The Privatization of Justice in Québec's Draft Bill to Enact the New Code of Civil Procedure: A Critical Evaluation
| Author | P. Scott Horne |
| Position | Is a third-year student in the bcl /llb programme at McGill University |
| Pages | 55-80 |
APPEAL VoLuME 18
n
55
ARTICLE
THE PRIVATIZATION OFJUSTICE IN
QUÉBEC’S DRAFT BILL TO ENACT THE NEW
CODEOFCIVIL PROCEDURE: A CRITICAL
EVALUATION
By P Scott Horne*
CITED: (2013) 18 Appeal 55-80
TABLE OF CONTENTS
INTRODUCTION ...................................................................................................56
I. COSTS AND FEES OF LITIGATION ..............................................................58
A. Current Allocation in Québec ..........................................................................58
B. Proposal in Draft Bill........................................................................................60
C. Comparison to Other Jurisdictions ..................................................................61
i. e Rest of Canada .................................................................................... 61
ii. Other Common Law Jurisdictions ............................................................62
iii. Other Civil Law Jurisdictions ...................................................................63
iv. Comparison to Québec .............................................................................64
D. Advantages and Disadvantages of the Draft Bill’s Proposal ............................... 64
E. Other Implications for Costs ............................................................................ 66
i. Small Claims .............................................................................................. 66
ii. Restrictions on Pre-Trial Examinations ...................................................... 67
iii. Case Management .................................................................................... 68
iv. Limits on Expert Evidence ........................................................................68
v. Focus on Oral Proceedings ......................................................................... 70
F. Critical Assessment ........................................................................................... 70
II. ALTERNATIVE DISPUTE RESOLUTION ...................................................... 72
A. Current Status in Québec .................................................................................72
B. Proposal in Draft Bill........................................................................................74
C. Alternatives ...................................................................................................... 75
D. Advantages and Disadvantages of the Draft Bill’s Approach ............................. 75
E. Critical Assessment ........................................................................................... 78
CONCLUSION ........................................................................................................ 79
56
n
APPEAL VoLuME 18
[I]l est quelquefois nécessaire de changer certaines loix ; mais le cas est
rare, & lorsqu’il arrive, il n’y faut toucher que d’ une main tremblante.
—Montesquieu1
INTRODUCTION
Access to justice poses a dicult challenge to society as well a s an ethical problem for
the legal profession. High costs, long delays, and unequal representation deter many
people from having recourse to the courts. e Right Honourable Beverley McLachlin,
PC, recently drew attention to the question of access to justice, “an issue dear to [her]
heart.”2 W hile laying the responsibility for ensuring this “fundamental right”3 on the
shoulders of lawyers, whose monopoly over legal services entails a duty “to provide
[them] for everybody,”4 she also called upon the legislature and the judiciary to make
court procedures simpler, more accessible, a nd more ecient.5
With the cost of even a two-day civil trial running well into ve gure s,6 litigation has
become unaordable to most people. Sk yrocketing costs have contributed greatly to the
decline in litigation: the number of lawsuits initiated in Québec declined by 55 percent
between 1977 and 2007 even thoug h Québec’s population during th at period increased
by 19.6 percent.7 Yet while lawsuits decline in number, they increase in lengt h.8 More
and more, civil litigat ion is becoming t he province of governments and c orporations.9
Most litigants, be they plaintis or defendants, must pay their own expenses. Owing
to the high cost of counsel, many people choose to represent themselves in court or
* P Scott Horne is a third-ye ar student in the BCL/LLB programme at McG ill University. He
gratefully acknowle dges insights garnered from Profess or H. Patrick Glenn and from the round -
table discussion “Le Projet d e nouveau Code : prêts pour un cha ngement de culture?” held by
the RéForMA group at the Univer sité de Montréal on 23 February 2012, as well as the assistance
of Ms.Stephanie Hu and the other e ditors of Appeal. Most of all, he wishes to expre ss his
appreciation to MeHelen a Lamed of McGill University f or supervising this paper; he r guidance,
wisdom, and support were, as always, invaluable.
1 “Sometim es it is necessary to modif y certain laws; but such cases are rare, and w hen they
occur, they must be addressed with a t rembling hand.” De M[ontesquieu], Lettres pers anes, t 2
(Cologne: no publisher, 1755) at 19 [translated by author].
2 Lucianna Ciccocio ppo, “There is no justice withou t access to justice: Chief Justice Beverley
McLachlin” (14 February 2011), online: University of Toronto Faculty of Law /legalfeessurvey.
utoronto.ca/news/there-no-justice- without-access-justice-chief-justice-beverley-mclachlin>.
3 Ibid.
4 Kirk Maki n, “And Justice for All, If You Can Aord It,” The Globe and Mail (11 February 2011) A4.
5 Ciccocioppo, supra note 2.
6 See Robe rt Todd, “The Going Rate,” Canadian Lawyer (June 2011) 32, online: Canadian Lawyer
pdf> (Canadian survey for 2011 found that the average fee s for counsel in a two-day civil l awsuit
were$24,318 and that the average hourly rate for a lawyer of te n years’ standing was $326 at
34,37).
7 See Me Hub ert Reid, “Rapport d ’évaluation de la loi portant réform e de la Code de procédure
civile” (31 January 2008), online: Wilso n & Laeur Ltée
wilsonlaeur/wl-images/cat/Memoire.pdf>.
8 See e.g. “Min istry of Attorney General G reen Paper: The Foundations of Civ il Justice Reform”
(2005) 63:2 The Advocate (Law Societ y of British Columbia) 221 at 222; Marc Galanter, “The
Vanishing Trial: An Examination of Trials and Related M atters in Federal and State Court s” (2004)
1:3 J Empirical Legal Stud 459 at 477-78.
9 See e.g. Gillia n K Hadeld, “The Price of Law: H ow the Market for Lawyers Distor ts the Justice
System” (2000) 98:4 Mich L Rev 953 at 962; Galanter, supra note 8 at 517.
APPEAL VoLuME 18
n
57
abandon viable claims. Legal aid is available to few; the threshold of eligibility for a
single person with multiple children falls below the income of a full-time worker at
the minimum wage.10 Pro bono services cannot possibly meet demand. Lega l insurance,
which is more common in Québec tha n in the rest of Canada, covers only a small part
of the cost of litigation.11 Even prevailing in court may be a Pyrrhic victory if enforcing
the judgment proves to be dicult or impossible.12 For these reasons, many litigants are
reluctant to take the g reat nancial risk of suing.
Besides being too expensive, adjudication is perceived as taking too much time. Delays
of a year and a half or more are u sual in small-claims court and some administrative
tribunals, such a s the Régie du logement (which hears disputes over residential leases);13
the Court of Québec and t he Superior Court can take even longer. By the time a dispute
proceeds to a hearing , the lawyers will likely have forgotten the details and will have to
spend more time reviewing t he le.14 is requirement to “hurry up and wait” not only
delays resolution of the dispute but also cos ts the litigants more money and increases the
risk that crucia l witnesses or evidence will no longer be avail able at trial.
Access to justice i s a quasi-constitutional right in Québ ec, whose Charter of Human Rights
and Freedoms guarantees “a full and equal, public and fair hea ring by an independent
and impartia l tribunal.”15 Yet the formidable practical obstacles of time, expense, a nd
representation stand in the way of sec uring this right for all.
In response to the growing c oncerns about access to justice, Québec’s Ministr y of Justice
has prepared its Draf t Bill to Enact the New Code of Civil Procedure (“Draft Bill”),16
which is “intended to moderniz e and simplify procedure, and also to promote amicable
dispute resolution methods and col laboration between the parties.”17 e proposed code
“is designed to enable, in the public interest, the resolution of interpersonal, collect ive
or societal disputes through appropriate, ecient and fair-minded processes of civil
justice that encourage the parties to par ticipate in preventing and resolving disputes.”18
It “is also intended to ensure the accessibility, quality and promptness of civil justice,
the fair, simple, proportionate and economica l application of procedural rules, the
10 See Regulation Respecting Legal Aid, RRQ, c A-14, r 2, s 18(1) (threshold of eligibility for a sin gle
adult with two or more child ren is $17,727); Regulation Respecting Labour Standards, RRQ, c
N-1.1, r 3, s 3 (minimum wage for mos t workers is $9.90 per hour, which comes to approximately
$20,000 per year for full-t ime employment at forty ho urs per week).
11 A typical polic y pays no more than$5,000 per lawsuit, with ma ximum coverage of $15,000 per
year. See Barreau du Québec, “Assuran ce juridique,” online: Barreau du Québe c
barreau.qc.ca/public/acces-justice/assurance-juridique/inde x.html>.
12 See e.g. 2332-4197 Québec inc c Galipeau, 2011 QCCS 2332, JE 2011-1094 [Galipeau] (judgment
for damages, including pun itive damages, and costs against woun d-up corporation would
evidently prove to be dry at p ara 108).
13 See e.g. Louise Plante, “La Régie du lentem ent!,” Le Nouvelliste (10 February 2010) online: La
Presse 118-la-regie-du-
lentement.php>. At the time of this writing, the o ce of the Régie du logement at Montré al–
Village olympique ann ounced delays of eighteen months or more f or a hearing—except in cases
of alleged non-pay ment of rent, which are heard in about six we eks (personal communicati on).
14 Proceedings ordinarily must be inscribed within 180 days of service of the initiating motion, or 1
year in the case of family mat ters (art 110.1, para 1 CCP). The action, however, may not proceed to
a hearing for 2 years or more.
15 RSQ c C-12, s 23, para 1 [Québec Char ter].
16 2nd Sess, 39th Leg, Quebec, 2011 [Draft Bill]. (French title: Avant-projet de loi instituant le nouvea u
Code de procédure civile.)
17 Justice Québec, “New Code of Ci vil Procedure: Quicker, Cheaper Access to Justice” (Québ ec:
Gouvernement du Québ ec, September 2011) at 2, online:
english/themes/cpc/pdf/ncpc-en.pdf>.
18 Draft Bi ll, supra note 16, Preliminar y Procedure, para 2.
58
n
APPEAL VoLuME 18
exercise of the parties’ rights in a spirit of cooperation and bala nce, and respect for all
participants in the justice system.”19 To these ends, the Draft Bill proposes a number
of changes: promotion of alternative dispute resolution, greater curial responsibilit y for
case management, expanded jurisdiction for the Sma ll Claims Division, restrictions on
pre-trial exam inations and expert evidence, oral rat her than written argument in simple
proceedings, abolition of cost shifting, and simpler language for greater accessibility to
the lay reader.
e Draft Bill has attracted much criticism within the legal profession: for instance,
the Barreau du Québec,20 the Canadian Bar Association,21 the Institut de médiation
et d’arbitrage du Québec,22 and t he Association du jeune Barreau de Montréa l23 have
all published detailed responses, some running to hundreds of pages. Many of the
criticisms strike at t he very core provisions of the proposed c hanges and warn of adverse
consequences for the admi nistration of justice in Québec.
is article sha ll examine the shift towa rds “[p]rivate civil justice”24 u nder the Draft Bill
and its implications for access to justice in Québec. e ana lysis will focus on t wo key
elements of the proposal: the reallocation of the costs of litigation and the promotion
of alternative dispute resolution. A few of the proposed changes would improve access
to justice by reducing costs, streamlining procedure, fostering conciliation, and
possibly accelerating dispute resolution. Other changes, however, would impede access
to justice by increasing costs, encouraging unnecessary lawsuits, facilitating abuse of
process, exacerbating imbalances of power, removing cu rial oversight, or hindering the
development of the law. Some provisions that are positive in the main would introduce
problems that the authors of the Draft Bill appea r not to have anticipated. Consequently,
the Draft Bill will re quire extensive re vision in order to achieve its stated goals.
