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2nd Session, 40th Legislature

This version is based on the printed bill that was distributed in the Legislature after First Reading.   It is not the official version.   If accuracy is critical, you can obtain a copy of the printed bill from Statutory Publications or view the online bilingual version (PDF).

Bill 5

THE NEW HOME WARRANTY ACT


Table of Contents Bilingual version (PDF) Explanatory Note

(Assented to                                         )

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

PART 1

INTRODUCTORY PROVISIONS

Definitions

1(1)        The following definitions apply in this Act.

"authorization" means an authorization issued to an owner-builder under section 16. (« autorisation »)

"builder's warranty" means a warranty provided by a home builder under section 10. (« garantie du constructeur »)

"building permit" means a permit issued under The Buildings and Mobile Homes Act, or a by-law of a municipality, permitting the construction of a building. (« permis de construire »)

"commencement date", in relation to a home warranty or builder's warranty, means the date on which coverage under the warranty commences in accordance with the regulations. (« date de prise d'effet » ou « prise d'effet »)

"compliance officer" means a person designated as a compliance officer under section 17. (« agent d'observation »)

"court", except in section 28, means the Court of Queen's Bench. (« tribunal »)

"exempt", in relation to a home or a person, means a home or a person that is exempted from this Act, or a specified provision of this Act, by the regulations. (« exemptée »)

"home builder" means a person who engages in, arranges for, or manages all or substantially all of the building of a new home — or agrees to do any of those things — and includes an owner-builder. (« constructeur de maison »)

"home warranty" means a home warranty provided by a warranty provider in accordance with section 9. (« garantie standard »)

"insurer" means a person licensed to carry on business as an insurer under The Insurance Act. (« assureur »)

"minister" means the minister appointed by the Lieutenant Governor in Council to administer this Act. (« ministre »)

"new home" means a building or portion of a building intended for residential occupancy that is newly built or being built, and includes the following:

(a) a self-contained dwelling unit that is either detached or attached to one or more other self-contained dwelling units;

(b) a building with two or more self-contained dwelling units under one ownership;

(c) a unit as defined in The Condominium Act in a property governed by that Act;

(d) the common elements of a property governed by The Condominium Act;

(e) any building or portion of a building belonging to a class specified by the regulations;

but does not include an exempt home. (« maison neuve »)

"owner" means a person who purchases a new home or contracts with a home builder to build a new home, and includes

(a) a subsequent owner of the new home;

(b) a corporation as defined in The Condominium Act in respect of the common elements of a property governed by that Act; and

(c) a cooperative under The Cooperatives Act that has an ownership interest in a new home. (« propriétaire »)

"owner-builder" means an individual who builds a new home for his or her own personal use, but does not include an individual who hires a person to arrange for or manage all or substantially all of the building of the new home. (« constructeur-propriétaire »)

"prescribed" means prescribed by regulation.

"registrar" means the person appointed as the registrar under section 17. (« registraire »)

"sale", in relation to a new home, includes a transfer or other disposition. (« vente »)

"warranty period", in relation to a new home, means

(a) the period during which the home warranty is in effect for the home; or

(b) if there is no home warranty for the home, the period during which the warranty would have been in effect had it been obtained. (« période de garantie »)

"warranty provider" means a person who is registered as a warranty provider under section 11. (« garant »)

Reference to "this Act" includes regulations

1(2)        A reference to "this Act" includes the regulations made under this Act.

Purpose of the Act

2           The purpose of this Act is to strengthen consumer protection for buyers of new homes by ensuring that new homes are covered by a warranty.

Rights cannot be waived

3           This Act applies despite an agreement to the contrary, and any waiver or release of the rights, benefits or protection provided by this Act is of no effect.

Crown bound

4           This Act binds the Crown.

PART 2

CONSUMER PROTECTION FOR NEW HOME BUYERS

HOME WARRANTY

Restrictions on Building New Homes

Home builder must be registered and have home warranty

5           A person, other than an owner-builder or an exempt home builder, must not build a new home unless

(a) the person is registered as a home builder under section 15; and

(b) a warranty provider has committed to provide a home warranty for the home.

Owner-builder must obtain authorization

6           An owner-builder, other than an exempt owner-builder, must not build a new home unless the owner-builder has obtained an authorization to do so from the registrar under section 16.

