Application of Part 2

140   The Lieutenant Governor in Council may make regulations applying specified provisions of Part 2 to home warranty insurance or deposit protection contracts.

Home warranty insurance

141   (1) In this section:

"home warranty certificate" means a certificate, issued by an insurer providing home warranty insurance to an owner, that sets out the terms and conditions of the home warranty insurance;

"home warranty insurance" means a contract of insurance covering defects in the construction of a new home or renovation, and consequential losses or costs incurred by the owner;

"new home" has the same meaning as in section 1 of the Homeowner Protection Act;

"owner" has the same meaning as in section 1 of the Homeowner Protection Act;

"renovation" has the same meaning as in section 1 of the Homeowner Protection Act;

(2) If mandatory conditions for home warranty insurance are required by regulations made under this Act

(a) the mandatory conditions are deemed to be part of the home warranty insurance and must be printed in every home warranty certificate under the heading "Mandatory Conditions", and

(b) no variation or omission of or addition to a mandatory condition is binding on the insured.

(3) The home warranty insurance must provide coverage at least equal to the minimum standards set out in the regulations and, if the home warranty insurance does not, in any of its provisions, provide coverage at least equal to the prescribed minimum coverage, the coverage provided in the relevant provisions of the contract is deemed to be replaced by the appropriate prescribed minimum coverage.

(4) The home warranty insurance must not contain

(a) any term which purports to waive, exclude, limit or qualify the home warranty insurance except as may be permitted by regulation, or

(b) any exclusions from coverage except as permitted by regulation,

and any such term or exclusion has no effect.

(5) A person must not waive or invalidate home warranty insurance except as may be permitted by the regulations, and any such waiver or invalidation has no effect.

(6) The home warranty insurance is enforceable even if there is no privity of contract between the owner and the insurer.

Interpretation for purposes of deposit protection contracts

142   (1) In this section, sections 143 to 146 and section 149 (5):

"deposit protection contract" means a contract indemnifying an insured against the losses described in section 143 (1);

"developer" and "development unit" have the same meanings as in the Real Estate Development Marketing Act;

"insured" means the purchaser for whose benefit a deposit protection contract is entered into by the developer of the purchaser's development unit;

"purchase agreement" and "purchaser" have the same meanings as in the Real Estate Development Marketing Act.

(2) For the purposes of applying Part 2 in relation to a deposit protection contract, the definition of "insured" in subsection (1) applies.

Deposit protection contracts

143   (1) A deposit protection contract must indemnify the insured against the loss of

(a) a deposit described in section 18 (1) of the Real Estate Development Marketing Act paid by the insured to the developer, and

(b) if the developer has agreed to pay the insured interest on the deposit, interest

that results because the developer fails to do both the following:

(c) ensure that the events required under section 18 (3) (b) to (d) of the Real Estate Development Marketing Act occur within the time established for that purpose in the purchase agreement;

(d) return the deposit, and interest if applicable, to the insured in accordance with the purchase agreement.

(2) If mandatory conditions for deposit protection contracts are prescribed,

(a) the mandatory conditions are deemed to be part of a deposit protection contract and must be printed in every deposit protection contract under the heading "Mandatory Conditions", and

(b) no variation or omission of, or addition to, a mandatory condition is binding on an insured.

(3) A deposit protection contract must not contain

(a) a term that purports to waive, exclude or qualify the deposit protection contract, or

(b) an exclusion from coverage

except as authorized by regulation.

(4) A term referred to in subsection (3) (a) and an exclusion referred to in subsection (3) (b) have no effect.

(5) A person must not waive or invalidate a deposit protection contract except as authorized by regulation and a waiver or invalidation contrary to the regulations has no effect.

How deposit protection contract affected by parties

144   (1) A deposit protection contract is enforceable by the insured whether or not

(a) there is privity of contract between the insured and the insurer, or

(b) the premium is paid.

(2) A developer who enters into a deposit protection contract is responsible for payment of the premiums in respect of the contract and may not charge the insured for that cost as a separate item.

(3) If a premium in respect of a deposit protection contract remains unpaid on or after its due date, the insurer may sue only the developer for the unpaid premium and may not deduct the amount of the premium from the amount for which the insurer is liable under the deposit protection contract.

Insurer to furnish copy of deposit protection contract and form for claim

145   (1) It is the duty of an insurer to provide

(a) a true copy of a deposit protection contract to the developer that entered into the deposit protection contract, and

(b) the original or a true copy of the deposit protection contract to the trustee under section 18 (1) of the Real Estate Development Marketing Act who holds the insured's deposit.

(2) Immediately on receipt of a notice of loss or claim under a deposit protection contract, it is the duty of the insurer to provide the insured with printed forms on which a proof of loss or claim may be made.

Contents of deposit protection contract

146   A deposit protection contract must

(a) contain all the following information:

(i) the name of the insurer;

(ii) the name of the developer who entered into the contract;

(iii) the name of the trustee described in section 145 (1) (b) who holds the insured's deposit;

(iv) the name of the insured;

(v) the name of the person or persons to whom the insurance money is payable;

(vi) the subject matter of the insurance;

(vii) the indemnity for which the insurer may become liable;

(viii) the event the occurrence of which gives rise to the insurer's liability;

(ix) the date on which the insurance takes effect, and

(b) provide that the liability of the insurer under the deposit protection contract does not terminate until one of the following occurs:

(i) all the events described in section 18 (3) or (4) of the Real Estate Development Marketing Act have occurred;

(ii) the developer pays the insured the amount insured by the deposit protection contract;

(iii) the insurer pays the insured the amount of the insured's loss;

(iv) the insured acknowledges in writing that

(A) the insured is not entitled to the return of the deposit insured by the deposit protection contract, and

(B) the insurer is no longer liable under the deposit protection contract;

(v) a court of competent jurisdiction makes a final determination that the insured is not entitled to the return of the money insured by the deposit protection contract.

Definition and interpretation

146.1   (1) In this Part, "insurance society" means an insurer that is a society or an extraprovincial non-share corporation.

(2) Unless a contrary intention appears, words and expressions used in this Part have the same meaning as in the Societies Act.

Court may relieve against forfeiture in relation to insurance provided by insurance societies

146.2   Without limiting section 24 of the Law and Equity Act, if, in respect of insurance provided by an insurance society to its members, there has been

(a) imperfect compliance with a condition in a member's membership certificate or other insurance document as to the proof of loss to be given by the member or another matter or thing required to be done or omitted by the member with respect to the loss, and

(b) a consequent forfeiture or avoidance of the insurance in whole or in part,

and the court considers it inequitable that the insurance should be forfeited or avoided on that ground, the court, on terms it considers just, may relieve against the forfeiture or avoidance.

Effect on members of liquidation of insurance society

146.3   (1) Membership dues of a member of an insurance society in liquidation under the Societies Act that are paid in advance in respect of a period extending beyond the date on which the liquidation commenced are a debt due by the insurance society to the member.

(2) Insurance is not payable by an insurance society in liquidation under the Societies Act to a member of the insurance society for an accident, illness or other cause arising after the date on which the liquidation commenced.