H-4 - Bailiffs Act

Full text
chapter H-4
Bailiffs Act
BAILIFFSJune 22 1995October 1 1995
Chapter H-4 is replaced by the Court Bailiffs Act (chapter H-4.1). (1995, c. 41, s. 37).
1995, c. 41, s. 37.
DIVISION I
COMPETENCE OF BAILIFFS
1989, c. 57, s. 2.
1. A bailiff is an officer empowered to serve written proceedings issuing out of any court, carry out judicial decisions that are executory and perform any other duty devolving upon him by law. A bailiff is also empowered to make purely material ascertainments, excluding any opinion on the factual or legal consequences that may result therefrom; such ascertainments have value merely as information.
The court officer referred to as a “huissier de justice” may also be referred to as a “huissier”.
1974, c. 13, s. 1; 1982, c. 32, s. 101; 1989, c. 57, s. 3.
1.1. Every bailiff must perform his duties without partiality. The giving of information to any person liable to be party to legal proceedings does not constitute an act of partiality.
1989, c. 57, s. 3.
DIVISION II
PERMITS
2. No person may act as bailiff or perform the duties of bailiff, even in a municipal court, without holding a permit issued by the Minister of Justice for that purpose.
1974, c. 13, s. 2; 1989, c. 57, s. 4.
3. (Repealed).
1974, c. 13, s. 3; 1989, c. 57, s. 5.
4. To obtain a permit, an applicant must:
(a)  transmit his application to the Minister in the form prescribed by regulation;
(b)  be domiciled in Québec for at least one year;
(c)  be of full age;
(d)  be the holder of a diploma of college studies in legal technology issued by the Minister of Education, or a diploma deemed equivalent by the Minister, or any other diploma the obtention of which requires, in the opinion of the Minister, at least the knowledge required for the obtention of either of those diplomas;
(d.1)  have taken the training course provided by the Ministère de la Justice;
(e)  have served a period of professional training of at least six months with a practising bailiff;
(f)  have passed the examination of the Ministère de la Justice showing a sufficient knowledge in particular of this Act and the regulations, of the relevant provisions of the Code of Civil Procedure (chapter C-25) and of related laws or matters;
(g)  (subparagraph repealed);
(h)  not have been found guilty of an indictable offence under Part IX or sections 265, 266, 380 to 402 of the Criminal Code (Revised Statutes of Canada, 1985, chapter C-46) or, to the extent that it concerns a conspiracy with a view to committing such a criminal offence, under Part XIII of the said Code;
(i)  furnish the Minister with any other information prescribed by regulation;
(j)  (subparagraph repealed).
Before serving the period of professional training referred to in subparagraph e of the first paragraph, the applicant shall obtain a trainee’s permit from the Minister if he meets the conditions set out in subparagraphs b, c, d, d.1, h and i of the first paragraph.
The form and tenor of the application for a trainee’s permit and the term of the permit shall be determined by regulation.
1974, c. 13, s. 4; 1977, c. 5, s. 14; 1989, c. 57, s. 6; 1993, c. 51, s. 72; 1994, c. 16, s. 50.
4.1. Before issuing a permit or a trainee’s permit, the Minister shall inquire as to whether the applicant has the required probity and competence to perform the duties of bailiff.
1989, c. 57, s. 7.
5. The Minister shall issue a permit if the applicant meets the conditions contemplated in sections 4 and 4.1 and provides such security, pays such costs and makes such oath as are prescribed by regulation. However, no security is required for a bailiff appointed to a municipal court if he performs his duties only in that court.
Every permit holder has competent authority to perform the duties of bailiff in all the judicial districts of Québec.
1974, c. 13, s. 5; 1989, c. 57, s. 8.
6. Notwithstanding section 5, the Minister may, by exception, issue a permit to a person not fulfilling all the conditions contemplated in paragraphs d, e and f of section 4 when a judicial district is not served by a sufficient number of bailiffs.
In such case, the permit holder may exercise his duties of bailiff only in the single judicial district indicated by the permit.