Building Permit Requirements

No building permit without home warranty

7(1)        An authority having jurisdiction to issue building permits must not issue a building permit for a proposed new home unless the applicant provides evidence, in the prescribed form,

(a) that the home will be built by a registered home builder, an authorized owner-builder or an exempt home builder; and

(b) that a warranty provider has committed to provide a home warranty for the home, unless the home will be built by an authorized owner-builder or an exempt home builder.

Information provided to registrar

7(2)        At the registrar's request, an authority having jurisdiction to issue building permits must give the registrar copies of the evidence provided to it under subsection (1).

Liability protection

7(3)        If an authority having jurisdiction issues a building permit for a proposed new home, relying in good faith on the evidence provided under subsection (1), the authority 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 a home warranty or because the home builder is not registered, authorized or exempt.

Restrictions on Sale of New Homes

Restriction on sale if no home warranty

8(1)        If a new home is not covered by a home warranty, a person must not sell the new home at any time before the end of the warranty period unless

(a) the sale is permitted under subsection (2);

(b) the sale is permitted under the regulations; or

(c) the person is exempt.

Registrar may permit sale

8(2)        On application to the registrar, a person may be permitted to sell a new home despite the requirements of this section if the registrar is satisfied that the person or a third party would suffer undue hardship if permission were not granted. The registrar may impose conditions on a permission.

Notice and right of appeal

8(3)        If the registrar refuses permission or imposes conditions on the permission, the registrar must give the person a copy of his or her decision, with written reasons, and advise the person of the right to appeal the decision under section 20.

Requirements for Home Warranty

Requirements for home warranty

9(1)        A home warranty must

(a) be provided by a warranty provider;

(b) provide the coverage set out in subsection (2) commencing on the date required by the regulations; and

(c) comply with the prescribed requirements.

Defects covered by home warranty

9(2)        Subject to the regulations, a home warranty must cover

(a) defects in materials, labour and design for at least 12 months after the commencement date;

(b) defects in materials, labour and design supplied for the following for at least 15 months after the commencement date:

(i) the common elements of a property governed by The Condominium Act,

(ii) in the case of a building with two or more self-contained dwelling units under one ownership, the part of the building that is not part of those units;

(c) the following for at least two years after the commencement date:

(i) violations of the Manitoba Building Code that constitute an unreasonable health or safety risk or that result in, or are likely to result in, material damage to the new home,

(ii) defects in materials, labour and design that render the new home unfit to live in,

(iii) defects in materials, labour and design supplied for the electrical, plumbing, heating, ventilation and air conditioning delivery and distribution systems,

(iv) defects in the building envelope, including defects resulting in water penetration,

(v) defects in materials, labour and design supplied for the exterior cladding, caulking, windows and doors that may lead to detachment or material damage to the new home; and

(d) structural defects for at least seven years after the commencement date.

Limits on home warranty coverage

9(3)        If a warranty provider sets a limit on claims under a home warranty, the limits must not be less than the following:

(a) $100,000 for each dwelling unit or unit described in clause (a), (b) or (c) of the definition "new home" in subsection 1(1);

(b) for the common elements of each building in a property governed by The Condominium Act, the lesser of

(i) $100,000 multiplied by the number of units in the building, and

(ii) $2,500,000;

(c) in the case of a building with two or more self-contained dwelling units under one ownership, the allowable limit provided for in the regulations for the part of the building that is not part of those units.

Review of minimum periods and allowable limits

9(4)        At least once every five years, the minister must review

(a) the minimum time periods set out in subsection (2); and

(b) the dollar amounts in clauses (3)(a) and (b).

In the course of the review, the minister must provide an opportunity for public consultation in order to obtain advice and recommendations from persons or groups of persons affected by this section.

Home warranty is contract with owner

9(5)        A home warranty is deemed to be a contract between the warranty provider and whoever is the owner of the new home from time to time, and the owner

(a) is deemed to have given good consideration for the home warranty; and

(b) is entitled to recover damages for a breach of the home warranty.

Subsequent owner may enforce rights

9(6)        If the ownership of a new home covered by a home warranty changes, the new owner

(a) is the only person entitled to enforce, or recover damages for a breach of, the home warranty, including to recover damages suffered by the former owner; and

(b) is entitled to be substituted as plaintiff in an action commenced by the former owner regarding the home warranty.