I. COSTS AND FEES OF LITIGATION
A. Current Allocation in Québec
e general rule for an ac tion in Québec is that “[t]he losing part y must pay all costs,”25
in the absence of a specic decision to the contrary. us Québec observes the rule of
“loser pays” (le principe de la succomban ce) that prevai ls in most jurisdictions around the
world.
19 Ibid, Preliminary Proce dure, para 3.
20 Ba rreau du Québec, “Mémoire du Bar reau du Québec sur l’avant-projet de loi insti tuant le
nouveau Code de procédure civ ile” (Legislative Comment presented to the Co mmittee on
Institutions, National A ssembly of Québec, 19 December 2011), online:
qc.ca/pdf/medias/positions/2012/20120202-memoire-code-procedure-civile.pdf> [“Mémoire du
Barreau”].
21 Canadian Bar Association, “Mémoire rela tif à l’Avant-projet de loi instituant le nouveau Code de
procédure civile” (Legisl ative Comment presented to the Committe e on Institutions, National
Assembly of Québec , 16 December 2011), online: 12/01/MEMOIRE.pdf>.
ABCQuebec_MApl_CPC.pdf >.
22 Inst itut de médiation et d’arbitrage du Qué bec, “Mémoire de l’Institut d e médiation et
d’arbitrage du Québec sur l’Avant-projet de loi instituant le nouveau Code de procédure civile”
(Legislative Comment presente d to parliamentary committee, 13 Decemb er 2011), online:
23 Ass ociation du jeune Barreau de Montréa l, “Mémoire de l’Association du jeune Bar reau de
Montréal sur l’Avant-projet de loi instituant le nouveau Code de procédure civile” (Legislative
Comment presented to the Commit tee on Institutions, National A ssembly of Québec, 16
December 2011), online: /www.ajbm.qc.ca/documents/le/memoires/memoire-ajbm-
avant-projet-de-loi-instituant-le-c_p_c_-dec_-2011.pdf>.
24 Draft Bil l, supra note 16, art 1.
25 Ar t 477 CCP.
APPEAL VoLuME 18
n
59
Costs, however, are dened by “the taris in force.”26 e disbursements listed in the
Tari of Court Costs in Civil Matters and Co urt Oce Fees27 can be recovered in fu ll: they
cover such matters as ling suits, photocopying documents, a nd executing judgments.
Of lawyers’ fees, however, generally only the portion characterized as judicial fees
(honoraires judiciaires) can be awarded. Judicial fees are limited to the amounts in the
Tari of Judicial Fees of Advocates,28 which was last updated in 1976.29 Currently the
highest amount that c an be awarded is $1,000 for a civil case worth $50,000 or more
that is carried t hrough a full trial at rst instance.30 Smaller amounts are available for
marital disputes; slightly higher ones are available for appeals. Judicial fees are in any
event limited to the amount of the judgment.31
When the value of the di spute exceeds $100,000, an a dditional fee of one percent of the
excess over $100,000 is also awarded,32 irrespective of the winning party’s actual legal
costs. However high this additional fee may be, the winner is entitled to it unless the
court specica lly denies it as a matter of discretion.33
e Tari of Judicial Fees also gives the court discretion to “grant a special fee […] in
an important case.”34 Very few cases—those of great public signicance that c all for an
uncommonly large commitment of legal resources— qualify as “important” according
to the twenty-three “[f]acteurs objectifs et critères d’appréciation de l’importance d’une
cause”35 enumerated in Banque canadienne impériale de commerce c Aztec Iron Corp,36
which the courts have consistently upheld.37 In addition, the courts of Québec have the
power to make a discretiona ry award of costs in the interest of justice , notably to address
abuse of proce ss.38
A non-resident plainti must post securit y for costs in an amount determined by the
court.39 is provision serves to ensure that a successful defendant will collect an award
of costs, which might otherwise be infeasible against a non-resident judgment-debtor,
especially one with no a ssets or income subject to seizure within the cour t’s jurisdiction.
e remaining portion of lawyers’ fees, known as extrajudicial fees (honoraires
extrajudiciaires), ordinarily is not gra nted in an award of costs. Exce ptionally, extrajudicial
26 A rt 480 CCP. Note that an award of costs bears interest, which be gins to accrue on the date of the
order (art 481 CCP).
27 RRQ, c T-16, r 9 [Tari of Court Costs].
28 RR Q, c B-1, r 22 [Tari of Judicial Fees].
29 Se e Comité de révision de la procédure civil e, Une nouvelle culture judiciaire (Québec: Ministère
de la Justice, 2001) at 13, online: <http://www.justice.gouv.qc.ca/francais/publications/rapports/
pdf/crpc/crpc-rap2.pdf>.
30 Supra note 28, s 25.
31 Art 477, para 3 CCP; Tari of Judicial Fees, supra note 28, s 18.
32 Tari of Judicial Fees, supra note 28, s 42.
33 Industries Leader inc c Canadian Pensio n Equity Corp, JE 96-1740, 1996 CarswellQue 1564 (WL Can)
at para 27 (Qc Sup Ct) [Industries Leader].
34 Tari of Judicial Fees, supra note 28, s 15.
35 “Objective factors and criteria for assessi ng the importance of a case” [translate d by author].
36 [1978] CS 266 at 284, JE 78-94 (Qc).
37 See e.g. Widdrington Estate v Wightman, 2011 QCCS 1788 at para 3636, 83 CCLT (3d) 1; Nguyen
v Quebec (Education, Recreation and Spo rts), 2009 SCC 47 at para 48, [2009] 3 SCR 208; JTI
MacDonald Corp c Canada (PG), 2009 QCCA 110 at para 60, [2009] RJQ 261.
38 Ar t 46 CCP.
39 Arts 65, 152-53 CCP. Under a provincial agreement with France, however, plaintis of Fren ch
nationality are exempt f rom security. See An Act to Secure the Carr ying Out of the Entente between
France and Québec Respecting Mutual Aid in Judicial Matters, RSQ c A-20.1, s IV.3.
60
n
APPEAL VoLuME 18
fees are granted by statute in disputes over obligations of support,40 certa in appeals
pertaining to provincial taxes,41 and a few other matters. ey may also be awarded in
response to an “improper” use of procedure: the court enjoys the discretion to award
“damages in reparation for the prejudice suered by another party, including the fees
and extrajudicia l costs incurred by that party, and, if just ied by the circumstances, […]
punitive damages.”42 e standard for impropriet y, however, is high. According to Viel c
Entreprises immobilières du terroir ltée, the leading case on this i ssue, extrajudicial fees ca n
be awarded for abuse of the right to sue (l ’abus du droit d’ester en justice) but generally not
for the abusive acts that form t he subject of the lawsuit (l’abus sur le fond du litige).43 Abus e
of the right to sue is characterized by bad faith; examples include vexatious behaviour,
dilatory actions , and plainly groundless clai ms.44 Lengthy examinations a nd pleadings at
trial are not of themse lves abusive,45 nor is the in itiation of proceedi ngs that have a poor
chance of succes s.46 Even negligence or breach of undert akings by a party’s lawyers doe s
not by itself engage the additional liability for improper proceedings, despite the harm
to the opposing side.47
B. Proposal in Draft Bill
e Draft Bill would generally eliminate awards for costs: it provides that “[l]egal costs
are borne by the parties, each paying its own.”48 “Legal costs” include court costs, costs
for service of documents, t he cost of transcription, and fees payable to witnesse s, experts,
and interpreters.49 Each party would also be responsible for its own law yers’ fees; the
judicial fees that c an be awarded under the tari pursuant to the current Code do not
exist in the Draf t Bill.
Legal cost s could be awarded against a part y only for such uncooperative or obstructive
behaviour as abuse s of procedure, violations of t he principle of proportionality, breaches
of undertakings, rejections of genuine oers in sett lement,50 failure of a defendant to
answer a summons,51 violations of the case protocol,52 and excessive or unnecessary
exami nations.53 In addition, a plai nti could be ordered to pay c osts for suing in a court
that lacked subject-matter jurisdiction.54 Even though lawyers’ fees are not included in
the denition of legal co sts, the court could also awa rd, “as legal costs, an amount that it
40 Art 588 , para 2 CCQ; Rules of Practice of the Superior Court of Québec in Family Matters, RRQ, c
C-25, r 13, s 20; D (S) c G (Sy), EYB 2005-94517, 2005 CanLII 31528 (Qc Sup Ct) (provision for cost s
includes extrajudic ial fees at paras 141-45).
41 Tax Administration Act, RSQ c A-6.002, s 93.1.23, para 3.
42 Art 54.4, para 1 CCP.
43 [2002] RJQ 1262 at para 83, [2002] RDI 241 (CA) [Viel]. Contra Société Radio- Canada c Gilles E Néron
Communication Marketing Inc, [2002] RJQ 2639, [2002] RRA 1130 (CA), Otis JA [Néron] (deliberately
destroying a person’s reput ation, thereby forcing him to sue, constitu tes an abuse of rights
under art 7 CCQ and justies an award of e xtrajudicial fees at paras 360 -63), a’d on other
RJQ 1441, [2001] RRA 629 (CA) [Choueke] (to compel someone to incur hefty legal bil ls in order to
defend his interests woul d be to deny him access to justice at para 106).
44 See Viel, supra note 43 at para 75.
45 See Royal Lepage Commercial inc c 109650 Canada Ltd, 2007 QCCA 915 at paras 57-59, JE 2007-1325.
46 Simard Vincent c Conseil de la nation huronne-wenda t, 2010 QCCA 178 at para 63, [2010] RDI 283.
47 Cosoltec inc c Structure Laferté inc, 2010 QCCA 1600 at para 69, JE 2010-1659.
48 Draft Bill, su pra note 16, art 337.
49 Ibid, art 336, para 1.
50 Ibid, arts 338-39. See also ibid, arts 51-56.
51 Ibid, art 141, para 2.
52 Ibid, art 146.
53 Ibid, art 224.
54 Ibid, art 162, para 2.
APPEAL VoLuME 18
n
61
considers fair and rea sonable to cover the professional fee of the other party ’s lawyer or, if
the other party i s not represented by a lawyer, to compensate the other party for the time
spent on the case and the work involved.”55 Appeals from judgments pertaining to legal
costs would be allowed only by leave,56 which could be granted only for such reasons as
“a question of principle, a new issue or a question of law that has g iven rise to conicting
judicial decisions.”57 A plainti not resident or domiciled in Québec could be required to
post security for costs,58 except in family proc eedings.59
C. Comparison to Other Jurisdictions
i. The Rest of Canada
Currently, Québec diers sharply from the rest of Canada in allocating the costs of
litigation. e common law provinces a nd territories observe the rule that the losing
party must pay the winning part y’s costs (“costs follow the event”).60 Although no such
right exists at common law,61 the thirteenth-century Statute of Gloucester62 established
awards of court costs. Subsequent statutes in many jurisd ictions have provided for
awards of lawyers’ fee s as well.63
In Canada’s common law jurisdictions, t he winning part y’s reasonably necessary court
costs are ordinarily awarded in full. Lawyers’ fees, however, are awarded according
to three scales. e usual award is a par tial indemnity,64 on the so-called ‘par ty-and-
party’ ba sis; typically it represents about half of t he lawyers’ bill.65 e amount is usual ly
determined by the taxing ocer, but sometimes the judge will state a percentage in the
order for costs. In order to punish “reprehensible, scanda lous or outrageous conduct”66 and
compensate for some of the unnecessa ry expenses that the opposing party ha s incurred
as a consequence thereof, a court may award lawyers’ fees on the higher ‘solicitor-and-
55 Ibid, art 339.
56 Ibid, art 30(3).
57 Ibid, art 30 in ne.
58 Ibid, ar t 491, para 1.
59 Ibid, art 492, para 1.
60 See e.g. R v J ustices of Surrey (1846), 9 QB 37 at 39, 115 ER 1189.
61 See 2 Coke’s Inst 288. Coke explained that before t he Statute of Gloucester (infra note 62), “at the
common law no man recovered any costs of s ute either in plea real, personall, o r mixt: by this it
may be collected that justi ce was good cheap of auncient times, for in k ing Alfreds time there
were no writs of grace, but all wr its remedialls were graunted free ly, and Fleta saith, [lest the
clerks demand excessive f ees for drafting, it was estab lished that the clerks of the justi ciar and
the chancellor alike must be sat ised with a single penny for writing o ne writ]. This statute was
the rst that gave costs” [translated by au thor].
