(R.S.Q. c. R-2.l, ss. 5-45)
Amendments: 1982, c. 37, s. 25: 1984, c. 46, s. 31: 1986, c. 61,
ss. 37, 38; 1991, c. 19, s. 1; 1997, c. 43, ss. 558-560.
TITLE II
ASSISTANCE TO CLASS ACTIONS
CHAPTER I
DEFINITIONS
5. In this title, unless the context indicates a different meaning,
(a) "assistance" means the assistance granted under Chapter III of this
title;
(b) "recipient" means the person who receives assistance;
(c) "Fonds" means the Fonds d*aide aux recours collectives established
by section 6;
(d) "representative" means the person who is ascribed the status of
representative for the bringing of a class action, in accordance with
article 1003 of the Code of Civil Procedure;
(e) "applicant" means a person who applies for assistance.
CHAPTER II
THE FONDS
6. An agency is established under the name of "Fonds d*aide aux recours
collectifs". The Fonds is a corporation within the meaning of the Civil Code
of Lower Canada and has the general powers of such a corporation and the
special powers conferred upon it by this Act.
7. The object of the Fonds is to ensure the financing of class actions
in the manner provided for by this title and to disseminate information
respecting the exercise of such actions.
[1984, c. 46, s. 31.]
8. The Fonds shall be administered by three persons including a
president, appointed for not more than three years by the Government, after
consultation with the Barreau du Quebec and the Commissions des services
juridiques. The Government shall fix, where necessary, the salary,
additional salary or fees that may be paid to each of the administrators,
and their allowances or indemnities.
9. An administrator shall remain in office on the expiry of his term
until he is reappointed or replaced.
10. If an administrator is unable to act by reason of absence or
illness, the Government may appoint a person to replace him temporarily.
11. The Fonds shall have its head office at the place determined by the
Government; a notice of the location or of any change of location of the
head office shall be published in the Gazette officielle du Quebec. The
Fonds may hold its sittings anywhere in Quebec.
12. Two members constitute a quorum of the Fonds. In the case of a
tie-vote, the president has a casting vote. An administrator having a
personal interest related to an application for assistance must declare his
interest and must abstain from participating in the decision, under pain of
forfeiture of office. However, if such an interest results solely from the
fact that the administrator is a member of the group on behalf of which an
application for assistance is made to the Fonds, the administrator shall
participate in the decision but must declare his interest.
13. The secretary and the other officers of the Fonds are appointed and
remunerated in accordance with the Public Service Act (R.S.Q. c. F-3. 1. 1).
[1986, c. 61, s. 37.]
14. Minutes of the sittings of the Fonds approved by the administrators
are authentic; the same applies to copies or extracts certified by the
president or the secretary.
15. The fiscal year of the Fonds ends on 31 March each year.
16. Not later than 1 September each year, the Fonds shall send its
budget to the Minister of Justice for the ensuing fiscal year. Such budget
shall be without effect so long as it has not been approved by the Minister.
The Government may dismiss any administrator of the Fonds who acquiesces to
an expenditure not provided for by the budget of the Fonds, except an
expenditure not exceeding the revenues of the Fonds not provided for in the
budget.
17. The Fonds shall send to the Minister of Justice, not later than 30
June each year, a report of its activities for the previous fiscal year. The
Minister shall table such report before the National Assembly if it is in
session, or, if it is not in session, within thirty days from the opening of
the next session or resumption, as the case may be.
18. The Fonds shall at any time give to the Minister of Justice any
information or report he requires on its activities.
19. The Auditor General shall, each year and, in addition, whenever the
Government so orders, audit the books and accounts of the Fonds.
CHAPTER III
ASSISTANCE
DIVISION I
GRANTING ASSISTANCE
20. Every representative and every person intending to be ascribed such
status may apply in writing for assistance from the Fonds.
21. The applicant shall set forth in his application the basis of his
claim and the essential facts determining its exercise, and shall describe
the group on behalf of which he intends to bring or is bringing the class
action. He shall also state his financial condition and that of the members
of the group who have made themselves known; he shall indicate the purposes
for which the assistance is intended to be used, the amount required, and
any other revenue or service available to him.
