r v. CLIMATISATION B.S. INC., 2018 QCCA 2224

Directrice des poursuites criminelles et pénales c. Climatisation BS inc. 2018 QCCA 2224 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006548-174 (C.S.: 540-36-000935-162, 540-36-000936-160, 540-36-000937-168) (C.Q.: 540-61-073393-156, 540-61-073394-154, 540-61-073396-159) DATE: 21 SEPTEMBER 2020 CORAM: THE HONOURABLE JACQUES CHAMBERLAND, J.A. ALLAN R. HILTON, J.A. PATRICK HEALY, J.A. DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS APPELLANT- Prosecutor v. CLIMATISATION B.S. INC.

RESPONDENT – Defendant CORRECTED JUDGMENT OF THE WRITTEN REASONS FOR JUDGMENT FILED ON 10 JANUARY 2019 [ 1 ] CONSIDERING that the judgment pronounced orally in the Court on 6 December 2018 dismissed the appeal without judicial costs, as accurately stated in the minutes of the hearing; [ 2 ] CONSIDERING that paragraph [2] of the written judgment appended to the minutes of the hearing on 6 December 2018 erroneously concludes that the appeal was dismissed with judicial costs; [ 3 ] CONSIDERING that paragraph [1] of the written reasons for judgment that were filed on 10 January 2019 erroneously mentions that the appeal was dismissed with judicial costs; [ 4 ] CONSIDERING that it is necessary to rectify the discrepancy between the oral and written judgments; THE COURT : [ 5 ] CORRECTS paragraph [2] of the written judgment appended to the minutes of the hearing on 6 December 2018; [ 6 ] AMENDS the conclusion of paragraph [2] of the written judgment appended to the minutes of the hearing on 6 December 2018 to replace the word “avec” with the word “sans;” [ 7 ] CORRECTS paragraph [1] of the written reasons for judgment filed on 10 January 2019; [ 8 ] AMENDS paragraph [1] of the written reasons for judgment filed on 10 January 2019 to replace the word “avec” with the word “sans.” JACQUES CHAMBERLAND, J.A.

ALLAN R. HILTON, J.A. PATRICK HEALY, J.A. Mtre Allison Garon-Desharnais Director of Criminal & Penal Prosecutions

For Appellant Mtre Luc Bellemare Greenspoon Bellemare For Respondent Date of hearing: 6 December 2018 Directrice des poursuites criminelles et pénales c. Climatisation BS inc. 2018 QCCA 2224 COUR D'APPEL CANADA PROVINCE DE QUÉBEC GREFFE DE MONTRÉAL N o : 500-10-006548-174 (540-36-000935-162, 540-36-000936-160, 540-36-000937-168) (540-61-073393-156, 540-61-073394-154, 540-61-073396-159) PROCÈS-VERBAL D'AUDIENCE DATE : Le 6 décembre 2018 CORAM : LES HONORABLES JACQUES CHAMBERLAND, J.C.A. ALLAN R. HILTON, J.C.A. PATRICK HEALY, J.C.A.

APPELANT AVOCATE DIRECTEUR DES POURSUITES CRIMINELLES ET PÉNALES Me ALLISON GARON-DESHARNAIS (Directeur des poursuites criminelles et pénales) INTIMÉE AVOCAT CLIMATISATION B.S. INC. Me luc bellemare (Greenspoon Bellemare s.e.n.c.r.l.)

En appel d'un jugement rendu le 25 septembre 2017 par l’honorable Marc- André Blanchard de la Cour supérieure, district de Laval. NATURE DE L'APPEL : Code de procédure pénale -

Loi sur le bâtiment. Greffier d’audience : Mihary Andrianaivo Salle : Pierre-Basile-Mignault AUDITION 9 h 30 Début de l’audience. Argumentation de Me Allison Garon-Desharnais. 9 h 49 Argumentation de Me Luc Bellemare. 9 h 58 Me Garon-Desharnais n’a pas de réplique. Suspension de l’audience. 10 h 08 Reprise de l’audience. PAR LA COUR : Arrêt prononcé par l’honorable Jacques Chamberland, J.C.A. rejetant l’appel sans frais – voir page 3. Fin de l’audience. Mihary Andrianaivo Greffier d’audience PAR LA COUR ARRÊT [1] Pour les motifs qui seront déposés ultérieurement, LA COUR : [2] REJETTE l’appel, avec les frais de justice.