62 1278 (Eng), 6 Edw I, c 1 (“[w]hereas formerly d amages were not assessed, except those f or
the value of the fruits of th e land, it is hereby provided that the plai nti can recover from
the defendant the costs of th e purchased writ, together with th e aforementioned damages”
[translated by author]). Subsequent statu tes expanded court costs and e xtended the right
of recovery to defendant s. See e.g. An Act to Give Costs to the Defendant upon a N onsuit of the
Plainti, or a Verdict against Him, 1606 (Eng), 4 Jac I, c 3.
63 Se e Parts I.c.i-ii, below, for examples.
64 In British Colum bia, the partial indemnity i s known as “ordinary costs.” See Erik Knu tsen, “Cost of
Costs: The Unfortunate D eterrence of Everyday Civil Litigati on in Canada” (2010) 36:1 Queen’s LJ
113 at 122, n 30.
65 S ee e.g. Riddell v Conservative Party of Canada, 2007 CarswellOnt 4202 (WL Can) (Ont Sup
CtJ) (stating as a “rule of thumb” that “[f]ul l indemnity represents 100% of the cl aim, partial
indemnity represent s 60% of the claim, and substantial ind emnity (one and one-half tim es the
partial indemnit y scale) represents 90% of the claim” at pa ra 38).
66 Youn g v You ng, [1993] 4 SCR 3 at 134, 108 DLR (4th) 193.
62
n
APPEAL VoLuME 18
client’ basis, known as substantial indemnit y.67 In Ontario, the substantial indemnity is
half again as much as the partial indemnity.68 Exceptionally, a court may even award a
full indemnit y, on the ‘solicitor-and-own-client’ basis, representing one hundre d percent
of lawyers’ fees.69 A lthough one court has contemplated an indemnit y “in excess of 100%
of […] actual c osts,”70 an award generally may not exceed act ual costs billed and paid.71
Some Canadian jurisdictions use awards of costs to encourage the parties to settle as
soon as possible, thereby avoiding unne cessary litigation. Ontario, for inst ance, imposes
a nancial pena lty for refusing an oer in settlement th at proves to be no less favourable
than the judgment obtained: if the oer was made at least seven days before the start of
the hearing, t he oering party receives costs f rom that date for ward.72 British Columbia
has a similar provision that benets only the defendant.73 In Nova Scotia, rejection of
an oer in settlement is a factor taken into account during taxation.74 ese provisions
create a benecial incentive bot h to make and to consider serious oers at an early point
in the proceeding s.75
ii. Other Common Law Jurisdictions
Like their Canadian counterpart s, most of the world’s other common law jurisdictions
observe the rule t hat “costs follow the event.” In England and Wales, this rule orig inated
at common law but continues today in statute.76 Australia employs this ru le for civil
disputes but leaves each par ty to bear its own costs (as in the Draft Bill) in family
proceedings.77 In New Zeala nd, the loser pays costs, including lawyers’ fees generally
assessed at roug hly two-thirds of a reasonable rate for cou nsel.78 In India, costs follow the
event unless the cour t directs otherwise, w ith reasons.79 Costs in Belize inc lude necessary
lawyers’ fees in a “reasonable” a mount, subject to the courts’ discretion to award only a
67 In British Columbia, the substantial indemnity is k nown as “special costs.” See Knuts en, supra
note 64 at 122, n 31.
68 Rules of Civil Procedure, RRO 1990, Reg 194, s 1.03(1).
69 Se e e.g. Mintz v Mintz (1984), 46 CPC 234, 1984 CarswellOnt 471 (WL Can) (Ont SC); Re Seit z (1974),
6 OR (2d) 460, 53 DLR (3d) 223 (Ont H Ct J).
70 Foundation Co of Canada Ltd v United Grain Growers Ltd (1996), 8 CPC (4th) 354 at para 29, 25 CLR
(2d) 1 (BCSC).
71 See Stellarbridge Management Inc v Magna International (Canada) Inc (2004), 187 OAC 78 at para
97, 71 OR (3d) 263.
72 Rules of Civil Procedure, supra note 68, s 49.10(1-2). For a rejected oer, the plainti receives
costs at a substantial indemn ity; the defendant, at a part ial indemnity. Oddly enough, s 49.10(2)
appears not to provide for th e eventuality of a “defendant” winni ng a judgment despite having
oered to settle; however, a cour t could exercise its discretion to award the d efendant costs at a
partial or greater indemnity.
73 Supreme Court Civil Rules, BC Reg 168/2009, s 9-1(5)(d).
74 Nova Scotia Civil Procedure Rules, s 10.03.
75 The Draft Bill includes a much weaker provisio n, which allows the court to order leg al costs “if a
party […] refused, without valid c ause, to accept genuine oers” (supra note 16, art 338, para 2).
The order would be discre tionary rather than obligator y and would invite a subjective defe nce
of “valid cause.”
76 The Civil Procedure Rules 1998, SI 1998/3132, ss 43-48. Note that these rule s also apply in Gibraltar.
The Isle of Man, however, now has its own civ il procedure, with rules on costs that are l argely
copied from the English rule s: see generally Rules of the High Cour t of Justice 2009 (Isle of Man), s
11.1. Guernsey and Jersey also e ach have distinct rules of civil proce dure that are derived from
the English ones.
77 Austr alian Law Reform Commission, Costs Shif ting—Who Pays for Litigation (Canberra:
Commonwealth of Australia, 1995), online: Australian Law Reform Commission
austlii.edu.au/au/ other/alrc/publications/report s/75/ALRC75.pdf> at Overview.
78 High Court Rules, s 14.2, being Schedule 2 of the Judicature Act 1908 (NZ), 1908/89.
79 Civil Procedure Code 1908 (India), s 35(1-2).
APPEAL VoLuME 18
n
63
portion of costs.80 While these practices vary in their details, they all generally require
the losing part y to pay costs, including lawyers’ fees, in whole or in la rge part.
In the United States, both the federa l government and most states observe the “American
rule,” according to which the losi ng party pays for court costs but eac h party pays for its
own lawyers.81 China,82 Japan,83 and the Philippines84 also observe the American rule,
although their lega l systems are based on civil law. e few strongholds of t he American
rule, however, have been moving away from it. Various state and federal statutes in
the United States now provide for cost shifting, usually to punish and deter abuse of
process but sometimes to support suits broug ht in the public interest or even to correct
a nancial imba lance between the parties.85 In conjunction with a draft bill to revise
China’s civil procedure, China’s national association of lawyers recently submitted to
the National People’s Congress a set of recommendations under which the lawyer’s fees
would be borne by the losing part y.86 us the America n rule is gradually yieldi ng to the
international practice of sh ifting costs.
iii. Other Civil Law Jurisdictions
In the civil law trad ition, the rule of “loser pays” has a continuous history of more than
one and a half millennia. e Byzantine emperor Zeno rst proclaimed, in 487, that a
judgment had to include the costs of litig ation.87 e Justinia n Code famously expresses
this rule as “in expensarum causa victum victori esse condemnandum”:88 the losing party
shall be ordered to pay to the wi nning party the costs of the ac tion.
Today, most civil law jurisdictions other than Québec award the victor full indemnity
for costs, including law yers’ fees.89 Some jurisdictions, however, cap the amount that
can be awarded for law yers’ fees: in Spain, this limit is one-third of the value of the
lawsuit.90 Some jurisdictions award court c osts in full but apply a tari to lawyers’ fee s.
80 Civil Procedure Rules 2005 (Belize), ss 63.2(1), 63.6, 64.2(1)(a).
81 Alaska is the notable exception: it has long shif ted a portion of attorney s’ fees to the losing
party. See Alaska Rules of Civil Pro cedure, Rule 82.
82 E xcept in Macau, which uses civil law bec ause of the Portuguese colonial le gacy. See Art 376
Código de processo civil.
83 Ar t 61 Minzi Sosyou Hou [Code of Civil Procedure] (lose r pays court costs; no provision for
shifting lawyers’ fees).
84 Arts 142.1, 142.6 Rules of Court.
85 Se e e.g. Issachar Rosen-Zvi, “Just Fee Shifting ” (2010) 37:3 Fla St UL Rev 717 at 731-32; Jonathan
Fischbach & Michael Fischbach , “Rethinking Optimality in Tort Li tigation: The Promise of
Reverse Cost-Shifting” (2005) 19:2 BYUJ Pub L 317 at 332-35; John F Vargo, “The American Rule
on Attorney Fee Allocatio n: The Injured Person’s Access to Justice” (1993) 42:4 Am U L Rev 1567
at 1587-90; “State Attorney Fee Shifting Statute s: Are We Quietly Repealing the America n Rule?”
(1984) 47:1 Law & Contemp Probs 321 at 327-28.
86 Rújūn Wēn, “Lüs hī fèiyòng yóu bàisù dāngshìrén chéngd ān” [Let the Losing Party Bear the
Lawyers’ Fees], Făzhì Wănbào [Legal Eveni ng News] (28 November 2011), online: Făzhì Wănbào
87 Cod 7.51.5. Costs could include a ten-per cent surcharge, payable to the state, to punish
truculence. A judge who ne glected to award costs was perso nally liable for them (Cod 7.51.5.2).
88 Cod 3.1.13.6 [translated by author].
89 Examples: ArgentinA: Art 68 Códi go procesal civil y comercial de la nació n. BrAzil: Art 20 Código
de processo civil. BulgAriA: Art 78 Grazhdanski procesua len kodeks. FinlAnd: C 21, ss 1, 8(1)
Oikeudenkäymiskaari. FrAnce: Art 696 NC pr oc civ. germAny: § 91(1-2) Zivilprozeßordnung. ic elAnd:
Art 130 Lög um meðferð einkamála . itAly: Art 91 Codice di procedura civile. mAcAu: Art 376 Código
de processo civil. morocco: Art 124 Code de procédure civile. PortugAl: Art s 446(1), 447D(2)
(d) Código de processo civil. russiA: Ar t 100(1) Grazhdanskij Processual’nyj Kodeks (for non-
commercial disputes); Art 110(2) Arbitrazhnyj Processual’nyj Kodek s (for commercial disputes).
