R-2.2 - Act respecting the collection of certain debts

À jour au 24 juin 2002

Ce document a valeur officielle.

chapter R-2.2

Act respecting the collection of certain debts

CHAPTER I DEFINITIONS

1. In this Act and in the regulations, unless otherwise required by the context,

“collection agent” means a person who personally or through a representative and for remuneration collects or attempts or offers to collect a debt for another person;

“representative” means a person acting for a collection agent or regarding whom a collection agent has given reasonable cause to believe that such person is acting for him.

1979, c. 70, s. 1.

CHAPTER II PROHIBITED PRACTICES

2. No person may, by any means whatever, make false or misleading representations for the collection of a debt.

For the purposes of this section, “representation” includes an affirmation, a behaviour or an omission.

1979, c. 70, s. 2.

3. No person may, for the collection of a debt,

(1)  represent that, failing payment, the debtor is liable to arrest or penal proceedings;

(2)  communicate with the debtor when the latter has notified him or her in writing to communicate with his or her legal adviser;

(3)  use harassment, threats or intimidation;

(4)  disclose information that might cause undue injury to the debtor, his or her surety, their married or civil union spouses or members of their families;

(5)  collect or claim from a debtor a sum of money greater than that which is due;

(6)  use a writing that might be mistaken for a document used, authorized, issued or approved by a tribunal, a government, a municipality or an agency of any of these.

The sole fact of threatening to exercise any right recognized by an Act or a regulation does not constitute a threat within the meaning of subparagraph 3.

1979, c. 70, s. 3; 1996, c. 2, s. 843; 2002, c. 6, s. 152.

4. No person may, for the purpose of collecting a debt, communicate with the employer or the neighbours of the debtor, except where one of these persons is surety for the debtor or to obtain the address of the debtor.

Every person who, for the purpose of collecting a debt, communicates with a debtor or a person contemplated in the first paragraph must identify himself.

1979, c. 70, s. 4.

CHAPTER III COLLECTION AGENTS

DIVISION I APPLICABILITY

5. This chapter applies

(1)  to a collection agent;

(2)  to a person who, personally or through a representative, claims the payment of a debt of which he is the assignee when the formalities prescribed in articles 1641 and 1642 of the Civil Code have not been complied with.

1979, c. 70, s. 5; 1999, c. 40, s. 243.

6. This chapter does not apply

(1)  to the public curator, to an advocate, a notary, a claims adjuster, an insurance representative, a bailiff, a sheriff, a trustee in bankruptcy, a liquidator, a sequestrator, a tutor, a curator, a trustee or a trust company in the exercise of his or its functions;

(2)  to a director, partner or employee charged, in the carrying out of his functions, with the collection of the debts owing to the legal person, partnership or employer concerned;

(3)  to a bank or a financial services cooperative;

(4)  to the collection, from a merchant, of a debt that arose from the operation of his business.

1979, c. 70, s. 6; 1989, c. 48, s. 253; 1998, c. 37, s. 531; 1999, c. 40, s. 243; 2000, c. 29, s. 665.

DIVISION II PERMITS

7. Every person contemplated in section 5 must hold a permit.

1979, c. 70, s. 7.

8. Every person applying for a permit must send his application to the president of the Office de la protection du consommateur, established under the Consumer Protection Act (chapter P-40.1), in the form and together with the documents prescribed by the Act and the regulations.

The application must be accompanied with security in the amount and form prescribed by regulation.

1979, c. 70, s. 8.

9. If the applicant is a legal person or a partnership, the application must be submitted by a director duly commissioned or by a partner, and the president may require every director or partner to comply with the same requirements as those prescribed by this Act or the regulations in respect of any person applying for a permit.

1979, c. 70, s. 9; 1999, c. 40, s. 243.

10. The president shall issue the permit in the name of a person or partnership; he may, on demand, issue a duplicate of the permit.

1979, c. 70, s. 10; 1999, c. 40, s. 243.

