News and Views Issue 5: Fall 2002
Revising Civil Procedure in Quebec: A Necessary Process
Me Anthony Russell, Direction de
la recherche et de la législation ministérielle,
Ministère de la Justice du Québec
According to the preamble of Louis XIV's Edict on Civil Procedure of April 1667, justice is the most solid foundation ensuring the continuation of the State. However, it is not an unchangeable institution. Under the impulse of various social forces, civil procedure is redefined, reoriented, modernized. Civil Procedure in Quebec is undergoing its third revision since its first codification in 1866 [ 1 ], with new codes having been adopted in 1897 [ 2 ] and in 1965 [ 3 ]. Like the revision undertaken in 1897, the present revision attempts to simplify access to justice and reduce delays [ 4 ], but it also aims to establish justice in a more efficient and less expensive way, to improve access to justice and to increase trust in the justice system for the people appearing before the court.
The Need to Revise Civil Procedure
The Code of Civil Procedure currently in force in Quebec was adopted in 1965. Over the years, it has been amended many times. A number of new procedures have been added without always being completely integrated. We may consider, for example, Book VIII on the Recovery of Small Claims in 1971, Book IX on Class Action in 1978 [ 5 ], Title IV of Book V on Proceedings in Family Cases in 1982, Book VII on Arbitrations in 1986, various amendments concerning appeals in 1995, and the fast-track procedure included in the Code in 1996, to name a few.
To carry out the necessary revision of the Code, the Minister of Justice established the Civil Procedure Review Committee in June 1998. As the Committee noted, [Translation] "these amendments and additions, often intended to remedy the shortcomings resulting from often excessively complex formal procedures and often imperfectly integrated into the existing rules, have led to major changes in procedures and resulted in inconsistencies in the Code [ 6 ]. In addition, they do not facilitate the task of legal practioners, or the neophyte wishing to represent himself.
Thus, [Translation] "whereas in 1965, when the Code was adopted, the legislator retained the statement attached to the brief as a preferred model of procedures for bringing action, an increasing number of actions are now being introduced by motions involving the application of many different rules [ 7 ]. In addition, [Translation] "this multiplicity of procedures for bringing claims and rules has contributed to increasing the complexity of the civil process [which] in itself constitutes a dissuasive factor that can explain, at least in part, the reduction in the number of cases heard by the courts [ 8 ]. Finally, this multiplicity of procedures [Translation] "often gives rise to legal arguments where questions of form prevail over content, leading to delays and additional costs for those before the court [ 9 ]. Indeed, among the delays that may be the result of procedural rules, those taken to prepare the case - that is, the period during which the parties or their attorneys exchange procedural documents and communicate information to prepare, notably the hearing of the case - generally depend on their desire and ability to act expeditiously.
Further, the introduction of the Charters [ 10 ], [Translation] "the reform of the Civil Code, the spin-offs from information technologies, the globalization of law [ 11 ] and the profound changes in traditional social values continue to require new legislative action [ 12 ]. This shows the importance of revising the Code in order to renew its rules within a better-integrated whole with easier access.
The Civil Procedure Review Committee
The Committee's work began on August 27, 1998 and lasted a little more than three years. In addition to its president, Professor Denis Ferland of Université Laval, the Committee was made up of members of the judiciary, the Barreau du Québec and representatives of the Ministère de la Justice.
The Committee's mandate was to review the rules of procedure in order to limit their number, simplify and facilitate procedures and take into account alternative dispute resolution, in order, among other things, to [Translation] "[...] ensure a better balance between the parties and the court and to take into account the expectations and needs of judges, lawyers, parties and the other stakeholders in the justice system [ 13 ].
[Translation] "The Committee, taking into consideration the objectives mentioned by the Minister in his mandate to them, began its work by identifying the issues involved in the task facing it, to ensure accessibility to civil justice, an expeditious process, the balancing of rights and liability among all stakeholders, and respect for public order and social peace, in order to offer a quality public service, while respecting the rights and freedoms of the individual. Taking into account these issues, its own findings and the contemporary trends seen in other jurisdictions that it has studied, the Committee has identified the major components of a new "vision" of civil procedure [ 14 ]. Thus, the orientations developed by the Committee in its report, that is, its recommendations, all relate to five major themes: respect of persons, accountability of the parties, increased intervention of the judge, proportionality of the procedure, and openness to information technologies.
