the action the person must take, stop or modify,

state the date by which the person must comply with the compliance

order,

state the reasons for the compliance order,

advise the person of the right under

section 29.1 to request that

the compliance order be reviewed by the registrar,

be dated the day the compliance order is made, and

be served on the person to whom it is addressed.

Without limiting subsection (2) (b), a compliance order may specify any

of the following requirements:

that a person must apply to obtain or renew a licence, obtain an authorization

or be granted an exemption in accordance with this Act;

that a person must obtain home warranty insurance;

that a person must provide to a prospective purchaser a copy of the disclosure

notice under

section 21 (2);

that a person must provide documentation to a compliance officer to assist the

officer in the execution of the officer's duties;

that a person who is not licensed under this Act must cease holding themselves out as being licensed.

A compliance officer may amend a compliance order, and subsection

(2) applies to the amendment.

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

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.

The court may order compliance with the compliance order on any conditions the

court considers necessary.

Monetary penalty

28.3

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 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;

a compliance order;

a condition of a licence or of an authorization.

A monetary penalty may be

a single amount, or

an amount for each day that the contravention continues.

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

The total monetary penalty imposed on a person under this

section for a

contravention must not be greater than $25 000.

If a monetary penalty is imposed on a person under this section, the registrar

must serve on the person notice imposing the monetary penalty.

A notice under subsection (5) must state the following:

the name of the person liable to pay the monetary penalty;

the reasons for imposing the monetary penalty;

the date on which the monetary penalty is to take effect;

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;

the date by which the monetary penalty is to be paid;

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.

A person subject to a monetary penalty under this

section must pay the amount of

the penalty to BC Housing.

If a monetary penalty is reduced or cancelled on review or appeal, the amount to

be returned by BC Housing to the person must include interest at the rate set under the

Financial Administration Act .

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.

A monetary penalty imposed under this

section must be paid

within 30 days after the date on which the notice referred to in subsection

(5) is served on the person, or

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

When the appeal period has expired or the appeal board has dismissed the appeal

in whole or in part,

the monetary penalty constitutes a debt payable by the person on whom the

monetary penalty is imposed, and

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.

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).

Alternate Dispute Resolution

Dispute resolution processes

For the purpose of resolving residential construction disputes before or after

an action is commenced arising out of or in connection with the construction of homes,

including, without limitation, disputes about home warranty insurance, the Lieutenant

Governor in Council may make regulations respecting the mediation or arbitration of

residential construction disputes.

For the purposes of the mediation of residential construction disputes referred

to in subsection (1), the Lieutenant Governor in Council may make regulations

including, without limitation, regulations

providing to a party to a residential construction dispute the ability to

require the parties to engage in mediation and setting out when and how that ability

may be exercised and prescribing any other results that flow from the exercise of that

ability, and

respecting

the forms or procedures that must or may be used or followed before, during

and after the mediation process,

requiring and maintaining confidentiality of information disclosed for the

purposes of mediation,

iii

the circumstances and manner in which a party to a residential construction

dispute may opt out of or be exempted from mediation,

the costs and other sanctions that may be imposed in relation to mediation,

including, without limitation, in relation to any failure to participate in

mediation when and as required or otherwise to comply with the

regulations,

the mediators' fees and disbursements, and

the qualifications required for, and the selection and identification of,

individuals who may act as mediators in the mediation process contemplated by the

regulations.

For the purposes of the arbitration of residential construction disputes

referred to in subsection (1), the Lieutenant Governor in Council may make regulations

including, without limitation, regulations

providing when and how an arbitration will occur, and who will participate in

the arbitration,

respecting the forms, procedures and rules that must or may be used or

followed for an arbitration, and

respecting the costs, fees and disbursements for an arbitration.

If and to the extent that there is any conflict between regulations made under

subsections

(1) to (3) and any other enactment, including, without

limitation, the rules of any court, the regulations made under subsections

(1) to (3) prevail.

Regulations made under subsection (2) may provide for a mediation process to

be applicable to residential construction actions brought out of one or more court

registries and may be different for residential construction actions brought out of

different court registries.

Section 12 of the Insurance Act does not apply to home

warranty insurance disputes.

10.1

Reviews and Appeals

Review

29.1

A person may request that the registrar review a decision made under any of the

following:

section 14 (2) or (7) [licensing of residential

builders] ;

section

14.1 [licence renewal] ;

section

15 [suspension or cancellation of licence] ;

section 20

(1) [authorizations for owner builders] ;

section 20.1 (2) or (3) [prohibition on sales and offers to

sell] ;

section

20.2 [suspension or cancellation of

authorization] ;

section 22

(1.2) [mandatory home warranty insurance] ;

section 28.1 (1) or (4) [compliance orders] ;

section 28.3

(1) [monetary penalty] .

A request under subsection (1) must be made

within 30 days after receiving notice of or reasons for the decision,

within the period specified by the registrar, if the registrar is satisfied

that

special circumstances existed which precluded the filing of a request for

review within the period required by paragraph (

a) of this

subsection, and

an injustice would otherwise result.

