N-3, r. 8.1 - Regulation respecting the compensation fund of the Chambre des notaires du Québec

À jour au 1^er septembre 2012

Ce document a valeur officielle.

chapter N-3, r. 8.1

Regulation respecting the compensation fund of the Chambre des notaires du Québec

Notaries Act

(chapter N-3).

Professional Code

(chapter C-26, s. 89.1).

DIVISION I GENERAL

§ 1 . — Compensation Fund

1. The board of directors of the Chambre des notaires du Québec shall establish a compensation fund to compensate a claimant, subject to section 18, for the use of moneys or property by a notary for purposes other than those for which they were entrusted to him in the practice of his profession pursuant to a contract for services.

O.C. 59-2012, s. 1.

2. The compensation fund must be maintained at not less than $500,000 and shall consist of:

(1)  moneys allocated to the fund by the board of directors;

(2)  assessments levied for that purpose;

(3)  moneys or property recovered from notaries by subrogation or pursuant to section 159 of the Professional Code (chapter C-26);

(4)  income earned on the moneys and property making up the fund;

(5)  moneys paid by an insurer under an insurance policy held by the executive committee.

O.C. 59-2012, s. 2.

§ 2 . — Rules for the administration and investment of the fund

3. The executive committee administers the fund and withdraws administration fees. In particular, the executive committee is authorized to conclude any contract of insurance or reinsurance for the purposes of the fund and to pay the premiums out of the fund.

O.C. 59-2012, s. 3.

4. The executive committee shall keep an accounting of the fund, separate from that of the Order.

O.C. 59-2012, s. 4.

5. The moneys making up the fund shall be invested by the executive committee as follows:

(1)  the moneys the executive committee expects to use in the short term shall be deposited in a financial institution governed by the Act respecting trust companies and savings companies (chapter S-29.01), the Bank Act (S.C. 1991, c. 46), the Act respecting financial services cooperatives (chapter C-67.3), or the Trust and Loan Companies Act (S.C. 1991, c. 45);

(2)  the other moneys shall be entrusted to an investment manager for investment in short term securities, fixed interest securities, Canadian or foreign shares, in accordance with the investment policy adopted by the board of directors.

O.C. 59-2012, s. 5.

DIVISION II COMPENSATION FUND COMMITTEE

6. A compensation fund committee, hereinafter called the “Committee,” shall be established by the board of directors to examine the claims against the fund. It shall comprise no fewer than 5 members appointed by the board of directors from among notaries entered on the roll of the Order for at least 10 years and the directors appointed to the board of directors by the Office des professions du Québec pursuant to section 78 of the Professional Code (chapter C-26). At least one of the members must be a director.

The chair of the Committee is designated by the members.

The quorum of the Committee is a majority of its members.

O.C. 59-2012, s. 6.

7. Where the number of Committee members so permits, the Committee may sit in divisions comprising 5 members, one of whom shall be the chair or another Committee member designated by division members as chair of the division, and another member chosen from among the directors appointed by the Office.

The quorum of a division is 3 members.

O.C. 59-2012, s. 7.

8. Committee members remain in office at the end of their mandates until they are reappointed or replaced by the board of directors.

O.C. 59-2012, s. 8.

9. The board of directors shall appoint the secretary of the Committee and, as needed, one or more assistant secretaries who perform the same duties as the secretary.

O.C. 59-2012, s. 9.

DIVISION III COMPENSATION PROCEDURE

10. Claims against the fund must

(1)  be in writing;

(2)  state all supporting facts and be accompanied by all relevant documents;

(3)  indicate the amount claimed; and

(4)  be sworn and filed with the secretary of the committee.

O.C. 59-2012, s. 10.

11. The secretary of the Committee shall inform members of any claim against the fund at the first meeting after the claim is filed.

If the Committee has not completed its inquiry into the claim within 90 days after the claim is filed, the secretary of the Committee shall, upon expiry of that period, notify the claimant in writing and report to him on the Committee’s progress. Until the Committee has completed its inquiry, the secretary of the Committee shall, every 60 days following expiry of the 90 day period, notify the claimant in writing that the inquiry is continuing and report on the Committee’s progress.

