© Dolden Wallace Folick LLP
VIII. CGL COVERAGE AVAILABLE TO A BUILDER: BC VERSUS ONTARIO
While every case must necessarily be determined on its facts with reference to the exact
wording of the applicable policy provisions, it appears that, at least in Ontario, it is
likely that a builder will be entitled to coverage under his CGL policy for costs incurred
due to duties of repair imposed on him by the Ontario Act. The question is, does this
extend to British Columbia builders operating under British Columbia’s home warranty
regime? In our view, it does not.
As set out above, the Ontario Act reposes builders with certain statutory obligations in
respect of new home construction. In particular, the Ontario Act deems certain
statutorily constituted warranties to be included in every contract of purchase and sale
between a builder and the purchaser of a new home. Further, the Ontario Act
prescribes standards which the builder is required to adhere to in order to become
licensed to build new homes in Ontario. While Tarion backs the obligations and
responsibilities of the builder and will step in if the builder fails to honour his
obligations, primary responsibility to effect the repairs lies with the builder.
4
In contrast, the BC Act is merely a legislative framework for mandating a homeowner’s
warranty. It does not prescribe performance standards that a builder is required to
ascribe to. Rather, the BC Act prescribes the minimum requirements that must be
covered by warranty and contains a general requirement that the form of private third
party insurance be approved by the HPO then leaves the specifics to be determined by
the FICOM-approved warranty providers (insurers). It is true that the warranty
provider can (and often will) enter into an indemnity agreement with the builder
entitling it to sue the builder to recover its costs if the builder’s work turns out to be
defective (including the costs it incurs in investigating, negotiating, settling or litigating
its claim). However, unlike the situation in Ontario, under the applicable legislation,
ultimate responsibility for ensuring the minimum warranty requirements are met
resides with the warranty provider, not the builder. Any right of recovery on the part
of the warranty provider arises by virtue of its contractual agreement with the builder;
it is not a right prescribed by statute.
In our view, the indemnity agreement between warranty provider and its member-
builder is an agreement assumed by contract and, as a result, a warranty provider’s
claim against a builder brought pursuant thereto would most likely be excluded from
coverage under a typical CGL policy by virtue of the contractual liability exclusion.
4
The Ontario Act does give Tarion the right, upon paying a homeowner’s claim, to sue the builder
alleging a breach of the statutorily mandated performance standards. Such a claim would be a breach of
contract claim for failure to adhere to the prescriptive performance standards (not to recover on a
contractual indemnity).