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Responsibilities of guarantors

You have just qualified yourself as a guarantor for a construction company. This means that the Régie du bâtiment du Québec (RBQ) has made a verification of your probity and that you have demonstrated your qualifications through the established channels, for instance, by successfully taking one or several different examinations or a recognized training program. However, acting as guarantor with regard to a specific field of qualification requires more.

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.

Mandatory continuing education

The Regulation respecting the professional qualification of contractors and owner-builders has been amended. As of April 1st, 2022, targeted guarantors will be required to take a specific number of hours of continuing education to maintain their qualification. See Keeping knowledge and skills up to date for more details.

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).

Responsibilities with regard to the fields of qualification

Administration guarantor

The administration guarantor plays a key role in the management of the construction company, in terms of its financial health and compliance with the administrative responsibilities which are set out by the various laws governing the construction companies.

Among these responsibilities, the administration guarantor must ensure namely that:

  • The payment of the fees and expenses for the maintenance of the licence is being made
  • The various notices set out by the Building Act are transmitted, in particular those which concern the modification of the company’s structure or any other situation resulting in the company not meeting anymore the criteria for obtaining a licence
  • the file is updated [Fr] as soon as there is a change in the company (change of address or guarantor, change of lender or stakeholder)
  • The licence number is being displayed at all times in the company’s advertisement, on its quotations and bids, as well as on its contracts and statements of account (to the exception of the guarantor of an electrical contractor or a plumbing or heating contractor, since these are exempted from this requirement under the Regulation respecting the application of the Building Act, since another form of mandatory displaying is required by their incorporating statute)
  • The return to the RBQ of the company’s licence if it has been suspended or cancelled, or if it is no longer in effect due to the company going bankrupt or any other reason
  • The deduction from the wages of the company’s employees, if applicable, as well as the payment of such deductions to the Commission de la construction du Québec and to the Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST)
  • The payment to the authorities responsible for collecting GST and QST, if applicable
  • The continuance of the licence security, as well as the keeping in force of a guarantee plan certificate, in the case where the construction company builds residential dwellings.

Construction site safety management guarantor

The role of the construction site safety management guarantor is to take every necessary measure to protect the health and safety of the workers or subcontractors operating on the work sites coming under the responsibilities of the company which the guarantor qualifies. To this end, they warrant the respect of the company’s duties and responsibilities with regard to the Act Respecting Occupational Health and Safety (AROHS), the Safety Code and the Act respecting industrial accidents and occupational diseases.

If the company has at least 1 worker, within the meaning of the AROHS, the guarantor must ensure that this worker is registered with the Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST).

If the company which the guarantor warrants is an employer, the guarantor must ensure that a prevention program was formulated, as set forth by the AROHS.

This program must provide in particular for the following activities:

  • Identifying the hazards, through various means, at each stage of the work
  • Eliminating at the source these hazards through the implementation of safe work processes
  • Informing and training the workers
  • Auditing the compliance of the measures set up, as well as the compliance to the applicable laws and regulations.

When the company which the safety field guarantor warrants is the general contractor of the construction site, the guarantor must ensure that the measures provided for by the AROHS and by the Safety Code are being enforced. These responsibilities are in addition to those that the company must fulfill as an employer.

Occupational injuries and diseases

If the company employs salaried workers, the guarantor must know about the provisions of the Act respecting industrial accidents and occupational diseases and ensure that the claiming procedure provided for in case of an accident or an occupational disease is being enforced.

Interventions by the CNESST

The regional directorates of the CNESST are responsible for the enforcement of the AROHS and its regulations. The Construction action plan [Fr]This link open an external website of the Régie du bâtiment du Québec in a new window. issued by the CNESST emphasizes aimed hazards such as falls, collapsing of structures, occupational accidents near power lines and hazards involving exposition to asbestos fibers or crystalline silica (quartz) dust. The inspectors also verify chiefly the use of personal protection equipment, and issue statements of offence to faulty workers.

Project and construction site management guarantor

The project and construction site management guarantor warrants the company with regard to planning, organizing, managing, controlling and assessing the building projects activities as a whole.

In this capacity, the guarantor must ensure that a constant interaction exists between the various stakeholders for the sake of harmonizing the needs and requirements of each, within the budgets and deadlines provided for.

For instance, such a guarantor would warrant the company with regard to the following:

  • Negotiating an agreement with the work provider taking into account his needs, but also the expertise limits of the company
  • Carrying out a written agreement respecting the terms and conditions of the verbal agreement, except where it is not feasible to do so (e.g., for an emergency repair)
    Complying with the provisions of the agreement, in particular with regard to the materials and the deadlines provided for
  • Negotiating contracts with subcontractors holding the licence subclasses appropriate to the work to be performed
  • Complying at all times with the standards, the regulations and the provisions of the Quebec Construction Code, and observing good practice, in collaboration with the construction work performance guarantor
  • Sending the various statements of work and the certifications provided for in the Construction Code or by specific laws, in collaboration with the administration guarantor
  • Controlling the quality of the work and, along with the construction work performance guarantor, managing any incident occurring after the work
  • Inspecting the whole of the work with the work provider
  • Creating a list of work to complete or correct, if required, including their schedule, performance details and delivery
  • Obtaining from the work provider a written confirmation of the acceptance of work.

Construction work performance guarantor

The construction work performance guarantor warrants the consistent enforcement, by the company as well as its subcontractors, of standards, regulations and construction techniques which are specific to the work covered by the licence subclass which the guarantor is qualifying, and this through regular collaboration with the project and work site management guarantor.

Once the guarantor has evaluated the material and human resources available to the company for the work site, he must ensure the following:

  • The review of the plans and specifications (in collaboration with the project and work site management guarantor)
  • The enforcement of the procedures related to the performance of the work in compliance with the provisions of the Construction Code and all applicable standards, particularly:
    • the technical procedure to follow to perform the work
    • the scheduling of the activities of the operating entities (in collaboration with the project and work site management guarantor)
    • the compliance with the health and safety regulations (in collaboration with the health and safety management guarantor)
  • The clarity and accuracy of all communications with the employees, the subcontractors and the other companies which can be present on the work site, regarding instructions on methods and precautionary measures to apply, as well as their observance
  • The meeting of the requirements pursuant to the procedures, the production of documents and the exchange of communications relevant to the contract, such as notices of modification to the work.

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