c-48.1, r. 27 - Regulation respecting the conciliation and arbitration procedure for the accounts of members of the Ordre des comptables professionnels agréés du Québec

À jour au 1^er septembre 2012

Ce document a valeur officielle.

chapter C-48.1, r. 27

Regulation respecting the conciliation and arbitration procedure for the accounts of members of the Ordre des comptables professionnels agréés du Québec

Chartered Professional Accountants Act

(chapter C-48.1, s. 2).

Professional Code

(chapter C-26, s. 88).

The former alphanumerical designation of this Regulation was: chapter C-48, r. 17.

O.C. 1356-93; S.Q. 2012, c. 11, s. 34.

DIVISION I CONCILIATION

1. A client who has a dispute with a member of the Ordre des comptables professionnels agréés du Québec concerning the amount of an unpaid account for professional services shall, before applying for arbitration, file a written application for conciliation with the syndic or the assistant syndic, so long as the client has not received service of legal proceedings for the recovery of that account.

O.C. 1356-93, s. 1.

2. A client who has a dispute with a member concerning the amount of an account for professional services that he has already paid in whole or in part shall, before applying for arbitration, file a written application for conciliation with the syndic or the assistant syndic within a 45-day period from the date of receipt of the account.

Where an amount has been withdrawn or withheld by the member from the funds that he holds or receives for or on behalf of the client, the period runs from the day on which the client becomes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

O.C. 1356-93, s. 2.

3. A member may not institute proceedings to recover an account for professional services before the expiry of a 45-day period from the date of receipt of the account by the client.

Notwithstanding the foregoing, the syndic may authorize such proceedings if it is feared that, without that measure, recovery of the account would be at risk.

O.C. 1356-93, s. 3.

4. If an agreement in writing has been entered into between the member and the client fixing the fees or the precise terms for determining them, the conciliation and arbitration procedure may be used only to ensure the conformity of the services actually rendered under the said agreement.

O.C. 1356-93, s. 4.

5. Within 3 days of receiving an application for conciliation, the syndic shall notify the member concerned or, where he is unable to notify the member personally, shall notify the member’s partership. He shall also send the client a copy of this Regulation.

Once the syndic 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).

O.C. 1356-93, s. 5.

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

O.C. 1356-93, s. 6.

7. 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 syndic.

O.C. 1356-93, s. 7.

8. Where conciliation does not lead to an agreement within 60 days from the date of receipt of the application for conciliation, the syndic shall send a report on the dispute to the client and to the member by registered mail.

The report shall contain the following information, where applicable:

(1)  the amount of the account in dispute;

(2)  the amount that the client acknowledges owing;

(3)  the amount that the member acknowledges having to reimburse or is willing to accept as a settlement of the dispute; and

(4)  the amount suggested by the syndic as a payment to the member or as a reimbursement to the client.

The syndic shall send the client the forms in Schedule I and shall indicate to him the procedure and deadline for submitting the dispute to arbitration.

O.C. 1356-93, s. 8.

DIVISION II ARBITRATION

Application for arbitration

9. The board of directors shall form a committee to examine arbitration applications and shall appoint the committee members from among the members of the Order. The board of directors shall designate the chair and the secretary thereof.

O.C. 1356-93, s. 9.

10. Within 20 days of receiving the conciliation report or of the expiry of the period prescribed in section 8, the client may apply for arbitration of the account by sending the form in Schedule I to the secretary of the committee.

O.C. 1356-93, s. 10.

11. Within 3 days of receiving an application for arbitration, the secretary of the committee shall notify the member concerned or, where he is unable to notify the member personally, shall notify the member’s partnership.

O.C. 1356-93, s. 11.

12. A client who wishes to withdraw his application for arbitration shall do so in writing and with the consent of the member.

O.C. 1356-93, s. 12.

13. Any agreement reached by the parties after the application for arbitration has been filed shall be put in writing, shall be signed by the parties and shall be filed with the secretary of the committee. Where the parties reach an agreement after the application has been referred to a council of arbitration, the agreement shall be recorded in the arbitration award.

If a dispute is settled before it is referred to a council of arbitration, no expense shall be charged to the parties.

O.C. 1356-93, s. 13.

Council of arbitration

14. The council of arbitration shall be composed of 1 or 3 arbitrators according to the complexity of the file and the circumstances surrounding the dispute, where the amount of the account is less than $5,000, and of 3 arbitrators, where the amount is greater.

O.C. 1356-93, s. 14.

15. The secretary of the committee shall designate from among the committee members, the arbitrator or the arbitrators who will compose the council of arbitration and, if the council is composed of 3 arbitrators, shall designate the chair thereof.

O.C. 1356-93, s. 15.

