H-4.1, r. 12 - Regulation respecting the conciliation and arbitration procedure for the accounts of court bailiffs

À jour au 1^er septembre 2012

Ce document a valeur officielle.

chapter H-4.1, r. 12

Regulation respecting the conciliation and arbitration procedure for the accounts of court bailiffs

Court Bailiffs Act

(chapter H-4.1, s. 3).

Professional Code

(chapter C-26, s. 88).

DIVISION I GENERAL

1. This Regulation applies to any person required to pay a bailiff’s account for fees, whether or not the account has already been paid in full or in part.

However, this Regulation does not apply to an account that has been taxed pursuant to article 480 of the Code of Civil Procedure (chapter C-25).

In this Regulation, “person” means a natural person or a legal person established for a private or public interest, a partnership within the meaning of the Civil Code, and a public body within the meaning of the Act respecting Access to documents held by public bodies and the Protection of personal information (chapter A-2.1).

O.C. 1468-2002, s. 1.

2. The board of directors of the Chambre des huissiers de justice du Québec shall appoint a conciliator for the accounts of bailiffs.

The conciliator shall take the oath of office and discretion in the manner provided for in Schedule I.

O.C. 1468-2002, s. 2.

3. The conciliator shall provide a copy of this Regulation to every person who requests one or who has applied for conciliation in respect of an account for fees.

O.C. 1468-2002, s. 3.

4. The time limits in this Regulation are determined in accordance with the Code of Civil Procedure (chapter C-25).

O.C. 1468-2002, s. 4.

5. No bailiff may institute proceedings in respect of an account until the expiry of the 45-day period following receipt of the account by the addressee.

However, the conciliator may authorize the bailiff to institute proceedings if there is reason to believe that failure to do so will jeopardize recovery of the fees.

O.C. 1468-2002, s. 5.

6. No bailiff may, as of receipt by the conciliator of an application for conciliation in respect of an account for fees, institute proceedings in respect of the account so long as the dispute can be settled by conciliation or arbitration.

However, the bailiff may apply for provisional measures in accordance with article 940.4 of the Code of Civil Procedure (chapter C-25).

O.C. 1468-2002, s. 6.

7. Where the fees or the procedure for determining them are set out in a written agreement between the bailiff and the person liable for the payment of the account, this conciliation and arbitration procedure may be used only to ensure that the services rendered are in conformity with the said agreement.

O.C. 1468-2002, s. 7.

DIVISION II CONCILIATION

8. An application for conciliation in respect of an account for fees must be sent to the conciliator within 45 days following receipt of the account.

Where an amount has been withdrawn or withheld by the bailiff from the funds held or received for or on behalf of another person, the 45-day period runs from the date of receipt of the account or from the time the person becomes aware of the withdrawal or withholding, whichever occurs later.

O.C. 1468-2002, s. 8.

9. An application to the syndic to inquire into a dispute over the amount of an account for fees may constitute an application for conciliation, provided that it is filed within the period prescribed in section 8.

O.C. 1468-2002, s. 9.

10. Within 5 days of receiving an application for conciliation, the conciliator must notify the bailiff thereof in writing at the bailiff’s professional domicile.

O.C. 1468-2002, s. 10.

11. The conciliator shall proceed with the conciliation in the manner he or she considers most appropriate.

To that end, the conciliator may require that the bailiff or the applicant for conciliation provide any information or document the conciliator considers necessary.

O.C. 1468-2002, s. 11.

12. Any agreement reached during conciliation must be in writing and signed by the applicant for conciliation and the bailiff.

A signed copy of that agreement shall be sent to the conciliator.

O.C. 1468-2002, s. 12.

13. If conciliation does not lead to an agreement within 60 days following receipt of the application for conciliation, the conciliator shall send a conciliation report to the parties as soon as possible, containing, where applicable, the following information:

(1)  the reason why this Regulation does not apply to the application for conciliation;

(2)  the amount of the account in dispute;

(3)  the amount that the applicant for conciliation acknowledges owing and the amount that the bailiff acknowledges having to refund or is willing to accept in settlement of the dispute; and

(4)  the amount suggested by the conciliator during conciliation as payment to the bailiff or as refund to the applicant.