90 Art 394(3) Ley de enjui ciamiento civil.
64
n
APPEAL VoLuME 18
In Germany, for example, lawyers’ fees are set by statute.91 Although a German lawyer
may negotiate higher fees w ith the client,92 the a mount that ca n be granted for the costs
of litigation is limited to the “necessary” (notwendig) amounts—i.e., the rates given in
the tari .93 e civil codes of Austria94 and Chi le95 similarly limit the recovery of law yers’
fees to the rates in a tari set by the professional order of lawyers. Unlike the rates in
Qué bec’s Tari of Judicial Fees, however, these statutor y rates are realistic amounts i n line
with the market for lega l services; for example, they ser ve as the basis for the payment of
court-appointed lawyers.
iv. Comparison to Québec
In allocatin g the costs of litigation, Québec diers ma rkedly from the rest of Canada a nd
even from most other civil law a nd common law jurisdictions. It is perhaps most similar
to the jurisdictions th at follow the American rule, since the “de risory fees”96 available in
the Tari of Judicial Fees are litt le better tha n no award for lawyers’ fees at all.
e allocation of costs proposed in the Draft Bill appears to lack pa rallels anywhere
in the world. Almost all other jurisdictions award at lea st court costs to the successful
party; most award all or part of law yers’ fees as well. By leaving costs to fall where they
may, the scheme of the Draft Bill goes even further than the Americ an rule, which is
being tempered or abandoned by the few juri sdictions that still obser ve it. us Québec’s
proposed move to a régime in which costs are shifted only exceptionally, at the court’s
discretion, goes ag ainst the global trend towards substa ntial awa rds of costs.
D. Advantages and Disadvantages of the Draft Bill’s Proposal
e Draft Bill would improve predictability and access to justice by eliminating the
litigant’s risk of liability for the opposing party’s legal fees, which typically are dicult
to assess in advance. Under the proposed regime, litigants could manage their own
costs, and make decisions accordingly, without the risk of an adverse judgment in an
amount that is indeterminate at the outset. In particu lar, self-represented litigants
could eectively es timate and control their expenses. ese considerat ions are especi ally
important for public-interest litigation, which often seeks injunctive relief rather than
a monetary remedy. Few people are so civic-minded as to accept a substantial risk of
nancial ruin solely for the benet of the public. e removal of awards for costs could
thus greatly expa nd the scope of public-interest litigation, an import ant vehicle for
progressive social c hange.
In addition, the eliminat ion of cost shifting would oer adm inistrative advantages . Freed
of the burden of awarding costs, taxing bills, adjudicating disputes over the allocation
of costs, assessing interest, and enforcing orders for costs, the courts could devote more
resources to their ca se load and other responsibilities. e amounts cur rently provided in
the Tari of Court Costs may indeed be too sma ll to warrant the administ rative overhead
that they entai l.
On the other hand, the Draft Bill ’s proposal would have the unsavour y consequence
91 § 2(2) Rechtsanwaltsvergütungsgesetz; Anlage 1 Rechtsanwalt svergütungsgesetz.
92 § 2(1), 3a(1) Rechtsanwaltsvergütungsgesetz.
93 § 91(1) Zivilprozeßordnung (Germany).
94 § 41(2) Zivilprozeßordnung (Austria).
95 Ar ts 138-40 Código de procedimie nto civil.
96 Jean-Louis Baudouin & Patrice Deslauriers, La Responsabilité civile, vol 1, 7th ed (Cowansville,
Que: Yvon Blais, 2007) at 345 [translated by author].
APPEAL VoLuME 18
n
65
of punishing the victor. While denying an award for costs may be appropriate in some
cases, it seems fundamentally unfair for a genuinely virtuous party to have to pay quite
substantial su ms for the privilege of vindicati ng its position. Costs can ru n high enough to
yield the Dickensian nig htmare of a monetary award ful ly absorbed or even turned into a
net loss;97 for instanc e, a victim of defamation in Québec won some $164,000 in da mages
but incurred $540,000 in unrecoverable lawyers’ fees.98 Although t he jurisprudence on
this question is inconsistent,99 cost shifting is arguably justiable as a means of making
the winning pa rty whole (restitutio in integrum),100 since reasonable costs of litigat ion can
be seen as damages or losses caused by the opposing side.101 Denying awards for these
costs would render the pursuit of some well-founded c laims impracticably expensive.
e proposal would also do litt le to improve access to justice for a plainti who is much
weaker than t he defendant. By itself, an imbalance of power c onstitutes a strong deterrent
to suing. e amounts awardable for costs under the current taris are too small to
increase the deterrent eect substantially; only in the very large ca ses that are subject
to the additional one-percent fee would the Draf t Bill greatly reduce the amount of an
adverse judgment for costs. us the proposed change would not signicantly facilitate
the pursuit of a meritorious case ag ainst a more powerful opponent.
e change would, however, discourage much meritorious litigation, especial ly when
gains net of expenses would likely be small or negative. Potential plaintis mig ht
abandon strong claims or accept inadequate settlements; potentia l defendants might
make unnecessary concessions just to avoid irrecoverable expenses. Parties might take
the risk of representing thems elves in court rather than incurr ing high costs for counsel.
Although large corporations, government entities, and wealthy individuals can often
aord the costs of litig ation, ordinary people may be disinclined to spend la rge amounts
of money on lawsuits that they cannot be assured of winning. Litigants with greater
means and better leg al resources would therefore enjoy an unwarranted procedural
advant age.
In addition, this change could undermine the Draft Bill ’s objectives by discouraging
recourse to private means of dispute resolution. e risk of an adverse award for costs
serves as an incentive to try negotiation and other extrajudicial means before resorting
to litigation. Rather than fostering access to justice, eliminating this risk could well
encourage ill-founded and unnecessary lawsuits, thereby saddling virtuous parties
with expenses that they should not have to incur. us the proposal sits odd ly with the
promotion of private civil justice.
Indeed, the abolition of cost shifting could lead to more vexatious litigation and other
abuses of process. Although the Draft Bill grants the court discretion to award costs in
cases of abusive proceed ings and other acts or omissions that a re unreasonably prejudicial
to the opposing party,102 Québec’s courts have rarely made such awards. Mere failure to
prove a claim does not justif y a discretionary award of cost s;103 even recourse to repetitive
97 See especially Jarndyce v Jarndyce (c 1825), London, UK (Ch), adjourned sine die (costs in a
twenty-year lawsuit over th e validity of a will consumed the entir e estate). Unocially and
informally reporte d in Charles Dickens, Bleak House (Oxford: Oxf ord University Press, 2008). It
was the best of times for the law yers; it was the worst of times for p oor Richard Carstone.
98 See Société Radio-Canada c Guitouni, 2005 QCCA 155 at para 83, [2002] RJQ 2691.
99 See e.g. Néron, supra note 43 at paras 360 -63; Choueke, supra note 43 at para 106. Contra Viel,
supra note 43 (fees generall y available only for abuse of the right to sue at p ara 83).
100 See e.g. arts 1457, 1607, 1611 CCQ.
101 Baudouin & Deslauriers, supra note 96 at 350.
102 Draft B ill, supra note 16, arts 338 -39.
103 See Harper c Gewurz (1976), [1976] CA 411 at 412, AZ-76011117 (Azimut) (Qc).
66
n
APPEAL VoLuME 18
or needlessly costly proceedings may not suce.104 Just as self-represented litigants, safe
in the knowledge that any order for costs will be dr y, take advantage of their judgment-
proof status to hara ss others with vexatious and frivolous litigation,105 vexat ious litigants
in general would only be emboldened by the Draf t Bill’s poli cy.
Similarly, the Draft Bill’s cost s scheme would create an incentive for non-payment of
debts. e creditor of an undisputed debt would have to incu r substantial costs to obtain
a court order for what was uncontroversia lly due. Unless the amount was la rge, the
creditor might well abandon the claim rather than pursuing it without being able to
recover the costs of litigation. e debtor would have little to lose, but much to gain,
by exploiting what in this case would amount to a perverse rule of “winner pays.”
Although the Draft Bill provides for a discretiona ry award of costs for failure to answer
a summons,106 a defendant debtor who appeared and presented a pleading that was not
“clearly unfounded” mi ght avoid liability for t he creditor’s costs.107
e Draft Bill would not greatly change the allocation of costs, since awards of lawyers’
fees today are nominal, and court costs are minor in comparison to lawyers’ fees.
Eliminating the additional one-percent fee for disputes in excess of $100,000 would
make no dierence at a ll in small cases and only a minor dierence in any but the
largest ones. It is therefore di cult to see how the proposed changes to the alloc ation of
costs would improve access to justice or contribute signicantly to the achievement of
the Draft Bill’s other stated objectives. eir adverse consequences would outweigh the
meagre benets.
E. Other Implications for Costs
i. Small Claims
Under the current Code of Civil Procedure, claims for $7,000 or less must be referred
to the Small Claims Division.108 e Draft Bill would raise the threshold to $10,000
immediately,109 and to $15,000 three years a fter the new Code came into eect.110 is
progressive change would promote access to justice by assigning more disputes to the
Small Claims Division, which oers faster and cheaper adjudication. In addition, since
litigants in small-claims court cannot be represented by lawyers,111 the parties are more
evenly situated, and there a re no lawyers’ fees to allocate. e simplied procedures and
the severe limitations on rig hts of appeal a lso help to keep costs low.
At $7,000, Québec’s current limit for small claims is lower than that of every other
Canadian jurisdiction but the Yukon. Most provinces and territories set the limit at
104 See e.g. G (S) c J (D) (2000), [2000] RL 601 at 613, AZ-00026149 (Azimut) (Qc Sup Ct); Leblanc c
Lavoie, [1960] BR 153 at 159-60 (WL Can) (Qc).
105 See e.g. Galipeau, supra not e 12.
106 Draf t Bill, supra note 16, ar t 141, para 2.
107 Ibid, art 51.
108 Art 953 CCP. Note that art 954 CCP makes exceptions for claims perta ining to leases, payment of
support, class act ions, slander, and recovery of assigned cla ims.
