H-4.1, r. 3 - Code of ethics of bailiffs

À jour au 1^er septembre 2012

Ce document a valeur officielle.

chapter H-4.1, r. 3

Code of ethics of bailiffs

Court Bailiffs Act

(chapter H-4.1, s. 3).

Professional Code

(chapter C-26, s. 87).

CHAPTER I GENERAL DUTIES

1. In addition to the requirement of section 12 of the Court Bailiffs Act (chapter H-4.1), bailiffs must act in a manner that is objective, respectful, moderate and dignified. They must refrain from using methods and attitudes likely to adversely affect the honour and the dignity of their profession.

O.C. 550-2002, s. 1.

2. Bailiffs must carry out their professional activities with integrity.

O.C. 550-2002, s. 2.

3. Bailiffs must practise their profession according to generally recognized standards and practices. To that end, bailiffs shall continue to update their knowledge and take the necessary means to upgrade and develop that knowledge.

O.C. 550-2002, s. 3.

4. Bailiffs must, in the practice of their profession, refrain from acting in a manner that would embarrass, humiliate or offend any individual; bailiffs must abstain from making improper or inappropriate remarks.

O.C. 550-2002, s. 4.

5. Bailiffs must be properly attired and must abstain from wearing clothing that could lead a person to believe that they are members of a police force or security guards.

O.C. 550-2002, s. 5.

5.1. Bailiffs who practise the profession within a partnership or joint-stock company must take reasonable measures to ensure that the partnership or joint-stock company, as well as the persons, employees, students, trainees, shareholders or partners working with them in the practice of the profession comply with the Court Bailiffs Act (chapter H-4.1), the Professional Code (chapter C-26) and the regulations thereunder.

O.C. 647-2009, s. 1.

5.2. The duties and obligations under the Court Bailiffs Act (chapter H-4.1), the Professional Code (chapter C-26) and their regulations are in no way changed or reduced by the fact that the bailiff practises the profession within a partnership or joint-stock company.

O.C. 647-2009, s. 1.

CHAPTER II DUTIES AND OBLIGATIONS TOWARDS CLIENTS, LITIGANTS, THE PROFESSION AND THE PUBLIC

DIVISION I CONDUCT

6. In the practice of their profession, bailiffs must consider the limits of their proficiency and knowledge as well as the available recourses. They must consult another bailiff or a qualified person before performing any act for which they are not sufficiently prepared.

O.C. 550-2002, s. 6.

7. Bailiffs must recognize at all times the right of a client to do business with another bailiff.

For the purpose of this Regulation, a client is a person that has requested the services of a bailiff or given a bailiff a mandate.

O.C. 550-2002, s. 7.

8. In addition to the requirement of section 54 of the Professional Code (chapter C-26), bailiffs must refrain from practising their profession or performing professional acts under conditions or in a state likely to impair the quality of their services.

O.C. 550-2002, s. 8.

8.1. Bailiffs who foresee that essential aspects of all or a part of the services for which they are being retained may be provided by another person must so inform the client.

O.C. 647-2009, s. 2.

8.2. Bailiffs must handle with care any property entrusted to them. They may not lend it or use it for purposes other than those for which it was entrusted to them and must return it to its rightful possessor once the professional services have been performed.

Bailiffs who practise the profession within a partner-ship or joint-stock company must take reasonable measures to ensure that the partnership or joint-stock company complies with the requirements of the first paragraph when the property is entrusted to the partnership or joint-stock company in the performance of the professional services.

O.C. 647-2009, s. 2.

DIVISION II AVAILABILITY AND DILIGENCE

9. Bailiffs must be reasonably available and diligent in all matters entrusted to them.

O.C. 550-2002, s. 9.

10. Bailiffs must give their clients, or litigants when required, all explanations necessary to understand and assess the professional services rendered.

O.C. 550-2002, s. 10.

11. Bailiffs must render accounts to their clients when so requested by them.

O.C. 550-2002, s. 11.

12. No bailiff shall cease or refuse to act for a client without serious cause. The following in particular constitute serious cause:

(1)  the loss of a client’s confidence;

(2)  the lack of cooperation from a client;

(3)  the bailiff is in a conflict of interest or in a situation in which the bailiff’s professional independence could be questioned;

(4)  inducement by the client to perform unlawful, unfair or fraudulent acts; or

(5)  the client does not pay the bailiff’s fees and disbursements on a regular basis.

