Procedural Law in Quebec:
The Role Legal Traditions Play
Professor Rosalie Jukier
McGill University
March 25, 2014
Procedural Change
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Compare the codification activity level with
respect to Quebec’s two Codes: Civil Code,
Code of Procedure
The new Code of Civil Procedure represents
the fourth complete recodification of
procedure in Quebec (1866, 1897, 1965,
2014)
This provides an opportune moment
to reflect on…
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The influence of legal traditions on civil
procedure in Quebec
The role such traditions play in the legislative
evolution and judicial interpretation of
procedural law
“Societies may see their basic values reflected
more in their procedural systems than in their
substantive law”
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Stephen Goldstein, “The Odd Couple: Common Law Procedure and
Civilian Substantive Law” (2003) 78 Tul L Rev 291 at 293
Outline
1.
2.
3.
Main differences in procedural law in the two
major legal traditions of the civil and the
common law
Historical evolution of procedure in Quebec
tracing the tradition-based changes that have
occurred over time
Look closely at the present day through two
lenses
a.
b.
legislative (the 2014 Code)
judicial (examine key judgments)
Tradition-based differences in
Procedural Law
“adversarial” (common law)
versus
“inquisitorial” (civil law)
Misleading Nature of this
Differentiation
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1. Common law procedural systems do not have a
monopoly on the “adversarial” quality of litigation
2. The civilian continental procedural system might
better be labelled “investigative” or “judge-centred
rather than “inquisitorial”
3. Wrong to see the two systems as polar opposites
and often, differences are in degree not in kind
4. As in all areas of comparative law, we must be
cognizant of the variances amongst legal systems
within the same legal traditions (eg U.S vs U.K)
Major tradition-based differences
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Role of the Judge
The traditional Common law judge has been
described as “a passive, receptive and
detached umpire”
as someone who views the case “from a peak
of Olympian ignorance”
The Judge of the Civilian Tradition is,
by contrast…
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vocal and dominant
“activist, outspoken or even paternalistic”
“the director of an improvised play”
or even a “priest, [where] the advocates act as
the acolytes – deferential assistants in a
ceremony controlled thoroughly by the judge”
Essence of the distinction
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The civilian judge controls the evidentiary
process and performs the critically important
function of exploring and sifting evidence
(engages experts, questions witnesses, asks
questions…)
In contrast, in the adversarial system, the parties
(through their lawyers) take charge of the
process, frame the issues, investigate the
evidence and select what will be presented at
trial.
Different conception of “truth”
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The civilian system is predicated on finding “la vraie
vérité”
Common law procedure was not designed to establish
the truth
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“The role of the court is to decide on the basis of
allegations of the parties and not on the basis of
underlying truth”
(Air Canada v. Secretary of State for Trade 1983, House
of Lords)
Procedural fairness is prioritized over truth
There is an assumption that truth will be teased out by
examination and cross examination of witnesses
Primacy of the oral versus the written
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In the common law, the emphasis is on oral
evidence and oral argumentation
In the continental civilian tradition, (the
“dossier system”), proof is essentially written
with no examination or cross examination of
witnesses by lawyers in open court
“Tout témoignage lui est suspect”
(Augagneur)
Role of Expert Witnesses
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Nor are experts called by the respective parties,
or examined and cross-examined in open court
In the continental conception of procedure,
experts are:
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judge-appointed
common or joint expertise
Judge “outsources” the evidentiary work to an
expert
Very different than the traditional common law
procedural system: battle between the experts
Different conceptions of the “trial”
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Largely as a result of the jury , the common
law trial is a single event in which witnesses
and evidence are presented in a continuous
procedure
And there is a distinct “pre-trial” period
The continental “trial” is segmented
Hearings before the court are very short – as
short as 15 – 30 minutes!
Compare the French “trial” with what
we are used to in Quebec
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Laflamme c. Groupe TDL ltée (2014 QCCS 312)
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Facts: woman ingested a single spoonful of excessively
hot soup at Tim Hortons and sued for $2 million damages
The trial lasted 10 full days
9 medical experts testified and countless others
submitted written expert reports
Judgment was 77 pages (or 426 paras) long and gave
judgment for the plaintiff in the amount of $69,000
Note: Estimated cost of one day in court to taxpayer is
$10,000
Pre-Trial and its Corollary…
Discovery
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Directly related to counsel’s active role in
gathering and analyzing evidence during the
distinct pre-trial period
Unavailable/improper in civil law jurisdictions
No need for party-initiated discovery because
the court, rather than the parties, is in charge
of the development of evidence
Additional Differences: Appellate
Review
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Civilian conceptions of appeal are much broader
both in their availability and in the nature of the
reconsideration (facts as well as law)
Note: 2013 statistics for the Cour de Cassation state
that there were 20,049 dossiers jugés in civil matters
and 8,158 in criminal matters (total 28, 207).
