Canada: Bill 162 Charbonneau Commission Recommendations

The Province of Québec has long had a licensing regime to qualify its construction contractors. The Building Act1and its regulations set out the licensing requirements pursuant to which a contractor or a subcontractor looking to legally carry out construction work in the province must have a licence to do so.

In addition to validating the qualifications of the contractors operating in Québec, the regime looked to ferret out and prohibit unlicensed construction work. It was one of many measures implemented to counter the growth of illegal construction activity outside of the province's statutory and regulatory framework. One such measure was to preclude a corporation in violation of various tax and criminal code provisions from qualifying to bid on the province's public projects.

Following an extensive investigation into corruption in the construction industry, the Charbonneau Commission released its report in November 2015, which included a number of recommendations to increase oversight of the industry and alleviate corrupt activity in the future.

The provincial government recently tabled Bill 162 titled "An Act to amend the Building Act and other legislative provisions mainly to give effect to certain Charbonneau Commission recommendations" which, among a number of other changes, amends the licensing regime in order to reflect and implement a number of the Charbonneau Commission's recommendations. The measures look to reinforce the Régie du Bâtiment du Québec's ("RBQ") ability to assess and oversee a contractor and/or its principals' integrity.

The licensing regime requires that a corporation seeking a licence must be sought by an individual who acts as its "guarantor" for licensing purposes. A corporation can have a number of different guarantors who qualify the licensee in specific spheres of activity: technical, administrative, health and safety and project and site management.

The guarantor must be an "officer" of the corporation (which is now defined as a director), an officer, as defined in the provincial corporate statutes, or a shareholder holding 10 per cent or more of the voting rights of the corporation's shares.

The amendments also clarify the guarantor's statutory responsibilities, which include who must be responsible for managing the activities for which he/she has qualified the licensee. The guarantor is now responsible for the corporation's interactions and ensuring that the corporation complies with its obligations vis-à-vis the RBQ. A failure by the guarantor to comply with his/her obligations under the Act or making a false declaration may now result in the suspension or cancellation of the licence. These measures look to curtail those situations where corporations appointed guarantors strictly for licensing purposes, but who, in fact, played no role in the management of the corporation's construction activities.

Setting a 10 per cent voting share ownership threshold now places said shareholder within the RBQ's scrutiny when assessing whether a corporation and its officers meet the integrity test set out in the legislation.

The RBQ's authority to assess a potential licensee's probity and its discretion to either refuse to issue or cancel an existing licence have grown. The RBQ can refuse to deliver a licence where it considers that the construction work for which the licence is sought is incommensurate with the operation's sources of financing or that its corporate structure enables the potential licensee or any another person to evade the application of the Building Act. Moreover, the RBQ can refuse to deliver a licence where a person or an officer of the corporation has, in a previous licence application, falsely, misrepresented or failed to report a fact in order to obtain a licence. It can also refuse the licence where it considers that applicant is the continuation of another person that would not have otherwise qualified for a licence.

The amendments also provide that regulations will be enacted which will require all licensed contractors to provide both performance and labour and material payment bonds to ensure that construction work and payments will continue in the event that a licence is either cancelled or suspended.

The Charbonneau Commission had recommended enhanced "whistle-blower" protection in order to eradicate the culture of silence that has enabled the systemic corruption the inquiry uncovered. To that end, Bill 162 will add a new division to the Building Act named "Immunity and protection against reprisals." Any person who notifies or advises the RBQ of actions or omissions which may constitute a violation of the licensing scheme is shielded from civil liability for having done so and is protected from any threats of and actual reprisals, including any made in the course of that person's employment.

While these measures have yet to be implemented, they will likely be welcomed as there has been some concern in Québec about the government's willingness to follow through with the Charbonneau Commission's recommendations. With Bill 162, the Québec government confirms its intention of staying the course established by the Charbonneau Commission.

Footnotes

1 RSQ , c. B-1.1.

About BLG

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions