C-26, r. 72 - Regulation respecting the practice of members of the Ordre des conseillers et conseillères d’orientation et des psychoéducateurs et psychoéducatrices du Québec within a partnership or a joint-stock company

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chapter C-26, r. 72
Regulation respecting the practice of members of the Ordre des conseillers et conseillères d’orientation et des psychoéducateurs et psychoéducatrices du Québec within a partnership or a joint-stock company
COUNSELORS — PROFESSIONAL CODE — PRACTICE
Professional Code
(chapter C-26, ss. 93, pars. g and h and 94, par. p).
C-26
October 10 2013
Replaced, Décision 2012-04-27, 2012 G.O. 2, 2410; eff. 2012-05-31; see chapter C-26, r. 207.4 and Décision 2013-09-09, 2013 G.O. 2, 4238; eff. 2013-10-10; see chapter C-26, r. 71.2.
Decision 13-09-09.
CHAPTER I
GENERAL
1. Members of the Ordre des conseillers et conseillères d’orientation et des psychoéducateurs et psychoéducatrices du Québec are authorized to carry on their professional activities within a limited liability partnership or a joint-stock company within the meaning of Chapter VI.3 of the Professional Code (chapter C-26) if
(1)  more than 50% of the voting rights attached to the shares or units of the partnership or joint-stock company are held
(a)  by members of the Order or by other professionals governed by the Professional Code;
(b)  by a legal person, trust or enterprise whose voting rights attached to the shares or units of the partnership or joint-stock company are held entirely by members of the Order or by other professionals governed by the Professional Code; or
(c)  by a combination of persons, trusts or enterprises referred to in subparagraphs a and b;
(2)  a majority of the directors of the board of directors of the joint-stock company, the partners or, where applicable, the directors appointed by the partners to manage the affairs of the limited liability partnership are members of the Order or other professionals governed by the Professional Code; and
(3)  to constitute a quorum of the board of directors of a partnership or joint-stock company, a majority of the members present are members of the Order or other professionals governed by the Professional Code.
Members of the Order must ensure that those conditions appear in the articles of constitution of the joint-stock company or in the contract constituting the limited liability partnership and that the documents stipulate that the partnership or joint-stock company is constituted for the purpose of carrying on professional activities.
O.C. 400-2008, s. 1.
2. A member of the Order may carry on professional activities within a partnership or joint-stock company if the member
(1)  provides the Order with a written document from a competent authority certifying that the partnership or joint-stock company is covered by security in compliance with Chapter II;
(2)  provides the Order, where the member carries on professional activities within a joint-stock company, with a written document from the competent authority certifying the existence of the joint-stock company;
(3)  provides the Order, where applicable, with a certified true copy of the declaration from the competent authority attesting to the continuance of the general partnership as a limited liability partnership;
(4)  provides the Order with a written document certifying that the partnership or joint-stock company is duly registered in Québec;
(5)  provides the Order with a written document certifying that the partnership or joint-stock company has an establishment in Québec;
(6)  provides the Order with an irrevocable written authorization from the partnership or joint-stock company within which the member carries on professional activities allowing a person, committee, disciplinary body or tribunal referred to in section 192 of the Professional Code (chapter C-26) to obtain from a person any document listed in section 13 or a copy of such a document; and
(7)  provides the Order with a written document from the partnership or joint-stock company certifying that its shareholders having voting rights, its partners, directors and officers, as well as the members of its staff who are not members of the Order are aware of the Code of ethics of the members of the Ordre des conseillers et conseillères d’orientation et des psychoéducateurs et psychoéducatrices du Québec (chapter C-26, r. 68), and comply with the Code.
O.C. 400-2008, s. 2.
