Bill 59 (Ontario)

Local Inspection Issues Canadian Home Inspectors
1

How many Ontario home inspectors have taken the time to read Bill 59, and the potential impact on you (home inspectors)?

There are a number of concerns - particularly regarding the provision related to “Inspections without warrant (Part 60) and Enforcement”.

Bill 59 is up for 2nd reading on Monday Nov 14th.

Can you do business under such terms?

2

Thanks Claude much appreciated … Roy

3

Hi Claude!

We’ve spent time reading and going through the document which of course contains a lot of intertwined-phraseology.

After going through the Bill, we have created a document with layman opinions as to the meaning of the various sections.

The document can be accessed using the link HERE.

Some elements definitely will need to be discussed and modified during the committee review.

Best regards,
Pat

4

Inspection without warrant? Authority to seize money ? The frickin criminal code does not authorize these powers without a judicial review (warrant) totally unacceptable! Glad I’m retired and don’t have to deal with this schit!

5

Courts have ruled its not in violation of Section 8 of Charter within reason.
And they don’t need a warrant. Police need warrant.

https://www.google.ca/webhp#q=no+warrant+required+for+bylaw+officers+

6

Agreed…

There’s a few sections in there which require further discussions and clarification. A lot of cut and paste from existing regulations…

Looks like the Bill is slated to go to committee.

Best regards,
Pat

7
8

Here is the wording of the legislation under Part V as it relates to complaints about and inspection or inspector:

  1. (1) A statutory inspector may, without a warrant or court order, conduct an inspection in accordance with this section for the purpose of,
    (a) ensuring compliance with this Act and the regulations;
    (b) dealing with a complaint under section 57; or
    (c) ensuring the licensee remains entitled to a licence.
    Power to enter premises
    (2) As part of an inspection, a statutory inspector may, without a warrant or court order, enter and inspect, at any reasonable time, the business premises of a licensee.
    Powers on inspection
    (3) While carrying out an inspection, a statutory inspector,
    (a) is entitled to free access to all money, valuables, documents and records of the person being inspected that are relevant to the inspection;
    (b) may make reasonable inquiries of any person, orally or in writing, with respect to anything relevant to the inspection;
    (c) may require a person to produce any document or record relevant to the inspection and to provide whatever assistance is reasonably necessary, including using any data storage, processing or retrieval device or system to produce, in any form, the document or record;
    (d) may use any data storage, processing or retrieval device or system used to engage in activities of a licensee in order to produce information that is relevant to the inspection and that is in any form; and
    (e) may, upon giving a receipt for them, remove for examination and copy anything relevant to the inspection, including any data storage disk or other retrieval device in order to produce information, but shall promptly return to the person being inspected the thing that was removed.
    No use of force
    (4) A statutory inspector shall not use force to enter and inspect premises under this section.
    No obstruction
    (5) No person shall obstruct a statutory inspector conducting an inspection or withhold from the statutory inspector or conceal, alter or destroy any money, documents or records that are relevant to the inspection.
    Compliance
    (6) If a statutory inspector under clause (3) (c) requires a person to produce a document or record and to provide assistance, the person shall produce the document or record or provide the assistance, as the case may be.
    Admissibility of copies

Draconian in the least! Not even the criminal code provides this type of authority without judicial review.

I can understand requiring cooperation when a complaint is made but this goes way beyond what would be reasonable or necessary!

Cheers

9

Been that way years.
I agree does not seem to me to be the proper way to do things .

I wonder has this ever been challenged in Court ???

10

When you consider the average amount that a Realtor earns versus the average home inspection fee, there is a huge difference.

As a home inspector who could afford such a hefty fine? Better yet, what risk does a home inspector pose that one would need to enter their private office (most often - home) without a warrant?

Those home inspectors must be pretty real bad cowboys! Tsk, tsk…

11

My point exactly Claude! Police do not have authority to enter any premise, much less a home, when ever they want without warrant even in a murder investigation. This provision would undoubtedly be found to be unconstitutional if challenged in ANY court.

There are other concerns in Part V that need to be corrected as well.

