Article Volume 8:1

Some Problems of Civil Procedure

Table of Contents

SOME PROBLEMS OF CIVIL PROCEDURE

The Hon. George S. Challies*

Examination on Discovery

This procedure, of English origin, extremely important as a method of
limiting the issues before trial and often productive of settlements, has gradually
been both extended and simplified. Today our discovery procedure differs
considerably from that in England.

Examination after plea dates from the introduction of the Code, while
examination before plea was first introduced as an amendment in 1926 and
originally required a motion. The jurisprudence became extremely confused
as to when an examination before plea could be held and whether or not an
affidavit was necessary. On 21 February 1958,1 an amendment greatly simplified
the situation by permitting examination on mere notice as had always been
the case for examination after plea.

Many useful suggestions have been made for further improvements including

the following:

1. Alter the list of persons subject to examination so that the same persons

would be subject to both types of examination;

2. Require notice of examination to the attorneys of all the parties in cases
where there are plural defendants, in view of the judgment of the Supreme
Court in Jett6 & Larocque v. Trudel-Dupuis,2 which permits the evidence of one
defendant to avail in favour of plaintiff against the other defendant.

3. Extend the paragraph dealing with actions resulting from an offence or
quasi-offence to permit the examination of the person in charge of the thing
or animal which suffered damage,-which is not now possible.3

4. Replace the words “facts relating to the claim” by “facts relating to
the demand or to any possible defence” to permit a defendant before plea to
ask questions not only about the declaration, but also about a possible defence
to the action, in order to encourage settlements;4

5. Permit, on motion to the court, more than one examination after plea

if justice so requires;

6. Adopt the rule of the Common Law provinces that the deposition on
discovery does not automatically form part of the record and thus remove the
danger presently existing that a defence lawyer by examining plaintiff on

*The Hon. George S. Challies of the Superior Court.
16-7 Eliz. II S.Q. 1957-58, c. 43.
211959] S.C.R. 428.
3Gagni v. Montrfal [1945] R.P. 294, Surveyer J.; Beaudoin v. Brassard (1938) 42 R.P. 1, Forest J.
4Vcber, S. W., “Problems in Civil Procedure” (1950) 10 R. du B. 24.

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discovery as defendant’s witness may open the door to testimony in cases
where it would not otherwise be admissible.5

Medical Examination

To remedy certain shortcomings in the present procedure as revealed by

the jurisprudence a number of valuable recommendations have been made:

1. Extend the examination to permit a physical or mental examination of
any party or of the victim of an offence or quasi-offence, whenever the physical
or mental condition of such party or victim is in issue. At the present time a
medical examination cannot be ordered in an action to annul a marriage.’
Neither can it be ordered where a husband sues solely for the loss of services
of his wife who was injured in an accident; 7

2. Permit the examination by more than one physician or surgeon if the
needs of the case so require. At present there is pending in the District of
Chicoutimi a case where the victim of a grave motor accident is under the
care of a neurologist, an internist, a gynecologist and an orthopedist. The
defendant’s attorney says, with reason, that no one doctor can be qualified to
advise him or the court on the gravity of the injuries to a person under the
care of four specialists;

3-Provide for a second or further medical examination as now permitted
by section 74 of the Ontario Judicature Act. Additional examinations have
been repeatedly refused by our courts;”

4. Permit a party to obtain and make copies of the records of specified
hospitals relating to the physical and mental condition of the person examined,
when neither the hospital nor a doctor is a party to the action. This is permitted
in section 1493 of the new Louisiana code of procedure and in section 35 of
the U.S. Federal rules but has been refused in Quebec.’

Other Forms of Discovery

The suggestion has been made that Discovery of Documents under art. 289
be on notice and not by motion, and that it should be possible to force a third
party, in possession of a writing pertinent to the issues, to produce it in the
record prior to the trial as provided in rule 350 of the Ontario Rules of Practice.
5College Ste Marie v. Racette [1944] R.L. 129 (K.B.). See also Meredith, “Examination on

Discovery” (1958) 5 McGill L.J. 54.

