The Province of Quebec recently enacted a new Code of Civil Procedure (the “CCP”), which is expected to come into force during the Fall of 2015. The CCP is intended to address long-standing, systemic problems that have adversely affected the smooth and efficient functioning of the court process, and to reduce the backlog and long procedural delays, limit the rising costs of litigation, and address various other problems that have become apparent during the last decade. The overarching stated purpose of this overhaul is to modernize court procedures and processes, increase public confidence in the court system, and make access to justice more efficient, simpler, faster, and less costly.
The proposed changes include:
1. an obligation on all parties:
- to consider private modes of dispute prevention and resolution;
- to cooperate and keep each other informed; and
- to negotiate a Case Protocol (essentially, a detailed timetable of anticipated procedures, including the disclosure of the parties’ preliminary positions);
2. a greater involvement of judges in the case management of the litigation;
3. a complete reform of pre-trial examinations;
4. a reform of the procedure relating to expert evidence;
5. the admissibility of written testimony at trial;
6. a broadening of the scope of the exception to dismiss, thus permitting a defendant to seek dismissal of only part of a claim;
7. the opportunity for parties to jointly submit an issue of law to the court; and
8. repeal of the Tariff of advocates’ judicial fees, and the current regime for awarding costs.
In this brief, we have focused on some of the more significant changes.
A. The Case Protocol
The parties have to agree, within the first 45 days of the commencement of an action, to a Case Protocol, in writing, signed by the parties, which will cover the following:
1. admissions, agreements and undertakings of the parties,
2. issues in dispute,
3. consideration by the parties to modes of private dispute prevention and resolution,
4. procedural steps ensuring the orderly progress of the proceedings, and the time assessed for each step,
5. foreseeable legal costs,
6. procedural deadlines,
7. preliminary exceptions and safeguard measures,
8. advisability of holding a settlement conference,
9. details of pre-trial written or oral examinations,
10. details of the defence,
11. procedure and delays for pre-trial discovery and disclosure,
12. foreseeable incidental applications or motions, and
13. means of notification intended to be used by the parties.
The Case Protocol will be binding upon the parties, who will incur financial sanctions if there is significant non-compliance.
The Case Protocol moves to the front end of the litigation process, many of the steps that are currently addressed mid-course or even at the end of the process, when the parties are preparing for trial.
The immediate, likely consequence of this change is that litigation costs will be higher at the earlier stage of the proceeding.
B. Case Management
Throughout the litigation process, judges will have a greater role than they presently do, and will be able to convene case management conferences, involving all the parties, once the Case Protocol has been filed.
They will also be able to order appropriate management measures, require undertakings, subject the proceedings to certain conditions, and order that proceedings be simplified or expedited, and the length of trial be abridged. Furthermore, they will be able to assess the scope of the expert evidence and determine the conditions under which pre-trial examinations will be held.
C. Pre-Trial Examinations
Currently, objections formulated by counsel during pre-trial examinations are a major factor in creating delay. For example, the timing of the pre-trial examination (whether it occurs before or after defence) can have a significant impact on the type of question that is permissible, or its relevance to an action, and is a source of many objections and corresponding delay in adjudicating them.
The CCP no longer makes a distinction between examinations before or after defence, and all objections, except for those relating to client-solicitor privilege, are supposed to be taken “under reserve”, meaning that the witness answers and the judge decides on the merits whether to uphold the objection.
Furthermore, the CCP serves to limit each pre-trial examination to five hours (with some exceptions). When the value in dispute is less than $100,000, the time limit will be three hours. The CCP also provides for the option of written examinations.
D. Expert Evidence Reform
The CCP defines the goal of the expert witness: to enlighten the court in its decision-making, and not to represent one party or the other. In other words, the expert shall not be an advocate.
The parties are still entitled to retain their own experts, but if they do, they will have to explain to the court the reasons why they declined to seek a joint expert opinion.
Under the CCP, a party is prohibited from filing more than one expert report per subject-area. Furthermore, the parties will have to disclose to the court the instructions that they gave to their expert.
As part of their expanded powers to manage proceedings, judges will be able to order a meeting between experts to reconcile their opinions, identify points of difference, and require an additional report on those adverse points.
During trial, the report of the expert will stand in lieu of his/her testimony. It is possible, however, for a party to examine the expert, but only in order to clarify his/her report, or to obtain opinion on new evidence. Otherwise, the examination for any other purpose must be pre-authorized by the court. The adverse party will be able to cross-examine the expert.
From an insurance litigation perspective, it is expected that some of these changes will increase costs at the outset, by forcing the parties to delve into much more detail during the planning stage of the case. The hope of the legislature, however, is that this early effort, combined with the obligation to consider private modes of dispute resolution before instituting an action, will lead to a higher number of cases being settled, sooner rather than later, thus resulting in the reduction of defence costs and expenses.