The entrepreneur's duty to provide information and advice

The Regulation respecting the guarantee plan for new residential buildings provides for certain exclusions, in particular with respect to repairs made necessary by the fault of the beneficiary, such as inadequate maintenance.¹. However, in order to be able to blame the beneficiary for an absence of maintenance, the beneficiary must still have been informed of the maintenance required. What about the entrepreneur's duty to provide information and advice?

At the outset, it should be noted that the arbitral case law dealing with the Regulations² recognizes the obligations of the contractor in terms of his duty to provide information and advice. These obligations come from civil law and are closely linked to the obligation of good faith, according to which a contracting party (for example a beneficiary) must be informed and advised by his contractor in order to provide free and informed consent.

These obligations apply at the time of completion of the contract, for example with regard to the choice of materials, but also once the work has been completed, in particular with regard to the adequate maintenance required. Thus, as Professor Karim states about entrepreneurs with respect to the obligation to advise, “[...] in addition to complying with the obligation to provide information, they will also have to ensure that the client understands and assimilates this information so that he is in a position to use it properly and in a relevant manner.³ ”.

Let us illustrate these obligations with a practical case, for example a decision by a guarantee plan administrator rejecting a claim concerning a wooden floor whose condition has deteriorated. In our example, the claim is rejected on the pretext of poor management of ambient humidity, which can be assimilated to a “fault of the beneficiary”. The beneficiary takes the administrator's decision to arbitration under the pretext that he did not commit a fault since he was unaware of the need to control the ambient humidity in order to preserve the condition of the floor. In this case, “the burden is on the applicant (Beneficiary) as to the Contractor's information and advice obligations for the purposes of determining whether there is a breach of these obligations within the meaning and within the framework of the Regulation for the purposes of opening up to coverage of the Guarantee.⁴ ”.

In short, if the beneficiary is in a position to convince the Tribunal that its maintenance or fault resulted from a failure by the contractor to provide information and advice, the administrator's decision could be reviewed and the problem could benefit from warranty coverage. Conversely, if the Tribunal is of the opinion that the contractor's obligations to provide information and advice have been duly fulfilled, for example by showing that a maintenance manual was provided to the beneficiary, the decision of the administrator will be upheld.

In these circumstances and in order to avoid potential problems, the wise contractor must ensure that he is always in a position to demonstrate compliance with his HABITATION obligations in terms of his duty to information and advice by documenting his file with writings, in particular acknowledgements of receipt attesting to the delivery of maintenance manuals or other information concerning materials.

DID YOU KNOW THAT?
Promises made by a seller with respect to the costs of using or consuming energy of devices, systems or equipment used in the construction of a building are excluded from the guarantee provided for in the Regulation respecting the warranty plan for new residential buildings.

¹ For this purpose, see in particular “The guarantee plan for new residential buildings: exclusions to the regulations” published on October 5, 2017 on ACQConstruire.
2 See in particular for this purpose Blais and Villas Construction 2006 inc., Me Jean Philippe Ewart, arbitrator, Conflict Resolution Society Inc. (SORECONI), 120708001 and 132502001, 2013-10-21.
3 KARIM, Vincent, Contracts d'Entreprise (movable and immovable works: construction and renovation) Contracts for the provision of services and legal hypothec, Ed. Wilson & Lafleur, 2nd edition, 2011, par. 354.
4 Montreal (Office municipal d'habitation de) and Consortium MR Canada Ltd., Me Jean Philippe Ewart, arbitrator, Canadian Commercial Arbitration Center (CCAC), S12-020901-NP and S13-031503-NP and S13-031503-NP, 2015-05-15, para. 83.

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Consult the source publication