11. The president may refuse to issue a permit

(1)  if he is of opinion that the applicant, by reason of his financial condition, is not in a position to assume the obligations arising from his business;

(2)  if he has reasonable grounds to believe that a refusal is necessary to ensure, in the interest of the public, honesty and competence in collection agents’ activities;

(3)  if the name of the partnership or legal person applying for the permit is identical to that of another partnership or legal person holding a permit, or so resembles it that it may easily be mistaken for it; or

(4)  if the applicant does not meet a requirement prescribed by this Act or by regulation.

1979, c. 70, s. 11; 1986, c. 95, s. 290; 1999, c. 40, s. 243.

12. The president may refuse to issue a permit to any applicant who, during the three years preceding his application, was found guilty of

(1)  an offence against any law or regulation the application of which is under the supervision of the Office and for which he has not obtained a pardon;

(2)  an indictable offence in connection with the activities of a collection agent and for which he has not obtained a pardon; or

(3)  an offence punishable on summary conviction described in Part IX or in section 423 or 426 of the Criminal Code (Revised Statutes of Canada, 1985, chapter C-46) and for which he has not obtained a pardon.

1979, c. 70, s. 12; 1986, c. 95, s. 291.

13. The president may suspend or cancel the permit of any holder who, during the term of the permit, has been found guilty of an offence or an indictable offence contemplated in section 12.

1979, c. 70, s. 13.

14. The president may refuse to issue and may suspend or cancel a permit by reason of the fact that an applicant or holder made misrepresentations or distorted an important fact when he applied for a permit.

1979, c. 70, s. 14.

15. The president may suspend or cancel the permit of any holder who, during the term of the permit, no longer meets the requirements prescribed by this Act or the regulations for the issuance of a permit.

1979, c. 70, s. 15.

16. Before refusing to issue a permit to a person or before suspending or cancelling a permit issued to a person, the president shall notify the person in writing as prescribed by section 5 of the Act respecting administrative justice (chapter J-3) and allow him at least 10 days to present observations.

1979, c. 70, s. 16; 1997, c. 43, s. 561.

17. Any decision refusing to issue, suspending or cancelling a permit must give the reason therefor.

1979, c. 70, s. 17; 1997, c. 43, s. 562.

18. A permit is valid for two years. It is renewed on the conditions prescribed by this Act and the regulations.

The president may, however, issue a permit for a shorter period if he deems that the public interest is at stake or for administrative reasons.

1979, c. 70, s. 18.

19. The rights conferred by a permit cannot be transferred except in the case of the death of the holder of such permit. In such case, the president may authorize the transfer upon payment of the duties exigible and on the conditions prescribed by this Act and by regulation.

1979, c. 70, s. 19.

20. In accordance with the terms and conditions prescribed by regulation, the security contemplated in section 8 shall be used, first, to compensate any person who was awarded final judgment in the case contemplated in section 49, then, to pay the fine imposed on the person who stood surety or on his representative.

1979, c. 70, s. 20.

21. Every holder of a permit must carry on business under a name that includes the words “collection agency” or “collection agent”.

1979, c. 70, s. 21.

22. Every holder of a permit must have an establishment in Québec.

Such establishment must be situated in an immovable or part of an immovable in which the holder carries on business.

1979, c. 70, s. 22.

23. Every holder of a permit must keep the registers, accounts, books and records prescribed by this Act and by regulation.

1979, c. 70, s. 23.

24. Every holder of a permit must notify the president within fifteen days of any change of address, of name, of directors in the case of a legal person or of partners in the case of a partnership.

For the purposes of this section, “address” means the place where an establishment is located and does not mean a post office box.

1979, c. 70, s. 24; 1999, c. 40, s. 243.

25. (Repealed).

1979, c. 70, s. 25; 1984, c. 47, s. 134.

DIVISION III TRUST ACCOUNTS

26. Every holder of a permit who receives a sum of money for the account of another must place that sum in a trust account until the sum is remitted to the person on whose account he received it.