However, the new owner may assign some or all of his or her rights under clause (a) to the former owner, including the right to continue any action commenced by the former owner regarding the home warranty.

No fee for transfer of home warranty

9(7)        The warranty provider must not charge or accept a fee when ownership of a new home changes.

Home warranty is not insurance

9(8)        A home warranty is not a contract of insurance within the meaning of The Insurance Act.

No exclusions or limitations

9(9)        Nothing in subsections (1) to (8)

(a) excludes or limits any term of a home warranty that offers the owner more protection than that required under subsection (2); or

(b) relieves any person of liability to which they would otherwise be subject.

Limitation of actions

9(10)       An action or proceeding against a warranty provider regarding a claim under a home warranty must not be commenced

(a) sooner than 60 days after notice of the claim has been given to the warranty provider in accordance with the regulations; or

(b) later than two years after notice of the claim has been given to the warranty provider in accordance with the regulations.

Regulations

9(11)       The Lieutenant Governor in Council may, by regulation,

(a) further describe the defects and the violations of the Manitoba Building Code for which coverage is required under subsection (2); and

(b) on the recommendation of the minister following a review under subsection (4),

(i) increase the minimum time periods set out in subsection (2), and

(ii) increase the dollar amounts in clauses (3)(a) and (b).

BUILDER'S WARRANTY

If no home warranty, home builder provides warranty

10(1)       Subject to the regulations, if a new home is not covered by a home warranty, the home builder warrants to the owner that the home is free from the defects and violations referred to in clauses 9(2)(a) to (d) and will remain so for the period set out in the applicable clause and for any additional period provided for by regulation.

Extent of the builder's warranty

10(2)       The builder's warranty in subsection (1) applies to the extent that materials, labour or design was supplied, used or arranged for by the home builder.

Limit on liability under builder's warranty

10(3)       The builder's warranty in subsection (1) is limited to the amounts specified under clauses 9(3)(a) to (c).

Regulations apply

10(4)       A regulation made under subsection 9(11) also applies to the builder's warranty in subsection (1).

Warranty is contract with owner

10(5)       The builder's warranty in subsection (1) is deemed to be a contract between the home builder and whoever is the owner of the new home from time to time, and the owner

(a) is deemed to have given good consideration for the warranty; and

(b) is entitled to recover damages for a breach of the warranty.

Subsequent owner may enforce rights

10(6)       If the ownership of a new home covered by a builder's warranty changes, the new owner

(a) is the only person entitled to recover damages for a breach of the builder's warranty, including damages suffered by the former owner; and

(b) is entitled to be substituted as plaintiff in an action commenced by the former owner for a breach of the builder's warranty.

However, the new owner may assign some or all of his or her rights under clause (a) to the former owner, including the right to continue any action commenced by the former owner for a breach of the builder's warranty.

No exclusions or limitations

10(7)       Nothing in subsections (1) to (6)

(a) excludes or limits any contractual term, express or implied, that offers the owner more protection than the builder's warranty; or

(b) relieves any person of liability to which they would otherwise be subject.

Limitation of actions

10(8)       An action or proceeding for a breach of a builder's warranty must not be commenced later than two years after the end of the period that applies under subsection (1) to the particular defect alleged in the action.

PART 3

WARRANTY PROVIDERS

REGISTRATION OF WARRANTY PROVIDERS

Registration of warranty providers

11(1)       A person must not provide a home warranty for a new home unless the person is registered as a warranty provider under this section.

Registration requirements

11(2)       The following persons who apply to the registrar may be registered as a warranty provider:

(a) an insurer;

(b) a person other than an insurer who

(i) provides evidence satisfactory to the registrar that the person will be able to meet the requirements of section 14, and

(ii) meets the prescribed requirements.

Conditions

11(3)       The registrar may impose conditions on a registration.

Registration not transferable

11(4)       A registration is not transferable.

Suspension or cancellation

11(5)       The registrar may suspend or cancel the registration of a warranty provider if the provider has failed to comply with this Act, is in breach of a condition of its registration, or for any other prescribed reason.

Notice and right of appeal

11(6)       If the registrar refuses to register a person as a warranty provider, or imposes conditions on or suspends or cancels a registration, the registrar must give the person a copy of his or her decision, with written reasons, and advise the person of the right to appeal the decision under section 20.

