Droit judiciaire – Prof. Frédéric Bachand

FUNDAMENTAL CONCEPTS.................................................................................................................... 5A. Civil procedure: generalities...............................................................................................................................5

i) Definition and basics: Civil procedure is above all interested in the dispute-resolution functions of tribunals in civil matters....5ii) Civil procedure in force in Canada...........................................................................................................................................9

B. Courts: Some fundamental principles..............................................................................................................13i) The independence, impartiality and responsibility of judges...................................................................................................14ii) The openness and public nature of courts.............................................................................................................................19

C. The “Crisis of Civil Justice” and Contemporary Reforms to Private Judicial Law.....................................21D. Three Fundamental Themes.............................................................................................................................23

1. THE RIGHT TO BRING AN ACTION.............................................................................................23A. Conditions for the existence of the right to bring an action..........................................................................23

i) Conditions that apply to all disputes: interest, quality, capacity, etc........................................................................................23ii) A condition for litigation with an international element: The international “jurisdiction” of courts............................................28

B. Limits on the Right to Bring an Action.............................................................................................................32i) The Renunciation of the Right to Bring an Action...................................................................................................................32ii) Jurisdictional immunities........................................................................................................................................................39iii) Restrictions on the rights of a querulous litigant....................................................................................................................40

C. Expiry of the right to bring an action.....................................................................................................................41i) Prescription.............................................................................................................................................................................41ii) Le jugement ayant l’autorité de la chose jugée éteint-il le droit d’agir en justice?..................................................................41

2. THE JURISDICTION OF COURTS.......................................................................................................42A. The division of jurisdiction according to the object of the litigation.............................................................42

i) The subject-matter jurisdiction of courts.................................................................................................................................42ii) Quasi-judicial and inferior tribunals........................................................................................................................................51

B. The division of jurisdiction according to territorial criteria (rationae personae).........................................51C. Overview of some questions related to the jurisdiction of courts.................................................................54

i) Lis pendens (la litispendence)................................................................................................................................................54ii) Prescription............................................................................................................................................................................55

3. THE PROCEEDINGS AND THEIR UNFOLDING.................................................................................55A. The parties to the proceedings.........................................................................................................................56

i) Common mechanisms that can give rise to multi-party proceedings......................................................................................58ii) The special case of class actions...........................................................................................................................................62

B. The pleadings (les principaux actes de procédure)........................................................................................70i) The act introducing the proceedings.......................................................................................................................................70ii) The defence...........................................................................................................................................................................72iii) La signification ou notification des actes de procédure.........................................................................................................73iv) L’amendement des actes de procédure................................................................................................................................73

C. Provisional or conservatory measures............................................................................................................74i) Nature and specifics of provisional or conservatory measures...............................................................................................74ii) Typology of provisional or conservatory measures................................................................................................................75

D. Preliminary disclosure of information..............................................................................................................86i) Disclosure of evidence............................................................................................................................................................86ii) Access to other information surrounding the litigation............................................................................................................87

E. The end of the proceedings...............................................................................................................................91i) Proceedings that end without a judgment on the merits.........................................................................................................91ii) Proceedings that end by a judgment on the merits................................................................................................................94

E. Costs.................................................................................................................................................................... 95

1

Droit judiciaire – Prof. Frédéric Bachand

FUNDAMENTAL CONCEPTS.................................................................................................................... 5A. Civil procedure: generalities...............................................................................................................................5

i) Definition and basics: Civil procedure is above all interested in the dispute-resolution functions of tribunals in civil matters....5J.A. Jolowicz, On the Nature and Purpose of Civil Procedural Law” (1998) (CB1p332).......................................................................................5a. Courts settle disputes (tranchent des différents) according to applicable law.............................................................................................5b. Courts oversee legality and help other dispute-resolution processes..........................................................................................................6Jarrosson, Ch., “Les modes alternatifs de résolution de différends: présentation générale”................................................................................6c. Some courts now offer their own mediation services in order to encourage negotiated settlements................................................................8

ii) Civil procedure in force in Canada...........................................................................................................................................9a. Constitutional aspects.......................................................................................................................................................................................9Lapierre c. Barrette [1988] Que. C.A. (CB1p161)...............................................................................................................................................10b. The influence of the common law and civil law traditions on civil procedure in force in Canada....................................................................10Lac d'Amiante du Québec Ltée v. 2858-0702 Québec Inc. (2001) SCC (CB1p166)..........................................................................................10Principes ALI/UNIDROIT – Introduction..............................................................................................................................................................12c. The growing influence of transnational sources on civil procedure in force in Canada...................................................................................13GreCon Dimter v. JR Normandin [2005].............................................................................................................................................................13

B. Courts: Some fundamental principles..............................................................................................................13i) The independence, impartiality and responsibility of judges...................................................................................................14

Re Therrien (2001) SCC (CB1p208)...................................................................................................................................................................16Bande indienne Wewaykum c. Canada..............................................................................................................................................................17M. Cappelletti, “Who Watches the Watchmen? A Comparative Survey on Judicial Responsibility”..................................................................17J. Ziegel, “Disrobe This Process”........................................................................................................................................................................18J.A. Lanzinger, “A Personal Reflection on Judicial Elections”.............................................................................................................................18

ii) The openness and public nature of courts.............................................................................................................................19Sierra Club of Canada v. Canada (Minister of Finance) (2002) SCC (CB1p190)...............................................................................................20Re Vancouver Sun..............................................................................................................................................................................................20K. Makin, “Lawyer Laments Rise in Publication Bans” (Globe & Mail, 2003)......................................................................................................21K. Roach, “Let the Light Shine In”.......................................................................................................................................................................21

C. The “Crisis of Civil Justice” and Contemporary Reforms to Private Judicial Law.....................................21Lord Woolf, Access to Justice – Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales..............................21Comité de revision de la procedure civile, La Révision de la procédure civile – Une nouvelle culture judiciaire – Rapport du Comité de révision de la procédure civile, pp.10-43............................................................................................................................................................22McMurtry R.R., “We Are Not All Equal before Law the Law” (Globe & Mail, 2005)............................................................................................22

D. Three Fundamental Themes.............................................................................................................................232. THE RIGHT TO BRING AN ACTION....................................................................................................23

A. Conditions for the existence of the right to bring an action..........................................................................23i) Conditions that apply to all disputes: interest, quality, capacity, etc........................................................................................23

Borowski v. Canada (A.G.) (1989) SCC (CB1p60).............................................................................................................................................24Maryland Casualty Co. v. Pacific Coal and Oil (1941) USSC (CB1p160)...........................................................................................................25Canadian Council of Churches v. Canada (A.G.) (1992) SCC (CB1p87)...........................................................................................................26H.P. Glenn, “A propos de la maxime ‘nul ne plaide par procureur’” (1988) (CB1p311)......................................................................................27Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3.....................................................................................................27Assoc. des Propriétaires des Jardins Taché c. Entreprises Dasken Inc. (1974)................................................................................................28

ii) A condition for litigation with an international element: The international “jurisdiction” of courts............................................28Helicopteros Nacionales de Colombia v. Hall (1984) USSC...............................................................................................................................29Muscutt v. Courcelles [2002] Ont C.A.................................................................................................................................................................30Spar Aerospace v. American Mobile Satellite Corp. (2002) SCC (CB2p103).....................................................................................................31

B. Limits on the Right to Bring an Action.............................................................................................................32i) The Renunciation of the Right to Bring an Action...................................................................................................................32

a. In order to be heard by a foreign court............................................................................................................................................................32M/S Bremen v. Zapata Off-Shore Co. (1972) USSC (CB1p136)........................................................................................................................32Carnival Cruise Lines, Inc. c. Shute....................................................................................................................................................................33Z.I.Pompey Industrie v. ECU-Line N.V. (2003) SCC (CB1p232)........................................................................................................................33GreCon Dimter Inc. c. J.R. Normand Inc. (2005)................................................................................................................................................34b. In order to be heard by an arbitral tribunal......................................................................................................................................................34Éditions Chouette Inc. c. Desputeaux, (2001) QueCA, (2003) SCC (the “Caillou” case)...................................................................................35Frédéric Bachand, “Éditions Chouette Inc. c. Desputeaux” (2003) (CB1p240)..................................................................................................36Bachand “L’efficacite en droit Quebecois d’une convention d’arbitrage ou d’election de for invoquee a l’encontre d’un appel en garantie”.....36Dalimpex Ltd. v. Janicki (2003) OntCA (CB1p92)...............................................................................................................................................37c. In order to have recourse to mediation/concilation.........................................................................................................................................38Société polyclinique des fleurs c. Peyrin (2000) Cass.Civ.2e (CB1p65).............................................................................................................38

ii) Jurisdictional immunities........................................................................................................................................................39United States v. Public Service Alliance of Canada (1992) SCC (not in CB)......................................................................................................39Schreiber v. Canada (A.G.) (1992) SCC (CBp198)............................................................................................................................................39Clinton v. Jones (1997) USSC............................................................................................................................................................................40

iii) Restrictions on the rights of a querulous litigant....................................................................................................................40Yves-Marie Morissette,“Pathologie et thérapeutique du plaideur trop belliqueux”(2002)...................................................................................41Productions Pixcom Inc. v. Fabrikant (2005)......................................................................................................................................................41

C. Expiry of the right to bring an action.....................................................................................................................41i) Prescription.............................................................................................................................................................................41ii) Le jugement ayant l’autorité de la chose jugée éteint-il le droit d’agir en justice?..................................................................41

2. THE JURISDICTION OF COURTS.......................................................................................................42A. The division of jurisdiction according to the object of the litigation.............................................................42

2

Droit judiciaire – Prof. Frédéric Bachand

i) The subject-matter jurisdiction of courts.................................................................................................................................42a. Courts of first instance (primarily)...................................................................................................................................................................42MacMillan Bloedel Ltd. v. Simpson (1995) SCC.................................................................................................................................................43Ville de Montréal c. Tassé (1999) QueCA..........................................................................................................................................................45b. Courts that mainly hear appeals.....................................................................................................................................................................46Secession Reference (2001) SCC......................................................................................................................................................................46Housen v. Nikolaisen (2002) SCC......................................................................................................................................................................47Re Therrien (2001) SCC (CB1p208)...................................................................................................................................................................49Reference re Same Sex Marriage, [2004] SCC 79.............................................................................................................................................50

ii) Quasi-judicial and inferior tribunals........................................................................................................................................51B. The division of jurisdiction according to territorial criteria (rationae personae).........................................51

Sam Lévy & Associés Inc. v. Azco Mining Inc. (2001) SCC (CB1p124).............................................................................................................53C. Overview of some questions related to the jurisdiction of courts.................................................................54

i) Lis pendens (la litispendence)................................................................................................................................................54Rocois Construction, (1990) SCC.......................................................................................................................................................................54

ii) Prescription............................................................................................................................................................................553. THE PROCEEDINGS AND THEIR UNFOLDING.................................................................................55

A. The parties to the proceedings.........................................................................................................................56i) Common mechanisms that can give rise to multi-party proceedings......................................................................................58

a. The action brought against multiple defendants.............................................................................................................................................58Jeff Berryman, “Injunctions – The ability to bind non-parties” (2002) (Additional).............................................................................................58b. The action brought by multiple plaintiffs..........................................................................................................................................................59c. The joinder of distinct actions involving different parties.................................................................................................................................59d. The forced involvement of a third party in the proceedings............................................................................................................................60Fonds d’assurance responsabilité professionnelle du Barreau du Québec c. Gariépy.......................................................................................61Eclipse Bescom Ltd. c. Soudures d’Auteuil Inc. (2002) QueCA (Additional).....................................................................................................61e. The voluntary involvement of a third party in the proceedings........................................................................................................................61Alta Mura Construction Inc. C. Corporation d’hébergement du Québec.............................................................................................................62

ii) The special case of class actions...........................................................................................................................................62

Procedure...................................................................................................................62Malhab c. Métromedia CMR Montréal et André Arthur (2003) QueCA...............................................................................................................63H.P. Glenn, “A propos de la maxime ‘nul ne plaide par procureur’” (1988) (CB1p311) *ADDITIONAL.............................................................63Hollick v. Toronto (2001) SCC............................................................................................................................................................................64Pharmascience Inc. c. Option Consommateurs..................................................................................................................................................66Michael Lewis, “Quebec class action law called unfair to defence” (2003).........................................................................................................68and Jean-Maurice Bouchard, “Le Québec devient le paradis des recours collectifs..........................................................................................68Landry c. Syndicat du transport de Montreal......................................................................................................................................................68

B. The pleadings (les principaux actes de procédure)........................................................................................70i) The act introducing the proceedings.......................................................................................................................................70

a. The content of the act introducing the proceedings........................................................................................................................................70