1974, c. 13, s. 6.
7. The rights conferred by a permit cannot be transferred to another person.
1974, c. 13, s. 7.
8. The holder of a permit must pay to the Minister before 30 April each year the annual duties prescribed by regulation.
1974, c. 13, s. 8; 1989, c. 57, s. 10.
9. The Minister shall revoke the permit of a bailiff who no longer meets the requirements of paragraphs b and h of section 4.
He shall also revoke the permit of a bailiff who omits to pay the annual duties referred to in section 8 or fails to provide the security prescribed by regulation.
1974, c. 13, s. 9; 1982, c. 32, s. 102; 1989, c. 57, s. 11.
10. (Repealed).
1974, c. 13, s. 10; 1982, c. 32, s. 103.
11. The Minister shall, by registered or certified mail, give notice of his decision to the person to whom he refuses to grant a permit or whose permit he revokes and state the reason for such decision.
1974, c. 13, s. 11; 1975, c. 83, s. 84; 1982, c. 32, s. 104.
12. The Minister shall transmit a copy of the letter contemplated in section 11, where it concerns the revocation of a permit, to the prothonotary of the judicial district where the bailiff’s office is situated and to all bailiffs.
The prothonotary shall post up the letter in the Court House and notify the Minister in writing of the posting date.
1974, c. 13, s. 12; 1982, c. 32, s. 105; 1989, c. 57, s. 12.
12.0.1. The Minister may suspend the permit of a bailiff who fails to produce the documents required under section 29.6.
Before suspending the permit, he shall give the bailiff, by registered or certified mail, a ten days’ notice of his intention and the reasons for the suspension.
The bailiff may present his views before the expiry of the ten days.
1989, c. 57, s. 13.
DIVISION II.1
COMMITTEE ON DISCIPLINE
1982, c. 32, s. 106.
12.1. The Government shall establish a committee on discipline consisting of three members, including a chairman, chosen from among the members of the Barreau du Québec, a bailiff and a person who is neither an advocate nor a bailiff.
The Minister of Justice shall designate a secretary from among the personnel of the civil service.
The Government shall fix the fees and allowances of the members of the committee who are not civil servants.
1982, c. 32, s. 106.
12.2. The members of the committee are appointed for a term of office of three years. Notwithstanding the expiry of their terms, the members shall remain in office until they are reappointed or replaced.
If a member of the committee is unable to act, through absence, illness or conflict of interest, the Government shall appoint a person having the same qualifications, to replace him.
1982, c. 32, s. 106; 1989, c. 57, s. 14.
12.3. The committee shall meet as often as necessary, upon being called by the chairman. The meetings must be held in the territory of the Communauté urbaine de Montréal or the Communauté urbaine de Québec or in the immediate vicinity of either of those communities.
1982, c. 32, s. 106; 1989, c. 57, s. 15.
12.4. In no case may members of the committee be prosecuted by reason of official acts done in good faith in the performance of their duties.
1982, c. 32, s. 106.
DIVISION II.1.1
COMPLAINTS
1989, c. 57, s. 16.
12.5. The committee shall receive and examine every complaint against a bailiff who has been convicted of an offence under this Act or the regulations, accusing him of having omitted or refused to comply with the prescriptions of this Act or the regulations.
The committee shall also examine any complaint questioning the honesty or competence of a bailiff or accusing him of having transgressed the code of ethics prescribed by regulation.
1982, c. 32, s. 106; 1989, c. 57, s. 17; 1990, c. 4, s. 448.
12.6. A complaint may be made by any person; it must be made in writing, sent to the secretary of the committee and give an account of the acts charged.
The committee shall make a summary examination of the complaint, and if it finds it unfounded, or of a minor nature or minor importance, it shall advise the complainant and the bailiff that it will not proceed with the examination and indicate its reasons.
1982, c. 32, s. 106.
12.7. After calling the bailiff, the committee shall proceed to examine the complaint. It shall hear the bailiff and, if necessary, his attorney, his witnesses and any other interested person.