The conciliator shall also send to the applicant for conciliation the form provided for in Schedule II and indicate to the applicant that the dispute may be submitted to arbitration within 30 days of receipt of the conciliation report.

O.C. 1468-2002, s. 13.

DIVISION III ARBITRATION

§ 1 . — Arbitration committee

14. The board of directors shall form an arbitration committee to process applications for arbitration, composed of at least 4 members appointed from among the bailiffs who have been on the roll of the Chambre for at least 10 years, and shall designate the chair of the committee from among them.

The board of directors shall also designate a secretary of the arbitration committee.

O.C. 1468-2002, s. 14.

15. Each member and the secretary of the committee shall take the oath of office and discretion in the manner provided for in Schedule I.

O.C. 1468-2002, s. 15.

§ 2 . — Application for arbitration

16. The applicant may apply for arbitration of the account, on pain of forfeiture, within 30 days of receipt of the conciliation report provided for in section 13, by sending the duly completed form provided for in Schedule II to the secretary of the committee.

The conciliation report must be enclosed with the application for arbitration, together with any amount that the applicant acknowledged owing in conciliation and that is indicated in the conciliator’s report.

O.C. 1468-2002, s. 16.

17. Within 5 days of receiving an application for arbitration, the secretary of the committee must give a written notice thereof to the bailiff and enclose, where applicable, the amount deposited in accordance with section 16.

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

O.C. 1468-2002, s. 17.

18. An application for arbitration may not be withdrawn unless it is in writing and with the consent of the bailiff.

O.C. 1468-2002, s. 18.

19. Any agreement reached after the application for arbitration must be in writing and signed by the applicant for arbitration and the bailiff.

A signed copy of that agreement shall be sent to the secretary of the committee.

O.C. 1468-2002, s. 19.

§ 3 . — Council of arbitration

20. When the amount in dispute is less than $1,500, the application for arbitration shall be examined by a council of arbitration composed of a single arbitrator designated by the secretary of the committee from among the committee members.

When the amount in dispute is $1,500 or more, the application for arbitration shall be examined by a council of arbitration composed of 3 arbitrators designated by the secretary of the committee from among the committee members, who shall choose from among themselves a chair and a secretary.

O.C. 1468-2002, s. 20.

21. The secretary of the committee shall inform the parties and the council’s arbitrator or arbitrators in writing that a council has been appointed.

O.C. 1468-2002, s. 21.

22. In the event of an arbitrator’s death or inability to act, the remaining arbitrators shall see the matter through and, where applicable, determine which of them will act as chair.

If the council of arbitration consists of a single arbitrator, or if 2 of the arbitrators are in one of the situations referred to in the first paragraph, the secretary of the committee shall see to the replacement of the arbitrator or arbitrators in accordance with section 20, and if necessary, the dispute shall be reheard.

O.C. 1468-2002, s. 22.

23. An application for the recusation of an arbitrator may be made only on one of the grounds provided for in article 234 of the Code of Civil Procedure (chapter C-25). The application must be sent in writing to the secretary of the committee, the council of arbitration, and the parties within 10 days after receipt of the notice provided for in section 21 or 10 days after the grounds for the recusation become known to the party invoking it, whichever occurs later.

The executive committee of the Chambre shall rule on the request and, as the case may be, the secretary of the committee shall see to the replacement of the recused arbitrator in accordance with section 20.

O.C. 1468-2002, s. 23.

24. Any agreement reached by the parties after the council of arbitration has been appointed, but before the hearing, must be in writing, signed by the parties and filed with the secretary of the committee. In such case, the parties are jointly liable for the arbitration expenses, as fixed by the secretary of the committee in accordance with section 37.

O.C. 1468-2002, s. 24.

§ 4 . — Hearing

25. The secretary of the committee shall set the date, time and place of the hearing and shall give the council and the parties at least 10 days’ written notice thereof.

