i-9, r. 11 - Regulation respecting the procedure for conciliation and arbitration of accounts of engineers

À jour au 1^er septembre 2012

Ce document a valeur officielle.

chapter I-9, r. 11

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

Engineers Act

(chapter I-9, s. 7).

Professional Code

(chapter C-26, s. 88).

DIVISION I GENERAL PROVISIONS

1.01. (Revoked).

R.R.Q., 1981, c. I-9, r. 8, s. 1.01; O.C. 1328-2001, s. 1.

1.02. In this Regulation, unless the context indicates otherwise,

(a)  “conciliator” means the secretary of the Ordre des ingénieurs du Québec or the person he designates;

(b)  “council” means the council for the arbitration of accounts set up under Division III.

R.R.Q., 1981, c. I-9, r. 8, s. 1.02; O.C. 822-95, s. 1; O.C. 1328-2001, s. 2.

1.03. (Revoked).

R.R.Q., 1981, c. I-9, r. 8, s. 1.03; O.C. 1328-2001, s. 3.

DIVISION II CONCILIATION

2.01. The conciliator shall forward a copy of this Regulation to every person who so requests.

R.R.Q., 1981, c. I-9, r. 8, s. 2.01; O.C. 822-95, s. 2.

2.02. A client or person who has a dispute with a member about the amount of an account, may, even if the amount was paid, partly or fully, file a written application for conciliation with the conciliator within 60 days of the date of receipt of the account.

Where the amount of the account has been withdrawn or withheld by the member from the funds that he holds or receives for or on behalf of the client, the period runs from the day on which the client becomes aware of the withdrawal or withholding.

R.R.Q., 1981, c. I-9, r. 8, s. 2.02; O.C. 822-95, s. 3; O.C. 1328-2001, s. 4.

2.03. A member may not institute proceedings to recover an account for professional services before the expiry of a 60-day period from the date of receipt of the account by the client.

R.R.Q., 1981, c. I-9, r. 8, s. 2.03; O.C. 822-95, s. 3.

2.04. Upon reception of an application for conciliation, the conciliator shall notify the member or, where he is unable to notify the member personally, shall notify the member’s firm or employer; he shall also send the client a copy of this Regulation.

Once the conciliator has received the application for conciliation, the member may not institute proceedings to recover his account so long as the dispute may be settled by conciliation or arbitration.

Notwithstanding the foregoing, a member may request provisional measures in accordance with article 940.4 of the Code of Civil Procedure (chapter C-25).

R.R.Q., 1981, c. I-9, r. 8, s. 2.04; O.C. 822-95, s. 3; O.C. 1328-2001, s. 5.

2.05. The conciliator shall proceed with the conciliation in the manner he considers most appropriate.

Any agreement reached during conciliation shall be put in writing, shall be signed by the client and the member and shall be filed with the conciliator.

R.R.Q., 1981, c. I-9, r. 8, s. 2.05; O.C. 822-95, s. 4.

2.06. The conciliator may require the member or the client to furnish any document relating to the account in dispute and all the information essential to him. The member must cooperate with the conciliator in that respect.

R.R.Q., 1981, c. I-9, r. 8, s. 2.06; O.C. 822-95, s. 5.

2.07. Where conciliation does not lead to an agreement between the parties, the conciliator shall send a report on the dispute to the parties by registered or certified mail as soon as possible.

The report shall contain the following information, where applicable:

(1)  the amount of the account in dispute;

(2)  with the parties’ consent, the amount that the client acknowledges owing and the amount that the member acknowledges having to reimburse or is willing to accept as a settlement of the dispute;

(3)  where applicable, the amount suggested by the conciliator during conciliation as a payment to the member or as a reimbursement to the client.

The conciliator also sends the client the form provided in Schedule I, indicating the procedure and the time allowed for submitting the dispute to arbitration.

R.R.Q., 1981, c. I-9, r. 8, s. 2.07; O.C. 813-84, s.1; O.C. 822-95, s. 5; O.C. 1328-2001, s. 6.

2.08. (Revoked).

R.R.Q., 1981, c. I-9, r. 8, s. 2.08; O.C. 822-95, s. 6.

2.09. The conciliation record is filed with the conciliator. This record includes the application for conciliation and the conciliator’s report; it must be kept for at least 1 year but not more than 5 years.

