Construction Work: The Rules of the Art

Construction law • Published on October 7, 2024

Me Jocelyn Vézina

With more than 30 years of experience, Jocelyn Vézina supports both businesses and individuals in civil and commercial litigation, bankruptcy and insolvency, and construction law. A pragmatic and combative strategist, he is known for rigorously defending his clients' interests.

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Under Quebec law, construction work must be performed in accordance with the “rules of the art.” Our construction law lawyers explain this legal concept and the current state of the case law on the subject.

The Civil Code of Québec

Article 2100 of the Civil Code of Québec requires construction contractors to build work that complies with the contract and to act in accordance with the rules of the art:

2100 C.C.Q. The contractor and the provider of services are bound to act in the best interests of their client, with prudence and diligence. Depending on the nature of the work to be carried out or the service to be supplied, they are also bound to act in accordance with usage and good practice and, where applicable, to ensure that the work carried out or service supplied is in conformity with the contract.

Where they are bound to an obligation of result, they may not be relieved from their liability except by proving superior force.

This obligation to follow the rules of the art is a matter of “public order,” which means:

1. That this obligation, imposed by law, applies to every construction contract even if the contract does not specifically mention it;
2. That it is impossible to derogate from or waive this obligation. A construction contractor therefore cannot agree with a client to perform work that does not follow the rules of the art.

Legal definition of the “rules of the art”

According to the Quebec courts, the concept of work that complies with the rules of the art has several components, including:

• Following recognized construction methods
• Choosing appropriate materials
• Following assembly or installation standards
• Following standard specifications
• Using the techniques and processes that prevail within a trade or profession

The contractor must therefore know and follow the work methods, techniques and construction and assembly processes that prevail in their field of expertise at the time the contract is performed.

For example, the rules of the art may be based on installation guides or material manufacturers’ instructions, or on the requirements of the National Building Code. They may also be based on regulatory requirements or specific standards imposed by municipalities or in certain sectors (e.g., municipal construction by-laws and codes, or provisions on heritage buildings).

The National Building Code

The National Building Code is a Canadian model code that contains technical rules on the design, construction and renovation of buildings in Canada. It is developed by the Canadian Commission on Building and Fire Codes to guide the provinces in developing their own codes.

IMPORTANT: The National Building Code is not a regulation with the force of law. While regulations must be adopted by the Government of Canada, this Code is instead developed by a Canadian commission. The standards in this code are “codifications of the rules of the art by construction specialists” (our translation) [1] and therefore do not have quite the same legal status as rules established by law.

That said, the contractor, who must be competent in their field of expertise, is presumed to know the rules set out in the National Building Code. Following these standards should, to a certain extent, result in construction that is free of defects. On this point, the Court of Appeal in Groulx v. Habitation unique Pilacan inc. added the following:

“Although they are not regulatory in nature, standards enjoy general confidence, which in itself gives them an authority that is more de facto than de jure. Because their use is widespread, a contractor who relies on them can, in principle, count on the protection of the courts, since their requirements guarantee, according to current scientific and technical knowledge, construction that is free of defects.” (our translation)

To add to this, Professor Jean-Louis Baudouin, in his book Les Obligations, 7^th edition (2013), states: “Complying with the National Building Code of Canada therefore does not mean exoneration, just as breaching it does not guarantee a finding of liability ” (our translation).

In other words, a contractor who breaches the standards of the National Building Code will not automatically be held civilly liable. As for a contractor who complies with the Code, they will in principle be acting in accordance with the rules of the art, so the risk of being held liable on a construction site is greatly reduced, although it does not disappear entirely.

Although they do not have the force of law, the standards of the National Building Code provide a reference framework for practices that follow the rules of the art. However, any departure from these standards will not automatically be a breach of the rules of the art. The courts confirm that a contractor who departs from the standards of the National Building Code may still be acting in accordance with the rules of the art, as long as the departure does not become a construction defect or poor workmanship. On this point, the Court of Appeal in Groulx v. Habitation unique Pilacan inc. stated the following:

“The contractor may use processes other than those that have undergone a technical assessment, but if the owner relies on the difference in quality between the construction carried out and the standards, it will be important to determine whether or not the standards correspond to the average quality of the materials or techniques used. […]

Once a departure from the standard has been established, it remains to be decided whether there is poor workmanship. This stage of the analysis is crucial.” (our translation)

Construction contractors must therefore be careful, since a departure from the National Building Code that lowers the quality of the construction will likely be poor workmanship or a construction defect, for which they will be civilly liable.

