Stages in civil proceedings
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 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.
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.
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.
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.
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.
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 courts 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 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.
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.