1979, c. 70, s. 26.

27. Every holder of a permit shall, at all times, have a trust account in a bank, financial services cooperative, trust company or other institution authorized by the Deposit Insurance Act (chapter A-26) to receive deposits, to keep the sums of money he has received for the account of others.

From the time the account is opened, he must inform the president of the place where such account is kept and the number of such account.

1979, c. 70, s. 27; 2000, c. 29, s. 666.

28. Every holder of a permit must enter in his books or registers the appropriate accounting items in regard to the sums he must place in a trust account under section 26.

1979, c. 70, s. 28; 1999, c. 40, s. 243.

29. Every holder of a permit must, at the demand of the person from or for whom he has received a sum of money, render account of it.

1979, c. 70, s. 29.

30. Where the holder of a permit is a legal person, each director is solidarily liable with the legal person for the sums which must be placed in a trust account in accordance with section 26, unless the director proves that he acted in good faith.

1979, c. 70, s. 30; 1999, c. 40, s. 243.

31. Where the president has reason to believe that sums that must be kept in a trust account in accordance with section 26 may be misappropriated, he may apply for an injunction ordering any person in Québec having the deposit, control or custody of such funds to keep them in a trust account for the period and on the conditions determined by the court.

1979, c. 70, s. 31; 1999, c. 40, s. 243.

DIVISION IV OBLIGATIONS AND PROHIBITIONS

32. The mandate by which a creditor entrusts the collection of a debt to the holder of a permit must be recorded in a writing in conformity with the model prescribed by regulation.

1979, c. 70, s. 32.

33. Every holder of a permit, or his representative, who claims the payment of a debt from a debtor must identify himself and give the name of the collection agency where that is the case, the permit number, the amount of the debt and the name of the creditor.

1979, c. 70, s. 33.

34. No holder of a permit or his representative may

(1)  communicate verbally with a debtor before having sent a notice of payment, in paper form, in conformity with the model prescribed by regulation;

(2)  communicate verbally with a debtor having sent a written notice requesting written communication only;

(3)  communicate with the married or civil union spouse of the debtor or a member of his or her family, except where one of these persons is surety for the debtor or to obtain the address of the debtor, and the debtor must then identify himself or herself;

(4)  communicate verbally with the debtor or his or her surety, or with their married or civil union spouses or members of their families at a time other than from 8:00 a.m. to 8:00 p.m. on working days;

(5)  threaten to reveal the debtor’s failure to pay, to persons other than those who are a party to the obligation or who could be bound to perform it, or threaten to publish his or her failure to pay or to have it published, or to have an unfavourable entry of it made;

(6)  represent that, failing payment, judicial proceedings will be instituted;

(7)  claim the performance of an obligation in addition to that which is owing, particularly as a collection fee or in consideration of a time allotted for payment;

(8)  undertake to assume the judicial costs which might be incurred by reason of the collection of a debt;

(9)  provide a writing which could be addressed by a creditor to his or her debtor in the name of a permit holder or a third person.

The notice provided for in subparagraph 2 of the first paragraph is valid for three months from the date it is sent to the permit holder and is valid with regard to all the debts which that holder is charged with collecting from the debtor for the same creditor.

Excepting subparagraph 6 of the first paragraph and notwithstanding paragraph 2 of section 6, this section also applies where a collection agent claims the payment of a debt he has purchased.

1979, c. 70, s. 34; 1999, c. 40, s. 243; 2001, c. 32, s. 103; 2002, c. 6, s. 153.

35. The signature of a representative of a permit holder on a document intended for a creditor or debtor binds the permit holder.

1979, c. 70, s. 35.

DIVISION V PROCEEDING BEFORE THE ADMINISTRATIVE TRIBUNAL OF QUÉBEC

1997, c. 43, s. 563.

36. A person whose application for a permit is refused or whose permit is suspended or cancelled may, within 30 days of notification of the decision of the president, contest the decision before the Administrative Tribunal of Québec.