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.

A decision of the registrar under subsection (3) refusing a

request for a review is not appealable to the appeal board.

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.

The registrar may refer a request for a review directly to the appeal

board.

Within 30 days after the service of a compliance officer's decision under

section

28.1, the registrar, on the registrar's 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

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

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,

notify the person in writing of the following:

the registrar's decision;

the reasons for the decision;

iii

the person's right to appeal the decision to the appeal board,

and

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.

The registrar

must consider the submissions of the person who requests a review of a

decision, and

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

When hearing appeals, the appeal board must consider the purposes of this Act as

set out in

section 2.

The appeal board must

decide who is a party to the appeal, and

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.

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.

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.

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.

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.

Subject to this Act,

Part 8 and Division 2 of

Part 9 of the Safety Standards Act apply to an appeal under this Part.

Despite subsection (7), the following provisions of the Administrative Tribunals Act incorporated under

section 44 of the Safety Standards Act do not apply to an appeal under this Part:

section 26 [organization of tribunal] ;

section 27 [staff of tribunal] ;

section 30 [tribunal duties] .

General Provisions

Public registry

29.5

The registrar must establish and maintain a public registry consisting of the

following information:

the name, business address and phone number of each person to whom a licence

has been issued under

section 14 (2);

the licence number and expiry date of a licence issued under

section 14

(2);

the information accepted by the registrar under

section 14 (3);

the current status of the licence of a person referred to in paragraph

(

a) of this subsection;

the name of each person to whom an authorization has been issued;

a record of suspensions or cancellations of a person's authorization or of a

person's licence issued under

section 14 (2);

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;

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;

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.

The public registry is a public record and must be made available for inspection

at any location of BC Housing during regular business hours.

The registrar may establish and maintain an online registry consisting of all or

any portion of the information in the public registry.

Building permits

A municipality, regional district or treaty first nation must not issue a

building permit for a proposed new home unless the applicant provides evidence, in the

prescribed form,

that the proposed new home

is covered by home warranty insurance, or

will be built by an owner builder or is otherwise exempted by regulation

from the requirement to be covered by home warranty insurance, and

that the proposed new home will be built

by a licensed residential builder, or

by an owner builder or a person who is otherwise exempted by regulation from

the requirement to be licensed as a residential builder.

If a municipality, regional district or treaty first nation issues a building

permit for a proposed new home, relying in good faith on the evidence provided under

subsection

(1), the municipality, regional district or treaty first nation is not

liable, either directly or vicariously, for any damages or other loss, including

economic loss, sustained by any person because

the new home is not covered by home warranty insurance, or

the new home was not built by a licensed residential builder.

On request of the registrar, a municipality, regional district or treaty first

nation must forward to the registrar information provided by applicants for building

permits under subsection (1).

If a residential renovator is required by the regulations to be licensed and

renovations are required by the regulations to be covered by home warranty insurance, a

reference in this

section to "new home" or "residential builder" is deemed to be also a

reference to "renovation" or "residential renovator", as the case may be.

Injunction

On application of the registrar, and on being satisfied that there is reason to

believe that this Act or the regulations are or will be contravened, the Supreme Court

may grant an injunction restraining a person from the contravention or requiring a

person to comply.

At any time before the court disposes of the injunction proceeding, it may grant

an interim injunction.

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.

Service of documents and notices

31.1

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:

on a person whose address is recorded in the registry, by ordinary mail or by

delivery to that address;

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;

personally, by leaving it with the individual to whom it is

addressed;

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;

by any other method specified by the court under subsection (3).

If an order, notice, decision or other document is served

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,

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

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.

On application by any person, the Supreme Court, for the purposes of this Act,

may

give directions on how to give notice to or serve a document on a person,

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.

If the court makes an order under subsection (3) (

b) dispensing

with service of a document, the document takes effect without being served.

This

section does not apply to the appeal board.

Regulations

The Lieutenant Governor in Council may make regulations referred to in

section 41 of the

Interpretation Act .

Without limiting subsection (1), the Lieutenant Governor in Council may

make the following regulations:

defining, for the purpose of paragraph (

d) of the definition of "new home" in

section 1, a class of buildings or portion of a building, including a manufactured

home, as a new home to which this Act applies;

[Repealed 2007-20-23.]

prescribing renovations, and requiring that renovations be covered by home

warranty insurance;

prescribing additional powers and duties of the chief executive officer and

the registrar;

requiring categories of residential subcontractors and residential renovators

to be licensed under this Act, and may provide differently for different categories of

residential subcontractors and residential renovators;

exempting

categories of persons from all or any portion of this Act and the

regulations, and may provide differently for different categories of

persons,

a building, a class of buildings, a portion of a building or the common

property, common facilities and other assets of a strata corporation from the

definition of "new home" in

section 1,

iii

a category of persons from the definition of "owner builder" in

section 1,

a category of persons from the definition of "residential builder" in

section 1, and

areas of British Columbia from the application of all or any portion of this

Act and the regulations;

g) and (h

[Repealed 2007-20-23.]