Beals c. Saldanha...................................................................................................71Edward H. Cooper, “Transnational Civil Procedure: Fact Pleading or Notice Pleading? A Viewpoint from the USA” (2001).............................72b. Uniting several causes of action in a single introductory act...........................................................................................................................72

ii) The defence...........................................................................................................................................................................72iii) La signification ou notification des actes de procédure.........................................................................................................73

a. La signification/notification sur le territoire du for............................................................................................................................................73b. La signification/notification de l’acte introductif d’instance à l’étranger...........................................................................................................73

iv) L’amendement des actes de procédure................................................................................................................................73C. Provisional or conservatory measures............................................................................................................74

i) Nature and specifics of provisional or conservatory measures...............................................................................................74UNIDROIT Principles (P.8).................................................................................................................................................................................74

ii) Typology of provisional or conservatory measures................................................................................................................75A) Measures designed to avoid irreparable harm to rights in dispute.................................................................................................................75RJR-MacDonald v. Canada (1994) SCC............................................................................................................................................................75Varnet UK v. Varnet Software (1994) QueCA.....................................................................................................................................................76Z.I. Pompey Industries c. ECU-Line (Some paragraphs)....................................................................................................................................76Raymond Chabot SST c. Groupe AST (2002) QueCA.......................................................................................................................................78Celanese Canada Inc. c. Murray demolition Corp (2006)...................................................................................................................................78Theberge c. Galerie d’Art [2002] (para 76ff & 101ff) 2 S.C.R. 336....................................................................................................................80Tri-Tex Co. c. Gideon (1999) (C.A.)....................................................................................................................................................................81L. Sarna “Aspects of the Law of Judicial Sequestration in Quebec” MLJ, 1977.................................................................................................81Clark Door of Canada Ltd. v. Inline Fiberglass Ltd. (1996).................................................................................................................................81Associates Capital Ltd. C. 1204662 Ontario Ltd. [2000].....................................................................................................................................82Toronto v. MFP Financial [2002].........................................................................................................................................................................83B) Measures designed to ensure the execution of a judgment on the merits.....................................................................................................84UNIDROIT Principles (p.3.3)...............................................................................................................................................................................85Opera on Original Site Inc. c. China Performing Art Agency (2005)...................................................................................................................85Aetna Financial c. Feigelman [1985] 1 RCS 2....................................................................................................................................................86

D. Preliminary disclosure of information..............................................................................................................86i) Disclosure of evidence............................................................................................................................................................86ii) Access to other information surrounding the litigation............................................................................................................87

A) Foundations of the discovery mechanisms for party access to other information in common law jurisdictions.............................................87Geoffrey C. Hazard, Jr., “Discovery and the Role of the Judge in Civil Law Jurisdictions” (1998) (CB2p135)...................................................88Hoffman “Access to Information, Access to Justice…”.......................................................................................................................................88

3

Droit judiciaire – Prof. Frédéric Bachand

B) Typology of procedural mechanisms permitting access to other information surrounding the litigation.........................................................88E. The end of the proceedings...............................................................................................................................91

i) Proceedings that end without a judgment on the merits.........................................................................................................91a. The end of the proceedings brought about by one of the parties: discontinuance and acquiescence............................................................91b. The end of the proceedings brought about by both of the parties: transaction...............................................................................................92c. The end of the proceedings brought about by the passage of time: la péremption de l’instance...................................................................93

ii) Proceedings that end by a judgment on the merits................................................................................................................94a. Premature forms of judgments on the merits..................................................................................................................................................94

E. Costs.................................................................................................................................................................... 95

4

Droit judiciaire – Prof. Frédéric Bachand

5

Droit judiciaire – Prof. Frédéric Bachand

FUNDAMENTAL CONCEPTSA. Civil procedure: generalities

i) Definition and basics: Civil procedure is above all interested in the dispute-resolution functions of tribunals in civil matters

J.A. Jolowicz, On the Nature and Purpose of Civil Procedural Law” (1998) (CB1p332)

Action (droit d’agir en justice) = The right to invoke the jurisdiction of the court; Not to be confused with cause of action (i.e., substantive right recognizing a favourable judgment). It is possible to deny the right to invoke the jurisdiction. The denial may be (a) absolute and general

(non-justiciable question); or (b) absolute but particular (jurisdiction is possessed exclusively by a tri-bunal); or (c) conditional (if leave is required to initiate proceedings); or (d) conditional (if plaintiff must have an action).

PROCEDURAL VS. SUBSTANTIVE LAW Unlike with substantive law, subjection to procedural law is voluntary: it only affects those who choose to liti-

gate. No one need be subjected to it against his will. It follows that, in the course of litigation, procedural law tends to present parties with a sequence of

choices. If the party that has a choice disregards it, this will give the other party certain choices (disposi-tive principle). The court’s power of decision or order is exercised only on the application of a party (al-though once jurisdiction of court has been invoked, both parties are subordinate to it).

Substantive law is self-executing, procedural law is not. Substantive law produces its results of its own force. Courts have the last word on questions of (procedural) law; in this sense, judges make law.

Substantive law judges are just there to interpret. Procedural is more active. The voluntariness of civil procedure is a matter of tradition , not the nature of things. In some legal sys-

tems, once parties have invoked a court’s jurisdiction, the court can subordinate their interests to the pub-lic interest in resolving the legal issues.

PURPOSES It is true that one purpose of procedural law is “the fair, economical and expeditious adjudication, in accor-

dance with law, of those disputes which the parties choose to submit to the courts.” However, judicial proceedings also have public purposes:

They demonstrate the effectiveness of the law: Courts must encourage citizens to respect the law (with-out litigating) when it makes sense to do so. They must also make litigation accessible when it’s neces-sary. Courts must therefore strike a balance: litigation should not be too slow and costly or too fast and cheap.

They interpret, clarify, develop and apply the law: This requires that courts be given sufficient time and re-sources to properly research legal issues. (Unfortunately, civil procedural law doesn’t often explicitly rec-ognize this law-making role.)

Procedural law must maintain balance of incentives and disincentives of litigation. Citizens must understand what courts do and the messages that come from the courts. Parties make their choices based on the messages sent from the courts. Procedural law serves to interpret, clarify, develop and apply substantive law. Thus provides more than private interests of litigating parties.

a. Courts settle disputes (tranchent des différents) according to applicable law

S’intéresse à la résolution des différends, par opposition aux droits substantiels. Processus de règlements pa-cifique (i.e. au lieu de recours au violence)

« Matières civiles »- Inclut matières commerciales, et toute matière privée- Exclut donc : différends de droit public (impliquant une partie étatituqe ou que des parties étatitques), par ex. différends de nature criminelleépénale, matières

6

Droit judiciaire – Prof. Frédéric Bachand administratives

S’intéresse surtout aux fonctions qu’exercent les tribunaux judiciaires dans la résolution de différends civils

usually, according to the law in force in that jurisdiction However, sometimes according to the law of another jurisdiction—choice of law

see, for example, CCQ 3083-3133 (les tribunaux judiciaires, en l’occurrence les tribunaux judi-ciaires québécois, peuvent être appelés à trancher un différend présentant un ou plusieurs éléments d’extranéité – c’est-à-dire un différend qui n’est pas entièrement localisé dans l’ordre juridique local – en fonction de règles juridiques étrangères, des règles en vigueur dans un autre ordre juridique avec lequel le différend est, d’une façon ou d’une autre, ratta-ché)

this is only in private law—would never happen in criminal law or administrative law

However Art. 12 of French NCPC also gives judges the power to settle disputes according to “amiable compositeur”

This is not found in all civil law jurisdictions. This is a normal practice in consensual arbitration. Judge may include what he or she considers equitable in decision, all the while considering the rules that

must be applied. This is only if parties agree to this. Judgment is final and obligatory. Should this be al-lowed in Canada?

advantages: voluntariness principle preserving business relationship considering the context, all of the factors

disadvantages: Arbitration exists for this purpose. The state has less of an interest in dedicating resources to purely

private dispute resolution according to non-statal equality. Arbitrage = Mode de procésus privé extra-judiciaire par lequel les parties en litige vont, par contrat, donner à un tiers le pouvoir de se rendre à une décision obligatoire.

uncertainty; parties not comfortable with giving judges this much discretion you don’t get to pick your judge (unlike in arbitration)

CPC 944.10 provides a suppletive rule that arbitrators cannot act as amiables compositeurs except with the prior consent of the parties.

b. Courts oversee legality and help other dispute-resolution processes

... dont certains sont non juridictionnels   : négociation directe ou assistée (médiation) → Transaction (i.e., ac-cord à l’amiable, règlement hors-cours ; parallel to ‘settlement agreement’ in CML).

... alors que d’autres sont juridictionnels (tribunaux quasi judiciaires, arbitrage conventionnel) → Décision fi-nale et obligatoire rendue par un tiers.

- NB : The point is that even when parties should have juridical recourse, it is not always guaranteed that they end up in front of judges.

Jarrosson, Ch., “Les modes alternatifs de résolution de différends: présentation générale”

BIRTH OR RENEWAL OF ALTERNATIVE METHODS OF CONFLICT RESOLUTION Started in Common law jurisdictions, from dissatisfaction of law and juridical solutions. Wish to separate from procedural and substantive law NB: Alternative methods are not non-legal methods. Still not entirely accepted. General weariness of alternative modes of resolution Jurists need to learn the new techniques of negotiation borrowed from psychologists and sociologists in order

to be more flexible, fast, economic, efficient, and to allow the practice to progress.

NAMES AND TYPES

7

Droit judiciaire – Prof. Frédéric Bachand Alternative Dispute Resolution ADR (règlement alternative des différends, resolution amiable des diffé-

rends RAD); MARC (modes alternatifs de règlements des conflits; SoRRèl (solutions de rechange au règlement des litiges

Note that the word alternatif in French is just a literal translation. Arbitration is a non-pacific type whereby terms and solution are imposed on parties. It is a loi de substitution

and has become an classical alternative method. Other forms include amiable composition and ombudsman (mediation). ADRs form an open category that is not defined or delimited by rules. Generally pacific (except arbitration).

Solution is only obligatory if parties agree that it is.

TYPOLOGY Core of all ADR = Mediation Conciliation vs. Mediation :o Both are pacifico Mediation is active because it proposes solutionso Conciliation does not require a third partyo Conciliation is an ends while mediation is a means All forms of ADR can be (a) contractual (amiable, conventional) or under the control of a judge Expertise serves as the basis of negotiation of the two parties; ends in transaction. Other forms (all based on mediation) include the mini-trial = Three people presided by a neutral council are

named by the parties and attempt to find a solution that works for both parties. The med-arb requires that the third party acts as mediator, then if this fails he becomes arbitrator. The co-med-arb is the same con-cept, but two different people act as mediator and arbitrator. Baseball arbitration (LOA last offer arbi-tration) requires each party to propose a solution and the third party must choose the best solution. The Medaloa follows LOA then uses the conclusion as basis for mediation.

REGULATIONS Starting MARC can be from the law (judicial authority) or from conventional methods (contracts) Functioning of MARC: Judicial ones follow rules of law or judges; Contractual ones follow wishes of parties

from contract. o Obligation of parties: (1) Obligation of results: Parties must discuss with one another. (2) Obligation of

means: Parties must act in good faith and ensure confidentiality.o Obligation of third party: (1) Confidentiality; (2) No re-intervention if first attempt fails; (3) Independence, im-

partiality, neutrality, objectivity, equity, justice Effects of MARC: Will not always be the same, but greater goal is to avoid that a party is penalized for having

chosen alternative method. o In case of success: No formalism is required. Success is found if parties agree on a solution and end dis-

pute. Usually there is a signed document, transaction, but this is not always the case. o In case of failure: Parties must resort to proceedings. To counter this, there have been attempts for multi-

ple level ADR (e.g., Med-arb) but there have been many problems with these methods.

Other dispute-resolution processes: negotiation: in Quebec, only 5% of civil actions that go to trial are actually decided by the judge. Some of

the 95% are settled by direct negotiation; some are settled by assisted negotiation. (transaction = settle-ment?)

inferior tribunals: regie, etc. consensual arbitration: this is more justified than amiable compositeur?

