Acting as a builder of a new home without being registered by Tarion, contrary to s. 6 of the ONHWP Act, does not apply to persons who began to build a home for themselves and decided, after commencing, to sell the home prior to occupation

Tarion Warranty Corporation v. Boros, 2011 ONCA 374 defines “builder” as being geared toward those who begin the construction of a completed home with the intention of selling it to others. The Court holds:

In my view, the wording of the legislation is geared toward those who begin the construction of a completed home with the intention of selling it to others. It is not geared toward those who, like the respondent, begin with the intention of building a home for their own use and occupation and then when circumstances change decide to sell to others. The definition of “builder” is precise. The respondent meets the first part of the definition in that he undertook all the work and supply of all the materials necessary to construct a completed home; however, he did not, at least at the time of his “undertaking”, do so for the purpose of sale.

Certainly the respondent would meet a layman’s understanding of the term builder or even a dictionary definition of the term. But here, the legislature has given a specific legislated meaning to the term and the respondent on this record does not meet that definition. In my view, if the legislature intended the ONHWP Act to apply to persons like the respondent, it had to say so in clear terms. It does not.

Had builder been defined merely as, for example, “one who constructs completed homes for others”, all those persons who build homes and ultimately sell them to others would be caught.

The penalties for breach of the provisions of the Act and failure to register can be severe and include fines of up to $25,000 for an individual and up to one year in jail.

In order for persons, such as the respondent, to be convicted of such offences, the language needs to be more precise.