Since 2013, Quebec's construction commission, the
Commission de la construction du Québec (CCQ), has
require employers in the construction industry to use a web-based
referral service called the "Carnet
référence construction" to fulfill their
manpower needs. This recruitment tool replaces the now illegal
practice of employers contacting a union directly to obtain the
services of one or more construction workers. In order to ensure
the accuracy of the information contained in the online referral
database, known simply as the "Carnet", the regulations
under the Act respecting Vocational Training and Workforce
Management in the Construction
Industry1 mandate the sending of hiring and
layoff notices by employers.
Since January 2014, in order to ensure compliance with this
obligation, the CCQ has sent out thousands of statements of offence
imposing fines of between $1,039 and $2,0792, to the
dismay of countless contactors. Under the circumstances, we thought
it appropriate to bring to your attention two recent decisions
where the contractors involved successfully contested the
statements of offence they received3.
The contractors were accused of failing to notify the CCQ of the
hiring of a worker. They each contested he statement, submitting a
single argument in their defence: the prosecutor was unable
to prove the specific date on which the offence had occurred. The
prosecutor maintained that proving that date was irrelevant, as the
offence had been ongoing on a daily basis, arguing that it was
sufficient to show that at any given point during that time period,
the employer had been guilty of the offence.
The Court of Québec sided with the employers: this was a
discrete offence that by definition had to have occurred at a
specific point in time. The regulation stated that the notice was
to be sent within 48 hours of the worker's hiring, not counting
Saturdays and Sundays. According to the logic inherent in the
regulation, the offence would therefore occur upon the expiration
of that 48-hour period. The date of the offence thus had to be
proved beyond a reasonable doubt. The other elements of the offence
that the prosecution had to prove were the status of employer, the
status of employee, performance of work by the employee, the
latter's hiring, and that the work performed was subject to the
In light of these decisions, it can be concluded that the
prosecution's burden in cases of an alleged failure to send a
notice of the hiring, layoff or voluntary departure of an employee
includes proving the date of the offence beyond any reasonable
It should be stressed that it is nevertheless important to
diligently respect the directives and deadlines imposed by the CCQ.
For one thing, the CCQ is going to remedy this particular
evidentiary shortcoming sooner rather than later and, furthermore,
failure to comply with these regulations constitutes an offence
with very sizable fines for what is, more often than not, merely an
Given the rapid development of the case law concerning notices
of hiring and layoffs, we recommend that you consult a lawyer if
you receive a statement of offence from the CCQ. Also please note
that if you decide to contest the statement, you must register a
plea of not guilty within 30 days of receiving it.
Written in collaboration with Georges Samoisette Fournier,
1 CQLR, c. R-20
2 Ibid, s.119.0.2
3 Directeur des poursuites criminelles et
pénales (DCPC) v. Maçonnerie D. Tremblay
Inc, N° 240-61-031699-154, District of Charlevoix, Justice
of the Peace Nathalie Duperron Roy, April 11, 2016; Directeur
des poursuites criminelles et pénales (DCPC) v.
9168-5701 Québec Inc., N° 240-61-031699-158,
District of Charlevoix, Justice of the Peace Nathalie Duperron Roy,
April 11, 2016.
This article originally appeared in French in the April 27,
2016 edition of the bulletin "Les experts de la
construction" published by the Association patronale des
entreprises en construction du Québec.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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