CCQ 2631-2637 govern “transactions”: basically, consensual arbitration. CCQ 2633 gives such arbitral decisions the force of res judicata.

the state now encourages ADR and allows judges to oversee it, e.g.: CPC 940.4: granting provisional measures before or during the arbitration CPC 941.1: appointing an arbitrator if parties fail to do so CPC 941.2: taking any means necessary to bring about a difficult appointment CPC 942.4: deciding whether an arbitrator should be recused CPC 944.6: compelling witnesses to appear CPC 944.8: declaring a witness in contempt of court

recognizing ADR limits the role of judges in litigation CPC 946-946.6: homologation of arbitral awards

8

Droit judiciaire – Prof. Frédéric Bachand Les tribunaux judiciaires peuvent exercer certaines fonctions d’assistance et de contrôle

lorsque le différend fait l’objet – ou a fait l’objet – d’une procédure judiciaire étrangère ou d’un processus lié à un mode extrajudiciaire de résolution de différends

private international law: our courts are now more willing to recognize foreign judgments. see e.g. CCQ 3155-3158

Principles ALI UNIDROIT P.30 requires that judgments in foreign jurisdictions should be recognized and exe-cuted unless contrary to public order. P.31 requires international judiciary cooperation for State tribunals to assist foreign jurisdictions (provisionary and convervatory methods)

30. RecognitionA final judgment or provisional remedy in a proceeding conducted in another forum in substantial compliance with these Principles must be recognized and enforced unless substantive public policy requires otherwise.Comment:P-30A Recognition of judgments of another forum, including judgments for provisional remedies, isespecially important in transnational litigation. Every legal system has firm rules of recognition for judgmentsrendered within its own system.P-30B Principle 30 is essentially a principle of equal treatment. A judgment given in a proceedingconducted under these Principles ordinarily should have the same recognition as judgments given in aproceeding conducted under the laws of the forum.

c. Some courts now offer their own mediation services in order to encourage negotiated settlements

Système public gratuit. Les juges ont le droit d’offrir des services de médiation à leur discrétion. Seulement pour les parties déjà impliquées dans un action en cours.

Avantages : Accès à la justice. Peut-être plus rôle de cours de première instance. Le juge est surtout là pour servir l’intérêt des parties.

Désavantages : Le juge n’est pas en traîn d’avancer le droit en faisant la médiation. Pas d’intérêt publique. Pas de document officiel produit. Le droit n’évolue pas dans l’intérêt général de la société.

Why shouldn’t the state offer a public mediation system? Need this system be presided by judges? Allocation of resources – do judges make good mediators – should the role of judges be modified?

Alternative : Conciliateurs de justice (France)

Judges can “change hats” to act as mediators: transformation of the role of judge This is the case in a number of countries, including civil law countries “publicization” of private dispute-resolution institutions

CPC 151.14-23 and 508.1 govern “settlement conferences” overseen by a judge CPC 151.16: “The purpose of a settlement conference is to facilitate dialogue between the parties and

help them to identify their interests, assess their positions, negotiate and explore mutually satisfactory so-lutions. “A settlement conference is held in private, at no cost to the parties and without formality.”

ORCP 24.1 concerns mandatory mediation: a system of obligatory mediation which obliges the parties to at-tempt to reach a settlement through mediation—run by court, but done by professional mediators who are only supervised by judges This applies in “case managed actions” and cases using a “simplified procedure” (see ORCP 76 and 77)

ALI/UNIDROIT P.24 exhorts the court to encourage and facilitate voluntary settlements and ADR procedures (CB1p17)

24. Settlement24.1 The court, while respecting the parties’ opportunity to pursue litigation, should encourage settlement and reconciliation of the parties when reasonably possible.24.2 The court should facilitate party participation in non-binding alternative-dispute-resolution procedure and voluntary settlement at any stage of the proceeding.24.3 The parties, both before and after commencement of litigation, should cooperate in reasonable settlement endeavors. The court may adjust its cost awards to reflect unreasonable failure to cooperate or bad-faith participation in settlement endeavors.24.4 Forum law may appropriately provide settlement-offer procedure enforced by special cost sanctions for refusal to accept an opposing party’s offer.Comment:

9

Droit judiciaire – Prof. Frédéric BachandP-24A The proviso “while respecting the parties’ opportunity to pursue litigation” signifies that the courtshould not compel or coerce settlement among the parties.P-24B Principle 24.3 departs from traditions in some countries in which the parties generally do not havean obligation to negotiate or otherwise consider settlement proposals from the opposing party. Principle 24.4can be implemented by a rule about “settlement offers” such as the Ontario (Canada) civil-procedure rule orPart 36 of the new English procedural rules. Those are formal procedures whereby a party may make a definiteoffer of settlement and thereby oblige the opposing party to accept or refuse it on penalty of additional costs ifthat party does not eventually obtain a result more advantageous than the proposed settlement offer.

ii) Civil procedure in force in Canada

a. Constitutional aspects

1. Division of Powers

Répartition des compétences législatives Surtout provinces qui sont compétentes Compétence (limitée) du Parlement fédéral re : matières de droit fédéral

- Parlement peut créer système de tribunal fédéral pour trancher différends se rapportant à la loi fédérale « Création de la Cour fédérale (art. 101) « *** La Cour fédérale n’est pas compétente à l’égard de tous les différends se rapportant à une loi fédérale. Compétence limitée par décision du Parlement (1867). E.g., Lois de la faillite, martime et de la divorce sont administrées par les provinces.

- Parlement peut réglementer procédure applicable devant tribunaux provinciaux re : litiges re : matières fédéérales (Sam Lévy, par. 20 : « Il est établi depuis longtemps que dans les domaines relevant des chefs de compétence énumérés à l’article 91 de la LC 1867, ‘le Parlement du Canada peut donner compétence aux cours provinciales et règlementer au maximum les procédures devant ces cours’ »). E.g., Loi sur la divorce : quelques règles fédérales sont édictées qui ont précédence devant procédures provinciales.

« Ne le fait jamais de manière exhaustive « ... donc règles provinciales (ex. Cpc) applicables de manière supplétive «  Étape 1. Est-ce-que le fédéral voulait que la matière se résolue seulement dans la Cour fédérale ? Si oui, pas de problème. Si non, dans Cour provinciale. Étape 2 : Quelles règles procédurales fédérales s’appliquent avant les règles provinciales ? - Parlement peut créer une cour générale d’appel (ce qu’il a fait : Cour suprême du Canada, compétente tant en matière fédérale qu’en matière provinciale)

Deux derniers points : LC 1867 contint aussi certaines règles matérielles de droit judiciaire privé Il existe certains liens entre e droit judiciaire privé et les droits et libertés fondamentaux, e.g. Lac d’amiante

(vie privée), Lapierre c. Barrette (égalité)

s.92(13): ??

s.92(14) of Constitution Act, 1867: provincial jurisdiction over “The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts.”

Provincially-organized superior courts are courts of general jurisdiction: they have jurisdiction over every case unless there is some law that says otherwise.

Provincial procedural law applies in s.96 courts unless modified by specific statute 10

Droit judiciaire – Prof. Frédéric Bachand Parliament can dictate the procedure s.96 courts will use in deciding federal matters, e.g. divorce or

bankruptcy cases. (Binnie J mentions this in paragraph 20 of Sam Lévy decision (CB1p183))

s.101: federal government power to establish “a General Court of Appeal for Canada, and for the Establishment of any additional Courts for the better Administration of the Laws of Canada.”

The federal court system is only competent to decide certain kinds of disputes that the federal gov-ernment has specially assigned to it—not every dispute involving federal law. This is why divorce, bankruptcy etc. are still decided by provincially-organized superior courts.

2. Civil procedure and constitutional liberties

Constitution Act, 1867 recognizes a number of principles relevant to civil procedure—in particular, judicial independence.

Morguard v. De Savoye made the interprovincial recognition and execution of judgments a constitutional imperative, provided that courts had exercised jurisdiction on the basis of a “real and substantial con-netion.”

Background : In Quebec, the party that wins is allowed to claim costs (dépens), which purpose is to compensate for losses in court, regardless of whether the party was the plaintiff or dependent. Cautionnement pour les dépens (cpc 65 and 152-154) assure que la partie défenderesse qui a gain de cause pourra récupérer les sommes qui lui doit la partie demanderesse à titre de dépens.

Lapierre c. Barrette [1988] Que. C.A. (CB1p161) Facts Lapierre (Ontario resident) wanted to sue Barrette in Quebec Superior Court. CPC 65 and

152-154 require non-resident plaintiffs to deposit a bond equal to the defendants’ costs, in case the plaintiff loses and is ordered to pay costs. Lapierre didn’t have the means to do this, and argued that this rule infringed on fundamental rights and freedoms.

The Court Monet J: The justifications for this rule are shaky. However, it is not clear that it infringes on fun-

damental rights and freedoms, so the rule is upheld. Judges have the discretion to modify the amount of the bond.

Comments CPC 152 lists various factors that the judge should consider in deciding how big a bond to ask for.

other provinces have similar rules Perhaps this is no longer valid after Morguard because it will be enforced

b. The influence of the common law and civil law traditions on civil procedure in force in Canada

*** Important case for method of interpretation in Quebec***

Lac d'Amiante du Québec Ltée v. 2858-0702 Québec Inc. (2001) SCC (CB1p166) Facts Lac d’Amiante sued 2858. In the examination on discovery (interrogatoires préalables),

2858 requested a number of Lac d’Amiante’s documents. Lac d’Amiante said it would only produce these if they were going to be kept confidential. It filed a motion to the Superior Court to this effect.

Que. Sup. Ct.

No confidentiality. The examination on discovery is part of the trial proceedings; there-fore it must be fully open and public.

Que. C.A. (majority)

Mailhot JA: There is a rule of confidentiality: if one party compels another to produce a document,

there is an implication that this should be kept confidential, at least until the trial. This is borrowed from the common law, but there’s nothing wrong with this, because

Quebec civil procedure is of mixed origin, and Quebec courts have some status as “common law” courts (para.12). Discovery doesn’t exist in a classic civilian system. It therefore makes sense to incorporate the common law rules surrounding discovery.

Discovery is part of a “pre-trial” phase, not the trial, so keeping it confidential doesn’t violate the principle that trials are held in public.

Fish JA: Keeping discovery confidential is consistent with the fact that since 1983, these have

been part of a “pre-trial” phase; they are not entered into the court record. Examinations on discovery are not “sittings of the court” except in a nigglingly literal

11

Droit judiciaire – Prof. Frédéric Bachandsense: they’re not usually held in a courtroom, and a judge only intervenes when needed.

Que. C.A. (dissent)

Biron JA: Both the CPC and the Quebec Charter say that judicial proceedings must be public;

discovery is a “hearing” according to the CPC; therefore it must be public. Quebec civil procedure is codified; therefore judges do not have the power to create

new rules as in common law. SCC Lebel J:

There is an implied rule of confidentiality, but it is not borrowed from the common law; it is implied by changes in the CPC itself which have made examination on discovery a more exploratory process. Examination on discovery is not a “sitting” within the mean-ing of CPC 13; therefore it remains a private process. The right to privacy recognized in the Quebec Charter also supports this notion of

confidentiality. The decision to codify the rules of civil procedure means that Quebec’s civil procedure

is part of the civil law tradition. It may have arisen from a variety of sources, but it is purely civilian in its formal sources. The CPC must be interpreted in a civilian manner.

see para 37 which says that powers of judges are codified at CPC 46. Comments Lebel J’s decision means that Quebec judges don’t have the power to create new pro-

cedural rules or borrow them from common law jurisdictions. Lebel J departed from some QueCA jurisprudence which said that examinations on

discovery were part of the trial process (and therefore public). Transnational models of law also support the idea of the confidentiality of examina-

tions on discovery. McMillan Bloedel: if it is a s.96 court, it doesn’t need to be in the CCP. Lebel J had two policy goals for discovery

1. protecting privacy of party being investigated2. making discovery more efficient

Est-ce que les informations recueillies par les interrogatoires préalables (examination on discovery) sont confidentielles ?

Durant les phases préliminaires de l’instance, il y a une période durant laquelle une partie peut aller interroger l’autre. C’est exploratoire – ce n’est pas un preuve comme tel – c’est un méchanisme pour rechercher l’information. Le but c’est pour trouver de l’information qui va faire mal à son adversaire. Les parties n’ont pas le droit au silence.

Cpc prévoit de tels interrogatoires, mais dit rien sur la confidentialité de l’information

Cour d’appel : Juge Biron (diss.) : Québec = ressort civiliste, donc appliquons méthode d’interprétation civiliste ; code ne

dit rien, donc pas de règle de confidentialité. 100% l’approche similiste.  Juge Maillhot : Québec = ressort mixte (pas vrai civiliste, mais comprends les approches de common

law) ; les interrogatoires préalables sont un emprunt de la common law. En plus, dans les provinces cana-diennes de common law, on considère que l’information est confidentielle ; elle doit donc l’être aussi au Québec.

