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New Code of Civil Procedure
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This section is available also in printable PDF format  : Click here.
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Over the next few years, our justice system will face many challenges as it strives to improve access to services and to become more efficient. The tabling of the Draft Bill to enact the new Code of Civil Procedure is one of several actions taken by the Québec government to respond to demands from citizens for a more accessible, simpler, less costly and more userfriendly civil justice system.
The provisions in the Draft Bill are intended to modernize and simplify procedure, and also to promote amicable dispute resolution methods and collaboration between the parties. Judges are given a more active role to play to ensure that proceedings are dealt with more efficiently. New rules make the justice system more accessible at reasonable cost, and within a reasonable time. Last, the use of new technologies is one of the methods chosen to increase service quality and speed up some steps in the process.
The text of the Draft Bill reflects the contributions made by a number of working groups, and follows consultations with judges, the Barreau du Québec, the Chambre des notaires du Québec, the Chambre des huissiers de justice du Québec, and several partners of the Ministère de la Justice du Québec.
The Draft Bill approach has been selected to broaden the debate by including citizens and other legal system stakeholders and giving them an opportunity to comment on the topic of procedure, one of the key elements in access to justice. I look forward to receiving their suggestions.
Jean-Marc Fournier
Minister of Justice and Attorney General of Québec
Québec City, September 2011
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Civil procedure is the name given to the rules that must be followed when a person turns to the justice system to settle a dispute or remedy a situation that is not criminal or penal in nature.
The rules define, for example, the steps in the judicial process that must be respected, the powers of the judge, and the various methods that can be used to settle a dispute, including arbitration and mediation. The rules give answers to questions such as:
- How can I sue another person?
- How can I defend myself in a case brought by another person?
- What are the deadlines?
- How are witnesses questioned?
- How can I settle a dispute without going to court?
- What role is played by experts and expert reports?
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- What documents will I need?
- How can I be sure that the person who loses the case will comply with the judge’s decision?
- How should I present evidence to the judge?
- What are the judge’s powers?
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The rules are an extremely important part of Québec’s legal system and constitute basic working tools for the advocates, notaries, judges, clerks, bailiffs and other professionals involved in resolving disputes.
Most of the rules are stated in the legislation officially known as the Code of Civil Procedure, originally passed in 1965 and amended many times since then. The current version has 1,221 articles.
The philosophy behind the new Code of Civil Procedure
TheDraft Bill to enact the new Code of Civil Procedure (PDF format )  contains a new version of the Code of Civil Procedure that modernizes and simplifies the rules of procedure. Its goals include:
- making the rules of procedure easier to understand, and responding more effectively to the legal needs of ordinary citizens;
- reducing costs and delays in the justice system.
The introductory provision of the new Code clearly sets out these objectives in the third paragraph, which states that the Code targets:
- accessibility, quality and promptness of civil justice;
- fair, simple proportionate and economical application of procedural rules; and
- exercise of the parties’ rights in a spirit of cooperation and balance, and respect for all participants in the justice system.
From now on, these objectives will guide all the parties, judges and lawyers involved in a court case.
Last, the Draft Bill introduces some “structural” changes:
- Despite the new measures it introduces, the new Code will contain fewer articles: down from 1,221 to 775 articles. It offers a more concise presentation of the current rules of procedure.
- The structure of the new Code is simpler and clearer. For example, the headings of the major divisions are more explicit, and several sub-headings have been added. Citizens will find it easier to read and to locate information, and their attention will be drawn to certain special rules.
- The new Code uses less formal language and applies a more pedagogical approach. This will help citizens understand the law and what it requires. It will also improve access to justice, by allowing citizens who are not represented by an advocate to understand the rules and to act more independently.
Consultation process
The tabling of the Draft Bill to enact the new Code of Civil Procedure will give citizens and stakeholders in the justice system an opportunity to comment on the new approach to civil procedure and the new judicial model on which it is based.
This public consultation process is necessary and beneficial, since the implementation of the new Code of Civil Procedure will inevitably lead to substantial change in the organization and perception of the civil justice system.
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1- A new focus on negotiation, mediation and arbitration
| Proposal |
For many years, Québec’s justice system has offered alternative ways to settle disputes, including negotiation, mediation and arbitration, referred to in the new Code as private modes of dispute prevention and resolution.
Unlike the existing Code, which states that the parties may choose one of the above options, the new Code emphasizes their importance, in particular by requiring the parties to consider them before referring their dispute to the courts (art. 1).
In addition, if the parties have already submitted their dispute to a court, the new Code states that it is the mission of the court to facilitate the conciliation of the parties and that it can
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| Impact |
Encourage the parties to play an active role in settling their dispute.
Reduce the number of cases that go to trial and, in particular, give the parties an opportunity to reach a solution that is satisfactory to all, more quickly and with less expense. |
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2- Small Claims Division: new rules to improve access to the justice system
| Proposal |
The Small Claims Division of the Court of Québec hears claims of $7,000 or less.
The Small Claims Divisions has some special features:
- citizens cannot be represented by an advocate (except in special circumstances);
- the rules of procedure are simplified;
- the parties can choose to attend a mediation session free of charge, under the direction of an accredited advocate or notary.
