This article originally appeared in French in the April 27, 2016 edition of the bulletin “Les experts de la construction” published by the Association patronale des entreprises en construction du Québec.
Since 2013, Quebec’s construction commission, the Commission de la construction du Québec (CCQ), has require employers in the construction industry to use a web-based referral service called the “Carnet référence construction” to fulfill their manpower needs. This recruitment tool replaces the now illegal practice of employers contacting a union directly to obtain the services of one or more construction workers. In order to ensure the accuracy of the information contained in the online referral database, known simply as the “Carnet”, the regulations under the Act respecting Vocational Training and Workforce Management in the Construction Industry1 mandate the sending of hiring and layoff notices by employers.
Since January 2014, in order to ensure compliance with this obligation, the CCQ has sent out thousands of statements of offence imposing fines of between $1,039 and $2,0792, to the dismay of countless contactors. Under the circumstances, we thought it appropriate to bring to your attention two recent decisions where the contractors involved successfully contested the statements of offence they received3.
The contractors were accused of failing to notify the CCQ of the hiring of a worker. They each contested he statement, submitting a single argument in their defence: the prosecutor was unable to prove the specific date on which the offence had occurred. The prosecutor maintained that proving that date was irrelevant, as the offence had been ongoing on a daily basis, arguing that it was sufficient to show that at any given point during that time period, the employer had been guilty of the offence.
The Court of Québec sided with the employers: this was a discrete offence that by definition had to have occurred at a specific point in time. The regulation stated that the notice was to be sent within 48 hours of the worker’s hiring, not counting Saturdays and Sundays. According to the logic inherent in the regulation, the offence would therefore occur upon the expiration of that 48-hour period. The date of the offence thus had to be proved beyond a reasonable doubt. The other elements of the offence that the prosecution had to prove were the status of employer, the status of employee, performance of work by the employee, the latter’s hiring, and that the work performed was subject to the Act.
In light of these decisions, it can be concluded that the prosecution’s burden in cases of an alleged failure to send a notice of the hiring, layoff or voluntary departure of an employee includes proving the date of the offence beyond any reasonable doubt.
It should be stressed that it is nevertheless important to diligently respect the directives and deadlines imposed by the CCQ. For one thing, the CCQ is going to remedy this particular evidentiary shortcoming sooner rather than later and, furthermore, failure to comply with these regulations constitutes an offence with very sizable fines for what is, more often than not, merely an administrative oversight.
Given the rapid development of the case law concerning notices of hiring and layoffs, we recommend that you consult a lawyer if you receive a statement of offence from the CCQ. Also please note that if you decide to contest the statement, you must register a plea of not guilty within 30 days of receiving it.