B-1, r. 17 - Regulation respecting the conciliation and arbitration procedure for the accounts of advocates

À jour au 1^er janvier 2016

Ce document a valeur officielle.

chapter B-1, r. 17

Regulation respecting the conciliation and arbitration procedure for the accounts of advocates

Act respecting the Barreau du Québec

(chapter B-1, s. 4).

Professional Code

(chapter C-26, s. 88).

DIVISION I CONCILIATION

1. A client or a person who has a dispute with an advocate concerning the amount of an unpaid account may apply for conciliation by the syndic within 45 days from the date of receipt of the account.

O.C. 1775-94, s. 1.

2. A client or a person who, on behalf of a client, has already paid an advocate’s account in whole or in part may, within 45 days from the date of receipt of the account, apply for conciliation with respect to the amount paid.

Where an amount has been withdrawn or withheld by the advocate from the funds held or received by him on behalf or in the name of the client, the period for applying for conciliation runs from the day on which the latter becomes aware of the withdrawal or withholding.

O.C. 1775-94, s. 2.

3. Upon receipt of the application for conciliation, the syndic shall send a copy of this Regulation to the client or, where applicable, to the person mentioned in section 1 or 2.

O.C. 1775-94, s. 3.

4. The syndic shall notify the advocate upon receipt of any application for conciliation with respect to one of his accounts. If the advocate cannot be informed personally, a notice given to the advocate’s office is deemed to have been given to the advocate.

The advocate may not institute proceedings to recover his professional fees once the syndic has notified him of the application for conciliation with respect to that account for fees and until the expiry of the prescribed period for the filing of an application for arbitration, or, if arbitration is applied for, until the Council of arbitration has rendered its decision.

Notwithstanding the foregoing, the syndic may allow such proceeding where there is reason to believe that, without it, the recovery of the debt would be jeopardized.

O.C. 1775-94, s. 4.

5. The syndic shall proceed with the conciliation using such procedure as he considers appropriate.

O.C. 1775-94, s. 5.

6. If there is no agreement, the syndic shall send the conciliation report to each party. Where the Regulation applies to the application, he shall also inform the client or the person mentioned in section 1 or 2 of the deadline for sending an application for arbitration.

The syndic shall indicate in his report, where applicable;

(1)  the amount that the client or the person acknowledges owing;

(2)  the reason why this Regulation does not apply to the application for conciliation.

O.C. 1775-94, s. 6.

DIVISION II ARBITRATION

§ 1 . — Application for arbitration

7. After having applied for conciliation according to the procedure determined by the syndic under section 5, a client or a person whose application for conciliation was not successful may apply for arbitration.

To that end, he or she shall, within 30 days of the sending of the conciliation report, send to the executive director the signed form in Schedule I, together with a copy of the report and the amount the client acknowledges owing, failing which he or she shall forfeit the right to arbitration.

For the purposes of this Regulation, deadlines are computed in accordance with the provisions of the Code of Civil Procedure (chapter C-25.01).

O.C. 1775-94, s. 7; I.N. 2016-01-01 (NCCP).

8. Upon receiving an application for arbitration in accordance with section 7, the executive director shall send a copy of the application to the advocate.

O.C. 1775-94, s. 8.

9. The application for arbitration may be withdrawn only in writing and only with the advocate’s consent.

O.C. 1775-94, s. 9.

10. An advocate who acknowledges having to reimburse an amount shall deposit it with the executive director.

O.C. 1775-94, s. 10.

11. The amount deposited pursuant to section 7 or 10 is remitted by the executive director to the party in whose favour the acknowledgment has been made.

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

O.C. 1775-94, s. 11.

§ 2 . — Council of arbitration

12. The council of arbitration shall be composed of 3 arbitrators where the amount in dispute is $7,000 or more, and of a single arbitrator in all other cases.

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

O.C. 1775-94, s. 12.

13. The Bâtonnier of Québec shall appoint the members of the council of arbitration. If the council consists of 3 arbitrators, he shall appoint a chair and a secretary from among the arbitrators. If there is only one arbitrator, he shall act as both chair and secretary.

O.C. 1775-94, s. 13.

14. The executive director shall inform the arbitrators and the parties in writing of the formation of the council of arbitration.

O.C. 1775-94, s. 14.

15. An arbitrator may be recused in the cases provided in article 202 of the Code of Civil Procedure (chapter C-25.01), except paragraph 5 of that article. A request for recusation shall be sent in writing to the executive director, to the council of arbitration and to the parties or their advocates within 10 days of the notice provided for in section 14 or within 10 days of the date on which the cause for recusation becomes known.

The Bâtonnier of Quebec shall decide such requests and, where expedient, shall see that the arbitrator is replaced.

O.C. 1775-94, s. 15; I.N. 2016-01-01 (NCCP).

