A-21, r. 12 - Regulation respecting the conciliation and arbitration procedure for the accounts of members of the Ordre professionnel des architectes du Québec

Updated to 1 September 2012

This document has official status.

chapter A-21, r. 12

Regulation respecting the conciliation and arbitration procedure for the accounts of members of the Ordre professionnel des architectes du Québec

Architects Act

(chapter A-21, s. 3).

Professional Code

(chapter C-26, s. 88).

DIVISION I CONCILIATION

1. A client who has a dispute with an architect concerning the amount of an account for professional services that has been paid in whole or in part may file a written application for conciliation with the secretary of the Order within 120 days of the date of receipt of the account.

On receiving an application for conciliation, the secretary of the Order shall send a copy of this Regulation to the client and designate a conciliator.

The conciliator shall be designated from among the persons registered on a list drawn up for that purpose by the board of directors.

O.C. 164-93, s. 1; O.C. 689-2008, s. 1.

2. Where an architect has withdrawn or withheld sums as payment of an account from funds the architect holds or has received for or on behalf of the client, the time limit to apply for conciliation of the account runs from the time the client becomes aware that such sums have been withdrawn or withheld.

O.C. 164-93, s. 2; O.C. 689-2008, s. 2.

3. Where a written agreement entered into between an architect and the architect’s client sets the fees or the procedure for determining them, this conciliation and arbitration procedure may be used only to ensure that the services actually rendered conform to that agreement.

O.C. 164-93, s. 3; O.C. 689-2008, s. 3.

4. An architect may not institute proceedings to recover an account for professional services before the expiry of a 120-day period from the date of receipt of the account by the client.

O.C. 164-93, s. 4; O.C. 689-2008, s. 4.

5. Within 10 days of receiving an application for conciliation, the secretary of the Order shall notify the architect concerned in writing. If the architect cannot be informed personally, a notice sent to the architect’s office is deemed to have been given to the architect.

Once the secretary of the Order has received the application for conciliation, the architect may not institute proceedings to recover the account so long as the dispute may be settled by conciliation or arbitration.

Despite the foregoing, an architect may request provisional measures in accordance with article 940.4 of the Code of Civil Procedure (chapter C-25).

O.C. 164-93, s. 5; O.C. 689-2008, s. 5.

6. The conciliator shall proceed with the conciliation using such procedure as he considers appropriate.

O.C. 164-93, s. 6.

7. Any agreement reached during conciliation shall be put in writing, shall be signed by the client and the architect and shall be filed with the conciliator.

O.C. 164-93, s. 7; O.C. 689-2008, s. 6.

8. Where conciliation does not lead to an agreement within 60 days from the date of receipt of the application for conciliation, the conciliator shall send a report on the dispute to the client and to the architect.

The report shall contain the following information, where applicable:

(1)  the amount of the account in dispute;

(2)  the amount that the client acknowledges owing;

(3)  the amount that the architect acknowledges having to reimburse or is willing to accept as settlement of the dispute;

(4)  the amount suggested by the conciliator during conciliation as a payment to the architect or as a reimbursement to the client.

The conciliator shall send the client the form in Schedule I and shall indicate to him the procedure and deadline for submitting the dispute to arbitration.

The conciliation report referred to in this section is confidential. The conciliation report may not be invoked in connection with a judicial proceeding or arbitration, including arbitration under Division II initiated for the recovery of an account, unless both parties consent.

O.C. 164-93, s. 8; O.C. 689-2008, s. 7.

DIVISION II ARBITRATION

§ 1 . — Application for arbitration

9. Within 15 days of receiving the conciliation report, the client may apply for arbitration of the account by sending the form in Schedule I to the secretary of the Order together with the amount that the client acknowledges owing, if any.

Where the application for arbitration is filed after the expiry of the period referred to in the first paragraph, arbitration may be held under this Regulation if both parties consent in writing and not more than 90 days have elapsed since the receipt of the conciliation report.

O.C. 164-93, s. 9; O.C. 689-2008, s. 8.

10. The secretary of the Order shall, within 10 days of receiving an application for arbitration, notify the architect concerned in writing and send a copy of the application for arbitration to the architect. If the architect cannot be informed personally, a notice sent to the architect’s office is deemed to have been given to the architect.

O.C. 164-93, s. 10; O.C. 689-2008, s. 9.

11. An application for arbitration may not be withdrawn unless it is withdrawn in writing with the consent of the architect.

O.C. 164-93, s. 11; O.C. 689-2008, s. 10.

12. An architect who acknowledges having to reimburse an amount to a client shall deposit that amount with the secretary of the Order.

O.C. 164-93, s. 12; O.C. 689-2008, s. 11.

12.1. The amount deposited pursuant to section 9 or 12 shall be remitted by the secretary of the Order to the party in whose favour the acknowledgment has been made.

In that case, the arbitration shall proceed and pertain only to the amount still in dispute.

O.C. 689-2008, s. 12.

13. Any agreement reached by the parties after the application for arbitration has been filed shall be put in writing, shall be signed by the parties and shall be filed with the secretary of the Order. Where the parties reach an agreement after a council of arbitration has been formed, the agreement shall be recorded in the arbitration award.

O.C. 164-93, s. 13.

§ 2 . — Council of arbitration

14. The council of arbitration shall be composed of 3 arbitrators where the amount in dispute is $10,000 or more, and of a single arbitrator where the amount is less than $10,000.

In the first case, the dispute may also be heard by a single arbitrator, at the request of all the parties.