But… on the other hand maybe I should look into applying for the job as a Statutory Inspector :slight_smile:

Cheers

12

More food for thought!

  1. (1) If the registrar receives a complaint about a licensee, the registrar may request information in relation to the complaint from any licensee.
    Request for information
    (2) A request for information under subsection (1) shall indicate the nature of the complaint.
    Duty to comply with request
    (3) A licensee who receives a written request for information shall provide the information as soon as is reasonably possible.
    Procedures
    (4) In handling complaints, the registrar may do any of the following, as appropriate:
  2. Attempt to mediate or resolve the complaint.
  3. Give the licensee a written warning that if the licensee continues with the activity that led to the complaint, action may be taken against the licensee.
  4. Require the licensee to take further educational courses.
  5. Refer the matter, in whole or in part, to the discipline committee.
  6. Take an action under section 43, subject to section 44.
  7. Take further action as is appropriate in accordance with this Act.
    Discipline proceedings
  8. (1) A discipline committee is established to hear and determine, in accordance with the prescribed procedures, if a licensee has failed to comply with the code of ethics established under section 75.
    Appeals committee
    (2) An appeals committee is established to consider, in accordance with the prescribed procedures, appeals from the discipline committee.
    Appointment of members
    (3) The board of the administrative authority or, if there is no administrative authority, the Minister shall appoint the members of the discipline committee and the members of the appeals committee and, in making the appointments, shall ensure that the prescribed requirements for the composition of each committee are met.
    Result of a determination
    (4) If the discipline committee makes a determination under subsection (1) that a licensee has failed to comply with the code of ethics, it may order any of the following as appropriate:
  9. Require the licensee to take further educational courses.
  10. If the licensee is a home inspection provider, require the licensee, in accordance with the terms, if any, that the committee specifies, to fund educational courses for home inspectors employed by the licensee or to arrange and fund the courses.
  11. If the licensee is a home inspector, require the home inspection provider that employs the licensee, in accordance with the terms, if any, that the committee specifies, to fund educational courses for home inspectors that the provider employs or to arrange and fund the courses.
  12. Impose the fine that the committee considers appropriate, to a maximum of $25,000, or such lesser amount as is prescribed, to be paid by the licensee to the administrative authority or to the Minister of Finance if there is no administrative authority.
  13. Suspend or postpone the taking of further educational courses, the funding or the funding and arranging of educational courses or the imposition of the fine for the period and upon the terms that the committee designates.
  14. Fix and impose costs that the licensee is required to pay to the administrative authority or to the Minister of Finance if there is no administrative authority.
    Appeal
    (5) A party to the discipline proceeding may appeal the final order of the discipline committee to the appeals committee.
    Power of the appeals committee
    (6) The appeals committee may, by order, overturn, affirm or modify the order of the discipline committee and may make an order under subsection (4).
    Taking of educational course
    (7) A licensee that is required under subsection (4) to take an educational course shall do so,
    (a) within the time period specified in the order of the discipline committee, if the requirement is not the subject of an appeal;
    (b) within the time period specified in the order of the appeals committee, if the requirement is the subject of an appeal; or
    © at the first reasonable opportunity after the last order made in respect of the educational course, if no time period is specified in that order.
    Arranging and funding educational courses
    (8) A home inspection provider that is required under subsection (4) to fund educational courses for home inspectors that it employs or to arrange and fund such courses shall do so,
    (a) within the time period specified in the order of the discipline committee, if the requirement is not the subject of an appeal;
    (b) within the time period specified in the order of the appeals committee, if the requirement is the subject of an appeal; or
    © at the first reasonable opportunity after the last order made in respect of the educational course, if no time period is specified in that order.
    Payment of fine
    (9) The licensee shall pay any fine imposed under subsection (4) on or before,
    (a) the day specified in the order of the discipline committee, if the fine is not the subject of an appeal;
    (b) the day specified in the order of the appeals committee, if the fine is the subject of an appeal; or
    © the 60th day after the date of the last order made in respect of the fine, if no day is specified in that order.
    Public access

I really hope home inspectors have input when this legislation goes to committee.