In addition, the Committee was concerned with placing the citizen at the heart of the revision. It is important to point out that the Committee's mandate was to review the civil procedure and not carry out a reform of civil justice as a whole.
The work of the Committee
As part of its work, the Committee had 112 sittings. In order to ascertain the social relevance of the review and be better informed about the social context in which the review of the Code is taking place, the Committee met with sociologists and a legal historian. In pursuit of the same objective, the Committee was able to take advantage of a study aiming to [Translation] "enunciate and establish a case for the principles that would clarify the general concept of the civil justice system and the place of the judicial courts within this system [ 15 ].
The Committee was also anxious to verify the legal relevance of the review. [Translation] "To sustain its reflection and its discussions in this respect, the Committee benefited from the contribution of a team of jurists from the Ministère de la Justice assigned to work with the Committee, which in particular prepared many orientation documents and provided texts for the drafting of the Consultation Document and the Final Report. These texts were based on reports of difficulties arising from the Code, a comparative analysis of applicable rules relating to procedure in other Canadian provinces and in certain foreign countries such as the United States, France, England, Australia and Switzerland [ 16 ]. This analysis also took into account recent reports on civil justice including the Report of the Canadian Bar Association Task Force on Systems of Civil Justice, [ 17 ] the reports of the Ontario Civil Justice Review team or Blair Report [ 18 ], the Woolf Report (Access to Justice) [ 19 ] and the Report of the Task Force on Access to Justice or Macdonald Report [ 20 ].
At the same time, the Committee formed fourteen discussion groups on specific
themes in which more than 150 jurists chosen from among the traditional judicial
stakeholders participated. Each group was chaired by a member of the Review Committee.
These actions, together with the analysis of certain statistical data prepared
from computerized court offices, allowed the Committee to write a Consultation
Document [ 21 ] that was submitted
to the Minister of Justice on February 24, 2000 and on the basis of which further
consultations have been held.
Since citizens were to be at the heart of the review, the Committee, in carrying out its work, had to obtain their points of view in addition to those of the judicial stakeholders. To do so, in addition to meetings with the fourteen discussion groups, the Committee consulted with representatives of social groups interested in civil justice such as consumer associations, human rights or court support groups, unions, judges, lawyers and justice officials, notaries and bailiffs, and representatives of other groups and stakeholders in the justice system, such as mediators, social workers, psychologists and stenographers. These consultations, held mainly in June, September and November 2000, made it possible to collect comments from 60 persons or agencies.
The Committee's Final Report
Following these various consultations, the Committee submitted its final report to the Minister of Justice on August 28, 2001. This report contains some 327 recommendations and states the Committee's analyses and reflections. The report is divided into three main sections: 1) findings, 2) a new vision of civil procedure and 3) principal orientations.
This report lists the Committee's findings on the decrease in the number of
proceedings brought before the courts, the costs of justice as an obstacle to
accessibility, the complexity of the law as a dissuasive factor, delays in justice
and certain difficulties related to the respect of persons, to the accountability
of the parties and the administration of justice. It presents a new vision of
civil procedure considering the increased intervention of the judge, the proportionality
of the procedure and openness to information technologies. It also indicates the
objectives of the review, namely, humanizing the justice system, expediting the
process and reducing the costs of justice.
The Committee's guidelines fall under seven main headings:
- The values of justice: the guidelines and the general rules (24 recommendations);
- The jurisdiction and the organization of the courts (57 recommendations);
- Institution and course of proceedings (47 recommendations);
- Production of evidence (24 recommendations);
- Judgment, costs and the means to contest a judgment (20 recommendations);
- Particular matters: non-contentious matters, family matters, boundaries of land, arbitration, recovery of small claims, class actions, provisional measures and private international law (98 recommendations);
- Execution of judgments (57 recommendations).
It recommends a complete review of civil procedure and hopes that the review of the Code of Civil Procedure will allow the development of a new judicial culture whose primary beneficiaries will be the citizens.
Bill 54
Following the submission of the Committee's final report, Bill 54, entitled An Act to reform the Code of Civil Procedure was presented to the National Assembly on November 13, 2001. It was adopted on June 6 and sanctioned on June 8, 2002.
The Act to reform the Code of Civil Procedure [ 22 ] (the "Act") enacts most of the recommendations contained in the Committee's Final Report. However, considering the scope of the project, it constitutes the first phase in the review of civil procedure in Quebec.
