44 (1) If the property of the corporation includes one or more units for residential purposes or if the corporation is a common elements condominium corporation, the board shall retain a person who holds a certificate of authorization within the meaning of the Professional Engineers Act or a certificate of practice within the meaning of the Architects Act to conduct a performance audit of the common elements described in the description on behalf of the corporation. 1998, c. 19, s. 44 (1). Note: On a day to be named by proclamation of the Lieutenant Governor, subsection 44 (1) of the Act is repealed and the following substituted: (See: 2015, c. 28, Sched. 1, s. 37 (1)) Performance audit (1) If a property includes one or more units for residential purposes or if the corporation is a common elements condominium corporation, the board shall retain a person who holds a certificate of authorization within the meaning of the Professional Engineers Act or a certificate of practice within the meaning of the Architects Act to conduct a performance audit, on behalf of the corporation, of the common elements described in the description and, unless the regulations provide otherwise, any real property owned by the corporation. 2015, c. 28, Sched. 1, s. 37 (1). Time for audit (2) A performance audit shall be conducted no earlier than six months, and no later than 10 months, following the registration of the declaration and description. 1998, c. 19, s. 44 (2). Note: On a day to be named by proclamation of the Lieutenant Governor, subsection 44 (2) of the Act is repealed and the following substituted: (See: 2015, c. 28, Sched. 1, s. 37 (1)) Time for audit (2) A performance audit shall be conducted before the first anniversary of the date of registration of the declaration and description for the corporation or such other time periods following the registration of the declaration and description that are prescribed. 2015, c. 28, Sched. 1, s. 37 (1). Cost (3) The corporation shall pay the cost of the performance audit and it shall form part of the corporation’s budget for the year following the registration of the declaration and description. 1998, c. 19, s. 44 (3). Purpose (4) The person who conducts the performance audit shall determine whether there are any deficiencies in the performance of the common elements described in the description after construction has been completed on them that, Note: On a day to be named by proclamation of the Lieutenant Governor, subsection 44 (4) of the Act is amended by striking out the portion before clause (a) and substituting the following: (See: 2015, c. 28, Sched. 1, s. 37 (2)) Purpose (4) The person who conducts the performance audit shall assess, in the person’s professional opinion, whether there are any deficiencies in the performance of the common elements described in the description and the real property that is the subject of the audit, after construction has been completed on them, that, (a)  may give rise to a claim for payment out of the guarantee fund under section 14 of the Ontario New Home Warranties Plan Act to the corporation; or Note: On a day to be named by proclamation of the Lieutenant Governor, clause 44 (4) (a) of the Act is repealed and the following substituted: (See: 2017, c. 33, Sched. 2, s. 75 (9)) (a)  may give rise to a claim for payment to the corporation out of the guarantee fund under the prescribed provisions of the Protection for Owners and Purchasers of New Homes Act, 2017 or the regulations made under that Act; or (b)  subject to the regulations made under this Act, would give rise to a claim described in clause (a) if the property of the corporation were subject to that Act. 1998, c. 19, s. 44 (4). Note: On a day to be named by proclamation of the Lieutenant Governor, clause 44 (4) (b) of the Act is repealed and the following substituted: (See: 2015, c. 28, Sched. 1, s. 37 (3)) (b)  subject to the regulations, would give rise to a claim described in clause (a) if the property were subject to the Ontario New Home Warranties Plan Act. Note: On a day to be named by proclamation of the Lieutenant Governor, subsection 37 (3) of Schedule 1 to the Protecting Condominium Owners Act, 2015 is repealed. This amendment applies only if subsection 37 (3) of Schedule 1 to the Protecting Condominium Owners Act, 2015 does not come into force before the day subsection 75 (10) of Schedule 2 to the Strengthening Protection for Ontario Consumers Act, 2017
comes into force. (See: 2017, c. 33, Sched. 2, s. 79 (9, 10)) Note: On a day to be named by proclamation of the Lieutenant Governor, clause 44 (4) (b) of the Act is repealed and the following substituted: (See: 2017, c. 33, Sched. 2, s. 75 (10)) (b)  subject to the regulations, would give rise to a claim described in clause (a) if the property were subject to the Protection for Owners and Purchasers of New Homes Act, 2017. Duties (5) In making the determination, the person who conducts the performance audit shall, Note: On a day to be named by proclamation of the Lieutenant Governor, subsection 44 (5) of the Act is amended by striking out the portion before clause (a) and substituting the following: (See: 2015, c. 28, Sched. 1, s. 37 (4)) Duties (5) In making the assessment, the person who conducts the performance audit shall, (a)  inspect the major components of the buildings on the property which, subject to the regulations, include the foundation, parking garage, wall construction, air and vapour barriers, windows, doors, elevators, roofing, mechanical system, electrical system, fire protection system and all other components that are prescribed; (b)  subject to the regulations, inspect the landscaped areas of the property; (c)  review all final reports on inspections that the Corporation within the meaning of the Ontario New Home Warranties Plan Act requires be carried out on the common elements; and Note: On a day to be named by proclamation of the Lieutenant Governor, clause 44 (5) (c) of the Act is amended by adding “and the real property that is the subject of the audit” after “common elements”. (See: 2015, c. 28, Sched. 1, s. 37 (5)) Note: On a day to be named by proclamation of the Lieutenant Governor, subsection 37 (5) of Schedule 1 to the Protecting Condominium Owners Act, 2015 is repealed. This amendment applies only if subsection 37 (5) of Schedule 1 to the Protecting Condominium Owners Act, 2015 does not come into force before the day subsection 75 (11) of Schedule 2 to the Strengthening Protection for Ontario Consumers Act, 2017
