f-3.2.0.1.1 - Act respecting the Fonds d’aide aux actions collectives

Updated to 13 December 1999

This document has official status.

chapter R-2.1

Act respecting the class action

TITLE I CLASS ACTION

1. (Amendment integrated into c. C-25, a. 34).

1978, c. 8, s. 1.

2. (Amendment integrated into c. C-25, a. 954).

1978, c. 8, s. 2.

3. (Amendment integrated into c. C-25, aa. 999-1051).

1978, c. 8, s. 3.

4. (Amendment integrated into c. C-25, Book X).

1978, c. 8, s. 4.

TITLE II ASSISTANCE TO CLASS ACTIONS

CHAPTER I DEFINITIONS

5. In this title, unless the context indicates a different meaning,

(a)  “assistance” means the assistance granted under Chapter III of this title;

(b)  “recipient” means the person who receives assistance;

(c)  “Fonds” means the Fonds d’aide aux recours collectifs established by section 6;

(d)  “representative” means the person who is ascribed the status of representative for the bringing of a class action, in accordance with article 1003 of the Code of Civil Procedure;

(e)  “applicant” means a person who applies for assistance.

1978, c. 8, s. 5.

CHAPTER II THE FONDS

6. An agency is established under the name of “Fonds d’aide aux recours collectifs”.

The Fonds is a legal person established in the public interest.

1978, c. 8, s. 6; 1999, c. 40, s. 242.

7. The object of the Fonds is to ensure the financing of class actions in the manner provided for by this title and to disseminate information respecting the exercise of such actions.

1978, c. 8, s. 7; 1984, c. 46, s. 31.

8. The Fonds shall be administered by three persons including a president, appointed for not more than three years by the Government, after consultation with the Barreau du Québec and the Commission des services juridiques.

The Government shall fix, where necessary, the salary, additional salary or fees that may be paid to each of the administrators, and their allowances or indemnities.

1978, c. 8, s. 8.

9. An administrator shall remain in office on the expiry of his term until he is reappointed or replaced.

1978, c. 8, s. 9.

10. If an administrator is absent or unable to act, the Government may appoint a person to replace him temporarily.

1978, c. 8, s. 10; 1999, c. 40, s. 242.

11. The Fonds shall have its head office at the place determined by the Government; a notice of the location or of any change of location of the head office shall be published in the Gazette officielle du Québec.

The Fonds may hold its sittings anywhere in Québec.

1978, c. 8, s. 11.

12. Two members constitute a quorum of the Fonds. In the case of a tie-vote, the president has a casting vote.

An administrator having a personal interest related to an application for assistance must declare his interest and must abstain from participating in the decision, under pain of forfeiture of office.

However, if such an interest results solely from the fact that the administrator is a member of the group on behalf of which an application for assistance is made to the Fonds, the administrator shall participate in the decision but must declare his interest.

1978, c. 8, s. 12.

13. The secretary and the other officers of the Fonds are appointed and remunerated in accordance with the Public Service Act (chapter F-3.1.1).

1978, c. 8, s. 13; 1986, c. 61, s. 37.

14. Minutes of the sittings of the Fonds approved by the administrators are authentic; the same applies to copies or extracts certified by the president or the secretary.

1978, c. 8, s. 14.

15. The fiscal year of the Fonds ends on 31 March each year.

1978, c. 8, s. 15.

16. Not later than 1 September each year, the Fonds shall send its budget to the Minister of Justice for the ensuing fiscal year. Such budget shall be without effect so long as it has not been approved by the Minister.

The Government may dismiss any administrator of the Fonds who acquiesces to an expenditure not provided for by the budget of the Fonds, except an expenditure not exceeding the revenues of the Fonds not provided for in the budget.

1978, c. 8, s. 16.

17. The Fonds shall send to the Minister of Justice, not later than 30 June each year, a report of its activities for the previous fiscal year.

