A few months ago, I wrote about the general direction in which Bill No. 28, Quebec’s proposed new Code of Civil Procedure, was heading. The Code’s reform aimed at simplifying Quebec procedure and expediting matters before the courts, as well as encouraging out of court settlements and alternative dispute resolution.
The New Code has since been adopted and will govern proceedings in Quebec beginning in the Fall of 2015. It will bring about major changes to Quebec civil practice, such as the ones I highlight below.
One of the most significant changes is to narrow the scope of expert evidence given in Court. First, parties are encouraged to agree on a single joint expert pursuant to sections 231 and following, and a joint expert may be imposed by the Court as part of its new extensive case management role. Although the joint expert would be “retained” by both parties, his expert report would not be submitted to the parties and their counsel for their comments before being filed in Court. It is to be expected that many lawyers will be reticent to hire a joint expert, without the possibility of reviewing the report, particularly in cases where the report may very well bind the Court’s judgment.
In addition, the traditional expert testimony, which usually gave rise to vigorous cross-examination, will be replaced by written testimony in the form of the expert report only, unless special permission is granted by the Court. On the other hand, the New Code requires that the expert report be concise and brief. It will be quite a task to condense the entirety of a party’s expert evidence in a single brief report.
Finally, whether an expert is retained jointly or not, an expert will be bound to reveal the instructions received by the party/ies upon request of the Court.
Examinations on discovery:
The New Code has significantly limited the traditional leeway granted to counsel in the conduct of a proceeding. Parties are no longer “masters of their files”. This is most evident in the time limits imposed upon examinations on discovery (articles 220 and following). Specifically, no examination may be held if the case is worth less than $30,000. If a case is worth between $30,000 and $100,000, examinations are limited to 3 hours. The limit is five hours in cases worth more than $100,000.
Parties may agree to extend these times to five hours and seven hours, respectively, but anything beyond that requires the Court’s permission. I.e., counsel may not even agree as between themselves to extend the length of an examination beyond the times specified in the Code. Consequently, counsel will have to convince the Court that an examination lasting more than a day is necessary and in keeping with the principle of proportionality which governs the Code, and this goes for files worth $150,000 or $150,000,000.
In addition, parties will now be bound to answer questions during discovery and may not object for reasons of relevance (article 228), which will likely limit the length of pre-trial discovery and avoid lengthy objection debates which inevitably stall files for months.
Finally, the New Code now specifically establishes rules surrounding written examinations, which were sometimes conducted in the case of out of province witnesses or as a substitute for particulars. Parties will have to be very strategic in choosing between a written and an oral examination, as written examinations are no longer subject to the confidentiality rule established by the Supreme Court in Lac d’amiante du Québec v. 2858-0702 Quebec Inc.,  2 S.C.R. 743, and may be filed either by the party conducting the examination or the witness being examined. Oral examinations remain under the control of the examining party.
In keeping with the goal of simplifying procedure, preliminary motions and those made in the course of a proceeding are “presented orally and without formality” (article 101). In other words, a party may present a declinatory motion for absence of territorial jurisdiction by way of a letter or other note sent to opposing counsel.
A few changes should be noted with regard to appeals, particularly in the reduction of time limits available for parties to respond to an appellate brief (article 373), and the limits placed on the subjects and judgments which may not be the subject of an appeal (article 32), such as case management decisions. Finally, the Court of Appeal now has the right to render judgment on the face of the record, without hearing the parties.
In the area of class actions, it is significant that a Respondent may now apply for leave to appeal from a judgment of the Superior Court granting a Motion for Authorization (Certification) (article 578), a move which will likely have an impact on strategy in first instance and Respondents’ decisions whether to consent to authorization and proceed directly on the merits, or not.
Cooperation between the parties:
Although one may argue that these changes do not have much teeth, it is worth mentioning that the New Code promotes an overriding obligation to cooperate. For instance, parties must be transparent with each other “including as regards the information in their possession” (article 2), parties must consider private resolution processes and include this consideration in the Protocol submitted to the Court at the outset of a file (articles 1 and 148), parties must cooperate and “keep each other informed of the facts and particulars conducive to a fair debate” (articles 2 and 20), and the principle of proportionality continues to govern (articles 2 and 18). It will be interesting to see how courts apply these general principles in practice, and how far these obligations will take parties in the conduct of a civil action.
The overriding cooperation due by one party to another is already evident in more substantive provisions. For instance, parties must include very detailed and specific information in the Protocol filed at the outset of a proceeding (article 148), including the reasons they have chosen to not proceed by way of a joint expertise, the advisability of holding a settlement conference, and foreseeable legal costs. In addition, inscription for proof and hearing, which was until now effected by the Plaintiff alone, now must be filed jointly by the Plaintiff and Defendant who must negotiate a Joint Declaration beforehand (article 174).
Unsurprisingly, the New Code also brings changes to the technology which parties and courts may use, a welcome change. Service of most proceedings may be effected by email (articles 110, 133), slowly making fax machines a thing of the past. In addition, “appropriate technological means” should be used by parties whenever feasible (article 26) and courts may, even on their own initiative, impose such means upon the parties. In other words, it is likely that courts will rely upon this provision, as well as article 279 (hearing witnesses at a distance), to allow testimony by video-conference and other such things.