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Litigation

Court system

What is the structure of the civil court system?

One judge of the Superior Court hears in first instance every suit that is not assigned exclusively by a specific provision of the law to another court such as the Court of Quebec or the Federal Court of Canada. Judges of the Superior Court are appointed by the federal government. The Superior Court has a Commercial Division in Montreal that hears matters relating to company law, securities law, bankruptcy and insolvency, among others.

The Court of Quebec is a court of first instance for criminal, penal, civil and youth matters. Judges of the Court of Quebec are appointed by the provincial government, and sit alone when hearing matters in first instance. In civil matters, the Court of Quebec has jurisdiction to the exclusion of the Superior Court when the claim is for a sum or value of less than C$85,000.

Specialised governmental agencies established under federal or provincial legislation (administrative tribunals) have special jurisdiction to implement legislative policy and to hear cases on specific subject matters.

The Quebec Court of Appeal is the highest court in Quebec and usually sits in panels of three judges. It has an appellate jurisdiction throughout Quebec, over all causes, matters or things appealed from the Superior Court or the Court of Quebec.

The Federal Court of Canada has concurrent original jurisdiction with the Quebec courts in certain areas, such as admiralty law, remedies under copyright, trademark and industrial design laws and claims against the federal government, and exclusive original jurisdiction in certain other areas (such as corrections to the Patent Registry and other such federal registries, judicial review of federal officials and administrative tribunals, and immigration appeals). An appeal from the Federal Court exists as of right on most matters to the Federal Court of Appeal.

A judgment of the Quebec Court of Appeal or the Federal Court of Appeal in a civil matter may be reviewed by the Supreme Court of Canada only with leave to appeal given in cases involving a question of public importance or raising an important issue. The Supreme Court has a chief justice and eight other judges, all appointed by the federal government.

Judges and juries

What is the role of the judge and the jury in civil proceedings?

Judges traditionally play a passive role, especially in the context of the hearing on the merits (trial), where judges must render decisions based on the proof adduced by the parties, but tend to manage cases with various degrees of intervention. However, judges may exceptionally order the proof of specific facts, summon witnesses, appoint an expert, order the production of certain documents or order attendance at the scene in order to make observations.

Judges also have the power to oversee the judicial process, particularly through the exercise of pretrial case management powers, an area in which judges tend to be much more active.

Judges of the Supreme Court of Canada, the Court of Appeal and the Superior Court of Quebec are appointed by the federal government from persons who are or have been judges of a superior court or a barrister or advocate of at least 10 years’ standing.

Judges of the Court of Quebec are appointed from among advocates having at least 10 years’ practice. Where there are vacancies, an application and review process is held allowing interested persons to submit their candidacy.

There currently are reforms to the federal judicial appointment process that will strengthen the selection process and the role of Judicial Advisory Committees, as well as promote the identification of a diverse pool of jurists in order to make the judiciary more representative of Canada’s diverse population.

There is no jury in civil proceedings.

Limitation issues

What are the time limits for bringing civil claims?

The limitation periods for a civil action in Quebec vary as follows:

  • one year - action for defamation, running from the day on which the defamed person learned of the defamation; application by a surviving spouse to fix a compensatory allowance, running from the death of his or her spouse; an action to retain or obtain possession of real estate, running from the disturbance or dispossession; action against the carrier, shipper or receiver of property carried by water;
  • three years - action to enforce a personal right or movable real right for which the prescriptive period is not otherwise established; and
  • 10 years - action to enforce immovable real rights; execution of a judgment; otherwise determined by law.

The parties may suspend these periods by agreement for a duration of no more than six months, and may renounce the benefit of any time already passed.

Pre-action behaviour

Are there any pre-action considerations the parties should take into account?

Before filing a civil action, the plaintiff or the plaintiff’s attorney should place the debtor in default by writing a formal demand requiring the debtor to execute his or her obligation within a certain time period. If, after being put in default, the debtor still does not perform such obligation, the plaintiff may file an action. In some cases, the debtor can be in default by the sole operation of the law, which means that the plaintiff can take action without a formal demand.

