by: Christine Kellowan -
Tarion Warranty Corporation ("Tarion") has released updated Advisories to the public regarding the administration of the new home warranty program during the COVID-19 pandemic.
Advisory for the Period of March 13 to April 13
On March 13, 2020, Tarion released an Advisory to announce the suspension of certain new home warranty processes, including conciliations and inspections, until April 13. Our article on this Advisory is available here. On March 26, 2020, Tarion replaced this Advisory with separate Advisories for condominiums ("Condo Advisory") and freehold homes ("Freehold Advisory"), both of which address the impact of Government of Ontario's Emergency Order.
Background on Emergency Order
The Government of Ontario issued an Emergency Order that suspended the provisions of any statute, regulation, rule by-law or order of the Government of Ontario that imposes limitation periods or time periods to take a step in a legal proceeding (e.g., a lawsuit) for the duration of the COVID-19 pandemic. This suspension is retroactive to March 16, 2020. Since the Ontario New Homes Warranties Plan Act has a number of deadlines, Tarion released the Condo Advisory and the Freehold Advisory to address the impact of the Emergency Order on the new home warranty processes.
Condo Advisory and Freehold Advisory
(a) Claim Submission Deadlines Extended
According to both Advisories, the deadlines that apply to the various types of warranty coverage are suspended until the Emergency Order is lifted. Once the Emergency Order has been lifted, Tarion will provide homeowners, unit owners and condominium corporations with a reasonable extension to submit their claim forms. Homeowners, unit owners and condominium corporations may continue to submit claim forms in the interim period while the Emergency Order is still in force.
(b) Conciliation Request Deadline Extended
The applicable deadlines for homeowners, unit owners and condominiums to request a conciliation is suspended until the Emergency Order has been lifted. Once the Emergency Order has been lifted, Tarion will provide homeowners, unit owners and condominium corporations with a reasonable extension to request a conciliation.
(c) Conciliations, Inspections and Common Element Meetings
All conciliations, inspections and common element meetings are suspended until the Emergency Order has been lifted. Previously scheduled conciliations, inspections and common element meetings will be rescheduled once the Emergency Order has been lifted.
(d) Performance Audits
According to the Condo Advisory, the deadlines to submit Performance Audits are suspended until the Emergency Order has been lifted. Once the Emergency Order has been lifted, Tarion will provide condominium corporations with a reasonable extension to submit their claim forms. The Designate for a condominium corporation may contact Bonnie Douglas, Manager, Common Elements, at Bonnie.Douglas@Tarion.com regarding any concerns about delay.
(e) Builder Bulletin 19 Reporting
According to the Condo Advisory, the deadlines for Builder Bulletin 19R reporting is suspended until the Emergency Order has been lifted. Once the Emergency Order has been lifted, Tarion will provide a reasonable extension to submit any reports due during the duration of the Emergency Order. Field Review Consultants that are unable to attend a condominium construction site to perform reporting under Builder Bulletin 19R are to contact B19@Tarion.com to notify Tarion of the delay in reporting.
(f) Access to Homes, Condominium Units and Common Elements
Tarion will not consider a homeowner, unit owner or condominium corporation that does not give access to their home, unit or building, respectively, as having denied access to builders. Builders are not expected to visit a home, unit or building to perform warranty repairs if they do not want to enter the home, unit or building.
(g) Builder Repair Periods
All builder repair periods have been suspended until the Emergency Order is lifted. The suspension of builder repair periods does not apply to emergencies and health and safety issues.
(h) Emergencies and Health and Safety Issues
Homeowners, unit owners and condominium corporations are directed to continue to contact Tarion and their builder regarding emergencies and health and safety issues. Builders are directed to follow the emergency procedures set out in Builder Bulletins 42 and 49. If any of these parties have questions, they are directed to contact Tarion's Customer Service team at 1-877-982-7466 or email covid19@tarion.com.
It remains to be seen how Tarion will weigh a builder's obligations under Builder Bulletin 42 and 49 with the builder's health and safety obligations as an employer. If the employees of a builder are not expected to access a home, unit or building during the COVID-19 pandemic, then the same allowance should be made for emergencies and health and safety issues. To be clear, we are not suggesting that emergencies and health and safety issues should not be addressed or that builders' obligations are abrogated. At issue is whether the builder will be penalized by Tarion for failing to address emergencies and health and safety issues where: (i) the builder's employees object to entering a home, unit or building due to the presence of an ill or symptomatic person; or (ii) there is a shortage of workers or required trades as a result of COVID-19. Given the extraordinary circumstances, there should be some consideration given to builders' competing obligations as a warranty provider and employer.