Statutory liability: Quebec s new world order. Me Yvan Houle. CBA-CLE 2012: Looking to the Future of Construction St-John s, Newfoundland

Transcription

1 Statutory liability: Quebec s new world order Me Yvan Houle CBA-CLE 2012: Looking to the Future of Construction St-John s, Newfoundland

2 The new face Major projects faced with either significant cost overruns or delays or both; Noticeable price differential with other jurisdictions; Various cases of alleged or perceived corruption in the construction industry: Montreal: award of the contract for water meters; Terrebonne: contractor s relationship with the mayor. Pressure mounted to look into the matter and create a commission of inquiry;

3 The new face Initially, legislative : Loi prévoyant certaines mesures afin de lutter contre la criminalité: December 2009; Loi visant à prévenir, combattre et sanctionner certaines pratiques frauduleuses dans l industrie de la construction et apportant d autres modifications à la Loi sur le bâtiment: December Followed by Commission of Inquiry: Charbonneau Commission.

4 Quebec s construction industry: Extremely regulated: Labour Relations, Vocational Training and Workforce Management in the Construction Industry, c.r-20; Union placement ; Building Act, RSQ c. B-1.1.

5 Building Act: Licensing regime for general and specialized contractors; Captures construction work ; Prohibits anyone from tendering or executing construction work without a license; Licensing Body : Régie du bâtiment; The Régie will issue a license to those who satisfy the criteria set out in the Act and the Regulation respecting the professional qualification of contractors and ownerbuilders.

6 Building Act: Application is made by a guarantor ; Person (Individual or corporation) seeking a licence must show: Not convicted of certain specified offences; The operation meets minimal financial criteria; The directors were not previously directors of a previously bankrupt business; They are not acting for someone else ( prête-noms ). If not satisfied: License will not issue or it may be suspended or cancelled;

7 Building Act: Prior offences; Related to offences under the Income Tax and certain summary conviction offences; The infractions had to be related to the licensee s construction activities and could not be more than 5 years old.

8 Building Act: Amendments have extended the reach : The conditions must be satisfied by: The applicant and the holder of the licence. Prior: specified offences All criminal offences. Added criminal code offences: and CC (gangsterism/organized crime); Except gangsterism, the offence(s) must still be related to the person s construction activities.

9 Building Act: Changes are not retroactive but of immediate application; Will not cancel a license retroactively but can result in immediate cancellation of a license for an offence dating back 5 years.

10 Building Act: Restrictions on ability to bid on public projects; If convicted of offence pursuant to R-20: Failure to declare the hours to the CCQ; Failure to have the work carried out by proper trade competency card ); Restricted license ; Barred from bidding on any public contracts for up to 2 years; New measures have extended the definition of public contract to include: Government ministries; Health and education sectors; Municipal sector.

11 New offence under R-20: union placement Offence for anyone to intimidate or threaten another in order to provoke a stoppage or slowdown of the site s activities; $1,000 to $10,000 fine.

12 Stricter licensing requirements: Applicant must submit with the application all of the information pertaining to any prior convictions; Relates to the directors, shareholders and lenders; RBQ may refuse to issue a license if it is contrary to the public interest ; Restricted license where one of the licensee s directors is also a director of another contractor which has a restricted license Notion of contamination. Can avoid the sanction: establish that the offence that led to the offence is unrelated to the construction related activities;

13 Stricter licensing requirements: Prohibition to continue any public contract if its license is restricted; Only permitted to continue the work if it obtains the RBQ s authorization; It is the owner who must apply for same within 20 days; If authorization is obtained: continue the project but cannot bid on any other public contracts.

14 Stricter contracting requirements: Attestations to be supplied on public contracts: If untrue, the public contracting body can cancel the contract; Attestation concerning the probity (i.e. competition/collusion): Declares that he has not been convicted of a Competition Act related offence; Declares that his bid was prepared without any involvement of its competitors; Genivar vs. Procureur général, 2011 QCCS 3802.

15 Quebec s New World Order: Investigative Unité permanente anti-corruption (UPAC): Was created on 18 of February 2011 in to various allegations concerning questionable practices related to the award of public contracts; March 2011: Commissioner was appointed; June 13, 2011: Anti-Corruption Act, RSQ c. L-6.1.

16 Quebec s New World Order: Investigative Unité permanente anti-corruption (UPAC): The power and obligations of the Commissioner are: To receive and examine any complaints concerning wrongdoing and to carry out the appropriate follow-up; To coordinate the activities of the investigated unit; To initiate any investigations which may be required; To formulate any recommendations which he deems may be advisable to award a contract and the conditions for same; Recommend to the minister and any public authority with respect to any measure that may alleviate or facilitate investigations.

17 Quebec s New World Order: Investigative Unité permanente anti-corruption (UPAC): The Act defines wrongdoing : 1) a contravention of a federal or a Québec law or of a regulation made under such a law, if the contravention pertains to corruption, malfeasance, collusion, fraud or influence peddling in, for example, awarding, obtaining or performing contracts granted, in the exercise of their functions, by a body or a person belonging to the public sector; (2) a misuse of public funds or public property or a gross mismanagement of contracts within the public sector; or (3) directing or counselling a person to commit a wrongdoing described in paragraph 1 or 2.

18 Quebec s New World Order: Investigative Unité permanente anti-corruption (UPAC): Whistleblower provisions; Allows any person to disclose any wrongdoing to the Commissioner that an act has been or is about to be committed; Offence to sanction any person for making such a disclosure: Fines: $2k-$20K for an individual; $10K -$250K for a corporation.