On March 15, 2023, the National Assembly of Québec adopted Bill 8, "An Act to improve justice efficiency and accessibility, in particular by promoting mediation and arbitration and by simplifying civil procedure in the Court of Québec" (the "Act").
The Act's purpose is to reduce the backlog in courts of first instance and simplify the rules of civil procedure applicable in the Court of Québec, both in the civil chamber and the small claims division. To achieve this, the Legislator is continuing its initiative begun in 2016 with the reform of the Code of Civil Procedure (c. C-25.01), by prioritizing the use of private dispute prevention and resolution processes.
In fact, the Act makes substantive and concrete changes to the Code of Civil Procedure (the "C.C.P."). These procedural changes, most of which come into force on June 30, 2023, could well have a significant impact on the way disputes are dealt with and managed in the future.
Please note that this article should not be considered an exhaustive analysis of all the changes made by the Act, as it is merely a summary of some of the changes made to the C.C.P.
Mediation and expedited hearing of cases
Articles 4 and 7 of the C.C.P., which deal with private dispute resolution processes, now provide that cases which, before the institution of judicial proceedings, were the object of a mediation or where the parties agreed to a pre-court protocol, are to be tried by the courts on a priority basis.
This change appears to apply to proceedings in both the Court of Québec and the Superior Court. Thus, a plaintiff who wants its case quickly resolved has every interest in resorting to mediation before instituting judicial proceedings, because even if mediation fails to result in a settlement, the case should, in theory, be given priority treatment when it comes to scheduling the trial. However, it is not clear from the Act how the courts will give practical effect to this promise of priority treatment.
Jurisdiction of the Court of Québec
The Act also makes some changes to the monetary threshold for the exclusive and concurrent jurisdiction of the Court of Québec. The Court of Québec will now have exclusive jurisdiction to hear cases where the amount claimed or the value of the matter in dispute is less than $75,000, as opposed to the current threshold of $85,000.
The Act also provides that the Court of Québec has concurrent, and not exclusive, jurisdiction with that of the Superior Court where the amount or value at issue is equal to or exceeds $75,000 but is less than $100,000. It will be up to the plaintiff to decide which court to sue in. These amounts are to be indexed annually.
It should also be noted that claims for less than $85,000 instituted in the Court of Québec before June 30, 2023, will continue to proceed in that court and be governed by the provisions of the C.C.P. as in effect before that date.
These changes to article 35 C.C.P. and to the Court of Québec's jurisdiction are directly related to the Supreme Court of Canada's decision in Reference re Code of Civil Procedure (Que.), art. 35, where the country's highest court declared that the $85,000 threshold was unconstitutional as it was too high and conflicted with section 96 of the Constitution Act, 1867.
Pre-trial examination in cases involving less than $50,000
The Act also amends article 229 C.C.P. by prohibiting pre-trial examinations in cases where the amount in dispute is less than $50,000, as opposed to the current $30,000 limit. This provision appears to apply to both written and oral examinations.
It should be noted that the Barreau du Québec, Quebec's law society, objected to this change, as it considers the currently applicable threshold of $30,000 to be sufficient, and that it should be maintained. It will be interesting to see if a judicial challenge to this amendment emerges.
Special procedural rules applicable to civil claims in the Court of Québec
The Act also introduces special procedural rules applicable to civil claims instituted in the Court of Québec, in order to simplify the conduct of proceedings. To that end, the Act provides in particular:
- Agreeing to a case protocol is no longer required, as the C.C.P. establishes the time limits for completing certain procedural steps, including the deadline for filing a brief outline of the defendant's arguments and for disclosing exhibits to the other parties.
- The originating application cannot exceed five pages in length, and only in exceptional cases will the court authorize the addition of supplementary pages. Similarly, the brief outline of defence arguments cannot exceed two pages in length, or seven pages if the defendant makes a cross-application.
- In cases where the amount at issue is less than $50,000, if an expert's opinion is necessary, the parties must seek a joint opinion. If a party wishes to be exempt from this rule, it must obtain the court's authorization.
- In lieu of the testimony of its witnesses on the facts of the dispute, a party may produce an affidavit from the witness of no more than five pages in length, provided the affidavit has been notified to the other parties beforehand.
- A settlement conference must be held after the complete record of the defence is filed, but not earlier than 120 days, nor later than 150 days, from service of the summons on the defendant. The parties may be exempted from this requirement if the court considers it justifiable under the circumstances, or if the parties have already gone through mediation, before or during the judicial proceedings.
- If no settlement is reached during the settlement conference, it will be converted into a pre-trial conference.
Changes to how the small claims division operates
The Act provides that in certain cases, files instituted in the small claims division of the Court of Québec where the value of the matter in dispute is less than $15,000 are automatically and obligatorily referred to mediation. If this process does not lead to a settlement, the mediator may refer the parties to an arbitrator at no additional cost.
In addition, at any point in the proceedings for recovering a claim of $3,000 or less, the court may, with the parties' consent, render judgment on the face of the record.
These changes and many others are intended to reduce wait times in the Court of Québec's small claims division to six to nine months, as opposed to the province's current average wait time of some 22 months.
The Act could send a shock wave through the ranks of both litigation lawyers and litigants in Quebec, as the changes it makes to the Code of Civil Procedure are substantive and concrete.
It will be very interesting to follow developments brought about by the Act and its impact on the day-to-day management of court cases. It is for example quite possible that the Act will create strong demand for the services of mediators, as even if no settlement is reached, using this private dispute resolution process will speed up the judicial handling of a file, which may afford strategic advantages to a party. By the same token, for strategic reasons a party may decide to institute proceedings in the Court of Québec where the value of the matter at issue is more than the threshold of $75,000.
In closing, it should be noted that judges of the courts of justice who are appointed by the Québec government may be notaries with at least ten years' practice, which was not permitted before the Act was assented to on March 15, 2023, when this role was reserved exclusively for members of the Barreau du Québec.
For more information on the Act or if you have any questions of a legal nature pertaining to the management or resolution of civil or commercial disputes, please contact Gowling WLG's litigation team for assistance.
See in this regard section 7 of Bill 8 and new articles 535.1 to 535.15 C.C.P.