It may also call any qualified witness.
Any witness called who does not appear before the committee or refuses to testify is guilty of an offence against this Act.
1982, c. 32, s. 106.
12.7.1. Every hearing shall be public.
The committee may, however, of its own initiative or upon request, in the interest of morality or public order, order that a hearing be held in camera or ban the publication or release of any information or documents it indicates.
Every person who, by his act or omission, infringes an order to hold a hearing in camera or an order banning publication or release commits contempt of court.
1989, c. 57, s. 18; 1990, c. 4, s. 449.
12.8. Any party may ask that a member of the committee be recused for any of the grounds given in articles 234, except paragraph 7, and 235 of the Code of Civil Procedure (chapter C-25).
Moreover any member of the committee who is aware of a ground of recusation to which he is liable is bound to make a declaration of it.
1982, c. 32, s. 106.
12.9. If, after the hearing, the committee is satisfied that the complaint is founded, it shall impose on the bailiff one or several of the following penalties, according to the seriousness or frequency of the breach of the prescriptions of this Act or the regulations:
(1)  a reprimand;
(2)  a fine of not less than $250 nor more than $1 000;
(3)  the suspension of his permit for a period of not under one month nor over 12 months;
(4)  the revocation of his permit, with an indication of the period during which he cannot reapply for a permit.
1982, c. 32, s. 106; 1989, c. 57, s. 19.
12.10. The decision of the committee shall be made by a majority of its members; it must state the reasons on which it is based and be signed.
1982, c. 32, s. 106; 1989, c. 57, s. 19.
12.11. A decision of the committee imposing a fine may, in default of voluntary payment, be homologated by the Court of Québec and such decision shall become executory as a judgment of that court on the twenty-first day from the date on which it is transmitted to the respondent by registered or certified mail, and shall entail the suspension of the permit of the respondent until he pays the amounts due.
1989, c. 57, s. 19.
12.12. A decision of the committee imposing the suspension or revocation of the permit of a bailiff shall, subject to section 15, become executory from the date specified in the decision.
1989, c. 57, s. 19.
12.13. Where a decision of the committee imposes the suspension or revocation of the permit of a bailiff, the secretary of the committee shall send a copy of the decision of the committee to the parties, to the Minister and to the prothonotary of the judicial district where the office of the bailiff is situated and to all bailiffs.
The prothonotary shall post up the decision in the Court House and notify the committee and the Minister in writing of the date of posting.
Where a decision of the committee imposes a fine or dismisses a complaint, the secretary of the committee shall send a copy of the decision to the parties and to the Minister.
1989, c. 57, s. 19.
12.14. The secretary of the committee shall transmit to the Minister, before 31 May each year, an annual report of the activities of the committee in which he shall indicate the number and nature of complaints made, of complaints dismissed and of penalties imposed.
1989, c. 57, s. 19.
DIVISION II.1.2
CONDITIONS FOR RESUMPTION OF DUTIES OF BAILIFF
1989, c. 57, s. 19.
12.15. A bailiff who abandons the duties of bailiff or whose permit has been revoked may resume such duties under the conditions set out in sections 12.16, 12.17 and 12.18.
1989, c. 57, s. 19.
12.16. Where a bailiff has abandoned the duties of bailiff, the conditions for the issue of a new permit are the following:
(1)  in the case of abandonment for a period of under two years, the applicant must fulfil the requirements of subparagraphs a, b, h and i of the first paragraph of section 4 and section 4.1;
(2)  in the case of abandonment for a period of two to five years, the applicant must fulfil the requirements of subparagraphs a, b, d.1, e, h and i of the first paragraph of section 4 and section 4.1;
(3)  in the case of abandonment for a period of over five years, the applicant must fulfil the requirements of subparagraphs a, b, d.1, e, f, h and i of the first paragraph of section 4 and section 4.1.
1989, c. 57, s. 19.
12.17. A bailiff whose permit has been revoked under the first paragraph of section 9 or under paragraph 4 of section 12.9 cannot reapply for a permit before the expiry of the period specified in the decision of the Minister or of the committee, as the case may be.