16. Before acting, the members of the council of arbitration shall take the oath in Schedule II to this Regulation.

O.C. 1356-93, s. 16.

17. The secretary of the committee shall send written notice to the arbitrators and to the parties informing them of the formation of the council of arbitration.

O.C. 1356-93, s. 17.

18. 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 secretary of the 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 17 or of the day on which the reason for the request becomes known.

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

O.C. 1356-93, s. 18.

Hearing

19. The secretary of the committee shall give the parties or their advocates and the arbitrators at least 10 days’ written notice of the date, time and place of the hearing.

O.C. 1356-93, s. 19.

20. Each party is entitled to be assisted by an advocate.

O.C. 1356-93, s. 20.

21. The council of arbitration shall, as soon as possible, hear the parties, receive their evidence or record any failure on their part. For those purposes, it shall follow such procedure as it considers appropriate.

The council may act as an amiable compositeur if the parties have so agreed.

O.C. 1356-93, s. 21.

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

O.C. 1356-93, s. 22.

23. The council may request the parties to remit to it, within a specified period, a statement of their claims together with the documents that they invoke.

The council may also ask to receive all files, documents or information it considers necessary to decide the dispute. The parties are bound to comply with such order.

O.C. 1356-93, s. 23.

24. Should an arbitrator die or be unable to act, the other arbitrators shall see the matter through.

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

O.C. 1356-93, s. 24.

Arbitration award

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

O.C. 1356-93, s. 25.

26. The award shall be a majority award of the members of the council.

The award shall give reasons and shall be signed by all the members of the council. Where a member refuses or is unable to sign, the others shall mention that fact and the award shall have the same effect as though it were signed by all the members.

O.C. 1356-93, s. 26.

27. The costs incurred by a party for the arbitration shall be borne by that party.

O.C. 1356-93, s. 27.

28. In its award, the council of arbitration may uphold or reduce the amount of the account in dispute and determine the reimbursement or payment to which a party may be entitled.

O.C. 1356-93, s. 28.

29. In its award, the council of arbitration may decide the arbitration expenses, which are the expenses incurred by the Order for the arbitration, and it has full discretion to award costs to one of the parties or to share them between the parties. Notwithstanding the foregoing, the total expenses may not exceed 15% of the amount to which the arbitration pertains.

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 an indemnity calculated in accordance with articles 1618 and 1619 of the Civil Code from the date of the application for conciliation.

O.C. 1356-93, s. 29.

30. The arbitration award is final and 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).

O.C. 1356-93, s. 30.

31. The arbitration award shall be filed with the secretary of the committee and shall be sent by registered mail to each party or to their advocates within 10 days after being filed.

O.C. 1356-93, s. 31.

32. Once the award is issued, the secretary shall keep the complete file for 5 years and may only forward a copy of it to the parties or their advocates and to the syndic upon request.

O.C. 1356-93, s. 32.

33. (Omitted).

O.C. 1356-93, s. 33.

34. (Omitted).

O.C. 1356-93, s. 34.

SCHEDULE I

(s. 8)

APPLICATION FOR ARBITRATION OF AN ACCOUNT

I, the undersigned, __________(client’s name or name of his mandatary)__________ __________(domicile)__________ declare that:

(1) __________(member’s name)__________ is claiming from me (or refuses to reimburse to me) a sum of money in the amount of $__________ 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 conciliation and arbitration procedure for the accounts of members of the Ordre des comptables professionnels agréés du Québec (chapter C-48.1, r. 27).

(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 the Regulation and, where required, to pay to __________(member’s name)__________ the amount of the arbitration award.

______________________________________________

Signature

---

AFFIDAVIT

I, the undersigned, __________(name and address)__________ in my own name or, if applicable, as a representative of ______________________________ as witnessed by the mandate which is attached to this application for arbitration, do hereby swear that this application for arbitration is made in good faith and not with intent to unduly delay payment.

And I have signed:

__________(signature of the client or his duly authorized representative)__________

Sworn before me at ______________________________ this __________ day of ______________________________ 20 __________

__________________________________________________

Commissioner for oaths

O.C. 1356-93, Sch. I.

SCHEDULE II

(s. 16)

OATH

I swear to perform all my duties and to exercise all my powers as an arbitrator faithfully, impartially and honestly, to the best of my ability and knowledge.

I also swear that I will not, without being so authorized by law, disclose or make known anything whatsoever of which I may take cognizance in the performance of my duties.

______________________________________________

Signature

Sworn before me

at ______________________________ this __________ day of ______________________________ 20 __________

__________________________________________________

Commissioner for oaths

O.C. 1356-93, Sch. II.

REFERENCES

O.C. 1356-93, 1993 G.O. 2, 5379

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

S.Q. 2012, c. 11, ss. 32 and 34