The Draft Bill proposes increasing the maximum claim to $10,000, and then to $15,000 three years after the new Code comes into force.
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| Impact |
Broaden access to small claims court, which offers simplified rules of procedure. |
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3- A better balance between time, cost, and the approach selected
| Proposal |
The current Code already provides that the parties are to limit their case to what is necessary to settle their dispute.
This is known as the rule of proportionality: the proceedings chosen by the parties must match the nature of their claim.
In particular, the parties must take into account the costs and time required to prepare the proceedings.
The new Code retains the rule of proportionality for proceedings, but extends it to cover the means of proof that the parties intend to use, such as examinations and expert evidence (art. 18). |
| Impact |
Reduce costs and delays.
Promote better cooperation between the parties. |
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4- Restrictions on examinations
| Proposal |
The parties must show the necessity of proceeding by pre-trial examination and indicate the number of examinations and the anticipated time involved (art. 144).
Unlike the existing Code, the new Code sets a time limit on pre-trial examinations.
They cannot last longer than 5 hours or 2 hours, depending on the nature of the case or the amounts of money involved (art. 223).
Last, the judge may authorize an extended duration (art. 223).
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| Impact |
Reduce costs and delays.
Ensure compliance with the rule of proportionality. |
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5- Supervision of expert reports
| Proposal |
Whereas the current Code does not define the role of an expert in a court case, the new Code clearly states that the expert’s mission is to enlighten the judge by giving a professional opinion independent of the position of each party.
The new Code also specifies that the parties are to assess the necessity of resorting to expert evidence. They are entitled to one expert in each field (art. 226 and 144).
In addition, the new Code encourages the parties to seek joint expert evidence (art. 226 and 227), and requires the parties give reasons if they decide not to retain a joint expert (art. 144). The judge can order joint expert evidence if necessary to uphold the principle of proportionality (art. 155, par. 2).
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| Impact |
Reduce the number of experts involved, the cost of expert reports and the length of the court case. |
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6- A more active role for judges
| Proposal |
The new Code gives judges a more active role to play.
The current Code states that the parties have control of their case, while the new Code specifies that they have control over their case “subject to the duty of the courts to ensure proper case management and conduct of the proceedings” (art. 19).
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| Impact |
Allow parties to rely on the judge to ensure compliance with the fundamental principles of the Code, such as cooperation, proportionality and balance between the parties. |
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7- Better case management
| Proposal |
The current Code requires the parties to determine the timetable for filing documents, scheduling examinations, filing expert reports and attending court hearings. The judge intervenes only if the parties fail to agree.
The new Code imposes a case protocol that goes beyond a simple proceeding timetable. It contains such items as (art. 144):
- an assessment of whether a settlement conference is appropriate;
- the steps to be taken to ensure the orderly progress of the proceeding;
- an assessment of the necessity of seeking expert opinion and the reasons for which the parties do not intend to jointly seek expert opinion; and
- an assessment of the necessity of pre-trial examination or a written defence.
The new Code also provides that the judge must examine the case protocol and if need be, take any management measure necessary to simplify or expedite the procedure. For example (art. 145, 3 rd par. and art. 155):
- order joint expert opinion;
- determine the terms of examinations;
- order an oral defence.
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| Impact |
Allow the parties and the judge to manage the case more effectively and assess the need for certain proceedings and methods.
Promote stricter control over costs and delays and a better balance between the parties by empowering the judge to intervene. |
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8- Fewer written proceedings
| Proposal |
Whereas the current Code requires that most proceedings be in written form, the new Code encourages greater use of oral proceedings.
An oral defence is required in
- any case that does not have a high level of complexity; and
- any case where it is desirable that the case be decided promptly (art. 167).
An oral defence may also be ordered if the judge considers that the absence of written proceedings will not cause prejudice to the parties (art. 155, par. 6).
If the parties prefer a written defence even though an oral one has been ordered, they have to justify the need for it (art. 144).
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| Impact |
Increase efficiency, speed up procedure and reduce costs, since oral presentations require less technical expertise than written proceedings. |
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9- Acceptance of technological solutions
| Proposal |
The new Code now explicitly authorizes the use of any appropriate technological means available to both the parties and the court.
For example, it allows for examinations at a distance (art. 274, 4th par., art. 293).
In addition, the judge can order that specific technological means be used if better case management would result from doing so (art. 25).
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| Impact |
Increase efficiency and rapidity in case management.
Offer an alternative to costly, timeconsuming attendance, especially at the courthouse.
Possibly decrease the quantity of paper documents produced. |
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10- New liability for costs
| Proposal |
| The current Code specifies that the losing party is liable for legal costs, while the new Code states that each party pays its own costs (art. 337).
However, the judge can ask a party to pay the legal costs of the other party if, for example, that party did not comply with the principle of proportionality or has made an improper use of procedure (art. 338).
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| Impact |
Encourage compliance with the rule of proportionality, since each party will aim to minimize costs.
Ensure compliance with the principle of balance between the parties, since the judge may intervene to correct a situation of imbalance or to penalize improper conduct during the case. |
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For more information
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