O.C. 1328-2001, s. 7.

DIVISION III ARBITRATION

§ 1 . — Application for arbitration

3.01.01. Within 15 days of receiving the conciliation report, the client may apply for arbitration of the account by sending the form in Schedule I and a copy of the report and its schedules to the conciliator.

The application for arbitration may be withdrawn by the client only in writing and with the consent of the member.

R.R.Q., 1981, c. I-9, r. 8, s. 3.01.01; O.C. 822-95, s. 7; O.C. 1328-2001, s. 8.

3.01.02. Upon reception of an application for arbitration, the conciliator shall notify the member or, where he is unable to notify the member personally, shall notify the member’s firm or employer.

R.R.Q., 1981, c. I-9, r. 8, s. 3.01.02; O.C. 822-95, s. 7; O.C. 1328-2001, s. 9.

3.01.03. Any agreement reached by the parties after the application for arbitration has been submitted shall be put in writing, shall be signed by the parties and shall be recorded in the arbitration award.

R.R.Q., 1981, c. I-9, r. 8, s. 3.01.03; O.C. 822-95, s. 7; O.C. 1328-2001, s. 10.

§ 2 . — Arbitration council

3.02.01. The council of arbitration shall be composed of 3 arbitrators where the amount in dispute is $10,000 or more, and of a single arbitrator where the amount is less than $10,000.

The executive committee designates members of the Order to act as arbitrators.

The president of the Order selects from among the members designated as provided in the second paragraph, the member or the 3 members of a council of arbitration and, if it consists of 3 arbitrators, he designates the chair and the secretary thereof.

R.R.Q., 1981, c. I-9, r. 8, s. 3.02.01; O.C. 813-84, s.2; O.C. 822-95, s. 8; O.C. 1328-2001, s. 11.

3.02.02. The conciliator shall notify the parties and the arbitrators of the formation of the council.

R.R.Q., 1981, c. I-9, r. 8, s. 3.02.02; O.C. 822-95, s. 9.

3.02.03. A request that an arbitrator be recused may be filed only for a reason provided for in article 234 of the Code of Civil Procedure (chapter C-25). The request shall be sent in writing to the executive committee, to the council of arbitration and to the parties or their advocates within 10 days of receipt of the notice provided for in section 3.02.02 or within 10 days of the day on which the reason for the request becomes known.

The executive committee shall decide the request and, where applicable, shall see that the arbitrator is replaced.

R.R.Q., 1981, c. I-9, r. 8, s. 3.02.03; O.C. 822-95, s. 10.

3.02.04. Before acting, the arbitrators must take the oath of discretion prescribed in Schedule II to the Professional Code (chapter C-26).

R.R.Q., 1981, c. I-9, r. 8, s. 3.02.04.

3.02.05. In the case of death or inability to act of one of the arbitrators, the others shall settle the matter and their decision shall be valid. If the chair of the council dies or is unable to act, the executive committee shall appoint a chair from among the other 2 arbitrators on the council.

If the council of arbitration consists of a single arbitrator, he shall be replaced by a new arbitrator and the dispute shall be reheard.

R.R.Q., 1981, c. I-9, r. 8, s. 3.02.05; O.C. 822-95, s. 11.

§ 3 . — Hearing

3.03.01. The chair of the council shall give the client and the member a written notice of at least 10 days of the date, hour and place of the hearing.

R.R.Q., 1981, c. I-9, r. 8, s. 3.03.01; O.C. 822-95, s. 12.

3.03.02. The client and the member have the right to be assisted by an advocate.

R.R.Q., 1981, c. I-9, r. 8, s. 3.03.02; O.C. 822-95, s. 12.

3.03.03. The council shall hear the parties and receive their evidence. It shall proceed with dispatch to the hearing of the dispute according to the procedure and mode of evidence it considers appropriate.

R.R.Q., 1981, c. I-9, r. 8, s. 3.03.03.

3.03.04. The council may require, after summary notice to the parties, any additional evidence it considers pertinent.

R.R.Q., 1981, c. I-9, r. 8, s. 3.03.04.

3.03.05. The evidence shall not be recorded unless one of the parties so requests, in which case that party shall assume the cost thereof.

R.R.Q., 1981, c. I-9, r. 8, s. 3.03.05.

