Kaufman Laramée LLP
This edition of the Young Bar Association of Montreal’s “10 jugement essentiels / 10 Essential judgments” will vary from its usual format. Given the recent adoption of a new Code of Civil Procedure for the province, we cannot miss the opportunity to analyze the changes that will, in some cases, fundamentally affect the practice of law in Quebec. This is part 1 of a series of articles that will identify and examine these changes.
The New Code is expected to come into force in the Fall of 2015 and leaves practitioners with the task of learning the new rules, adjusting to a different mentality and adopting a modified lexicon.
This article covers Book I of the New Code, entitled General Framework of Civil Procedure, as well as certain general aspects that do not specifically fall within the ambit of any specific book in the New Code. It attempts to identify some of the more prominent changes and their anticipated effects.
1. The Preamble
In line with other recent provincial legislation, the New Code is preceded by a preamble, ostensibly setting forth the legislator’s intentions. The New Code’s preamble reveals a new focus on dispute resolution rather than litigation and addresses the access to justice issue that has been at the top of the Barreau du Québec’s priority list for the past several years.
2. New Nomenclature
The New Code has replaced a significant number of terms with more colloquial versions, with the intention of making civil procedure more accessible to the general population. Book I introduces us to many of these terms; the key ones are reproduced in both languages in the table below:
Demande en justice
Jour non juridique
Motion introductive of suit
Requête introductive d’instance
Demande introductive d'instance
Moreover, all Quebec legislation is amended by reference to modify the following terms (art. 778):
Writ of execution
Writ of seizure
Writ of seizure in execution
Writ of seizure in execution of an immovable
Writ of seizure in execution of movable property
Writ of seizure of immovables
Writ of seizure of movable property
Writ of seizure of movable property in execution
Writ of seizure of property
Notice of execution
(according to context)
Bref de saisie
Bref de saisie-exécution
Bref de saisie immobilière
Bref de saisie mobilière
Bref de saisie-exécution mobilière
(selon le contexte)
Extrajudicial costs, extrajudicial fees, extra-judicial professional fees
Jour non juridique
Mandate given in the anticipation of the mandator’s incapacity
Mandat en prévision de l’inaptitude
Mandat donné en prévision de l’inaptitude
Mandat de protection
Writ of seizure by garnishment
Writ of attachment
Order to seize property in the hands of a third person
Bref de saisie-arrêt
Ordonnance de saisie en mains tierces
Writ of possession
Writ in an action of ejectment
Bref de possession
Bref sur action en eviction
Writ of habeas corpus
Habeas corpus order
Bref en habeas corpus
Ordonnance en habeas corpus
Certified or registered mail
Registered or certified mail
Registered or certified post
Registered or certified letter
Certified or registered letter
Any reference to extraordinary recourses
Application for judicial
review under the Code of Civil Procedure
Tout référence aux recours extraordinaires
Pourvoi en contrôle judiciaire prévu au Code de procédure civile
Minutes of the determination of the boundaries
determination of boundaries
Minutes of boundary determination
of a boundary determination
Minutes of the boundary-marking
Procès-verbal de bornage
Rules of practice
Règle de pratique
Règlement du tribunal
Sale by judicial authority
Sale under judicial authority
Vente sous l’autorité de la justice
Vente en justice
Vente sous contrôle de justice
The right to appeal without leave has increased from $50,000 to $60,000 (article 30).
The value of claims admissible before the Superior Court has increased from $70,000 to $85,000 (article 35). In the future, this amount will automatically increase by $5,000 increments based on Statistics Canada’s Consumer Price Index.
The admissibility level for small claims has leaped from $7,000 to $15,000 (article 536).
The general rules of territorial jurisdiction have remained relatively intact in the New Code. However, one change worthy of note is found at article 43 of the New Code, which, in cases where the demand pertains to an employment or consumer contract, attributes exclusive jurisdiction to the court of the domicile or residence of the employee or the consumer, whether that person is the plaintiff or the defendant. Also noteworthy, the Chief Justice and Chief Judge of the respective courts have been attributed the right to transfer a file (and not just a hearing, as is currently permitted) to another district (article 48).
The calculation of time limits has been simplified by article 83 of the New Code. Of note is that the entire notion of “clear juridical days” has been abandoned to be replaced with the notion of whole days”. Also, certain delays can now be counted in months.
