For mandatory supervision of works

FOR MANDATORY MONITORING OF RESIDENTIAL CONSTRUCTION WORK, IT’S URGENT!

It’s not new that people have been saying that Quebec is a distinct society. This is often meant to be an advantageous term, but that’s not the case when it comes to monitoring residential construction sites.

 

By Yves JOLI-COEUR AND Richard LECOUFFE

 

In this regard, Quebec is doing poorly compared to other Canadian provinces, particularly Ontario, where residential construction sites have been required to undergo systematic inspections at various crucial stages for decades.

In Quebec, it took two tragedies for things to move a little: the collapse of a residential garage slab in Ville Saint-Laurent in 2008, and the detachment of a concrete panel from the 18th floor of a building in downtown Montreal in 2009, each causing one death. Periodic inspection measures and a maintenance program for garage slabs and building facades with five or more floors were therefore adopted in March 2013. They can be found in the Building chapter of the Safety Code.

However, in November 2010, the coroner presiding over the facades file had also recommended in his report that construction work monitoring be made mandatory for high-rise buildings, as an extension of the design work of professionals. He also recommended that this mandatory monitoring be included in the Engineers Act and the Architects Act. These recommendations have remained a dead letter to this day.

Of course, not all defects and faults in residential construction result in tragic deaths, since only these two accidental deaths have been reported in recent years. However, we cannot ignore the health problems caused by poor or non-compliant construction of buildings (water infiltration followed by mold, spread of cigarette smoke due to insufficient or inadequate ventilation, poor air quality, poor soundproofing or vibrations that disrupt sleep, etc.).

The economic impact of these construction defects affects thousands of real estate consumers who must bear the costs of repairs or lawsuits against contractors, not to mention the productivity losses related to these "hassles" and the energy they must devote to these files. Add to this the increases in premiums and deductibles that insurers require from co-ownership associations, due to the poor quality of construction. However, it is easy to imagine that it will always cost much more to redo non-compliant or poorly done work, rather than to do it correctly from the start. The cost difference is 8 to 15 times higher when repairs or reconstruction are required, depending on the type of defects and the part of the building affected.

However, these important aspects have been largely ignored by the legislator and it must be recognized that the measures implemented in recent years do not adequately solve the problems, far from it.

 

SEVERAL DECADES OF FAILED ACTIONS, OR ALMOST

The mandatory monitoring of residential construction sites has nevertheless been discussed many times in recent decades, without ever coming to fruition.

As early as March 1996, the Barreau du Québec presented a brief, in the wake of the general orientations of the 1993 Construction Industry Summit, announcing the implementation of a guarantee plan for new residential construction. He emphasized that the draft regulation under consideration aimed to “address consumers’ concerns about the often questionable quality of construction in the residential sector and the many frustrations they have experienced and continue to experience in trying to assert their rights. Unfortunately, the draft reflects the political decision to invest much more in curative than preventive measures.”

Since the limited scope of this consultation did not allow for a head-on approach to the monitoring of construction work, it was therefore not considered when the draft regulation was adopted.

Indeed, the Regulation respecting the guarantee plan for new residential buildings was created in 1999, overseen by the Régie du bâtiment (RBQ), without addressing mandatory monitoring of work. Since January 1, 2015, this guarantee plan has been administered by a non-profit organization, Garantie de construction résidence (GCR), which began carrying out certain inspections in 2017 and plans to do more by 2023.

Monitoring work during construction sites helps to better ensure that the work complies with the plans and specifications, as well as the standards set out in the Construction Code. This sometimes even helps to improve the project.

In 2013, Bill 49, amending the professional orders, proposed amending the Civil Code of Québec to include the requirement for a general compliance review of work with the plans and specifications and other documents used to carry it out, for work related to the practice of architecture and engineering. It defined a general compliance review of work as “a monitoring activity that consists of verifying, at key stages determined by the member of the Order who has been entrusted with the responsibility of carrying it out, whether the construction, expansion or modification work of a building complies with the main requirements indicated in the plans, specifications, amendments and expert reports used to carry it out”.

 

THIS BILL HOWEVER DIED ON THE ORDER PAPER, WITH THE CALLING OF AN ELECTION

In 2018, Bill 401 aimed to adopt measures to improve the quality of buildings, by expanding the regulatory powers of the RBQ with regard to the requirement of a certificate of compliance of construction work with the Construction Code and, where applicable, with the construction standards enacted by a municipality (section 16 of Bill 401).