Notice to registrar of changes

11(7)       A warranty provider must notify the registrar immediately of any change that might affect its registration under this Act.

DUTIES OF WARRANTY PROVIDERS

Duties of warranty providers

12(1)       For each new home for which a warranty provider provides a home warranty, the warranty provider must, in accordance with the regulations,

(a) fulfil its obligations under the warranty;

(b) receive notice of warranty claims from owners, determine the eligibility of claims and administer claims, without charge to the owner; and

(c) perform other prescribed duties.

Duty to give buyer a home warranty certificate

12(2)       The warranty provider must ensure that the first owner of the new home is given a home warranty certificate, in a form approved by the registrar and within the prescribed period, which

(a) explains how the warranty works, including the expiry dates for the different types of coverage provided by the warranty; and

(b) includes the prescribed information.

Revoking commitment

13          Subject to the regulations, a warranty provider may revoke a commitment to provide a home warranty.

Warranty backed by insurer

14(1)       A warranty provider who is not an insurer must not provide a home warranty, or commit to do so, unless an insurer has undertaken to assume the warranty provider's obligations and duties under the warranty and under this Act if

(a) the warranty provider ceases to carry on business;

(b) the warranty provider is not registered or its registration is suspended;

(c) the warranty provider is a corporation that has been dissolved or has started liquidation or dissolution proceedings in any jurisdiction;

(d) a receiver, trustee or other similar person has taken control or possession of the warranty provider's property;

(e) the warranty provider has made an assignment, or a receiving order has been made against it, under the Bankruptcy and Insolvency Act (Canada);

(f) a compromise or arrangement has been proposed under the Companies' Creditors Arrangement Act (Canada), or a proposal has been made under the Bankruptcy and Insolvency Act (Canada), in respect of the warranty provider; or

(g) a prescribed event occurs.

The insurer's undertaking must meet the prescribed requirements.

Insurer's undertaking enforceable by the owner

14(2)       The owner is entitled to enforce, or to recover damages for a breach of, the insurer's undertaking referred to in subsection (1).

Subsequent owner may enforce rights

14(3)       If there is a change in the ownership of a new home covered by a home warranty that is backed by an insurer in accordance with subsection (1), the new owner

(a) is the only person entitled to enforce, or recover damages for a breach of, the insurer's undertaking, including to recover damages suffered by the former owner; and

(b) is entitled to be substituted as plaintiff in an action commenced by the former owner against the insurer.

However, the new owner may assign some or all of his or her rights under clause (a) to the former owner, including the right to continue any action commenced by the former owner against the insurer. 

Access to warranty provider's records

14(4)       An insurer who assumes the obligations and duties of a warranty provider under a home warranty is entitled to receive a copy of the warranty provider's records relating to the home warranty and, at the insurer's request, any person in possession of the records must deliver a copy of them to the insurer.

Registration as a warranty provider not required

14(5)       An insurer is not required to register as a warranty provider when fulfilling obligations and duties assumed in accordance with an undertaking under subsection (1).

Powers of registrar

14(6)       If the registrar determines that an event referred to in clauses (1)(a) to (g) has occurred, the registrar may direct the insurer to, and the insurer must, assume the warranty provider's obligations and duties in accordance with the undertaking and this section.

PART 4

HOME BUILDERS

REGISTERED HOME BUILDERS

Registration of home builders

15(1)       A person who applies to the registrar and meets the prescribed requirements may be registered as a home builder.

Conditions

15(2)       The registrar may impose conditions on a registration.

Registration not transferable

15(3)       A registration is not transferable.

Suspension or cancellation

15(4)       The registrar may suspend or cancel a home builder's registration if the home builder has failed to comply with this Act, is in breach of a condition of his or her registration, or for any other prescribed reason.

Notice and right of appeal

15(5)       If the registrar refuses to register a person as a home builder, or imposes conditions on or suspends or cancels a registration, the registrar must give the person a copy of his or her decision, with written reasons, and advise the person of the right to appeal the decision under section 20.

OWNER-BUILDERS

Authorization of owner-builders

16(1)       An owner-builder who applies to the registrar and meets the prescribed requirements may be authorized to build a new home.

Exception in special cases

16(2)       The registrar may issue an authorization to an owner-builder who does not meet the prescribed requirements if he or she is satisfied that special circumstances justify doing so.

Conditions

16(3)       The registrar may impose conditions on an authorization.