IM. v. M. [1948] S.C. 364, Collins J.; Fraser v. Rexford (1941) 45 R.P. 398, SurveyerJ.
7Gravel v. Dufour [1945] R.P. 114, Boulanger J.
‘Vallfe v. Villede Vald’Or [1959] R.P. 126, MarquisJ.; Cartierv. Thivierge [1952] R.P. 122, DrouinJ.;
Moodie v. M.T.Co. [1949] R.P. 80, Surveyer J.; Batrie v. Prudential Insurance Co. of America [1944]
K.B. 289; Mutual Life of N.Y. v. Lefebvre [1942] K.B. 266; Roussell v. Bell Tel. Co. [1939] R.P. 327,
Suveyer J.

‘Barton v. Steinberg’s [1953) R.L. 158, Montpetit J.

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PROBLEMS OF CIVIL PROCEDURE

Another shortcoming in our present procedure is that a party may not now’0
before trial obtain permission to visit premises and make tests on any object as
is permitted in Order 50 rule 3 of the English rules and in rule 34 of the U.S.
Federal rules.

Peremption

At the present time peremption is a sword of Damocles hanging over the
head of every busy lawyer. If he represents plaintiff and fails for two years to
take a useful proceeding the suit may, on motion, be perempted and dismissed.
Two years goes by remarkably quickly and once the motion is served and filed
it is too late to take a proceeding.

Understandably enough a court is unwilling to perempt and much time is

spent by the courts in endeavoring to find a legal reason for not perempting-
often, alas, unsuccessfully. Members of the Bar are often placed in a very
awkward position-between their duty to a client defendant and their unwil-
lingness to perempt a confrere.

Many requests have been made for a basic change in the law which would
require a notice of 30 days to plaintiff’s lawyer before a motion for peremption
can be presented, and permit peremption to be avoided by any useful proceeding
taken before the expiration of the 30 day period.

Continuance of Suit

The present procedure is unnecessarily complicated requiring a petition by
the person who has the right to continue a suit. If he fails so to do the opposite
party must institute a separate action to compel him.

The Avant-projet in art. A.P. 249 provided a much simpler method for
the person wishing to continue-viz-by filing an appearance and an affidavit
setting forth the facts which have given rise to the continuance.

If the person who should continue the suit fails to do so, it has been suggested
that the other party should be able, instead of taking a separate action, to
implead the person in default by a simple motion accompanied by copies of
the written pleadings.

Preliminary Exceptions

Preliminary exceptions, or their equivalent, are found in the procedural
rules of all jurisdictions. In Ontario, for instance, rule of practice 184 provides
that non-compliance with the rules shall not render a proceeding void but it
may be set aside or amended or otherwise dealt with as may seem just. Under
1 0Gareau v. Montreal Street Ry. Co. (1899) 8 Q.B. 409; Dubois v. Horsfall (1900) 18 S.C. 138, Mathieu
J.; Adams v. Prijent (1901) 3 R.P. 516, B3Ianger J.; Belair v. Dominion Textiks (1909) 15 R.L.n.s. 264,
Davidson J.; M.L.H.P.Co. v. Outremont (1932) 35 R.P. 364, Stackhouse J.; Dion v. Lessard [1951]
R.P. 49, Casgrain J.; Phoenix Assurance Co. v. Montreal [1952] R.P. 313, Garneau J.; Beaudet v. Bedard
[1955] R.P. 87, Smith J.

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this rule, some matters are disposed of which are dealt with in the province
of Quebec as preliminary exceptions. The new Code of Civil Procedure of
Louisiana which came into force in 1960 contains 14 Articles on preliminary
exceptions which do not differ greatly from those in Quebec.

Preliminary exceptions do lead to a great deal of unjustified delay and it is
probably for this reason that one hears from time to time suggestions that they
be done away with. A little reflection indicates that this is not possible. For
instance, it would seem illogical to proceed to the merits in an action taken
against a minor not a commergant and not represented by a tutor, and it is
much better to dispose of the matter of minority by preliminary exception.
At the present time, there are four classes of preliminary exceptions and
there is much to be said for reducing the number to three as in Louisiana,
namely: declinatory exceptions, exceptions to dismiss the action and dilatory
exceptions.