This bill also died on the order paper. It was partially reintroduced with Bill 16 of 2019, which will improve the supervision of divided co-ownership, including the obligation for syndicates to keep a maintenance logbook up to date. Section 16 of Bill 401 was however omitted

Finally, in 2019, Bill 29 amending the Professional Code and other provisions, which came into force in September 2020, revised the Engineers Act and the Architects Act, providing that the supervision of construction work constitutes an act reserved for engineers or architects, depending on their respective fields of practice. However, this law did not make the supervision of construction work mandatory, despite numerous requests to this effect from these professional orders.

 

GCR’S MANDATORY GUARANTEE PLAN

Certainly, Quebec has set up a mandatory guarantee plan, administered since 2015 by GCR, but it must be admitted that its scope remains limited.

This guarantee plan does not apply to all divided co-ownerships built in Quebec. On the one hand, it does not target existing buildings that are converted into co-ownerships. On the other hand, only completely new co-ownerships with four or fewer superimposed private portions (not including parking or storage spaces) are affected by this plan. Although these represent a large percentage of new co-ownerships in Quebec, the construction work of many others may not have been subject to any monitoring by a building professional.

Furthermore, this plan acts mainly in a curative mode, since many of the interventions are carried out based on complaints made after the work is completed. The preventive aspect that would constitute a systematic inspection, at different stages of construction, remains absent from the guarantee plan.

In fact, for all buildings covered by this plan, there would be at least one inspection carried out by a guarantee plan professional, at a given time during construction. The GCR organization has, however, implemented a classification of contractors, based on the number of deficiencies noted during its inspections. It reports having carried out, in 2020, an average of 2.6 inspections per building held in divided co-ownership, concentrated around lower-rated contractors, and plans to increase this percentage by 2023.

However, we are far from systematic mandatory monitoring of all construction sites. For comparison, Ontario requires at least five mandatory inspections, at different stages determined in the building permit. The contractor cannot continue the work until the inspection of a previous stage has established compliance. This seems to us to be the most logical way to proceed.

 

WHAT IS THE MISSION OF THE RBQ?

The mission of the RBQ is defined in section 1 of the Building Act, which oversees this organization. In its terms, its primary objective is the "protection of the public", by ensuring the quality of buildings and installations, the safety of the latter and the qualification of construction contractors, in particular by ensuring their probity and solvency.

This mission to ensure the quality of work and the safety of people applies to various fields, including construction, plumbing, electricity, elevators and ski lifts, pressure vessels, gas or oil equipment, games and rides, swimming areas and, finally, energy efficiency. To use an expression dear to General de Gaulle: “Vast construction site!”

Was the scale of the task too considerable, given the efforts made and the staff involved? We can ask ourselves the question. We also note that the law provides for the possibility of delegating certain powers of the RBQ, in particular to municipalities, the Corporation of Master Pipe Mechanics (CMMTQ) and the Corporation of Master Electricians (CMEQ). This is also the case with GCR, with regard to buildings covered by the mandatory guarantee plan.

Have these delegations of powers led to a scattering of inspection responsibilities, or even a dilution of interventions, to the detriment of the public we are supposed to protect? This question also seems relevant to us.

For example, with regard to the qualification of contractors, Bill 35 of 2011 amended the Building Act, granting the RBQ the possibility of imposing mandatory continuing education on contractors, in order to ensure that their knowledge is updated. However, such a system had still not been put in place, 10 years later. It is not until 2022 that general contractors should, if all goes well, be required to take 16 hours of continuing education every two years.

A resounding report from the Auditor General of Quebec highlighted, in June 2021, numerous shortcomings in the RBQ's activities. It was indicated in particular that the Board was not taking all the appropriate measures already at its disposal to verify that contractors were complying with their legal obligations. For example, concerning the implementation of examinations to verify their skills, the report revealed that the Board had been using the same questionnaires for years leading to the issuance of a licence. It appears that some were even available via the Internet, at modest cost. It was also learned that the backgrounds of contractors were not checked at all by the Board before issuing a licence.

The report also highlighted the very low percentage of site inspections conducted by the organization, inspections which consequently affected few contractors. In addition, it was reported that the Board did not take charge of contractors who accumulated non-compliances, in order to rectify the situation. What is more, the inspections often focused on only one of the Board’s areas of expertise (for example, plumbing), while the contractor in question was simultaneously carrying out work in other areas of intervention. And when non-compliance with the Building Code was noted, the only thing that was done was to demand that it be corrected, without inspecting other areas, even if the offender was a repeat offender.