There is a limited procedure available for conservation of proof before proceedings are commenced, and the court can authorise seizure before judgment of property or evidence in certain exceptional circumstances. Similarly, though disclosure obligations usually arise from the commencement of an action, a Norwich order, which is an extraordinary remedy compelling the pre-action discovery of a third party, may be requested in order to obtain such information before commencing an action.

Pre-court protocols have recently been introduced and are subject to the appreciation of the court. Parties must consider private prevention and resolution processes (eg, arbitration, mediation or negotiation) before referring their dispute to the courts.

Starting proceedings

How are civil proceedings commenced? How and when are the parties to the proceedings notified of their commencement? Do the courts have the capacity to handle their caseload?

Civil actions are commenced by filing an originating application. This application sets out the facts on which the action is based and the conclusions sought. It is served on each defendant by a bailiff. The defendant has 15 days from service to answer the application and indicate whether he or she intends to oppose it or pursue alternative dispute resolution processes; this delay may extend to 30 days if the defendant has no domicile, residence or establishment in Quebec.

The courts are experiencing capacity issues affecting their ability to list disputes in a timely manner and leading to problems in regard to access to justice. Delays can vary greatly depending on the type of matter being tried and the judicial district in which the suit is introduced. The new rules of civil procedures are aimed at improving access to justice and encourage private prevention and resolution processes before parties refer their disputes to the court and during the litigation process. Moreover, the Quebec government is currently considering increasing the budget allocated to Quebec’s judicial system in order to increase judicial resources and decrease waiting times to obtain dates for interlocutory motions and trials.

Timetable

What is the typical procedure and timetable for a civil claim?

Within 45 days from the service of the originating application (or possibly three months if the defendant has no domicile, residence or establishment in Quebec), the parties are required to cooperate to either arrive at a settlement or establish a case protocol where they set out in detail their agreements and undertakings regarding the orderly progress of the proceeding. They must agree on specific pretrial steps and the time required to complete them, all within the six-month peremptory time limit for setting the case down for trial and judgment. However, the parties can file a motion to extend this six-month deadline.

Some originating applications, such as applications for homologation or for judicial review, must be presented before the court at a specified date. However, it is possible for the parties to agree on a different presentation date and, in urgent situations, for the court to decide on a different date.

Grounds of defence are typically disclosed in a succinct text included in the case protocol. Leave may be obtained to file a more detailed written defence where the case presents a high level of complexity or where special circumstances warrant.

Case management

Can the parties control the procedure and the timetable?

Parties generally have control of their case with regard to the choice of procedure and the time limits prescribed, subject notably to the principles of proportionality and cooperation. The case protocol covers, inter alia, preliminary exceptions and safeguard measures, procedure and time limits for the communication of exhibits, the number, timing and length of examinations on discovery, expert appraisals, any planned or foreseeable incidental proceedings, the oral or written form of the defence and the time limit for its filing. However, the court may intervene to facilitate the progress of the proceedings and to ensure proper management of the case, particularly if the parties are unable to agree upon the case protocol or seek an extension of the six-month limit to set the case down for trial and judgment.

The number and length of examinations on discovery are typically limited. Where expert evidence is necessary, the parties must jointly seek the opinion of a single expert on a given matter, or submit their reasons for not doing so to the assessment of the court.

Evidence – documents

Is there a duty to preserve documents and other evidence pending trial? Must parties share relevant documents (including those unhelpful to their case)?

All exhibits to which a party intends to refer at the hearing must be communicated to all parties. Exhibits supporting a written proceeding must be disclosed in a notice attached to the proceeding. The procedure and the time limits for communicating exhibits are determined by the parties in the case protocol. Documents that a party does not intend to use at trial need not be disclosed to the adverse party unless requested during discovery.

There are rules against spoliation of evidence pending trial, and parties are duty-bound to cooperate, to inform each other of the facts on which their contentions are based and which they have in their possession, and to make sure that relevant evidence is preserved.

Evidence – privilege

Are any documents privileged? Would advice from an in-house lawyer (whether local or foreign) also be privileged?