Authorization not transferable

16(4)       An authorization is not transferable.

Suspension or cancellation

16(5)       The registrar may suspend or cancel an owner-builder's authorization if the owner-builder has failed to comply with this Act, is in breach of a condition of his or her authorization, or for any other prescribed reason.

Notice and right of appeal

16(6)       If the registrar refuses to issue an authorization under this section, or imposes conditions on or suspends or cancels an authorization, the registrar must give the owner-builder a copy of his or her decision, with written reasons, and advise the owner-builder of the right to appeal the decision under section 20.

PART 5

ADMINISTRATION AND ENFORCEMENT

REGISTRAR AND REGISTRY

Registrar

17(1)       A registrar is to be appointed for the purpose of this Act in accordance with The Civil Service Act.

Delegation of registrar's powers and duties

17(2)       The registrar may, in writing, delegate any of his or her powers and duties under this Act to any person.

Compliance officer

17(3)       The registrar may designate one or more employees of the government as compliance officers for the purpose of this Act.

Registry

18(1)       In accordance with the regulations, the registrar may maintain a public registry. The registry may contain the following information:

(a) prescribed information about each registered warranty provider, each registered home builder and each authorized owner-builder;

(b) the address of each new home built by a registered home builder and the name of the home builder, the warranty provider and, if applicable, the insurer that provides the undertaking described in subsection 14(1);

(c) the address of each new home built by an authorized owner-builder, the name of the owner-builder and a statement as to whether or not the home is covered by a home warranty;

(d) any other prescribed information.

Registry may be inspected

18(2)       If a registry is maintained under subsection (1), a person may inspect any information in the registry during regular business hours and, on payment of any fee, receive a copy of the information.

Registrar may require information

19(1)       To administer and determine compliance with this Act, the registrar may require a person or entity to provide information, including personal information, and the registrar may disclose that information to any person or entity for any purpose relating to the administration of this Act.

Duty to provide information

19(2)       A person or entity who is required to provide information must do so.

APPEALS

Right to appeal decisions of the registrar

20(1)       A person affected by any of the following decisions of the registrar may appeal the decision to the court:

(a) a refusal to permit the sale of a new home under section 8;

(b) a refusal to register a person as a warranty provider under section 11;

(c) a direction to an insurer under subsection 14(6) to assume the obligations of a warranty provider;

(d) a refusal to register a person as a home builder under section 15;

(e) a refusal to issue an authorization to an owner-builder under section 16;

(f) the imposition of conditions on a permission under section 8, a registration under section 11 or 15 or an authorization under section 16;

(g) the suspension or cancellation of a registration under section 11 or 15 or an authorization under section 16;

(h) the confirmation or variation of a compliance order on a review under section 23;

(i) any other prescribed decision.

How to appeal

20(2)       An appeal of a decision must be commenced by filing a notice of appeal within 30 days after the person received notice of the decision. A person who files an appeal must promptly provide a copy of the notice of appeal to the registrar.

Powers of court on appeal

20(3)       On hearing the appeal, the court may

(a) dismiss the appeal;

(b) make any finding that in its opinion the registrar ought to have made; or

(c) refer the matter back to the registrar for further consideration in accordance with any direction of the court.

INSPECTIONS

Inspections

21(1)       A compliance officer may, at any reasonable time and where reasonably required to determine compliance with this Act,

(a) enter and inspect premises, other than one that is occupied as a private residence, that the compliance officer believes on reasonable grounds is a new home or contains relevant records;

(b) inspect, audit or examine any record or document, make copies of any record or document, and remove any record or document for the purpose of making copies;

(c) question any person about any matter relevant to the administration of this Act; and

(d) require any person to produce for inspection or copying any record or other document that the compliance officer believes on reasonable grounds contains any information relevant to the administration of this Act.

Entry to private residence

21(2)       A compliance officer may not enter premises occupied as a private residence except with the consent of the owner or occupant or with the authority of a warrant obtained in accordance with subsection (6).

Electronic records

21(3)       In order to inspect records that are maintained electronically at the premises being inspected, the compliance officer may require the person in charge of the premises or the relevant records, to produce the records in the form of a printout or to produce them in an electronically readable format.

Copies of records

21(4)       The compliance officer may use equipment at the premises being inspected to make copies of relevant records.