O.C. 550-2002, s. 12.

13. Before ceasing to act on behalf of a client, the bailiff must give prior notice to the client of the reason and the time when the services will cease to be rendered. The notice must be given within a reasonable time under the circumstances and the necessary measures must be taken by the bailiff to prevent serious and foreseeable prejudice to the client.

O.C. 550-2002, s. 13.

DIVISION III LIABILITY

14. Bailiffs must not, in the practice of their profession, evade or attempt to evade their liability or, if applicable, the liability of the partnership or joint-stock company within which they practise the profession or the liability of another person who also practises there.

O.C. 550-2002, s. 14; O.C. 647-2009, s. 3.

DIVISION IV INDEPENDENCE AND IMPARTIALITY

15. Bailiffs must ignore any intervention by a third party that might influence the performance of their professional duties to the detriment of the parties.

O.C. 550-2002, s. 15.

16. Bailiffs must maintain professional independence at all times and avoid all situations where there could be a conflict of interest.

O.C. 550-2002, s. 16.

17. Without restricting the generality of the foregoing, bailiffs are in a situation of conflict of interest in particular,

(1)  when the interests are such that bailiffs may be at risk of giving preference to interests other than those of the client, or that the bailiff’s judgment or loyalty towards the client may be unfavourably affected;

(2)  when the bailiff must serve proceedings on or seize the property of an enterprise in which the bailiff has a financial interest.

O.C. 550-2002, s. 17.

18. Bailiffs must notify the client as soon as they become aware that they are in a conflict of interest.

O.C. 550-2002, s. 18.

18.1. A bailiff must take reasonable measures to ensure that confidential information or documents relevant to the file are not disclosed to a partner, shareholder, director, officer or employee of a partnership or joint-stock company in which the bailiff practises the profession or has an interest, as soon as the bailiff becomes aware that the partner, shareholder, director, officer or employee has a conflict of interest.

The following factors must be taken into particular account in assessing the effectiveness of such measures:

(1)  the size of the partnership or joint-stock company;

(2)  the precautions taken to prevent access to the bailiff’s file by the person in the conflict of interest;

(3)  the instructions given to protect confidential information or documents relating to the conflict of interest;

(4)  the isolation of the person in the conflict of interest with respect to the bailiff.

O.C. 647-2009, s. 4.

19. Bailiffs must avoid performing or multiplying professional acts without justification and abstain from rendering services that are inappropriate or disproportionate to a client’s needs.

O.C. 550-2002, s. 19.

20. In addition to the requirements of sections 16 and 17, no bailiff shall perform professional activities in matters in which the bailiff holds an interest, in matters that concern the bailiff’s immediate family, relatives or relatives by marriage up to the degree of cousin-german inclusively, or in matters that concern a partner or shareholder of the partnership or joint-stock company in which the bailiff performs professional activities.

O.C. 550-2002, s. 20; O.C. 647-2009, s. 5.

21. Bailiffs must refuse to receive in addition to any remuneration to which they are entitled any benefit, commission or rebate in connection with the practice of their profession.

O.C. 550-2002, s. 21.

22. Bailiffs may share their fees only with the partnership or joint-stock company within which they practise the profession, another bailiff, a trust or a partner or shareholder in that partnership or joint-stock company.

Where a bailiff practices the profession within a partnership or joint-stock company, the revenues generated by professional services rendered within and for the partnership or joint-stock company belong to the partner-ship or joint-stock company, unless agreed otherwise.

The first and second paragraph do not apply to the fees received by a bailiff who is employed exclusively by a municipal court.

O.C. 550-2002, s. 22; O.C. 647-2009, s. 6.

DIVISION V PROFESSIONAL SECRECY

23. For the purposes of preserving the secrecy of confidential information that becomes known to them in the practice of their profession, bailiffs must, in addition to fulfilling their own obligations in that regard, take the necessary measures to prevent their colleagues and the persons under their authority or supervision or in their employ or who practise the profession within the same partnership or joint-stock company as the bailiffs from disclosing or making use of such information that becomes known to them in the performance of their duties.

O.C. 550-2002, s. 23; O.C. 647-2009, s. 7.