Compare that with the SCC which renders between
60 and 80 judgments per year
No concept of appellate dissent in the civil law
tradition
Additional Differences related to the
Judge and Judgments
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There are different conceptions of the training of
the judge (eg French École de la magistrature)
and the appointment of such judge (from the
practicing Bar in common law systems)
Different status: Bureaucratic figure versus
commanding magisterial presence
Different judgment styles: Anonymous,
impersonal and syllogistic vs signed, opinionated
and discursive
Where Does Quebec Fit In?
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Easy question of the evening!
Quebec procedural law has been portrayed as
having “un air de common law en pays de
droit civil” (Jutras)
How did Quebec get to this end result?
Historical Evolution
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Régime Français – 1534 – 1759
1667: Ordonnance sur la procédure civile
Characterized by the French civilian tradition:
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Testimony of witnesses is done by way of writing
No examination or cross-examination in open court
Experts are court-appointed and their testimony is in
writing
Procedure is by way of the “enquête” whereby a
judge or commissioner reduces to writing what the
witnesses say
Historical Evolution
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The Régime Anglais (1759 – 1867)
1774 – Quebec Act: restores French law in
private matters
However, various English law elements begin
to infiltrate
English Law Influences
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1764: Judicial system modelled on the English
administration of justice and its court system (the
“hardware”=English)
1777: English rules of evidence in commercial
matters
1785: Jury in civil matters
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Brisson: “un divorce quasi complet avec la procedure
française”
1787: Courts rules of practice
Result: Quebec procedure begins to adopt its mixed
character
First Code: 1866 Code of Civil
Procedure of Lower Canada
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Goals: Consolidation, Compilation, Reconciliation
Contains elements of procedure that emanate from both legal
traditions
Examples that are reminiscent of the French tradition:
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Judge’s involvement in collecting evidence (including calling parties,
questioning parties and witnesses and writing down their evidence)
Court appointed experts
Examples that are reminiscent of the English tradition:
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Judges’ ability to make rules of practice
Trial by Jury
Ability of parties to question each other
Upshot of the 1866 Code
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Despite overt goal of simply “bringing scattered
elements together in one place”, the
Commissioners’ Report is not value-neutral
More borrowing of common law procedure via
important amendments:
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Discovery (1888)
Injunction: (1878 – brought into the Code in 1888)
1897 Code of Civil Procedure
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1897 Code moves procedure in Quebec much closer
to the English adversarial system
1. The adoption of the Open Court principle
2. The abolition of the “enquête” (“la principale
réforme ”)
3. Examination in chief and cross-examination
(“transquestionnement”)
4. Broadening of rules of discovery
5. Extension of Injunctive Relief
1965 Code of Civil Procedure
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Major achievement: decrease in formalism
The spirit of the Code is expressed in art 2:
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Procedure is the handmaiden not the mistress
Procedural rules should be facilitative
Procedural defects can be remedied
Important Amendment in 1978: Class Action
Irony: Quebec, a civil law jurisdiction, is the first
province to introduce what is quintessentially a common
law invention
At this stage, Quebec has all the elements of the
common law adversarial procedural system
1965 Code: Opens the door a
crack….
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There is, however, the beginning of a move towards
empowering the judge
 Art 279: Pre-trial Conference (inviting attorneys
to discuss ways of simplifying the suit and
shortening the hearing)
 Art 414: Court may, even of its own motion
designate an expert to investigate or verify any
fact
The pendulum starts to swing
back….
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As we approach the new millenium, the unanimous
opinion is that the civil justice system is in crisis
The Woolf Report is published in the U.K in 1996 forming
the basis of considerable procedural reform in 1999
In Quebec, in 2001: Ferland Report “Une nouvelle
culture juridique”
Both reports bemoan:
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The high cost of civil justice
Its complexity
Its delays
2002 & 2009 Amendments to CCP
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1. Judges are given a more active role by making them case
managers (art. 4.1, 151.1 et seq)
2. The concept of proportionality is introduced (art. 4.2)
3. Settlements are encouraged and a new process of Judicial
Settlement Conference is established (art 4.3, 151.14 et seq)
4. “Tougher” rules are introduced to keep parties in line such
as the 180 day rule (art. 110.1)
5. The use of discovery is limited to cases over $25,000 (art.
396.1)
6. Provisions related to Abuse of Procedure and SLAPPs (art.
54.1 et seq.)
Purpose of these amendments
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Ostensibly to mitigate against the problems of
high cost, delay and complexity
Viewed through the lens of legal traditions, “la
réforme a pour objet d’éliminer les effets
pervers du système « contradictoire » ou
« adversarial » .” (Justice YM Morissette)
Amendments all have some characteristics of
the civilian procedural system (especially with
respect to the role of the judge)
The Present Day – where do we
stand legislatively?