Removal of records to make copies

21(5)       If the compliance officer removes any records, he or she must give a receipt to the person from whom they were taken and return the records removed as soon as practicable.

Warrant to enter and inspect private residence

21(6)       On application by a compliance officer, a justice may at any time issue a warrant authorizing the compliance officer and any other person named in the warrant to enter and inspect a private residence, if the justice is satisfied there are reasonable grounds to believe that

(a) entry to the residence is necessary for the purpose of determining compliance with this Act; and

(b) entry to the residence has been refused or will be refused.

Assistance to compliance officer

21(7)       The home builder of premises being inspected under this Act, and any person found there,

(a) must give the compliance officer all reasonable assistance to enable the compliance officer to carry out any action authorized under this Act;

(b) must produce anything that the compliance officer requires; and

(c) must provide any information that the compliance officer requires.

Identification to be shown

21(8)       A compliance officer carrying out an inspection under this Act must show his or her identification if requested to do so.

COMPLIANCE ORDERS

Compliance order

22(1)       A compliance officer may issue a compliance order under this section to a person who fails to comply with this Act.

Contents

22(2)       A compliance order must set out the following:

(a) the name of the person to whom the order is addressed;

(b) the action the person must take as set out in subsection (3);

(c) the date of the order and the date by which the person must comply;

(d) the reasons for the order;

(e) a statement that the person has the right to ask the registrar to review the order.

Actions to be taken under compliance order

22(3)       A compliance order may require a person to do any of the following:

(a) apply for registration or authorization;

(b) obtain a home warranty;

(c) comply with the conditions of a registration, authorization or exemption;

(d) comply with a provision of this Act;

(e) provide records or information to a compliance officer to assist the officer in carrying out the officer's duties;

(f) cease holding himself or herself out as being registered, authorized or exempt, if the person is not registered, authorized or exempt under this Act;

(g) any other prescribed thing.

Compliance

22(4)       A person to whom a compliance order is issued must comply with it within the time specified in the order, unless within that time the person requests a review under section 23.

Review of a compliance order

23(1)       A person to whom a compliance order is issued may, in accordance with the regulations, request the registrar to review the order.

Action on review

23(2)       On receiving a request, the registrar must conduct a review and may confirm, vary or rescind the compliance order.

Court-ordered compliance

24(1)       If a person fails to comply with a compliance order and, on a review, the order has not been rescinded, the registrar may apply to the court for an order directing compliance. An application may be made without notice, or with notice if required by the court.

Order

24(2)       The court may order compliance on any conditions the court considers necessary, and may make any other order it considers necessary to ensure compliance.

INJUNCTION

Injunction

25(1)       On application by the registrar, and on being satisfied that there is reason to believe that a person is contravening or will contravene this Act, the court may grant an injunction restraining the person from the contravention or requiring the person to comply.

Interim injunction

25(2)       At any time before disposing of an application under this section, the court may grant an interim injunction, whether or not it has been established that irreparable harm will be done if the interim injunction is not granted.

OFFENCES

Offences

26(1)       A person who contravenes a provision of this Act is guilty of an offence.

False or misleading information

26(2)       A person who knowingly provides false or misleading information when applying for permission, registration or authorization under this Act, or in any statement, form or report required to be provided under this Act, is guilty of an offence.

Obstruction

26(3)       A person who obstructs, impedes or refuses to admit a compliance officer or peace officer who is performing a duty or exercising a power under this Act is guilty of an offence.

Corporate officers and directors

26(4)       If a corporation commits an offence under this Act, a director, officer, employee, or agent of the corporation who authorized, permitted or acquiesced in the commission of the offence is also guilty of an offence, whether or not the corporation has been prosecuted or convicted.

Time limit for prosecution

26(5)       The deadline for commencing a prosecution 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 issues a certificate that certifies the date on which the registrar learned of the act or omission referred to in clause (a), one year after the certified date.

Registrar's certificate is proof of date

26(6)       A certificate purporting to have been issued by the registrar certifying the date referred to in clause (5)(b) is proof of that date.

Penalty

27          A person who commits an offence under this Act is liable on summary conviction to a fine of not more than $300,000 or imprisonment for a term of not more than three years, or both.

Compensation to consumer

28(1)       A court that convicts a person of an offence under section 26 may order the person to pay, to any person affected by the offence, such amount by way of compensation for loss or damage suffered by that other person as the court may determine.