109 Draf t Bill, supra note 16, art 79 9(4).
110 Ibid, ar t 539.
111 Art 959 CCP. See also Draft Bi ll, supra note 16, art 545, para 1.
APPEAL VoLuME 18
n
67
or above $25,000.112 e higher limit of $15,000 provided in the Draf t Bill, though
still relatively low, would therefore bring Québec closer to those of other Canadia n
jurisdictions. is expansion of the jurisdiction of the Sma ll Claims Division is long
overdue: the ceiling on small claims has not been raised since 1 January 20 03. e
Barreau du Québec has u nreservedly endorsed this proposed cha nge.113
ii. Restrictions on Pre-Trial Examinations
e Code of Civil Procedure al lows pre-trial examinations, e xcept in cases worth less tha n
$25,000.114 e number and duration of these examinations are decided by the parties
themselves, or by the cour t if the parties cannot agree .115 Alt hough there is no prescribed
limit on examinations, the principle of proportionality constrains them in both cost
and time.116 Upon request, the court may halt an examination that it deems abusive or
unnecessa ry and issue an order for the associated costs .117
e Draft Bill would limit the scope of a pre-trial examination to ve hours in general,
and to only two hours “in f amily matters or cases where the value in dispute is less than
$100,000”;118 in suits worth less than $30,000, pre-trial examinations would be barred
altog ether.119 Only by leave of a judge could these limits b e exceeded.120 e courts would
retain their power to ha lt unnecessary exam inations and issue orders for costs.121
e proposed restrictions nd pa rallels in other Canadia n jurisdictions. British Columbia
and Ontario, for example, genera lly limit oral examinations for di scovery to seven hours
in all;122 Nova Scotia limits them to three hours in an action for less than $100,000.123
ese restrictions are stronger than those of the Draf t Bill, which would limit the
duration of each individua l examination, not the total for each side.
ese constraints on pre-trial examinations would help both to reduce the costs and
delays of litigation and to discourage intrusive, irrelevant inquiries. e Barreau du
Québec supports the proposal but would i ncrease the limit from ve hours to seven, and
from two hours to three for d isputes worth less than $100,000.124 Although these details
112 AlBertA ($25,00 0): Provincial Court Civil Division Regulation, Alta Reg 329/1989, s 1.1. British
columBiA ($25,000): BC Reg 179/2005, s 1. mAnitoBA ($10,000): Court of Queen’s Bench Small Claims
Practices Act, CCSM c C285, s3(1). newBrunswick ($30,000): Rules of Court, Reg 1982-73, s 80.02(1).
newFoundlAnd And lA BrAdor ($25,000): NLR 69/04, s 2. novA scotiA ($25,000): Small Claims Court
Act, RSNS 1989, c 430, s9. northwest territories ($35,000): Territorial Court Act, RSNW T 1988, cT-2,
s16(1). nunAvut ($20,000): Small Claims Rules of the Nunavut Court of Justice, Nu Reg 023-2007,
s3.1(2). ontArio ($25’000): Small Claims Court Jurisdiction, O Reg 626/00, s 1(1). Prince edwArd islAnd
($8,000): Small Claims Regulations, PEI Reg EC741-08, s2. QuéBec ($7,000): Art 953 CCP. sAskAtchewAn
($20,000): Small Claims Regulations, RRS, cS-50.11, Reg 1, s 3. yukon ($5,000): Small Claims Court
Act, RSY 2002, c 204, s2(1).
113 “Mémoire du Barreau,” supra note 20 at 17.
114 Art 396.1 CCP.
115 Art 396.2 CCP.
116 Art 4.2 CCP.
117 Art 396.4 CCP.
118 D raft Bill, sup ra note 16, art 223, para 2.
119 Ibid, para 1.
120 Ibid, para 2.
121 Ibid, art 224.
122 Brit ish columBiA: Supreme Court Civil Rules, sup ra note 73, s 7-2(2). ontArio: Rules of Civil Procedure,
supra note 68, s 31.05.1(1).
123 Nova Scotia Civi l Procedure Rules, supra note 74, s 57.10.
124 “Mémoire du B arreau,” supra note 20 at 24. The Barreau also o bjects to the special limit appli ed
to disputes at family law, which sometim es involve large sums of money and may require more
extensive examinations.
68
n
APPEAL VoLuME 18
may be subject to reasonable disa greement, the policy of limiting the duration a nd scope
of pre-trial examinations gives concrete expression to the principle of proportionality
and oers a prudent and workable way to improve access to justice. Nevertheless, the
text of the Draft Bill does not clearly limit the total duration, only the duration of each
examination. If the legislator’s intent is to limit the total, as several other provinces do,
the text should so state ex plicitly.
iii. Case Management
Currently “the parties to a proc eeding have control of their case,” but “[t]he court sees to
the orderly progress of the proceeding and intervenes to ensure proper mana gement of
th e ca se.”125 Speci al case management is avai lable for family matters and long or complex
cases, either at the in itiative of the presidi ng judge or upon request of a party.126
e Draft Bill would explicitly make it “part of the mission of the courts to ensure
proper case management”127 and would subordinate the parties’ control of their c ase to
this “duty of the courts […].”128 Measures taken for the purpose of case management
would not be subject to appeal, except by leave of a judge of the Court of Appeal if
they seemed “unreasonable in light of the guiding principles of procedure.”129 us the
Draft Bill would expand the ambit of case management as well a s the courts’ role in
controlling and reducing t he costs and delays of litigation. Rather th an interceding only
to correct excesse s and ineciencies, the courts would assu me primary responsibility for
case mana gement, setting the bounds within w hich the parties would conduct their c ase.
ese provisions have the potential to yield economies, and therefore enhance access to
justice, if the cour ts exercise their authority consistently and eec tively.
iv. Limits on Expert Evidence
Currently the several parties may decide on the amount of expert evidence that they
will adduce. ey must st ate their decision in the case protocol.130 e leading of expert
evidence remains adversarial, although t he court may require the par ties’ experts to
“reconcile t heir opinions.”131
Under the Draft Bill, “[t]he purpose of expert evidence” would be “to enlig hten the court
and assist it in ass essing evidence.”132 is duty to the court would “override[] the pa rties’
interests.”133 e parties would be encourag ed to seek joint expert evidence134 and would
have to justify in t he case protocol any decision not to do so.135 A judge could order joint
expert evidence notwithstanding the parties’ decision.136 e parties would be limited
to “one expert opinion, whether joint or not, per area or matter,” unless a court allowed
more.137
125 Art 4.1 CCP.
126 Art 151.11 CCP.
127 Supra note 16, art 9, para 3.
128 Ibid, art 19, para 1.
129 Ibid, art 32.
130 Art 151.1, para 3 CCP.
131 Art 413.1 CCP.
132 Draf t Bill, supra note 16, ar t 225, para 1.
133 Ibid, art 229.
134 Ibid, ar ts 226-27.
135 Ibid, art 144, para 2 .
136 Ibid, art 155(2).
137 Ibid, art 226, para 2 .
APPEAL VoLuME 18
n
69
If successfu l, these limitations would tend to lower costs by reducing the number of
experts hired a nd the amount of time spent obtaining , presenting, and contesting their
testimony; they would also foster a spirit of cooperation and collaboration, at least over
the factual questions in dispute. ey stand in tension, however, with the adversarial
nature of court proceed ings in Québec. Both current procedure and the Draft Bill
place the parties in control of the case.138 As a result, each party will attempt to lead
evidence, including expert evidence, that supports the party’s own position. A part y
would be unlikely to a gree to present expert evidence that was not know n beforehand to
favour that part y’s side of the dispute; indeed, part ies in adversarial d isputes sometimes
consult numerous experts before selecting one to present in court.139 It may therefore be
unrealist ic to expect joint expert evidence, especia lly in a case that turns on questions of
technical k nowledge or opinion. e expectation of joint evidence could also ex acerbate
an imbalanc e of power in high ly subjective disputes, suc h as those involving family law.
One option that is more harmonious with the aims of the Draft Bill is the use of
court-appointed experts. Jurisdictions with an investigative procedure employ them as
a matter of course. France, for instance, has a statutory registry of court-recognized
experts (experts judiciaires), who are called in by the courts as needed.140 In Germany,
“the court takes the initiative in nominating a nd selecting the expert” unless t he partie s
agree upon a choice.141 Unlike exper ts chosen by the parties, whose evidence tends to be
discounted as presumptively biased in favour of the part y that commissioned it, those
appointed by the court itself are generally taken to be neutra l and trustworthy.142 Even
some adversarial jurisdictions, such as Texas, have experimented protably with court
appointment of experts,143 a practice facilitated by case management.144 Indeed, bec ause
court-appointed experts reduc e partisan bias and help to achieve more accu rate ndings
of fact,145 they are likely to be used more and more in North America for such complex
fact-specic matters as toxic torts and product liability.146 is successful approach to
obtaining exper t evidence dovetails with the Draft Bill’s objective of saving money a nd
time for the sake of increa sed access to justice; it is also more rea listic and more practical
than requirin g the parties to adduce joint expert evidence.
138 Art 4.1, para 1 CCP; Draft Bi ll, supra note 16, art 19, para 1.
139 See Thorn v Worthing Skating Rink (1877), 6 Ch D 415 at 416, CA (Eng) [Thorn]. Jessel MR observed
that “[a] man may go, and does sometimes, to half-a -dozen experts. […] He takes their hone st
opinions, he nds three in his f avour and three against him; he says to the three in hi s favour, Will
you be kind enough to give evid ence? and he pays the three against him their fee s and leaves
them alone; the other side do es the same. It may not be three out of six, i t may be three out of
fty. I was told in one case, w here a person wanted a certain thi ng done, that they went to sixty-
eight people before t hey found one.”
140 Loi n° 71-498 du 29 juin 1971 relative aux experts judiciai res, JO, 30 June 1971, 6300.
141 John H Langbein , “The German Advantage in Ci vil Procedure” (1985) 52:4 U Chicago L Rev 823 at
837.
142 Ibid at 83 6- 37.
143 See Anthony Champagne e t al, “Are Court-Appointed Expert s the Solution to the Problems of
Expert Testimony?” (2001) 84:4 Judicature 178.
144 Langbein, supra note 141 at 841.
145 See “Confronting the N ew Challenges of Scientic Evidence ” (1995) 108:7 Harv L Rev 1481 at
1590 .
146 See Karen Butler R eisinger, “Court-Appointed Exper t Panels: A Comparison of Two Models”
(1998) 32:1 Ind L Rev 225 (the use of court-appointed experts is wi dely expected to increase at
233-34); Tahirih V Lee, “Court-Appointed Expe rts and Judicial Relucta nce: A Proposal to Amend
Rule 706 of the Federal Rules of Ev idence” (1988) 6:2 Yale L & Pol’y Rev 480 (court-appointed
experts show par ticular advantage in criminal mat ters, toxic torts, complex l itigation, and child
placement at 488-92).
70
n
APPEAL VoLuME 18
v. Focus on Oral Proceedings
e Draft Bill would favour oral over written proceedings by requiring oral pleadings
“in all instances where the case [did] not present a high level of complexity or it [was]
desirable that the ca se be decided promptly,”147 unless the parties agreed to use written
pleadings.148 is change would st reamline litigation by eli minating the time and ex pense
that the preparation, ling, and service of written pleadings entails. Yet these benets
could come at the unacce ptable cost of injustice. Written pleadings set out the argu ments
to be raised at tria l. By contrast, the exclusive use of oral pleadings can faci litate “trial
by a mbush ,”149 in which issues and arguments are raised for the rst time at trial so as
to deprive the opposing part y of the opportunity to prepare an eective re sponse. A self-
represented litigant with no lega l training would be at a disadva ntage against competent
opposing counsel. Judges should t herefore have the discretionary power to allow wr itten
pleadings whenever the y are necessary to ensure just proceed ings.
F. Critical Assessment
Although Québec, like the rest of the world, generally requires the loser to pay the
winner’s costs, the denition of “costs” in Québe c is so circumscribed that only a minor
portion of expenditures is recoverable. is is especial ly true of lawyers’ bills, as the
Tari of Judicial Fees stipulates a “ridiculously low percentage for the reimbursement
of extrajudicial fees.”150 Realistically speaking, the amount available as “ judicial fees”
is likewise unrelated to the costs of litigation: the current maximum of $1,000 in a
contested action for $50,000 or more would cover, at the average Canadian rate, only
three hours of a lawyer’s time,151 wh ich would not suce for preparing and pleading even
the simplest lawsuit.
