ADMINISTRATIVE PENALTIES

CONTENTS PART I INTERPRETATION 1. Definitions PART II GENERAL 2. Administrative penalty orders 3. Prescribed provisions 4. Pre-commencement transition period PART III PROCEDURE FOR MAKING ORDER 5. Notice of intention to make order 6. Request to assessor 7. Consideration of request, making of order 8. Making of order 9. When penalty shall be paid 10. Service PART IV DETERMINATION OF ADMINISTRATIVE PENALTY AMOUNT 11. Administrative penalty amount, general 12. Base penalty amount, determination 13. Monetary benefit amount, determination 14. Determination of administrative penalty amount PART V APPEAL 15. Appeal body Schedule 1 Prescribed provisions and maximum base penalty amounts Part I Interpretation Definitions 1. In this Regulation, “base penalty amount” means the amount of the administrative penalty referred to in subsection 76 (5) of the Act; (“montant de la pénalité de base”) “monetary benefit amount” means the amount of the increase referred to in subsection 76 (6) of the Act. (“montant du bénéfice pécuniaire”) Part Ii General Administrative penalty orders 2. An assessor shall make an order imposing an administrative penalty under subsection 76 (1) of the Act only in accordance with this Regulation. Prescribed provisions 3. (1) The provisions set out in Column 1 of Tables 1, 2, 3, 4 and 5 of Schedule 1 are prescribed for the purpose of clause 76 (1) (a) of the Act. (2) The provisions set out in Column 1 of Tables 6 and 7 of Schedule 1 are prescribed for the purpose of clause 76 (1) (c) of the Act. Pre-commencement transition period 4. (1) For the purposes of subsection 76 (15) of the Act, the provisions prescribed for the purposes of subsection 76 (1) of the Act are prescribed for all of the pre-commencement transition period. (2) Despite subsection (1) of this section, a provision is not prescribed for any part of the period when the provision was not in force. Part IIi Procedure for making Order Notice of intention to make order 5. (1) If an assessor intends to make an order imposing an administrative penalty against a person under subsection 76 (1) of the Act, the assessor shall serve upon the person a written notice containing the following information: 1. A statement of the assessor’s intention to make an order and the name of the person against whom the assessor intends to make the order. 2. The provision or condition of a licence that, in the assessor’s opinion, the person has contravened. 3. A description of the contravention, including when it occurred. 4. The proposed administrative penalty amount, including, i. the proposed base penalty amount determined by the assessor in accordance with section 12 and a description of the manner in which it was determined, and ii. the proposed monetary benefit amount determined by the assessor in accordance with section 13, and a description of the calculations, variables and assumptions that led to the determination of that amount. 5. Information about the person’s right to make a request under section 6, including when the request must be made. (2) A notice may apply in respect of one or more contraventions. (3) The assessor may amend a notice after it has been served and shall serve the amended written notice upon the person. Request to assessor 6. (1) A person who is served with a notice of an assessor’s intention to make an order in respect of a contravention, or an amendment to a notice, may request, in writing, that the assessor consider any of the following information: 1. Any additional information related to the contravention. 2. Any information relevant to the assessor’s determination of the proposed base penalty amount or the proposed monetary benefit amount. 3. Information about any actions the person has taken to remedy the contravention since it occurred. (2) A request shall be made no later than 15 days after the date on which the notice was served. (3) If an amended notice is served in respect of a contravention, a request in respect of that contravention shall be made no later than 15 days after the date on which the amended notice was served. (4) If a notice or an amended notice applies to more than one contravention, a request may be made in respect of any of the contraventions. (5) A request shall include all information and supporting documentation that the person wants the assessor to consider with respect to the request. Consideration of request, making of order 7. (1) After receiving a request from a person under section 6 or after the applicable time periods referred to in subsections 6 (2) and (3) have expired, whichever is earlier, the assessor shall, (a) consider any information contained in a request received; and (b) decide whether or not to make an order to the person in respect of the contravention. (2) If the assessor decides not to make an order to the person in respect of a contravention mentioned in a notice, the assessor shall, in writing, notify the person of the decision. (3) Subsection (2) does not limit an assessor’s ability to make a subsequent notice to the person in respect of the