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Risk-based approach
Compliance measures will be informed by a risk management framework that develops escalating and proportionate responses to potential consumer harms. Factors that will inform risk management assessments may include:
- Risk of harm to home buyers
- Past complaints about conduct showing a lack of honesty or integrity
- Evidence of competency gaps or financial problems
- Broader risk to the public interest or public confidence
- Acknowledgment or evidence of culpability
- History of compliance with warranty obligations
- Deviation of a builder or vendor’s activities from good conduct and accepted industry standards of practice
Cases that may require a compliance or enforcement escalation will be reviewed by the Registrar to determine the most appropriate path to address compliance concerns.
Inspections
Non-compliance may be detected by direct inspections conducted by the HCRA. The New Home Construction Licensing Act, 2017 (NHCLA) provides the Registrar with the authority to appoint inspectors to conduct inspections without a warrant or court order to ensure compliance with the NHCLA and its regulations. This authority includes the power to enter the business premises of licensees. Inspectors have powers of inspection set out in subsection 59 (4) that grant them clear authorities to access, among other things, documents and records, make inquiries, require the production of documents and records, access systems, remove items for examination, make tests and other examinations related to the purposes of their inspection.
Inspection powers may only be used:
- To promote and ensure compliance with the NHCLA
- To deal with complaints against licensees
- To ensure licensees remain entitled to a licence
When conducting an inspection, HCRA inspectors will identify themselves and will present a certificate of appointment upon request. If an inspection uncovers information that leads an inspector to believe an offence may have taken place or is taking place, the matter will be referred to an investigation.
Inspectors will prepare inspection reports for the Registrar who may authorize the issuance of warnings and/or certain orders, impose educational or other conditions, or in more serious cases escalate complaints to be investigated.
Investigations
The HCRA strives to protect Ontario new home buyers and homeowners by promoting and ensuring compliance with the NHCLA and its regulations. In some cases, an investigation may be required to examine if a violation occurred and what actions should be taken to correct the situation. The key difference from an inspection is that the purpose of an investigation is to determine whether a person committed an offence. When conducting an investigation, HCRA investigators will identify themselves as an investigators and will present their certificate of appointment upon request.
Illegal building
Illegal building is building that is done contrary to the provisions of the NHCLA and the Ontario New Home Warranties Plan Act. It includes:
- Building a new home without being a licensed builder unless the individual building the home is also the owner of the property and the home is being built for their own occupancy and not for purposes of offering it for sale
- Selling a new home that has not been previously occupied without being a licensed vendor
- Building a new home for purposes of sale or selling a new home not previously occupied where the home has not been qualified for enrolment or enrolled with Tarion for purposes of warranty protection
Illegal building is a serious risk to the public. The HCRA will respond promptly to all illegal building complaints. The actions the HCRA takes will depend on the nature of the illegal building activity and any history of illegal building. The HCRA will consider whether the subject of a complaint is an owner-builder as distinct from a vendor. Compliance measures may include working with the parties concerned to bring them into compliance with the obligations under NHCLA and ONHWPA or, where appropriate, may lead to enforcement actions.