THE NEW QUEBEC CODE OF CIVIL PROCEDURE:
SOME COMMENTS AND SUGGESTIONS
Perry Meyer *
On Tuesday, July 14, 1964, the Quebec Legislative Assembly gave
first reading to Bill 20, a massive new code of civil procedure. The
three commissioners charged with the preparation of the Code’ had
been appointed on March 30, 1960. They held hearings, received sub-
missions, and studied the procedural laws in force in other jurisdic-
tions. While still involved in the preparation of a new draft Code,
they came to the conclusion that certain measures should be adopted
immediately, and these were embodied in a preliminary report; many
of these suggestions were adopted by the legislature without delay.
Thus the increase in the jurisdiction of the Magistrate’s Court from
$200 to $500 together with an appeal from its judgments in cases
involving $200 or more, on questions of law only, was enacted but not
promulgated, pending the outcome of a reference to the courts on the
constitutionality of the increase; the Quebec Court of Appeal heard
the case some months ago, but has not yet rendered its judgment.
Similarly, in accordance with the Commissioners’ recommendation,
the period for peremption was reduced from two years to one, with
a preliminary notice of 30 days being required before presentation
of the motion, and plaintiff may now cover his default at any time
before judgment thereon.2 Again, the rules dealing with amendments
were revised at the same time, so that now only amendments intro-
ducing an entirely new claim, having no connection with the original
demand, are prohibited.
In February, 1964, the Quebec government received the first part
of the Commissioners’ final report, and it is this first part which has
been reproduced as Bill 20. The rest of the Commissioners’ Report has
been fyled in Quebec, but at the time of writing, legislation covering
the remaining areas of the new Code has not yet been introduced. Con-
sequently, Bill 20 does not represent the entire Code proposed by the
Commissioners, but only a significant portion of it – Books One to
Four out of a total of six. It is considered likely that Books 5 and
* Of the Bar of Montreal, Associate Professor, Faculty of Law, McGill Univer-
sity.
1The Hon. Mr. Justice Garon Pratte of the Quebec Court of Appeal; The
Hon. George S. Chlallies, Associate Chief Justice of the Quebec Superior Court;
and Mle Albert Leblanc, former Dean of the Faculty of Law at the University
of Sherbrooke, and a former Bfitonnier of the Province.
2 This was adopted in 1963 by 12 Eliz. II, c. 63.
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6 will be incorporated in Bill 20 at the next session of the Legis-
lature.
The first thing that comes to mind in connection with Bill 20 is
that the Commissioners deserve the warm thanks and congratulations
of the community as a whole, particularly of the Bar and the Bench.
If adopted, the new Code, while not making a clean sweep, will go a
long way towards streamlining our system of justice and bringing it
into line with the most modern and advanced procedural systems in
existence today. It is to be hoped that the proposed innovations will
not meet with obstruction on the basis of tradition, conservatism and
habit, but will be considered objectively and scientifically. On this
basis, there should be a large measure of acceptance and agreement
possible, and the new Code could be enacted at the earliest available
opportunity.
A comparison of the present Code, enacted in 1897, and the new
Code shows that while the present Code is divided into 74 chapters
grouped in eleven parts, the proposed Code is shorter, and is composed
of six Books, substantially following the order of the present Code.
The spirit of the new Code is not in any way alien to our established
system of procedure; on the contrary, the Commissioners have taken
care to make their innovations within the framework of traditional
institutions, for which they deserve our appreciation.
No doubt there will be many comments and representations made,
in public and in private, before the new Code is considered in detail by
the Legislature. I do not propose in this short comment to deal with
the Code in its entirety, or to anticipate the discussion which will take
place. My only purpose is to mention one or two specific points, and to
make a few tentative suggestions, based on my experience as a practi-
tioner and a teacher. Perhaps at a later stage I may have additional
remarks to make as well.
I would like to make the preliminary point that, insofar as these
observations are intended as a criticism of the Code, this is only in
the sense that in some ways the innovations do not go far enough.
There is no doubt that we would be far better off with the new Code
than our present one, and it would be a catastrophe if the draft were
emasculated or found its way into the dust-bin, as so often happens
with reports by Commissioners. The new Code is an important step
in the right direction; but inasmuch as procedural reforms are now
being considered, it seems to me this is the logical time to propose
other, more radical changes; an equally propitious moment for doing
so may not arise again for many years.