The Minister shall table such report before the National Assembly if it is in session, or, if it is not in session, within thirty days from the opening of the next session or resumption, as the case may be.

1978, c. 8, s. 17.

18. The Fonds shall at any time give to the Minister of Justice any information or report he requires on its activities.

1978, c. 8, s. 18.

19. The Auditor General shall, each year and, in addition, whenever the Government so orders, audit the books and accounts of the Fonds.

1978, c. 8, s. 19.

CHAPTER III ASSISTANCE

DIVISION I GRANTING ASSISTANCE

20. Every representative and every person intending to be ascribed such status may apply in writing for assistance from the Fonds.

1978, c. 8, s. 20.

21. The applicant shall set forth in his application the basis of his claim and the essential facts determining its exercise, and shall describe the group on behalf of which he intends to bring or is bringing the class action.

He shall also state his financial condition and that of the members of the group who have made themselves known; he shall indicate the purposes for which the assistance is intended to be used, the amount required, and any other revenue or service available to him.

1978, c. 8, s. 21.

22. The applicant shall certify in his application that the information supplied by him is accurate, and he shall authorize the Fonds to verify the accuracy thereof.

He shall furnish the vouchers and other information the Fonds requires.

1978, c. 8, s. 22.

23. The Fonds shall study the applicant’s application and it may, for that purpose, meet with the applicant or his attorney and allow him to present observations.

In order to determine whether to grant assistance, the Fonds shall assess whether the class action may be brought or continued without such assistance; in addition, if the status of representative has not yet been ascribed to the applicant, the Fonds shall consider the probable existence of the right he intends to assert and the probability that the class action will be brought.

Where the representative or a member requesting to be substituted for him intends to appeal the judgment which decides the questions of law or fact dealt with collectively, the Fonds, in order to determine whether to grant or terminate assistance, shall assess whether the action may be continued without such assistance and whether the appeal is likely to succeed if brought.

The Fonds may defer the study of a part of the application, refuse assistance or grant it, in whole or in part; in all cases, it shall render its decision within one month following receipt of the application.

1978, c. 8, s. 23; 1991, c. 19, s. 1; 1997, c. 43, s. 555.

24. If the Fonds defers the study of a part of the application or if it refuses to grant assistance, it shall notify the applicant in writing of its decision and indicate the reasons therefor.

1978, c. 8, s. 24.

25. If assistance is granted, the Fonds shall agree upon the conditions with the applicant or his attorney.

The agreement between the Fonds and the recipient shall, in particular, provide for:

(a)  the amount and use of the assistance;

(b)  the advances that may be paid to the recipient;

(c)  the terms and conditions of producing accounts and expenditures;

(d)  the reports the recipient or his attorney must supply to the Fonds;

(e)  the cases where assistance may be suspended or diminished;

(f)  the terms and conditions of reimbursing the advances received or of assistance, if such is the case;

(g)  the subrogation of the Fonds in the rights of the recipient or his attorney up to the amounts paid to them.

1978, c. 8, s. 25.

26. An administrator of the Fonds may grant the applicant temporary assistance, which shall not exceed the amount prescribed by regulation of the Fonds, if he considers that immediate assistance is necessary to avoid the loss or non-exercise of the applicant’s right and if the Fonds cannot meet in time to decide the applicant’s application. The decision of the administrator must be substantiated.

The applicant must reimburse the amounts so received if the Fonds thereafter refuses to grant assistance.

1978, c. 8, s. 26.

DIVISION II RIGHTS AND OBLIGATIONS OF THE FONDS AND OF THE RECIPIENT

27. The recipient is entitled to the payment by the Fonds of the expenses expedient for the preparation or bringing of the class action in the manner provided for in the agreement contemplated in section 25.

1978, c. 8, s. 27.

28. The recipient must notify the Fonds of any fact changing the information supplied in accordance with sections 21 and 22.

He must also send to the Fonds a copy of the judgment of the court authorizing the bringing of the class action or terminating it, ordering the publication of a notice or of such a nature as to amend the agreement.