22. The applicant shall certify in his application that the information
supplied by him is accurate, and he shall authorize the Fonds to verify the
accuracy thereof. He shall furnish the vouchers and other information the
Fonds requires.
23. The Fonds shall study the applicant*s application and it may, for
that purpose, hear the applicant or his attorney. In order to determine
whether to grant assistance, the Fonds shall assess whether the class action
may be brought or continued without such assistance; in addition, if the
status of representative has not yet been ascribed to the applicant, the
Fonds shall consider the probable existence of the right he intends to
assert and the probability that the class action will be brought. Where the
representative or a member requesting to be substituted for him intends to
appeal the judgment which decides the questions of law or fact dealt with
collectively, the Fonds, in order to determine whether to grant or terminate
assistance, shall assess whether the action may be continued without such
assistance and whether the appeal is likely to succeed if brought. The Fonds
may defer the study of a part of the application, refuse assistance or grant
it, in whole or in part; in all cases, it shall render its decision within
one month following receipt of the application.
[1991, c. 19, s. 1.]
24. If the Fonds defers the study of a part of the application or if it
refuses to grant assistance, it shall notify the applicant in writing of its
decision and indicate the reasons therefor.
25. If assistance is granted, the Fonds shall agree upon the conditions
with the applicant or his attorney. The agreement between the Fonds and the
recipient shall, in particular, provide for:
(a) the amount and use of the assistance;
(b) the advances that may be paid to the recipient;
(c) the terms and conditions of producing accounts and expenditures
(d) the reports the recipient or his attorney must supply to the Fonds;
(e) the cases where assistance may be suspended or diminished;
(f) the terms and conditions of reimbursing the advances received or of
assistance, if such is the case;
(g) the subrogation of the Fonds in the rights of the recipient or his
attorney up to the amounts paid to them.
26. An administrator of the Fonds may grant the applicant temporary
assistance, which shall not exceed the amount prescribed by regulation of
the Fonds, if he considers that immediate assistance is necessary to avoid
the loss of non-exercise of the applicant*s right and if the Fonds cannot
meet in time to decide the applicant*s application. The decision of the
administrator must be substantiated. The applicant must reimburse the
amounts so received if the Fonds thereafter refuses to grant assistance.
DIVISION II
RIGHTS AND OBLIGATIONS OF THE FONDS AND OF THE RECIPIENT
27. The recipient is entitled to the payment by the Fonds of the
expenses expedient for the preparation or bringing of the class action in
the manner provided for in the agreement contemplated in section 25.
28. The recipient must notify the Fonds of any fact changing the
information supplied in accordance with sections 21 and 22. He must also
send to the Fonds a copy of the judgment of the court authorizing the
bringing of the class action or terminating it, ordering the publication of
a notice or of such a nature as to amend the agreement.
29. The Fonds shall pay for the recipient in the manner provided for in
the agreement contemplated in section 25, up to the amount of the
assistance:
(a) the fees of the recipient*s attorney;
(b) the fees and costs of experts and advocates-counsel acting for the
recipient;
(c) the costs and other court expenditures including costs of
notification, if they are at the expense of the recipient;
(d) the other expenses expedient to the preparation or the bringing of
the class action.
30. The recipient or, if such is the case, his attorney shall reimburse
to the Fonds the amounts paid by it up to the amounts they received from a
third party as fees, costs or expenses.
31. In the cases where the representative was granted assistance, if the
defendant in whose favour the final judgment has been rendered shows to the
satisfaction of the Fonds that it is impossible for him to obtain the full
payment of the judicial costs on the property of the representative, the
Fonds, after examining the financial condition of the defendant, may pay
these judicial costs in the name of the representative. The Fonds then
becomes subrogated in the rights of the defendant up to the amount paid to
him.