A party cannot obtain the communication of documents that are privileged, unless the privilege is waived. For example, confidential communications between a lawyer and his or her client for the purpose of obtaining legal advice are generally privileged, including such communication with an in-house lawyer. Other communications may be privileged, such as those concerning negotiations of out-of-court settlements and information prepared or collected principally in contemplation of anticipated or ongoing litigation. Confidential documents may also be afforded certain protections, but such substantial and legitimate interests are analysed on a case-by-case basis.

Evidence – pretrial

Do parties exchange written evidence from witnesses and experts prior to trial?

The parties and their attorneys have the right to conduct oral or written examinations on discovery of the adverse parties, their representatives or any other person. The consent of the other parties or a judge’s authorisation may be necessary in some cases. Before or during the examination, the attorneys may ask for the communication of relevant documents relating to the issues. Any expert’s report must be communicated to the other party before the matter is set down for trial. Experts generally are not discoverable prior to trial.

Evidence – trial

How is evidence presented at trial? Do witnesses and experts give oral evidence?

Ordinary witnesses provide oral testimony at trial. However, a written statement may be accepted as testimony by the courts subject to certain conditions, especially when the testimony is of secondary interest or uncontested. Other parties may demand that the party having communicated the statement summon the witness to the hearing.

An expert report is expected to be self-standing and constitute the essence of the testimony in chief of the expert witness. Except with leave of the court, the communication and filing of the expert’s report are necessary before an expert witness will be permitted to testify. Parties adverse in interest have a right to cross-examine the expert witness, and the party summoning him or her may request that some oral testimony be given in chief or counter-proof as a matter of clarification.

All exhibits previously communicated to the adverse parties must be produced in evidence by a witness according to the rules of evidence, or admitted by the adverse party.

Interim remedies

What interim remedies are available?

The Code of Civil Procedure authorises the plaintiff to seise before judgment the property of the defendant, with leave of the court. This measure will be permitted if there is reason to fear that without this remedy the recovery of the debt may be put in jeopardy. A plaintiff may also seise before judgment, without leave, property over which he or she has specific rights set out by law. Seised property is put in the hands of a guardian chosen by the officer charged with the seizure.

In addition, courts may grant interlocutory injunctions. An interlocutory injunction will be granted if the applicant appears to be entitled to it, and it is considered to be necessary in order to avoid serious or irreparable injury to him or her, or to avoid a factual or legal situation of such a nature as to render the final judgment ineffectual. The court will also consider the balance of convenience and the urgency of the situation. Both Anton Piller and Mareva injunctions are also available in Quebec.

These remedies may be available in support of foreign proceedings.

Remedies

What substantive remedies are available?

Courts have the power to order specific performance and to award monetary damages such as compensatory and punitive damages, when available, and to make appropriate orders to deal with cases for which no specific remedy is provided by law. Specific performance is a primary remedy under the Civil Code of Quebec, and the court may issue mandatory orders, injunctions or reprimands, order writings to be suppressed or declare them libellous, etc.

In general, a money judgment bears interest from the date of default. The interest may be charged at the rate stipulated in the contract or, if no rate is stipulated, at the legal rate together with an additional indemnity provided by law.

Enforcement

What means of enforcement are available?

Once the decision is enforceable, the judgment creditor has to follow the procedure for compulsory execution. A judgment must be executed by a bailiff pursuant to a notice of execution, who will seise the debtor’s property in the name of the judgment creditor. The procedure will vary depending on the type of property being seised (such as real or personal property, wages, securities). In the case of a real action, procedures exist to allow the judgment creditor to take possession of the property of which he or she has been declared owner, and to be registered as owner.

A party who disobeys any process or order of the court may be guilty of contempt of court. This person is liable to a maximum fine of C$10,000 per day, or C$100,000 per day for legal persons or partnerships, or to imprisonment for a maximum period of one year, in addition to damages in certain circumstances.

Public access

Are court hearings held in public? Are court documents available to the public?

Court hearings are public and the documents filed with the courts are accessible to the public. However, exceptionally, courts have the discretion to order in camera proceedings or the sealing of documents when required to protect morality, public order, or substantial and legitimate interests such as trade secrets. Furthermore, in family matters including protection of minors, court hearings are held in camera unless the court orders otherwise in the interests of justice.