The Auditor General concluded that the RBQ was not currently adequately protecting consumers, while pointing out that the organization had been generating budget surpluses for years.

 

THE SITUATION IN ONTARIO AND ELSEWHERE IN CANADA

In Ontario, as in most other Canadian provinces, monitoring of residential construction work is mandatory for the vast majority of buildings.

The Ontario Building Code provides for various stages during construction, each requiring a mandatory inspection. Thus, the application for a building permit must be accompanied by all plans and drawings prescribed by the municipality concerned, executed by a qualified person, with some exceptions (land development and drainage plan, foundation plan, frame and roof plan, elevation plans, electrical drawings, plumbing drawings). The issuance of the permit is subject to a verification of the compliance of these plans, drawings and specifications with the requirements of the Building Code and other applicable laws.

Each main phase of construction must then be inspected by the municipality’s construction officials, in order to ensure, at each stage, compliance with the Building Code, the permit issued and the plans. It is also the responsibility of the permit holder to contact the municipality in order to organize inspections, at each stage indicated in the permit, according to the type of building. The city is required to carry out the inspection of the work and any non-compliance must be corrected before moving on to the next stage.

Inspections include the excavation and foundations, the building’s framework (roof frame and structure), its insulation, the plumbing system, interior finishes, and various other elements provided for in the Building Code. The results of such an inspection system seem quite convincing

In August 2019, in its brief presented to the Committee on Institutions, as part of Bill 29 amending the Professional Code, the Ordre des ingénieurs du Québec (OIQ) indicated that complaints about construction defects are at least three times more numerous in Quebec than in Ontario.

Quebec complaints about hidden defects and construction defects affect more than 7% of all housing units.

This would result in increasing reluctance on the part of damage insurers with regard to Quebec co-ownerships, due to a higher claims rate in Quebec compared to Ontario.

This necessarily leads to additional costs for Quebec co-ownerships, which see their insurance premiums and deductibles increase, sometimes dramatically.

 

WILL THIS TIME FINALLY BE THE RIGHT ONE?

We learned in mid-October that Quebec’s Minister of Housing, Ms. Andrée Laforest, intervened with the RBQ’s management so that this organization would submit, among other things, a detailed plan establishing inspections at key stages of construction, using certificates of conformity carried out by professionals mandated to monitor the work. This is essentially the same as Bill 49 of 2013 and Bill 401, which was abandoned in 2018. The fine details of this plan remain to be seen.

Qualification exams and continuing education for contractors, with a view to obtaining licenses issued by the RBQ, should also be reviewed by spring 2022, according to the Minister's requests.

Finally, Minister Laforest wants a draft regulation making pre-purchase inspection mandatory to be published by the RBQ before the spring of 2022. Bill 16 of 2019, which partially came into force in January 2020, contains provisions dealing with the qualification of building inspectors that are not yet in force, pending a regulation from the Régie.

Will these various measures be implemented in the coming months? And will those that do see the light of day prove effective? We dare to hope so, so that the implementation of adequate measures will finally ensure better protection of the public.

It is high time that the monitoring of residential construction sites be established in Quebec. “Protecting the public” should not be limited to safety measures aimed at preventing deaths or serious injuries. Protecting the public in housing must also include the “consumer protection” aspect and not leave consumers to deal with contractors who are not concerned about the economic consequences of poorly done work. The fact that insurers are increasingly reluctant to cover divided co-ownership, particularly because of the poor quality of construction, should in itself be enough to finally take action.

Well-structured monitoring of residential construction sites does not delay the work schedule, contrary to the claims of contractors or contractor associations. Monitoring of work during construction allows for validation of compliance as it progresses. This makes it possible to assess the quality of materials, detect discrepancies with plans and specifications, identify defects and correct them immediately, rather than passing the problems and the bill on to consumers.

If Ontario has been able to supervise and control its residential construction sites for years, it is becoming very difficult to accept maintaining the status quo in Quebec for much longer.

The province would also have every interest in implementing, in addition to monitoring the work, a universal mandatory guarantee plan applicable to all new divided co-ownerships. This would cover both the preventive and curative aspects. With adequate monitoring of the work, there would be far fewer deficiencies and smaller claims. This would result in reduced risks, both for the managers of the guarantee plan and for insurers, once the building is built.

 

Condoliaison 22-4 Winter 2022