Cheers

13

Several of the Ontario associations have started the ball rolling. It will go to committee, so I am sure there will be an opportunity for input.

I have contacted several local MPs noting this concern.

14

It gets worse. Why would anyone consent to these draconian provisions?:twisted:

More to come:roll:

  1. (1) If the registrar receives a complaint about a licensee, the registrar may request information in relation to the complaint from any licensee.
    Request for information
    (2) A request for information under subsection (1) shall indicate the nature of the complaint.
    Duty to comply with request
    (3) A licensee who receives a written request for information shall provide the information as soon as is reasonably possible.
    Procedures
    (4) In handling complaints, the registrar may do any of the following, as appropriate:
  2. Attempt to mediate or resolve the complaint.
  3. Give the licensee a written warning that if the licensee continues with the activity that led to the complaint, action may be taken against the licensee.
  4. Require the licensee to take further educational courses.
  5. Refer the matter, in whole or in part, to the discipline committee.
  6. Take an action under section 43, subject to section 44.
  7. Take further action as is appropriate in accordance with this Act.
    Discipline proceedings
  8. (1) A discipline committee is established to hear and determine, in accordance with the prescribed procedures, if a licensee has failed to comply with the code of ethics established under section 75.
    Appeals committee
    (2) An appeals committee is established to consider, in accordance with the prescribed procedures, appeals from the discipline committee.
    Appointment of members
    (3) The board of the administrative authority or, if there is no administrative authority, the Minister shall appoint the members of the discipline committee and the members of the appeals committee and, in making the appointments, shall ensure that the prescribed requirements for the composition of each committee are met.
    Result of a determination
    (4) If the discipline committee makes a determination under subsection (1) that a licensee has failed to comply with the code of ethics, it may order any of the following as appropriate:
  9. Require the licensee to take further educational courses.
  10. If the licensee is a home inspection provider, require the licensee, in accordance with the terms, if any, that the committee specifies, to fund educational courses for home inspectors employed by the licensee or to arrange and fund the courses.
  11. If the licensee is a home inspector, require the home inspection provider that employs the licensee, in accordance with the terms, if any, that the committee specifies, to fund educational courses for home inspectors that the provider employs or to arrange and fund the courses.
  12. Impose the fine that the committee considers appropriate, to a maximum of $25,000, or such lesser amount as is prescribed, to be paid by the licensee to the administrative authority or to the Minister of Finance if there is no administrative authority.
  13. Suspend or postpone the taking of further educational courses, the funding or the funding and arranging of educational courses or the imposition of the fine for the period and upon the terms that the committee designates.
  14. Fix and impose costs that the licensee is required to pay to the administrative authority or to the Minister of Finance if there is no administrative authority.
    Appeal
    (5) A party to the discipline proceeding may appeal the final order of the discipline committee to the appeals committee.
    Power of the appeals committee
    (6) The appeals committee may, by order, overturn, affirm or modify the order of the discipline committee and may make an order under subsection (4).
    Taking of educational course
    (7) A licensee that is required under subsection (4) to take an educational course shall do so,
    (a) within the time period specified in the order of the discipline committee, if the requirement is not the subject of an appeal;
    (b) within the time period specified in the order of the appeals committee, if the requirement is the subject of an appeal; or
    © at the first reasonable opportunity after the last order made in respect of the educational course, if no time period is specified in that order.
    Arranging and funding educational courses
    (8) A home inspection provider that is required under subsection (4) to fund educational courses for home inspectors that it employs or to arrange and fund such courses shall do so,
    (a) within the time period specified in the order of the discipline committee, if the requirement is not the subject of an appeal;
    (b) within the time period specified in the order of the appeals committee, if the requirement is the subject of an appeal; or
    © at the first reasonable opportunity after the last order made in respect of the educational course, if no time period is specified in that order.
    Payment of fine
    (9) The licensee shall pay any fine imposed under subsection (4) on or before,
    (a) the day specified in the order of the discipline committee, if the fine is not the subject of an appeal;
    (b) the day specified in the order of the appeals committee, if the fine is the subject of an appeal; or
    © the 60th day after the date of the last order made in respect of the fine, if no day is specified in that order.
    Public access

This legislation andits provisions are intended to screw anyone who decides to conduct home inspections. Be very afraid! The more I read the more I’m glad I have retired!