3. In addition, the member of the Order must send to the Order a sworn declaration, made on the form provided by the Order, containing
(1)  the partnership or joint-stock company name and any other names used in Québec by every partnership or joint-stock company within which the member of the Order carries on professional activities and the registration number assigned to them by the competent authority;
(2)  the legal form of the partnership or joint-stock company;
(3)  the professional activities carried on by the member of the Order within the partnership or joint-stock company;
(4)  the member of the Order’s name, home address and status within the partnership or joint-stock company;
(5)  where the member carries on professional activities within a limited liability partnership, the address of the establishments of the partnership in Québec, specifying the address of the main establishment, names and home addresses of all the partners, their percentage of units and an indication of their management functions, as the case may be;
(6)  where the member carries on professional activities within a joint-stock company, the address of the head office of the joint-stock company and of its establishments in Québec, the names and home addresses of all the shareholders, their percentage of voting shares and non-voting shares and an indication of their functions of director and officer, as the case may be;
(7)  an indication that the shares or units held and the rules of administration of the partnership or joint-stock company comply with the conditions set out in this Regulation;
(8)  the names of the holders of shares or units referred to in subparagraph 1 of the first paragraph of section 1 with the percentage of voting rights held by each shareholder; and
(9)  an indication that the conditions set out in subparagraph b of subparagraph 1 of the first paragraph of section 1 are complied with in the case of holders of shares or units referred to in that subparagraph.
Members of the Order must submit with their declaration a fee of $100.
O.C. 400-2008, s. 3.
4. Where more than one member of the Order carries on activities within the same partnership or joint-stock company, they must designate a representative to fill out the documents on behalf of all the members of the Order and send the documents and fees prescribed in sections 2 and 3 to the Order, reply to requests made by the syndic, an assistant syndic, an inspector, an investigator or any other representative of the Order and provide any other documents the members of the Order are required to submit.
The representative must be a member of the Order and a voting partner or shareholder.
The representative must ensure the accuracy of the information given in the declaration referred to in the first paragraph of section 3.
O.C. 400-2008, s. 4.
5. A member of the Order is exempt from the requirement to satisfy the conditions set out in sections 2 and 3 if a member of the Order or the representative of the partnership or joint-stock company within which the member practises has already satisfied the conditions.
O.C. 400-2008, s. 5.
6. The documents referred to in paragraphs 1, 4 and 5 of section 2 must be updated every year by the member of the Order or the representative by 31 March at the latest.
Any change to the other documents referred to in section 2 and to the declaration referred to in the first paragraph of section 3 must be sent to the Order within 30 days of the date of the change.
O.C. 400-2008, s. 6.
7. Where a member of the Order becomes aware that a condition set out in this Regulation or in Chapter VI.3 of the Professional Code (chapter C-26) is no longer met, the member of the Order must, within 15 days, take the necessary measures to comply, failing which, the member of the Order is no longer authorized to carry on activities within the partnership or company.
O.C. 400-2008, s. 7.
8. A member of the Order or the representative of the partnership or the joint-stock company must immediately inform the Order of any change to the insurance coverage referred to in paragraph 1 of section 2, the striking off, dissolution, assignment of property, bankruptcy, voluntary or forced liquidation of the partnership or joint-stock company or any other cause likely to prevent the partnership or joint-stock company from carrying on its activities and any change in the information given in the declaration referred to in the first paragraph of section 3 that is contrary to the conditions set out in section 1.
O.C. 400-2008, s. 8.
CHAPTER II
PROFESSIONAL LIABILITY COVERAGE
9. A member of the Order must furnish and maintain security for the partnership or joint-stock company within which the member carries on professional activities by means of an insurance or suretyship contract or by joining a group plan contract entered into by the Order, against liabilities of the partnership or joint-stock company arising from fault or negligence on the part of members of the Order in carrying on their professional activities within the partnership or joint-stock company.
O.C. 400-2008, s. 9.