The bailiff is eligible for a new permit if he fulfils the requirements of subparagraphs a, b, d.1, e, f, h and i of the first paragraph of section 4 and section 4.1.
1989, c. 57, s. 19.
12.18. A bailiff whose permit has been revoked under the second paragraph of section 9 is eligible for a new permit if he pays the exigible annual duties to the Minister or provides him with the security prescribed by regulation.
He shall also pay to the Minister such penalty as is prescribed by regulation.
1989, c. 57, s. 19.
DIVISION II.2
APPEAL
1982, c. 32, s. 106.
13. Every person whose application for a permit is refused or whose permit is suspended or revoked may appeal from the Minister’s decision or that of the committee on discipline to a judge of the Court of Québec.
1974, c. 13, s. 13; 1982, c. 32, s. 107; 1988, c. 21, s. 66.
14. The appeal is brought by a motion served on the Minister or the committee on discipline, if necessary. Such motion must be filed in the office of the Court of Québec at the chief-place of the judicial district where the applicant is domiciled, within thirty days of the mailing of the notice of the decision of the Minister or of the committee on discipline.
1974, c. 13, s. 14; 1982, c. 32, s. 108; 1988, c. 21, s. 66.
15. The appeal shall not suspend execution of the decision.
Nevertheless, the judge may, on motion served upon the Minister or, if necessary, the committee on discipline, order non-execution of a decision to suspend or revoke a permit.
1974, c. 13, s. 15; 1982, c. 32, s. 109.
16. The judge shall, before rendering any decision on an appeal, allow the parties to be heard within thirty days of the filing of the motion in the office of the court and for that purpose give them in the manner he considers appropriate a notice of at least five clear days of the date and hour when and place where they may be heard.
If a party so called does not appear or refuses to be heard at the sitting fixed for that purpose or at an adjournment of such sitting, the judge may nevertheless hear the matter and no judicial recourse shall be based on the fact that he so proceeded in the absence of such party.
Subject to the inconsistent provisions of this act, the rules relating to the production of evidence and to hearings provided in the Code of Civil Procedure apply to such appeal as if it were a case in first instance before the Court of Québec.
1974, c. 13, s. 16; 1988, c. 21, s. 66.
17. The judge may confirm, vary or quash any decision submitted to him and render the decision which, in his opinion, should have been rendered in first instance. The decision of the judge shall be final.
1974, c. 13, s. 17.
18. The decision must be recorded in writing and signed by the judge who rendered it. It must contain, in addition to the conclusions, the reasons upon which it is founded.
1974, c. 13, s. 18.
19. A certified copy of the decision must be sent by registered or certified mail to each party, to the advisory committee contemplated in section 22 and to the Barreau du Québec. The original shall be kept in the office of the Court of Québec.
1974, c. 13, s. 19; 1975, c. 83, s. 84; 1977, c. 5, s. 229; 1988, c. 21, s. 66; 1989, c. 57, s. 20.
20. No act done before the posting up contemplated in section 12 or 12.13 may be invalidated by the sole fact that it was done by a person whose permit to act as bailiff was revoked or suspended.
1974, c. 13, s. 20; 1989, c. 57, s. 21.
21. (Repealed).
1974, c. 13, s. 21; 1989, c. 57, s. 22.
DIVISION III
ADVISORY COMMITTEE
22. The Government shall establish an advisory committee to advise the Minister on the application of this Act and the regulations, consisting of six members including three bailiffs, two members of the Barreau du Québec and one other member who is neither a bailiff nor an advocate.
1974, c. 13, s. 22; 1977, c. 5, s. 229; 1989, c. 57, s. 23.
23. The members of the advisory committee shall receive no remuneration except in such cases, on such conditions and to such extent as the Government may determine. They are entitled, however, on such conditions and to such extent as the Government may determine, to be reimbursed for expenses incurred in the performance of their duties.
1974, c. 13, s. 23; 1989, c. 57, s. 24.