1978, c. 8, s. 28.

29. The Fonds shall pay for the recipient in the manner provided for in the agreement contemplated in section 25, up to the amount of the assistance:

(a)  the fees of the recipient’s attorney;

(b)  the fees and costs of experts and advocates-counsel acting for the recipient;

(c)  the costs and other court expenditures including costs of notification, if they are at the expense of the recipient;

(d)  the other expenses expedient to the preparation or the bringing of the class action.

1978, c. 8, s. 29.

30. The recipient or, if such is the case, his attorney shall reimburse to the Fonds the amounts paid by it up to the amounts they receive from a third party as fees, costs or expenses.

1978, c. 8, s. 30.

31. In the cases where the representative was granted assistance, if the defendant in whose favour the final judgment has been rendered shows to the satisfaction of the Fonds that it is impossible for him to obtain the full payment of the judicial costs on the property of the representative, the Fonds, after examining the financial condition of the defendant, may pay these judicial costs in the name of the representative. The Fonds then becomes subrogated in the rights of the defendant up to the amount paid to him.

1978, c. 8, s. 31.

32. The Fonds shall file at the office of the Superior Court of the district in which the class action is brought, the conclusions of the decision granting assistance.

The court must hear the Fonds before deciding the payment of costs, determining the fees of the representative’s attorney, or approving a transaction on costs or fees.

1978, c. 8, s. 32.

33. A recipient who fails to bring the class action or who is not authorized to bring it, or who loses his status of representative or waives it, is no longer entitled to assistance.

He must then notify the Fonds, report to it, and reimburse to it the advances received and not yet spent.

1978, c. 8, s. 33.

34. Assistance ceases plenojure if the recipient uses it for purposes other than those agreed upon; in such case, he shall reimburse the amount of assistance received and not used for the purposes of the class action.

1978, c. 8, s. 34.

DIVISION III PROCEEDING BEFORE THE ADMINISTRATIVE TRIBUNAL OF QUÉBEC

1997, c. 43, s. 557.

35. Any applicant whose application for assistance is denied may, within 30 days of notification of the decision of the Fonds, contest the decision before the Administrative Tribunal of Québec.

1978, c. 8, s. 35; 1988, c. 21, s. 66; 1997, c. 43, s. 558.

36. (Repealed).

1978, c. 8, s. 36; 1997, c. 43, s. 559.

37. If the Tribunal decides that the applicant is entitled to assistance, it shall order the Fonds to proceed with the granting of the assistance after agreement with the applicant or his attorney in conformity with section 25.

1978, c. 8, s. 37; 1997, c. 43, s. 560.

CHAPTER III.1 ASSISTANCE FOR PROCEEDINGS BEFORE THE FEDERAL COURT OF CANADA

1999, c. 70, s. 1.

37.1. The Fonds may grant financial assistance for the institution of a proceeding of the nature of a class action before the Federal Court of Canada, provided that

(1)  the applicant proves that substantial grounds exist to warrant the institution of the proceeding before the Federal Court, rather than before the Superior Court;

(2)  the applicant and at least 50% of the members of the group are Québec residents ;

(3)  the subject-matter of the proceeding is one in respect of which the Federal Court - Trial Division and the Superior Court have concurrent jurisdiction.

The number of members of the group and the proportion of the members who are Québec residents may be established on the basis of existing statistics or available data.

1999, c. 70, s. 1.

37.2. Assistance shall be granted subject to the other provisions of this Act, except the provisions of sections 32 and 42.

However, before granting assistance, the Fonds shall, in all cases, determine whether or not the proceeding can be instituted or continued without the assistance and consider the probable existence of the right the applicant intends to assert as well as the probability that the proceeding will be instituted.

1999, c. 70, s. 1.