32. The Fonds shall file at the office of the Superior Court of the
district in which the class action is brought, the conclusions of the
decision granting assistance. The court must hear the Fonds before deciding
the payment of costs, determining the fees of the representative*s attorney,
or approving a transaction on costs or fees.
33. A recipient who fails to bring the class action or who is not
authorized to bring it, or who loses his status of representative or waives
it, is no longer entitled to assistance. He must then notify the Fonds,
report to it, and reimburse to it the advances received and not yet spent.
34. Assistance ceases pleno jure if the recipient uses it for purposes
other than those agreed upon; in such cases, he shall reimburse the amount
of assistance received and not used for the purposes of the class action.
DIVISION III
PROCEEDING BEFORE THE ADMINISTRATIVE TRIBUNAL OF QUÉBEC
35. Any applicant whose application for assistance is denied may, within
30 days of notification of the decision of the Fonds, contest the decision
before the Administrative Tribunal of Québec.
[1997, c. 43, s. 558.]
36. [Repealed 1997, c. 43, s. 559.]
37. If the tribunal decides that the applicant is entitled to
assistance, it shall order the Fonds to proceed with the granting of the
assistance after agreement with the applicant or his attorney in conformity
with section 25.
[1997, c. 43, s. 560.]
CHAPTER IV
REGULATIONS
38. The Government may, by regulation:
(a) fix, for the application of section 42, the percentage withheld by
the Fonds from the balance or from a liquidated claim;
(b) determine the cases where assistance may be granted to persons who
do not reside in Quebec and establish criteria and standards in that regard;
(c) determine the cases where assistance may be granted to a resident of
Quebec who intends to institute a proceeding of the nature of a class action
outside Quebec.
39. The Fonds may, by regulation subject to the approval of the
Government:
(a) determine the form and content of the applications and of the
reports to be filed with the Fonds;
(b) determine the amount that an administrator may commit pursuant to
section 26;
(c) determine the percentage of the assistance that may be remitted to a
recipient as an advance payment;
(d) [Repealed 1986, c. 61, s. 38];
(e) prescribe rules necessary for its internal management and the
conduct of its business.
[1986, c. 61, s. 38.]
40. No regulation dealing with the matters contemplated in section 38 or
in paragraph a, b, c or e of section 39 shall be made except after a notice
of 30 days published in the Gazelle officielle du Quebec, setting forth the
text thereof.
41. Every regulation made under sections 38 and 39 comes into force on
the date of its publication in the Gazelle officielle du Quebec or on any
later date fixed therein.
CHAPTER V
FINANCIAL PROVISIONS
42. In the case of a collective recovery of the claims, the Fonds shall
withhold a percentage fixed by regulation of the Government on the balance
established under article 1033 or 1034 of the Code of Civil Procedure; in
other cases, the Fonds shall withhold a percentage fixed by regulation of
the Government on every liquidated claim.
43. The Fonds may, with respect to the assistance it grants,
(a) spend the sums placed at its disposal for that purpose by the
Minister of Justice and those which have been withheld in accordance with
section 42;
(b) also make, annual, financial commitments other than a loan for an
amount up to the amount determined by the Minister of Justice at the time of
approval of the budget of the Fonds.
[1982, c. 37, s. 25.]
44. In addition to its powers under section 43, the Fonds may, with the
prior authorization of the Minister of Justice, contract a loan in respect
of the assistance it grants or in order to carry on its operations.
[1982, c. 37. s. 25.]
44.1. The Government, on such conditions as it determines, may
(a) undertake to supply the liquidity fund required by the Fonds so as
to enable it to repay the capital and interest of a loan contracted by the
Fonds, when due;
(b) guarantee the payment, in capital and interest, of any loan or other
financial commitment contracted or made by the Fonds.
The sums required for the purposes of this section are taken out of the
consolidated revenue fund.
[1982, c. 37. s. 25.]
45. The sums required for the application of this title shall be taken,
for the years 1978/1979 and 1979/1980, out of the consolidated revenue fund
and for the subsequent years out of the moneys granted for each year for
that purpose by the Legislature. |
