Canada: Draft Bill To Enact The New Code Of Civil Procedure – Highlights And Preliminary Comments

On September 29, 2011, the Québec Minister of Justice issued the Draft Bill to enact the new Code of Civil Procedure. This draft bill forms the basis of a proposed new code that would replace the current Code of Civil Procedure. This new code, if adopted, would entail substantial modifications that could have a major impact on Québec's legal landscape.

The new code aims to modernize and simplify the pre-trial process, trials, and appeals. It prioritizes cost reduction, flexibility, and proportionality. It encourage parties to collaborate in completing the court record and provides for in-depth judicial supervision by way of case management. It also places a higher importance on alternative modes of dispute resolution and prevention, requiring parties to consider these options before referring to the courts.

The proposed changes

The following are the most significant proposed changes in the draft bill:

1. Revised jurisdiction thresholds. The jurisdiction of the Court of Québec will be raised to $80,000 (art. 35). The jurisdiction of the small claims division will be raised to $15,000 (art. 539).

2. New terminology. An "affidavit" (affidavit) will become a "sworn statement" (déclaration sous serment) (art. 104). A "motion to institute proceedings" (requête introductive d'instance) will become a "judicial demand" (demande en justice introductive de l'instance) (art. 138). "Service" (signification) will become "notification" (notification) (art. 112). "Inscription in appeal" (inscription en appel) will become "notice of appeal" (déclaration d'appel) (art. 349). The French term for "class action" will change from recours collectif to action collective (art. 573).

3. Recourse to private modes of dispute prevention. The parties will have to "consider" recourse to private modes of dispute prevention and resolution (i.e. mediation and arbitration) before referring to the courts (art. 1). The State and public bodies will also, in certain circumstances, be able to avail themselves of private modes of dispute prevention and resolution (art. 75). While art. 1 only refers to the obligation to "consider" such a mode of dispute prevention, art. 7 provides that the parties can refer their dispute to the court only if they are unable to resolve the dispute through a private process.

4. Codification of mediation and reform of arbitration rules. The draft bill codifies the rules applicable to mediation (art. 610 and following). It also reforms the rules applicable to arbitration (art. 625 and following) and provides specific measures for international arbitration (art. 645 and following).

5. Pre-judiciary protocol. The draft bill indicates that the parties will, even before the originating demand has been filed, be able to cooperate in the early stages of preparation by agreeing on a pre-judiciary protocol (art. 20).

6. Gathering and conservation of evidence before institution of the proceedings. The draft bill provides elaborate mechanisms permitting the collection and gathering of evidence even before judicial proceedings have begun (art. 248 and following).

7. Obligation to preserve the evidence. The draft bill imposes an obligation upon the parties to preserve the relevant evidence (art. 20).

8. Flexibility and proportionality. The parties will have control over the conduct of their own case, but will have to confine the case to what is necessary to resolve the dispute (art. 19). The importance of the principle of proportionality is emphasized (art. 18).

9. Obligation to cooperate and to communicate. The draft bill imposes upon parties a positive obligation to "cooperate and, in particular, to keep one another informed at all times of the facts and particulars conducive to a fair debate (...). They must, among other things, at the time prescribed by the [proposed Code] or determined in the case protocol, inform one another of the facts on which their claims are based and of the evidence they intend to produce" (art. 20).

10. Simplification of demands made in the course of the proceedings. The draft bill provides that a demand made to the court in the course of a proceeding can be filed in writing or presented orally and informally; if it concerns a case management measure and if the judge so requests or the judge and the parties so agree, it can also be put down in a note, a letter or a notice (art. 100, para 2).

11. Elimination of the affidavit in certain circumstances. The affidavit (henceforth "sworn statement") will no longer be necessary with respect to demands made in the course of the proceedings. The facts alleged in these demands will be presumed to be true, but it will be possible to examine the person making the allegation on any facts alleged that are not supported in the record (art. 101).

12. Case protocol. The agreement between the parties as to the conduct of the proceeding will become the more fully developed "case protocol". This protocol will:

  • set out the agreements and the commitments of the parties and the issues in dispute;
  • evaluate the feasibility of a settlement conference;
  • indicate any preliminary exceptions, foreseeable incidental demands, and/or safeguard measures;
  • evaluate the time that may be required for pre-trial readiness as well as the foreseeable legal costs (the concept of legal costs is discussed below);
  • indicate the steps to take to assure the smooth conduct of the proceedings as well as the deadlines that are applicable;
  • indicate the procedure and time limit for pre-trial discovery and disclosure, as well as the procedure for the disclosure of exhibits and other relevant evidence;
  • specify admissions and the use of written statements in lieu of testimony;
  • evaluate the necessity of proceeding with written or oral pre-trial examinations and specify their anticipated number and duration;
  • evaluate the necessity of expertise, indicating its nature and setting out, if applicable, the reasons for which the parties will not proceed with joint expertise; and
  • indicate, where applicable, whether it will be necessary to extend the time limit for trial readiness beyond the six month delay provided to bring a case for trial (the six month delay now runs from the date of the case management conference) (art. 144).

