In a recent article titled “RBQ’s New Penalty Regime: Are You Ready?[1] ,” we noted that the Régie du bâtiment du Québec (RBQ) had published its general framework for the application of administrative monetary penalties (AMPs), confirming that this new regime would come into effect on March 9, 2026. Contractors must now contend with an additional sanction mechanism, distinct from the criminal process, but one whose legal and financial consequences can be significant.
A major difficulty remains, however: neither the Building Act (“Act”) nor the framework for applying APPs clearly specifies the defenses available to a contractor subject to such a sanction. This raises a central question: can a contractor actually defend against the imposition of an APP?
The answer is yes. However, the legal grounds on which such a defense can be based must first be identified. In this regard, one principle stands out: due diligence is the cornerstone, both for ensuring compliance and for effectively challenging the imposition of a sanction.
An administrative regime aimed at restoring compliance
Administrative penalties operate under a different logic than criminal law. Their purpose is not to punish, but to encourage the business owner to quickly correct a non-compliance situation and prevent future violations. This system is nonetheless coercive, as it can result in significant financial consequences.
The imposition of a SAP is based on the preponderance of the probabilities, a standard of proof that allows the RBQ to intervene swiftly and effectively as soon as a violation of the Act or its regulations is detected. To avoid a penalty, the contractor must demonstrate that they have taken all reasonable measures to comply with the applicable legal framework. In other words, the demonstration of due diligence— —constitutes the central element of the contractor’s defense.
Due Diligence: The Cornerstone of the Defense
Due diligence refers to active, structured, and proactive conduct in a highly regulated sector such as construction. A diligent contractor adopts a rigorous approach to compliance with the Act and its regulations: they strive to understand the scope of their obligations[2] , integrate them into their operational practices, and apply them consistently. This is a demanding objective standard that requires the implementation of concrete measures aimed at preventing any breach.
In the context of SAPs, due diligence constitutes the primary, if not the most decisive, basis for defense on which a business owner can rely, both to prevent the imposition of a penalty and to challenge its validity. Although this defense is not expressly provided for by the Act, it is consistent with recognized principles of regulatory criminal law and naturally applies in an administrative regime focused on restoring compliance.
The due diligence defense is, moreover, recognized in several regulated sectors where administrative penalties may be imposed[3] . In criminal matters[4] , the business owner may invoke it to avoid liability, which reinforces its relevance in the context of administrative penalties.
This defense does not require perfection, but it does impose a high standard. The entrepreneur must establish, through concrete, reliable, and documented evidence, that they took all reasonable measures to prevent the alleged breach. This burden rests entirely with them. In practice, the absence of such proof places the entrepreneur in a position of increased vulnerability regarding the imposition of a SAP.
Successful Defense: Fulfilling the Duty of Care
The due diligence defense is based on three fundamental duties: the duty of foresight, the duty of effectiveness, and the duty of authority[5] . These duties are cumulative and must be proven beyond a reasonable doubt for this defense to be upheld.
The Duty of Foreseeance
The duty of foresight requires the business owner to identify, in advance, the compliance risks inherent in their activities and to plan the measures necessary to prevent them. It demands a proactive and ongoing approach to applicable legal and regulatory obligations.
In practice, this duty involves implementing structured mechanisms, such as developing internal policies, training staff, verifying licenses and subcategories held, using checklists, conducting internal audits, and adopting clear procedures governing construction site management.
The Duty of Effectiveness
The duty of effectiveness requires the contractor to ensure that the measures they implement are effectively applied, consistently, and tailored to the identified risks. Due diligence is not limited to the formal adoption of policies or procedures: it requires their concrete implementation.
Supervising the work, providing clear instructions, maintaining records, and conducting periodic compliance checks are all ways to demonstrate that the established mechanisms are effective and functional.
For example, during a site visit, an RBQ inspector may require the modification of an element, such as a temporary staircase, to ensure safety, while granting a deadline to correct the situation. In such a situation, the contractor must act diligently and ensure that the necessary corrections are made within the allotted time. Failure to do so not only jeopardizes compliance but also the contractor’s ability to demonstrate that the measures implemented were truly effective.
The Duty of Authority
The duty of authority requires the contractor to intervene as soon as a non-compliance situation is identified. Inaction or tolerance in the face of a breach seriously undermines any defense based on reasonable diligence.
Conversely, prompt and appropriate action—including correcting non-compliant situations, communicating clear guidelines, and, if necessary, imposing disciplinary measures—demonstrates the actual and effective exercise of the contractor’s authority. Such a response demonstrates that the contractor ensures concrete compliance with applicable rules within its organization.
Conclusion
Due diligence relies on a concrete, structured, and proactive approach. By identifying risks, implementing appropriate measures, and acting promptly when a breach occurs, the contractor equips itself with the necessary means to demonstrate that it has acted with prudence and diligence.
Based on compliance with the three duties of care, this approach forms the core of a solid defense regarding SAP. It also serves as a genuine risk management tool, promoting compliance and limiting the entrepreneur’s legal exposure.
In this sense, due diligence is not merely a defense, but rather the best guarantee of compliance in the face of an administrative monetary penalty.
If you have any questions or need assistance regarding the administrative monetary penalty regime under the Building Act, please contact our Construction Department team.
[1] RBQ’s New Penalty System: Are You Ready? | Cain Lamarre
[2] Lévis (City) v. Tétreault; Lévis (City) v. 2629-4470 Québec Inc., 2006 SCC 12 (CanLII).
[3] For example, in environmental matters, a landmark decision: Excavation René St-Pierre Inc. v. Quebec (Sustainable Development, Environment, Wildlife, and Parks), 2015 CanLII 7296 (QC TAQ).
[4] We refer to the following judgments: Director of Criminal and Penal Prosecutions v. 7877994 Canada Inc., 2023 QCCA 1492; Pompes et moteurs Réal Jean Ltée v. Director of Criminal and Penal Prosecutions, 2025 QCCS 1450; Director of Criminal and Penal Prosecutions v. 9254-9633 Québec Inc., 2020 QCCS 4060.
[5] With regard to occupational health and safety, we refer to the judgment: 9071-3686 Québec Inc. v. Commission de la santé et de la sécurité du travail, 2014 QCCS 4449 (CanLII).