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;

prescribing interest payable on a fee prescribed under

section 26

(1);

requiring municipalities and regional districts to collect fees prescribed

under

section

26 (1) from applicants for building permits, and to forward to the

registrar the amounts collected;

j.1

requiring treaty first nations that issue building permits to collect fees

prescribed under

section 26 (1) from applicants for building permits,

and to forward to the registrar the amounts collected;

providing that a person who commits an offence under the regulations is liable

to the penalties provided for in

section 34 (1) to (3);

defining, for the purpose of this Act or the regulations, any word or

expression not defined in this Act;

respecting any matters that, in the opinion of the Lieutenant Governor in

Council, will assist in the administration of the reconstruction loan

portfolio.

The Lieutenant Governor in Council may make regulations respecting licensing

under this Act as follows:

prescribing the qualifications and conditions for licensing of residential

builders, residential subcontractors and residential renovators, and may provide

different qualifications and conditions for different categories of residential

builders, residential subcontractors and residential renovators;

prescribing licensing fees, and may set different fees for different

categories of residential builders, residential subcontractors and residential

renovators;

prescribing conditions that may be imposed on the licence or the renewal of

the licence of a residential builder, residential subcontractor or residential

renovator for the purposes of this Act, and may provide different conditions for

different categories of residential builders, residential subcontractors and

residential renovators;

respecting the issuance, duration, expiration, renewal, suspension and

cancellation of licences.

[Repealed 2007-20-23.]

The Lieutenant Governor in Council may make regulations respecting

authorizations issued under this Act as follows:

prescribing types of new homes for the purposes of

section 20 (1) and criteria

for the purposes of

section 20 (1) (a);

prescribing fees for authorizations;

respecting the issue, suspension and cancellation of

authorizations.

Minister's regulations

The minister may make regulations as follows:

prescribing the form and content of reports required from residential builders,

residential subcontractors and residential renovators;

respecting the form of evidence that must be provided to a municipality,

regional district or treaty first nation by an applicant for a building

permit;

prescribing information to be provided to the public about residential builders,

residential subcontractors and residential renovators;

prescribing information that must be provided by warranty providers to the

registrar;

prescribing the terms, conditions, kind and amount of security for the purposes

section

Offence and penalty

Every person who

knowingly furnishes false information in any application under this Act or in

any statement, form, report or return required to be furnished under this Act,

contravenes

section 9 (3), 14 (1) or (5), 20.1 (1), 21 (2) or 22

(1) or (1.1) or (3),

commits an offence and is liable on conviction to a fine of not more than

$25 000 or to imprisonment for a term of not more than one year, or to both.

If a corporation commits an offence under subsection (1), every director,

officer or other person who authorized, permitted or acquiesced in the offence commits

the offence personally and is liable on conviction to a fine of not more than $25 000 or

to imprisonment for a term of not more than one year, or to both.

Despite subsection (1), if a corporation is convicted of an offence under

subsection

(1), the maximum penalty that may be imposed on the corporation is $100

[Repealed 2003-34-21.]

Section 5 of the Offence Act does not apply to this

Act.

The time limit for laying an information to commence a prosecution for an

offence under this Act is

one year after the date on which the act or omission that is alleged to

constitute the offence occurred, or

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.

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.

Compensation to consumer

In addition to a penalty imposed under

section 34, a court that convicts a

defendant of an offence under this Act may at the time the penalty is imposed order the

defendant to pay to the owner as compensation for pecuniary loss suffered by the owner

as a result of the commission of the offence an amount not greater than the monetary

jurisdiction specified in the Small Claims

Act .

An application for an order under subsection (1) may be made by an

owner or by the Crown prosecutor on the request and on behalf of the owner unless the

owner has commenced a civil action against the defendant in respect of the same

matter.

If the defendant does not comply with an order made under subsection

(1) within 30 days or within the time ordered by the court, whichever is

later, the owner may, by filing the order with the registrar of the Provincial Court

hearing matters under the Small Claims Act in or near the place

where the conviction was entered, enter judgment in that court.

A judgment entered in the Provincial Court under subsection (3) is enforceable

against the defendant in the same manner as if it were a judgment rendered in that court

in civil proceedings.

Transitional

The Lieutenant Governor in Council may make regulations the Lieutenant Governor in

Council considers necessary or advisable for meeting or removing any difficulty arising

out of the coming into force of this Act or any provision of it, and for preserving and

giving effect to the rights of persons arising prior to the coming into force of this Act

or any provision of it, and the regulations may be made to apply generally or to a

particular case or class of cases.

Consequential Amendments

37-42

[Note: See Table of Legislative Changes for the status of sections 37 to

42.]

Section(

s) Affected Act

Financial Institutions Act

Freedom of Information and Protection of Privacy Act

39–40

Insurance Act

41–42

Real Estate Act

Commencement

This Act comes into force by regulation of the Lieutenant Governor in

Council.