Court of Appeal of Quebec

MVP Rénovation (2009) inc. c. Garantie de construction résidentielle (GCR)

Gagnon, Moore, Cournoyer

Appeal from a judgment of the Superior Court allowing in part an application for judicial review of an arbitral award. Allowed.

Following a contextual analysis, the arbitrator quashed a decision rendered by the respondent, who had found that the appellant contractor was required to register the owners’ building with its guarantee plan, even though it was a self-build project and the appellant had participated as only a specialized contractor. Preferring a literal application of the Regulation respecting the guarantee plan for new residential buildings, (CQLR, c. B-1.1, r. 8), the reviewing judge deemed that it applied to the appellant simply because it had a general contractor’s licence in addition to its specialized contractor’s licence. The reviewing judge was thus of the view that the arbitrator erred in requiring the respondent to establish that the appellant acted as a site supervisor or controller.

The judge’s solution is not the only possible interpretation of the applicable law, and moreover, the arbitrator’s solution appears preferable. Indeed, the only category of contractor to which the Regulation refers is a contractor holding a general contractor’s licence, without further describing the characteristics of a general contractor. For a definition of this category of contractor, it is necessary to refer to the Regulation respecting the professional qualification of contractors and owner-builders, (CQLR, c. B-1.1, r. 9). In this regard, the Regulation respecting the guarantee plan for new residential buildings contains an implicit, but obvious, reference to that regulation. The Regulation respecting the professional qualification of contractors and owner-builders makes a distinction between general contractors and specialized contractors based on the primary role of the former on the site, that is, the "organizing" and "coordinating" of work. In that context, there was nothing preventing the arbitrator from taking note of that distinction provided by the Regulation respecting the professional qualification of contractors and owner-builders to interpret and apply the Regulation respecting the guarantee plan for new residential buildings.

Indeed, coherence between these two regulations requires that the characteristics tied to each category of contractor be consistent, all the more so considering that the regulations in question are made under the same enabling statute. That approach, preferred by the arbitrator, did not add anything to the Regulation respecting the guarantee plan for new residential buildings or contradict it. The judge therefore erred in stating that there was no support in the relevant regulations for the arbitrator’s decision. Finding that a contractor covered by the Regulation respecting the guarantee plan for new residential buildings is a general contractor regardless of the distinctive characteristics of that category would be at odds with the subject of the regulation, that is, contracts for "for the sale or construction" of new residential buildings. We do not generally expect the main activity of specialized contractors to be the construction or sale of new residential buildings. Moreover, such an approach would lead to numerous problems of application.

Text of the decision: http://citoyens.soquij.qc.ca

 

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