When Arguing that an Oral Defence is Required, Make Sure to Ascertain the True Nature of the Subject Matter of the Claim
Par Sarah D. Pinsonnault, avocate
By Sarah D. Pinsonnault
Unless otherwise prescribed by the Code
of Civil Procedure, a defence is typically filed in writing (article 175.1 C.C.P.). That being said, defendants may be ordered
to provide an oral defence if the subject matter of the action or application
filed against them falls under one of the categories enumerated in article 175.2 C.C.P.
In Atlantic Industries Ltd. c. Intact Insurance Company, 2014 QCCS 4656,
the Court had to first determine the true nature of the Plaintiff’s claim, that
being based on a construction payment bond, in order to then conclude whether or
not an oral defence was required.
The Plaintiff declares to have contracted with Benoit Vigneault Ltd. to
manufacture and supply materials for a construction project it was involved in.
The latter apparently never paid for the materials delivered by the Plaintiff
because it filed a Notice of intention to make a proposal pursuant to the Bankruptcy and Insolvency Act.
Accordingly, the Plaintiff filed a Motion to Institute Proceedings by
which it claimed, based on a construction payment bond issued by Intact Insurance Company (“Intact”), the unpaid sale price of
$236,591.13, jointly and severally from Intact and the project contractor,
Couillard Construction Ltd.
The Plaintiff asserted that an oral defence was required given the alleged
nature of what it was asking for, namely a claim relating to the sale price of
movable property (art. 175.2(4)(a) C.C.P.) and a matter relating to
a surety (art. 175.2(4)(d) C.C.P.).
Intact, however, contested this allegation and argued that the
Plaintiff’s motion was not an action on account but rather an action based on
the execution of a construction bond.
The parties were unable to identify any jurisprudence that establishes whether
a claim based on a construction payment bond falls within the scope of article 175.2
C.C.P. Consequently, the Court had to determine the “real nature” of the “subject
matter” of the Plaintiff’s claim in order to rule on this question.
The Plaintiff backed-up its argument by submitting jurisprudence that
pertained to bank loan securities, whereby the surety in question stemmed from
a promissory note, which requires, pursuant to article 175.2(4)(g) C.C.P, an
To assist the Court in its analysis, it referred to the definition of a “promissory
note” found in the Bills of Exchange Act:
“176. (1) A promissory note is an unconditional
promise in writing made by one person to another person, signed by the
maker, engaging to pay, on demand or at a fixed or determinable future time, a sum
certain in money to, or to the order of, a specified person or to bearer.” (emphasis
In light of this, and of the features of Intact’s construction payment
bond, the Court came to the conclusion that the latter did not constitute a
promissory note. In fact, the construction payment bond stipulated conditions
that had to be met before the beneficiary could commence the recovery
proceedings. As a result, it was not “unconditional” and did not meet the
definition of a promissory note.
Furthermore, the Court noted the following discrepancy:
Secondly, the said bond does not indicate a “sum certain in money”. No sum is indicated. In fact, the specific sum claimed will not be
known by Intact until it has been identified by the beneficiary in its 120-day
The Court then went on to conclude as follows:
For this reason as well, Intact’s bond does not constitute a promissory note
for the purposes of requiring an oral defence.
 Accordingly, Article 175.2 (4) (g) does
not apply to the present case. Since no
other provisions of Article 175.2 apply, there is no requirement for Intact to
proceed by way of oral defence. »
This decision serves as a reminder of the importance of looking past the
words used in legislation to find their true meaning and application. While an
article in question may contain words that relate to your action, it does not
mean that that alone renders it applicable to your case.
As such, when the Plaintiff contended that the construction payment bond
was “of the nature of a surety” and that it therefore fell within one of the
categories of article 175.2 C.C.P. that contain the
word “surety”, the Honourable Gary D. D. Morrison, J.S.C. had the following
remarks to make :
Such references to “surety” do not have the effect of rendering all matters
dealing with sureties subject to the requirement of an oral defence. Had that been the intention of the
Legislators, wording to that effect would have been used.
The only matters specifically mentioned in the said Articles as regards
“surety” pertain solely to the remuneration of a surety and the sufficiency of
the latter’s assets or of the surety being offered. In the present instance, the subject matter
of Plaintiff’s claim relates to none of these issues.
In cases where the surety flows from a promissory note, it is understandable
that a Court may conclude that Article 175.2 (4) (g) C.C.P. applies and that an
oral defence is required.
 However, that does not mean that in every
case where the subject matter relates to a surety, there exists the necessity
of proceeding by oral defence. That is
not what Article 175.2 (4) C.C.P. stipulates.” (emphasis added)
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