One peculiar consequence of Québec’s allocation of costs is the possibility of a windfall
in the largest cases. For a claim in exce ss of $100,000, the additional one percent of the
value of the dispute that is provided in the Tari of Judicial Fees152 wil l be awarded even
if it exceeds the lega l costs of the suit.153 In Aéroports de Montréa l c Société en commandite
Adamax immobilier, a cla im for some $30million that was dismissed after only three
hours of hearings resu lted in an order for $300,000 in costs, almost all of which
represented this additional one-percent fee.154 Most likely this amount greatly exceeded
the respondent’s expenditures. Call ing the order “unfair and disproportionate under the
circumstances,” the judgment-debtor brought an appeal that proved unsuccessful.155
Indeed, “unfair and disproportionate” accurately cha racterizes Québec’s whole scheme
of allocating costs, which so richly indemnies the winners of lawsuits over amounts in
the tens of millions of dollars while capping the judicial fees for more modest lawsuits
147 Draft Bill, supra note 16, art 167, para 1. By way of illustration, the tex t species oral pleading
“in all instances where the pur pose of the proceeding is to obtain su pport or a right relating
to the custody of a child, to obta in the surrender of propert y, an authorization, a designation,
a homologation or the re cognition of a decision, or where it s subject matter is the manner in
which an oce is to be perfo rmed or the sole determination of a su m of money due under a
contract or as reparation for proven prejudice.”
148 Ibid, art 144, par a 2. The parties would have to justif y this decision in the case protocol, a nd the
court would have the power to orde r oral pleadings instead (ibid, ar t 155(6)).
149 “Mémoire du Barreau ,” supra note 20 at 19.
150 Larose c Fleury, 2006 QCCA 1050 at para 77, [2006] RJQ 1799 [translated by author].
151 The average hour ly rate for a Canadian lawyer is $326. See Todd, supra note 6 at 37.
152 Supra n ote 28, art 42.
153 Industries Lead er, supra note 33.
154 2012 QCCA 293, JE 2012-465.
155 Ibid at para 10 [translated by author].
APPEAL VoLuME 18
n
71
at a nominal amount that c annot makeup for fees paid. Wittingly or not, the legislator
has set up a scheme that favours the corporations and government bodies t hat bring the
largest lawsuits over the ordinary people and sma ll companies involved in litigat ion for
lesser sum s.
e tax treatment of lega l expenses also distinct ly privileges corporations, which, unli ke
natural persons, can deduct all of their legal expenditures from their taxable income.156
us the cost of counsel itself is higher for individuals, for whom only legal expenses
related to income are generally deductible.157 Far from correcting this inequality, the
Draft Bill would exacerbate it by deprivin g individuals of the chance to recover the lega l
bills that they u sually must pay with after-tax dolla rs.
e Ministry of Just ice proposes to correct the current unjust allocation by let ting costs
fall where they may. is dra stic proposal has no precedent elsewhere in the world that
could provide experience or data with which to evaluate its merits. It lacks an empirical
basis; indeed, very fe w empirical studies have been conducted on the eect of dierent
regimes for allocating the costs of litigation, and most of them have been simulations
rather than comparisons of conditions in real jurisdictions.158 Both its theoretical and
its practical motivation are insucient in view of its potential to exacerbate the very
inequalities th at the Ministry of Justice proposes to addres s.159
Vexatious litigants, al ready a scourge, would only be emboldened by the provisions of the
Draft Bill. ose who represent themselves in court might well consider it a bargain to
be able to harass their enemies for a few hundred dollars in ling fees and related court
costs. Already many vexatious litigants fail to satisfy orders for costs.160 Rather tha n
making it cheaper for people to harass others with abusive process, the legislator should
take measures to discourage and prevent vexatious litigation. Ultimately a persistent
vexatious litigant must be stopped from continuing or initiating actions;161 howe ver,
to protect opposing parties from unnecessary expenses, the legislator might require a
litigant with unpa id adverse judgments or a history of abusing process to put up securit y
against costs.
By adopting an allocation of costs so far removed from those of other jurisdictions,
Québec could inadvertently encourage forum shopping. Prospective plaintis with
the possibility of suing in Québec would tend to prefer Québec if its rules on costs
favoured them and to seek anot her forum otherwise. Just as large d ierences in remedies
can motivate a strategic choice of forum, so could large dierences in awards for costs.
Québec might thus attract a disproportionate number of speculative or even frivolous
lawsuits. e risk of forum shopping, although uncerta in in the absence of empirical
data, may therefore provide another reason not to deviate markedly from international
156 See Canada Reven ue Agency, Interpretation Bulletin IT-99 R5, “Income Tax Act Legal and
Accounting Fees” (5 December 200 0) at paras 1-4.
157 See ibid at para 1; Income Tax Act, RSC 1985, c 1 (5th Supp), s 18(1)(a).
158 See Laura Ingl is et al, “Experiments on the E ects of Cost-Shifting, Court Cos ts, and Discovery on
the Ecient Settleme nt of Tort Claims” (2005-06) 33:1 Fla St UL Rev 89 at 92.
159 See supra note 17 and accompanying text.
160 See e.g. Brousseau c Drouin, 2012 QCCS 977 (CanLII); Re Lang Michener and Fabian (1987), 59 OR
(2d) 353, 37 DLR (4th) 685 (Ont H Ct J); Wong v Giannacopoulos, 2011 ABCA 206, [2011] AWLD 3133;
Landmark Vehicle Leasing v Marino, 2011 ONSC 1671 (available at CanLII); Lukezic v Royal Bank,
2011 ONSC 5263, 206 ACWS (3d) 735.
161 See Yves-Marie M orissette, “Abus de droit, quérulence e t parties non représentées” (20 03) 49
McGill LJ 23 at 51-54. See also Attorney-General v Ebert, [2001] EWHC Admin 695, [2002] 2 All ER
789 (HJC QBD) (vexatious litigant who had br ought at least 151 actions in the same matter, made
scandalous accusations an d threats against judges, and purp orted to eect a citizen’s arres t of
one judge was nally barre d from initiating lawsuits and even from at tending at the courthouse).
72
n
APPEAL VoLuME 18
practices, especially the practices of those jurisdictions for which Québec is likely to be
an alternate choice of forum in m any lawsuits.
e simplicity of administ ration that the Draft Bill’s a llocation of costs promises could
prove to be illusory if it led to more discretionary awards and contestations thereof.
Exercise of judicial discretion could also result in inconsistent awards, especially if
judges felt the need to correct the harshness of the Draft Bill’s scheme through their
discretionary powers. Numerous jurists already insist that reconciling awards for costs
with the principle of restitutio in integrum will requi re “a legislative reform”;162 some go so
far as to advocate t hat the courts circumvent the current tar is by awarding extrajudicia l
fees as compensatory damages, costs, or even punitive damages.163 Yet the “legislative
reform” oered by the Draft Bill runs counter to t hese proposals.
e new scope of the principle of proportionality wou ld also leave room for inconsistency.
e Draft Bill would set objective limits on exa minations and expert e vidence while
leaving other matters u ncertain. e resulti ng subjectivity would al low for proportionality
to be used as a sword rather than as a shield: pre-emptive challenges made tactically on
the grounds of proportionalit y could compromise justice, especially when the parties
were unequally matched in power and resources. Although judges could use their
discretionar y powers to address abusive challenge s, the principle of proportionality could
operate inconsistently with t he stated objectives of t he Draft Bill.
Awards of costs are designed to achieve such worthy goals as fairness to the winning
party, deterrence of vexatious a nd other unnecessar y litigation, encouragement to keep
costs down, and facilitation of access to justice. Since these objectives stand in tension,
the legislator must endeavour to nd the golden mea n. e allocation of costs in the
Draft Bill, however, advances none of these objectives other than cost control; it even
detracts from some of them.
Until there is sound justicat ion, preferably empirical, for abandoning the rule of “loser
pays,” the legislator should maintain that rule—a nd keep the Tari of Judicial Fees
current, either by indexing it to ination or through regula r updates, to reect the fees
that prevail in t he market for legal services. Indeed, a more generous allocation of costs,
such as those of the other Ca nadian jurisdictions, deserves serious consideration. At the
same time, the courts should be granted discretion to reduce or eliminate costs in the
interest of justice, as in c ases in which each part y wins on some issues or a wide disparity
between the par ties’ respective nancial resources would make an award of costs
oppressive.164 i s grant of discretion would be consonant with the gre ater responsibility
for case management that the Draft Bill places on the courts. e legislator should also
provide guidance for the exercise of this discretion so as to achieve the worthy social
goals of promoting acces s to justice and en suring procedural equity.
Contrary to the Draf t Bill’s proposal, the starting point should be that the losing party
must pay the winning p arty’s reasonably necessar y costs, including lawyers’ fees , unless a
court orders otherw ise in the interest of justice. e quantum of co sts, however, should be
kept within limits, a s in all other jurisdictions. e Au stralian Law Reform Commi ssion
has recommended the practical and sensible approach of xing the maximum risk in
advance with a ceiling on awards for costs (perhaps a percentage of the value of the
dispute, as in Spain165), and a lso adjusting the amount to account for wastefu l or abusive
162 Baudouin & Deslauriers, supra note 96 at 350 [translated by author].
163 Ibid at 346, 350-51.
164 See “Mémoire du Barrea u,” supra note 20 at 17.
165 See supra note 90 and accompanying text.
APPEAL VoLuME 18
n
73
actions by either party.166 is allocation of costs achieves the goals listed above while
reasonably balancing the interests of the opposing parties and also embodying the
principle of proportionality that is central to both the current Code of Civil Procedure167
and the Draft Bill.168
II. ALTERNATIVE DISPUTE RESOLUTION
A. Current Status in Québec
Since 1997, Québec has required pre-hearing mediation for most disputes pertaining
to family law, if the interests of children are involved.169 Parents seeking separation,
divorce, or annulment of their ma rriage must attend one seventy-ve-minute session and
may receive as many as si x at the state’s expense.170 is progressive programme reects
sensitivity to the welfa re of the children, who are deeply aected despite being non-
parties to the d ispute between t heir parents.171
Mediation is more eective than contentious court proceedings at fostering the
communication and collaboration that are essential to an arrangement made in t he
best interests of the children;172 it replaces “the logic of the adversarial system” with a
human approach that creates “an atmosphere conducive to envisioning the future.”173
In addition, successful mediation leaves available for the children money that would
otherwise have gone to pay lega l bills—a consideration of especi al importance in fami lies
of modest means. A study com missioned by the Ministry of Justice found that t he great
majority of participants were highly satised with pre-hea ring mediation and felt that
they were the authors of their own re solution.174
In addition, small claims are subject to alternative dispute resolution under the ægis of
a private mediator, a judge, or both. e Small Cla ims Division of the Court of Québec
arranges mediation, at the request of the parties, for no expense beyond that already
incurred to initiate the action.175 If the dispute proceeds to cour t, “the judge attempts
to reconcile the parties,”176 whether or not they have tried mediation. ese exceptions
aside, Québec’s courts do not require alternative dispute resolution for civil matters,
although they may “ invite the parties to a settlement conference or […] recommend
media ti on.”177
166 Supra n ote 77 at s 2.
167 Art 4.2 CCP.
168 See e.g. Draft Bill, supra note 16, Prelimi nary Provision, para 3; ibid, art 2, para 2; ibid, ar t 18, para 1.
169 Art s 814. 3-14 CC P.
170 Regulation Respecting Family Mediation, RSQ, c C-25, r 9, ss 10-11. The parties may also receive
three sessions in order to have a judg ment reviewed, for purposes such as v arying the amount
of support or the arran gements for custody of the childr en.
