For those of you who do not know, Quebec will likely enact Bill 28 An Act to Establish the New Code of Civil Procedure early next year. Despite the fact that the last major overhaul to civil procedure in the province is less than 10 years old, the new Code will bring major changes to the way proceedings are conducted in Quebec. The mere fact that the articles contained in the Code will be whittled down from 1221 to 777 should give you an idea of how significant the amendments are.
Most interestingly, many of the amendments are clearly aimed at simplifying and expediting Quebec procedure. The goal of access to justice has been a constant concern for the past couple of decades at least. The “180-day” rule introduced in 2003, under which Plaintiffs must inscribe their case for proof and hearing within 180 days of filing an action, was meant to accelerate proceedings. Unfortunately, extensions are granted almost automatically and these requests are rarely contested, at least the first time. In addition, as it stands now, there is an approximately two year wait in the Quebec Superior Court for two day trials, once the case has been inscribed. The access to justice crisis caused by these significant delays has evidently motivated many of the changes in the New Code.
The new Code of Civil Procedure puts much more case management power in the hands of judges (articles 154 and following), allowing them to take measures to expedite the file and shorten the trial length. Parties are no longer entirely “les maîtres de leurs dossiers”, as they have been until now. This is a natural continuation of the Case Management Notices which parties often file under the present article 4.1, asking a judge to “manage” a certain aspect of a proceeding, for instance when the parties cannot agree on a timetable. In the new code, judges are given even more leeway to control the advancement of proceedings. The principles of proportionality, for instance, are stated more forcefully in the new articles 18 and 19, allowing judges to manage a case that goes beyond the time and proceedings necessary for the resolution of the dispute at issue.
The new Code also includes specific rules aimed at expediting proceedings. For example, examinations on discovery may not last more than five hours, according to article 229. In family matters, they may only last two hours. This is a significant change, as many examinations in complex civil and commercial matters now easily last more than a day. It will be interesting to see how this is applied in practice and whether stenographers will adopt the role of time keeper as well.
Another example of the concern to render justice as quickly as possible is that the Court of Appeal will be allowed to render judgment based only on the factums submitted by the parties, without the necessity to hear them plead on a date usually months down the road from submission of the factums.
The New Code also highlights a concern that parties themselves be more involved in court procedure. These developments likely stem from a concern that parties not be relegated to the background while lawyers plead the case on their behalf, as they sometimes are, as well as to the recognition that self-represented litigants are becoming more frequent, given the high costs of litigation. For example, lawyers must now obtain their client’s signature on the Agreement as to the Conduct of Proceedings, a contract between the parties filed at the outset of the 180-day time period, which sets out the various procedural steps to be undertaken by each side and the deadlines for filing legal documents and conducting examinations.
Finally, one of the main goals of the New Code is clearly to facilitate settlement. The Courts no longer simply hear disputes and trials, but also participate in conciliation efforts. One of the stated goals in the explanatory notes to the proposed Bill is “recognizing that the mission of the courts includes not only facilitating conciliation but also ensuring proper case management in keeping with the principles and objectives of procedure”. This mission is repeated in article 9 of the Code. Parties will be bound to “cooperate” in the development of the file (article 20). No word yet on how this provision will be applied in practice. In addition, the new Code’s articles 1 through 7 advocate for private settlement, mediation and arbitration and introduces a chapter on mediation, in family law matters and other civil/ commercial matters, as part of the wide case management powers now granted to courts. A judge may stay a proceeding at any time to allow the parties to enter into mediation. If a settlement is reached, the agreement is equivalent to a court judgment.
The above changes are accompanied by a simplified procedure. For instance, service by email will be allowed, and bailiffs will be granted wider rights (and corresponding obligations) in matters of service of proceedings and seizures.