Which court will hear your case?
Courts of first instance
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, in other words the courts that hear cases when first presented, are the Civil Division (including the Small Claims Division) and the Youth Division (for adoption and youth protection cases) of the Court of Québec, as well as the Superior Court of Québec.
A number of criteria help determine which court has jurisdiction in your case, including the amount of your claim.
If your claim is for $15,000 or less, your case falls under the jurisdiction of the Small Claims Division. This monetary limit applies to individuals as well as to legal persons (companies) which, in the twelve months preceding the filing of the claim, had a maximum of five employees.
If your claim is for $15,000.01 to $84,999.99, your case falls under the jurisdiction of the Civil Division of the Court of Québec.
If your claim is for $85,000 or more, your case falls under the jurisdiction of the Superior Court.
Apart from the amount of your claim, other criteria may affect which court will hear the case. They include:
- the status of the plaintiffs; for example:
- people involved in a class action will have their case heard before the Superior Court, regardless of the amount of the claim;
- legal persons which, in the twelve months preceding the filing of the claim, had more than five employees will have their case heard before the Civil Division of the Court of Québec, if the amount of the claim is less than $85,000, or before the Superior Court if the amount is $85,000 or more.
- the nature of the dispute; for example:
- family law cases, such as support payment cases, are handled by the Superior Court, regardless of the amount of the claim;
- cases involving municipal and school affairs, such as tax payments, are heard by the Civil Division of the Court of Québec.
Decisions by the Small Claims Division cannot be appealed. Decisions in civil cases 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 leave to appeal does the Supreme Court of Canada rule on a decision rendered by the Court of Appeal.
Stages in civil trials
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.
If you receive a summons as the defendant in a case, do no ignore it.
A "summons" does not require you to go to court. It means that you have to file a document, called an answer, in the court record.
From the moment the bailiff serves you with the originating application and summons, and if you decide to contest it, you or your lawyer have 15 days to file an answer. In your answer, you or your lawyer must indicate one of three options: that you wish to negotiate a settlement, that you wish to defend the application and establish a case protocol with the plaintiff, or that you wish to propose mediation or a settlement conference. If you fail to do this, the proceeding will continue and a judgment may be rendered against you, without you having had a chance to defend your position.
The parties are required to establish a case protocol together; if they fail to do so, the court may impose a deadline or take other action. The case protocol covers a range of aspects, including
- whether the defence will be oral or written, and if written, the time limit for filing it;
- the advisability of holding a settlement conference;
- the points that will be raised in court before the final decision;
- the procedure and time limit for pre-trial discovery and disclosure;
- the advisability of seeking one or more expert opinions.
A summons is not a subpoena. A summons is addressed to a party to the case, while a subpoena is sent to a witness, in other words is a person who may possess information that will help the court understand the issues. A witness is required to obey a subpoena, and an arrest warrant may be issued against a defaulting witness, who may then become liable for the costs.
After filing your answer and, if applicable, presenting the case protocol to the court, you or your lawyer must defend the application orally or in writing. In your defence, you set out your version of the facts. You can admit some facts, deny others, or raise points of law. One example of a point of law is the question of prescription. You can, for instance, claim that the plaintiff waited too long before filing a claim, and thus is not in a position to sue you.
Some defences may be made orally, for example when the claim involves certain applications in the field of family law, or a contract.
The Court of Québec and Superior Court of Québec offer an opportunity for individuals or enterprises involved in an ordinary civil proceeding to participate in a settlement conference. The advantage of this form of dispute resolution 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 in the legal proceedings.
As a rule, the hearing takes place before a judge alone.
Theoretically, 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.
Who is required establish proof before the judge?
According to article 2803 of the Civil Code of Québec, a person seeking to assert a right must prove the facts on which the claim is based. This means that 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, if Richard borrows $10,000 from Isabelle and fails to pay it back, Isabelle will have to prove that a loan contract indeed exists between herself and Richard. As a defence, Richard will have to prove certain facts, for instance that he has paid the money back.
What needs to be proven?
You do not need to prove everything systematically. For instance, you do not have to prove a legal provision that exists in your favour. The law also creates certain presumptions that help establish proof—if you are bitten by a dog, you do not have to prove its owner's responsibility. Finally, your obligation to provide proof may be waived if you manage to obtain an admission from the opposite party.
How does the judge assess proof?
In general, the judge has a great deal of latitude, or "discretionary power", to assess proof. Each party must submit the best possible evidence in order to convince the judge. After hearing the parties' oral arguments and examining the record, the judge will render judgment based on the principle of the "preponderance of evidence". In other words, the judge will rule for the party that, in his or her view, has assembled the most convincing evidence. A judge who is not able to decide between the two parties will rule that the plaintiff has not met the obligation of proving his or her case, and will reject the application.
How can the parties present their evidence?
The parties may produce written documents, call witnesses, invoke presumptions and report admissions. If only a simple fact needs to be proved, all means of evidence are admissible. However, in the case of legal acts (a lease, loan, donation, etc.), the law considers that a written document is the best evidence. This is why it is always advisable to record agreements in writing; if they are drawn up properly, they are hard to challenge using other testimony.
There are several types of written documents: authentic acts, drawn up by a notary, bailiff, etc.,; private writings, drafted and signed by the parties themselves; and other documents such as entries in a diary, personal letters, registers, etc. Of all these documents, the authentic act is the most difficult to contest in terms of its content, validity and origin.
Sometimes, only written documents are admissible as evidence. This is the case in civil matters when the amount in dispute exceeds $1,500, and witnesses will not generally be heard. Let us go back to our previous example, when Isabelle lent money to Richard. If Isabelle dies and her heirs find the loan contract, they can demand that Richard repay the loan, and he cannot deny that he took out the loan.
However, let us imagine that Richard paid Isabelle back, in the presence of witnesses, but failed to obtain a receipt; all he has is written proof that he and Isabelle agreed to meet for the repayment of the loan. In this case, Richard has what is known as a “commencement of proof”, which lends support to his statement that he paid back the loan, but does not prove it entirely. In this case, the judge may allow Richard to call witnesses, who will confirm that they were present when Richard repaid the money to Isabelle.
When proof by testimony is allowed, the person who witnessed the facts directly must be called to testify; hearsay evidence is not allowed.
After having heard your evidence and that of the opposite party, the judge hears the addresses.
An address is an oral argument, in which the party concerned presents its version of the facts. The plaintiff's lawyer is heard before the lawyer for the defence. Each lawyer attempts to present his or her client's claims in the most persuasive way possible.
In a simple case, the judge may render judgment orally, from the bench.
If the case is more complex, the judge may need time to reflect and weigh the evidence, and may take several months to render a written judgment based on the law and the strength of the evidence submitted.
The judge's decision will either find for the plaintiff, by allowing the application, or for the defendant, by dismissing the application. The judge may also find for the plaintiff, but on certain points only.
The court clerk sends a notice to the parties, informing them that judgement has been rendered. You may obtain a copy of the judgment by requesting it in person at the office of the courthouse, or by requesting it in writing or by telephone.