Dear Premier Wynne and Minister MacCharles,
Bill 166 which you introduced last week to address years of complaints about the Tarion monopoly has largely ignored Justice Cunningham’s review released in March, 2017.
Concerns I raised on behalf of consumers in the consultations you conducted in June through August this year have all been brushed aside.
To reiterate, here are a few major consumer concerns with Bill 166:
- There is no clearly defined purpose statement in the bill. This has been an on-going concern with the former legislation, the ONHWPA. The judge’s 2017 review said new legislation should clearly state the consumer protection intent of the act. Bill 166 is called “Strengthening Protection for Ontario Consumers”, and includes concert ticket purchasers, who clearly don’t have the same risk profile, or anywhere near the long-standing history of complaints as new home buyers.
- The judge’s #1 recommendation was the multi-provider model for new home warranties. You ruled this out of scope for the ministry consultations, providing no reason. It was clear during consultations that Tarion wanted to hold onto it’s monopoly. How does protecting Tarion’s monopoly protect consumers? You publicly stated, Premier Wynne, (April, 2013), “the days of monopolies are done.” You haven’t explained why this doesn’t apply to Tarion.
- The “modern transparency and accountability measures” you promised in March 2017 seem to be just one: the Auditor-General’s power to conduct audits. This isn’t nearly enough. It ignores consumer and Opposition MPP calls for oversight by the Ombudsman of Ontario, and applicability of the Freedom of Information and Registered Lobbyist Acts. What are your reasons for not including these? Bill 166 states (pg. 43) that Tarion fees passed on to consumers “are not public money“. Yet consumers see them as such: they are mandatory, passed on to consumers by builders, money which in turn funds the warranty. This is an indirect tax we are required by law to pay. If not the public’s money, whose money is it?
- The Administrative Authority model you’ve chosen to continue has been critiqued for over a decade as “rowing and steering” at the same time, i.e, setting policy and moving it along with minimal checks and balances. Bill 166 brings consumers little proof Tarion will act in the public interest. The judge’s review cited problems with a potential conflict in Tarion both protecting the warranty fund and deciding whether to pay out claims. This remains.
- Builders still have a heavy presence on Tarion’s board. Where is the mandatory consumer representation on the board, a major concern for over a decade?
- To say (pg. 85) consumers don’t have to prove the cause of defects may seem positive, but there’s no assurance Tarion won’t use its legal department or financial resources to dismiss legitimate claims. Where is the transparency for consumers to find out if claims are handled in a fair and balanced way? The internal ombudsman, reporting to Tarion’s board, has not been perceived as balanced and impartial. Yet you chose to keep this position. A compliance officer reporting to the ministry would have provided more independence and objectivity for consumers.
- You’ve changed the wording of a major consumer protection clause (section 47 (b) because you say it had to be made gender-neutral. This has unfortunately watered-down the consumer protection content of the original wording. Changing the words “defect in workmanship“ to “built in a skillful way” is much more vague and easier for lawyers to manipulate to their advantage.
- The License Appeal Tribunal has been preserved as the appeal mechanism for claims, despite a decade of concerns that homeowners lose over 90% of the cases.
- The regulation-making authority of Tarion has been maintained, (pg. ii), despite consumer concerns. The annual oversight fee Tarion pays to the ministry for its own oversight has also been maintained. Board composition requirements (pg. 8) also seem un-changed, with no consumer advocates required.
Premier Wynne and Minister MacCharles, as the only consumer advocate in your 11-person working group, I strongly and repeatedly voiced concerns about ignoring the judge’s review, limiting the scope of discussions, and weighting the participants to favour Tarion and industry interests. I am told, I was “heard“, but nothing was done.
Builders got what they wanted from this bill: their own regulatory authority. Tarion got what it wanted: to keep its powerful monopoly with minimal oversight. What meaningful protection did consumers get?
You say nothing will be implemented until at least 2020. Regulations will take even longer. What of the consumers struggling under the current weak legislation? This ignores the urgency of these problems and leaves consumers to deal with 40-year-old legislation which doesn’t protect them in the biggest investment they make in their lives. An over-priced concert ticket may be forgotten five years from now. A new home with unresolved defects may bring financial and emotional hardship which can last a lifetime.
Bill 166 needs significant amendments to gain credibility among Ontario’s new home buyers.
B.M.C., Oct. 10, 2017