Licence security requirements to be hiked shortly

August 17, 2016

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Effective September 18, 2016, anyone wishing to obtain a general contractor licence will be required to first provide security of at least $40,000. The amount will be $20,000 for specialized contractors. Effective January 21, 2017, the Regulation to amend the Regulation respecting the professional qualification of contractors and owner-builders also amends the description of the work authorized for some contractors specialized in heating, ventilation and refrigeration.

On July 20, 2016, following a lengthy review period, particularly before the Régie du bâtiment du Québec (Board), the government passed a regulation to amend the Regulation respecting the professional qualification of contractors and owner-builders.¹ The amendments mainly deal with two matters.

Firstly, as indicated at the outset, the amount of the security required to be provided by contractors under law² will be doubled, effective September 18, 2016.³The increase aims to reflect that of the value of contracts since such obligation was introduced. However, the purpose and mechanics of the security remain the same: it aims to compensate clients who sustain a loss following non-performance or performance of construction work if the loss results directly from instalments paid, failure to carry out construction work or faulty work or defects discovered in the year following completion of the work. The security does not cover the claims of persons who took part in the construction work, damages resulting from delays in construction work, damages for moral injury or punitive damages.⁴ In addition, the client who suffered a loss must obtain a judgment before making a claim before the Board. However, the exemption for contractor dealing in new residential buildings covered by a guaranty plan, Class I or II remains.⁵

The increase of the security threshold is only effective for the provision of a new security or upon renewal of a licence: a contractor who currently holds a licence is required to provide the new amount of security only from the expiry date of the payment of the fees and charges payable to maintain the contractor’s licence.⁶ The new security will then replace the former security without it being necessary to give the notice otherwise required by law.⁷

Secondly, the amending regulation makes some adjustments to the description of the work which holders of some licence subclasses, regarding heating, ventilation and refrigeration work. Many of those adjustments concern language: “warm air” and “hot water and steam” systems will be referred to respectively as “pulsed air” and “hydronic” systems. As to substance, two amendments, scheduled to come into force on January 21, 2017⁸ must be noted. One is that contractors who specialize in natural gas burners will also be allowed to perform work on propane burners. This amendment, which concerns subclasses 15.2 and 15.4 of Schedule II, reflects the harmonization of applicable standards within the industry. Also, a contractor who perform works on systems which allows both heating and air-conditioning, whether on a pulsed air or hydronic system, must henceforth hold the necessary competences for both systems. This amendment concerns subclasses 15.1, 15.1.1, 15.4, 15.4.1, 15.7, 15.8, 15.9 and 15.10 of Schedule II.

In case of doubt as to the determination of the relevant subclass, the client relations department of the Régie du bâtiment du Québec should be consulted. Lavery has the necessary knowledge and experience to assist you in your dealings with the Board. Do not hesitate to contact us.

Order in council 703-2016 dated July 6, 2016, GOQ.II.2968, rectified by GOQ.II.4711 [the Order in council] adopting the draft Regulation to amend the Regulation respecting the professional qualification of contractors and owner-builders, GOQ.II.2359 dated July 22, 2015 amending the Regulation respecting the professional qualification of contractors and owner-builders, CQLR c B-1.1, r 9 [the Regulation].
Building Act, CQLR c. B-1.1, section 84.
Order in council, sections 1 and 11(1).
Regulation, section 25.
Regulation, section 26.
Order in council, section 11(2).
Order in council, section 10.
Order in council, section 11 para. 1.

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Written by

Laurence Bich-Carrière
Partner, Lawyer

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December 5, 2022

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October 12, 2022

Sales without legal warranty at the buyers’ risk: Clarity is key

On July 15, 2022, Justice François Lebel of the Court of Québec rendered a decision1 confirming that, in the case of the sale of immovable property, a clear and unambiguous exclusion clause, whereby the warranty is waived at the buyer’s risk, results in a break in the chain of title preventing the buyer from taking any legal action under such warranty against the seller and previous sellers. Justice Lebel thus declared the originating application against the defendants Marshall and Bergeron inadmissible and dismissed the call in warranty. This decision is consistent with the recent decision of the Court of Appeal of Quebec in Blais,2 rendered in May 2022, which clarified the state of the law on the consequence of waiving a legal warranty where successive sales are involved. The facts In March 2009, the defendant Bergeron sold an income property (hereinafter the “Property”) to the defendants, the Marshalls, with a legal warranty of quality. 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Kravitz, [1979] 1 S.C.R. 790 Supra note 1, paras. 6 and 8.