The Act will come into effect on January 1, 2003, except for the provisions increasing the monetary limit of the jurisdiction of the Court of Quebec from $30,000 to $70,000, and the threshold of monetary jurisdiction of the small claims division, which rises from $3000 to $7000, which came into effect on the date of the sanction of the Act, June 8, 2002.
The law makes some substantial changes to the present civil procedure and the philosophy behind the Code – the single mode introduced for the institution of any type of action or application, namely the "motion to institute proceedings" constituts the cornerstone of the future code. Thus, beginning on January 1, 2003, almost all court actions will be introduced by motion and will be presented at a preliminary stage in court. However, actions for contempt of court, habeas corpus, non-contentious matters and small claims will continue to follow their own rules. In addition, all court actions should be inscribed within a peremptory time limit of 180 days after service of the motion. However, when the complexity of the case or special circumstances warrant it or, if the party demonstrates that it has been, in fact, impossible to act, the time limit may be extended by the court.
The law also gives precedence to oral arguments. It increases the court's powers at the time of presentation of the motion, in order to ensure the smooth conduct of the trial. Thus, the court may hold a special case management conference, establish a deadline schedule, order the parties to come to an agreement, either by a settlement conference or by mediation, proceed at once to the hearing of preliminary exceptions, and finally, determine the length and the number of examinations for discovery.
In line with the Déclareation de principe concernant les témoins [witnesses policy statement] and in order to ensure respect of people called on to testify in Court, the law contains the obligation, for the party who calls a witness, to offer him, for the first day he is present in Court, an indemnity for the loss of time and allowances for transportation, meal and lodging expenses. In addition, considering the high costs and often useless delays generated by examinations for discovery, the law abolishes them in cases where the amount claimed or the value of the property claimed is less than $25,000. In other cases, the court may limit their length and number if they are abused.
Still for the purpose of limiting costs and avoiding useless delays, when expert testimony is produced, the court may order the experts to meet, even before the date for proof and hearing has been set, in order to reconcile their opinions. Otherwise, the court may decrease the costs if it considers that an expertise was useless or the expenses unreasonable.
Even though the law does not modify the general appeal procedure, it contains
some innovations aimed at facilitating and accelerating the progress of the case
on appeal, and also to improve access to justice. It raises the threshold for
an appeal as of right from $20,000 to $50,000 and introduces the possibility of
holding case management conferences and settlement conferences.
Another major aspect of the revision concerns small claims.
The main problems found by the Civil Procedure Review Committee members
during consultations related to the limits of applicability of this particular
procedural system, the absence of a mediation service and action by the clerk
to ensure the execution of judgments, and, finally, the complexity of the system
and the lack of information given to the parties. To correct these problems, the
Act in particular increases from $3,000 to $7,000 the maximum admissible
amount for a claim.
In addition, the Act introduces a free and voluntary mediation service, provided by private sector lawyers accredited by their professional order, the Barreau du Québec or the Chambre des notaires du Québec, as appropriate. The Act, and this was one of the main demands of consumer associations, introduced the possibility of obtaining assistance from clerks in executing judgments. It also introduces the possibility of obtaining their assistance at any stage of the proceeding, including the preparation of the statement of claim and defence, but they may not of course give the parties any legal advice. In particular, when the creditor of the judgment is a natural person, he may address the clerk of the court to have it executed.
Finally, the law makes changes relating to class actions.
In order to counter a practice that had developed and that was giving rise to
multiple examinations at the certification stage of a class action, the law now
imposes oral argumentation at this stage in the procedures. Besides, in order
to facilitate access to justice and to meet certain demands, the law allows legal
entities with 50 or fewer employees to join a group bringing a class action. However,
they may not obtain financial assistance from the Fonds d'aide aux recours
collectifs [class actions fund], which remains accessible to natural persons
and certain legal entities, such as cooperatives, associations of employees and
non-profit legal entities. The law also simplifies the rules regarding notices,
which may henceforth be distributed, notably on the Internet.
Subsequent Stages
The reforms undertaken by the Act to reform the Code of Civil Procedure constitute a first stage that must be completed. The second stage in the review of the Code consists in particular in rewriting the first two books, the first on General Provisions and the other on the ordinary trial procedure, by inserting, in particular, the newly adopted rules. A consultation document entitled Mesures visant à instituer un nouveau Code de procédure civile et comportant une proposition quant aux deux premiers livres de ce Code [Measures to institute a new Code of Civil Procedure, including a proposal regarding the first two books of this Code] was submitted to the National Assembly on June 13, 2002, for general consultation.
