The conduct of an arbitration under the Guarantee Plan Rules

Many entrepreneurs are unaware of the procedures for arbitration under the Regulation on the guarantee plan for new residential buildings. Overview of the different steps to reach an arbitration award.

The request for arbitration

The first step consists in requesting arbitration from an arbitration body accredited by the Régie du Bâtiment du Québec. The request, which must be sent within 30 days of receiving the administrator's decision by registered mail¹ may come from the beneficiary or from the entrepreneur. It should be noted that in the case of a request for arbitration from a contractor, the contractor must provide an advance for costs, otherwise the request for arbitration will be considered abandoned.² since he will assume half of the costs of the arbitration, regardless of the fate of his claim³. Once the request for arbitration is received, the arbitration body will notify the parties involved in the case.⁴ (contractor, beneficiary and administrator) and will ensure the appointment of an arbitrator while the administrator will transmit to the arbitration body and to the parties the file relating to the decision that is the subject of arbitration⁵.

The management conference

In the vast majority of cases, once all are in possession of the file relating to the decision under arbitration, a management conference will be scheduled by the arbitrator. This management conference, which is held by telephone, will make it possible to identify the important elements of the case: the issues in dispute, the need to produce expertise or other evidence, the witnesses who will be heard, the duration of the early hearing, etc. Once the management conference is over, provided that the case is in good standing or if the procedures for it have been agreed upon, the hearing date is fixed.

Arbitration

Arbitration, chaired by the arbitrator on file, takes place in two stages: the investigation and the hearing. At the time of the investigation, each party presents its evidence: documents are exposed, expert witnesses and ordinary witnesses are questioned and cross-examined. Once the evidence is complete on both sides, comes the hearing. It is time for pleadings: each party has the opportunity to present its arguments and claims to the arbitrator and, if necessary, to support its claims by filing case law.

The arbitration decision

Once the arbitration is over, the file is taken under advisement by the arbitrator who will then issue a written and reasoned decision within 30 days.⁶ although the parties can agree on a longer period of time⁷. The arbitration decision, as soon as it is rendered, binds the interested parties and the administrator in addition to being final and not subject to appeal.⁸.

In short, as can be seen, the arbitration process is a much faster and simpler process than the judicial process in courts of common law. The parties therefore have every interest in benefiting from it in order to reach a conclusion of their case more quickly and at a lower cost.

Did you know that?
Despite the use of arbitration provided for in the Regulations, the beneficiary and the contractor may agree to use mediation to attempt to reach an agreement on the dispute between them in accordance with sections 98 to 105 of the Regulations.

1 Articles 19 and 35 of the Regulation
2 Article 117.1 of the Regulation
3 Article 12.3 of the Rules of Procedure
4 Article 108 of the Rules of Procedure
5 Article 109 of the Regulation
6 The deadline is 15 days when the arbitration concerns the membership of an entrepreneur.
7 Article 122 of the Regulation
8 Article 120 of the Rules of Procedure

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