Cour Suprême : Juge Biron (diss.) avait raison en ce qui a trait à la méthode d’interprétation, mais la Cour conclut tout de

même que l’information est confidentielle... *** Bien que le droit judiciaire procédurale québécois soit mixte re : sources d’inspiration, il est résolument

civiliste re : sources formelles Donc : Cpc doit être interprété selon les méthodes civilistes ; cela dit, ces méthodes n’excluent pas que le

juge ait un certain pouvoir créateur. Conclut à la confidentialité non pas en effectuant un « emprunt » à common law, mais en s’appuyant plu-

tôt sur le droit à la vie privée - Isn’t this weird that they are resorting to right to privacy for companies? Esp., this was not a ‘secret recipe’ or any commercial sensitive information

12

Droit judiciaire – Prof. Frédéric Bachand

Après Lac d’Amiante: Les juges n’ont toujours pas autant de pouvoirs que dans le common law, mais Lac d’Amiante laisse pour

des arguments plus créatifs

Principes ALI/UNIDROIT – Introduction

INTERNATIONAL HARMONIZATION OF PROCEDURAL LAW Increase in international relations has led to inevitable negative interactions. The effort to reduce differences

among national legal systems is harmonization or approximation (reform rules so they approximate each other). This has encountered problems due to different local political history and cultural tradition. However there is hope in harmonizing procedure.

International arbitration is a substitute for adjudication in national courts, but even then procedures are not standardized. The ground rules are usually determined by the arbitrator.

UNIDROIT PARTNERSHIP Prof. Sturner of the International Institute for the Unification of Private Law (UNIDROIT) led project for prepa-

ration of Principles of Transnational Civil Procedure that serve as interpretative guide to set of Rules of proce-dural law (2000-2002)

FUNDAMENTAL SIMILARITIES IN PROCEDURAL SYSTEMS The similarities result from the fact that a procedural system must respond to several inherent requirements. Similarities are: a) Standards governing assertion of personal jurisdiction and subject-matter jurisdiction; b)

Specifications for a neutral adjudicator; c) procedure for notice to defendant; d) Rules for formulation of claims; e) Explication of applicable substantive law; f) Establishment of facts through proof; g) Provision for expert testimony; h) Rules for deliberation, decision, and appellate review; i) Rules of finality of judgments (mutual recognition).

DIFFERENCES AMONG PROCEDURAL SYSTEMS Due to differences in CML and CVL traditions, and differences within these traditions. Differences are: a) Role of judge (CVL more advocate role); b) Stages of litigation (CVL many short hearings,

CML pretrial then large trial); c) Reexamination (CVL extends to facts as well as law, more in court of first in-stance); d) Length of judges’ terms (CVL lifetime, CML selected from ranks of bar). Differences are not irrec-oncilable.

RULES FOR FORMULATION OF CLAIMS (PLEADING) Substantially similar in most legal systems. Principles and Rules require that pleading be in detail with partic-

ulars as to the basis of claim and the particulars reveal a set of facts that, if proved, would entitle the claimant to a judgment

EXCHANGE OF EVIDENCE Principles and Rules require disclosure of sources of proof before the plenary hearing (more CML). These re-

quirements presuppose that a claimant properly may commence litigation only if claimant has a provable case and not merely the hope or expectation of uncovering such a case through discovery. Limited rights of docu-ment discovery and of disposition.

PROCEDURE AT PLENARY HEARING CML: Presentation of evidence by advocates with supervision of judges. CVL: Inquiry by judge with sugges-

tions from advocates for development of evidence. Different professional skills are required on the part of judges and advocates, although the degree of differences are diminishing in the modern era.

SECOND-INSTANCE REVIEW AND FINALITY Principles and Rules defer to the law of the forum concerning appeals. They define conditions of finality that

discourage the re-opening of adjudication.

RECOGNITION OF THE PRINCIPLES AND RULES Seek to combine the best elements of adversarial CML tradition with judge-centered CVL tradition. Could ap-

ply in arbitration proceedings. Implementation is a matter of domestic and international law of nation states, may be adopted by international convention or legal authority of national state for application of courts in that

13

Droit judiciaire – Prof. Frédéric Bachandstate. Where permissible by forum law, with the consent of the court, the Rules could also be adopted through stipulation by parties to govern litigation between them.

PURPOSE OF THE PRINCIPLES AND RULES To offer a system of fair procedure for litigants involved in legal disputes arising from transnational commer-

cial transactions. To reduce the uncertainty and anxiety that particularly attend parties obliged to litigate in unfamiliar surround-

ings.

c. The growing influence of transnational sources on civil procedure in force in Canada

GreCon Dimter v. JR Normandin [2005] Facts Private international law: Choice of forum clause dealing with an action in warranty (1730

CCQ; See also 83 CCQ). The Superior Court applied art. 3139 C.C.Q. to dismiss the declinatory exception on the basis that the unity of the actions must prevail over the contractual choice of court provided for in art. 3148, para. 2 C.C.Q.  The Court of Appeal affirmed the dismissal of the declinatory exception and resolved the conflict between art. 3139 and art. 3148, para. 2 by applying art. 3135 C.C.Q. relating to the forum non conveniens. Whether Quebec court hearing principal action has jurisdiction to hear incidental action in warranty?

Held 3148(2) overrides 3139—autonomy of the parties is important. Appeal allowed.The CourtLeBel J.

[1] [18] [46] The fundamental substantive rule of the autonomy of the parties prevails over the suppletive procedural rule of the single forum.  Article 3148, para. 2 C.C.Q. (read broadly) must take precedence over art. 3139 C.C.Q. (read narrowly) in the context of an action in warranty where a choice of forum clause applies to the legal relationship between the parties to the proceeding if, as in the case at bar, the clause indicates a clear intention to oust the jurisdiction of the Quebec authority.  The Quebec authority must decline jurisdiction. 

In enacting art. 3148, para. 2, the Quebec legislature recognized the primacy of the autonomy of the parties in situations involving conflicts of jurisdiction. 

The choice is also related to the trend toward international harmonization of the rules of conflict of laws and of jurisdiction. 

The purpose of art. 3139, which extends to an incidental demand the Quebec authority’s jurisdiction to hear a principal demand, is primarily to ensure the efficient use of judicial resources, and the provision is the product of domestic procedural considerations

Article 3135 has a suppletive function and is applicable only where the jurisdiction of the Quebec court has first been established

[19] Private international law of Quebec has been codified.  This fundamental characteristic means that the general principles of interpretation of the Civil Code apply to the determination of the scope of the relevant provisions.  The courts must therefore interpret the rules as a coherent whole. 

Comments Articles 3149 and 3150 say that in specific contracts of adhesion, there is strong protection for the vulnerable party. This implies that AUTONOMY reigns in other contracts. The Convention La Haye sur les accords d’élection de for (article 2: exclusions) says on the same things that it won’t touch them, but doesn’t grant 3149-50 types of jurisdiction. Article 3139 should be read in a restrictive way, so as to not overextend its scope. Autonomy is primary, as are principles of fundamental justice, so 3139 is secondary. International law (and Bachand) has determined that when parties select arbitration, these decisions must be enforced by courts as if they were law. It follows that 3148 (2) is held to be obligatory, despite 3139 (even though Convention de New York is a TREATY; La Haye is not yet).

This is part of a larger trend toward legal globalization—in both public and private law. Some domestic civil procedure must be interpreted in light of transnational sources

e.g. CPC 940.6 refers to the New York Convention e.g. Quebec and France have signed a treaty exempting French plaintiffs from the CPC’s security for

costs. it might even be necessary to invoke case law from other countries in order to interpret these sources

14

Droit judiciaire – Prof. Frédéric Bachand

B. Courts: Some fundamental principlesIl existe des circonstances qui, de leur nature, vont potentiellement mettre en péril la liberté du jugement. On accepte comme étant légitime la décision finale et obligatoire du juge. On considère essentielle pour que la décision soit légitime que la personne qui effectue cette décision soit totalement libre et desintéressée.

3 façons de mettre en oeuvre cette idée : Indépendence, impartialité, responsabilité

i) The independence, impartiality and responsibility of judges

We worry about circumstances that could interfere with “the freedom of judgment”: we want to make sure that judges are able to exercise their power freely and disinterestedly

a judgment won’t seem legitimate if it was rendered by a judge who did not act freely

Almost all national legal systems have rules designed to protect freedom of judgment

1. Impartiality: A judge shouldn’t be allowed to exercise power if there are circumstances related to the matter at issue that might compromise the judge’s ability to act freely and disinterestedly

ALI/UNIDROIT P.1 concerns “Independence, Impartiality and Competence of the Court”: freedom from in-fluence, security of tenure, impartiality, no communication with others about cases, legal experience and expertise (CB1p11-12)

ALI/UNIDROIT R.10 also concerns “Independence and Impartiality of the Court”: R. 10.1 uses a typical common law formulation: Judges should not participate if there is “reasonable

ground to doubt” their impartiality. (This is similar to “resaonable apprehension of bias”) R. 10.2 gives parties a way of challenging the impartiality of the judge.

CPC 234 allows for recusation of judges (if parties request) paragraphs 1-9 list particular circumstances: this is a typically civilian approach paragraph 10 uses a reasonableness test: this is the common law approach.

CPC 235 requires the disqualification of a judge if s/he or her/his spouse has an interest in the case (un-like CPC 234, this is a rule of public order)

Also, Art. 23 of the Quebec Charter, guarantees the right to a public and impartial hearing before an inde-pendent tribunal.

in consensual arbitration, parties often go to court to attack an arbitrator’s impartiality. However, in arbitration, as in court, one would obviously not want to try to have a decision-maker re-

moved for trivial reasons! if you didn’t ask for recusation at first, but later you think there’s bias, can you appeal on this basis? You

can’t do this in France; nor can you do this in international commercial arbitration. The message to the parties is that they shouldn’t take their chances.

R.D.S. case (optional reading on WebCT): shows that reasonable people can disagree about when and whether there is a problem of partiality—debate over this went all the way to a split decision at SCC Crown, appealing this case, would argue:

that the judge was prejudiced that there are doubts about fairness, and justice must be seen to be done

Responding, one might point out: that the judge has to rely on common sense, has discretion to decide which evidence to accept;

must bring knowledge and experience to bear on the case also, that this comment was made after the trial

P.1.3. UNIDROIT“The court should be impartial. There should be a fair and effective procedure for addressing reasonable contentions of judicial bias.”

Cf Cpc art. 234 – Récusation du juge Civiliste : (1)-(9) – Liste de circonstances précises dans lesquelles un juge peut être récusé. Attempt to

make an exhaustive list is extremely civilian concept. Common law: (10) – L ast resort disposition to include any other situation. In common law, we just have

a general rule that is all-encompassing through its vagueness.

Cf Cpc art. 235: « Le juge est inhabile si lui ou son conjoint sont intéressés dans le process »15

Droit judiciaire – Prof. Frédéric Bachand Intérêt ici était seulement financier avant, mais s’est assoupli par la suite pour comprendre tout intérêt gé-

néral (so, common law influence).

Cf Cpc art. 236 : Le juge doit se récusé lui-même, ou les parties peuvent demander sa récusation Para.2 impose : « La partie qui connaît une cause de récusation contre le juge doit de même la déclarer

sans délai par un écrit versé au dossier et en notifier une copie au juge concerné ainsi qu’aux autres par-ties ».

Cf Cpc art. 238 : La requête en récusation est décidée par le juge. Weird. Can be appealed.

2. irresponsabilité au plan civil (like immunity, but not exactly): Judges must be sheltered from pressure from the parties themselves, should know that they cannot be sued for their decisions

just about everywhere, the jus commune rules of civil liability do not apply to judges acting in the course of their duties

however, this irresponsibility may not be absolute: in France, a party can sue the state, but not the judge; if the state loses, it can sue the judge; but par-

ties cannot sue judges directly in Quebec, one can sue a judge for wrongs arising out of the course of his or her duties, and it won’t

be invalid just for that reason. But case law imposes very strict requirements for such an action to succeed. Basically, a judge must have acted (1) in bad faith and (2) beyond his or her powers e.g. if a judge of the Court of Quebec issued an injunction (judges of the Court of Quebec do not

have this power) should private commercial arbitrators have the same protection?

consider that private commercial arbitrators often have other business interests, do not have the same standards of professional ethics

Le juge doit être protégé des pressions des parties. La pression affecte la liberté du juge, qui entraîne des conséquences sur sa responsabilité.

Consensus re : les règles de responsabilité civile ne s’appliquent pas (du moins pas intégralement) aux juges (aka immunité judiciaire).