23.1. A bailiff who, pursuant to the third paragraph of section 60.4 of the Professional Code (chapter C-26), communicates information that is protected by professional secrecy to prevent an act of violence must

(1)  communicate immediately the information that becomes known to the bailiff to the person exposed to the danger or that person’s representative, or to the persons who can come to that person’s aid;

(2)  enter the particulars regarding the communication of the information protected by professional secrecy in a record created for that purpose, in particular:

(a)  the date, time and mode of communication of the information;

(b)  the reasons supporting the decision to communicate the information, including the identity of the person who caused the bailiff to communicate the information; and

(c)  the nature of the communication, including the identity of the person or persons to whom the information was communicated; and

(3)  send the syndic, as soon as possible, a notice regarding the communication that includes the particulars identified in paragraph 2.

O.C. 836-2003, s. 1.

DIVISION VI ACCESSIBILITY OF RECORDS

§ 1 . — Conditions and procedures applicable to the exercise of the right of access provided for in section 60.5 of the Professional Code

24. In addition to the special rules prescribed by law, bailiffs must respond with diligence, or no later than 45 days after receipt thereof, to any request from a client to examine or obtain a copy of the documents concerning that client in any record established in respect of the client.

Access to those documents shall be free of charge.

O.C. 550-2002, s. 24.

25. Bailiffs may charge a client that exercises the right provided for in section 24 fees that may not exceed reasonable costs for reproducing or transcribing documents or for transmitting a copy of documents.

A bailiff who charges such fees shall, before reproducing, transcribing or transmitting the requested information or copies, notify the client of the approximate amount to be paid.

O.C. 550-2002, s. 25.

26. A bailiff who, pursuant to the second paragraph of section 60.5 of the Professional Code (chapter C-26), refuses to allow a client access to the information contained in a record established in respect of that client shall inform the client in writing of the refusal and the reason for the refusal. The notice must describe the nature of the possible serious harm and inform the client of all recourses.

O.C. 550-2002, s. 26.

§ 2 . — Conditions and procedure applicable to the right to correction provided for in section 60.6 of the Professional Code

27. In addition to the special rules prescribed by law, a bailiff must respond with diligence, or no later than 45 days after receipt thereof, to any request made by a client whose purpose is:

(1)  to cause to be corrected any information that is inaccurate, incomplete or ambiguous with regard to the purpose for which it was collected, contained in any record established in respect of the client;

(2)  to cause to be deleted any information that is outdated or unjustified by the object of the record established in respect of the client; or

(3)  to file the client’s written comments in the record established in respect of the client.

O.C. 550-2002, s. 27.

28. A bailiff who grants a request provided for in section 27 shall issue to the client, free of charge, a copy of the document or the part of the document that was corrected or deleted or, as the case may be, an attestation that the client’s written comments have been filed in the record.

O.C. 550-2002, s. 28.

29. A bailiff who has information in respect of which a request for access or correction has been denied shall conserve the information until such time as the person concerned has exhausted all recourses under the law.

O.C. 550-2002, s. 29.

30. A bailiff shall be deemed to have refused to respond to a request under section 24 or 27 if no response has been given within 45 days following receipt of the request.

O.C. 550-2002, s. 30.

§ 3 . — Bailiffs’ obligation to return documents

31. Bailiffs must respond with diligence to any written request made by a client to take back a document entrusted to them.

O.C. 550-2002, s. 31.

DIVISION VII DETERMINATION AND PAYMENT OF FEES

32. For the acts described in section 8 of the Court Bailiffs Act (chapter H-4.1), all the bailiffs who are partners or shareholders and practise the profession within the same partnership or joint-stock company are solidarily liable in the partnership or joint-stock company for the application of the Tariff of fees and transportation expenses of bailiffs (chapter H-4.1, r. 14), unless it is demonstrated that the derogation is attributable to the personal initiative of one bailiff.

In other cases, bailiffs must charge fair and reasonable fees and they shall not perform duties free of charge.

This section does not apply to work a bailiff performs for another bailiff.

O.C. 550-2002, s. 32; O.C. 647-2009, s. 8.