JACQUES CHAMBERLAND, J.C.A. ALLAN R. HILTON, J.C.A. PATRICK HEALY, J.C.A. Directrice des poursuites criminelles et pénales c. Climatisation BS inc. 2018 QCCA 2224 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006548-174 (C.S.: 540-36-000935-162, 540-36-000936-160, 540-36-000937-168) (C.Q.: 540-61-073393-156, 540-61-073394-154, 540-61-073396-159) DATE: DATE OF JUDGMENT: 6 DECEMBER 2018 DATE OF WRITTEN REASONS: 10 JANUARY 2019 CORAM: THE HONOURABLE JACQUES CHAMBERLAND, J.A. ALLAN R. HILTON, J.A. PATRICK HEALY, J.A. DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS APPELLANT- Prosecutor v.

CLIMATISATION B.S. INC. RESPONDENT - Defendant WRITTEN REASONS FOR JUDGMENT DELIVERED AT THE HEARING [1] At the conclusion of the hearing on 6 December 2018 the Court delivered the following judgment: Pour les motifs qui seront déposés ultérieurement, LA COUR : REJETTE l’appel, avec les frais de justice. [2] These are those reasons. Introduction [3] This is an appeal from a decision of the Superior Court [1] that reversed a finding of guilt by a judge of the Court of Quebec [2] on three counts of unlicensed construction under

section 46 of the Building Act . [3] The appeal concerns a question of statutory

interpretation that has not previously come before the Court. Facts [4] The respondent is a specialized contractor who is licensed under the Building Act and the Regulation respecting the professional qualification of contractors and owner-builders (“ Regulation ”). [4] It is licensed to work in ventilation and refrigeration but

is not licensed to perform electrical work. The respondent was hired in several contracts to install thermal pumps. In order to complete these contracts more electrical power was required to operate the thermal pumps and for this reason stronger electrical panels were required. To install these electrical panels the respondent engaged the services of a specialized electrical contractor. This specialized contractor installed the electrical panels and the respondent then completed the installation of the thermal pumps.

Act and Regulation [5] The relevant provisions of the Act and the Regulation are reviewed more fully below but it is helpful here to identify some essential elements of the relevant measures. [6] The Building Act and its subordinate legislation regulate most of commercial construction in Quebec. The Act states that its two purposes are to ensure work of skilled quality and to ensure safety in the performance of that work and the results. [5] The Act and the Regulation identify four classes of contractors, all of whom are required to have appropriate licences for the type of work that they perform.

One of those classes is a “specialized contractor.” [6] The Act and the Regulation state principles applicable to all contractors. They also state principles applicable to subclasses of specialized contractors that are listed in the Regulation . The Regulation requires that they be licensed to perform those specific classes of work and states the limits of the authorization granted to each subclass of specialized contractor for that type of work.

In this case the respondent is a specialized contractor in ventilation and refrigeration and the sub-contractor whom it engaged to install the electrical panels was a specialized electrical contractor. [7] The purpose of this legislative arrangement is to ensure quality and safety in construction by ensuring that specialized work is performed by qualified contractors. Each subclass of specialized contractor must therefore remain within the terms of the licence that authorizes that subclass of work.

These limitations set boundaries that must be respected and failure to remain within the limits of the authorization granted by a licence will expose a specialized contractor to prosecution for this breach. [7] [8] In this case the prosecution charged that by sub-contracting the installation of the electrical panels the respondent performed work reserved to a specialized electrical contractor and thus exceeded the limitations imposed by its licence in ventilation and refrigeration.

As will be seen, the respondent is entitled by the terms of its licence to perform work that is “similar or related to” work in ventilation or refrigeration. At issue in this appeal is the meaning of this phrase and the extent of its limitations. Judgments [ 9 ] The trial judge noted that the parties who contracted with the respondent paid it for the work performed by it and the sub- contractor. The issues stated by the trial judge were whether the installation of an electrical panel is work “related to” the installation of a thermal pump and whether the respondent had a licence to perform such work.

She observed that the jurisprudence defined related work as work that is necessary for the completion of a contract by a specialized contractor but that is not included within the specific terms of its specialized licence. She concluded that the installation of the panels was not related to ventilation or refrigeration because the installation of the panels served purposes beyond the installation of thermal pumps and therefore could not be considered necessary for the completion of the contract for the installation of thermal pumps. [ 10 ] On appeal the Superior Court adopted a broader view.