Mais consesus sur nécessité de ne pas aller jusqu’à immunité ou une irresponsabilité absolue. Pourquoi? « Power comes with responsibility » (Cappelletti) On tend à exiger plus qu’une faute simple (donc faute lourde, intentionnelle, fraude, etc.) L’exemple français : L’action contre l’État suivie de l’action récursoire contre le juge Common law (*Qc aussi) : Acte commis de mauvaise foi et qui constitute un excès de compétence (c’est-

à-dire juge n’avait pas le pouvoir d’accomplir l’acte en question)o Extrèmement difficile à prouver mauvaise foi. Les deux conditions sont nécessaires. An example

would be a judge from the Cour du Québec who gives an injunction out of bad faith (injunctions can only be given from Cour Supérieur).

3. judicial independence: freedom from pressure by other aspects of the state: in many legal systems, this is a principle of constitutional law. In Canada, it has been held to include three components:

security of tenure (until retirement age): s.96 (includes superior courts and appeal courts) judges can only be removed for bad behaviour, and

only by a majority of both houses of Parliament. (s.99(1) of Constitution Act, 1867) other courts: provincial courts, federal courts, SCC: not covered by s.99—but covered by preamble

(according to Therrien case)—unwritten principles some say that this finding was a “coup d’etat” by SCC

however, the SCC did not go so far as to say that s.99 was extended to other courts. In Valente, Le Dain J said that judicial independence would be safeguarded for provincial court

judges if: “(1) the judge may be removed only for cause related to his or her capacity to perform judi-

16

Droit judiciaire – Prof. Frédéric Bachandcial functions and (2) there must be a judicial inquiry to establish that such cause exists, at which the judge must be given an opportunity to be heard.”

retirement age: 75 for s.96 judges; 70 for provincial court judges financial security

s.100 says that only Parliament can set the salaries of s.96 judges. The text of the Constitution Act, 1867 does not impose any safeguards on the salaries of other judges.

However, case law now says that judicial salaries can only be changed following recommendations from an independent judicial council. If Parliament doesn’t follow this recommendation, it must con-vince a court of the rational nature of its decision.

In April 2003, the Quebec Superior Court reversed a Quebec government decision which would have ignored a recommendation from a judicial council regarding the salaries of judges of the Court of Quebec

institutional independence

Re Therrien (2001) SCC (CB1p208) Facts Therrien had been imprisoned for one year in 1970-71 for giving assistance to the FLQ. He

was later pardoned. He became a lawyer. When he applied to be a judge, he did not disclose his criminal record, and he was appointed to the Court of Quebec. When the Ministère de la Justice learned about this, it filed a complaint with the Quebec Conseil de la magistrature. The Conseil de la magistrature told the Ministère de la justice to start removal proceedings by making a request to the Court of Appeal in accordance with s. 95 of the Courts of Justice Act, which states that: “The Government may remove a judge only upon a report of the Court of Appeal made after inquiry at the request of the Minister of Justice.” Therrien challenged the constitutionality of s.95.

Ratio Gonthier J: Therrien loses, based heavily on Le Dain J’s judgment in the Valente case. The three

essential requirements for judicial indepenence are security of tenure, financial secu-rity and institutional independence. Le Dain J had said, “Similarly, it may be desirable, as now provided for in s. 56(1), that a judge should be removable from office only on an address of the legislature, but again I do not think it is reasonable to require this as essential for security of tenure for purposes of s. 11(d) of the Charter.”

Vise à éviter que leur liberté de jugement soit mise en péril par d’autres éléments de l’État (pouvoirs légis-latifs et exécutifs).

Mais encore ici, l’indépendence ne peut être absolue en raison de la nécessité de trouver un équilibre avec la responsabilité des juges envers la société. They have to answer to the State to a certain extent (« with power comes responsibility »).

Les trois grandes composantes de l’indépendence judiciaire:1. Poste (sécurité): Juges devraient être en poste jusqu’à l’âge de la retraite et ne doivent pas pouvoir être démis de leurs fonctions (trop facilement) par d’autres organes étatiques. E.g., Prime Minister cannot get rid of a judge and replace with individual of his choice2. Rémunération et traitement: Juges doivent bénéficier d’une sécurité financière adequate. This way they do not need extra jobs, and they won’t be bribed.3. Administration: Juges doivent bénéficier d’une autonomie administrative suffisante.

Poste. Cours supérieures et cours d’appel des provinces

o En poste jusqu’à 75 ans (art. 99(2) LC 1867)o Destitution seulement par décision conjointe de la Chambre des communes et du Sénat « pour

mauvaise conduite » (art. 99(1) LC 1867)o Donc en poste jusqu’à l’âge de la retraite et protection contre décision arbitraire de l’État, tant au

niveau du fond que de la procédure Autres cours canadiennes (y compris Cour suprême)

o Rien dans la LC 1867 n’en traite explicitemento Procédure pas la même partouto Mais Constitution s’intéresse tout de même, implicitement, à leur situation (Therrien)

Traitement.

17

Droit judiciaire – Prof. Frédéric Bachand Art. 100 LC 1867: Pour cours supérieures et cours d’appel des provinces, traitement fixé par Parlement;

ne dit rien d’autre et n edit rien en ce qui a trait aux autres cours Mais Cour suprême a dit que quoi qu’en dise LC 1867 :

o La Constitution interdit à l’État d’agir comme bon lui semble en fixant le traitement des juges. Ac-tivisme judiciaire ?

o L’État doit d’abord mettre sur pied et consulter des commission indépendentes constitutuées de politiciens, d’indépendentes et de juges (dépolitisation)

o Argument about judges’ salary – decision went up to SCC. Who should make these decisions?

Autonomie administrative. Financement des activités des juges (secrétaires, telephones, etc.) Case where judges wanted to stop increase of parking fees. Made it into a question of principle!

Quid du processus de nomination des juges?

IBA Minimum Standards, art. 3 : “a) Participation in the judicial appointments and promotions by the exec-utive or legislature is not inconsistent with judicial independence provided that appointments and promo-tions of judges are vested in a judicial body in which members of judiciary and the legal profession form a majority. b) Appointments and promotions by a non-judicial body will not be considered inconsistent with judicial independence in counties where, by long historic and democratic tradition, judicial appointments and promotion operate satisfactorily.”

o Rationale is to include judiciary in decision making In Canada, executive (Minister of Justice) names judges. Prime Minister names SCC judges. Ad hoc com-

mittees are usually formed, even though not formulated by law. So we fall under art. 3b). o Problem with 3b): Elections for judges? E.g. in certain US states. Is this really troubling? Risk of

corruption in campaign financing. Good judicial personalities may not be good campaigners and vice versa. Why is it more difficult to grasp that we vote for a political leader but not a judge? Re-quirement of impartiality only applicable to judges?

o Re: 3a): Should judges be naming other judges? Fits in with idea of judicial independence.

Bande indienne Wewaykum c. CanadaFacts Binnie, as deputy justice minister, 15 years earlier would have possibly seen a file

about this particular claim pass through his office, although he himself does not remember it. Binnie would have been involved in the process of negotiation and not adjudication

Held No finding of partialityReasoning - Reasonable fear of impartiality: a tendency, an inclination, or a predisposi-

tion to privilege one party over another for a particular reason- It is important that justice not only be done, but that it appear to be done- Binnie had no pecuniary interest, nor could he be considered a party- Presumption of impartiality of judges- Test: “What would an informed, reasonable and right-minded person,

viewing the matter realistically and practically, and having thought the matter through, conclude”? What informs these? SEE JUDICIAL REVIEW

- Must look at each case on its facts: in this case, length of time, and Binnie not remembering are important factors

Comments What is reasonable bias?(1) That reasonable apprehension is a surrogate for actual bias(2) That unconscious bias can exist even where the judge acted in good faith(3) That looking for real bias is simply not the relevant inquiry since justice

should not only be done but must be seen to be done.

M. Cappelletti, “Who Watches the Watchmen? A Comparative Survey on Judicial Responsibility”

THE PROBLEM AND ITS VALUES Judicial responsibility reflects a “relationship of the subject (i.e., judge) to societal values Problem in defining judicial responsibility. Judges have power. With power comes responsibility. Question of responsibility thus depends on power of

judge. Requirement for accountability

18

Droit judiciaire – Prof. Frédéric Bachand Expansion of judicial responsibility in modern societies

(1) Administrative-procedural component: Move away from idea that litigation is an “affair of the parties” and that judge is merely there to passively administer. Move towards idea of judge as a controller of legal proceedings; judge unfolds proceedings and ensures equality of parties.(2) Substantive component: Judges are responsible for the “development of the law”. Need for judicial control of administrative and legislative activities, for judicial interpretation of statutes, for protection of social rights, for balance of massification (conflicts between collective vs individual rights, e.g. class actions).

Obstacles to judicial accountabilityo “The King can do not wrong” – movement away from immunity of the state and its officials (including

judges) vis-à-vis the persons injured by state action.o “Res judicata facit jus” – Even if hypothetically wrong, a final decision creates its own “truth”, and so

how can an act which “creates the law” cause a result that is “against the law”? This all leads to tension between accountability and independence. Immunity does not necessarily mean

more independence. Immunity towards parties may be accompanied by high accountability to government.

TYPOLOGY OF JUDICIAL ACCOUNTABILITY (1) Political accountability of either the judge or the judiciary: (a) Accountability to political branches E.g., in

England, judges may be removed from bench as breach of good behaviour (improper exercise of functions, etc.); (b) Constitutional accountability, e.g. impeachment for treason, bribery or other high crimes and misde-meanors in US.

(2) Societal or public accountability of judge or judiciary to the general public. (3) Legal (vicarious) accountability of the state, which can be either (a) exclusive, or (b) concurrent with

the personal accountability of the judge (4) Legal (personal) accountability of the judge, which can be (a) criminal, (b) civil, or (c) disciplinary. May

also be “recovery” accountability of the judge vis-à-vis the state, if the latter has been held vicariously ac-countable vis-à-vis the aggrieved person.

TOWARD A MORE RESPONSIVE SYSTEM OF JUDICIAL RESPONSIBILITY Two extreme models of judicial responsibility: (a) The Repressive or Dependency Model. Judge or judiciary

is in a position of subservience. (b) The Corporative-Autonomous or Separateness Model. Absolutization of the independence to the point of making the judiciary a corps séparé, totally insulated from government and society.

Toward a Responsive or Consumer-Oriented Model. Combines a reasonable degree of political and soci-ety responsibility with legal responsibility. Balances independence and accountability. Reflects inevitable de-gree of “politicization” and “socialization” of judicial function. Demands greater responsiveness of jurispru-dence to society’s needs and aspirations. Reflects democratic system of government and requirement for checks and balances. Judicial responsibility should be seen as a function of the “consumers” (i.e, citizens) at whose service only the system of justice must work.

J. Ziegel, “Disrobe This Process”

Globe and Mail editorial by U of T law professor, stating that the current system of appointments to the Canadian Supreme Court is “repugnant to our democratic values” and of questionable constitutionality. PM has sole prerogative to fill vacancies on Court and to appoint Chief Justice. Not obliged to consult with

anyone and is not accountable for his choice to any body. SCC is one of the most powerful courts in Canada and requires thorough and transparent selection process. Federal government often is a litigant and PM may appoint judges expected to be sympathetic to federal posi-

tions. Other countries have more transparent processes: US requires consent of Senate; Germany requires election

by two chambers of Parliament; even England (whose system Canada’s is based on) is establishing a Judicial Appointments Committee.

Recommends establishment of a SCC nomination committee which would provide a short list of candidates and PM would be restricted to choose one of these names.

J.A. Lanzinger, “A Personal Reflection on Judicial Elections”

Ohio judge running for election for a seat on the Sixth District Court of Appeals.

19

Droit judiciaire – Prof. Frédéric BachandIn 34 states, judges are named through merit selection, i.e. committee provides a short list to a governour, who chooses a judge from the list. In 16 states, there is an election process. Must be a lawyer who has practiced for at least 6 years. Ordinarily, a Republican or Democratic party will endorse a single candidate, although judicial races are supposed to be non-partisan.

PROBLEM AREAS Campaign financing : Much money required for campaigning. The public impression is that judges can be

bought. Judicial independence : Judges are weary of making any unpopular decisions when campaigining Electorate : It is a mistaken assumption that all voters will make rational choices. There may also be a low

voter turn-out. Personal toll : Required to attend many social events, be extroverted. Personality required for running a cam-

paign is entirely different from the discipline of ruling on cases.

ii) The openness and public nature of courts

This is almost a universal principle: resolution of private disputes is not just a private matter and should be subject to public scrutiny.

e.g. s.11(d) of the Charter (in penal matters); Art. 23 of the Quebec Charter; Art. 6 of the European Con-vention on Human Rights

The SCC has said that the right to free and open proceedings is related to freedom of expression under s.2(b) of the Charter.