24. The Minister may designate an officer of the Ministère de la Justice to act as secretary to the advisory committee.
1974, c. 13, s. 24; 1977, c. 5, s. 14.
DIVISION IV
REGULATIONS
25. The Government may make regulations to:
(a)  determine the form and tenor of applications for permits;
(b)  determine the costs and annual duties that the applicant or holder must pay and the information he must furnish;
(b.1)  determine the form and tenor of an application for a trainee’s permit and the term of such permit;
(c)  determine the form and the amount of the security, or the guarantee replacing it, to be given by a bailiff or a person applying for a permit;
(c.1)  determine the amount of penalty that the bailiff must pay to the Minister where he has failed to pay the annual duties exigible or to provide the security prescribed by regulation;
(c.2)  determine the form and tenor of the oath that the bailiff is required to make;
(d)  prescribe the conditions of deposit and withdrawal of the funds a bailiff must deposit in a trust account;
(e)  fix the delay in which a bailiff must pay the moneys he has collected or received for another person;
(f)  determine a procedure for the arbitration of bailiffs’ accounts, provide for a right of appeal in such matter before a judge of the Court of Québec and determine the procedure applicable to such appeal;
(g)  determine the professions, trades, industries, businesses, offices or duties incompatible with the exercise of the office of bailiff;
(h)  establish a code of ethics for bailiffs;
(i)  determine the conditions of exercise of activities of a person serving a period of professional training and the professional acts he may perform;
(j)  prescribe the books, registers, accounts and other documents a bailiff must keep;
(j.1)  determine the costs for copying a thing seized under section 29.4;
(k)  establish, after consulting with the advisory committee, the tariff of bailiff’s fees and a tariff of bailiffs’ travelling expenses;
(l)  give to a corporation of bailiffs the mandate to apply, in whole or in part, on the conditions it determines, this Act and the regulations made under this section;
(m)  (subparagraph repealed).
Regulations made under subparagraphs c and k of the first paragraph do not apply to a bailiff appointed to a municipal court if he performs his duties only in that court.
Regulations made under subparagraphs d, e, f and j of the first paragraph do not apply to a bailiff appointed to a municipal court if he performs his duties only in that court, except where he is called upon to collect or receive sums of money on behalf of the municipality which requests him to hold such sums in trust or, as the case may be, to file a statement of fees and travelling expenses in the performance of his duties.
1974, c. 13, s. 25; 1982, c. 32, s. 110; 1987, c. 41, s. 1; 1988, c. 21, s. 66; 1989, c. 57, s. 25.
DIVISION V
REGISTERS, TRUST ACCOUNTS AND INSPECTIONS
26. Every bailiff must keep at his office the books, registers, accounts and other documents prescribed by regulation.
1974, c. 13, s. 26; 1989, c. 57, s. 26.
27. A bailiff must deposit in a trust account the funds he collects on behalf of others and comply with the conditions prescribed by regulation for the deposit and withdrawal of such funds.
1974, c. 13, s. 27; 1989, c. 57, s. 27.
28. To see to the application of this act, inspectors shall be appointed and remunerated in accordance with the Public Service Act (chapter F-3.1.1).
1974, c. 13, s. 28; 1978, c. 15, s. 140; 1983, c. 55, s. 161.
29. An inspector may, when carrying out an inspection, have access at any reasonable time to a bailiff’s office, examine the books, registers, accounts or other documents containing information relating to the performance of the duties of bailiff, take notes or make copies thereof and require any information relating to the application of this Act or the regulations.
An inspector may also demand reasonable assistance from a bailiff who is on the premises of an inspection.
The inspector shall, on request, identify himself and produce a certificate of his quality signed by the Minister.
1974, c. 13, s. 29; 1989, c. 57, s. 28.
29.1. An inspector may, when carrying out an inspection, seize any books, registers, accounts, documents or other property if he has reasonable grounds to believe that an offence against this Act or the regulations thereunder has been committed in relation to or by means of such documents.