Order filed in court

28(2)       The order may be filed in the Court of Queen's Bench and, once filed, may be enforced in the same manner as a judgment of the Court of Queen's Bench.

Notice in land titles office

29(1)       If the registrar considers it necessary for the purpose of administering or enforcing this Act, the registrar may submit for registration in the appropriate land titles office a notice that the sale of a new home or property on which a new home has been or will be built is restricted under this Act. The notice must be in a form acceptable to the district registrar.

Crown lands

29(2)       If the property is Crown lands, as defined in The Crown Lands Act, the notice may be entered in the register maintained under that Act.

Notice to be removed

29(3)       As soon as the notice is no longer required, the registrar must remove it.

PART 6

GENERAL PROVISIONS

Regulations

30(1)       The Lieutenant Governor in Council may make regulations

(a) specifying, for the purpose of clause (e) of the definition "new home" in subsection 1(1), a class of buildings or portions of buildings as new homes to which this Act applies;

(b) exempting, subject to any specified conditions,

(i) a person or a class of persons from all or any portion of this Act,

(ii) a building or portion of a building, a class of buildings or portions of buildings, or the common elements of a condominium from the definition of "new home" in subsection 1(1), and

(iii) areas of the province from the application of all or any portion of this Act;

(c) for the purpose of subsection 8(1), permitting the sale of a new home, or class of new homes, not covered by a home warranty;

(d) for the purpose of section 9, respecting the terms and requirements of a home warranty, including commencement date, required coverage, permitted exclusions, terms that must be included, terms that must not be included, monetary limits on coverage, periods within which claims must be made to the warranty provider and any related matters;

(e) specifying allowable limits for the purpose of clause 9(3)(c);

(f) for the purpose of section 10, respecting the scope and terms of the builder's warranty, including commencement date, defects and violations covered by the warranty, periods for which the defects and violations are covered, periods within which defects or violations must be reported to the home builder and any related matters;

(g) respecting the obligations and duties of warranty providers;

(h) for the purpose of section 13, respecting the revocation of a commitment to provide a home warranty, including the circumstances under which a commitment must not be revoked and the obligations of a warranty provider who revokes a commitment;

(i) respecting the undertaking by an insurer described in subsection 14(1), including the form, terms, conditions and requirements of the undertaking and the qualifications, obligations and duties of an insurer providing the undertaking, and any related matters;

(j) respecting the registration of warranty providers, including regulations respecting applications, qualifications and requirements for, and the issuance, duration, renewal, suspension, conditions and cancellation of, registrations;

(k) respecting the registration of home builders, including regulations respecting applications, qualifications and requirements for, and the issuance, duration, renewal, suspension, conditions and cancellation of, registrations;

(l) respecting the authorization of owner-builders, including regulations respecting applications, qualifications and requirements for, and the issuance, duration, renewal, suspension, conditions and cancellation of, authorizations;

(m) limiting or restricting the types of new homes for which an authorization may be issued under section 16;

(n) governing fees payable under this Act, including fees payable on an application for registration or authorization, and by persons who appeal a registrar's decision or request the review of a compliance order;

(o) respecting the registry under section 18;

(p) respecting compliance orders, including the procedure for applying for a review of a compliance order;

(q) respecting the resolution of disputes concerning warranties, including establishing a method of dispute resolution and procedures to be followed;

(r) respecting the imposition, payment and enforcement of administrative penalties for contraventions of this Act, including, but not limited to, regulations

(i) authorizing the registrar to impose administrative penalties and prescribing the maximum amount that may be imposed,

(ii) prescribing provisions of this Act for which a notice of administrative penalty may be issued,

(iii) prescribing the form of the notice of administrative penalty,

(iv) respecting the determination of amounts of administrative penalties, which may vary according to the nature or frequency of the contravention, and whether the person in non-compliance is an individual or a corporation, and

(v) providing an appeal mechanism for persons on whom an administrative penalty has been imposed, including conferring authority on a specified person or body (which may be a court) to whom an appeal may be made;

(s) respecting notices under section 29;

(t) respecting the collection, retention and disclosure of information, including the disclosure of information by the registrar to the public, to warranty providers, and to insurers described in subsection 14(1);

(u) prescribing anything referred to in this Act as being prescribed;

(v) defining any word or expression used but not defined in this Act;

(w) respecting any transitional matters or difficulties that may be encountered in bringing the provisions of this Act into effect;

(x) respecting any matter the Lieutenant Governor in Council considers necessary or advisable to carry out the purposes of this Act.