There is a belief that public scrunity will compel parties, judge, witnesses to behave honestly and reason-ably

See also Jolowicz (CB1p332) However, the parties can also renounce this public scrutiny by settling their dispute privately.

However, public access is not absolute. There an be limits on:1. What kind of information the public has or should have access to:

e.g., physical presence at trial proceedings, court file (dossier de la cour: includes procedure, evi-dence, identity of parties), etc.

2. How the information is acquired and disseminated e.g., media, photography, television in trials

In Quebec, proceedings are generally be held in public, although courts retain the discretionary power to order secrecy if it is “in the interests of good morals or public order.” (CPC13)

First instance trials in famly matters are also held in camera. (CPC13) CPC13 overrides Art.23 of the Quebec Charter. Judges have the discretionary power to order publication bans; these are usually governed by the rules of

practice (regulations made by courts).

In Ontario, “all court hearings shall be open to the public” (OCJA 135) Except: “The court may order the public to be excluded from a hearing where the possibility of serious

harm or injustice to any person justifies a departure from the general principle that court hearings should be open to the public.” (OCJA 135(2))

Divulgation of information concerning a closed hearing does not constitute an outrage to the tribunal, un-less the tribunal officially prohibits this. (OCJA 135(3))

Documents from court hearings are also open to the public unless the court states otherwise (OCJA 137)

Principes ALI UNIDROIT P.20 P20.1. Generally, proceedings are public. However, a tribunal may order closed proceedings in the inter-

est of justice, public order, or respect of private life, after consultation with the parties P20.2. Files from tribunals and recordings are public, or accessible P20.3. When the proceedings are public, the judge may order that part of it be closed, in the interest of

justice, public order or respect for private life. P20.4. Judgments, motives and decisions of tribunals are accessible to the public.

Principe général, quasi universel

20

Droit judiciaire – Prof. Frédéric BachandFondements Du point de vue des parties aux litiges: une garantie de meilleure justice Du point de vue de l’ensemble de la société: primauté du doit (rule of law), légitimité; ce qui justifie protection

constitutionnelle

Portée Information visée Principe affecte non seulement l’info. elle-même, mais accès à l’info et dissémination de l’info.

Limites au principe Objet: (1) limite accès à l’info. ou (2) limite dissémination de l’info. Nature/source : (1) limites spécifiques parfois établies par la loi (ex. art. 13(2) et 815.4 C.p.c.); (2) mais juges

disposent d’un pouvoir discrétionnaire parfois codifié (ex. art. 13(1) C.p.c., art. 135 L.T.J.), parfois pas

Sierra Club of Canada v. Canada (Minister of Finance) (2002) SCC (CB1p190) Facts Atomic Energy of Canada Ltd. (AECL) (Crown corporation) contracted to sell a nuclear

reactor to China. The Canadian government provided an export credit guarantee of $1.5 billion. Sierra Club sued the government, said that the government had not followed proper environmental assessment procedures in providing this guarantee. AECL got involved in this lawsuit, relying on certain Chinese government documents. But it had agreed with the Chinese government that it would keep these documents confidential. The Chinese government was willing to let AECL release these documents to the parties, but not to the public. AECL requested confidentiality of these documents in order to uphold its contractual obligations.

Ratio Iacobucci J: In considering whether to grant a confidentiality order like this, courts must consider

s.2(b) of the Charter (freedom of expression). Courts should grant a give a confidentiality order like this if:

1. it’s necessary in order to “prevent a serious risk to an important interest, including a commercial interest.”

If it’s a commercial interest in question, the litigant must show that there is a general principle at stake for commercial parties

The judge must consider alternatives, and how to restrict the confidential-ity order as much as possible.

2. on the whole, the benefits of the confidentiality order outweigh the costs. In this case, the confidentiality order is granted, in order to protect AECL’s interest in

upholding its contractual obligations. If it were not granted, AECL would have to with-hold the documents, and this would compromise its right to a fair trial.

Comments Prof. Bachand doesn’t like this decision—he thinks the court allowed a private interest to trump the public interest.

Iacobucci J dwelt on the highly technical nature of the documents: he said that “The nature of these documents is such that the general public would be unlikely to under-stand their contents, and thus they would contribute little to the public interest in the search for truth in this case.” He said that the public search for truth would be better served by allowing the parties’ experts to examine the documents!

Re Vancouver SunFacts Criminal trial in relation to Air India explosion. The Crown brought an ex parte application

seeking an order that a potential Crown witness attend a judicial investigative hearing for examination pursuant to s. 83.28 of the Criminal Code. The judge allowed an in camera investigative hearing, and no notice was given to the accused or to the public. Counsel for the accused challenged constitutional validity of s.83.28 and the Vancouver Sun filed a notice of motion seeking open court proceedings. Hearing judge varied order to permit counsel for the accused to attend hearing, but refused to have courtroom open to public. Vancouver Sun’s motion was dismissed, but leave to appeal was granted by SCC.

Ratio The open court principle should not be presumptively displaced in favour of an in camera process. Openness is presumed, and may only be displaced upon proper consideration of

21

Droit judiciaire – Prof. Frédéric Bachandthe competing interests at every stage of the process. The Dagenais Mentuck test should be applied to all discretionary judicial decisions that limit freedom of expression by press (includes minimal impairment and proportionality requirements).

Dissent Without knowing what information will be revealed at the investigative hearing, it is not possible to evaluate the risk to third parties’ rights and to the proper administration of justice. Consequently, the Dagenais Mentuck test cannot guide a judge’s discretion under s.83.28 to order an in camera investigate hearing.

Comments In this case, the level of secrecy was unnecessary. The identity of the person had to be confidential at the beginning of the trial, but should have been subject to revision by the hearing judge. The constitutional challenge did not have to be in camera since it could have been argued without the details of the information submitted to the judge. “In the case where so much of the information relating to the offence is already in the public domain and in which recourse to an investigative hearing is sought in the midst of an ongoing non-jury trial, the case for extensive secrecy is a difficult one to make”.

K. Makin, “Lawyer Laments Rise in Publication Bans” (Globe & Mail, 2003)

Dagenais case (SCC 1994) gave rights to press freedom over rights of parties’ privacy. However, “spirit of Dagenais may be crumbling. Priority given now to notion of privacy for groups such as children, police infor-mants, commercial competitors.

Procedure. Once a ban has been imposed, media outlet must obtain leave to appeal from SCC (outside of provincial appellate courts’ jurisdiction). Thus, expensive process that is most likely to fail bc SCC can only hear small amount of cases. Plus, by the time the court rules, the proceeding may already have ended.

Other issues. A judge may issue a ban at any time without giving notice. Only Alberta and NS have advance warning system for media. No consistency of bans from one region to another.

K. Roach, “Let the Light Shine In”

Dickson J. (1982): “At every stage the rule should be one of public accessibility and concomitant judicial ac-countability”.

Courts have stressed that publication bans should be used only as last resort to prevent a serious danger to the proper administration of justice. Even if there is a serious danger, ban should be as limited as possible (e.g. name of witness, rather than closing whole proceeding). Judge must perform balancing act between the good the ban may achieve against its harms.

The judiciary should routinely give notice and standing to a media pool that shares information about pro-posed bans and the burden of challenging them. Judges should also give reasons to explain proposed or ex-isting publication bans.

C. The “Crisis of Civil Justice” and Contemporary Reforms to Private Judicial LawLord Woolf, Access to Justice – Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales

PRINCIPLES Civil Justice: Remedies must be provided for civil rights and claims. “It responds to the social need to give

full and effective value to the substantive rights of members of society which would otherwise be diminished or denuded of worth or even reality”. A requirement for this is effective access to the enforcement of rights, which should be constitutionally guaranteed.

Basic principles to ensure access to justice:o A just system in the results it deliverso A fair system that ensures equal opportunity to litigants to assert or defend themselveso Procedures and costs proportionate to the nature of the issues involvedo Reasonable speed in dealing with caseso An understandable system to those who use it

22

Droit judiciaire – Prof. Frédéric Bachando A responsive system to those who use ito A system which provides as much certainty as possibleo An effective system that gives effect to the previous principles

PROBLEMS Cost. An adversarial environment creates excessive expenses that are disproportionate and unpredictable.

This is partly due to the powers of the courts which have fallen behind tactics of litigators, and parties’ abilities to control conduct, pace and extent of litigation. Adversarial system requires that every step of the case be fully investigated. There is a failure to establish issues of the case at an early stage. Issues of disclosure and evidence also create high costs and delays.

Delay. Postpones compensation. Interferes with normal existence of individuals and businesses. Exacer-bates or prolongs the original injury. Leads to collapses of relationships and businesses. Makes it more diffi-cult to establish the facts (memories fade, witnesses can’t be traced). Postpones settlement or leads parties to settle for inadequate compensation bc they can’t afford to wait. More benefit to legal advisers than parties. Results in increased costs. Four areas: (a) Time taken to progress a case from initial claim to a final hearing; (b) Time taken to reach settlement; (c) Delay in obtaining a hearing date; (d) Time taken by the hearing itself.

Complexity. Impedes access and imposes burden on parties. Due to state of rules of court. Existence of separate procedures, jurisdictions, initiation of proceedings, multiplicity of practice directions, substantive law which is often obscure and uncertain. Unavailability of legal assistance and advice.

Low priority for civil justice as opposed to criminal justice; no legal aid for civil claims, etc.

SUGGESTIONS FOR REFORM Parties should be able to obtain information and advice; should settle their disputes where possible before go-

ing to court; resort to appropriate alternative dispute resolution mechanism; keep fully informed of the likely costs and consequences of the proceedings and any alternative means of resolving those proceedings; take into account nature of issues involved and means of parties; maximum length of trial; rules of procedures should be comprehensive and comprehensible. Case management (extended small claims, fasttracking for straightforward cases). Changes in judicial responsibility and court structure. More interventionist roles for judges where litigants appear in person. Changes in detailed procedures (pleadings, discovery, witness statements, experts, written offers, etc.) to reduce complexity, cost, delay.

Comité de revision de la procedure civile, La Révision de la procédure civile – Une nouvelle culture judiciaire – Rapport du Comité de révision de la procédure civile, pp.10-43

OBSERVATIONS Decrease in number of actions brought before tribunals Increasing judicial and extra-judicial costs create obstacles to accessibility Complexity of procedure and substance of law discourages people Parties not represented by an attorney (due to costs, lack of confidence, influence of « do it yourself » atti-

tudes). Creates problems for judges who are not supposed to interfere. Delays in the judicial system Slow modernisation of administration of justice

A NEW VISION OF CIVIL PROCEDURE International attempts to simplify procedure, create equilibrity between parties, encourage alternative dispute

resolution, simplify legalese, Increase information technology development – Electronic databases, filing systems, SOQUIJ, all the while

staying sensitive to confidentiality issues Comité de révision de la proécdure civile’s vision :

o Respect of persons : simple and accessible procedure, procedural limitationso Responsabilisation of parties : as to choice of dispute resolution method, attempts at conciliation, etc.o Increased intervention of judge to equalize parties’ powerso Proportionality of procedures (in terms of economic and social costs)o Openness to information technology

Comité’s objectives : Humanization of justice; Efficiency (speed, costs) of Justice See lists of recommendations : pp.36-43

McMurtry R.R., “We Are Not All Equal before Law the Law” (Globe & Mail, 2005)

23

Droit judiciaire – Prof. Frédéric BachandEx-AG critiquing our system for crisis of “disappearing civil trial” which is unfair to people who cannot afford access to legal system. Civil litigation costs are increasing. While in criminal systems, lawyers are provided through legal aid plans, this is not the case in civil systems. It is essential for government and the legal profession to take measures to ensure access (e.g., pro bono work, legal aid clinics, stronger HR legislation, accessible and independent police complaints system).

D. Three Fundamental Themes1. Le droit d’agir en justice : Quand un demandeur peut-il exiger des tribunaux judiciaires d’un ordre juridique donné une décision finale et obligatoire statuant sur sa réclamation ? (ou: dans quelles circonstances dispose-t-on du droit d’agir en justice ?) À quelles conditions peut-on exiger des tribunaux d’un order juridique donné qu’ils jugent du bien-fondé d’une demande?

2. La compétence des tribunaux judiciaires : Une fois établi que le demandeur a le droit d’agir en justice dans un ordre juridique donné, devant quel tribunal peut-il faire valoir sa réclamation ? (ou: quel tribunal est compétent à l’égard de sa réclamation ?)