Among the suggestions that one hears from time to time which merit

serious consideration, are the following:

1. Oblige all exceptions to be urged together and in the same proceeding;
deciding the declinatory exception first and then, if it is not maintained or
there is no declinatory exception, deciding all the other exceptions at the
same time.

2. Extend the delay for filing preliminary exceptions. The present three
day delay appears to be totally insufficient and it has been recommended that
the delay should be six days or even ten days from the return of the action.
3. Abolish the deposit provided by art. 165 C.C.P. which causes many

complications which are not compensated by other advantages.

4. Abolish art. 167 to 169 which permit the plaintiff to insist on the filing
of a plea to the merits if he believes that the exception has been made merely
for delay. This article is very rarely invoked and there are substantially no
reported cases on the matter.

5. Abolish the fifth ground for an exception to the form under art. 174
C.C.P. namely “the fact that a statement of the causes of action is not contained
in the writ or the declaration”.
If there is no statement of the grounds of
action, a total inscription in law will lie and if there is only a partial descrip-
tion, the matter can be cured by a motion for particulars or a motion to amend.
6. The matter of irregularities in the writ, declaration or service presently
found in art. 174-1 makes no distinction between matters of form which are
indispensable, the failure to fulfil which leads inevitably to nullity, and in-
formalities which can be rectified. It has been suggested that indispensable
formalities should be dealt with separately from less serious formalities.

7. The third ground of art. 177 that the plaintiff has contravened the rule
that the parties must remaih in their respective positions, has been raised only

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PROBLEMS OF CIVIL PROCEDURE

once in the many years covered by the annotated Codes of procedure.” A recent
study of preliminary exceptions recommended 12 that this paragraph be dropped.
8. Res Judicata is a ground of exception in the new Louisiana Code and
some people believe that it could, with advantage, be made a ground of excep-
tion in Quebec.

9. A preliminary exception that demands the filing of a power of attorney
appears to some observers to be an unnecessary proceeding. The mandate of
the attorney of a Quebec resident cannot be questioned by third parties and
one wonders why different rules should apply to non-residents. The important
thing is to oblige a non-resident to post security for costs.

10. No provision is made, except by implication, for motions for particulars,
motions to produce documents, or motions to strike. There is a very vague
reference in the third paragraph of art. 165 which merely states that no deposit
is required upon such motions, thereby implying that they are not treated as
preliminary exceptions. It may be well that all these matters should be added
to dilatory exceptions.

11. Finally it has been suggested by some that the dilatory exception is
not an appropriate method to call in warrantors and that this subject could be
advantageously dealt with under interventions.

Amendments

Art. 522 which provides that no amendment may change the nature of the
action is a mischievous provision which should be repealed. The rule is based
upon a misunderstanding of English law. 13 Jurisprudence 4 by some mysterious
process has concluded that an allegation in a declaration that an automobile
was negligently driven by the driver cannot be amended to allege negligence
on the part of the pr~pos6 of the owner.

The necessity of a substantial broadening of the field of amendments is
illustrated by the recent case of Dalpi v. Benoit,’5 where due to an oversight, a
defendant was served with a writ but no declaration. An exception to the
form was maintained, the action dismissed and permission to serve the declara-
tion later refused on the ground that the right of action was prescribed when
permission was sought.

“Edwards v. Le Petit Seminaire de Ste-Marie de Monnoir (1910) 12 R.P. 24, Lafontaine J.
12Bergeron, T. L., “Trait6 de Procedure Civile, – Exceptions Pr&liminaires”

[1960] R.L. 401,

at p. 423.

“3Lemay, “La demande en justice –

sa structure, son amendement, au si&le dernier et en 1960”,

(1961) 4 Les Cahiers de Droit, at p. 86.

‘4Racicot v. Cartier [1961] Q.B. 596; Dion v. Gosselin (1937) 62 K.B. 149; Vaillancourt v. Quebec City

Flying Club [1954] Q.B. 766.

15[1961] Q.B. 683.