April 27 2015
Adoption of the New Code of Civil Procedure: Overview of 5 Main Changes
Bill no 28 establishing the new Code of Civil Procedure was adopted on February 20, 2014 by the National Assembly. The new Code will come into force in January 2016 except for provisions to raise the value of claims admissible to the Small Claims Division of the Court of Québec. These came into force on January 1, 2015. Learn more about the main changes to come…
1. Emphasis on private dispute prevention and resolution processes.
In order to promote alternate methods to resolve disputes, the Code includes the obligation to “consider [the use of dispute prevention and resolution processes] before turning to the courts”. With this addition, the legislature wishes to encourage potential litigants to use alternate dispute prevention processes and recognizes that they are legitimate and efficient ways to obtain justice.
2. Increase of jurisdictional thresholds.
In the case of legal proceedings, the limit for amounts claimed has increased from $7,000 to 15,000 in the Small Claims Division of the Court of Québec. Furthermore, for the Court of Québec, the amount limit has been raised from $70,000 to $85,000. Section 35 of the new Code also provides that this amount will be increased each year by operation of law. This measure is meant to reduce delays in the justice system and improve accessibility of civil justice.
3. Case management by the court and reform of pre-trial examination and expert evidence.
In order to improve access to civil justice and the system’s efficiency, the new Code gives increased management powers to the court. Section 153 provides that the court may convene, on its own initiative or upon request, a case management conference and require undertakings from the parties as to the further conduct of the proceeding or subject the proceeding to certain conditions. Furthermore, the court may order a joint expert report and decide to reduce the number and length of pre-trial examinations. It is important to note that the new Code changes significantly the rules applicable to pre-trial examinations, removing the distinction between examinations before and after filing a defence (section 221). With regard to expert evidence, although section 148 includes the possibility to seek more than one expert’s opinion, the parties must justify their decision not to jointly seek expert opinion. If the experts’ reports contradict one another, the court may order the experts to reconcile their opinions (section 240). Moreover, section 232 states that the parties cannot seek more than one expert opinion per area or matter without the court’s authorization. The court may grant this authorization based on the complexity or importance of the case, among others.
4. Requirement for parties to cooperate.
Under section 148 of the new Code, the parties are required to cooperate to reach a settlement or establish a case protocol that will govern the conduct of the proceeding. Moreover, under section 20, parties must “co-operate [by keeping] one another informed at all times of the facts and particulars conducive to a fair debate and [by making] sure that relevant evidence is preserved.” This new requirement will no doubt affect the strategies adopted by lawyers in their case files.
5. Reform of costs and repeal of Judicial Fees of Advocates.
The new Code revisits the concept of costs while maintaining the rule that legal costs are borne by the unsuccessful party. However, section 341 gives the court discretionary power on the matter: in the case of the principle of proportionality not being observed, procedures being abused or unnecessary delays, the court may order the successful party to pay the legal costs incurred by another party.
Under section 342, the court may also punish serious breaches noted in the conduct of the proceedings by ordering a party to pay another party, as legal costs, an amount to cover the professional fees of the other party’s lawyer.
The new Code also repeals the Judicial Fees of Advocates, which establishes specific sums to be paid to lawyers for some acts performed in preparation of a case. As a result, the additional fee that provides that, in the case of suits over $100,000, 1% of the amount exceeding $100,000 is taxable will be repealed.
Measures for a more efficient civil justice
By adopting the new Code, the legislature wished to “ensure the accessibility, quality and promptness of civil justice, the fair, simple, proportionate and economical application of procedural rules, the exercise of the parties’ rights in a spirit of co-operation and balance, and respect for those involved in the administration of justice”.
The new provisions are meant to modernise the civil justice so that our justice system becomes a faster, more manageable and less expensive forum. Indeed, many have criticised how overloaded the courts are, as well as the high costs of the judicial system. All that remains is to see how these new provisions will be implemented and what impacts these new rules will have on the administration of civil justice.
Read the whole Act>>
(hyperlien vers http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=5&file=2014C1A.PDF)