The obligation to notify the claimant as set out in the second paragraph does not apply to the situation contemplated in section 20.

O.C. 59-2012, s. 11.

12. To be admissible, a claim against the fund must be filed within one year of the claimant’s knowledge that moneys or property have been used for purposes other than those for which they were entrusted to the notary in the practice of his profession.

Subject to section 13, a claim that is not filed within the prescribed period is inadmissible.

O.C. 59-2012, s. 12.

13. The period prescribed in section 12 may be extended if the claimant demonstrates that he was unable to file the claim within the prescribed period for reasons beyond his control.

O.C. 59-2012, s. 13.

14. An application by any person to the Order in respect of facts likely to give rise to a claim against the fund is deemed to be a claim within the meaning of section 10 if the application is sent within the period prescribed in section 12.

O.C. 59-2012, s. 14.

15. The committee shall decide, in respect of any claim not exceeding $30,000 against the fund, whether the claim should be allowed, in whole or in part, and if so, shall determine the amount of compensation. The decision of the Committee is final.

O.C. 59-2012, s. 15.

16. The executive committee, upon the recommendation of the Committee, shall decide, in respect of any claim exceeding $30,000 against the fund, whether the claim should be allowed, in whole or in part, and if so, shall determine the amount of compensation. The executive committee may, if it deems necessary, consult with the syndic. The decision of the executive committee is final.

O.C. 59-2012, s. 16.

17. A decision may be rendered in respect of a claim regardless of any action filed by the claimant in a civil court, any judgment rendered by such court, or any decision of the disciplinary council or the Professions Tribunal in respect of the notary in question.

O.C. 59-2012, s. 17.

18. The maximum indemnity payable out of the fund is $100,000 per claim arising from a notary’s use, in connection with a contract for services, of moneys or property for purposes other than those for which they were entrusted to him in the practice of his profession.

The maximum indemnity payable out of the fund is $100,000 for the aggregate of claims addressed to the fund arising from a notary’s use, in connection with one or more contracts for services concluded with several persons for the same service, of moneys or property for purposes other than those for which they were entrusted to him in the practice of his profession. Where the total of the claims allowed in a case contemplated in this paragraph exceeds the maximum indemnity, the indemnity is distributed in proportion to the amount of each claim.

For the purposes of this section, service includes the performance of professional services by a notary pursuant to a contract for services for the benefit of 2 or more persons, in particular but without limiting the foregoing, the acquisition or sale of a family residence or an undivided co-ownership, the settlement of a succession, the creation of a patrimony by appropriation or of the constitution of a legal person, and any investment of a movable or immovable nature.

O.C. 59-2012, s. 18.

19. The maximum compensation payable shall be reviewed every 5 years as of 1 March 2012.

O.C. 59-2012, s. 19.

20. The balance of a notary’s general trust account shall, subject to section 42 of the Regulation respecting trust accounting by notaries (chapter N-3, r. 5), be distributed by the secretary of the Committee among the claimants in respect of the notary, in proportion and up to the amount of each claim allowed, less the sum paid pursuant to section 18, at the expiry of 60 days following publication of a notice to that effect in a newspaper circulating in the place where the notary has or had his professional domicile.

The secretary of the Committee shall cause the notice to be published after 1 year has elapsed without any new claim exceeding $100,000 against the fund in respect of that notary.

O.C. 59-2012, s. 20.

21. The claimant shall sign an acquittance in favour of the Order upon payment of the compensation.

O.C. 59-2012, s. 21.

DIVISION IV TRANSITIONAL AND FINAL

22. This Regulation replaces the Regulation respecting trust accounting by notaries (chapter N-3, r. 5).

However the Regulation respecting trust accounting by notaries shall continue to govern claims filed against the fund before 1 March 2012.

O.C. 59-2012, s. 22.

23. The compensation fund contemplated in section 2 shall consist of the moneys and property already allocated for this purpose as at 1 March 2012.

O.C. 59-2012, s. 23.

24. (Omitted).

O.C. 59-2012, s. 24.

REFERENCES

O.C. 59-2012, 2012 G.O. 2, 447