33. Fees are fair and reasonable when they are proportional to the services rendered and warranted under the circumstances. In determining fees, bailiffs must consider the following factors:

(1)  the time required to render the professional service;

(2)  the degree of difficulty and importance of the service;

(3)  the performance of services that are unusual or require exceptional competence or speed;

(4)  the amount of disbursements and expenses incurred; and

(5)  if it is not an act described in section 8 of the Court Bailiffs Act (chapter H-4.1), the tariff pursuant to paragraph 12 of section 86.0.1 of the Professional Code (chapter C-26).

O.C. 550-2002, s. 33.

34. Bailiffs must give their client all the explanations necessary to understand a statement of fees, in particular when a litigant has satisfied a judgment rendered against the litigant.

O.C. 550-2002, s. 34.

35. Except for bailiffs who are employed exclusively by a municipal court, bailiffs shall not agree to accept or receive a fixed salary from a client for acts performed in accordance with sections 8 and 9 of the Court Bailiffs Act (chapter H-4.1).

O.C. 550-2002, s. 35.

36. Bailiffs shall ensure that clients are informed of the approximate and foreseeable costs of the professional services rendered for the client.

O.C. 550-2002, s. 36.

37. No bailiff shall charge interest on outstanding accounts unless the client has been duly notified. The interests so charged must be reasonable.

O.C. 550-2002, s. 37.

38. Before resorting to legal proceedings, bailiffs must exhaust all other recourses to obtain payment of their fees.

O.C. 550-2002, s. 38.

DIVISION VIII DUTIES AND OBLIGATIONS TOWARDS THE PROFESSION

§ 1 . — Incompatible responsibilities and duties

39. The following are incompatible with the practice of the profession of bailiff:

(1)  judicial or quasi-judicial duties including that of an employee of a court office or any other officer of the court; and

(2)  the responsibilities or duties of a bankruptcy trustee, a court stenographer or stenotypist and a peace officer other than a bailiff.

O.C. 550-2002, s. 39.

§ 2 . — Acts derogatory to the dignity of the profession

40. In addition to the derogatory acts referred to in sections 57, 58, 58.1 and 59.1 of the Professional Code (chapter C-26), the following acts are derogatory to the dignity of the profession:

(1)  collaborating or taking part in the unlawful practice of the profession;

(2)  inciting or collaborating with a person in the commission of an offence against the Court Bailiffs Act (chapter H-4.1), the Professional Code or a regulation under the Act or the Code;

(3)  offering, giving, accepting, receiving, or demanding money, a rebate or a commission in order to obtain or after having obtained a benefit personally or for another person;

(4)  urging a person repeatedly or insistently, either personally or through another natural or legal person, partnership, group or association, to retain the bailiff’s professional services;

(5)  conspiring, tacitly or expressly in any manner whatsoever, directly or indirectly, with a natural or legal person, partnership, group or association in order to obtain a contract for services or a mandate;

(6)  any act or omission giving an unlawful advantage to a litigant;

(7)  supplying a receipt or other document to falsely indicate that services have been rendered or performed;

(8)  noting the date and hour of service illegibly under the bailiff’s signature on the reverse side of a proceeding or signing illegibly without reproducing the signature in printed form;

(9)  except for bailiffs employed exclusively by a municipal court, concluding a pact, an agreement or an understanding with a view to sharing or distributing fees with any person other than the partnership or joint-stock company within which the bailiff practises the profession, another bailiff, a trust or a partner or shareholder of the partnership or joint-stock company;

(10)  hiding or voluntarily omitting to disclose that which the law requires a bailiff to disclose;

(11)  using blackmail, intimidation, threats or assault in the performance of professional duties, either personally or through an agent, the partnership or joint-stock company within which the bailiff practises the profession or the partners, directors, officers or shareholders of the partnership or joint-stock company;

(12)  misleading or attempting to mislead any litigant;

(13)  making a false declaration or entry, or falsifying, altering, damaging, destroying, or unlawfully disposing of or using the proof of identity as bailiff;

(14)  when the proceeding is an execution, in the absence of a general or special agreement with the client,

(a)  suspending the execution without a settlement between the parties; or

(b)  acting within a period that is prejudicial to the parties;

(15)  direct or indirect purchase of movable or immovable property by the serving bailiff or bailiffs who are partners, shareholders, directors, officers, employees or ordinary mandataries of the partnership or joint-stock company within which the bailiff practises the profession, in any judicial sale under the Code of Civil Procedure (chapter C-25);