171 Feminists , however, have pointed out that any scheme of mandator y mediation for family-
related disputes must take into accoun t such important gender-linked issu es as power
imbalances and domestic v iolence. See Noel Semple, “Man datory Family Mediation and the
Settlement Mission: A Fem inist Critique” (2012) 24 CJWL 207.
172 See Mari e-Claire Belleau & Guillaume Talbot-L achance, “La Valeur juridique des entente s issues
de la médiation familiale: p résentation des mésententes doc trinales et jurisprudentielles ” (2008)
49 C de D 607 at614.
173 Ibid at 615 [translated by author].
174 Québe c, Ministère de la Justice, Troisième Rapport d ’étape du Comité de suivi sur l’implantation de
la médiation familiale (Québec: Gouvernement du Québ ec, 2008) at 95.
175 Art 973 CCP.
176 Art 978, para 1 CCP.
177 Art 151.6(5) CCP.
74
n
APPEAL VoLuME 18
For arbitration, the Code of Civil Procedu re establishes procedural rule s that apply unless
the parties have stipulated otherwise.178 A dispute must be heard by three arbitrators,179
who are endowed with Kompetenz-Kompetenz (the authority to determine their own
competenc e)180 and the power to conduct inspections and gather evidence.181 Unl ike
court proceedin gs, arbitral proceedings are kept con dential.182 e arbitrators’ decision
is binding upon the part ies183 and is not subject to appeal or judicial review; “[t]he
only possible recourse aga inst [it] is an application for its annulment,”184 which can be
entertained only on the ground s enumerated in the C ode of Civil Procedure.185
B. Proposal in Draft Bill
Under the Draft Bill, the parties to a dispute would be required to “consider the private
modes of prevention and resolution”186 before resorting to adjudication.187 e Draft
Bill specical ly identies negotiation, mediation, and arbitration as “[t]he principal
such modes” but would allow disputants to select another process.188 It also denes “the
procedure applicable to private modes of dispute prevention and resolution when it is
not otherwise determined by the parties.”189 In general, participants in private dispute
prevention or resolution would “undertake to preserve t he condentiality of anything
said, written or done during the proc ess.”190
e Draft Bill would retain the requirement of a mediation informat ion session for family-
related disputes involving the interests of children191 but would also a llow the courts to
refer other disputes to mediation at any time.192 Unless a court ordered otherwise, the
costs of mediation would be borne equa lly by the parties.193
For arbitration, the number of required arbitrators would be reduced from three to
one,194 unless t he parties agreed to appoint more than one arbitrator.195 e arbitrators
would be required to uphold both “the adversaria l principle and the principle of
proportionality”196 but would retain their authority to conduct inspections and gather
evidence.197 Kompetenz-Kompetenz would be subject to judicial review, without right of
178 Art 94 0 CCP.
179 Art 941 CCP.
180 Art 943 CCP.
181 Art 944.4 CCP.
182 Art 945 CCP.
183 Art 945.4 CCP.
184 Art 947 CCP.
185 Art 946.4 -5 CCP.
186 Draft Bill, supra note 16, art 1, para 3.
187 Ibid, arts 2, 7.
188 Ibid, art 1, para 2.
189 Ibid, Preliminar y Provision, para 1. The Draft Bill does not, however, specif y whether the parties
could contractually den e the procedure in advance. In arbitrat ion, the choice of procedure is
left to the arbitrator (ibid, ar t 633, para 1).
190 Ibid, art 4 .
191 Ibid, art 414, para 1.
192 Ibid, art 418, para 1.
193 Ibid, art 620, para 1.
194 Ibid, art 625, pa ra 1. In international commercial disputes, however, three arb itrators would be
used (ibid, art 647, para 1).
195 Ibid, art 625, para 1. The tex t speaks of “more than one arbitr ator, in which case each party
appoints one arbitrato r, and the two so appointed appoint the third.” Th is poorly drafted
passage suggests that “more than one” means precisely three.
196 Ibid, art 633, para 1.
197 Ibid, art 634, par a 3.
APPEAL VoLuME 18
n
75
appeal.198 e a rbitrators would have to issue their decision “in w riting within three
months after the mat ter is taken under advisement.”199
C. Alternatives
Althoug h the Draft Bill provides some support for alternative dispute resolution, it could
go further in this direction. Rather than merely requiring the parties to “consider”200
alternative dispute resolution, the legislator could expand the judiciar y’s existing
programmes to encompass a broader class of civil disputes, starting with those types of
cases that a re most conducive to a mediated settlement. e success of mediation in the
context of family law bode s well for disputes of other kinds.
e legislator could also make mediation obligatory, as do a number of other North
American juris dictions. Since 1999, Ontario has impos ed mandatory private mediation,
at the parties’ expense, for cases subject to case management in three of the province’s
largest cities.201 In British Columbia, the judge managing the case can “requir[e] the
parties of record to attend one or more of a mediation, a settlement conference or any
other dispute re solution process”;202 in addition, legislative provisions allow any party to
require mediation in a claim for an accident involving motor vehicles,203 a fa mily-law
proceeding,204 a dispute over residential construction,205 or another matter that is not
specically excluded.206 Alberta,207 Newfoundland and Labrador,208 Saskatchewan,209
and several states in the United States210 have also instituted mandatory alternative
dispute resolution for many civil matte rs.
Instead of always requiring consideration of non-adjudicative approaches, the legislator
could leave more discretion to the judge. e nature of the dispute and the condition of
the disputants could inform the decision to recommend private civil justice. Judiciously
applied, this approach could improve eciency by referring only suitable cases to
alternative dispute resolution.
D. Advantages and Disadvantages of the Draft Bill’s Approach
Alternative dispute resolution ca n contribute to the goals that u ndergird the Draft Bill. It has
the potential of settl ing disputes more quickly and less expen sively than the courts. Cou rt-
connected civil medi ation in Québec and the other provinces where it has been inst ituted
has succeeded in t his respect: most disputes are settled before or during mediation, on
average in about half t he time of disputes taken to litigation.211 Lawyers surveyed have
198 Ibid, paras 2-3.
199 Ibid, art 638, p ara 1.
200 Ibid, art 1, para 3.
201 Rules of Civil Procedure, su pra note 68, ss 24.1, 75.1. The rules list a few excepti ons.
202 Supreme Court Civil Rules , supra note 73, s 5-3(1)(o).
203 Notice to Mediate Regulation, BC Reg 127/98, s 2.
204 Notice to Mediate (Family) Regulation, BC Reg 29 6/2007, s 2.
205 Notice to Mediate (Residential Construction) Regulation, BC Reg 152/99, s 2.
206 Notice to Mediate (General) Regulation, BC Reg 4/2001, s 3.
207 Alberta Rules of Court, Alta Reg 124/2010, s 4.16.
208 Rules of the Supreme Court, SNL 1986, c 42, Schedule D, s 37A.
209 Queen’s Bench Act, SS 1998, cQ-1.01, s 42.
210 See e.g. Holly A Streeter-Schae fer, “A Look at Court Mandated Civil Mediation” (200 0-01) 49
Drake L Rev 367 (discussing mandatory me diation of civil disputes in Alabama, De laware,
Indiana, Louisiana, Maine, Montana, Nevada, and North Carolina).
211 See Michaela Keet & Teresa B Salamone, “From Litigation to Me diation: Using Advocacy Skills for
Success in Mandatory or Cour t-Connected Mediation” (20 01) 64 Sask L Rev 57 at 66-67.
76
n
APPEAL VoLuME 18
estimated substa ntial cost savings for clients whose disputes were med iated.212
Alternative dispute resolution also encourages conciliation rather than contention
and empowers the parties by giving them the leading roles in their own settlement; it
even indirectly benets society by training the public in the autonomous resolution of
disputes. Empirical research suggests t hat users of mediation are more likely than users
of adjudication to be satised with the fairness of the process a nd to emerge with less
enmity and anger,213 perhaps because each party to a mediated dispute can come away
with the feeling of hav ing won. Indeed, most disputants who have resorted to mediat ion
have been satised with t he process.214 Disputants who are wary of litigation, owing to
its high costs and risks as well as its confrontational, winner-take-all character, may be
more willing to pursue t heir interests through alternative means .
Even for a dispute that ultimately proce eds to litigation, an attempt at alternative dispute
resolution can benecially settle some issues and cla rify or narrow the scope of the
conict. In a dispute ma rked by technical complexity in a specia lized eld, arbitrators or
mediators with the required e xpertise may be preferable to a judge.
In addition, alternative dispute resolution relieves the burden on the courts. Even
when alternative approaches fail to achieve a resolution, they can helpfu lly simplify the
dispute by disposing of some issues a nd clarifying the rema ining ones. ey also free the
trial court s up for disputes that truly require their costly and time-consuming formal
procedures. Since opportunities to contest non-adjudicated settlements are limited,
alternative approaches indire ctly lighten the workload of the appellate court s as well.
While recognizing these advantages, however, the Draft Bill only weakly promotes
alternative dispute resolution. It stops short of mak ing non-adjudicative approaches
obligatory, requiring only that the parties “consider”215 them. e requirement would
prove hollow if a party bent on adjudication could satisfy it through a mere avowa l of
having “considered” a lternative approaches .
Yet some forms of alternative dispute resolution could result in unjust outcomes.
Mediation, being subject to judicial approval, receives curial oversight and is thus less
risky, despite the condentiality of its proceedings. Moreover, either party ca n end
mediation at any time and t ake the dispute to the courts. ese sa feguards help to ensure
the fairness of med iated resolutions. By contrast, arbitration results in a binding de cision
that forecloses appeals and the option of litigation. e danger of a n unfair arbitra l
outcome looms especially large when an imbalance of power exists between the parties.
Courts should therefore hesitate to re fer unevenly matched parties to arbitration.
Although alternat ive dispute resolution is sometimes thought to save money, it tends to
be more expensive than adjudication. In Ontario, for instance, the parties must pay for
mandatory mediation on top of the court costs that they have already incurred. For a
case involving only t wo parties, a mandatory session of mediation can cost as much as
$600,plus GST.216 ese fees cover three hours; additional t ime is billed at “the mediator’s
212 See ibid at 82, n 79. Compare Jean Guibault , “Les Moyens alternatifs de résoluti on de conits
en matière civile et commercia le dans une perspective de réf orme du Code de procédure civile”
(1999) 40:1 C de D 75 at 86; Jean Marquis, “Médiation, conciliation: le s tribunaux, agents de
changements” (2001) 42:3 C de D 783 at 788.
213 See Roselle L W issler, “The Eects of Mandator y Mediation: Empirical Resear ch on the
Experience of Small Claim s and Common Pleas Courts” (1997) 33 Willamette L Rev 565 at 568- 69.