§ 3 . — Hearing

16. The secretary or the executive director shall give the parties or their advocates a written notice of at least 10 days of the date, time and place of the hearing.

O.C. 1775-94, s. 16.

17. Where arbitration takes place before a single arbitrator, the witnesses are notified to appear by the executive director. In all other cases, they are notified to appear by the secretary of the council of arbitration.

O.C. 1775-94, s. 17.

18. The chair of the council of arbitration may require that the applicant deposit a security with the executive director, prior to the hearing, where there is reason to believe that the recovery of the advocate’s debt would be jeopardized.

O.C. 1775-94, s. 18.

19. Each party may be represented or assisted by an advocate.

O.C. 1775-94, s. 19.

20. The council of arbitration may order the parties to submit to it, within a given period, a statement of their claims along with the documents in support thereof.

O.C. 1775-94, s. 20.

21. The council of arbitration may render any order it considers appropriate with respect to the amount deposited.

O.C. 1775-94, s. 21.

22. The council of arbitration shall, as soon as possible, hear the parties, receive their evidence or record any failure on their part; it shall observe the rules of evidence and adopt procedure it believes to be the most appropriate.

O.C. 1775-94, s. 22.

23. A party requesting that the testimony be recorded shall assume the cost thereof.

O.C. 1775-94, s. 23.

24. If proceedings in improbation are taken, the council of arbitration shall refer the parties to the court having jurisdiction, which may order the suspension of the arbitration period until final judgment is rendered in the matter.

O.C. 1775-94, s. 24.

25. Should an arbitrator die or be unable to act, the other arbitrators shall see the matter through if they represent the majority of the council of arbitration.

If the council of arbitration consists of a single arbitrator, he shall be replaced in accordance with section 13 and the matter shall be reheard.

O.C. 1775-94, s. 25.

26. The secretary shall draft and sign the minutes of the hearing, which shall state whether the parties requested that the proceeding be recorded. The minutes are, in the absence of proof to the contrary, proof of their contents.

O.C. 1775-94, s. 26.

§ 4 . — Arbitration award

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

O.C. 1775-94, s. 27.

28. The award shall be, where applicable, a majority award of the members of the council. It shall give reasons and shall be signed by the members of the council of arbitration who concurred in it.

O.C. 1775-94, s. 28.

29. In its award, the council of arbitration may decide the arbitration expenses, that is, the expenses incurred by the Bar for the arbitration. The total amount of the expenses shall not exceed 15% of the amount to which the arbitration pertains.

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

O.C. 1775-94, s. 29.

30. In its award, the council of arbitration may uphold or reduce the account in dispute and may also, if appropriate, determine the reimbursement to which a party may be entitled.

To that end, it may in particular take into account the quality of the services rendered.

O.C. 1775-94, s. 30.

31. The arbitration award is final, is binding on the parties and is executory in accordance with articles 645 to 647 of the Code of Civil procedure (chapter C-25.01).

The parties must comply with the arbitration award.

O.C. 1775-94, s. 31; I.N. 2016-01-01 (NCCP).

32. The secretary shall file the award with the executive director, who shall send it to the parties or their advocates and to the syndic.

The secretary shall also send the executive director the complete arbitration file. True copies of all or part of the file may only be given to the parties or their advocates and to the syndic.

O.C. 1775-94, s. 32.

DIVISION III TRANSITIONAL AND FINAL

33. This Regulation applies to applications for conciliation sent to the syndic after 1 January 1995.

O.C. 1775-94, s. 33.

34. (Omitted).

O.C. 1775-94, s. 34.

SCHEDULE I

(s. 7)

APPLICATION FOR ARBITRATION OF AN ACCOUNT

I, the undersigned, __________(surname)__________ __________(name)__________ __________(address)__________ __________(occupation)__________

declare that:

(1) On ______________, ________________ sent an account of $__________ for professional services to __________(name of client applying for arbitration)__________

(2) Check a or b:

(a) I am the client applying for arbitration;

(b) I am the mandatary of the client applying for arbitration and I am duly authorized, by virtue of an authorization attached hereto, to sign these presents, in the client’s name.

(3) Check a or b and state reasons:

(a) I refuse to pay the account;

(b) I request reimbursement in the amount of $__________

Reasons:

---

---

---

---

(4) During conciliation, I acknowledged owing the amount of $__________ and am therefore filing, with this application, a certified cheque for that amount payable to the executive director of the Barreau du Québec “in trust”.

(5) I agree to submit to the procedure provided for in the Regulation respecting the conciliation and arbitration procedure for the accounts of advocates (chapter B-1, r. 17) and to the resulting arbitration award.

(6) I hereby waive the benefit of any time elapsed with respect to prescription.

______________________________________________

Date

______________________________________________

Signature

O.C. 1775-94, Sch. I.

REFERENCES

O.C. 1775-94, 1994 G.O.2, 4691

2008, c. 11, s. 213