Articles 54.1 and following C.C.P. were enacted five years ago and they are part of every litigator’s arsenal. The Court of Appeal has even expressed concerns about possible over-reliance on these provisions. Also, there has been some controversy about the interpretation of these articles. Consequently, although most of the provisions have remained intact, the legislator has applied a light modifying touch.
a) Malicious Intent
Until recently, a jurisprudential/doctrinal controversy existed as to whether proof of malicious intent was required for a finding of abuse. If any question remained, the second paragraph of article 51 of the New Code leaves us with no doubts, by providing that abuse of procedure can be found “regardless of intent”.
b) Restriction on Evidence
The current iteration of article 54.2 C.C.P. allows a party bringing a motion to sanction a procedural impropriety to adduce any evidence it sees fit. While the ability to present evidence is useful for such a motion, it allows litigants to essentially test their case before it reaches trial. Such stratagems are not a beneficial use of judicial resources and, consequently, the New Code restricts evidence in such motions to the pleadings and exhibits in the court record and the transcripts of any pre-trial examinations. Additional evidence can be adduced only by leave of the Court.
c) Abusive Abuse Motions
In an attempt to counter the vast number of motions for procedural improprieties being filed, many of them unnecessary, article 54 of the New Code specifically allows such motions to be declared themselves abusive and makes the same remedies available to the respondent of such an abusive motion.
The New Code institutes a variety of small but important changes that will impact how proceedings are drafted.
a) Model Pleadings
Interestingly, article 104 indicates that model pleadings will be posted on the website of the Justice Ministry. Although no such model pleadings have been publicly released yet for the district of Montreal, this may be an attempt to imitate other jurisdictions’ use of model pleadings (namely the district of Quebec). If nothing else, uniformity in the presentation of pleadings may simplify matters for staff in the court office.
b) Evidence by Affidavit
Article 2843 of the Civil Code of Quebec sets forth the principle that, barring certain limited exceptions, testimony must be given orally before the Court. Article 106 of the New Code creates a very large exception to this rule, allowing testimony by affidavit (sworn statement) in cases of oral defence. Presumably, the intention is to reduce the length of trials by minimizing the number of witnesses in relatively simple matters. It will be interesting to see how the courts handle requests to cross-examine upon sworn statements filed at the last minute.
The legal system is rarely on the cusp of new technology and the New Code makes no such attempt. It does, however, provide some new tools to allow the Courts to adjust to the times. While the province’s courthouses may not have the infrastructure yet, the New Code employs technologically neutral language, similar to the Act to Establish a Legal Framework for Information Technology, CQLR c C-1.1 enacted in 2001, which allows for maximum flexibility.
Article 107 of the New Code, which specifies that pleading on technological media filed outside of court office hours are deemed to be made the following day, allows us to infer that electronic filings are on their way and may even be available by the time the New Code comes into force.
b) Notification by technological means
Much debate has occurred as to whether or not service (now known as notification) of legal proceedings ought to be permitted via e-mail. Currently, advocates are permitted to provide for service by e-mail in the timetable of proceedings. Moreover, Quebec courts have already begun giving leave to serve proceedings via e-mail and social media in special circumstances. The New Code refrains from any monumental shift in policy in this respect. It allows for notification between advocates via e-mail, and to unrepresented parties with their consent (article 133).
Facsimile is no longer a specific type of service, now falling within the ambit of notification by technological means.
Those wishing to notify pleadings by the end of the day through technological means are now provided with an extra half hour, as the 4:30 p.m. limit has been pushed back to 5:00 p.m. (article 111). The period for notification by bailiff has however been shortened by one hour, ending at 9:00 p.m. (article 111).
Articles 133 and 134 , which detail these rules of notification by technological means, are set forth below:
133. Notification by a technological means is made by sending the document to the address provided by the addressee for the receipt of the document, or to the address that is publicly known as the address where the addressee receives documents, provided the address is active at the time of sending.
However, notification by a technological means to a party not represented
by a lawyer or a notary is permitted only with the party’s consent or if ordered
by the court.
133. La notification par un moyen technologique se fait par la transmission du document à l’adresse que le destinataire indique être l’emplacement où il accepte de le recevoir ou à celle qui est connue publiquement comme étant l’adresse où il accepte de recevoir les documents qui lui sont destinés, dans la mesure où cette adresse est active au moment de l’envoi.
