Gouvernement du Québec - Justice

Civil suits

Civil suits.Did you know that, every year, nearly 165,000 people call upon the various civil courts to hear their grievances?

If you ever have to deal with the justice system, how will you prepare your case? Which court will hear your case? Who will be responsible for suit expenses and the attorney’ fees?

This text will provide answers to these and several other questions.

What type of dispute?
The parties involved in the suit
A few examples of time periods allotted
Which court will hear your case?
Stages in civil proceedings
   • Preliminary stage
   • Court appearance
   • Agreement as to the conduct of the proceedings
   • The defense
   • Settlement conferences
   • The hearing
   • The evidence
   • The addresses
   • The judgment
The cost of a suit
Will you win or lose?
For more information


What type of dispute?

Civil law defines relations between people. If you believe that you need to assert your rights against an individual or an enterprise, you must submit your case to a civil court.

The purpose of a civil trial is to resolve a dispute between yourself and another person or enterprise. This dispute may involve:

  • property related matters, for instance:
    • the right of way across a property,
    • financial debt,
    • sales contract for a house,
    • destruction of property;

  • bodily injuries, for instance:
    • injuries sustained as a result of a fall on the sidewalk,
    • disability resulting from a medical error;

  • Note
    The procedures and deadlines are not the same for family matters as for other civil suits.
    matters pertaining to family law, for instance:
    • divorce,
    • support,
    • child custody.

The parties involved in the suit

In a civil suit, the plaintiff petitions the court to sanction a right he wishes to assert against another person, the defendant. These terms, plaintiff and defendant, accurately describe the roles of both parties involved in a civil suit: one person files a claim and the other presents a defense.

To sue someone, one must be directly involved in the case. For example, if your neighbor’s basement was flooded as a result of a broken water pipe, he must sue the municipality. You cannot do it for him.

The right to recourse is not eternal. The period in which you may file a claim varies from two (2) weeks to ten (10) years depending on the nature of the claim. Once this time period has expired, your right to recourse is prescribed. In other words, you may no longer exercise it.

Supposing you consider you have suffered damage caused by a person, company or a public entity (municipality). As a consequence of the formal demand you sent to have the damage compensated, things turn sour. You are then faced with two possibilities: request civil and commercial mediation should you not wish to proceed with legal proceedings to settle the matter, or consult a lawyer to have a civil action brought on your behalf which will involve the opening of a court file.

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A few examples of time periods allotted

To institute a suit for property damages, you have three (3) years from the day the damage occurred.

In the case of a suit against a municipality for material damages, you have fifteen (15) days from the day the damages occurred to advise the municipality of your intention to file for damages.

A suit against a doctor, a municipality, a ski resort, etc. for bodily injury must be instituted within three (3) years of the day the injury was sustained. However, if the prejudice appears progressively or tardily, the time period runs from the day the prejudice first became apparent.

Which court will hear your case?

Courts of first instance

Note
The Court of Québec has three chambers – Civil Court, Youth Court and the Criminal and Penal Court – as well as one branch – the Small Claims Branch. With the exception of the Criminal and Penal Court, the chambers of the Court of Québec and the Small Claims Branch handle civil matters, in full or in part.
The courts of first instance (first time court) that hear cases are the Civil Court which includes the Small Claims Branch and the Youth Court (adoption and protection) of the Court of Québec, and the Superior Court of Québec.

A number of criteria help determine which tribunal has jurisdiction in your case, including the amount of your claim.

If the amount of your claim is $7,000 or less, your case falls within the jurisdiction of the Small Claims Branch. This monetary ceiling applies to individuals as well as legal persons (companies) who, within the twelve (12) months preceding the filing of the lawsuit, had a maximum of five (5) employees bound to them by an employment contract.

If the amount of your claim is between $7,000.01 and $69,999.99, your case falls within the jurisdiction of the Civil Division of the Court of Québec.

If the amount of your claim is $70,000 or more, your case falls within the jurisdiction of the Superior Court.

Other criteria, when combined with that of the amount of the claim, may annul or modify it. They include the following two:

  • the status of the plaintiffs, for example:
    • persons involved in a class action will have their case heard before the Superior Court, regardless of the amount of the claim;
    • legal persons who, within the twelve (12) months preceding the filing of the claim, had more than five (5) employees bound to them by an employment contract, will have their case heard before the Civil Division of the Court of Québec, if the amount of the claim is less than $70,000, or before the Superior Court if the amount is $70,000 or more.

  • the nature of the dispute, for example:
    • matters of family law, such as support, are handled by the Superior Court, regardless of the amount of the claim;
    • matters involving municipal and school affairs, such as tax payments, are heard by the Civil Division of the Court of Québec.