O.C. 1468-2002, s. 25.

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

O.C. 1468-2002, s. 26.

27. The council may require each party to submit to the secretary of the committee, within a given time limit, a statement of their claims together with supporting documents. The secretary of the committee shall forward a copy of the statements to the council and the parties as soon as possible after receiving them.

The council may also require any record, document or information it considers necessary to settle the dispute. The parties must comply with any order to that effect.

O.C. 1468-2002, s. 27.

28. The council shall, with diligence, hear the parties, receive their evidence or record any failure on their part.

To that end, the council shall follow the procedure and apply the rules of evidence that it considers most appropriate.

The council shall render an award that is fair and in accordance with the law.

O.C. 1468-2002, s. 28.

29. A party that requests that testimony be recorded shall assume the organization and cost thereof.

O.C. 1468-2002, s. 29.

30. The secretary of the council or the single arbitrator shall draw up the minutes of the hearing, which must be signed by the arbitrator or arbitrators.

O.C. 1468-2002, s. 30.

31. Any agreement reached by the parties after the hearing shall be recorded in the arbitration award.

O.C. 1468-2002, s. 31.

§ 5 . — Arbitration award

32. The council shall render its award within 60 days after the end of the hearing.

O.C. 1468-2002, s. 32.

33. Where applicable, the award shall be a majority award of the members of the council; failing a majority, it shall be rendered by the chair of the council.

O.C. 1468-2002, s. 33.

34. The award must be reasoned and signed by the single arbitrator or the majority arbitrators. If an arbitrator refuses or is unable to sign, the others shall indicate that fact and the award shall have the same effect as though signed by all the arbitrators.

O.C. 1468-2002, s. 34.

35. In its award, the council of arbitration may confirm or reduce the account in dispute. It may also, as required, determine the refund or payment to which a party may be entitled.

O.C. 1468-2002, s. 35.

36. Each party shall bear its own costs incurred for the arbitration and may not recover them from the adverse party.

O.C. 1468-2002, s. 36.

37. In its award, the council has full discretion to rule on the arbitration expenses, namely the expenses incurred by the Chambre for the arbitration. The total expenses to be borne by the parties shall not exceed 15% of the amount in dispute. However, in every case where expenses are awarded, they shall not be less than $50.

When the account in dispute is confirmed in full or in part, or when a refund is awarded, the council may also add interest and an indemnity in accordance with articles 1618 and 1619 of the Civil Code, computed from the date of the application for conciliation.

O.C. 1468-2002, s. 37.

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

Articles 945, 945.3, and 945.5 to 945.8 of the Code of Civil Procedure apply, with the necessary modifications, to an arbitration held pursuant to this Regulation.

O.C. 1468-2002, s. 38.

39. The award shall be filed with the secretary of the committee, who shall send it to the parties or their advocates within 10 days after the filing.

O.C. 1468-2002, s. 39.

40. Once the arbitration award is rendered, the secretary of the council or the single arbitrator, as the case may be, shall send the complete arbitration record, including the minutes of the hearing duly signed by the arbitrator or arbitrators, to the secretary of the committee. The secretary of the committee may issue true copies thereof.

O.C. 1468-2002, s. 40.

DIVISION IV FINAL

41. This Regulation replaces sections 12 to 17 of the Regulation respecting the application of the Bailiffs Act (R.R.Q., 1981, c. H-4, r. 2), which continues to apply as provided for in section 31 of the Court Bailiffs Act (chapter H-4.1).

The latter Regulation nevertheless continues to govern the procedure for conciliation and arbitration of disputes in respect of which an application for conciliation was filed before 11 January 2003.

O.C. 1468-2002, s. 41.

42. (Omitted).

O.C. 1468-2002, s. 42.

SCHEDULE I

(ss. 2 and 15)

OATH OF OFFICE AND DISCRETION

I declare under oath that I will discharge all the duties and exercise all the powers of conciliator (or arbitrator, as the case may be) faithfully, impartially, and honestly, to the best of my ability and knowledge.