Cheers

15

Everyone is looking at this piece of legislation as a big stick to whack Home Inspectors with.

The right of entry and inspection has been part of multiple pieces of legislation in Ontario for years, and the rights extend to municipality inspectors.

The former only applies to business locations and to dwellings solely where exigent circumstances occur that require emergency entry. The latter is more invasive. While this is, I believe, an excessive use of legal power, that should be restricted to that given to the police and other peace officers, it does have a flip-side.

Imagine if you will, a General Contractor, or Realtor who offers their services for Home Inspections without a License. This person is taking business away from a properly licensed Home Inspector, and may be creating an adverse risk to the consumer. This legislation, however draconian, does allow the DAA to investigate.

While I personally think this type of inspection or investigation would be better in the hands of the Police services, with the industry specific inspector in-tow, there is insufficient funding of the Police services across Canada and the Provinces to provide the manpower for this type of work. Thus we end up with people who are neither members of the Government nor Peace Officers getting arbitrary powers to enter and search. In addition, if they claim such action is based upon “good faith” there is no recourse to sue.

That is, as Roy stated, a problem endemic to a society that is incapable of identifying their rights are being eroded a piece at a time.

Unfortunately getting those rights back, when there is so much precedent of them already having been withdrawn by Government (of all colours), is nigh impossible.

We therefore have to continue to work with, not against, the government to ensure the legislature recognizes that it’s not a one-size-fits-all, and the needs of Home Inspectors, who are also consumers and voters, need to be taken into account, and modify any legislation accordingly.

16

Hey Len:

I would not be opposed to making cooperation with someone investigating a complaint against a home inspector or home inspection provider mandatory at all.

The “without warrant” to enter and search someones place of business (maybe their dwelling) and have free access to reports files storage devises MONEY etc is way more power than police officers have when conducting investigations into very serious criminal offences.

The section

17

Len:

Police won’t get involved in any way shape or form. Simple as that

Establishing and training persons to investigate complaints against home inspectors, or home inspection providers is very necessary if any discipline process is in place. I get that.

However, the powers proposed by Section 60, allowing a Statutory Inspector the right to enter someone’s place of business (their dwelling house, in most cases). Be given free access to documents storage devises,MONEY, etc without judicial review is so outlandish that it would never stand up in a court of law, if challenged.

Section 57 requires home inspectors to cooperate in investigations involving client complaints. That should be sufficient.

Not to mention, I was not able to determine what a client could complain about. Does not seem to be identified in the legislation. I may have missed it though.

Cheers

18

More scary stuff!

Be afraid verry afraid!

  1. (1) If a person or entity is convicted of an offence under section 66, the court making the conviction may, in addition to any other penalty, order the person or entity convicted to pay compensation or make restitution.
    If insurance has paid
    (2) If an order is made in the favour of a person or entity under subsection (1) and that person or entity has already received compensation or restitution from an insurer, the person or entity ordered to pay the compensation or make restitution shall deliver the amount to the insurer.

FYI :The person or entity is a licenced home inspector or home inspection provider

OMG
What is the point of having insurance!

Glad I’m out of this gig!

Cheers

19

If the place of business is a dwelling (or part of a dwelling), then as we’ve already stated, without exigent circumstances, for the purposes of enforcement of this act, no-one can enter without a warrant. That’s how we read it. Complaints would be against regulations (yet to be made) presumable the code of Ethics. To be developed by the DAA as in the case of RECO, TICO, TARION etc.

20

I think you’ll find that that’s pretty much the case everywhere Doug. If someone is found guilty in breach of the Act, then it’s a criminal offence (either Provincial or Criminal depending upon the offence) If that’s the case then their insurance wouldn’t cover them anyway (Insurance is void on criminal acts) So the insurer would be paid back anyway. This clause just speeds up the process by removing the need for a second court case to establish that any fees paid out of insurance funds nullified by illegal acts is returned.

This goes for E&O/GL or other insurance coverage for any profession.

Best regards,