same contravention. (4) If the assessor decides to make an order to the person in respect of a contravention, the assessor shall determine the administrative penalty amount in respect of the contravention in accordance with Part IV and make the order in accordance with section 8. Making of order 8. (1) An order imposing an administrative penalty against a person under subsection 76 (1) of the Act shall, (a) specify the provision or condition of a licence that the person has contravened and describe the contravention, including when the contravention occurred; (b) set out the administrative penalty amount in respect of the contravention and, as part of specifying the amount, specify the final base penalty amount, the final monetary benefit amount and any reduction under subsection 14 (3), including, (i) a description of the manner in which the final base penalty amount was determined, (ii) a description of the calculations, variables and assumptions that led to the determination of the final monetary benefit amount, and (iii) a description of the consideration given by the assessor to any request made under section 6; (c) indicate that the administrative penalty must be paid within 30 days after the day the person was served; and (d) provide details of the right of the person against whom the order was made to appeal the order under subsection 77 (2) of the Act. (2) A single order may require a person to pay an administrative penalty in respect of one or more contraventions. (3) If an assessor makes an order in respect of a contravention that has been continuing for two or more consecutive days, the order shall be in respect of the entire period and the assessor shall treat the continuing contravention as a single contravention. When penalty shall be paid 9. A person who has been served with an order imposing an administrative penalty against them under subsection 76 (1) of the Act shall pay the administrative penalty within 30 days after the day the person was served. Service 10. An order made or a notice or amended notice given under this Part is deemed to have been served, (a) on the day it is given, if it is given by personal service; (b) on the day it is sent by e-mail, if it is sent by e-mail; or (c) on the third day after it is mailed, if it is mailed by registered mail. Part Iv Determination of Administrative Penalty Amount Administrative penalty amount, general 11. The administrative penalty amount under subsection 76 (1) of the Act in respect of a contravention shall consist of the following, determined in accordance with this Regulation: 1. A base penalty amount. 2. A monetary benefit amount. Base penalty amount, determination 12. The base penalty amount in relation to a contravention of a provision or condition of a licence shall be determined by the assessor in accordance with the following rules: 1. The assessor shall consider the following factors: i. The contravention’s impact, if any, on the regulatory authority’s ability to carry out its purposes. ii. The contravention’s impact, if any, on purchasers or owners of new homes or other persons. iii. With respect to the person who carried out the contravention, A. the person’s history, if any, of complying or not complying with the prescribed provisions of this Act or the regulations or the prescribed provisions of the Ontario New Home Warranties Plan Act or the regulations or the by-laws of the warranty authority made under it, and B. if the person is a licensee, the person’s history, if any, of complying or not complying with the conditions of their licence, and C. any information available to the assessor regarding whether the person has remedied the contravention or is in the process of remedying the contravention, and how quickly the contravention was or is being remedied. iv. Any information available to the assessor regarding whether the contravention was deliberate. 2. For a contravention of a provision set out in Column 1 of a Table to Schedule 1, the base penalty amount must not exceed the amount set out opposite the contravention in Column 3 of the applicable Table. 3. For a contravention of a condition of a licence, the base penalty amount must not exceed $25,000. Monetary benefit amount, determination 13. The assessor shall consider the following factors when determining the monetary benefit amount that was acquired by or that accrued to the person as a result of the contravention: 1. Costs that the person avoided incurring by failing to comply with the provision or condition of a licence. 2. Costs that the person delayed incurring by delaying compliance with the provision or condition of a licence. 