Costs

Does the court have power to order costs?

The losing party may be ordered to pay legal costs. However, the court has discretion to reduce or refuse such an award of costs, or even order the winning party to pay them in whole or in part.

Recoverable legal costs may include the disbursements that were paid to file certain written pleadings with the clerk of the court, to indemnify witnesses and expert witnesses for their time and for the preparation of their reports, and to pay the expenses for stenography or the recording of the hearing. In general, the recoverable costs do not include extrajudicial expenses or fees such as attorneys’ fees.

Claimants from outside Quebec are commonly required to provide security for the defendant’s judicial costs.

Funding arrangements

Are ‘no win, no fee’ agreements, or other types of contingency or conditional fee arrangements between lawyers and their clients, available to parties? May parties bring proceedings using third-party funding? If so, may the third party take a share of any proceeds of the claim? May a party to litigation share its risk with a third party?

Subject to certain exceptions, there is no prohibition regarding private agreements for the payment of expenses incurred during a lawsuit, and both contingency and conditional fee arrangements are common. At present, quota litis agreements appear to be valid in Quebec, except in a few circumstances (for instance, in alimony claims in family matters) where they have been declared against public order.

Where litigious rights are sold, the person from whom they are claimed is fully discharged by paying to the buyer the sale price, costs and interest.

Insurance

Is insurance available to cover all or part of a party’s legal costs?

Insurance for legal expenses is available as a private insurance policy but is not widely used.

Class action

May litigants with similar claims bring a form of collective redress? In what circumstances is this permitted?

The institution of a class action requires the authorisation of the court, which will be granted when the court is satisfied that:

  • the recourses of the members raise identical, similar or related questions of law or fact;
  • the facts alleged seem to justify the conclusions sought;
  • the composition of the group makes it difficult or impracticable to proceed by joining individual lawsuits or obtaining mandates from each claimant; and
  • the member to whom the court intends to ascribe the status of representative is in a position to represent the members adequately.

These criteria are interpreted liberally in favour of the authorisation of the proposed class action.

With the authorisation of the court, the representative of the group conducts the class action in accordance with the ordinary rules of procedure. Class actions are widely used in cases involving consumer protection, including product liability and securities law.

Appeal

On what grounds and in what circumstances can the parties appeal? Is there a right of further appeal?

A final judgment from the Superior Court or the Court of Quebec may be appealable to the Quebec Court of Appeal.

Leave to appeal will be required, notably, where:

  • the value of the object of the dispute is less than C$60,000;
  • the judgment or order rendered concerns a non-contentious matter;
  • the judgment rendered denies an application for forced or voluntary intervention of a third person;
  • the judgment rendered rules on legal costs awarded to punish a substantial breach;
  • the judgment or order rendered rules on a motion to quash a seizure before judgment;
  • the judgment or order is rendered on an issue of execution;
  • the judgment or order rendered concerns judicial review; or
  • the judgment dismisses an action because of its abusive nature.

A judge of the Quebec Court of Appeal will grant leave to appeal if the matter at issue is a question of principle, a new issue or a question of law that gives rise to conflicting judicial precedents.

Furthermore, an interlocutory order may be appealed with leave when it decides in part the merits of the case, orders the doing of anything that cannot be remedied by the final judgment or when it unnecessarily delays the trial of the suit. However, an appeal from an interlocutory judgment dismissing an objection to evidence based on disclosure of privileged information is appealable as of right.

The appeal must generally be brought within 30 days of the date of the judgment at first instance.

A judgment of the Quebec Court of Appeal in a civil matter may be reviewed by the Supreme Court of Canada only with leave to appeal given in cases involving a question of public importance or raising an important issue.

Foreign judgments

What procedures exist for recognition and enforcement of foreign judgments?