(16)  the embezzlement or use for personal purposes of any monies, securities or property entrusted to the bailiff in the practice of the profession;

(17)  claiming fees for professional acts not performed or falsely described;

(18)  undue multiplying of travel for the same proceeding in order to reap greater profit from the application of the tariff;

(19)  departing from the provisions of the Code of Civil Procedure, or any other Act or regulation respecting the practice of the profession of bailiff;

(20)  failing to immediately inform the board of directors of the Chambre when having knowledge of any impediment to the admission of a candidate to the Chambre;

(21)  making a false declaration respecting the eligibility of a candidate for the practice of the profession;

(22)  subject to section 10 of the Court Bailiffs Act and to the Regulation respecting the practice of the profession of bailiff within a partnership or a joint-stock company (chapter H-4.1, r. 8), practising the profession in partnership with any person other than a member of the Chambre;

(23)  being in possession of a restricted firearm or any prohibited substance, in particular pepper spray, during the performance of duties;

(24)  failing to promptly inform the secretary of an intended assignment of property by the bailiff or the partnership or joint-stock company within which the bailiff practises the profession, that such an assignment has been made or that the bailiff, partnership or joint-stock company is the subject of a receiving order;

(25)  communicating with a person who has requested an inquiry in respect of the bailiff without the prior written permission of the syndic of the Chambre or the assistant or corresponding syndic;

(26)  failing to disclose to the syndic of the Chambre that there are reasonable grounds to believe that another member is contravening the Court Bailiffs Act, the Professional Code or a regulation under the Act or the Code;

(27)  practising the profession within, or having an interest in, a partnership or joint-stock company, with a person who, to the knowledge of the bailiff, performs acts that are derogatory to the dignity of the profession of bailiff; and

(28)  practising the profession within, or having an interest in, a partnership or joint-stock company if a partner, shareholder, director, officer or employee of the partnership or joint-stock company has been struck off the roll for more than 3 months or has had his or her professional permit revoked, unless the partner, shareholder, director, officer or employee

(a)  ceases to hold the position of director or officer within the partnership or joint-stock company within 10 days of the date on which the striking off the roll or permit revocation becomes executory, or within any other period authorized by the board of directors;

(b)  ceases to attend shareholder meetings and to exercise voting rights, if applicable, within 10 days of the date on which the striking off the roll or permit revocation becomes executory, or within any other period authorized by the board of directors; and

(c)  disposes of his or her voting shares or transfers them to a trustee within 10 days of the date on which the striking off the roll or or permit revocation becomes executory, or within any other period authorized by the board of directors.

O.C. 550-2002, s. 40; O.C. 647-2009, s. 9.

§ 3 . — Relations with the Chambre des huissiers de justice du Québec and with colleagues

41. A bailiff whose participation on a council of arbitration of accounts or on a review or professional inspection committee or on a disciplinary council is requested by the Chambre must accept that duty unless the bailiff has exceptional grounds for refusing.

O.C. 550-2002, s. 41.

42. Bailiffs must promptly reply to all correspondence from the syndic of the Chambre, or from an assistant or corresponding syndic, investigator, expert or professional inspection committee member when one of them requires information, documents, or explanations on any matter relating to the practice of the profession.

O.C. 550-2002, s. 42.

43. No bailiff shall betray the good faith of a colleague or commit a breach of trust or use unfair practices in respect of a colleague.

O.C. 550-2002, s. 43.

44. A bailiff who is consulted by a colleague shall give an opinion and recommendations as soon as possible.

O.C. 550-2002, s. 44.

45. No bailiff shall assign daily or regular tasks to a trainee that prevents the trainee from acquiring a general and complete training for the future practice of the profession.

O.C. 550-2002, s. 45.

46. A bailiff responsible for a trainee must provide the certificates or attestations prescribed by the Court Bailiffs Act (chapter H-4.1), the Professional Code (chapter C-26) or any regulation under the Act or the Code.

O.C. 550-2002, s. 46.

§ 4 . — Contribution to the advancement of the profession

47. Bailiffs must, as far as possible, contribute to the development of the profession by exchanging knowledge and experiences with colleagues and students and by participating in continuing education courses and training programs.

