Legislative Requirements

 

Section 44 (1) of the Condominium Act of Ontario:

 

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).

 

Time for audit

 

(2) A performance audit shall be conducted no earlier than six months, and no later than ten months, following the registration of the declaration and description. 1998, c. 19, s. 44 (2).

 

Cost

 

(3) The corporation shall pay the cost of the performance audit and it shall for 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.

 

(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

 

(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).

 

Duties

 

(5) In making the determination, the person who conducts the performance audit shall,

 

(a) inspect the major components of the buildings on the property which, subject to the regulations made under this Act, 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 made under this Act, inspect the landscaped areas of the property;

 

(c) review all final report in inspections that the Corporation within the meaning of the Ontario New Homes Warranties Plan Act requires be carried out on the common elements; 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

 

(ii) defects in the common elements that may cause damage to the units. 1998, c. 19, s. 44 (5)

 

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 me;

 

(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 materials that the regulations made under this Act require. 1998, c. 19, s. 44 (8).

 

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,

 

(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).

 

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 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).