Quebec’s Construction Code

Quebec’s Construction Code, for its part, contains technical provisions on the design, construction and renovation of buildings in Quebec. It applies to construction work on buildings covered by the Building Act (chapter B-1.1) and to equipment intended for public use, as well as to electrical, petroleum and plumbing installations and installations intended to use, distribute or store gas. It governs both the designers of plans and specifications (architects, engineers, technologists) and contractors.

The Construction Code is based on the standards of the National Building Code and even incorporates some of them. However, unlike the National Building Code, which is developed by a Canadian commission, the Construction Code is adopted by the Government of Quebec (Construction Code, CQLR c. B-1.1, r. 2), which gives it regulatory status (it has the force of law).

In practice, this distinction is fundamental. Any part of a structure or any work that is subject to Quebec’s Construction Code must comply with its requirements; otherwise, it could be found to be poor workmanship or a construction defect.

In other words, if the contractor meets the requirements of Quebec’s Construction Code, they will also be complying with the law and, in principle, will not be civilly liable in this respect.

If Quebec’s Construction Code is silent on a given subject (for example, on the construction materials to use or the methods to follow for a certain type of work), or if the work is not within the Code’s scope, the contractor is still subject to the general obligation to follow the rules of the art under article 2100 of the Civil Code of Québec. The contractor must therefore refer to any other relevant source (such as the National Building Code, installation guides, material manufacturers’ instructions, or regulatory requirements or specific standards set by a particular body, etc.) to find out which rules of the art apply.

Clarifications from the courts

Over the years, the courts have clarified certain aspects of the rules of the art, including the following:

• The contractor is not required to use the best construction method, as long as the method used complies with the rules of the art. Sometimes, the best method can involve costs and delays that are out of proportion to the purpose of the work.

• The contractor may use innovative techniques or materials, not only conventional ones, as long as the quality of the work is not affected.

• Because construction practices are constantly changing, a contractor cannot be blamed today for having used an inadequate technique or materials if those practices or materials were the norm when the work was built. For example, a contractor could not be blamed today for having insulated a building in the 1970s with asbestos.

Consequences of not following the rules of the art

The courts have specified that contractors and subcontractors must refuse to carry out any project or work whose requirements are contrary to the rules of the art; otherwise, they may be held civilly liable.

A contractor or subcontractor who accepts such work, or who notices during the project that the work is not being performed in accordance with the rules of the art, must take any appropriate corrective measures. If they do not, there will likely be a construction defect or poor workmanship, and the legal warranties under articles 2118 and 2120 of the Civil Code of Québec will apply.

Article 2118 C.C.Q. provides a 5-year warranty for construction defects that affect the soundness or stability of the building, or that may cause the loss of the work.

2118 C.C.Q. Unless they can be relieved from liability, the contractor, the architect, the engineer and the professional technologist who, as the case may be, directed or supervised the work, and the subcontractor with respect to work performed by him, are solidarily liable for the loss of the work occurring within five years after the work was completed, whether the loss results from faulty design, construction or production of the work, or defects in the ground.

Article 2120 C.C.Q., for its part, provides a 1-year warranty for poor workmanship, meaning problems that are less serious but still cause harm to the owner of the work:

2120 C.C.Q. The contractor, the architect, the engineer and the professional technologist, for the work they directed or supervised, and, where applicable, the subcontractor, for the work he performed, are jointly bound to warrant the work for one year against poor workmanship existing at the time of acceptance or discovered within one year after acceptance.

Depending on how serious it is, a breach of the rules of the art could therefore be covered by one or the other of these warranties.

Contact our construction law lawyers

Our construction law lawyers are frequently involved in negotiating or resolving construction disputes. They can:

• Analyze your situation and provide a legal opinion on your rights and obligations
• Assess the options for resolving your problem out of court, if the situation allows
• Seek the cooperation of construction stakeholders who are standing in the way of your construction project
• Represent you, as plaintiff or defendant, in legal proceedings for poor workmanship and construction defects
• Support you with matters involving the issuance of permits and certificates
• Negotiate with the parties to prevent or resolve disputes over unforeseen circumstances or additional claims by the contractor
• Claim or contest compensation for missed deadlines
• Assert your rights in a liability action against construction professionals
• Protect your claims with legal construction hypothecs
• Represent or support you in arbitration and mediation
• Assist you with a claim for construction defects and latent defects

[1] Groulx v. Habitation unique Pilacan inc. 2007 QCCA 1292

Note: The information above is general in nature and does not constitute legal advice. For advice on your particular legal situation, feel free to contact one of our lawyers in Québec City or Lévis.