Appeal courts

Decisions handed down by the Small Claims Branch cannot be appealed. Decisions in civil matters rendered by the Court of Québec and the Superior Court may be appealed under certain conditions. These cases are then submitted to the Court of Appeal of Québec. As a last resort and only when the plaintiff is granted the right to file a new appeal does the Supreme Court of Canada rule on a decision rendered by the Court of Appeal.

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Stages in civil proceedings

Preliminary stage

A lawsuit is instituted by means of a declaration. This is a written document explaining the facts of your claim and the conclusions sought. It is accompanied by a writ of summons to the defendant informing him, among other things, about the time period during which he must appear and the date on which the declaration will be presented to the court. This declaration may be written by the plaintiff or by his attorney.

Court appearance

If you should receive an order to appear as a defendant, do not ignore this notice.

"To appear" does not mean that you have to be in the courthouse in person. It does mean that you have to submit a document called "appearance" for the court file.

From the moment the bailiff serves you with copies of the declaration and the writ of summons, if you want to contest the claim, you have ten (10) days in which to produce an appearance or ask your attorney to do so. If you or your attorney produces an appearance, the case will be presented to the court on the date indicated in the notice. Should you fail to do so, the case will proceed in your absence and a decision may be rendered against you without your being able to defend yourself.

Agreement as to the conduct of the proceedings

Before the date indicated on the writ of summons issued to the defendant, for the presentation of the declaration, if the claim is contested, the parties may reach an agreement as to the conduct of the proceedings. Otherwise, the court will impose the deadlines or terms to be respected. This agreement may concern:

  • the presentation of a written or oral defense;
  • the points you wish to debate before the court prior to the final hearing for the case;
  • the way to inform you about the exhibits you wish to submit to the court during the trial;
  • the deadlines for producing documents, such as expert assessments.

In the event that you submit such an agreement, you do not have to submit the declaration to the court since each party has agreed on what is to be done and the deadlines to be respected for the proceedings.


Attention

The writ of summons is not a subpoena to appear. The writ of summons is intended for the parties to a dispute whereas the subpoena to appear is addressed to the witnesses, namely those individuals who have information that could enlighten the court as to the case at hand. A witness is obliged to comply with a subpoena to witness. If he refuses, an arrest warrant may be issued against him and he could be brought before the court.

The defense

Following your appearance and the presentation, as the case may be, you or your attorney will provide the court with a written document that sets out your defense and presents your version of the facts. You can admit certain facts, deny others or raise a number of legal arguments. Prescription, for example, is a legal argument. When you invoke prescription, you maintain that the plaintiff waited too long before asserting his rights and may no longer sue you.

Several arguments may be submitted orally. This is the case, for example, when the claim concerns certain family matters, demarcation or a contract.

Settlement conferences

The Court of Québec and Superior Court of Québec offer an opportunity for individuals or enterprises involved in an ordinary civil suit to participate in a settlement conference. The advantage of this form of dispute resolution mechanism is that it saves time and money for the parties, enabling them to settle the matter out of court, without a trial. The parties may request a settlement conference at any stage of legal proceedings.

The hearing

As a rule, the hearing takes place before a judge alone.

Theoretically, these hearings are open to the public. However, in cases regarding family matters, the hearings are held in camera, thus excluding the public or anyone not involved in the case. Journalists may attend these hearings to report the facts, but they are not allowed to disclose the names of the parties involved.

The evidence

Who must establish evidence before the judge?

According to Article 2803 of the Civil Code of Québec, the party that invokes the facts must prove them to the court’s satisfaction. Therefore, it is in the interest of all of the parties to gather as much evidence as possible in order to convince the judge. For example, Richard borrowed $10,000 from Isabelle. If this amount is not paid back, it will be up to Isabelle to prove that a loan contract indeed exists between herself and Richard. As a defense, Richard is entitled to allege certain facts, for instance, that he did indeed reimburse his loan.

What needs to be proven?

You do not have to prove everything systematically. For instance, there is no need to prove that a legal provision exists in your favor. The law also creates certain presumptions that help establish proof. For instance, if you were bitten by a dog, you do not have to prove the responsibility of its owner. Finally, your obligation to produce evidence may be waived if you manage to obtain an admission from the opposite party.

How does the judge assess the evidence?

The judge generally has a wide range of options open to him. This is called "discretionary power". Therefore, in order to convince him, each party should produce the best evidence possible. After having heard the arguments and examined the case, the judge renders judgment based on the principle of the supremacy of evidence. This means that he agrees with the party whom he believes has gathered the most convincing evidence. If he finds he cannot decide between the two parties, he will rule that the plaintiff has not fulfilled his obligation to convince him and he will reject the claim.

What means are available to the parties for their presentation of the evidence?