214 See Keet & Salamon e, supra note 211 at 67-68.
215 Draft Bill, supra note 16, art 1, para 3.
216 Mediators’ Fees (Rule 24.1, Rules of Civil Procedure), O Reg 451/98, s 4(1).
APPEAL VoLuME 18
n
77
fees or hourly rate,” which ordinarily will be much higher than t he statutory a mount.217
Arbitration can be even more expensive, especially if, as in Québec today, multiple
arbitrators are required. A ncillary expenses, such as travel, increa se the cost of these
means of resolving disputes. e courts, by contrast, charge a at fee that is relatively
low, typically no more than a fe w hours of an arbitrator’s time at sta ndard rates. e fe e
may depend on the amount in dispute218 but not on the durat ion of the proceedi ngs: the
same fee applies whether the law suit be dismissed immediately or extend to hundred s of
days of hearings.
Because of its private nature, alternative dispute resolution could also have adverse
implications for the development of the law. Our legal sy stem depends on the publication
of decisions: judges and lawyers invoke them as precedent; scholars criticize them;
students learn the law from them. For that reason, we expect judgments to be ava ilable
to the public. Yet decisions reached through a rbitration, mediation, or negotiation
ordinarily are not published ; consequently, they ca nnot contribute to the law’s evolution.
If alternative dispute resolution kept pivotal le gal questions out of the courts, it could lead
to the relative stagnation of the law. Indeed, some parties may prefer alternative dispute
resolution precisely because it eliminates the risk of establishing adverse precedent.
Furthermore, arbitrators and med iators contribute little to jurisprudence. Unlike judges,
they do not ordinarily ex plain their decisions with written opinions on ques tions of law.219
Likewise, the privacy of arbitration and mediation could result in inconsistent
resolutions of disputes. Since the fact s, arguments, and decisions are kept condential,
similar questions could be resolved dierently by dierent arbitrators and mediators.220
In addition, arbitrators can sele ct the rules of law to apply to the dispute.221 eir choices
may vary inconsis tently across ca ses.
e private nature of mediation could a lso lead to duplication of proceedings after a
failed attempt at mediation. Since “[n]o information given or statement made during
the mediation process [could] be admitted in evidence in arbitration, administrative or
judicial proceedings, whether or not they [were] related to the dispute,”222 examinations
and hearings m ight have to be conducted afresh in a dispute that moved from medi ation
to arbitration or adjudication.223 Such wastef ul repetition would conict with the Draft
Bill’s objective of economy and cou ld discourage attempts at mediation.
ere is a risk that arbitrat ion, and to a lesser extent mediation, could become formali zed
and institutionalized to the point of constituting a new judiciary. e requirement of
adversarial and proportional proceedings would reduce arbitrators’ authority over
procedure and recast a rbitration in a judicial mould. In addition, heavy reliance
on arbitrators or mediators with expertise in the subject matter of the dispute could
eventually divide the law into specialized sectors, each with its own lega l rules, thereby
compromising the law’s uniformity a nd generality.
e Draft Bill does not indicate how arbitrators could be held to their obligation to
217 Ibid, s 4(3).
218 See e.g. Tari of Court Costs, supra note 27, ss 1, 4.
219 The clients of arbi trators and mediators generall y do not wish to pay hundreds of dollars per
hour for this service.
220 See e.g. Judge Craig Smith & Judge Eric V Moyé, “Out sourcing American Civil Justice: Ma ndatory
Arbitration Clauses in Consume r and Employment Contracts” (2012) 44 Tex Tech L Rev 281 at
297-98 .
221 Draf t Bill, supra note 16, art 626.
222 Ibid, art 611, para 1.
223 See e.g. Denise Wilson, “Alternative Dispute Resolu tion” (1993) 7:2 Auckland UL Rev 362 at 376-77.
78
n
APPEAL VoLuME 18
uphold the adversarial principle and the principle of proportionality. Also unclear is t he
point at which the parties could determine the procedure for private dispute resolution.
For example, the text does not state whether a contract could stipulate the procedure
prospectively, or whether a court could set such stipulations aside and substitute the
default procedure in the ca se of a consumer contract or a contract of adhesion. Lacunae
such as these in t he Draft Bill could them selves become sources of litigation.
Another issue is that t he risk that prescription would extinguish the claim could
discourage recourse to alternative dispute resolution. A plainti pursuing a non-
adjudicative approach in good faith might have to le suit just to preserve the right
of action, thereby wasting time and money while also potentia lly antagonizing t he
opposing party. e defendant could otherwise take unjust advantage of the plainti’s
carelessness or ignora nce by deliberately prolonging the non-adjudicative proceedings
until prescription had run. e D raft Bill makes only weak provision for this problem: it
merely allows part ies in mediation to agree to waive the bene t of prescription,224 without
similarly accommodating negotiation or other informa l attempts at alternative dispute
resolution. e legislator could easily ll this lacuna either by suspending prescription
during attempts at alternative dispute resolution (provided that the court be seized of
them) or by extending the time to in stitute proceedings after t he failure of such attempts,
similar to the t hree-month extension that is currently available for proce edings that were
timely led in the wrong for um.225
E. Critical Assessment
Despite presenting a number of problems that require prudent ma nagement, alternative
dispute resolution oers many advanta ges that promote the Draft Bill’s stated goals.
Unfortunately, the Draft Bill’s timid approach to alternative dispute resolution stands
in sharp contras t to its bold realloc ation of the costs of litigation. e mere requirement
that the parties consider alternative dispute resolution is a hollow recital. Meaningful
promotion of alternative dispute resolution calls for imperative measures. For exa mple,
the court personnel cou ld be required to ensure, through a n interview or other procedure,
that the parties had given serious consideration to alternative approaches. A party that
refused to attempt negotiation or mediation in good faith could be punished with the
costs of the ensuing legal proceedings. A lthough mandatory arbitration would probably
violate the Québec Charter by deprivi ng disputants of a public hearing in court226 (s ince
arbitral decisions are g enerally not subject to judicial review227), mediation cou ld properly
be required, as indeed it a lready is in various provinces.228
Perhaps the choice not to insist on mandatory mediation stems from sensitivity to the
fact that some disputes are not amenable to approaches that foster communication and
collaboration.229 For instance, mediation may simply be a waste of time if the conict
has become so rancorous t hat the parties will no longer ac cept reconciliation. Such cases,
however, could be released from mandator y mediation at the discretion of the court
upon application by the parties , along the lines of the exemptions available upon motion
in Onta rio.230 e mediator could also quickly refer a c ase back to the court rather than
224 Ibid, art 613, para 1.
225 Ar t 2895, para 1 CCQ.
226 Supra no te 15 .
227 Art 947 CCP; Draft Bill, sup ra note 16, art 648, para 1.
228 See Keet & Salamone, supra note 211 at 61-65 (describing mandatory mediation in Br itish
Columbia, Ontario, and Saskatchewan).
229 See ibid at 68.
230 Rules of Civil Procedure, supra note 68, s 24.1.05.
APPEAL VoLuME 18
n
79
continuing futile mediation. e exceptional cases that do not lend themselves to non-
adjudicative resolution need not prevent the institution of ma ndatory mediation.
Some curial oversight of recourse to alternative dispute resolution may be appropriate,
especially when t here is a great imbalance of power bet ween the parties. e cour ts should
ensure, for example, that a p arty does not agree to arbitrat ion without understanding that
the arbitral decision wi ll be nal, with no possibility of appe al. e courts’ admini strative
obligations to protect the rights of pa rties entering into alternative dispute resolution
should be made explicit in the Draf t Bill.
CONCLUSION
As its very rst words indicate, the code proposed in the Draf t Bill privileges “[p]rivate
civil justice.”231 Its innovations reect an ideolog y of privatization. To be sure, private
approaches to dispute prevention and resolution can usefully complement their public
counterparts and help to make justice more accessible to all. Civil procedure, however,
must strike a bala nce between the public and private modalities so that each can be
employed to best advantage. Unfortunately, the Draft Bill moves so far in the direct ion
of privatization, especia lly in its allocation of costs, that it even appears to have been
designed in the ima ge of corporations. Although it purports to improve acce ss to justice,
it might have just the opposite eect for ordina ry people. While its allocation of the
costsof litigation goes too fa r, its promotion of alternative dispute resolution does not go
far enough .
Allocation of cost s requires sensitive consideration of circumsta nces. A bright-line rule—
awarding full costs or none at all—cannot eectively balance the contending social
objectives that inform cost-shifting policies. For precisely t hat reason, every jurisdiction
tempers its policy by limiting awards of costs in view of the circumstances of each case.
e allocation proposed in the Draft Bill, however, lacks both bala nce and nuance.
Rather than parting ways with a ll other jurisdictions, the legislator should develop a
principled rule for allocating costs and some guidelines for the appropriate exercise of
judicial di scretion.
With its mere hortatory requirement to “consider” alternative dispute resolution, the
Draft Bill too meekly promotes an important means of facilitating access to justice.
e legislator could instead prot from the experiences of other provinces and impose
mandatory mediat ion for a large class of civil matters, at either public or private exp ense.
e success of Québec’s programme of mediat ion in the context of family law bodes well
for expansion to other ty pes of disputes.
e Draft Bill unfortunately leaves a number of important questions unanswered.
What is the signi cance of the requirement that the parties to a dispute “consider”
alternative dispute resolution? Would the caps on pre-trial examinations apply to each
examination or to the f ull set for each side? Could the terms of a contract prospectively
establish the procedu re for mediation? If so, could t hey be challenged in court as un fair
if a dispute arose? What could a party do, short of ling suit, to protect its rights from
prescription during a bona de attempt at alternative dispute resolution? If a part y
sought a discretionar y award of legal costs for the opponent’s rejection of a fair oer in
settlement, would the condentia lity of the oer be mainta ined under privilege? How
would the requirement that arbitrators uphold the advers arial principle and the principle
of proportionality be enforced? ese uncertainties point to the need for revision of the
231 Draf t Bill, supra note 16, ar t 1.
80
n
APPEAL VoLuME 18
Draft Bill, and even reconsiderat ion of key issues a nd principles.
Fundamental cha nge to an instrument as important as t he Code of Civil Proce dure must
be approached with caution. e public would suer f rom the obsolescence of such
important popular sources of free legal information as Éducaloi,232 which might not
be updated for some time. e transition to the new code would also be dicult for
judges and lawyers. Disputes over the interpretation of the new Code would give rise to
more litigation and would endure until t hey were resolved in case law. Vulnerable parties
might not be adequately protected in the interim. Furthermore, a reform that proved
unsuccessful would necessitate remedia l legislation—possibly even the enactment of a
new Code, which would result in even more di sruptions and inconvenience.
Québec bills itself as a leader in progressive social change, but in both the alloc ation of
costs and the adoption of alternat ive dispute resolution it is decidedly behind the rest of
Canada and indeed most of the world. Unfortunately, a number of changes proposed
in the Draft Bill run counter to the legislator’s social objectives. To its credit, the Draft
Bill includes some much-needed reforms, such as limits on pre-trial examinations and a
higher ceiling on sma ll claims. It will, however, require fundamenta l revision, with due
attention to the experience of other jurisd ictions and to empirica l ndings that indicate
superior procedural practices, in order to achieve its laudable goal of improving access
to justi ce.
232 Online: .
To continue reading
Request your trial