The Court began by noting that the aim of the Act is to ensure that construction work is performed by qualified contractors and that in this case electrical work was performed by a qualified electrical contractor. The Court concluded that any ambiguity arising from the absence of a clear definition of “related” work should be resolved by favouring a flexible

interpretation that would allow the respondent to perform his contract while respecting the exclusive competence reserved to electrical contractors. On this basis the Superior Court quashed the findings of guilt. Question [ 11 ] The question is whether a specialized contractor in ventilation and refrigeration, but not electrical work, may sub-contract such work to a specialized electrical contractor. A broader issue is whether a specialized contractor who does not have a permit to do certain types of work may engage a specialized contractor in another subclass. The trial judge concluded that the respondent was not legally permitted to do this under

section 46 of the Act and the regulations and, upon finding the respondent guilty, imposed a total of $60,000.00 in fines under

section 197.1 of the Act . This appeal concerns the scope of the prohibition created by

section 46 of the Act . More specifically, the question of statutory

interpretation is whether by sub-contracting electrical work to a specialized electrical contractor the respondent engaged in work that is “similar or related to” work in ventilation or refrigeration. Provisions [ 12 ] Licences for specialized contractors are issued by the Régie du bâtiment and the terms of authorisation for those licences are defined in the Regulation .

Section 15.8 of

Schedule II of the Regulation concerns the licence for ventilation and

section 15.10 concerns the licence for refrigeration. Both conclude with the same sentence: Lastly, [the subclass] authorizes similar or related construction work. [ 13 ]

Section 16 defines the authorisation for the subclass of electrical contractors and concludes with a slightly different sentence. Lastly, it authorizes related construction work. [ 14 ] To grasp the issue in this appeal more clearly, three further provisions must be considered. [ 15 ] First, a contractor is defined in

section 7 of the Act : [ 16 ] Second,

section 46 of the Act creates an offence that prohibits unlicensed commercial construction:

46. Nul ne peut exercer les fonctions d’entrepreneur de construction, en prendre le titre, ni donner lieu de croire qu’il est entrepreneur de construction, s’il n’est titulaire d’une licence en vigueur à cette fin. Aucun entrepreneur ne peut utiliser, pour l’exécution de travaux de construction, les services d’un autre entrepreneur qui n’est pas titulaire d’une licence à cette fin. 46. No person may act as a building contractor, hold himself out to be such or give cause to believe that he is a building contractor, unless he holds a current licence for that purpose.

No contractor may use, for the carrying out of construction work, the services of another contractor who does not hold a licence for that purpose. [ 17 ] Third,

section 11 of the Regulation qualifies the extent to which a specialized contractor – the respondent – may carry out work that is similar or related to that for which it is licensed: 11. Les travaux de construction connexes autorisés par une sous-catégorie de licence prévue à l’annexe I, II ou III doivent être exécutés lors de travaux compris dans cette sous-catégorie de licence.

Le titulaire d’une sous-catégorie de licence peut exécuter des travaux de construction similaires ou connexes à ceux compris dans sa sous- catégorie de licence sauf lorsque ces travaux sont réservés exclusivement aux maîtres mécaniciens en tuyauterie et aux entrepreneurs en électricité. 11. Related construction work authorized by a licence subclass in

Schedule I, II or III must be carried out at the same time as work in that licence subclass. The holder of a licence subclass may carry out construction work that is similar or related to work in the licence subclass, except work reserved exclusively for master pipe-mechanics and electrical contractors. [ 18 ] Several features must be noted. First,

section 7 defines a contractor as someone who carries out, or has carried out, construction work. Second,

section 46 prohibits the services of another contractor who does not hold a licence for that purpose. Third,

section 11 of the Regulation allows a specialized contractor to carry out (not “to have carried out”) similar or related work within the same licence subclass. Fourth,

section 11 of the Regulation explicitly prohibits other subclasses of contractors from performing the work reserved exclusively to electrical contractors. [ 19 ] The appellant relies upon the second paragraph in

section 46 of the Act . It argues that the respondent cannot sub-contract to a specialized electrical contractor because it is not a specialized electrical contractor and such work is reserved exclusively to an electrical contractor. In effect, the appellant argues that by sub-contracting electrical work to a specialized electrical contractor the respondent engaged in electrical work for which it held no licence. It argues that the installation of new electrical panels was not “similar or related to” the work for the respondent held a specialized licence. [ 20 ]

Section 3 of the Regulation provides that one of the licence classes under the Act is the “specialized contractor.” To ensure appropriate skill and safety in construction, certain subclasses of work are reserved to persons who are specially licensed for this purpose. [8] Ventilation, [9] refrigeration [10] and electrical work [11] are subclasses of this kind. The second paragraph of

section 11 of the Regulation states clearly that only a licensed electrician can perform electrical work. Although the respondent does not hold such a licence, it engaged someone who did to perform electrical work required in several projects. At issue in this appeal is whether the respondent’s sub-contract of this specialized work falls within the meaning of work that is “similar or related” to the work for which it holds specialized licences in ventilation and refrigeration. If the plain meaning of words allows an

interpretation that accomplishes the stated purposes of the Act , there is no need for further

interpretation to fulfil the intention of the legislature. Further

interpretation is needed only if the purposes of the Act or the meaning of words are ambiguous. Discussion [ 21 ] In this case a specialized contractor in ventilation and refrigeration hired a specialized electrical sub-contractor to perform electrical work. There is every indication that both acted diligently to ensure that this work was performed according to applicable standards. There is no indication that their conduct or that this type of arrangement undertaken by other qualified contractors could jeopardise fulfilment of the Act ’s purposes.

