In 2020, we reviewed a Supreme Court of Canada decision (the “SCC decision”) in which it dismissed a Quebec construction company’s claim that a $30,000 regulatory fine constituted “cruel and unusual punishment” under the Canadian Charter of Rights and Freedoms (the “Charter”).

In that case, the company was found guilty of carrying out construction work as a contractor without holding a license for that purpose, which is an offence under the Quebec Building Act. The company claimed that the amount of fine, which applied specifically to corporations rather than individuals, offended its right to be protected against cruel and unusual treatment or punishment under s. 12 of the Charter.

The Supreme Court of Canada unanimously held that s. 12 of the Charter does not apply to corporations. It held that s. 12 does not protect corporations from cruel and unusual treatment or punishment because the phrase “cruel and unusual” denotes protection that only human beings can enjoy.

Quebec Contractor Challenges Individual Fine Based on Charter

More recently, and following the SCC decision, the Quebec Court of Appeal considered an individual contractor’s challenge of a regulatory fine. He argued that, as an individual and not a corporation, the fine constituted “cruel and unusual punishment” under the Charter.

In 2013, the contractor personally rented construction equipment to renovate a bathroom in a couple’s home. After the deal fell through, he was personally charged under the Building Act for having acted as a building contractor by carrying out construction work without holding a licence for that purpose. He was found guilty of the offence in 2016 and fined the $10,841 mandatory minimumfor individuals under the law.

The contractor then challenged the fine based on s. 12 of the Charter. The Court of Quebec held that mandatory minimum provision was grossly disproportionate and therefore in violation of s. 12 of the Charter.The court declared the provision as having no force or effect with respect to the contractor and instead sentenced him to pay a $50 fine.

The Quebec government appealed the decision to the Superior Court of Quebec. The court allowed the appeal and reinstated the original fine.

The contractor appealed that decision to the Quebec Court of Appeal.

Court of Appeal Declares That Fine Is Not “Cruel and Unusual Punishment”

The court began by reviewing the purpose of the legislation and the impugned provision in particular. It held that the requirement for a contractor to hold a proper licence is important for the protection of the public and its breach is not a minor one. The court also noted that the amount of the fine had been determined by the Quebec government to address ongoing problems in the construction industry in 2011, but the amount had not since been raised, except to account for inflation.

In light of these circumstances, the court held that the effects flowing from the minimum fine were not so grossly disproportionate that they should be deemed “incompatible with human dignity” in violation of s. 12 of the Charter.

Further, the court noted that under the Quebec Code of Penal Procedure, a person found guilty of an infraction may be granted additional time to pay the fine as well as other alternative remedies where the person cannot pay the fine.

In the result, the court therefore ruled that the impugned provision did not offend s. 12 of the Charterand was thus constitutional.

The contractor subsequently applied for leave to appeal to the Supreme Court of Canada, but the Court dismissed his application on September 23, 2021.

Contact DBH Law for Experienced Advice on Construction Law Matters

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The knowledgeable Calgary construction lawyers and staff at DBH Law understand the complex risks of both multimillion-dollar and smaller construction projects and the expensive disputes that can arise when something goes wrong in all cases. We handle all elements of a construction relationship. We can proactively advise and help draft important documents such as contractor and subcontractor agreements and similar, to make expectations clear and eliminate as much risk as possible. We can also represent you in any litigation or other dispute resolution that may be needed if a dispute arises.

The team of professional and experienced construction lawyers at DBH Law have the experience and technical knowledge to provide you with the legal advice needed in the modern construction industry. We understand the number of moving pieces involved in construction projects and work tirelessly to resolve issues quickly. Contact us online or by phone at 403.252.9937 to discover how we can help you today.