3. L’instance et son déroulement : Suivant quelle procédure la réclamation pourra-t-elle être tranchée de manière finale et obligatoire par le tribunal compétent ?

2. THE RIGHT TO BRING AN ACTION Substantive law determines the merits of a claim; civil procedure determines whether someone has a right to

invoke the jurisdiction of the court: i.e., to demand that a court will hear a claim and make a Cornu’s definition of “droit d’agir en justice”: “Droit (ouvert à certaines conditions: intérêt, qualité, etc.), pour

l’auteur d’une prétention (principale, incidente, appel, pourvoi en cassation, etc.), d’être entendu et jugé sur le fond de celle-ci, sans qu’elle puisse être écartée comme irrecevable, le juge étant tenu de la déclarer bien ou mal fondée.”

NCPC (France): “L’action est le droit, pour l’auteur d’une prétention, d’être entendu sur le fond de celle-ci afin que le juge

dise bien ou mal fondée. Pour l’adversaire, l’action est le droit de discuter le bien-fondé de cette préten-tion.” (Art. 30, NCPC)

“Constitute une fin de non-recevoir tout moyen qui tend à faire déclarer l’adversaire irrecevable en sa de-mande, sans examen au fond, pour défaut de droit d’agir, tel le défaut de qualité, le défaut d’intérêt, la prescription, le délai préfix, la chose jugée.” (Art. 122, NCPC)

It is important to distinguish: the merits of the claim the right to bring an action jurisdiction of the court procedural regularity

A defendant could attack any or all of these. Toute demande en justice peut donc être contestée sur trois plans :

1. sa recevabilité (inexistence du droit d’agir en justice) ;2. sa régularité (la demande est irrégulière car le débat n’a pas été correctement engagé) ;3. son bien-fondé (la prétention dont fait l’objet la demande est fausse).

A. Conditions for the existence of the right to bring an action

i) Conditions that apply to all disputes: interest, quality, capacity, etc.

Identifier les conditions d’existence du droit d’agir en justice n’est pas une mince tâche. Elles touchent à des notions comme l’intérêt (standing), la qualité, la capacité et le pouvoir d’agir en justice, mais leur sens et leur portée sont – plus souvent qu’autrement – loin d’être clairs. En faisant les lectures, essayez d’identifier les principes régissant l’existence du droit d’agir en justice. Certaines de ces notions ont-elles réellement trait à l’existence du droit d’agir en justice ou ont-elles plutôt trait aux modalités d’exercice de ce droit ? Pourquoi ces restrictions au droit d’agir en justice existent-elles ? En quoi le droit d’agir en justice en matière civile diffère-t-il du

24

Droit judiciaire – Prof. Frédéric Bachanddroit d’agir en justice dans des affaires où est mise en cause la légalité d’actes de l’Administration ? Ces distinctions vous paraissent-elles justifiées ?

This is a transsystemic synthesis of the basic principles; the rules are extremely complex. law of persons: to bring an action, one must have legal personality. This includes

1. the ability to have rights (personality) The main issue here surrounds class actions: whether the law will recognize their right to sue as

a group, rather than as individuals. This is not a problem with regard to legal persons (see CCQ 303), but problems arise with other

kinds of partnerships and associations. Traditionally, when bringing a lawsuit on behalf of a partnership, one was representing all of

the partners. Now CCQ 2225 enshrines the capacity of a partnership to bring an action—sep-arate from that of its members

Companies (few problems 298, 188 CCQ) Other groups (more complicated)

sometimes there are clear rules 1039 CCQ (co-ownership syndicates) grey areas: partnership (Ont. art 8, CCQ 2188)

In practice, whenever working with any kind of organization, it’s a good idea for a lawyer to de-velop a reflex of asking whether the organization has the right to bring an action, independent of its members.

2. the ability to exercise one’s rights (this is also known as quality): All legal systems have rules that have the effect of restricting the rights of certain persons to exer-

cise their rights. The classic example is that of minors: they have rights, but limited capacity to exercise them

(CCQ 155). They must be represented by their parents or guardians (CCQ 159) Also, persons of full age who are legally incapable

see ORCP 7, which allows for litigation guardians to represent persons under disability. bankruptcy also imposes limitations on one’s ability to bring an action in one’s own interests

(Sam Levy) It may be useful to think of these as the opposite of a specific immunity, e.g. state or diplomatic

immunities Quality: power that the law recognizes in a person to exercise the right to invoke the jurisdiction

of the court of another (example: tutor of minor, syndic de faillite, etc.)civil procedure:

standing/intérêt: one must have a sufficient interest in the action. (CPC 55) This interest must be:1. real and current (“né et actuel”): In theory, purely preventative or declaratory actions are irrecevable

Mootness: even if there may have been a wrong between the parties, but the wrong no longer exists, the question is now moot and one cannot bring an action. e.g. request for injunction but behaviour has stopped in the meantime

Borowski v. Canada (A.G.) (1989) SCC (CB1p60) Facts Borowski challenged s.251 of the Criminal Code (the pre-Morgentaler abortion laws). By

the time this appeal reached the SCC, the SCC had already struck down the laws. The Court Sopinka J:

“The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of re-solving some controversy which affects or may affect the rights of the parties.”

The approach with respect to mootness involves a two-step analysis. It is first neces-sary to determine whether the requisite tangible and concrete dispute has disappeared rendering the issues academic. If so, it is then necessary to decide if the court should exercise its discretion to hear the case.

A court may exercise its discretion to hear a moot question, but it should do so only in light of certain criteria:

1. adversarial dispute-resolution: parties are assumed to need an incentive to argue their cases fully, although this isn’t always the case.2. judicial economy: unless the decision will affect the rights of one of the parties, it’s a waste of scarce judicial resources. However, there may be an exception for cases that raise important public issues.

25

Droit judiciaire – Prof. Frédéric Bachand3. judicial restraint: for a court (especially the SCC) to decide abstract questions is awfully close to legislating.

Comments Think about how mootness would apply in a purely civil matter. End of the action. Compare to references. Declaratory judgments.

there is a dimension of law creation (legislative territory) if theoretical cases are heard doctrine of mootness: a tribunal can render a decision on a question that has be-

come moot if it will be in the public interest Must consider the social cost of not answering the question It appears that asking for interpretation of the Charter without reference to a specific

law will not be accepted (in this case, asking to elaborate the rights of the foetus)

If the wrong doesn’t already exist, but there is a risk that it will manifest itself, you may be able to bring an action, but there are limits. “Any person who has an interest in having determined, for the resolution of a genuine

problem, either his or her status or any right, power or obligation the person may have…may…ask for declaratory judgment in that regard.” (CPC 453)

One would only have the right to bring a declaratory action if the declaration might im-prove one’s legal condition.

One cannot bring an action just to get a judicial interpretation of a contractual provision, unless it was breached. Courts are there to resolve disputes, not to give legal opinions.

A declaratory judgment is not as binding as an injunction, but it still has the force of precedent, and also res judicata (as between the same parties). It clarifies legal rights and obligations—actually very useful for companies, allows them to litigate in a less ag-gressive manner.

If an insurance company uses a standard-form contract, it may want to get a court to clar-ify its interpretation before any real litigation is at stake. This might be a good tactic for the insurance company, because it could have a legal

question decided without any factual context that might the court sympathetic to its opponent.

The insurer gets to take the initiative, could even sue of its own accord and select a defendant who won’t put up a good fight.

Result of the decisions isn’t as high quality because both sides of the question have not been debated

If the insurance company used the same standard-form contract throughout North Amer-ica, and a clause was read a certain way in a certain jurisdiction, it may want courts in other jurisdictions to interpret it too. But this insurance company would have a hard time proving that it had sufficient in-

terest to bring an action in Quebec. The Maryland Casualty case is a good example (of clarification?):

Maryland Casualty Co. v. Pacific Coal and Oil (1941) USSC (CB1p160) Facts Pacific was insured by Maryland. The insurance contract said that Maryland would

indemnify Pacific for any amount it had to pay to third parties as a result of accidents. One of Pacific’s drivers hit another driver, Orteca. Orteca sued Pacific, but this case had not been decided. Maryland then brought a petition for a declaratory judgment to have its obligations clarified. The U.S. Declaratory Judgments Act stated that parties can obtain a declaratory judgment if there is an “actual controversy.”

The Court Murphy J: Yes, there is an “actual controversy.” “The difference between an abstract question

and a ‘controversy’ is one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a contro-versy. Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.”

Comments An “interet ne et actuel” is not necessarily contrary to seeking a declaration: 453 Cpc: If the declaration can resolve a suit already in progress (or a dispute between the par-ties), it is an “interet ne et actuel” (question is why not just ask that question in the ac-tual suit?)

Difference between mootness and controversy is one of degree

26

Droit judiciaire – Prof. Frédéric Bachand

2. personal: for a request to be accepted, it must be able to improve one’s own legal condition the plaintiff must have suffered a wrong, or be asking for a remedy in other words, the result the plaintiff is seeking must be capable of benefiting the plaintiff

him/herself one cannot bring an action to remedy a wrong that afflicts someone else

privity of contract in common law, this is also justified in terms of the adversarial system

there are two kinds of exception to this: mechanisms for representations of persons who don’t have the capacity to exercise

their own rights (tutor, incapable major, etc) when one person gets a mandate to bring an action on behalf of others (CPC 59) (not

to be confused with class actions at CPC 999ff) (2271 CCQ) one cannot bring an action to remedy a wrong that afflicts the entire community, and doesn’t

affect one in a specific way. this would seem to conflict with constitutional law and the idea of constitutional chal-

lenges. Most countries have created many exceptions to this rule, especially with regard to claims founded on state action.

Can not act in the “general interest” Interest must be sufficiently individualized Conseil canadien des Églises c. Canada (Ministre de l’Emploi et de l’Immigration) : CCE

did not have a personal interest, wasn’t directly affected (this case confused quality with interest)

There is a discretionary power of tribunals to permit a party to act in the public interest. This would normally be in the public context and that’s where most of the jurisprudence can be found: logic is that there are exceptions when the object is the review of a law.

Should the same discretion be used in the private context? In Re Sierra Club, need to wonder where SC’s interest was. May have come from the discretionary power because there is a public dimension, but if it is considered private, should not have had right to in-voke j/d of court.

Canadian Council of Churches v. Canada (A.G.) (1992) SCC (CB1p87) Facts The Canadian Council of Churches brought an action to have certain amendments to the

Immigration Act (which made it more difficult to obtain refugee status) declared unconstitutional.

The Court Cory J: Not everyone can have public interest standing. It is a question of “the need to balance

the access of public interest groups to the Courts against the need to conserve scarce judicial resources.”

In the 1981 Thorson-McNeil-Borowski trilogy, the SCC said that “…to establish status as a plaintiff in a suit seeking a declaration that legislation is invalid, if there is a seri-ous issue as to its invalidity, a person need only to show that he is affected by it di-rectly or that he has a genuine interest as a citizen in the validity of the legislation and that there is no other reasonable and effective manner in which the issue may be brought before the Court.”

In the post-Charter era, given the increased possibility of legislation being struck down as invalid, the SCC “extended the scope of the trilogy and held that courts have a dis-cretion to award public interest standing to challenge an exercise of administrative au-thority as well as legislation.”

Comments This case contains an interesting comparative analysis of the law of public interest standing in Australia, the UK and the US.

As with Borowski, think about how this would apply in a purely civil matter Three aspects of the claim must be considered when public interest standing is

sought. First, is there a serious issue raised as to the invalidity of legislation in ques-tion? Second, has it been established that the plaintiff is directly affected by the legis-lation or, if not, does the plaintiff have a genuine interest in its validity? Third, is there another reasonable and effective way to bring the issue before the Court?

27

Droit judiciaire – Prof. Frédéric BachandH.P. Glenn, “A propos de la maxime ‘nul ne plaide par procureur’” (1988) (CB1p311) History:

The French legal maxim ‘nul ne plaide par procureur’ must originate from the days when legal representation wasn’t considered necessary.

In medieval legal systems, the ideas of rights and remedies were intimately connected to peo-ple’s personal qualities (think, for example, of oaths, duels, trial by water or fire). Therefore it didn’t make sense to have representation. Once these irrational modes of evidence were abol-ished, representation became possible, and indeed, lawyers appeared on the scene.

However, once the possibility of representation was admitted, courts developed procedural rules which discouraged a broad notion of representation. This is because the legal system lacked a notion of subjective rights. Instead of rectifying violations of rights, courts such as Chancery gave individualized remedies to those who proved themselves worthy.

French law was more open to the notion of subjective rights than English law, because French law never had a writ system: in principle, the right to bring an action was always open to anyone. By the 13th century, France therefore had the preconditions for a modern legal system. The idea of non-representation was mainly founded in tradition.