O.C. 550-2002, s. 47.

DIVISION IX RESTRICTIONS AND OBLIGATIONS RELATING TO ADVERTISING

48. No bailiff shall, by any means whatsoever, engage in or allow advertising that is false, deceitful, incomplete or likely to be misleading.

O.C. 550-2002, s. 48.

49. No bailiff shall claim to possess specific qualities or skills, particularly in respect to level of competence or scope or effectiveness of services, unless such claims can be substantiated.

O.C. 550-2002, s. 49.

50. In advertising, no bailiff shall use or allow to be used any endorsement or statement of gratitude in the bailiff’s regard other than awards for excellence and other prizes received in honour of a contribution or achievement that reflects on the profession as a whole.

O.C. 550-2002, s. 50.

51. The bailiff’s name and the title of bailiff and, if applicable, the name of the partnership or joint-stock company within which the bailiff practises the profession must be indicated in any statement or advertisement.

O.C. 550-2002, s. 51; O.C. 647-2009, s. 10.

52. Any advertisement likely to influence persons that may be vulnerable following a specific event must be aimed only at the general public.

O.C. 550-2002, s. 52.

53. All the bailiffs who are partners or shareholders and practise the profession within the same partnership or joint-stock company are solidarily responsible for complying with the rules respecting advertising, unless the advertising clearly indicates the name of the bailiff who is responsible or it is established that the derogation is attributable to the personal initiative of one bailiff.

O.C. 550-2002, s. 53; O.C. 647-2009, s. 11.

54. A bailiff who advertises fees for acts other than those described in section 8 of the Court Bailiffs Act (chapter H-4.1) must do so in a manner easily understood by the public while specifying the services included in the fees.

O.C. 550-2002, s. 54.

55. Bailiffs must keep a complete copy of the proof in negative, positive, reduced or enlarged form or any other reproduction of any advertisement in its original form for a period of 3 years. The copy must be given to the syndic, the assistant or corresponding syndic, investigator, expert or professional inspection committee member upon request.

O.C. 550-2002, s. 55.

56. No bailiff shall use the logo of the Ministère de la Justice in any form or for any purpose.

O.C. 550-2002, s. 56.

DIVISION X NAME OF LIMITED LIABILITY PARTNERSHIP OR JOINT-STOCK COMPANY

O.C. 550-2002, Div. X; O.C. 647-2009, s. 12.

57. Bailiffs may not practise the profession within a limited liability partnership or joint-stock company under a name that is misleading, deceptive or contrary to the honour or dignity of the profession or that is a number name.

O.C. 550-2002, s. 57; O.C. 647-2009, s. 12.

58. Bailiffs who practise the profession within a limited liability partnership or joint-stock company must take reasonable measures to ensure that any document produced by the partnership or joint-stock company in the practice of the profession is identified in the name of a bailiff.

O.C. 550-2002, s. 58; O.C. 647-2009, s. 12.

DIVISION XI GRAPHIC SYMBOL OF THE CHAMBRE

59. The Chambre des huissiers de justice du Québec is represented by a graphic symbol identical to the original held by the Secretary of the Order.

O.C. 550-2002, s. 59.

60. A bailiff who reproduces the graphic symbol of the Chambre for advertising purposes must ensure that the symbol is identical to the original held by the Secretary of the Order.

O.C. 550-2002, s. 60.

61. When a bailiff uses the graphic symbol of the Chambre for advertising purposes, except on business cards, the bailiff must include the following warning: “This advertisement does not originate from, and is not binding on, the Chambre des huissiers de justice du Québec.”

O.C. 550-2002, s. 61.

CHAPTER III FINAL PROVISIONS

62. This Code replaces Division VIII of the Regulation respecting the application of the Bailiffs Act (R.R.Q., 1981, c. H-4, r. 2) and the Code of ethics of bailiffs (R.R.Q., 1981, c. H-4, r. 1), maintained in force by section 31 of the Court Bailiffs Act (chapter H-4.1).

O.C. 550-2002, s. 62.

63. (Omitted).

O.C. 550-2002, s. 63.

REFERENCES

O.C. 550-2002, 2002 G.O. 2, 2504

O.C. 836-2003, 2003 G.O. 2, 2715

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

O.C. 647-2009, 2009 G.O. 2, 1837