1979, c. 70, s. 36; 1988, c. 21, s. 66; 1997, c. 43, s. 564.

37. (Repealed).

1979, c. 70, s. 37; 1988, c. 21, s. 66; 1997, c. 43, s. 565.

38. (Repealed).

1979, c. 70, s. 38; 1997, c. 43, s. 565.

39. (Repealed).

1979, c. 70, s. 39; 1997, c. 43, s. 565.

40. (Repealed).

1979, c. 70, s. 40; 1997, c. 43, s. 565.

41. (Repealed).

1979, c. 70, s. 41; 1997, c. 43, s. 565.

42. (Repealed).

1979, c. 70, s. 42; 1997, c. 43, s. 565.

43. (Repealed).

1979, c. 70, s. 43; 1997, c. 43, s. 565.

44. (Repealed).

1979, c. 70, s. 44; 1997, c. 43, s. 565.

CHAPTER IV PROOF, PROCEDURE AND CIVIL RECOURSES

DIVISION I PROOF AND PROCEDURE

45. No person may derogate from this Act by private agreement.

1979, c. 70, s. 45.

46. Every document certified true to the original by the president or any person generally or specially authorized by him for that purpose is receivable as proof and has the same value as the original.

1979, c. 70, s. 46.

47. The Attorney General and the president are exempt from the obligation to give security in order to obtain an injunction under this Act.

1979, c. 70, s. 47.

48. Where an injunction granted under this Act is not complied with, a motion for contempt of court may be presented before the court of the place where the contempt was committed.

1979, c. 70, s. 48.

DIVISION II CIVIL RECOURSES

49. If a person fails to fulfil an obligation imposed on him by this Act or the regulations, the person injured by that failure may claim damages.

1979, c. 70, s. 49.

50. An action based on section 49 is prescribed by three years.

1979, c. 70, s. 50.

CHAPTER V REGULATIONS

51. In addition to the other powers provided in the Act and for the purposes of its application, the Government may make regulations

(1)  determining the form, the terms and conditions and the amount of deposits, the cases where the president may dispose of them and the manner in which they may be distributed;

(2)  determining the qualifications required of any person applying for a permit, the renewal of a permit or, in the case provided for in section 19, the transfer of a permit, the conditions he must fulfil, the information and documents he must furnish and the duties he must pay;

(3)  prescribing the financial statements a permit holder must furnish to the president and the form in which they are to be furnished;

(4)  prescribing model notices of payment and collection mandates;

(5)  determining conditions and modes and procedures for the receipt and keeping of sums deposited in a trust account;

(6)  establishing rules governing the keeping of registers, accounts, books and records by a permit holder;

(7)  determining the form and the terms and conditions of the rendering of account to be made by a permit holder to a person from or for whom he has received a sum of money;

(8)  determining the information that the permit holder must furnish to the president, to a debtor or to a creditor;

(9)  determining the form of a document to be furnished to the president;

(10)  exempting, on such conditions as it may determine, any class of persons or debts from the application of this Act in whole or in part.

1979, c. 70, s. 51; 1999, c. 40, s. 243.

52. No draft regulation may be adopted unless it is preceded by a notice of thirty days published in the Gazette officielle du Québec. Such prior notice must reproduce the text of the draft.

A regulation comes into force on the day of publication in the Gazette officielle du Québec of a notice indicating that it has been adopted by the Government, or, if amended by the latter, on the day of the publication of its final text, or on any later date fixed in the notice or final text.

1979, c. 70, s. 52; 1980, c. 11, s. 129.

CHAPTER VI PENAL PROVISIONS

1992, c. 61, s. 507.

53. Every person who contravenes this Act or any regulation is guilty of an offence.

1979, c. 70, s. 53.

54. Every natural person convicted of an offence against this Act or a regulation is liable to a fine of $300 to $6,000 and, for a second or subsequent conviction, to a fine of $600 to $12,000.