He shall prepare a report setting out
(1)  the date, time and place of the seizure;
(2)  the circumstances of and reasons for the seizure;
(3)  a summary description of the thing seized;
(4)  the name of the person from whom the thing was seized;
(5)  any information allowing the identification of the owner or possessor of the thing seized;
(6)  the identity and capacity of the seizor.
1989, c. 57, s. 28.
29.2. Every inspector shall, as soon as practicable, make a report to the Minister of any seizure he makes.
1989, c. 57, s. 28.
29.3. The thing seized must be deposited with the Minister or at any other place he designates.
Where the thing seized is an amount of money, the Minister shall deposit it in a trust account.
1989, c. 57, s. 28.
29.4. The Minister shall, upon request, allow the owner or possessor of the thing seized to examine it and, upon payment of the costs fixed by regulation, to make a copy thereof.
1989, c. 57, s. 28.
29.5. The thing seized must be returned to the owner or possessor thereof after the expiry of a period of 90 days from the date of seizure, unless penal proceedings have been instituted or unless a complaint has been filed with the committee.
Where the inspector is of opinion, after verification during that period, that no offence against this Act or the regulations thereunder has been committed, the thing seized shall be returned to its owner or possessor as soon as practicable.
A judge may, on the application of the seizor, order that the period of detention be extended for a period of not over 90 days.
1989, c. 57, s. 28; 1992, c. 61, s. 324.
29.6. An inspector may, upon written application, require of a bailiff, within five days or within such additional reasonable time as he may fix, that he produce, free of charge and by registered or certified mail, a copy of the books, registers, accounts or other documents referred to in section 26, if he has reasonable grounds to believe that an offence against this Act or the regulations thereunder has been committed and if he is of the opinion that such books, registers, accounts or other documents are related to the offence.
1989, c. 57, s. 28.
30. No person may hinder an inspector in the performance of his duties, in particular by misleading him by concealment or false declarations, by refusing to produce a document or information he is entitled to examine or demand, by concealing or destroying a document useful to an inspection or by refusing to give him reasonable assistance.
1974, c. 13, s. 30; 1989, c. 57, s. 29.
DIVISION VI
PENAL PROVISIONS
1990, c. 4, s. 450.
31. Whoever contravenes section 2 is guilty of an offence and is liable to a fine of not less than $700 nor more than $1 400 for the first offence, and to a fine of not less than $1 400 nor more than $2 800 for every subsequent conviction.
1974, c. 13, s. 31; 1986, c. 58, s. 44; 1990, c. 4, s. 451; 1991, c. 33, s. 57.
32. Every bailiff who omits or refuses to execute or make a return of a written proceeding, or does not pay, within the delay fixed by regulation, the moneys he has collected or received or does not render an exact account thereof is guilty of an offence against this Act and is liable to the penalties provided in section 31.
1974, c. 13, s. 32; 1989, c. 57, s. 30.
33. Every person who contravenes the third paragraph of section 12.7, the second paragraph of section 12.8 or any of sections 26, 27 and 30 is guilty of an offence and is liable to a fine of not less than $250 nor more than $1 000 for the first offence and, for any subsequent conviction, to a fine of not less than $500 nor more than $2 000.
1974, c. 13, s. 33; 1986, c. 58, s. 45; 1989, c. 57, s. 31; 1990, c. 4, s. 452.
34. (Repealed).
1974, c. 13, s. 34; 1989, c. 57, s. 32; 1992, c. 61, s. 325.
DIVISION VII
FINAL PROVISIONS
35. The Minister of Justice is entrusted with the application of this act.
1974, c. 13, s. 39.
36. (This section ceased to have effect on 17 April 1987).
1982, c. 21, s. 1; U. K., 1982, c. 11, Sch. B, Part I, s. 33.
REPEAL SCHEDULE

In accordance with section 17 of the Act respecting the consolidation of the statutes (chapter R-3), chapter 13 of the statutes of 1974, in force on 31 December 1977, is repealed, except sections 35 to 37 and 40, effective from the coming into force of chapter H-4 of the Revised Statutes.