| Dimanche, 30 Septembre 2012 13:54 |
What are The Rules of Art ?
The only reference to « the rules of art» in the Civil Code of Québec is at article 2100.
This article imposes a code of conduct on both the contractor and the provider of services, a method of carrying out the work to ensure it is «in accordance with usual practice and the rules of art».
1.The nature of the obligation
Article 2100 of the Civil Code of Québec stipulates that the contractor must use the recognized methods in his domain of expertise and the procedures established at the time in which the work is carried out[1].
The contractor is not obligated to conform to the best practices in his field as long as his methods are recognized as conforming to the rules of art. This statement underlies that the rules of art are somewhat a lower standard than the best practices.
More specifically, within the framework of the field of construction, the rules of art refer to the following points[2 :
– Work methods;
– The judicious use of materials ;
– The assembly of the materials.
As to the sources on which the contractor should base himself in order to determine which are the rules of art (usual practice) to be respected, there are several[3] :
– instructions and guidelines furnished by the manufacturers of the material which is used in the construction of the buildings ;
– the norms and standards as defined by certain specialized organizations ;
– laws or rules containing obligatory criteria which must be respected within the framework of the construction;
– scientific and technical publications used for teaching purposes ;
– the National Building Code of Canada.
These sources merely provide a basis of reference, without creating strict rules as to which construction techniques should be used.
The obligation to respect the rules of art, as stated in article 2100 of the Civil Code of Québec, compensates for any absence of instructions in the building contract regarding how the work should be carried out, or as to which materials should be used. Therefore when these elements are not covered in the contract, the rules of art which will serve as a point of comparison.
Furthermore, in the event that the contract included construction methods which do not conform to the rules of art, the court has recognized that it is the responsibility of the contractor to not accept or undertake such work[4].
One must also note that the conformance of construction to the rules of art must be evaluated within the timeframe of its construction. In fact, it would be unimaginable to use the present construction norms to evaluate conformance of a building constructed in 1970. One must examine the norms in effect at the time of construction to determine if these were applied.
2. Who is liable to warrant the work of the builder?
A.The persons liable to warrant the work of the builder.
As we have seen, the warranty forms part of a contract between a provider of services and a client (i.e. the consumer or the person ordering the work), or between a contractor and a client.
As the contractor is clearly identified as the one having to defend his failure to comply with the regulations in effect in the rules of art, one must first identify who is the provider of services within the framework of a real estate contract. Thus, one must read articles 2117 and subsequent articles in the Civil Code of Québec to understand that the providers of services within the framework of real estate refer to the architect, the engineer, and the sub-contractor. It will therefore be possible for the client to directly sue these providers of service, whether or not the contract was drawn up directly or indirectly (i.e. through the contractor) with them.
B.Is the ‘do-it-yourself’ homeowner liable for the warranty of the builder?
No. This warranty exists solely in a contract between a contractor (or a provider of services) and a client. No such contract exists in this case because the ‘do-it-yourself’ homeowner has done the work himself. Thus the subsequent purchaser does not benefit from the protection offered in the case of eventual defects or loss of work.
However, he could contest based on the applicable provisions regarding Sales in the Civil Code of Québec. Though even in this case, the purchaser could not benefit from the presumption of knowledge of the defect which applies to a professional seller and therefore the purchaser would have been better off to have bought his home from a promoter in this regard.
The information provided on this page is general in nature and cannot compensate for the need to obtain legal advice specific to a particular situation.
[1] St-Paul Fire & Marine insurance company c. SNC-Lavalin inc., 2009 QCCS 56 [2] Construction R. Cloutier inc. c. Entreprises CJS inc., 2007 QCCS 652 [3] Olivier F. KOTT et Claudine ROY, La construction au Québec: perspectives juridiques, Montréal, Wilson & Lafleur ltée, 1998 [4] 3099-5252 Québec inc. c. Almonte Industries inc., SOQUIJ AZ-50084820
Mise à jour le Vendredi, 15 Août 2014 15:51