Quebec’s New Culture of Law

On April 30, 2013, the Québec Minister of Justice, Mtre Bertrand St-Arnaud, introduced Bill 28 – An Act to Establish the New Code of Civil Procedure. If adopted, this Bill will replace the current Code of Civil Procedure. Apart from some partial modifications, for example the adoption of articles 54.1 through 56.6 C.c.p. on June 4, 2009, this new Bill is the first major reform of the Code since 1965.

In recent years, a large number of specialists have been consulted in order to thoroughly review the current Code. A draft bill was tabled in the National Assembly in September 2011, and submissions were received during public consultations in January 2012. Therefore, the adoption of Bill 28 is highly anticipated by Quebec’s legal community.

The new Code of Civil Procedure seeks to generate a change of approach in all those involved in the legal system with objectives such as accessibility, quality and efficiency of the civil justice system, proportionality and the economical application of procedure, as well as cooperation between the parties.

The Bill proposes a set of rules designed to ensure the achievement and the fulfilment of these objectives.

In an effort to improve the efficiency of the civil justice system, the Code starts with the notion of voluntary dispute prevention and resolution methods. Accordingly with this notion, the parties are obligated to consider private prevention and resolution processes before referring their dispute to the courts and the Bill highlights the benefits of these methods.

Apart from recognizing that the court’s mission includes facilitating conciliation, the future Code will rely on new provisions to ensure a proper case management and facilitation of the disclosure of evidence, such as:

• Requiring the parties to co-operate in order to either arrive at a settlement or to file a binding “case protocol” in which they will set out their agreements and undertakings, the issues in dispute, the steps to unfold during the proceedings, etc. In cases of failure to comply with this protocol, the courts may sanction the transgressor by awarding the other party the legal costs incurred. It is also required that the parties conserve the evidence, be open with each other and keep each other informed at all times of the facts and particulars conducive to a fair debate.

• Encouraging the use of a joint and single expert by the parties. With the goal of saving time and costs, the use of a common expert would be the standard, and the parties wishing to call on their own expert would need the court’s permission to do so. The purpose of the expert evidence will be to enlighten the court and to assist it in assessing the evidence, which ought to override the parties’ interests. In order to achieve this, the courts may appoint the expert, define its mission, or order that the experts with conflicting reports reconcile their opinions. It should be noted however that this novelty is highly contested and that it may not be part of the next code.

• Limiting and regulating pre-trial examination. Again, in order to save time and costs, Bill 28 specifies that pre-trial examinations can only be conducted if provided for in the case protocol. The Bill removes the distinction between examinations before and after the defence. All examinations may bear on any fact relevant to the dispute and may be oral or written. The possibility of a written examination is a new method allowing a party to notify a list of questions to the other party, or other person, who must answer within a specified time, which cannot be shorter than 15 days or longer than one month. The examinations can only be conducted if the amount claimed, or if the value of the property claimed, is worth $30,000 or more. Moreover, they are limited to 5 hours, with a possible 2 hour extension, only if agreed to during the course of the examination. The Bill also provides that objections other than those pertaining to the fact that the person cannot be compelled, to a fundamental right, or to an issue raising a substantial and legitimate interest, shall be answered under reserve, so as not to prevent the examination from continuing. Such objections will then be adjudicated at trial.

To facilitate access to the justice system, the new Bill increases the limit for the Small Claims Division of the Court of Quebec to $15,000. The limit for the Court of Quebec would also increase to $85,000.

The new Bill revisits the concept of costs. Instead of adjusting the amounts granted by the Tariff of Judicial Fees of Advocates, Bill 28 repeals it. Thus, each party will assume their own professional fees and won’t be able to include the amounts that were granted by the Tariff to their bill of costs. At the same time, the Bill maintains the rule that the party that was successful in its proceedings is entitled to the legal costs, unless the court decides otherwise The legal costs that the successful party will be able to recover are the following: court costs and fees, professional fees and expenses for the service or notification of pleadings and documents, witness indemnities and allowances, expert fees, interpreter fees, fees for registration in the land register or the register of personal and movable real rights, costs related to taking and transcribing oral evidence filed in the court record

Other measures are stipulated in the new Bill in order to respect the principle of proportionality. For example, the Bill allows and encourages the parties to submit their cases orally when possible. It also gives large powers to the courts to sanction a party which does not properly observe this principle or abuses of procedures, especially by forcing a party to pay the legal costs or a fair and reasonable amount to cover the professional fees of the other party’s lawyer.

Among other modifications in Bill 28, it should be noted that some changes have been made to the sections regarding family matters and the protection of minors, including new particularities.

Furthermore, regarding the notion of the forum of the proceedings, in matters pertaining to insurance contracts, the district of the domicile or residence of the insured (or the beneficiary), whether that person is the plaintiff or the defendant shall be deemed to have jurisdiction.

The final sections of the Bill stipulate that the new Code will apply as soon as it comes into force. Despite this, however, cases that have already been filed may continue to be governed by the former Code for the issues pertaining to the agreements concerning the conduct of the proceeding (Scheduling Agreements), to the presentation of the demand before the court (oral or written), as well as for the delays.

This initial and immediate launch will not leave much time for the lawyers and the other members of the legal system to adapt to these new changes. It is to be expected that the legal organizations (such as the Bar Association) will offer courses detailing the new powers of the courts, the new rules of procedure and the new terminology used in the Code. However, lawyers who have not already done so should start familiarizing themselves with alternative methods of dispute resolution and integrate them into their practices, as this appears to be the future of legal practice.

Finally, it should be mentioned that the Bill’s adoption date is not yet scheduled. Since the Committee on Institutions will hold special consultations and public hearings on this matter in September 2013, the Bill is still likely to undergo further changes before its final adoption. _ 

Leila Jananji is an attorney with Donati Maisonneuve Lawyers in Montreal. She practices in insurance law, and specifically in damage insurance and commercial litigation. In her work with the firm, she is regularly called upon to manage litigation files, draft legal opinions, negotiate settlements and represent the firm’s clients before the Courts of Quebec.