Regulations may differentiate

30(2)       A regulation made under this Act may be general or particular in its application and may provide differently for different classes of persons and things, and to the whole or any part of the province.

Documentary and certificate evidence

31          In a prosecution or proceeding under this Act, a copy of a document or a certificate issued by the registrar or a compliance officer is admissible in evidence as proof, in the absence of evidence to the contrary,

(a) of the facts stated in the document or certificate; and

(b) of the authority of the person issuing it, without having to prove the person's appointment or signature.

Giving notices

32          A notice, order or other document required to be given to a person under this Act may be

(a) given personally; or

(b) mailed or delivered to the person's last known address, using a mail or delivery service that provides the person giving the notice with an acknowledgment of receipt.

Liability protection

33          No action or proceeding may be brought against the registrar, a compliance officer or any other person acting under the authority of this Act for anything done or omitted to be done, in good faith, in the exercise or intended exercise of a power or duty under this Act.

Transitional

34          This Act applies to every new home for which a building permit is applied for after the coming into force of this section. In the case of a new home for which no building permit is applied for, this Act applies to the home if building begins after the coming into force of this section.

Consequential amendments, R.S.M. 1987, c. C170

35(1)       The Condominium Act, R.S.M. 1987, c. C170, is amended by this section.

35(2)       The following is added after section 17:

Pursuing remedies under a warranty

17.1        The corporation must make reasonable efforts to pursue any remedies under a warranty given for any work performed, or materials furnished, in respect of the common elements.

35(3)       The following is added after clause 34(j):

(k) respecting performance audits of the common elements for the purpose of making a claim under a warranty, including

(i) prescribing the persons who may conduct performance audits and specifying their qualifications and governing the obligations and powers of the person who conducts the audit,

(ii) governing the purpose and content of performance audits, the standards that must be observed in conducting them and the time at which they are to be conducted, and

(iii) specifying material to be included in a performance audit.

Consequential amendment, C.C.S.M. c. R30

36          Subsection 45(5) of The Real Property Act is amended by striking out "and" at the end of clause (j), adding "and" at the end of clause (k) and adding the following after clause (k):

(l) a notice under section 29 of The New Home Warranty Act.

Conditional amendment re Condominium Act, S.M. 2011, c. 30, Schedule A

37          On the day that subsection 11(1) of The Condominium Act, S.M. 2011, c. 30, Schedule A, comes into force, the definition "owner" in subsection 1(1) of this Act is amended by striking out "corporation" and substituting "condominium corporation".

C.C.S.M. reference

38          This Act may be referred to as chapter N85 of the Continuing Consolidation of the Statutes of Manitoba.

Coming into force

39          This Act comes into force on a day to be fixed by proclamation.

Explanatory Note

This Bill ensures that all new homes built for sale are covered by a warranty against defects in materials, labour and design and structural defects.

Home builders and warranty providers must be registered under the Act. Only registered builders are allowed to build homes for others or for sale.

Homes built by registered builders must be covered by a home warranty provided by a warranty provider. The minimum required coverage is

(a) 12 months for materials, labour and design;

(b) 15 months for common areas of condominiums and common areas of other buildings with two or more dwelling units under one ownership;

(c) two years for

• violations of the Manitoba Building Code that constitute a threat to health or safety or are likely to cause material damage to the home,

• defects that make the home unliveable,

• defects in the electrical, plumbing, heating, ventilation and air conditioning systems,

• defects in the building envelope (including water penetration),

• defects in the exterior cladding, caulking, windows and doors that may lead to detachment; and

(d) seven years for structural components.

The minimum coverage may be increased by regulation following a review with public consultation, which must occur at least once every five years.

An owner who wishes to build his or her own home does not need to obtain a home warranty. However, to prevent the Act from being circumvented, owner-builders are subject to certain restrictions. An owner-builder must obtain an authorization before beginning to build and there are restrictions on the resale of an owner-built home within the warranty period.

A builder who fails to supply a home warranty provided by a warranty provider is deemed to provide a warranty to the owner. The builder's warranty provides the same coverage as the minimum required under a home warranty.