A third stage is planned, which would deal in particular with special provisions relating to certain actions, such as those in family matters, non-contentious matters, private international matters or class actions. It would also deal with the review of rules relating to appeals and the execution of judgments. These rules will have to be adapted to the new rules that will have been adopted during the first two stages.
Then, the new Code, based on a new philosophy and written in more
accessible language, will constitute a coherent, modern whole, adapted to the
practical realities of the 21st century, and that should contribute meaningfully
to facilitating access to justice while reducing the associated costs and delays.
June 26, 2002
- Act respecting the Code of Civil Procedure of Lower Canada,
RSLC. 1866, c. 25. Return to Article
- Code of Civil Procedure of the Province of Quebec Act,
S.Q. 1897, c. 48. Return to Article
- Code of Civil Procedure, S.Q. 1965, c. 80. Return
to Article
- Débates de l'Assemblée législative, 8th legislature, 4th
session, 1895 (text established by Jean Boucher, Quebec, 1980) at 102. Return
to Article
- At the time, the legislator was breaking new ground since
Quebec was the first Canadian province to adopt "modern" rules on this subject.
Other provinces have since followed, Ontario in 1992, British Columbia in 1995,
Saskatchewan and Newfoundland in 2001. In Manitoba, a bill on class actions was
introduced on May 14, 2002, and is currently undergoing second reading: online:
- Rapport du Comité de révision de
la procédure civil: Une Nouvelle Culture Judiciaire, (Ministère
de la Justice: Québec, 2001) at 1. [hereinafter Une Nouvelle Culture
Judiciaire] [A New Judicial Culture]. The report is also available online:
- Ibid. at 1 and 2. Return
to Article
- Ibid. at 109. Return to Article
- Ibid. Return to Article
- Charter of Human Rights and Freedoms, R.S.Q., c.
C-12; Canadian Charter of Rights and Freedoms, Part I of the Canada
Constitution Act of 1982 [Appendix B of the 1982 Canada Act (1982,
UK, c. 11)] Return to Article
- C. L'Heureux-Dubé, "Les défis de la magistrature
?ére de la Charte" [Challenges facing the judiciary in the era of the
Charter], (Address to the plenary session of the Barreau du Québec Conference,
Mont-Tremblant, 1 June 2000). See also the speech given by L. Goupil (Address
on the occasion of the Joint Session on Continuing Education of the Bar of Maine,
the Barreau du Québec and the Canadian Bar, Beaupré, 16 February
2001) online
- Une Nouvelle Culture Judiciaire, supra note
6 at 2. Return to Article
- Devis de projet de la révision de la procédure
civile [Specifications of the draft revision of civil procedure] (Ministère
de la Justice: St. Foy, 1998). In particular, in terms of substantive law, this
includes revising the leading principles of the Code of Civil Procedure,
the jurisdiction of the courts, the roles of the various actors and stakeholders
in the justice system, assessing and revising the procedures for bringing action,
including fast-track procedures and petitions, revising the special rules set
out in the Code, among others, those for small claims, considering the integration
of alternative dispute resolution, improving the communication of evidence, trial
management, renewing the rules for executing judgments, extraordinary remedies
and the rules governing class actions. Return to Article
- Une Nouvelle Culture Judiciaire, supra note
6 at 31. Return to Article
- This text, prepared by professor Jean-Guy Belley,
was reissued by the author in the McGill University Law Journal: (2001) 46 McGill
L.J. 317. Return to Article
- Une Nouvelle Culture Judiciaire, supra note
6 at 5. Return to Article
- Report of the Canadian Bar Association Task Force
on Systems of Civil Justice (Canadian Bar Association: Ottawa, 1996). Return
to Article
- Report on the Revision of Civil Justice, also called
Blair Report (Ministry of the Attorney General: Toronto, 1996); Report
on the Revision of Civil Justice, also called Blair Report (Ministry
of the Attorney General: Toronto, 1995). Return to Article
- Access to Justice – Final Report, also called
the Woolf Report (Lord Chancellor's Department: London, 1996) online
- Rapport du Groupe de travail sur l'accessibilité
à la Justice [Report of the Access to Justice Task Force], also called
Macdonald Report (Ministère de la Justice: Québec, 1991). Return
to Article
- Online
- L.Q. 2002, C. 7. The law is also available, in its electronic
version, under "Laws and Regulations" on the Publications du Québec website,
in the section of Bills of the 2nd session of the 36th legislature: