Code of Civil Procedure being overhauled

A decade after reforming the Code of Civil Procedure based on the principle of proportionality, Quebec intends to overhaul it once again in order to establish a more rapid, more efficient and less costly civil justice that would improve access to justice and increase public confidence in the justice system.

In an effort lauded by the legal community, Bill 28 aims to modernize and streamline the pre-trial process, trials and appeals, using collaboration along with proportionality as its guiding principle.

The bill imposes parties a positive obligation to cooperate and communicate in completing the court record, and grants courts broad and extensive case management power. It also obliges parties to “consider” recourse to private modes of dispute prevention and resolution before referring disputes to the courts. In this vein, the bill codifies the rules around mediation, reforms the rules applicable to arbitration, and provides specific measures for international arbitration.

The Quebec law society is cautiously embracing the reforms. It now has four committees, and a total of 60 lawyers, examining Bill 28 in preparation for public hearings now taking place before the National Assembly. “The highlight of the reform is the attention given to private modes of dispute resolution,” says Marc Sauvé, director of research services and legislation at the Barreau du Québec. “The legislator is attempting to inject new life into Quebec’s legal culture.”

Frédéric Bachand, a law professor at McGill University who teaches civil procedure and extrajudicial dispute resolution, concurs. “What is striking about the reform is that the first few articles of the bill are devoted to private dispute prevention and resolution processes,” says Bachand. “It underlines an important change in philosophy where it explicitly encourages parties to resolve their disputes by means other than the classic way of settling civil and commercial matters. The trial is now to be used when all else has failed – that is a dramatic change.”

The new Code, while it reiterates that parties have control of their own case, broadens the reach of the principle of proportionality. Litigants will be expected to ensure that their actions, pleadings (including their choice of an oral or written defence), and the means of proof are proportionate in terms of the cost and time involved to the nature and complexity of the matter.

Judges too are expected to observe the principle of proportionality in managing proceedings. Under Bill 28, judges will be granted extensive management power and can take measures to simplify or expedite proceedings, assess the scope of expert evidence, and determine conditions related to pre-trial examinations.

That is a positive development, particularly since it quells a controversial issue that has been lingering since the principle of proportionality was introduced in the Code in 2003, says Bachand. There has been a vigorous debate in Quebec legal circles as to whether means of proof too was captured by the principle of proportionality as the Code was silent on the subject.

“That is important because it allows judges to take steps, based on the principle of proportionality, that could simplify the debate, reduce the length of proceedings, and reduce costs,” notes Bachand. “The bill puts an end to this uncertainty and confirms that proportionality applies not only to procedural matters but evidence as well. It remains to be seen how and to what extent judges will exercise these new powers. But it has the potential of being a very important reform in practice.”

The bill also completely reforms pre-trial examinations. Besides ending the distinction between examinations before and after the defence, the new Code limits examinations to five hours and compels witnesses to answer even if an objection is raised, except in certain limited cases such as solicitor-client privilege.

The bill also introduces significant changes to the rules regarding expert evidence. It promotes the use of a single, common expert shared between the parties, limits the parties to submit one expert opinion per matter unless otherwise authorized by the court, and allows the possibility for 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.

Equally important, the new Code repeals the Tariff of judicial fees of advocates. Each party will therefore have to assume its own professional fees unless the court decides to punish serious breaches in conduct. Legal costs, including expert fees, remuneration of interpreters and stenographers, will be assumed by the losing party, except in cases involving abuse of procedure or undue delays.

According to Montreal lawyer Léon Moubayed of Davies Ward Phillips & Vineberg LLP, the new Code will no doubt have a significant impact on Quebec’s legal landscape. “Many things are going to change for lawyers if the bill is passed,” says Moubayed, whose practice focuses on litigation matters relating to administrative, tax and commercial law. “There will be a period of adaptation for lawyers because the way that cases will be managed will completely change. But given that the objective of the reform is to simplify, accelerate and make civil justice more efficient, lawyers will be pleased by this bill.”

The Barreau is more circumspect. Though viewing the reform as a positive development, Sauvé points out that the provincial government must take other steps such as increasing resources for legal aid and boosting the number of judges in outlying regions in order to in order to establish a more rapid, more efficient and less costly civil justice that would improve access to justice. “The reform can help,” says Sauvé. “It is a positive step but it is not enough.”

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