The choice of the corrective method

A deficiency eligible for warranty coverage affects a new building recently delivered and the administrator of the regulated warranty plan is involved in the case. Who is responsible for choosing the corrective method in the context of the application of Regulation on the guarantee plan for new residential buildings ?

Whether as a result of the administrator's decision or an arbitration award, one observation must be made: corrective work must be carried out by the contractor or, failing that, by the administrator. As for the work required, the beneficiary wishes to impose a correction method different from that suggested by the contractor under the pretext of being now the owner. Can he do it?

First of all, remember that a regulated warranty plan guarantees some of the contractor's obligations, which are provided for in the Regulation. However, with the exception of monetary payments for indemnities that may be awarded in the event of late delivery or while corrective work is being carried out, repayments of deposits or reimbursements for urgent and conservatory works¹, the compensation recommended by the Regulation, in short, what is guaranteed, is the carrying out of corrective work in respect of the eligible deficiencies that affect the building.

We are therefore talking about compensation in cash where, if the contractor fails to perform, the completion of the corrective work required by the administrator and not the payment of compensation equivalent to the cost of the work required to the beneficiaries, although it is possible for the contractor to reach an agreement with the beneficiary for this purpose.

What about the question of choosing the corrective method now?

In the area of arbitration arising from the application of the Regulations, the strong trend in case law on this issue indicates that it is the contractor who has the choice of corrective method.

To this end, Me Pierre Boulanger, who acted as arbitrator, summarized the essence of this question in a recent arbitration awarde²: “It is well recognized that the contractor, according to article 2099 of the Civil Code of Quebec, has the free choice of means of execution. There is no relationship of subordination between the contractor and the administrator that would allow the latter to impose one method of execution rather than another in order to correct construction defects. All that is needed is that, in the end, the result is in accordance with the rules of the art. The beneficiary cannot require the administrator to ask another contractor to do the work if the contractor is willing to do so.”

It should therefore be remembered that, in principle, insofar as the method recommended by the entrepreneur is chosen according to his obligation of result, compliance with the rules of the art and the use of the market, the entrepreneur will have the choice of the applicable correction method. In short, in the absence of a proposal that is insufficient or contrary to the rules of art³, there is no need to impose a corrective method.

DID YOU KNOW THAT...
The administrator must train contractors with respect to the content of the approved plan and the resulting contract (section 71 of the Regulation).

¹ For this purpose, see articles 9, 10 and 18 for buildings not held in divided co-ownership and sections 26, 27 and 34 for buildings held in divided co-ownership.
² Cusson v. 9232-7170 Quebec Inc. (Habitations 360), Me Pierre Boulanger, arbitrator, Canadian Commercial Arbitration Center (CCAC), S16-070601-NP, 2017-07-20.
³ See for example Syndicat Iberville-de Rouen and Construction Continuum Inc., Me Jeffrey Edwards, arbitrator, Custom Arbitration and Mediation Group (GAMM), 166517-1, 2012-06-001, 2012-06-003 and 13 185-003 and 13 185-97, 2013-05-24.

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