On Jan. 1, the Act to establish the New Code of Civil
Procedure came into force in Quebec. The NCCP is intended to
modernize civil procedure, promote access to justice, and reduce
costs and delays.
According to the Preliminary Provision of the
This Code is designed to provide, in the public interest, means
to prevent and resolve disputes and avoid litigation through
appropriate, efficient and fair-minded processes that encourage the
persons involved to play an active role. It is also designed to
ensure the accessibility, quality and promptness of civil justice,
the fair, simple, proportionate and economical application of
procedural rules, and the exercise of the parties' rights in a
spirit of co-operation and balance, and respect for those involved
in the administration of justice.
Although there are significant changes to each of the procedural
stages, this article is limited to some of the changes found in
Book I and Book II of the NCCP, entitled, respectively,
"General Framework of Civil Procedure" and
The first section of the NCCP identifies what are deemed to be the
"main private dispute prevention and resolution
processes" and provides that the parties must
"consider" those processes before referring their dispute
to the courts. To add teeth to that provision, the legislature has
codified the rules applicable to mediation and modified those in
respect of arbitration.
The NCCP also spells out the "guiding principles of
procedure," one of which is respect for the proportionality
principle, whereby each party must ensure that each step in the
proceedings is proportionate, in terms of the cost and time
involved, to the nature and complexity of the matter.
This protocol is more comprehensive than the former one as the
parties are now required to: indicate the consideration they have
given to private dispute prevention and resolution processes;
justify the necessity of conducting pre-trial examinations and, if
they are to be conducted, their anticipated number and length;
indicate the advisability of seeking one or more expert opinions
and, as the case may be, the reasons why the parties do not intend
to jointly seek a single expert opinion.
Once the judicial process has begun, the courts have broad
discretionary powers to fulfil the mission conferred upon them by
the legislature. That mission includes ensuring proper case
management in keeping with the principles and objectives of
procedure. It further includes, both at first instance and on
appeal, facilitating conciliation whenever the law requires or the
parties request or consent to it.
Thus, at a case management conference convened at any stage of
proceedings, on request or on the court's own initiative, the
court may: take measures to simplify or expedite the proceedings;
assess the purpose and usefulness of seeking expert opinion and
impose the use of a joint expert if necessary to do so to respect
the proportionality principle; determine the terms for the conduct
of pre-trial examinations.
With respect to pre-trial examinations, the NCCP no longer makes
any distinction between those held before or after the filing of
the defence. Moreover, the NCCP provides that objections raised
during the examination, including those based on relevance, do not
prevent the examination from continuing; the witness is required to
answer except where the objection pertains to a fundamental right
or to an issue raising a substantial or legitimate interest.
The NCCP also imposes a time limit on pre-trial examinations: They
may not last more than five hours. In family matters or in cases
where the amount at issue is less than $100,000, the duration of an
examination cannot exceed three hours. In the course of the
examination, the parties may agree to extend its length to seven
from five hours or to four from three hours. Any other extension
requires the court's authorization.
The NCCP also makes significant changes to the adducing of expert
evidence, designed to promote the resolution of the dispute and
reduce legal costs and delays.
The foregoing are highlights of only a few of the many changes
brought in by the NCCP. It is too early to conclude whether those
changes will meet the underlying objectives of the legislature.
Nevertheless, we can already see that the courts are being much
more proactive regarding the conduct of the proceedings.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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