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My first observations concern examination on discovery. To begin
with, let us look at the new, proposed Article 404, whose first para-
graph reads as follows: (Italics mine)
“404. At any stage of the case, the parties may agree, or the court, if it
sees fit to do so, may permit that a witness be heard out of court before a
person authorized to administer the oath, provided that all the parties are
present or duly summoned.”
The second paragraph of the article is not relevant for the purpose
of this discussion.
If we examine this article carefully, and compare it with its pre-
decessor, we find a marvelously useful device is here introduced,
perhaps unwithingly, by the Commissioners. The present equivalent
of the proposed Article 404 is Article 355, which only permits such
out-of-court examinations by consent of the parties. But the new
article would, in effect, introduce examination on discovery of any
witness, with the permission of the court, granted on motion.
Modern, wide discovery provisions are the keystone of a truly
efficient, advanced procedural system. Without wide discovery rules,
a lawyer may be extremely reluctant to disclose pertinent information
during settlement negotiations –
all the cards are not laid on the
table, due to an apparent conflict in the lawyer’s duty to his client,
should the negotiations fail. But with liberal discovery provisions
lawyers tend to open their fyles, no conflict of duty exists, and settle-
ments are encouraged.
Under the U.S. federal rules of procedure, discovery provisions
similar to the proposed Article 404 exist 3, except that no motion is
required –
just a notice to the opposing attorney and a subpoena to
the witness (no subpoena is required if the witness is the opposite
party). However, the opposite party may move to quash the notice on
the ground of abuse or frivolity; for example, if a dozen witnesses
living far away are summoned, all of whom would testify on the same
point, in an obvious attempt to run up costs or wear out one’s opponent.
But the burden of proof is on the opposite party to show that the
procedure is being abused, not on the person summoning the witness.
It seems to me that it would be preferable to proceed in the same
way in our new Code. However, the difference would not be too signi-
ficant, provided lawyers take advantage of the new provisions, and use
this magnificient discovery tool whenever it is indicated, and provided
the judges encourage its use by a liberal and wide use of their discre-
tion under Art. 404. Thus, if the Article is maintained in its present
form, our judges should not require cause to be shown for the exami-
nation, nor should they deny the motion on the ground that the
3 Rule 26.
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examination will constitute a so-called “fishing expedition”. The
fundamental principle should be full disclosure of all relevant facts
and elimination of surprise.
In a sense, the wide discovery rules are similar to the mixed
enquite system we had in Quebec prior to 1897, but put to much
better and more efficient use. Thus, in an automobile accident case,
the defendant’s attorney would automatically examine the driver of
the other vehicle, the owner, the victim, eyewitnesses, etc. In other
cases, the experts would be examined on discovery. At this point I can
hear the objection being raised that the trial will be cut and dried, and
all the proof will be more or less known in advance, eliminating sur-
prise and other weapons from the lawyer’s bag of tricks. This is only
partially true, just as in the case of a preliminary inquiry in a criminal
proceeding. Moreover, there is no doubt that the ends of justice are
best served when surprise and confusion are eliminated on both
sides; it is the side which has right on its side that should succeed,
not the party with the shrewdest, most skillful advocate. In any
event, it is always true that the shrewd, experienced attorney will
have an immense advantage over his opponent, even in terms of
marshalling and synthesizing the mutually available evidence; but
much of the chanciness in the contest will disappear with prior ex-
amination on discovery of all the key, material witnesses.
The new discovery provisions can be especially useful if used
before the pre-trial hearing, the latter being another of the Commis-
sioners’ innovations. In fact, many U.S. federal judges insist that all
the depositions on discovery be taken before the pre-trial hearing, and
that the lawyers be perfectly familiar with the evidence as well. This
then has the effect of enabling the issues to be radically narrowed for
the trial, even if no settlement results.
Another significant advantage of liberal discovery rules is that
detailed pleadings become unnecessary. However, the reform of the
rules of written pleading is conditional upon the liberal use of dis-
covery, without which it makes no sense. Moreover, in Quebec we
have a very peculiar problem, unknown to the common law, in our
exclusionary rules regarding verbal proof and our insistence on writ-
ings in many cases 4. While there is some analogy between our rules
and the common law Statute of Frauds which also excludes writings
in certain instances, the two are not strictly comparable. Under the
Statute of Frauds, the absence of a writing makes the contract unen-
forceable,5 and consequently, even the admission that a verbal contract
4Art. 1233 C.C.