For the recognition of foreign judgments, the court verifies whether the decision meets the requirements prescribed in the Civil Code of Quebec without entering into any examination of the merits of the decision. According to the Civil Code of Quebec, a foreign judgment will be recognised, except in the following circumstances:

  • the tribunal of the country where the decision was rendered had no jurisdiction under the provisions of the Civil Code of Quebec;
  • the decision is subject to ordinary remedy or is not final or enforceable at the place where it was rendered;
  • the decision was rendered in contravention of the fundamental principles of procedure;
  • a dispute between the same parties, based on the same facts and having the same object, has given rise to a decision rendered in Quebec, whether it has acquired the authority of a final judgment (res judicata) or not, or is pending before a Quebec authority that was first seised of the dispute, or has been decided in a third country and the decision meets the necessary conditions for recognition in Quebec;
  • the outcome of the foreign decision is manifestly inconsistent with public order as understood in international relations; or
  • the decision enforces obligations arising from the taxation laws of a foreign country.

Furthermore, a foreign judgment may not be recognised if the decision was rendered by default, unless the plaintiff proves that the act of procedure initiating the proceedings was duly served on the defendant in accordance with the law of the place where the decision was rendered.

Foreign proceedings

Are there any procedures for obtaining oral or documentary evidence for use in civil proceedings in other jurisdictions?

Foreign litigants may be allowed to obtain evidence from Quebec witnesses, under certain conditions, when it is shown that a court of a foreign country before which a case is pending desires to have such evidence. This is shown by the presentation of letters rogatory from the foreign court. There are restrictions concerning obtaining business records and removing them from Quebec.

Arbitration

UNCITRAL Model Law

Is the arbitration law based on the UNCITRAL Model Law?

Arbitration in Quebec is governed by the Civil Code of Quebec and the Code of Civil Procedure, which are based on the UNCITRAL Model Law.

Arbitration agreements

What are the formal requirements for an enforceable arbitration agreement?

The Civil Code of Quebec specifies that an arbitration agreement must be in writing to be enforceable. This requirement is satisfied if, in an exchange of communications or during judicial proceedings, the parties undertake to submit a present or future dispute to the decision of one or more arbitrators, to the exclusion of the courts.

Choice of arbitrator

If the arbitration agreement and any relevant rules are silent on the matter, how many arbitrators will be appointed and how will they be appointed? Are there restrictions on the right to challenge the appointment of an arbitrator?

If an arbitration agreement is silent concerning the nomination of the arbitrator, there will be one or three arbitrators: the parties will jointly agree on an arbitrator, or each party will appoint an arbitrator who will then together appoint the third. The court will appoint an arbitrator when one of the parties fails to nominate an arbitrator within 30 days after having been notified to do so or when the arbitrators fail to concur on the choice of the third arbitrator within 30 days after their appointment.

A procedure is specified to challenge the appointment of an arbitrator if a cause of recusation exists, such as if the arbitrator does not have the qualifications agreed to by the parties or is in conflict of interests.

Arbitrator options

What are the options when choosing an arbitrator or arbitrators?

Arbitrators must be impartial and unbiased. The parties usually choose the arbitrator (or arbitrators) in light of the specific areas of law or fact involved, the location of the parties, and the experience of the arbitrator. Arbitrators are often lawyers, but no specific accreditation or training is required. Many former judges and senior members of the Bar offer their services as arbitrators.

Arbitral institutions that are active in Quebec include the Canadian Commercial Arbitration Centre, the Institut de Médiation et d’Arbitrage du Québec, the ADR Chambers, the ICC Canada Arbitration Committee, and the Association of Maritime Arbitrators of Canada. These organisations have directories of members who may serve as arbitrators. Many law firms also have partners or counsel who act as arbitrators.

Arbitral procedure

Does the domestic law contain substantive requirements for the procedure to be followed?

The procedure to be followed is determined in the arbitration agreement or by the arbitrators, failing which the Code of Civil Procedure provides for the basic procedure. These rules concern the nomination of arbitrators, the statement of the parties’ claims, the communication of exhibits, the notice of the date of the hearing, the summoning of witnesses, the consequences of the default of a party and the form of the award.

The principle of proportionality applies to arbitral procedure.

Court intervention

On what grounds can the court intervene during an arbitration?