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Cannabis legalization | Lessors : what steps should you take?

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On June 12, 2018, the Quebec government adopted the Cannabis Regulation Act2 (hereinafter referred to as the “Act”) to complement the Cannabis Act. Section 107 of the Act states the following: 107. A lessor may, until 15 January 2019, modify the conditions of the lease of a dwelling by adding a prohibition against smoking cannabis. [Our emphasis] To that end, the lessor must give the tenant a notice of modification describing the prohibition against smoking cannabis applicable to the use of the leased premises. The tenant may refuse the modification for medical reasons. The tenant must do so by informing the lessor of the refusal within 30 days after receiving the notice of modification. In such a case, the lessor may apply to the Régie du logement, within 30 days after receiving the notice of refusal, for a ruling on the modification of the lease. In the absence of a refusal, the prohibition is deemed entered in the lease 30 days after the tenant received the notice of modification. In light of this provision, any lessor may take the necessary measures to prohibit the use of cannabis on the leased premises of residential rental properties before January 15, 2019. More specifically, what steps must lessors, who wish to assert their right to modify a lease unilaterally, take before January 15, 2019, under section 107 of the Act? 1. Draft a clause amending the lease. Lessors must first draft an amendment clause for the leases that they wish to amend to include the prohibition against smoking cannabis on leased premises, including, without limitation, balconies. The amendment clause need not extend the prohibition against smoking cannabis to common areas such as halls and lobbies, given that such a prohibition is already provided for under section 12, paragraph 8 of the Act. 2. Send a notice of modification to the tenants. Once this amendment clause is drafted, lessor must send a written notice of modification to all tenants, to the address indicated in the lease, before January 15, 2019. The notice of modification should include the following: Name and surname of the tenant or tenants concerned; Section 107 of the Act (full text); The exact text of the modification to the lease; and The lessor’s signature and the date on which they have signed the notice of modification. Although no specific requirement in this regard is provided for in either the Act or the Civil Code of Québec, it is recommended that lessors indicate the consequences that tenants face if they fail to comply with the prohibition against smoking cannabis in the notice of modification. These consequences may include the resiliation of the lease in a case where the other tenants’ right to the peaceable enjoyment of the premises has been violated3. 3. 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In the absence of a refusal by the tenant (the tenant may, for medical reasons, refuse the modification proposed by the lessor under section 107 of the Act), and following a 30-day period from the receipt of said notice, the prohibition against smoking on leased premises will be deemed to have been entered in the lease. What happens if a lessor fails to assert their right to unilaterally modify a lease under section 107 of the Act before January 15, 2019? Any lessor who does not send the notice of amendment before January 15, 2019 will have to wait until the expiry of the current lease and will be subject to the general provisions of the Civil Code of Québec for the amendment of a residential lease, unless an agreement is reached with the tenant. Commercial Leasing Are lessors of commercial rental properties, like lessors of residential rental properties, required to take a particular action before a given date? Lessors of commercial rental properties cannot benefit from the right to modify leases unilaterally set out in section 107 of the Act. However, paragraph 17 of section 12 of the Act provides that smoking is prohibited in enclosed spaces that are open to the public, such as office buildings and shopping centres. Moreover, it is possible for the owners of commercial buildings to consider an amendment to the rules and regulations of the buildings in order to prohibit the use of cannabis on leased premises as well as in common areas. In this regard, lessors of commercial buildings would be well advised to immediately adopt a policy in line with the policy adopted regarding the use of tobacco on leased premises and in common areas, if appropriate. Cannabis Act, S.C. 2018, c. 16 Cannabis Regulation Act, CQLR, c. C-5.3 Chartier v. Chassé, 2018 QCCQ 2823

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