A legal person convicted of an offence against this Act or a regulation is liable to a fine of $1,000 to $40,000 and, for a second or subsequent conviction, to a fine of $2,000 to $80,000.

1979, c. 70, s. 54; 1990, c. 4, s. 750; 1992, c. 58, s. 9; 1999, c. 40, s. 243.

55. (Repealed).

1979, c. 70, s. 55; 1990, c. 4, s. 751.

56. Where a legal person is guilty of an offence against this Act or any regulation, every director or representative of such legal person who consented to or acquiesced or participated in the commission of the offence is deemed to be a party to the offence and is liable to the penalty provided in the first paragraph of section 54.

1979, c. 70, s. 56; 1999, c. 40, s. 243.

57. Every person who performs or omits to perform an act in view of aiding a person to commit an offence against this Act or a regulation, or who advises, encourages or incites a person to commit an offence, is himself guilty of the offence and is liable to the penalty provided in the first paragraph of section 54 in the case of a natural person or to that provided in the second paragraph of section 54 in the case of a legal person.

1979, c. 70, s. 57; 1999, c. 40, s. 243.

58. (Repealed).

1979, c. 70, s. 58; 1990, c. 4, s. 752; 1992, c. 61, s. 508.

59. (Repealed).

1979, c. 70, s. 59; 1990, c. 4, s. 753; 1992, c. 61, s. 509.

60. (Repealed).

1979, c. 70, s. 60; 1990, c. 4, s. 754.

61. No penal proceedings may be sustained if the accused establishes that he employed reasonable diligence by taking all necessary precautions to ensure that this Act or the regulations were complied with.

1979, c. 70, s. 61.

62. A judge may, on an application by the prosecutor, order that a person convicted of an offence under a provision of this Act or the regulations thereunder distribute, in accordance with the terms and conditions which the court considers appropriate to ensure a prompt and adequate communication thereof, the conclusions of the judgment rendered against him, and the corrections, explanations, warnings and other information which the court considers necessary.

Prior notice of the application for an order shall be given by the prosecutor to the person who could be compelled, under such an order, to distribute certain information, except where they are in the presence of the judge.

1979, c. 70, s. 62; 1992, c. 61, s. 510.

63. If a person commits repeated offences against this Act or the regulations, the Attorney General, after instituting penal proceedings against him, may apply to the Superior Court for a writ of interlocutory injunction enjoining such person, his directors, agents or employees to cease committing the offences complained of until final judgment has been rendered in the penal proceedings.

After such judgment has been rendered, the Superior Court shall itself render final judgment on the application for an injunction.

1979, c. 70, s. 63.

CHAPTER VII TRANSITIONAL AND FINAL PROVISIONS

64. (Omitted).

1979, c. 70, s. 64.

65. (Omitted).

1979, c. 70, s. 65.

66. The Government, Government departments and Government agencies are subject to the application of this Act.

1979, c. 70, s. 66.

67. The Minister of Relations with the Citizens and Immigration is responsible for the administration of this Act.

1979, c. 70, s. 67; 1981, c. 10, s. 24; 1994, c. 12, s. 69; 1996, c. 21, s. 66.

The Minister of Justice exercises the functions of the Minister of Relations with the Citizens and Immigration provided for in this Act. Order in Council 121-2005 dated 18 February 2005, (2005) 137 G.O. 2 (French), 874.

68. The carrying out of this Act is under the supervision of the Office de la protection du consommateur.

1979, c. 70, s. 68.

69. The sums required for the carrying out of this Act are taken, for the fiscal periods 1979-1980 and 1980-1981, out of the Consolidated Revenue Fund and for subsequent fiscal periods, out of the moneys granted each year for that purpose by Parliament.

1979, c. 70, s. 69.

70. (Omitted).

1979, c. 70, s. 70.

71. (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 70 of the statutes of 1979, in force on 31 December 1981, is repealed, except section 70, effective from the coming into force of chapter R-2.2 of the Revised Statutes.