CHAPTER IV REGULATIONS

38. The Government may, by regulation:

(a)  fix, for the application of section 42, the percentage withheld by the Fonds from the balance or from a liquidated claim;

(b)  determine the cases where assistance may be granted to persons who do not reside in Québec and establish criteria and standards in that regard;

(c)  determine the cases where assistance may be granted to a resident of Québec who intends to institute a proceeding of the nature of a class action outside Québec.

1978, c. 8, s. 38.

39. The Fonds may, by regulation subject to the approval of the Government:

(a)  determine the form and content of the applications and of the reports to be filed with the Fonds;

(b)  determine the amount that an administrator may commit pursuant to section 26;

(c)  determine the percentage of the assistance that may be remitted to a recipient as an advance payment;

(d)  (paragraph repealed);

(e)  prescribe rules necessary for its internal management and the conduct of its business.

1978, c. 8, s. 39; 1986, c. 61, s. 38.

40. No regulation dealing with the matters contemplated in section 38 or in paragraph a, b, c or e of section 39 shall be made except after a notice of 30 days published in the Gazette officielle du Québec, setting forth the text thereof.

1978, c. 8, s. 40.

41. Every regulation made under sections 38 and 39 comes into force on the date of its publication in the Gazette officielle du Québec or on any later date fixed therein.

1978, c. 8, s. 41.

CHAPTER V FINANCIAL PROVISIONS

42. In the case of a collective recovery of the claims, the Fonds shall withhold a percentage fixed by regulation of the Government on the balance established under article 1033 or 1034 of the Code of Civil Procedure (chapter C-25); in other cases, the Fonds shall withhold a percentage fixed by regulation of the Government on every liquidated claim.

1978, c. 8, s. 42.

43. The Fonds may, with respect to the assistance it grants,

(a)  spend the sums placed at its disposal for that purpose by the Minister of Justice and those which have been withheld in accordance with section 42;

(b)  also make, annually, financial commitments other than a loan for an amount up to the amount determined by the Minister of Justice at the time of approval of the budget of the Fonds.

1978, c. 8, s. 43; 1982, c. 37, s. 25.

44. In addition to its powers under section 43, the Fonds may, with the prior authorization of the Minister of Justice, contract a loan in respect of the assistance it grants or in order to carry on its operations.

1978, c. 8, s. 44; 1982, c. 37, s. 25.

44.1. The Government, on such conditions as it determines, may

(a)  undertake to supply the liquidity fund required by the Fonds so as to enable it to repay the capital and interest of a loan contracted by the Fonds, when due;

(b)  guarantee the payment, in capital and interest, of any loan or other financial commitment contracted or made by the Fonds.

The sums required for the purposes of this section are taken out of the Consolidated Revenue Fund.

1982, c. 37, s. 25.

45. The sums required for the application of this title shall be taken, for the years 1978/1979 and 1979/1980, out of the Consolidated Revenue Fund and for the subsequent years out of the moneys granted each year for that purpose by Parliament.

1978, c. 8, s. 45.

TITLE III MISCELLANEOUS PROVISIONS

46. (Omitted).

1978, c. 8, s. 46.

47. (Omitted).

1978, c. 8, s. 47.

48. (Omitted).

1978, c. 8, s. 48.

49. (Omitted).

1978, c. 8, s. 49.

50. (Omitted).

1978, c. 8, s. 50.

51. (Omitted).

1978, c. 8, s. 51.

52. (Amendment integrated into c. A-14, s. 63).

1978, c. 8, s. 52.

53. (Amendment integrated into c. A-14, s. 80).

1978, c. 8, s. 53.

54. (Amendment integrated into c. A-14, s. 87.1).

1978, c. 8, s. 54.

55. The Minister of Justice is responsible for the application of this Act.

1978, c. 8, s. 55.

56. (Omitted).

1978, c. 8, s. 56.

57. (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 and regulations (chapter R-3), chapter 8 of the statutes of 1978, in force on 1 June 1979, is repealed, except sections 46 to 51, effective from the coming into force of chapter R-2.1 of the Revised Statutes.