They may produce written documents, call witnesses, invoke presumptions and offer admissions. If only a simple fact needs to be proven, all proof is admissible. However, in the case of juridical acts (lease, loan, donation, etc.), the law considers that a written document is the best evidence. This explains why the use of writings is recommended since, if drawn up properly, they cannot be challenged by testimonies.

There are several types of writings : authentic writings, drawn up by a notary, bailiff, etc., which constitute the strongest evidence; private writings, drafted and signed by the parties themselves; and other documents such as notations in a diary, personal letters, registers, etc. Of all these documents, it is most difficult to contest the content, validity and origin of the authentic document.

Sometimes, writings are the only admissible evidence. This is the case in civil matters when the litigious amount exceeds $1,500. In this case, witnesses are generally not allowed to be heard. Let us go back to our previous example, when Isabelle had loaned money to Richard. Should Isabelle die and her heirs find the loan contract, they could claim the repayment of the loan from Richard, who would then be unable to deny he took the loan.

However, let us imagine that Richard has already paid Isabelle back for the amount of his debt in the presence of witnesses, but failed to obtain a receipt and he has written proof that he and Isabelle had agreed to meet for the reimbursement of the loan. In this case, Richard has what is known as a “commencement of proof”, which gives credit to his statement that he did in fact pay back the loan, while not being able to prove it entirely. In this case, the judge may allow Richard to call witnesses, who will confirm that they were present when Richard reimbursed Isabelle.

Whenever proof by testimony is allowed, the witness to the alleged facts must always be called upon to testify; hearsay evidence is not allowed.

After having heard your evidence and that of the opposite party, the judge hears the addresses.

The addresses

The address is the argumentation in which each party presents his version of the facts. The attorney for the plaintiff is heard before the attorney for the defendant. Each attorney will present the facts and the claims of their client, while trying to be as persuasive as possible.

The judgment

If the case is a simple one, the judge may pass judgment verbally, then and there.

If the case is complex, the judge may wish to think it over and weigh the evidence. The judge may occasionally take several months before rendering a written decision. His decision is based on the law and on the strength of the evidence submitted to him.

The judge will render judgment, either in favor of the plaintiff by receiving his claim or in favor of the defendant by rejecting it. The judge may also agree with the plaintiff on certain points only.

The court clerk will send copies of the judgment to both parties. You may obtain an additional copy from the court clerk by requesting it in person, in writing or by telephone.

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The cost of a suit

The cost of a suit depends in part on the fees charged by your attorney. To avoid unpleasant surprises, it is in your best interest to conclude a clear and detailed agreement with him before turning your case over to him.

In almost all cases, unless the judge decides otherwise, each party must pay his own attorney, regardless of the outcome of the suit. As a rule, the party that wins the suit claims the other costs (shorthand, bailiff, witnesses, expert witnesses, legal fees, attorney’s legal fees) from the losing party in a bill of fees duly approved by the court clerk.

It should be noted that most disputes are settled out of court. Sometimes, common sense dictates that an amicable settlement is preferable to a long and costly procedure.

Moreover, if the claim involves a small amount and the attorney’s fees are likely to be high, it may be a good idea to reduce the claim to $7,000 and submit it to the Small Claims Branch of the Court of Québec.

Whether you intend to sue or are being sued, it is a good idea to consult an attorney who will help you prepare your application and plan your defense.

For more information

The jurisdiction of each court in Québec:
     • The Court System
The Small Claims Division of the Court of Québec:
     • Small Claims
The various stages in the judicial process for minors:
     • The Youth Criminal Justice Act: The legal procedure
     • Victims of crime - Understanding the youth criminal justice system
Rules of application for the program to deal non-judicially with adults:
     • Program to deal non-judicially with certain criminal offences committed
       by adults
Collecting payment after judgment:
     • Summons to debtor for examination after judgment Clicking on this icon will take you to another website. (In French)
How settlement conferences are conducted:
     • The settlement conference in civil cases - Court of Québec
     • Settlement Conference of the Superior Court of Québec
The mediation process and the advantages of an amicable settlement of civil or commercial disputes:
     • Mediation in civil and commercial matters
Serving as a juror (qualification, selection, conditions):
     • Jury Duty
Preparing to testify in Youth Court:
     • Witnesses: Your role in Youth Court
Preparing to testify in Criminal Court:
     • Witnesses: Your role in Criminal Court
Statement of principle regarding witnesses
     • The Statement
The rights, recourse and resources available to victims of crime:
     • Victims of crime - Rights, Recourse and Resources
Legal proceedings and possible sentences:
     • Victims of crime - Understanding the court system and sentencing procedure
The meaning of certain legal terms:
     • Termes juridiques (published in French but featuring an English translation of each term)

The content of this document is strictly informative and has no legal value.

If you find some of the information difficult to understand, do not hesitate to contact us. Please note, however, that we cannot interpret the information to apply it to a specific situation.

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Latest update: October 12, 2007



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