13. Courts more involved in case management. Upon the case protocol being filed, the court will have the option to call a case management conference. In this conference, the court will be empowered to order the management measures that it deems appropriate (art. 149 and following). The draft bill intends to provide the court with a very broad case management power, including taking measures to simplify or expedite the proceeding and shorten the trial, determining the terms for the use of expert evidence, and determining the number, length of and other conditions relating to pre-trial examinations (art. 155). Decisions regarding case management made in the course of the proceedings will not be subject to appeal, unless the measure or decision appears unreasonable given the guiding principles of procedure (art. 32).

14. Financial sanctions where protocol is not respected. The case protocol will be binding upon the parties under pain, among other sanctions, of paying the legal costs incurred by the other parties or by third persons as a result of a failure to comply (legal costs are discussed below) (art. 146). The court will be empowered to punish serious compliance breaches by ordering a party to pay another party an amount that it considers fair and reasonable to cover the professional fees of the other party's lawyer, or if this other party is not represented by a lawyer, some compensation for the time devoted to the matter and the work put towards it (art. 339).

15. Complete reform of pre-trial examinations. The draft bill abandons the distinction between examinations before and after defence. The number and duration of the examinations will have to be set out in the case protocol (art. 216). These examinations will be subject to the following rules:

  • Transcript under the control of all the parties. The draft bill provides that the party conducting the examination will no longer have exclusive control over the transcript of such examination. Each party will be allowed to file as evidence all or part of the transcript (art. 221).
  • Objections taken under reserve. Objections made during examination will not prevent the examination from continuing, and the witness will be bound to answer. The objections will nevertheless be recorded to be decided by the judge at trial. Objections relating to the non-compellability of a witness or to fundamental rights (i.e. solicitor-client privilege) will have to be submitted to a judge as soon as possible for determination (art. 222).
  • Limit of five hours per examination. No examination will exceed a duration of five hours without the court's authorization. In family law or in disputes where the value in dispute is less than $100,000, the duration will be limited to two hours. No pre-trial examination will be permitted in disputes where the claim is less than $30,000 (art. 223).
  • Written examinations. A party will be able to conduct a written examination on the facts relevant to the dispute (art. 217 and following).

16. Expert evidence reform. The draft bill makes significant changes to the rules relating to expert evidence. These reforms focus on the number of experts, their role, and their participation in the trial.

  • Mission of the expert. The draft bill codifies the principle that the primary mission of the expert is to enlighten the court in its decision-making, rather than to represent one party or the other (art. 229).
  • Joint expertise. The draft bill tries to promote, as much as possible, recourse to a common expert shared between the parties (art. 144).
  • A single expert per area or matter. The parties will not be able to submit more than one expert opinion per area or matter unless otherwise authorized by the court (art. 226).
  • Disclosure of instructions. The parties must disclose to the court the instructions given to the expert (art. 226).
  • Meeting between experts. If conflicting expert's reports are filed, the experts will have to meet to reconcile their opinions, identify the points on which they differ, and prepare an additional report on those points (art. 234).
  • Restrictions on examinations during the trial. A party will not be able to examine an expert it has appointed unless so authorized by the court or unless the purpose of the examination is to obtain the expert's opinion on new evidence. The crossexamination of the other party's expert will be limited as well (art. 289).

17. Testimony by written statement. A party will be entitled to produce a written statement as evidence (art. 287). Any other party will be entitled to require that the witness be present at the evidence hearing. Under the current code, written declarations are only admissible in limited situations.

18. Partial exception to dismiss. The scope of the exception to dismiss will be enlarged, and the defendant will have the ability to seek the dismissal of only part of the demand, if it is unfounded in law whether or not the facts alleged are true. (art. 163, al. 2). Under the current Code, the defendant can only succeed if it can establish that the entire action is unfounded.

19. Decision on a point of law. The draft bill provides that the parties to a proceeding can, during the course of the action, jointly submit to the court a dispute between them on an issue of law relating to the demand (art. 204). This represents an innovation from the current procedure to obtain a ruling upon a question of law.

20. Power to sanction the improper use of procedure. The power to sanction abuse or improper use of procedure (currently art. 54.4 and following of the Code of Civil Procedure) is reiterated in articles 51 and following of the draft bill.

21. Use of technological means. The draft bill permits the parties and the court to use any appropriate technological means available (art. 25). It also provides, in certain circumstances, that hearings, conferences, and examinations may be held by videoconference or other appropriate technological means (art. 25, 274, and 498). The draft bill also provides that the court office (i.e., the registry) may receive documents saved on a technological medium, if its technological capacity permits (art. 99 al 2 and art. 107). Service (henceforth "notification") via technological means will also be possible in certain circumstances (art. 130 and 132).

22. Contempt of Court. The fine for contempt of Court will be markedly increased from its current maximum of $5,000 in any case to $10,000 per day for an individual and $100,000 per day for a legal person, partnership or association. The Court will also be empowered to impose compensatory community work to the individual or the officers of the legal person. The possibility, as a last resort, to impose imprisonment for a period not exceeding one year will remain (art. 62).