I declare under oath that I will not reveal or disclose, unless authorized by law, anything that may come to my knowledge in the discharge of my duties.

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(Signature of the conciliator or arbitrator)

Declaration under oath before

---

(Name and position, profession or capacity)

at ___________________________________________ on ___________________________________________

(municipality) (date)

---

---

(Signature of the person administering the oath)

O.C. 1468-2002, Sch. I.

SCHEDULE II

(ss. 13 and 16)

APPLICATION FOR ARBITRATION

I, the undersigned, declare the following:

Identification of applicant

IF APPLICABLE,

represented by:

__________________________________________ ____________________________________________

Name of applicant Name of attorney

__________________________________________ ____________________________________________

Number Street Apartment Number Street

__________________________________________ ____________________________________________

Town or city Province Postal Code Town or city Province Postal Code

__________________________________________ ____________________________________________

Tel. (office) Fax Tel. Fax

__________________________________________

Tel. (domicile)

Identification of bailiff

__________________________________________

Name of bailiff

__________________________________________

Number Street

__________________________________________

Town or city Province Postal Code

__________________________________________

Tel. Fax

(Fill in one of the following 3 boxes: Fees paid in full; Fees paid in part; or Fees unpaid. In the box selected, fill in Part 1 that applies to your situation and Part 2.)

Fees paid in full

(1) On __________(date of receipt of account)__________, I received an account for bailiff fees in the amount of

$__________ for professional services rendered, a copy of which is attached hereto.

OR

(1) On __________(date)__________, I became aware that the amount of $__________

had been deducted as payment of the bailiff fees from the funds held in trust on my behalf by the bailiff.

(Check and fill in, if applicable)

□ I received the account for bailiff fees on ______________________________.

□ To date, I have received no account for bailiff fees.

(2) Since the account has been paid, I hereby request a refund of $___________, considering that the amount of $__________ constitutes a just and reasonable fee for the professional services rendered.

Fees paid in part

(1) On __________(date of receipt of account)__________, I received an account for bailiff fees in the amount of $__________ for professional services rendered, a copy of which is attached hereto.

OR

(1) On __________(date)__________, I became aware that the amount of $__________ had been deducted as payment of the bailiff fees from the funds held in trust on my behalf by the bailiff.

(Check and fill in, if applicable)

□ I received the account for bailiff fees on ______________________________.

□ To date, I have received no account for bailiff fees.

(2) Since the account has been paid in part, I acknowledge owing $__________ considering that the amount of $__________ constitutes a just and reasonable fee for the professional services rendered.

Fees unpaid

(1) On __________(date of receipt of account)__________, I received an account for bailiff fees in the amount of $__________ for professional services rendered, a copy of which is attached hereto.

OR

(1) To date, I have received no account for bailiff fees detailing the professional services rendered.

(2) Since the account has not been paid, I acknowledge owing the amount of $__________ that constitutes a just and reasonable fee for the professional services rendered.

(3) Reasons for the application for arbitration: ___________________________________________________

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---

---

---

---

---

(An explanatory letter may be attached if additional space is required.)

For prescription purposes, I hereby waive my benefit with respect to time elapsed.

The application for arbitration was filed because the conciliation procedure did not lead to an agreement between the parties as attested to by the copy of the conciliation report I have enclosed in this application.

Object of the dispute

The amount of $__________, which represents the difference between the account and the amount of $__________ that I acknowledge as constituting a just and reasonable fee for the professional services rendered.

I hereby request that the dispute be settled by arbitration held in accordance with the Regulation respecting the conciliation and arbitration procedure for the accounts of bailiffs (chapter H-4.1, r. 12), a copy of which I declare having received and taken cognizance of.

I hereby agree to comply with the decision of the council of arbitration that will be formed in accordance with this Regulation.

Signed at ___________________________________________________________________________________

---

(Signature of applicant or applicant’s attorney)

O.C. 1468-2002, Sch. II.

REFERENCES

O.C. 1468-2002, 2002 G.O. 2, 6545

S.Q. 2008, c. 11, s. 212