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2014 Code of Civil Procedure
Purpose of the Reform: (Preliminary Prov’n)
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Accessibility of Justice
Promptness of Justice
Proportionate application of procedural rules
Spirit of cooperation
Many macro changes re ADR, reinforcing
proportionality, case management, discovery
and expert evidence
Case Management
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Made an explicit part of the court’s “mission”
(art. 9(2))
Parties continue to control their own case subject
to the duty of the court to ensure proper case
management (art. 19)
Case Protocol: broader than current échancier
(art. 148)
Court is given more extensive case management
“measures” (art. 158)
Discovery
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Discovery is much more limited: (art. 229)
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No discovery for cases less than $30,000
In family cases or those less than $100,000,
discovery is limited to 3 hours
For all other cases, discovery is limited to 5 hours
Slight extensions (3 – 4 hours, 5 – 7 hours) by
agreement between the parties
Longer extensions require court authorization
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Expert Evidence
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Mission of expert is to enlighten the court (art. 22)
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“This mission overrides the parties’ interests”
The case protocol must include information about the
parties intentions re experts and their justification for
not seeking a joint expert opinion (art. 148(4))
Part of case management measures includes the court
imposing joint expert evidence on the parties (art.
158(2))
Court may, on own initiative, appoint expert (art. 234)
What do the changes tell us?
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That the legislator continues to try new things to fix
a problematic civil justice system
And they are doing so by borrowing heavily from the
philosophy and attributes of a civilian procedural
system
Not based (at least explicitly) on the desire to assert
the integrity of the civil law or its distinct legal
culture (reminiscent of the CCQ reform)
Justice Elena Kagan philosophy: “take a good idea
wherever it comes from”
Why are these good ideas?
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Not everyone thinks they are!
Demonstrate that the excesses of the common law
adversarial system are blamed for the current crisis
Need for more “managerial judging” and that
aspects of the continental system are worth studying
Borne out by the World Justice Project?
7 of the countries ranked in the top 10 on the civil
justice index are civilian jurisdictions
Where do we stand judicially?
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Much of Quebec civil procedure is borrowed
from or inspired by the common law
Perennial question: How should judges
interpret and apply Quebec law when the
provisions or issues in play originate in the
common law?
Not an easy question for which there is not
one answer
At one end of the spectrum….
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Judgments that freely apply common law precedents
and principles
Eg: Droit de la famille – 1559, 1993 RJQ 625 (QCCA)
dealing with recusation:
“Moreover, it is apparent that in civilized jurisdictions other
than the Province of Quebec apprehension of bias is a ground
for recusation like any other, urged in the same way as any
other. Surely the distinctiveness of our society, and our civil
law rather than common law system, do not require that we
be deprived of a useful and logical remedy available
elsewhere!” (Justice Tyndale)
At that end of the spectrum
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We find judgments that even suggest it is incumbent
to go to the common law where there is a lacuna in
the civil law
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Wightman v. Widdrington 2007QCCA 1687 at para 58
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“Aucun judgment publié au Québec ne porte sur des faits similaires à
ceux qui ont donné naissance à la demande de récusation en Cour
supérieure. Aussi incombe-t-il à la Cour de consulter la jurisprudence
canadienne et étrangère sur cette question. Bien qu’il y ait lieu de
faire un usage prudent et éclairé de la jurisprudence en provenance
de ces autres systèmes de droit, cela demeure pertinent lorsque les
principes fondamentaux applicables sont substantiellement les
mêmes que ceux admis en droit québécois”
At the other end of the spectrum…
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Judgments that warn against looking to, and
applying, the common law
Eg: Anglo Pacific Group PLC v. Ernst & Young
2013 QCCA 1323 at para 36
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“Le droit civil est un système complet et il faut se
garder d’adopter des principes provenant de
systèmes juridique étrangers sans se questionner
sur leur compatibilité avec notre droit civil”
How to reconcile this diversity of
judicial opinion?
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Is that possible?
Contextual
Definite trend in Procedural Cases decided by
Justice LeBel of the SCC
Agenda promoting the integrity and heritage
of the civil law tradition
Focus on 3 recent cases: Lac d’Amiante,
Globe & Mail, and Vivendi
Lac d’Amiante (2001 SCC)
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Subject matter: Discovery
Issue: Its confidential nature
C.C.P.: Silent on the issue
QCA: Confidential, largely because it is
confidential in common law, from where we
borrowed discovery
SCC (LeBel, J.): Upholds decision on the
merits but criticizes the C.A. for its reasoning
Lac d’Amiante
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“The rules of Quebec civil procedure…are part of a legal
tradition that is different from the common law.”