comes into force. (See: 2017, c. 33, Sched. 2, s. 79 (11, 12)) Note: On a day to be named by proclamation of the Lieutenant Governor, clause 44 (5) (c) of the Act is repealed and the following substituted: (See: 2017, c. 33, Sched. 2, s. 75 (11)) (c)  review all final reports on inspections that the warranty authority requires be carried out on the common elements and the real property that is the subject of the audit; and (d)  conduct a survey of the owners of the corporation as to what evidence, if any, they have seen of, (i)  damage to the units that may have been caused by defects in the common elements, and Note: On a day to be named by proclamation of the Lieutenant Governor, subclause 44 (5) (d) (i) of the Act is repealed and the following substituted: (See: 2015, c. 28, Sched. 1, s. 37 (6)) (i)  damage to the units that may have been caused by defects in the common elements and the real property that is the subject of the audit, (ii)  defects in the common elements that may cause damage to the units. 1998, c. 19, s. 44 (5); 2015, c. 28, Sched. 1, s. 146 (1). Note: On a day to be named by proclamation of the Lieutenant Governor, subclause 44 (5) (d) (ii) of the Act is repealed and the following substituted: (See: 2015, c. 28, Sched. 1, s. 37 (6)) (ii)  defects in the common elements and the real property that is the subject of the audit, which defects may cause damage to the units, and (iii)  defects in the common elements and the real property that is the subject of the audit, where those common elements and that real property are adjacent to the units, as determined by the regulations, if any. Powers for audit (6) The person who conducts a performance audit may, for the purpose of the audit, (a)  enter onto the property at any reasonable time either alone or accompanied with any expert that the person considers necessary for the audit; (b)  require any person to produce any drawings, specifications or information that may on reasonable grounds be relevant to the audit; (c)  make all examinations, tests or inquiries that may on reasonable grounds be relevant to the audit; and (d)  call upon any expert for the assistance that the person considers necessary in conducting the audit. 1998, c. 19, s. 44 (6). No obstruction (7) No person shall obstruct a person who is exercising powers under this section or provide false information or refuse to provide information to the person. 1998, c. 19, s. 44 (7). Contents (8) The person who conducts a performance audit shall prepare a written report that includes, (a)  a copy of the person’s certificate of authorization within the meaning of the Professional Engineers Act
or certificate of practice within the meaning of the Architects Act, as the case may be; (b)  details of the inspection and findings made by the person in the course of conducting the audit; (c)  a statement that the person has reviewed all final reports described in clause (5) (c); (d)  a copy of the survey described in clause (5) (d) and a summary of the results of it; (e)  the determination that subsection (4) requires the person to make; and (f)  all other material that the regulations require. 1998, c. 19, s. 44 (8); 2015, c. 28, Sched. 1, s. 146 (1). Submission of report (9) Before the end of the 11th month following the registration of the declaration and description, the person who conducts a performance audit shall, Note: On a day to be named by proclamation of the Lieutenant Governor, subsection 44 (9) of the Act is amended by striking out the portion before clause (a) and substituting the following: (See: 2015, c. 28, Sched. 1, s. 37 (7)) Submission of report (9) Before the first anniversary of the date of registration of the declaration and description, or such other time periods following the registration of the declaration and description that are prescribed, the person who conducts a performance audit shall, (a)  submit the report to the board; and (b)  file the report with the Corporation within the meaning of the Ontario New Home Warranties Plan Act
if the property is subject to that Act. 1998, c. 19, s. 44 (9). Note: On a day to be named by proclamation of the Lieutenant Governor, clause 44 (9) (b) of the Act is repealed and the following substituted: (See: 2017, c. 33, Sched. 2, s. 75 (12)) (b)  file the report with the warranty authority if the property is subject to the Protection for Owners and Purchasers of New Homes Act, 2017. Claim under other Act (10) The filing of the report with the Corporation within the meaning of the Ontario New Home Warranties Plan Act shall be deemed to constitute a notice of claim that the corporation gives to the Corporation within the meaning of that Act under the regulations made under that Act for the deficiencies disclosed in the report. 1998, c. 19, s. 44 (10). Note: On a day to be named by proclamation of the Lieutenant Governor, subsection 44 (10) of the Act is repealed and the following substituted: (See: 2017, c. 33, Sched. 2, s. 75 (13)) Claim under other Act (10) The filing of the report with the warranty authority shall be deemed to constitute a notice of claim that the corporation gives to the warranty authority under the regulations made under the Protection for Owners and Purchasers of New Homes Act, 2017 for the deficiencies disclosed in the report. 2017, c. 33, Sched. 2, s. 75 (13). Section Amendments with date in force (d/m/y) 2015, c. 28, Sched. 1, s. 37 (1-7) - not in force; 2015, c. 28, Sched. 1, s. 146 (1) - 01/09/2017 2017, c. 33, Sched. 2, s. 75 (9-13) - not in force; 2017, c. 33, Sched. 2, s. 79 (9-12) - not in force Owners