Cependant, la notification par un tel moyen n’est admise à l’égard de la partie non représentée que si celle-ci y consent ou que le tribunal l’ordonne.
134. Notification by a technological means is proved by the transmission slip or, failing that, by a sworn statement of the sender.
The transmission slip must set out the nature of the document, the court record number, the names and contact information of the sender and the addressee, and the place, date, hour and minute of sending; unless the document was sent by a bailiff, the transmission slip must also contain the information needed to enable the addressee to make sure that the entire document was sent. The transmission slip is filed with the court office only if a party so requests.
134. La preuve de la notification par un moyen technologique est faite au moyen d’un bordereau d’envoi ou, à défaut, d’une déclaration sous serment de l’expéditeur.
Le bordereau indique la nature du document transmis, le numéro du dossier du tribunal, le nom de l’expéditeur et du destinataire et leurs coordonnées, de même que le lieu, la date et l’heure et les minutes de la transmission; il doit contenir également, à moins que la transmission ne soit effectuée par l’entremise d’un huissier, l’information nécessaire pour permettre au destinataire de vérifier l’intégrité de la transmission. Ce bordereau n’est produit au greffe que si une partie le demande.
Aside from the change in nomenclature, the rules covering the delivery of legal proceedings to other parties, now globally known as notification – except for certain proceedings which must continue to be served by bailiff (see namely list at article 139) – remain substantively similar. Depending on the circumstances, notification can be made by bailiff, mail, delivery, technological means and public notice. Certain changes are, however, important to note:
a) Notification by bailiff
The principle that originating demands must be served by bailiff has remained intact (article 139). Interestingly, the same article requires that cross-demands now also be served by bailiff.
b) Acknowledgment of Receipt
Currently, certain parties, for practical purposes, will obtain an acknowledgment of receipt in lieu of serving or notifying a pleading. As the C.C.P. does not specifically account for this practice, the courts have occasionally been reluctant to act on such acknowledgments. The New Code now legitimizes the practice of obtaining an acknowledgment of receipt in lieu of service (article 110) in all cases. Presumably, the date and time of receipt ought to be affirmed in the acknowledgment to allow for applicable delays to be calculated.
c) Notification of Legal Persons
Article 130 C.C.P. currently allows for service on a legal person to be made at its head office or one of its establishments. However, the New Code purports to limit service on legal persons to their head office, if such head office is located in Quebec (article 125).
d) Notification by Public Notice
While the New Code does not do away with the possibility of publishing notice of proceedings in a local newspaper, it now specifically allows for a posting to be made on a website designated by the Ministry of Justice or, more generally, by any means likely to reach the person concerned (article 136).
While the website option may appear interesting, the requirement that the public notice remain on the website for 60 days, versus a single appearance in a newspaper, may not convince many to avail themselves of this option.
9. Protection of Identifiable Information
The New Code imposes an obligation to see to it that exhibits and other documents filed into the court record are done in such a way as to protect the confidentiality of information generally held to be confidential. The expression “information generally held to be confidential” is not defined and will have to be interpreted by the courts. Undoubtedly, such obvious pieces of information as social insurance numbers, will be protected. The protection may even extend to commercially confidential documents such as the financial statements of private companies and their client lists.
Many of the changes contained in Book I of the New Code do not fall into any specific category and they are presented below in no particular order:
a) Preservation of Evidence
Article 20 of the New Code, establishes the parties’ duty to cooperate in the advancement of proceedings. Notably, this article specifically requires the parties to ensure that relevant evidence is preserved.
In Common Law, there exists a notion of spoliation of evidence, whereby the party that alters or conceals evidence is subject the presumption that such evidence would have been unfavourable to the spoiler. Although several attempts have been made by litigants to introduce this concept in Quebec, our courts have been reluctant to directly apply same. It will be interesting to see how the courts interpret this new obligation and the extent to which it affects the acceptance of spoliation into our law of procedure.
b) Contempt of Court
In addition to doubling the maximum fines for contempt of court by a natural person to $10,000, the New Code now allows for a maximum fine of $100,000 in respect of legal persons, and compensatory community work, commonly known as community service, in all cases (article 62). The possibility of up to one year of jail time remains intact, though it is presented as a potentially cumulative penalty instead of alternative.