O.C. 164-93, s. 14; O.C. 689-2008, s. 13.

15. The executive committee shall appoint the member or members of the council of arbitration from among the members of the Order and, if the council is composed of 3 arbitrators, shall designate the chair of the council.

Despite the first paragraph, where the council of arbitration is composed of 3 arbitrators, one of them may be a person other than an architect.

O.C. 164-93, s. 15; O.C. 689-2008, s. 14.

16. Before acting, the members of the council of arbitration shall take the oath in Schedule II to the Professional Code (chapter C-26).

O.C. 164-93, s. 16; O.C. 689-2008, s. 15.

17. The secretary of the Order shall send written notice to the arbitrators and to the parties informing them of the formation of the council of arbitration.

O.C. 164-93, s. 17.

18. A request that an arbitrator be recused may be filed only for a reason provided for in article 234 of the Code of Civil Procedure (chapter C-25). The request shall be sent in writing to the secretary of the Order, to the council of arbitration and to the parties or their advocates within 10 days of receipt of the notice provided for in section 17 or of the day on which the reason for the request becomes known.

The executive committee shall decide the request and, where applicable, shall see that the arbitrator is replaced.

O.C. 164-93, s. 18.

§ 3 . — Hearing

19. The chair of the council shall give the parties or their advocates and the arbitrators at least 10 days’ written notice of the date, time and place of the hearing.

O.C. 164-93, s. 19.

20. The parties are entitled to be represented or assisted by an advocate.

O.C. 164-93, s. 20.

21. The council of arbitration shall, as soon as possible, hear the parties, receive their evidence or record any failure on their part. For those purposes, it shall follow such procedure as it considers appropriate.

O.C. 164-93, s. 21.

22. A party requesting that the testimony be recorded shall assume the cost thereof. The request shall be made at least 5 days before the date set for the hearing.

O.C. 164-93, s. 22.

23. Should an arbitrator die or be unable to act, the other arbitrators shall see the matter through.

If the council of arbitration consists of a single arbitrator, he shall be replaced by a new arbitrator and the dispute shall be reheard.

O.C. 164-93, s. 23.

§ 4 . — Arbitration award

24. The council of arbitration shall issue its award within 45 days of the end of the hearing.

O.C. 164-93, s. 24.

25. The award shall be a majority award of the members of the council.

The award shall be substantiated and shall be signed by all the members. Where a member refuses or is unable to sign, the others shall mention that fact and the award shall have the same effect as though it were signed by all the members.

O.C. 164-93, s. 25.

26. The costs incurred by a party for the arbitration shall be borne by that party.

O.C. 164-93, s. 26.

27. In its award, the council of arbitration may uphold or reduce the amount of the account in dispute, and may also determine the reimbursement, if any, to which a party may be entitled. For those purposes, the arbitration council may take into consideration the quality of services rendered.

O.C. 164-93, s. 27; O.C. 689-2008, s. 16.

28. In its award, the council of arbitration shall award arbitration expenses, which are the expenses incurred by the Order for the arbitration. Despite the foregoing, the total amount of the arbitration expenses may in no case exceed 15% of the amount to which the arbitration pertains.

Where the account in dispute is upheld in whole or in part, or where a reimbursement is granted, the council of arbitration may add interest and an indemnity calculated in accordance with articles 1618 and 1619 of the Civil Code from the date of the application for conciliation.

Where an agreement is reached between the parties before the arbitration award, the council shall nevertheless award arbitration expenses in accordance with this section.

O.C. 164-93, s. 28; O.C. 689-2008, s. 17.

29. The arbitration award is final, without appeal, is binding on the parties and is subject to compulsory execution in accordance with articles 946 to 946.6 of the Code of Civil Procedure (chapter C-25).

O.C. 164-93, s. 29; O.C. 689-2008, s. 18.

30. The arbitration award shall be filed with the secretary of the Order who shall send it to each party or to their advocates and to the syndic within 10 days after being filed.

O.C. 164-93, s. 30; O.C. 689-2008, s. 19.

31. This Regulation replaces the Regulation respecting the procedure for conciliation and arbitration of accounts of architects (R.R.Q., 1981, c. A-21, r. 8).

O.C. 164-93, s. 31.

32. Omitted.

O.C. 164-93, s. 32.

SCHEDULE I

(ss. 8 and 9)

APPLICATION FOR ARBITRATION OF AN ACCOUNT

I, the undersigned, ..............

(client’s name)

..............

(domicile)

declare that:

(1) ..............

(architect’s name)

is claiming from me (or refuses to reimburse to me) a sum of money for professional services.

(2) (Paragraph revoked).

(3) I am applying for arbitration of the account under the Regulation respecting the conciliation and arbitration procedure for the accounts of members of the Ordre professionnel des architectes du Québec (chapter A-21, r. 12).

(4) I have received a copy of the Regulation mentioned above and have taken cognizance thereof.

(5) I agree to submit to the procedure provided for in that Regulation and, where required, to pay to

..............

(architect’s name)

the amount of the arbitration award.

..............

Signature

O.C. 164-93, Sch. I; O.C. 689-2008, s. 20.

SCHEDULE II

(Revoked)

O.C. 164-93, Sch. II; O.C. 689-2008, s. 21.

REFERENCES

O.C. 164-93, 1993 G.O. 2, 832

O.C. 689-2008, 2008 G.O. 2, 2913

S.Q. 2008, c. 11, ss. 212 and 213