Case information

Legislation — Interpretation — General contractor — Owner builder — Memorandum of understanding signed with municipality — Statutory offences — Proper point in time for assessing whether person is carrying out or is having carried out construction work “for another person” or “for his own account” in accordance with Building Act — Obligations, under Building Act, of property developer who gives mandate to general contractor licensed to build streets of residential development on lands that it owns, all in context of agreement made with municipality — Building Act, CQLR, c. B 1.1.

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The respondents, Gestion Gilles Laurence ltée and Gestion Daniel Sauvé inc., purchased lands located in a city with the goal of developing them later. To do so, they first wished to build streets. They therefore signed, with the city, a memorandum of understanding in which they undertook to build the streets, at their own expense, and to transfer them to the city free of charge once built. To build those streets, the developers contracted with general contractors duly licensed by the Régie du Bâtiment du Québec. The applicant, the Director of Criminal and Penal Prosecutions, charged them with having violated s. 46 of the Building Act (“BA”), that is, of having acted as a building contractor by carrying out or having carried out construction work without holding a licence for that purpose.

At trial, the presiding justice of the peace found that the respondents were contractors within the meaning of s. 7 of the BA and were presumed as such within the meaning of s. 8. The exception specified in s. 49 regarding owner builders did not apply to the respondents. The respondents were convicted of the offences as charged. On appeal, the Superior Court judge found that the trial justice committed overriding errors in law. The respondents did not act as contractors because the work was not carried out “for another person” at the time of the alleged offences. The presumption in s. 8 did not apply because there was no sale or exchange. Furthermore, the respondents could benefit from the exception in s. 49 because they had dealt with duly licensed contractors. The Court of Appeal was divided on the issue. The majority was of the opinion that the appeal should be dismissed. The respondents acted for themselves and not for the city. Since they were owner builders, s. 49 of the BA exempted them as such from the obligation to each hold a contractor’s licence for that work. The dissenting judge was of the opinion that the appeal should instead be allowed. The respondents never intended to continue to have in their possession those works in order to enjoy them as owners; they had that work carried out “for another person”, which corresponds to the definition of “contractor” in s. 7 of the BA.