The performance of electrical work is common in commercial construction and to this extent integrally related to the completion of such work. The specific condition imposed under

section 11 of the Regulation is that electrical work must be performed by persons who are licensed to do so. In such circumstances the contractor must ensure that a sub-contractor for electrical work is properly qualified. There is, however, no suggestion that this obligation was not met by the respondent. [ 22 ] The plain meaning of the Act and the Regulation may be stated in three points. First, no contractor can perform construction work of any kind without an appropriate licence.

Second, for the completion of work within the terms of his licence, a specialized contractor in one type of work may sub-contract to another specialized contractor a part of the work that is reserved exclusively to the holder of that specialized licence. Third, a specialized contractor must sub-contract work to another specialized contractor to perform work if that work is within the terms of the licence held exclusively by the sub-contractor.

Section 11 of the Regulation makes clear that the respondent could do so only by engaging a specialized electrical contractor, which is what the respondent did. The respondent in no way performed work reserved to an electrical contractor. He was bound to complete projects in which electrical work was an essential

component, and a necessary step in the completion of his contracts in ventilation and refrigeration, but the respondent did not engage in related work that is reserved exclusively to a specialized electrical contractor. [ 23 ] This is clear in the words of the second paragraph of

section 46 of the Act, which expressly provide that a specialized contractor may perform work that is related to work covered by the terms of its licence. It does not refer to work that is similar or related to the work of a different subclass of specialized contractor. This is especially clear with respect to electrical work because that is reserved exclusively to specialized electrical contractors. [ 24 ] The words mean only work that is similar or related to the work for which a specialized contractor already has a licence. This is confirmed by the second paragraph of

section 11 of the Regulation but it is also consistent with the stated purposes of the Act . The work of each specialized contractor must remain within the scope of authorization for that subclass. The purpose of qualifying this limitation by allowing work that is similar or related to that subclass is twofold. First, the language of the Regulation that defines the authorization of each subclass cannot be so precise as to enumerate in a finite and exhaustive list all of the functions that may be necessary for work in that subclass.

Second, and for the same reason, the words in question allow a specialized contractor some flexibility for the accomplishment of its work, provided that it remains within the subclass for which it holds a licence. [ 25 ] The work performed by the specialized sub-contractor was not similar or related to that authorised in the respondent’s licence simply because it was required for the work that the respondent was contractually bound to perform.

It was necessary for the respondent, as a specialized contractor with no licence as an electrical contractor, to engage a specialized electrical contractor to perform work that only his subclass permits under the Regulation . But it does not follow that by sub-contracting the electrical work the respondent engaged in electrical work. Thus the meaning of similar or related work might raise a question whether a specialized contractor has stepped outside the terms of the licence that it holds but that will be typically be a question of degree to assess in the particular circumstances of the given case.

The meaning of that phrase has significance in relation to the scope of each specialized contractor’s licence, not to the broader contractual undertaking within which specific work is performed. For present purposes the only general proposition that can be stated is that a specialized contractor does not perform reserved work by sub-contracting work that falls within the terms of a licence defined by the Regulation for a different type of specialized contractor.

Again, that is not what happened when the respondent engaged a qualified electrical contractor to perform work reserved exclusively to specialized electrical contractors. [ 26 ] The Superior Court was right to conclude that for work to be related to that for which a contractor holds a license it must be necessary for the completion of an ongoing contract. Two further qualifications are apposite. The first is that the work must not be expressly excluded, as is the case here where the second paragraph of

section 11 of the Regulation clearly reserves electrical work to a licensed electrician. The second is that, having regard to the object and skills involved, the work in question must be substantively of the same nature or type as that for which a specialized contractor is licensed within a particular subclass. Conclusion [ 27 ] The position of the appellant would frustrate, not advance, the purposes of the Act to the extent that it would frustrate the respondent’s ability to complete his contractual obligations in conformity with the Act . The Superior Court said so and there is no principle of

interpretation that could contradict this conclusion. JACQUES CHAMBERLAND, J.A. ALLAN R. HILTON, J.A. PATRICK HEALY, J.A. Mtre Allison Garon-Desharnais Director of Criminal & Penal Prosecutions For Appellant Mtre Luc Bellemare Greenspoon Bellemare For Respondent Date of hearing: 6 December 2018