Quebec’s new Code of Civil Procedure (the New Code), which is scheduled to come into force on January 1, 2016, will bring about significant changes to the way civil proceedings are conducted. The New Code is in keeping with the lawmaker’s desire to increase access to justice, grant judges broader case management powers and accord a greater role to the principle of proportionality.
Emphasis on private dispute prevention and resolution processes
In the very first section, the New Code emphasizes the obligation of the parties to cooperate and consider private prevention and resolution processes before referring their dispute to the courts. The advisability of holding a settlement conference must be considered in determining the case protocol (the current “timetable”).
It should be noted, however, that the New Code does not provide for any sanctions in the event of non-compliance with the obligation to consider these alternative methods.
Increased case management powers
The case management powers of judges have been clarified and broadened. The court may, for example, take any measure to simplify and expedite a proceeding, limit or determine the mechanics of seeking expert opinion, limit the number and length of examinations and issue safeguard orders.
At the outset of a proceeding, the court may convene the parties to a case management conference during which it may take the appropriate case management measures and require undertakings from the parties as to the further conduct of the proceeding.
Reform of pre-trial examinations
To reduce delays and increase access to justice, the New Code imposes significant limits on pre-trial examinations. For example, it limits examinations to five hours in cases where the value in dispute is $100,000 or more. In the course of an examination, the parties may agree to extend the length of the examination from five to seven hours. Any other extension requires the authorization of the court.
The New Code also specifies that witnesses are required to answer despite an objection based on relevance, thereby enshrining the now-common practice of answering objections based on relevance “under reserve.”
Reform of expert evidence
The parties will not be entitled to submit more than one expert opinion per matter of expertise, unless the court authorizes otherwise in complex cases or because of the state of knowledge in the area concerned.
Although the parties retain the right to seek separate expert opinions, if they fail to agree on joint expert evidence, they will have to justify their decision. If conflicting expert reports are filed, the court may order the experts to meet and file an additional report.
Other measures to simplify and expedite the judicial process
The New Code contains several other measures to shorten proceedings and reduce the costs associated with litigation, including:
- the return of the exception allowing a party to seek the dismissal of only a part of an application or defence;
- the simplification of applications in the course of a proceeding so they may now be presented informally, by note, letter or notice, or orally; and
- permission to file written testimony, provided the testimony is designed to prove a fact that is secondary to the dispute.
The new rules are intended to implement the primary objective of the reform: to ensure the accessibility and promptness of civil justice. However, it will take a few months to know how the new provisions will affect the way civil proceedings are conducted in actual practice.