“The codified law is paramount. The courts must base their
decisions on it.”
“Although Quebec civil procedure is mixed, it is
nonetheless codified, written law, governed by a tradition
of civil law interpretation.”
“In the civil law tradition, the Quebec courts must find their
latitude for interpreting and developing the law within the
legal framework comprised by the Code and the general
principles of procedure underlying it.”
Globe and Mail (2010 SCC)
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Subject matter: Journalist source privilege
Issue: Did a journalist have to disclose a
confidential source (whistle blower)
C.C.P.: Silent on the issue
Common Law: “Wigmore doctrine” provided a
framework for finding the existence of a
journalist source privilege
Given what LeBel, J said in Lac d’Amiante, could
he resort to it?
Globe and Mail
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“[The Code] is the primary source of the principles and
rules of the law of civil procedure in Quebec”.
“But the codification of civil procedure does not mean
that civil procedure…is completely detached from the
common law model”.
“Not everything is found in the C.C.P.”
“When the mixed source of the Quebec law of procedure
and evidence …is properly recognized, it becomes
difficult to accept the argument that there is no residual
role for common law legal principles in the development
of this part of Quebec law.”
Globe and Mail
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“If the ultimate source of a legal rule is the common
law, then it would be only logical to resort to the
common law, in the process of interpreting and
articulating that same rule in the civil law.”
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Sound like back-pedalling?
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“This is, of course, premised on the fact that the
interpretation and articulation of such a rule would
not otherwise be contrary to the overarching
principles set out in the C.C.Q. and the Quebec
Charter.”
Vivendi Canada (2014 SCC)
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Subject matter: Class Action
Issue: Meaning of art. 1003(a) - the
commonality requirement for class action
authorization
Could Court have recourse to common law
decisions?
Vivendi Canada
per LeBel and Wagner
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“Caution must be exercised when applying the
principles from [Alberta and B.C. cases] to the rules
of Quebec civil procedure relating to class actions”
“[These cases] certainly provide a general framework
for analyzing the application of the commonality
requirement, but it must be borne in mind that tests
established in a common law context cannot
necessarily be imported without adaptation into
Quebec civil procedure.
Justice LeBel’s influence
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LeBel, J. judgments all speak, to varying
degrees, to prioritizing the civilian tradition,
interpretation and framework
His view is not substantively based
It is ideologically based
La sauvegarde de l’intégrité du
droit civil
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Reminiscent of Justice Mignault a century
earlier
Mignault: the most vocal critic of subsuming
the civil law to common law principles and
interpretation
and the most ardent proponent of protecting
the integrity of the civil law through
autonomous interpretation
Lebel - Open-minded and
cosmopolitan Mignault
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Who recognizes that some areas of procedure are
more conducive to convergence or harmonization
given their globalized context.
Eg: Globe and Mail: “The overarching issues raised
by this appeal are of course not unique to the
province of Quebec. The news media’s reach is
borderless. This is further support for an approach
that would result in consistency across the country,
while preserving the distinctive legal context under
the Civil Code."
Nonetheless…
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LeBel consistently articulates the need to
preserve the primacy and integrity of the civil
law tradition (see also non procedural cases
such as Prud’homme and Riopel)
What does this mean, particularly in the
procedural context?
What is the civilian tradition in an area of law
that is entirely foreign to the civil law
(discovery)
Meaning of Civilian Tradition?
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Methodology of the civil law and codal interpretation or
something more?
Only reference to the “civil law tradition” in 2014 Code is in
the Preliminary Provision:
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“This Code must be interpreted and applied as a whole, in the
civil law tradition”
Consistent with Doré v. Verdun (1997 SCC)
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“Thus, unlike statute law in the common law, the Civil Code is
not a law of exception, and this must be taken into account in
interpreting it. It must be interpreted broadly so as to favour its
spirit over its letter and enable the purpose of its provisions to
be achieved”
Conclusion
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“Civil-isation” of Procedural Law
Both the legislator and the judiciary are moving in the
same civiliste direction (although probably with different
motivations)
The judiciary (at the SCC through the pen of Justice
LeBel) by emphasizing the importance of the civil law
tradition in procedural (and other) cases
Begs the question: with LeBel’s imminent retirement
from the bench, who will take over the role of standard
bearer for the civilian tradition on the Court?
Conclusion
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The legislator is doing the same by importing
substantive civilian procedural concepts (active
judge, common expertise)
And limiting the ambit of common law procedural
concepts (discovery)
This is part of the ebb and flow of the ever changing
and developing nature of law (legal transplantation)
This shows the ability of mixed jurisdictions to learn
and experiment through the experience of two legal
traditions