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After the Charbonneau Commission

The Charbonneau Commission allowed for the Voluntary Reimbursement Program (hereinafter the “Program”) to be created. This Program was established under the Act to ensure mainly the recovery of amounts improperly paid as a result of fraud or fraudulent tactics in connection with public contracts (hereinafter the “Act”).

Since November 2nd, 2015, under this Program, it is possible for:

“every natural person and every enterprise to reimburse certain amounts improperly paid by a public body in the course of the tendering, awarding or management of a public contract entered into after 1 October 1996 in relation to which there may have been fraud or fraudulent tactics”[1].

Individuals and enterprises can avail themselves of the Program without admission of liability or fault. However, if an individual or an enterprise indicates that it intends to avail themselves of the Program, it is more than likely to create a certain doubt about said individual or enterprise.

In order to insure that the Program runs smoothly, there will be a two-year suspension of court proceedings against the individuals and enterprises that could be subject to prosecution by public bodies under the provisions of the Act, until November 2nd, 2017.

The targeted enterprises have until November 1st, 2016 to file a notice of intent with the Program Director, accompanied by a check which corresponds to 2% of the value of the proposal.

The Program Director is a former judge of the Superior Court whose main functions are the following:

  • To receive the reimbursement proposals under the Program
  • To analyze the reimbursement proposals with the assistance of a team
  • To make recommendations to the Minister of Justice
  • To assist the parties to assess their positions and reach an agreement that is mutually satisfactory.

The Program provides a provision allowing for the possibility of convening a conciliation session following the rejection of proposals and counter-proposals, which can give parties a real boost.

On the one hand, this regulation may be advantageous for an individual or enterprise because, if there is an agreement at the end of the Program process, it is possible for the individual or enterprise to obtain a release that constitutes a transaction for all public contracts that have been awarded since 1996. This makes it no longer possible to take civil action if there is an agreement in relation to public contracts for this specific period. If there is no agreement, the Act allows to take an action for elements going as far back as 1996.

On the other hand, the public bodies will certainly go through all contracts with a fine tooth comb with individuals and enterprises who wish to avail themselves of the Program, even if availing themselves is without admission of liability or fault. In doing so, the public bodies will thus be better prepared to accept or reject proposals.

Finally, the Program provides a provision for situations in which a release was obtained on the basis of false or knowingly incomplete disclosures. In such cases, the release would be without effect.

The Act was adopted after the Charbonneau Commission and the Program appears to be a good compromise for the public bodies who want to recover certain amounts and for the enterprises and individuals who want to avoid prosecution. However, for the moment, it is not possible to say whether the Program will experience much success given its confidential nature.

[1] Art. 1 of the Voluntary Reimbursement Program