3. Gains that the person accrued or losses that the person avoided by failing to comply with the provision or condition of a licence. Determination of administrative penalty amount 14. (1) The assessor shall, when determining the administrative penalty amount to be set out in an order, reapply sections 12 and 13 and redetermine the base penalty amount and the monetary benefit amount if the assessor considers it to be appropriate based on any additional information now available to the assessor that was not available at the time of giving the notice under subsection 5 (1). (2) In making the determinations under subsection (1), the assessor shall consider any information contained in a request received under section 6. (3) After an assessor makes the determinations under subsection (1), a reviewer shall review the assessor’s determinations and if the reviewer determines that the administrative penalty is excessive in the circumstances or is, by its magnitude, punitive in nature having regard to all the circumstances, including any other administrative penalty amounts in respect of contraventions under the same order, the reviewer shall reduce the amount such that the imposition of the administrative penalty is consistent with the purposes set out in subsection 76 (4) of the Act. (4) In this section, “reviewer” means the registrar or a deputy registrar specified by the registrar to review the assessor’s determinations for the purposes of subsection (3). Part V Appeal Appeal body 15. For the purposes of the definition of “appeal body” in subsection 77 (1) of the Act, the Tribunal is prescribed as the appeal body. 16. Omitted (provides for coming into force of provisions of this Regulation). Schedule 1 PRESCRIBED PROVISIONS AND MAXIMUM BASE PENALTY AMOUNTS Table 1 provisions of the ACT Item Column 1 Provision Contravened Column 2 Description of Contravention Column 3 Maximum Base Penalty Amount 1. Subsection 37 (1) Person acts as a vendor, or engages in other specified activities, without a licence. $50,000 2. Subsection 37 (2) Person acts as a builder, or engages in other specified activities, without a licence. $50,000 3. Subsection 49 (1) Licensee fails to notify the registrar in writing within five days of any change in address for service. $5,000 4. Subsection 50 (1) Licensee fails to promptly notify the registrar when a person ceases to have a controlling interest in the licensee or acquires a controlling interest in the licensee. $10,000 5. Subsection 51 (1) Applicant or licensee that is a corporation fails to notify the registrar in writing within 30 days after the issue or transfer of any equity shares in the corporation in the circumstances described in the provision. $10,000 6. Subsection 51 (2) Applicant or licensee that is a corporation fails to notify the registrar in writing within 30 days after knowledge of the transfer of equity shares in the corporation comes to the attention of the corporation’s officers or directors. $10,000 7. Section 52 Licensee who experiences a material change fails to provide information or documents to the registrar in accordance with the provision. $10,000 8. Section 54 Licensee makes a false, misleading or deceptive representation in its advertising, documents or other prescribed materials. $50,000 9. Subsection 56 (3) Licensee who receives a request from the registrar for information regarding a complaint fails to provide the requested information. $20,000 10. Subsection 57 (7) Licensee that is ordered by the discipline or appeals committee to take an educational course or to arrange for others to take an educational course fails to do so in accordance with the provision. $20,000 11. Subsection 57 (8) Licensee that is ordered by the discipline or appeals committee to fund educational courses fails to do so in accordance with the provision. $20,000 12. Subsection 57 (9) Licensee fails to pay a fine imposed under subsection 57 (4) of the Act in accordance with the provision. $20,000 13. Subsection 59 (6) Person obstructs an inspector conducting an inspection, or a person accompanying the inspector, in the manner described in the provision. $30,000 14. Subsection 59 (7) Person fails to produce a document or record or provide assistance required by an inspector. $30,000 15. Subsection 61 (8) Person obstructs an investigator executing a warrant in the manner described in the provision. $30,000 16. Subsection 61 (10) Person fails to produce information or evidence or provide assistance to an investigator under a warrant. $30,000 Table 2 provisions of ONTARIO REGULATION 626/20 (GENERAL) Item Column 1 Provision Contravened Column 2 Description of Contravention Column 3 Maximum Base Penalty Amount 1. Section 4 Licensee fails to prominently display their licence in the manner described in the provision. $10,000 2. Section 5 Licensee fails to pay the applicable fee, cost or other charge set by the regulatory authority within five days after the warranty authority confirms to the licensee in writing that a new home has been enrolled in the manner described in the provision. $10,000 3. Subsection 6 (1) Licensed vendor transfers a new home to a builder or to another vendor without meeting the criteria set out in the provision. $50,000 4. Section 8 Licensee obstructs or attempts to obstruct a person from making a complaint to the registrar, or the registrar or the registrar’s representative from inquiring with respect to a complaint. $20,000 Table 3 provisions of ONTARIO REGULATION 245/21 (CODE OF ETHICS