The Quebec Justice Minister has tabled Bill 99, An Act to
amend the Code of Civil Procedure to prevent abusive use of the
courts and promote freedom of expression and citizen participation
in public debate (the "Bill").
The Bill aims to prevent abusive use of the courts, promote
access to justice for all citizens and strike a fairer balance
between the financial strength of the parties to a legal
The Bill is considerably more far-reaching in scope than its
name would suggest. It would give the courts new powers and codify
other pre-existing ones. Included are provisions whereby:
A court will be able, on request or even on its own initiative,
to declare an action or pleading abusive. The abuse of procedure
may consist in a claim or pleading that is frivolous or dilatory.
It may also consist in bad faith, in a use of procedure that is
excessive or unreasonable, or in a perversion of the ends of
justice, in particular if it operates to restrict the freedom of
citizens to express themselves in the context of a public debate.
The objective of the latter wording is to discourage proceedings
commonly known as SLAPPs (Strategic Lawsuits Against Public
In case of abuse, a court will be able to dismiss an action,
strike out a submission or require it to be amended, reject a
pleading or terminate or refuse to allow an examination.
If it considers it appropriate to do so, a court will be able
to order a provision for costs to be paid to a party whose
financial situation would prevent the party from properly arguing
the party's case.
In case of abuse, a court will be able to order a provision for
costs to be reimbursed, condemn a party to pay, in addition to
costs, damages in reparation for harm suffered, including fees and
extrajudicial costs incurred, and if appropriate, award punitive
If the abuse is committed by a legal person, the directors and
officers who took part in the decision may be personally condemned
to pay damages.
A defendant will also be able to ask for the dismissal of all
or part of an action that is abusive or unfounded in law. Until
now, a motion seeking to have an action dismissed in part was not
The amendment that would allow a court to order a provision for
costs to be paid to a party is not new law. The Supreme Court of
Canada1 and the Quebec Court of Appeal2 have
recognized the inherent power of the courts to grant interim costs
in rare cases, in the interest of ensuring that a party's
rights are safeguarded. However, the tests put forward in the Bill
are much broader and less stringent than those developed by the
courts. Among other things, the Bill does not require a prima
facie case to be made that the other party's proceeding is
abusive. The Bill, if adopted in its current form, will certainly
encourage persons who are parties to a suit to seek a provisional
sum to cover the costs.
An increase in claims for punitive damages can
also be anticipated. Until now, punitive damages could not be
sought in abuse of procedure cases, with the exception of
situations covered by the Quebec Charter of Human Rights and
Freedoms. Although the courts have on occasion acknowledged
that a party had abused the right to bring suit, the damages that
the party concerned was exposed to were generally limited to the
value of the professional fees incurred by the other party.
While most of the proposed amendments included in the Bill in
fact correspond to principles that have already been recognized by
the courts, their explicit inclusion in the Code of Civil
Procedure will unquestionably encourage the courts to resort
to these new rules and will afford judges broader discretion in
managing cases with a view to allowing litigants to arrive at more
rapid and less costly outcomes to their disputes.
The Bill will be studied by a parliamentary committee this
coming October. It remains to be seen whether the proposed
amendments will be adopted as is, and if so, what tests the courts
will develop for purposes of applying the new measures.
1. British Columbia (Minister of Forests) v. Okanagan
Indian Band,  3 S.C.R. 371.
2. François Hétu c. Notre-Dame de
Lourdes (Municipalité de),  R.J.Q.
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