Access to justice is a quasi-constitutional right in Quebec where the [Quebec] Charter of Human Rights and Freedoms guarantees “a full and equal, public and fair hearing by an independent and impartial tribunal.” However, numerous stakeholders, including many in the legal community, share a growing concern that access to justice is increasingly posing challenges to those who need it, and obstacles such as time, expense and representation stand in the way of securing this right for all Quebec citizens.
To this end, last April, the Quebec government tabled Bill 28, An Act to establish the new Code of Civil Procedure, whose main objectives are to increase access to justice and public confidence. The Bill would modernize court procedures and processes by making them more efficient, simpler, faster and less costly. This should in turn bring the Quebec justice system into the 21st century.
To achieve its goals, the Bill would:
- Increase the amount that a plaintiff may claim in Small Claims Court from $7,000 to $15,000. This new limit would bring Quebec closer to those of other Canadian jurisdictions. The limit for the Court of Quebec would also increase to $85,000.
- Require parties to a legal proceeding to co-operate in order to either arrive at a settlement or to file a binding “case protocol” in which they will set out their agreements and undertakings, the issues in dispute, and the steps to unfold during the proceedings, among other things. It would also require the parties to conserve evidence, be open with each other and keep each other informed at all times of the facts and particulars conducive to a fair debate.
- Ensure requests, pleadings and evidence submitted by the parties are proportionate to the nature, time and cost involved, complexity and purpose of the application.
- Grant judges extensive management power to simplify or expedite proceedings, assess the scope of expert evidence, and determine conditions related to pre-trial examination. Judges would also be expected to observe the principle of proportionality in managing proceedings.
- The new Code would end the distinction between examinations before and after defence and limit examinations to five hours (with a possible two-hour extension if agreement is reached). It would also compel witnesses to answer even if an objection is raised, except in certain limited cases such as solicitor-client privilege. All examinations may bear on any fact relevant to the dispute and may be oral or written. The possibility of a written examination is a new method allowing a party to present a list of questions to the other party, or other person, who must answer within a specified time, between 15 days and one month. The examinations can only be conducted if the amount claimed, or if the value of the property claimed, is $30,000 or more.
- Encourage the use of verbal rather than written procedures when dealing with requests or disputes having no particular complexity.
- Promote the use of a single common expert between the parties rather than the multiplication of expertise to save time and costs, unless otherwise authorized by the court. It would also allow the court to order experts with differing views to meet to reconcile their opinions, identify the points on which they differ and prepare an additional report on those points.
- Ensure that consumers, insured persons, employees or mortgagees can present their case or defend themselves in the judicial district of their domicile or residence.
- Repeal the tariff of judicial fees of advocates. Each party would therefore have to assume its own professional fees unless the court decides to punish serious breaches in conduct. Legal costs such as expert fees, remuneration of interpreters and stenographers would be assumed by the losing party, except in cases involving abuse of procedure or undue delays.
- Allow the judge to punish abuse of process or undue delay by any party.
- Encourage the use of information technology such as videoconferencing.
Other modifications in Bill 28 relate to family matters and the protection of minors.
The Bill would apply as soon as it comes into force. However, cases that have already been filed may continue to be governed by the former Code for the issues pertaining to the agreements concerning the conduct of the proceeding, to the presentation of the demand before the court (oral or written), as well as for the time limits.
Special consultations and public hearings on this matter have been underway since September 2013. This could result in changes to the Bill before its final adoption.
In principle, there is general agreement on the need for a system of justice accessible to all citizens. But as we already know, high costs, long delays and unequal representation deter many people from having recourse to the courts. Bill 28 does include some much needed reforms such as proportionality, pre-trial examinations and a higher ceiling on small claims, but while it may not completely achieve the access to justice goal completely, it is a good start.
Additional measures taken by the government
On December 5, 2013, Quebec’s Minister of Justice and Attorney General, Bertrand St-Arnaud, confirmed the adoption of a regulation concerning an increase in legal aid eligibility thresholds effective January 1, 2014. The increase will extend free legal aid coverage to seniors living alone and receiving the guaranteed income supplement.
Effective January 1, 2014, the threshold of eligibility for free legal aid for a single person is set at $16,306; and for the contributory part of the system to a maximum level of $26,309. The contributory component provides a unique formula that allows a defendant to be represented by a lawyer in court knowing, in advance, the maximum cost of fees and expenses. This component allows a person to receive legal services if the income, assets and liquidity correspond to the scales of current eligibility and if it pays a financial contribution between $100 and $800, depending on their situation.
A family of two spouses and two children, whose annual income is $ 26,737, is now eligible for free legal aid.
Effective June 1, 2015, access to free legal aid for people working full-time at minimum wage will come into force. Thereafter, they will be maintained at this level by an indexing factor linking changes to the minimum wage threshold.
Since December 2012, parents going through divorce can also get free information sessions in 42 courthouses. These allow them to be well informed about the effects of the breakdown and resources at their disposal.
Since last October, parents that are separated, whether they are financially eligible for legal aid or not, can also obtain at a lower cost, the revision of a judgment in family matters, following an agreement or after a family mediation, in the offices of the legal aid system. In 2014, this service will be enhanced to allow adjustment to the administrative child support and facilitate this process without the expense and delays associated with an appeal to the court.
Access to justice is clearly a crucial feature of a functioning democratic society—and certainly necessary to ensuring and maintaining public confidence. “Justice for some” is a sure way to disenfranchise citizens. Bill 28 seems to place more power in judges’ hands, while also encouraging communication between litigating parties. Will these proposed measures make a big difference in the lives of Quebecers who otherwise might not consider taking legal action? Are there other, perhaps more radical, measures that might do a better job of improving access to justice?