AND DISCIPLINE AND APPEALS COMMITTEES) Item Column 1 Provision Contravened Column 2 Description of Contravention Column 3 Maximum Base Penalty Amount 1. Section 2 Licensee fails to ensure its employees, directors, officers, principals, agents and independent contractors carry out their duties in compliance with the Act and the regulations. $30,000 2. Section 3 Licensee fails to treat persons the licensee deals with fairly, honestly and with integrity. $50,000 3. Clause 4 (a) Licensee fails to treat persons without discrimination, harassment or bullying. $30,000 4. Section 11 Licensee fails to promptly report to the registrar in writing that the licensee or other specified persons have been charged with or found guilty of an offence described in the provision. $10,000 5. Section 12 Licensee engages in or is a party to misrepresentation. $50,000 6. Section 13 Licensee provides false, misleading or deceptive information or documents to the regulatory authority. $40,000 7. Section 14 Licensee fails to ensure that it uses all forms and documents that are required by law. $20,000 8. Section 16 Licensee obstructs or attempts to obstruct a person from making a complaint to the registrar, or the registrar or the registrar’s representative from inquiring with respect to a complaint. $20,000 9. Section 17 Licensee fails to be clear and truthful in describing matters related to new homes as set out in the provision, or fails to ensure that representations made by or on behalf of the licensee in connection with a new home are not false, misleading or deceptive. $50,000 10. Section 18 Licensee indicates that a payment, commission, remuneration or other cost in connection with a new home is fixed or approved by the regulatory authority or other persons listed in the provision, except to the extent permitted by the provision. $10,000 11. Section 19 Licensee discloses confidential information to a third party without prior written consent of the person to whom the information relates and without authorization or requirement by law. $20,000 12. Section 20 Licensee participates in or facilitates illegal building or selling of a new home as described in the provision. $50,000 Table 4 provisions of ONTARIO REGULATION 454/22 (ADDENDA TO AGREEMENTS BETWEEN VENDORS AND PURCHASERS) Item Column 1 Provision Contravened Column 2 Description of Contravention Column 3 Maximum Base Penalty Amount 1. Section 3 Vendor of a freehold home or a vacant land condominium home fails to ensure the completion of the applicable addendum or comply with other requirements set out in the provision. $50,000 2. Section 4 Vendor of a condominium home in a condominium project fails to ensure the completion of the applicable addendum and condominium information sheet or comply with other requirements set out in the provision. $50,000 3. Section 5 Vendor of a freehold home on a parcel of tied land for a common elements condominium corporation fails to ensure the completion of the applicable addendum or comply with other requirements set out in the provision. $50,000 Table 5 provisions of this REGULATION Item Column 1 Provision Contravened Column 2 Description of Contravention Column 3 Maximum Base Penalty Amount 1. Section 9 Person fails to pay an administrative penalty imposed under subsection 76 (1) of the Act in accordance with the provision. $20,000 Table 6 provisions of the ontario new home warranties plan act Item Column 1 Provision Contravened Column 2 Description of Contravention Column 3 Maximum Base Penalty Amount 1. Section 10.1 Vendor sells or offers to sell a home without meeting the requirements stated in the provision. $50,000 2. Subsection 10.2 (3) Builder enters into a contract with an owner of land for the construction of a home on the land without meeting the requirements stated in the provision. $50,000 3. Subsection 10.2 (4) Builder commences construction of a home without meeting the requirements stated in the provision. $50,000 4. Clause 17.3 (1) (b) Person sells or offers for sale any unit or proposed unit in a residential condominium conversion project without satisfying the conditions referenced in the provision. $50,000 5. Subsection 17.4 (3) Person commences construction of a residential condominium conversion project without the Registrar’s confirmation referenced in the provision. $50,000 Table 7 provisions of ONTARIO REGULATION 165/08 (WARRANTY FOR DELAYED CLOSING OR DELAYED OCCUPANCY) made under the ontario new home warranties plan act Item Column 1 Provision Contravened Column 2 Description of Contravention Column 3 Maximum Base Penalty Amount 1. Section 9 Vendor of a freehold home or a vacant land condominium home fails to ensure the completion of the applicable addendum or comply with other requirements set out in the provision. $50,000 2. Section 10 Vendor of a condominium home in a condominium project or a freehold home on a parcel of tied land for a common elements condominium corporation fails to ensure the completion of the applicable addendum or comply with other requirements set out in the provision. $50,000