23. In camera and confidentiality orders. The draft bill codifies the courts' power to render in camera and confidentiality orders, including when the "legitimate protection of important interests requires that the hearing be held in camera or that access to the record or the disclosure or circulation of information or documents specified by the court be prohibited or restricted" (art. 11 and following). Journalists will be admitted to in camera hearings, unless doing so would cause serious prejudice to a person (art. 12).

24. Costs reform. The Tariff of judicial fees of advocates will be repealed. Legal costs will be borne by the parties, each paying its own (art. 337). The court will nevertheless be empowered to order one party to pay the "legal costs" incurred by another in certain circumstances, notably if the principle of proportionality has not been respected or if one party has made an improper use of procedure (art. 338). The "legal costs" as described in the draft bill do not include lawyers' professional fees (art. 336). As indicated above, however, the draft bill allows the court to sanction serious compliance breaches with the case protocol by ordering the payment of professional fees in certain cases (art. 339).

25. Appeals. The draft bill also provides few changes relating to proceedings before the Court of Appeal:

  • Case management. The draft bill ratifies the pilot project put in place by the Court of Appeal several months ago and provides for the case management of appeals (art. 364 and following).
  • Joint statement of facts and issues. The parties in appeal will be required to prepare a joint statement of the facts and issues in dispute unless otherwise authorized by a judge of the Court of Appeal (art. 367).
  • Authority of a single judge of the Court of Appeal to issue safeguard orders. The draft bill fills a jurisdictional gap by permitting a single judge of the Court of Appeal to issue an order to safeguard rights (art. 376).

26. Execution of judgments. The draft bill significantly reforms the approach taken with respect to the enforcement of judgments, and provides various measures to alleviate the economic burden imposed upon the debtor subject to enforcement measures.

27. Harmonization of judicial review. The draft bill provides unified rules applicable to judicial review in the Superior Court (art. 531 and following).

Preliminary Comments

The draft bill contains several innovations which are interesting and are to be applauded. The flexibility of the proposed new system, coupled with the accountability of parties, will certainly contribute to reducing both delays and costs.

The enlargement of the scope of the exception to dismiss so as to allow for the dismissal of only part of the action if it is unfounded in law (art. 163 al. 2), and the ability of the parties to jointly request during the course of the action that a court adjudicate upon a dispute (...) on an issue of law (art. 204), are excellent initiatives. However, it would be preferable if courts could decide, preliminarily, any issue of fact or law even in situations where one party opposes it. Such a provision would constitute an effective way to resolve litigation which may otherwise continue for many years, similar to the motion for summary judgment available in other jurisdictions.

However, certain measures raise questions, such as the ability for the party being examined on discovery to file the transcript in the court record. As the Supreme Court of Canada stated in a recent decision, "[t]he examination on discovery facilitates the disclosure of evidence to ensure that trials are conducted fairly and efficiently. It thus enables a litigant to clarify the basis of the claim against him or her, to assess the quality of the evidence and, occasionally, to determine the appropriateness of carrying on with the defense or at least to better define its framework. Used properly, this procedure can help expedite the conduct of the trial and the resolution of the issues before the court."

Such an exercise requires that the party conducting the examination must not be concerned that the answers given may be used against it. The current regime provides that only the party conducting the examination has the right, but not the obligation, to file the transcript in the court record. If the party subject to the examination is also able to produce the transcript of the examination in the court record, the party conducting the examination will likely abstain from asking a number of questions which may invite damaging answers. The examination on discovery, which was designed to allow a party to prepare its case, will thus lose most of its raison d'être. The other measures proposed in the draft bill (such as the five-hour limit and enhanced court supervision) appear sufficient to achieve the legislator's objective.

Another measure raising questions is the obligation for a witness to respond notwithstanding the formulation of an objection. Again, according to the Supreme Court of Canada, there is "a principle that has a moderating effect on the evidentiary process and civil matters, including at the examination on discovery stage, namely relevance. This principle governs both the examination on discovery and thus disclosure of records." Forcing a witness to answer questions that are not relevant will attenuate this moderating effect, with no legitimate purpose being served, and may oblige parties to disclose confidential facts which are not relevant to the litigation. Our experience shows that reacting quickly to resolve disputes related to the relevance of questions and requests for documents saves both time and money. Removing the parties' right to obtain a timely court ruling on the relevance of questions would take away a tool that is important to ensure efficient case management, and which is consistent with the Legislator's desire to increase the court's participation in case management.

Next Steps

The Minister of Justice proceeded by way of a draft bill so as to permit for public consultations and to obtain the opinion of citizens and of members of the legal community. The date upon which the bill will be deposited before the Québec National Assembly remains unknown, but according to certain sources it could be deposited in June 2012. Public consultations may occur at the beginning of the new year. Once deposited, the bill will be debated in parliamentary commission.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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