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Responsibilities common to all guarantors

Probity

According to Le Petit Robert dictionary, probity is defined as the “adherence to the highest principles and ideals: UPRIGHTNESS”, and this reference gives for this word the synonym of HONESTY. Probity must be at the core of the company’s ethics. For the guarantor, whether it is in an individual capacity or as a mandatory of a partnership or legal person, this translates into the following requirements:

  • Compliance with the laws and the regulations
  • A conduct which is both honest and respectful towards clients and the various stakeholders of the construction community
  • Practices which reflect a constant concern with the safety of the public in its access to buildings and to facilities which the company builds, renovates or transforms (this is addressed in particular to guarantors in project management and work sites and to technical guarantors).

From these basic criteria, one can identify certain behaviours which are inconsistent with the existing laws and, automatically, which influence the probity of a construction company.

As an example, one can contend that a construction company does not meet the criteria of probity when one of its officers, and more so a guarantor:

  • Does not meet the terms of the agreement entered into with his/her client without a serious reason and without notice, in particular the terms regarding the schedule(s) and the quality of the materials
  • Abandons the work site, or interrupts, with no substantive reason, the construction work
  • Interferes in any way with the workflow or the activities of other stakeholders on the work site
  • Uses the partial payments paid by the client to other means than those which have been planned
  • Uses intimidation of any kind with his/her client or with the other persons taking part in the work
  • Produces false invoices or is accessory to such a practice
  • Acts as guarantor of convenience
  • Is convicted of certain criminal acts, in particular those which are connected with gangsterism.

To sum up, a guarantor can affect the probity of the company when he/she contravenes legislations, in particular those governing the construction industry.

Maintenance of the guarantor’s qualifications

Since the guarantor represents the security ensuring to the RBQ and the public that the company has sufficient knowledge or relevant experience in managing a construction business, the guarantor must see to maintain his/her knowledge and qualifications up to date.

Involvement within the company

It is first and foremost through his/her genuine and constant involvement within the company and through his/her management practice that a guarantor demonstrates that he/she fulfills adequately such functions. His/her regular presence at the company’s place of business or at its active work sites is a demonstration of such involvement. When the guarantor is a full time manager, he/she must be a salaried worker whose shift corresponds to the regular business hours of the company. If he/she delegates these tasks to one or several persons, the guarantor must make sure that these persons are both skilled and honest, and he/she must also exercise adequate control over their activities. Indeed, the guarantor remains accountable for his/her field of activity and shall be summoned to answer for the company if the RBQ needs to take any action with it.

The guarantor of convenience

A guarantor of convenience or nominee is a person who accepts to be qualified as guarantor for a company, whether this is in exchange for benefits (remuneration, as an act of grace [favours], etc.) or gratuitously, without being genuinely involved with the management of this company. 

A guarantor of convenience exists insofar as an accommodating company hires him/her, or calls upon his/her services, in this capacity, which renders such company an accomplice.

The licence of a company which uses the services of a guarantor of convenience may be suspended or cancelled by the Régie du bâtiment du Québec. Such a suspension or cancellation can have adverse consequences for any construction company having among its executives such a former guarantor of convenience. Indeed, this company could lose its contractor’s licence, or have an application for licence rejected, pursuant to subsections 3° and 4° from article 61 of the Building Act and also to its article 70.

Furthermore, the guarantor of convenience and the company using the services of such a person may both incur criminal penalties which are set out by the Building Act for anyone who makes a false representation in view of being granted a licence.

All of the construction industry stakeholders must remember that the presence and use of guarantors of convenience undermines the credibility of the qualification system and, automatically, of the licence holders.

Lastly, it is important to note that under the Building Act, it is mandatory for a partnership or legal person’s guarantor to notify the RBQ when he/she ceases to act in this capacity (please refer to Section 67 of the Building Act).

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