5 Cf. the position in Quebec, where the only problem is whether verbal proof
is admissible under our law of evidence; any contract is normally enforceable,
provided it can be proved.
No. 4] THE NEW QUEBEC CODE OF CIVIL PROCEDURE
365
exists is of no avail. But under Quebec law, a deposition, on discovery
or otherwise, may serve as a commencement of proof in writing
against the witness; and conversely, a lawyer may open the door to
verbal proof against his own client by asking questions in the wrong
area, thus tacitly waiving his right to object later on. The existence
of this problem does mitigate, to some extent, against a very wide use
of discovery in actions where a writing is de rigueur. The obvious
solution to this would be, of course, to abolish the distinction between
writings and testimony, and to leave the presence or absence of written
proof as a matter to be appreciated by the judge in weighing the
evidence. We must also bear in mind that depositions on discovery in
most common law jurisdictions do not automatically become part of
the record, unless the party sees fit to use them, very much like
depositions on discovery taken in Quebec in Bankruptcy Court. If
depositions on discovery did not automatically form part of the record
in Quebec, then a liberal use of discovery would be possible in contract
cases, notwithstanding the Civil Code provisions excluding testimony
and the dangers resulting therefrom. I would, therefore, strongly re-
commend the adoption of this principle in lieu of proposed Article 396,
which provides that depositions on discovery always form part of the
record; without this change, the usefulness of discovery is greatly
reduced, and this would be true even in a common law jurisdiction,
although it is much truer in Quebec.
In sum, the proposed Art. 404 is to be applauded –
it is a most
useful change, and I am merely asking for more of the same. It is
instructive to examine the extensive literature praising the U.S.
discovery provisions. These are extremely popular, and have been
embraced by many states which have been most unwilling to adopt
other procedural reforms. There was some initial reluctance in conser-
vative United States legal circles when the reforms were first adopt-
ed, but this soon disappeared, and the experience with the reforms has
been a very happy one.
To cite one significant example, I had a lengthy discussion on the
subject with an Alabama lawyer who had been extensively involved in
litigation in the state courts. Alabama maintains the rigid common
law rules of pleading, which are even more formalistic than our present
rules. But because of liberal discovery provisions adopted by the State,
notice pleading 6 has been introduced de facto in the Alabama state
courts, and although lawyers may have the right to complain that
pleadings are irregular or insufficiently detailed, they do not do so in
practice. This has resulted indirectly from the progressive, federal
6 .e., short informal complaints without any lengthy, formal statement of
claim alleging all facts; similarly for answers, etc.
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rules, with which these same lawyers are familiar from their experien-
ce in the federal courts.
Liberal discovery rules can thus minimize technicalities, eliminate
the need for detailed fact or issue pleading, and result in parties not
taking advantage of formal defects. More important still, they faci-
litate settlements, eliminate surprise at trial, and help to define and
limit the issues, particularly in conjunction with the pre-trial confe-
rence.
The second comment I wish to make concerns what may be called
summary judgment. In this connection, the following proposed articles
are extremely useful and significant:
“93. When a party has filed an affidavit required by any provision of
this Code or of the rules of practice, any other party may summon the
deponent to be examined before the judge or the prothonotary upon the
truth of the facts sworn to in the affidavit.
“Failure to submit to such examination entails the dismissal of the affi-
davit and of the proceeding which it supported.
“176. The defence must be supported by an affidavit, failing which it
is considered null, in an action:
a. on an account for services rendered or goods sold and delivered;
b. upon a bill of exchange, cheque, promissory note or acknowledgment
of debt;
c. for salary or rent or for money lent;
d. to recover taxes, rates and assessments imposed by any law of this
province or in virtue of any of its provisions.
“The affidavit must attest that there is a serious defence, and if the
defence is based upon the failure to present regularly for payment a bill of
exchange, cheque or promissory note, it must also attest that at maturity
provision had been made for payment at the appointed place.
“177. In the cases provided in article 176, the court may order the
defense struck from the record if an examination under article 93 shows
it to be frivolous.”
In effect, these provisions enable a contested case to be converted
into a default case, where the defence is clearly frivolous, usually after
examination of defendant on the truth of his affidavit. This makes
summary judgment possible in many cases, without having to make
a special request to the Chief Justice for a quick hearing.
