The Quebec Justice Minister has tabled Bill 99, An Act to amend the Code of Civil Procedure to prevent abusive use of the courts and promote freedom of expression and citizen participation in public debate (the “Bill”).

The Bill aims to prevent abusive use of the courts, promote access to justice for all citizens and strike a fairer balance between the financial strength of the parties to a legal action.

The Bill is considerably more far-reaching in scope than its name would suggest. It would give the courts new powers and codify other pre-existing ones. Included are provisions whereby:

  • A court will be able, on request or even on its own initiative, to declare an action or pleading abusive. The abuse of procedure may consist in a claim or pleading that is frivolous or dilatory. It may also consist in bad faith, in a use of procedure that is excessive or unreasonable, or in a perversion of the ends of justice, in particular if it operates to restrict the freedom of citizens to express themselves in the context of a public debate. The objective of the latter wording is to discourage proceedings commonly known as SLAPPs (Strategic Lawsuits Against Public Participation).
  • In case of abuse, a court will be able to dismiss an action, strike out a submission or require it to be amended, reject a pleading or terminate or refuse to allow an examination.
  • If it considers it appropriate to do so, a court will be able to order a provision for costs to be paid to a party whose financial situation would prevent the party from properly arguing the party’s case.
  • In case of abuse, a court will be able to order a provision for costs to be reimbursed, condemn a party to pay, in addition to costs, damages in reparation for harm suffered, including fees and extrajudicial costs incurred, and if appropriate, award punitive damages.
  • If the abuse is committed by a legal person, the directors and officers who took part in the decision may be personally condemned to pay damages.
  • A defendant will also be able to ask for the dismissal of all or part of an action that is abusive or unfounded in law. Until now, a motion seeking to have an action dismissed in part was not possible.

The amendment that would allow a court to order a provision for costs to be paid to a party is not new law. The Supreme Court of Canada1 and the Quebec Court of Appeal2 have recognized the inherent power of the courts to grant interim costs in rare cases, in the interest of ensuring that a party’s rights are safeguarded. However, the tests put forward in the Bill are much broader and less stringent than those developed by the courts. Among other things, the Bill does not require a prima facie case to be made that the other party’s proceeding is abusive. The Bill, if adopted in its current form, will certainly encourage persons who are parties to a suit to seek a provisional sum to cover the costs.

An increase in claims for punitive damages can also be anticipated. Until now, punitive damages could not be sought in abuse of procedure cases, with the exception of situations covered by the Quebec Charter of Human Rights and Freedoms. Although the courts have on occasion acknowledged that a party had abused the right to bring suit, the damages that the party concerned was exposed to were generally limited to the value of the professional fees incurred by the other party.

While most of the proposed amendments included in the Bill in fact correspond to principles that have already been recognized by the courts, their explicit inclusion in the Code of Civil Procedure will unquestionably encourage the courts to resort to these new rules and will afford judges broader discretion in managing cases with a view to allowing litigants to arrive at more rapid and less costly outcomes to their disputes.

The Bill will be studied by a parliamentary committee this coming October. It remains to be seen whether the proposed amendments will be adopted as is, and if so, what tests the courts will develop for purposes of applying the new measures.