If requested by one of the parties, a court may intervene during arbitration proceedings to grant provisional measures, to assist in the appointment or recusation of the arbitrators, to decide on the competence of the arbitrators after the arbitrators have determined the issue, to homologate an arbitration award or to annul it. The power of the court with respect to homologation or annulment of the arbitration award may not be overridden by an arbitration agreement. The arbitrator, or a party with leave of the arbitrator, may request the assistance of the court to obtain evidence.

Interim relief

Do arbitrators have powers to grant interim relief?

Subject to the terms of the arbitration agreement, the arbitrators have all the necessary powers for the exercise of their jurisdiction, including the power to render safeguard, interlocutory and accessory decisions. This would include the power to make orders to preserve assets or documents, subject to the jurisdiction of the Superior Court to issue injunctions, authorise seizures before judgment and appoint judicial sequestrators.

Award

When and in what form must the award be delivered?

The arbitration award must be written and signed by the arbitrators. The reasons upon which the award is based must be stated unless there are specific stipulations to the contrary in the arbitration agreement.

Appeal

On what grounds can an award be appealed to the court?

There is neither appeal nor judicial review against an arbitration award. The only recourse possible is annulment. For an annulment, it is necessary to file a motion to the court within three months following the reception of the arbitration award or to oppose the motion for homologation of the arbitration award. The grounds for annulment are similar to the grounds for refusing homologation, which are described below.

Enforcement

What procedures exist for enforcement of foreign and domestic awards?

A foreign or domestic arbitration award cannot be executed unless it is homologated by a court. For the homologation of the award, courts do not inquire into the merits of the dispute. Courts must homologate an award unless:

  • one of the parties was not qualified to enter into the arbitration agreement;
  • the arbitration agreement is invalid under the law elected by the parties or, failing any indication in that regard, under the laws of Quebec;
  • the party against which the award is invoked was not given proper notice of the appointment of an arbitrator or of the arbitration proceedings, or was otherwise unable to present his or her case;
  • the award deals with a dispute not contemplated by or not falling within the terms of the arbitration agreement, or it contains decisions on matters beyond the scope of the agreements;
  • the mode of appointment of the arbitrators or the applicable arbitration procedure was not observed; or
  • in the case of a foreign award, it has not yet become binding on the parties or has been set aside or suspended by a competent authority of the place or pursuant to the laws of the place in which the arbitration award was made.

The court can also refuse homologation of its own motion if it finds that ‘the matter in dispute cannot be settled by arbitration in Quebec or that the award is contrary to public order’.

The homologated arbitration award is executed as a judgment of the court.

Costs

Can a successful party recover its costs?

In general, subject to the terms of the arbitration agreement, arbitrators have discretion to award costs. Arbitrators are not required to divide the costs equally among the parties.

Recoverable costs are usually established in the arbitration agreement.

Alternative dispute resolution

Types of ADR

What types of ADR process are commonly used? Is a particular ADR process popular?

In Quebec, arbitration and mediation are common. At any stage of the proceeding, the Code of Civil Procedure provides that the parties may request the designation of a judge to preside over a settlement conference. This settlement conference will facilitate dialogue and help them identify their interests, negotiate and explore solutions. If the parties reach a settlement, it will be homologated by the judge. Private mediation and arbitration services are widely available.

Requirements for ADR

Is there a requirement for the parties to litigation or arbitration to consider ADR before or during proceedings? Can the court or tribunal compel the parties to participate in an ADR process?

Participation in an ADR process is always voluntary, but parties must consider private prevention and resolution processes before referring their dispute to the courts. In family matters, attendance at an information session about mediation is mandatory.

In addition, the court may recommend participation in mediation in any matter. They may do so at the time of the presentation of the action or application after examining the questions at issue.

Miscellaneous

Interesting features

Are there any particularly interesting features of the dispute resolution system not addressed in any of the previous questions?

Unlike other Canadian provinces, relations between private parties are generally governed by the Civil Code of Quebec according to rules originally inspired from the French civil law tradition. The judicial and procedural law of Quebec is derived from a mix of French, English and other legal traditions. Quebec has a notarial profession based upon the civil law tradition.