10. The following minimum conditions for the security must be set out in a specific rider or contract:
(1)  an undertaking by the insurer or surety to pay in lieu of the partnership or joint-stock company, over and above the amount of the security to be furnished by the member of the Order pursuant to the Règlement sur l’assurance de la responsabilité professionnelle des membres de l’Ordre des conseillers et conseillères d’orientation et des psychoéducateurs et psychoéducatrices du Québec, (chapter C-26, r. 67), or the coverage taken out by the member of the Order if it is greater, up to the amount of the security, any sum that the partnership or joint-stock company may be legally bound to pay to a third person on a claim filed during the coverage period and arising from fault or negligence on the part of the member of the Order in carrying on professional activities;
(2)  an undertaking by the insurer or surety to take up the cause of the partnership or joint-stock company and defend it in any action against it and to pay, in addition to the amounts covered by the security, all legal costs of actions against the partnership or joint-stock company, including the costs of the inquiry and defence and interest on the amount of the security;
(3)  an undertaking that the security extends to all claims submitted in the 5 years after the date on which a member of the Order in the partnership or joint-stock company dies, withdraws from the partnership or joint-stock company or ceases to be a member of the Order, in order to maintain coverage for the partnership or joint-stock company for fault or negligence on the part of that member while carrying on professional activities within the partnership or joint-stock company;
(4)  an amount of at least $1,000,000 per claim and $3,000,000 for all claims relating to the coverage period;
(5)  an undertaking by the insurer or surety to provide the secretary of the Order with a 30-day notice of intent to cancel the insurance or suretyship contract, to amend a condition of this section or not to renew the contract; and
(6)  an undertaking by the insurer or surety to provide the secretary of the Order with a notice that the insurance or suretyship contract has not been renewed; the notice must be sent within 15 days following the expiry of the contract.
O.C. 400-2008, s. 10.
11. The suretyship under this Chapter must be with a bank, credit union, trust or insurance company that undertakes to provide the coverage required by section 10, waiving the benefit of division and discussion; the institution must be domiciled in Canada and maintain sufficient property in Québec to meet the required coverage.
O.C. 400-2008, s. 11.
CHAPTER III
ADDITIONAL INFORMATION
12. On a general partnership being continued as a limited liability partnership or a joint-stock company being constituted, a member of the Order carrying on professional activities within the partnership or joint-stock company must, on the date of the occurrence, send a notice to his or her clients informing them of the nature and effects of the change of status of the partnership or joint-stock company, in particular with respect to the member’s professional liability and that of the partnership or joint-stock company.
O.C. 400-2008, s. 12.
13. The documents for which an authorization from the partnership or joint-stock company is required to communicate or obtain copies pursuant to paragraph 6 of section 2 are the following:
(1)  if the member of the Order carries on professional activities within a joint-stock company;
(a)  the complete and up-to-date register of the articles and by-laws of the joint-stock company;
(b)  the complete and up-to-date register of the shareholders of the joint-stock company;
(c)  the complete and up-to-date register of the directors of the joint-stock company;
(d)  any shareholders’ agreement and voting agreement and amendments;
(e)  the declaration of registration of the joint-stock company and any update; and
(f)  the names and home addresses of the company’s principal officers;
(2)  if the member of the Order carries on professional activities within a limited liability partnership,
(a)  the declaration of registration of the partnership and any update;
(b)  the partnership contract and amendments;
(c)  the complete and up-to-date register of the partners;
(d)  where applicable, the complete and up-to-date register of the directors; and
(e)  the names and home addresses of the partnership’s principal officers.
O.C. 400-2008, s. 13.
CHAPTER IV
INCOME
14. Where a member of the Order carries on professional activities within a joint-stock company, the income derived from the professional services rendered within and on behalf of the company belongs to the company, unless it has been agreed otherwise.
The determination, billing and payment of fees is subject to the conditions set out in the Code of ethics of members of the Ordre des conseillers et conseillères d’orientation et des psychoéducateurs et psychoéducatrices du Québec (chapter C-26, r. 68) and the member of the Order is personally responsible for seeing to their application.
O.C. 400-2008, s. 14.
CHAPTER V
TRANSITIONAL AND FINAL
15. A member of the Order who carries on professional activities within a joint-stock company constituted for the purposes of the professional activities before 22 May 2008 must comply with this Regulation not later than 1 year following that date.
O.C. 400-2008, s. 15.
16. (Omitted).
O.C. 400-2008, s. 16.
REFERENCES
O.C. 400-2008, 2008 G.O. 2, 1286