On January 1st, 2016, the Act to establish the new Code of Civil Procedure came into force in Québec. Seeking to make justice more accessible, the current CCP simplifies procedure in some respects and grants increased case management powers to the courts, in the spirit of the principle of proportionality.
One year after the entry into force of the CCP, what have we learned from the courts? Without being exhaustive, the following is a selection of decisions on various issues.
- Case Management
Once a judicial demand is filed, the parties are required to establish a case protocol (s. 148 CCP). This case protocol is presumed to be accepted unless the parties are called, within 20 days after it was filed, to a case management conference (s. 150 CCP).
In civil matters, if one party wishes to extend the mandatory time-limit of 6 months before inscribing its case for a hearing on the merits, it must send a case management notice or file a formal request in this regard. Indeed, the mere filing of a case protocol in which the parties have agreed to modify the inscription date for trial will not be legally valid, without the Court’s approval.
In order to obtain an extension of the 6-month delay, the demand must be reasoned and complexity is no longer sufficient : one must show a high level of complexity or special circumstances (s. 173, al. 2 CCP).
At any stage, the courts can issue case management orders to ensure an adequate progression of the matter, by simplifying or expediting the proceedings (s. 158(1) CCP).
For instance, in the context of a claim for repairs allegedly inappropriate, a written plea is described as an exception which will be permitted only if the case presents a high level of complexity or special circumstances, adding that these circumstances must be analyzed in a restrictive fashion.
Case management orders must also be in line with the principle of proportionality, which binds the parties who are also subject to an obligation to cooperate (s. 20 CCP).
This duty to cooperate will have consequences on the communication of evidence. As such, « playing hide and seek » with respect to relevant elements of a case must be avoided. That said, the Court can enable the redacting of irrelevant elements found in confidential documents. It was also recognized that the principle of cooperation should give way to litigation privilege.
2. Evidence, examinations and expertise
The courts rapidly reminded the parties that the principles governing the current CCP require mutual disclosure of all elements relevant to the judicial debate.
Considering that pre-trial examinations are now limited in their duration and according to the value of the claim (s. 229 CCP), the Superior Court has mentioned that more significant disclosure is warranted through requests for particulars or to disclose a document.
In the context of preliminary exceptions, interpreting s. 169, al. 2 CCP, the Superior Court thus concluded that the communication of a document is no longer dependent on the intention of one party to produce it, but now responds solely to the requirement to show that it is relevant regarding the issue at stake.
With respect to pre-trial examinations, the fact that the CCP no longer distinguishes between examinations prior to and after plea, led the Superior Court to conclude that the communication of grounds of defence is not a sine qua non condition before a plaintiff can depose a defendant. However, appropriate case management and the principle of proportionality may enable such examination to take place after plea.
Although the new rule provides that objections based on relevance must be referred to the merits of the case and do not prevent the witness to answer (s. 228 CCP), an irrelevant question to the point that it becomes abusive should not be allowed in the context of a pre-trial examination.
The concept of « substantial and legitimate interest », which would justify a witness not to answer, is construed restrictively, the classical example of same being trade secrets. In one case, the Superior Court nonetheless found that although the respect of a confidentiality agreement required by an organization would raise a « substantial and legitimate interest », this was superseded by the right to a full and complete defence, while ordering some protective measures regarding the information to be communicated.
Under the current CCP, the principle of proportionality is not limited to proceedings but also includes means of evidence (s. 18 CCP). This could notably enable the Court to impose a joint expertise subject to some conditions (s. 158(2) CCP).
The courts do not seem to have exercised this power much, but in a bodily injury matter, the Court of Québec ordered a joint expertise to assess damages, even though the defendants had already retained the services of an expert in this regard, the costs of such expertise being shared equally between the plaintiff and the defendants.
Although experts are required « on request » to inform the Court and the parties about the progress of their work and their instructions (s. 235 CCP), this does not give rise to an out-of-Court examination of the expert.
The courts will usually apply the precautionary principle that prevailed under the former CCP, regarding the dismissal of an expert report at a preliminary stage.
Since January 1st, 2016, the provisions of the current CCP regarding appeals have also led to some interesting judgments.
Interpreting section 360 CCP, the Court of appeal confirmed that the appeal delay for a judgment other than one rendered at the hearing is computed from the date of the notice of judgment. This avoids factual ambiguity related to determining the date of actual knowledge for this notice of judgment, or that of its sending. For a judgment rendered at the hearing, the appeal delay is starting from the actual date of the judgment.
While the former CCP was opposing concepts of « final judgment » and « interlocutory judgment », the legislator now refers to judgments « that terminate a proceeding » (s. 30 CCP) and to judgments « rendered in the course of a proceeding » (s. 31 CCP).
The judgment that terminates a proceeding between the parties is one that renders the Court functus officio. For instance, in an insurance matter, the decision forcing the insurer to defend, in the context of a motion distinct from any another judicial claim, is considered to be a judgment terminating a proceeding, even though the issue of damages remains to be determined.
In principle, case management orders cannot be appealed, unless leave is granted if the order appears unreasonable in light of the guiding principles of procedure (s. 32 CCP).
In case of splitting of actions, contrary to the rule of the former CCP, the first judgment that decides of the merits of the case is subject to an immediate appeal, with leave of a judge of the Court of Appeal pursuant to section 31 CCP.
As regards class actions, since the adoption of the current CCP, the judgment certifying a class action may be appealed with leave of a judge of the Court of Appeal, while the judgment denying certification remains appealable as of right (s. 578 CCP).
Interpreting this article, the Court of Appeal has defined a specific test for the appeal of judgments having certified a class action. Therefore, such a judgment will be appealable with leave when a prima facie review shows a material error regarding the interpretation of the criteria to certify a class action or in the appreciation of the facts related to these criteria, or also in clear cases of incompetency by the Superior Court.
One year after the CCP came into force, the courts have already set the tone to foster the goal of judicial efficiency pursued by the legislator.
Several issues remain to be explored and the parties, their attorneys and the courts will need to contribute, each in their own way, to preserve the subtle balance between the objective of a more accessible justice and the possibility for users of the legal system to enforce their rights.