I should like to suggest a reciprocal provision, so that plaintiff
could be forced to fyle an affidavit or have his suit dismissed. In the
U.S. federal rules, there is a procedure open to either party called the
motion for summary judgment.7 This motion is supported by affida-
vits, and often by depositions on discovery (here again, liberal discov-
ery rules are needed), answers to interrogatories, and answers to
7Rule 56.
No. 4] THE NEW QUEBEC CODE OF CIVIL PROCEDURE
367
requests for admissions.8 The court is thus enabled, not only to render
a summary judgment in favour of plaintiff where the defence is frivol-
ous and dilatory, but also to dismiss summarily frivolous and vexatory
proceedings. This is indeed a most useful power.
The reader will have seen by now that I greatly admire the work
of the Commissioners, but that in a few isolated instances, a little
more radical surgery might benefit the patient even more. It would
be superfluous in this article to attempt to deal with the Commis-
sioners’ other suggested changes, but perhaps some examples should
be given. The elimination of the fiat, which should have occurred years
ago, is finally accomplished by the proposed Code. The pre-trial confe-
rence is introduced. Cross-demands may be incorporated in the defen-
ce ; incidental demands may be made by amendment of the declaration;
superfluous pleadings are eliminated; security need no longer be given
by a defendant-appellant; petition of right is eliminated; and many
other reforms are proposed which have the effect of eliminating
formalism and 4aking procedure the handmaiden, not the mistress,
of substantive justice. Of course, many questions remain, some of
which may be answered by the as yet unpublished balance of the
report covering Books Five and Six; some require answers from the
provincial and federal governments. The proposed Code abolishes peti-
tion of right; what legislation will the government now pass to enable
the Crown to be sued? So far, Bill 66 has been passed by the Legisla-
tive Assembly permitting Hydro-Quebec to be sued in the usual way;
further legislation is required immediately. What about relieving the
load on the Superior Court by a further increase in the Magistrate’s
(soon to be District Judges) Court, say to $1000, if this is constitu-
tional; if it is not constitutional, why not create a County Court, as in
the other provinces ? 9 What about the qualifications for judicial
8 This is another excellent reform we should consider:
it is a method of
forcing the opposite party to admit a fact. If he refuses to do so, he must pay
the costs of proving that fact. This procedure in the U.S. federal rules also has
the effect of substantially narrowing the issues. It would flow naturally as a
corollary to proposed Article 85 of the new Code. See U.S. Rule 36.
9 Of course, the problem is that the judges of a County Court must be appointed
federally under s. 96 of the British North America Act. Perhaps the solution
is a constitutional amendment to allow the provinces to make these appointments.
It has been suggested that some of the civil jurisdiction (not necessarily mone-
tary) now possessed by District Judges is that of a County Court, in 1867 terms,
and that hence these judges either do not have the required jurisdiction to hear
such matters, or their appointments are illegal. The same may also be true of
Judges of the Sessions of the Peace, notwithstanding s. 466(a) (ii) of the
Criminal Code, for Parliament could not lawfully grant to a provincially ap-
pointed judge the powers of a County or District Court within the meaning
s. 96 of the British North America Act, 1867.
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office and the methods of appointing judges? What about considering
the revision of our rules of evidence in order to make the civil trial less
of a contest and more of a scientific fact-finding expedition? What
about genuine legal aid for indigent parties? The new Code does con-
tain a section misleadingly entitled “Public Legal Aid”. However this
is just the old in forma pauperis procedure; it exempts an indigent liti-
gant who has an attorney from paying certain costs; it does not
provide any method of providing the free services of a competent
attorney for an indigent who has been sued or wishes to take proceed-
ings. There is no doubt that the present system, in spite of the valiant
efforts of the Bar, is completely inadequate.
Many of these problems will have some time to resolve. It is,
however, respectfully suggested that the first step should be to accept
the Commissioners’ Report and enact the new, progressive Code now
in process of consideration, preferably with the few modifications
suggested here.
No doubt other suggestions will be made, and in the course of the
discussion valuable ideas may come to light. But the important thing
is to keep the goal in mind: the better, more efficient administration
of justice, in the interests of the litigants and the public; and this
is a goal which the new Code goes a long way towards achieving.