3.03.06. Articles 945, 945.3, 945.5 to 945.8 and 947 to 947.4 of the Code of Civil Procedure (chapter C-25) shall apply, with the necessary modifications, to the arbitration held under this Regulation.

R.R.Q., 1981, c. I-9, r. 8, s. 3.03.06; O.C. 822-95, s. 13.

§ 4 . — Award of arbitrators

3.04.01. The arbitration award shall be a majority award and be made within 45 days of the end of the hearing.

The award shall give reasons and shall be signed by all the arbitrators. Where an arbitrator refuses to sign, the others shall mention that fact and the award shall have the same effect as though it were signed by all the arbitrators.

In its award, the council of arbitration may uphold or reduce the amount of the account in dispute, determine the reimbursement or payment to which a party may be entitled, and, where applicable, rule on the amount that the client acknowledges owing and that he sent with his application for arbitration.

R.R.Q., 1981, c. I-9, r. 8, s. 3.04.01; O.C. 822-95, s. 14; O.C. 1328-2001, s. 12.

3.04.02. The award is filed with the conciliator. It is sent to each of the parties or their counsel by registered mail within 10 days of being submitted.

R.R.Q., 1981, c. I-9, r. 8, s. 3.04.02; O.C. 1328-2001, s. 13.

3.04.03. The expenses incurred by the parties for the holding of the arbitration shall be assumed by each of them respectively and cannot be claimed by the adverse party.

R.R.Q., 1981, c. I-9, r. 8, s. 3.04.03.

3.04.04. The award must adjudge on the arbitration fees, that is, the expenses actually incurred by the Order for the holding of the arbitration. However, the total amount of the arbitration fees shall in no case exceed 15% of the amount which is the subject of the arbitration.

Where the account in dispute is upheld in whole or in part, or where a reimbursement is granted, the council of arbitration may add thereto interest and compensation calculated in accordance with articles 1618 and 1619 of the Civil Code from the date of the application for conciliation.

Where an agreement is reached between the parties before the award of the council is rendered, the latter shall nevertheless adjudge on the arbitration fees in accordance with this section.

R.R.Q., 1981, c. I-9, r. 8, s. 3.04.04; O.C. 822-95, s. 15.

3.04.05. The arbitration award is binding on the parties but is subject to compulsory execution only after having been homologated in accordance with the procedure provided for in articles 946.1 to 946.5 of the Code of Civil Procedure (chapter C-25).

R.R.Q., 1981, c. I-9, r. 8, s. 3.04.05; O.C. 822-95, s. 16.

3.04.06. The record of arbitration shall be filed with the conciliator. The record shall include the application for conciliation, the submission to arbitration and the award; it shall be kept for a period of at least 1 year, and not more than 5 years.

At the request of either of the parties, the conciliator shall return the documents filed by them at the hearing.

R.R.Q., 1981, c. I-9, r. 8, s. 3.04.06; O.C. 813-84, s. 3; O.C. 822-95, s. 17; O.C. 1328-2001, s. 14.

SCHEDULE I

(s. 3.01.01)

APPLICATION FOR ARBITRATION OF AN ACCOUNT

I, the undersigned, __________(name of the person seeking arbitration)__________ __________(domicile)__________ declare that:

(1) __________(member’s name)__________ is claiming from me (or refuses to reimburse to me) a sum of money for professional services.

(2) I have enclosed a copy of the conciliation report.

(3) I am applying for arbitration of the account under the Regulation respecting the procedure for conciliation and arbitration of accounts of engineers (chapter I-9, r. 11).

(4) I have received a copy of the Regulation mentioned above and have taken cognizance thereof.

(5) I agree to submit to the procedure provided for in that Regulation and, where required, to pay to __________(member’s name)__________ the amount of the arbitration award.

______________________________

Signature

R.R.Q., 1981, c. I-9, r. 8, Sch. I; O.C. 822-95, s. 18; O.C. 1328-2001, s. 15.

SCHEDULE II

(Revoked)

R.R.Q., 1981, c. I-9, r. 8, Sch. 2; O.C. 822-95, s. 19.

REFERENCES

R.R.Q., 1981, c. I-9, r. 8

O.C. 813-84, 1984 G.O. 2, 1605

O.C. 822-95, 1995 G.O. 2, 1893

O.C. 1328-2001, 2001 G.O. 2, 6035

S.Q. 2008, c. 11, ss. 212 and 213