Theory: ‘Nul ne plaide par procureur’ is now archaic. Now, all it means in practice is that litigants must

use their own names in litigating, and that the opposing party has a right to know who is litigating (cf. CPC 59). However, the old maxim still holds some truth: representation must be limited in the interest of justice. This is why French doctrine has developed distinct ideas of interest and quality, which are equivalent to the idea of non-representation.

Lawsuits can have two purposes: (1) respect for legality and (2) respect for subjective rights. In the former case, it makes sense to allow representation.

In modern times, the maxim can be seen applied in: the defeat of the “class action” in the United States and Quebec: judges never really accepted

class actions because they seems too much like legislating. Important for legality. the limits of the “associational action” in France: unlike class actions, these require the members

of the group to organize; the action must receive the approval of the group. The action is brought on behalf of the group rather than representative individuals. However, associational ac-tions run into the same problem as class actions: the more one eliminates individual differences, the more one is legislating.

conclusion: stopping judges from considering the rights of persons who aren’t present in court is a way of limiting the role of judges to individual justice. This is the proper role of judges.

Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3Facts Appellants are francophone parents living in NS who want French-language educational

facilities.  The trial judge found a s. 23 violation and ordered the Province and the Conseil to use their “best efforts” to provide school facilities and programs by particular dates.  He retained jurisdiction to hear reports on the status of the efforts.  The Province appealed the part of the order in which the trial judge retained his jurisdiction to hear reports.  The majority of the Court of Appeal allowed the appeal and struck down the impugned portion of the order.  On the basis of the common law principle of functus officio, the majority held that the trial judge, having decided the issue between the parties, had no further jurisdiction to remain seized of the case. They also held that, while courts have broad ranging powers under s. 24(1) of the Charter to fashion remedies, the Charter does not extend a court’s jurisdiction to permit it to enforce its remedies.

Held Appeal allowed. Trial judge order restored.Majority McLachlin C.J. for Gonthier, Iacobucci, Bastarache and Arbour

Under s. 24(1) of the Charter, a superior court may craft any remedy that it considers appropriate and just in the circumstances. The court must also be sensitive to its role as judicial arbiter and not fashion remedies which usurp the role of the other branches of governance.  The boundaries of the courts’ proper role will vary according to the right at issue and the context of each case.

The nature and extent of remedies available under s. 24(1) remain limited by the words of the section itself and must be read in harmony with the rest of our Constitution.  Remedies must remain flexible and responsive to the needs of a given case … thus in some cases require the introduction of novel remedies.

The remedial power in s. 24(1) cannot be strictly limited by statutes or rules of the common law.  However, insofar as the statutory provisions or common law rules

28

Droit judiciaire – Prof. Frédéric Bachandexpress principles that are relevant to determining what is “appropriate and just in the circumstances”, they may be helpful to a court choosing a remedy under s. 24(1).

The reporting order was judicial in the sense that it called on the functions and powers known to courts. It could have been clearer, but it was not too vague, nor did it interfere with the right to appeal.

Dissent Major, Binnie, LeBel and Deschamps While superior courts’ powers to craft Charter remedies may not be constrained by

statutory or common law limits, they are nonetheless bound by rules of fundamental justice and by constitutional boundaries A court purporting to retain jurisdiction to oversee the implementation of a remedy, after a final order has been issued, will likely be acting inappropriately on two levels:  (1) by attempting to extend the court’s jurisdiction beyond its proper role, it will breach the separation of powers principle; (2) by acting after exhausting its jurisdiction, it will breach the functus officio doctrine.

As a general rule, courts should avoid interfering in the management of public administration. Once they have rendered judgment, they should resist the temptation to directly oversee or supervise the administration of their orders and operate under a presumption that judgments of courts will be executed with reasonable diligence and good faith. 

It is difficult to see how they could have been more effective than the construction deadline coupled with the possibility of a contempt order. 

Comments One family bringing up something that affects the whole community. Are they acting in the general interest?

Constitutional interests tend to be broader than the individual interest. Charter challenges encourage respect for legality.

Assoc. des Propriétaires des Jardins Taché c. Entreprises Dasken Inc. (1974) Facts Association was not owner of any property. It was a non-profit organization that wanted to

bring a motion forward to protect les Jardins Tache. Majority Pigeon:

Even if the group has an interest under 55 CPC, it does not exempt them from 59 CPC.

Comments Pre-Charter! There is nothing that permits the organization to exercise the rights of its members;

here, it would have been different had the group property or some specific law that al-lowed it to act on behalf of its members. There is no such law here (para 16).

An individual does not need his interest to be distinct from that of the other members of a group to bring suit (otherwise, people could get away with faulty deeds simply by attacking an entire group instead of a particular individual, e.g. illegal taxation)

C.p.c. : art. 55-60, 453; C.c.Q. : art. 159, 298, 1039, 2188, 2225, 2271; R.p.c. Ont. : r. 7-9

ii) A condition for litigation with an international element: The international “jurisdiction” of courts Le principe de base peut être énoncé dans les termes suivants : le droit d’exiger des tribunaux judiciaires d’un ordre juridique donné qu’ils jugent du bien-fondé d’une demande découlant d’un différend qui présente un élément d’extranéité n’existe que s’il existe un lien suffisant entre ce différend et cet ordre juridiqueEn quoi la manière de réglementer la « compétence » internationale des tribunaux judiciaires diffère-t-elle d’une tradition à l’autre ? Les solutions concrètes vous paraissent-elles fondamentalement différentes d’une tradition à l’autre ? Dans quelle mesure la « compétence » internationale des tribunaux judiciaires dépend-elle de la volonté des parties? Ces solutions vous paraissent-elles satisfaisantes ?

There is a concern in protecting the defendant from having to defend himself in a country that he has no link with

The state must determine whether there is a sufficient link between the forum (the territory corresponding to the court) and the action someone would like to bring

ALI/UNIDROIT P.2:

29

Droit judiciaire – Prof. Frédéric Bachand 2.1.1: consent of the parties 2.1.2: “substantial connection between the forum state and the party or the transaction or occurrence in

dispute”: a significant part of the transaction or occurrence residence of defendant location of property in question

Similarities : linking factors are similar (Europe 5(1)(a), Ontario 17.02(f))

Differences :- CML has more judicial discretion in the matter international competence

o Positive sense: There is a power of the Ontario judge to find competence even if the link is not enumerated based on his own discretion and experience (this is linked to the doctrine of forum non conveniens)

o Negative sense: Can refuse to exercise this power if there is another external tribunal better suited to decide the matter (17.03 Rpc)

- Quebec is not typically civilian: 3135 CCQo Codified “forum non conveniens” and recognizes judicial discretion in the negative sense, but not

in the positive senseo The rest of the articles relating to competence resemble the more civilian European rules

a. International “jurisdiction” in the common law tradition Common law doesn’t recognize the notion of international “jurisdiction.” Traditional approach was territorial:

one had to be able to notify the defendant while the defendant was physically present in the territory: this would establish what civilians would call international jurisdiction. Nothing to do with substance of dispute. Used long arm statutes which have been taken back by real and substantial, minimum contacts or FNC doc-trines.

R.p.c. Ont. : r. 16.02(1)(c) et (e), r. 17 – act occurs in territory service ex juris: all common law jurisdictions had to add a rule that a notice could be served outside the

territory ORPC 17 “Service Outside Ontario”: gives plaintiff a right to serve notice of proceedings outside the

territory and invoke international jurisdiction of Ontario court. more judicial discretion in the common law approach:

R17.03: a court has the discretion to grant leave to serve notice outside Ontario common law also uses forum non conveniens: judge has discretion to decide that another forum is more

appropriate

Helicopteros Nacionales de Colombia v. Hall (1984) USSCFacts Helicopteros was a Colombian company running a helicopter transportation business. One

of its helicopters crashed in Peru, and four Americans killed. The victims’ employer was based in Texas. The estate of American victims sued Helicopteros in Texas courts. Helicopteros had bought helicopters and parts in Texas, had sent its pilots there for training, and its CEO had once gone there. But it did not have an office there, nor was it registered to do business there.

Texas had a “long-arm” statute which said that it could take jurisdiction over “any foreign corporation… that engages in business in this State.” Entering into a contract with any Texas resident was held to amount to doing business in the state. The Texas Supreme Court held that this was sufficient for Texas to establish jurisdiction over Helicopteros.

Majority Blackmun J: The “due process” clause of the 14th amendment requires “continuous and system-

atic” business contacts, or rather, “certain minimum contacts with [the forum] such that the maintenance of the suit does not offend traditional notions of fair play and substan-tive justice.” (See International Shoe Co. v. Washington (1945). Helicopteros’s con-nections were not enough.

Rosenberg Bros. v. Curtis Brown: purchases and related trips, standing alone, are not a sufficient basis for a State’s assertion of jurisdiction.

Dissent Brennan: Doesn’t agree with the Rosenberg decision. We should allow States more leeway in

bringing the activities of nonresident corporations within the scope of their respective 30

Droit judiciaire – Prof. Frédéric Bachandjurisdictions. The principle focus should be on fairness and reasonableness to the de-fendant.

Comment We’re not just reading this for the purposes of comparative law. US law has particular rules of private international law and it’s important to know them. if you’re doing business in a US state, you can be sued in that state for anything

you do, not just for matters relating to your business in that state. Until recently, Texas had no forum non conveniens principle: powerful lobby of

plaintiffs’ lawyers; jury trials in civil matters awarding enormous damages. This is important to consider in light of SCC’s decision in Beals v. Saldanha: wide

recognition of foreign judgments.

For Canada, see Muscutt which elaborates on Morguard:

Muscutt v. Courcelles [2002] Ont C.A.Facts M was passenger in car owned by Df S and driven by Df D-G. M injured when struck by

car owned by Df C and owned by Df GA. Accident happened in AB. M suffered serious spinal injury, returned to ON and got further care. At time of accident all Df resided in AB. After accident Df D-G moved to ON. M was in AB working for ON empoyer. M was preparing to move to AB when accident occurred. M sued Dfs claiming damages in respect of damage sustained in ON arising from a tort. Dfs S and D-G moved to set aside service out of jur’n and to stay the action. Argued Civil Procedure rule ultra vires. Superior Court dismissed motion. Dfs appealed

Held Appeal dismissedSharpe J. Qn of assumed jur’n by Ont.

As per Morguard Pl who sustains damage in Ont may sue in Ont if there is R&S connection w/ Ont.

Must still distinguish btwn R&S test from discretionary forum non conveniens doctrine

1st q’n is whether forum should assert jur’n given the relationship bt case, forum, and parties in the suit of the particular Pl against particular Df.

2nd court considers discretionary doctrine of FNC, w. recognizes that there may be more than one forum capable of assuming jur’n. Court can decline jur’n on ground that there’s more appropriate forum

Discretion provides control on assumed jur’n and rationale for lowering threshold for R&S connection test.

Civil Procedure rule not ultra vires of Ont bc it’s procedural in nature and does not by itself confer jur’n

R&S connection test is flexible and supports broad approach to determine if forum is reasonable place to hear suit.

Nature of Df’s connection w/ forum is an imp factor to be weighed alongside others. No factor is determinative.

Relevant factors include:1. Connection btwn forum and Pl’s claim (bc forum has interest in protecting legal

rights of its residents)2. Connection btwn forum and Df (occurs where reasonably foreseeable that Df’s

actions would have result in harm or where Df has done something w/in jur’n that bears upon Pl’s claim)

3. Unfairness to Df in assuming jur’n4. Unfairness to Pl in not assuming jur’n5. Involvement of other parties to suit (incl avoiding multiplicity of proceedings and risk

of inconsistent results)6. Court’s willingness to recognize and enforce extra-prov judgment rendered on same

jur’nal basis7. Nature of case (interprovincial or intl) – bc assumption of jur’n easier to identify in

interprovincial cases8. Comity and standards of jur’n, recognition and enforcement prevailing elsewhere.

Here, factors favour assumption of jur’n against out-of-prov Defendants. As for step 2. FNC discretion, Ont should not decline jur’n as factors taken into account

(location of parties, location of key witnesses and evidence, and applicable law) don’t

31

Droit judiciaire – Prof. Frédéric Bachandcreate clearly better place.

Comment See also Spar for FNC. b. International “jurisdiction” in the civil law tradition

civil law: notion of international jurisdiction (“compétence internationale”): if there is a strong enough link, we say that the court is competent to hear the case. the law lists a number of factors that constitute a link; the existence of one of these factors will give

rise to le droit d’agir en justice. e.g. EU regulations (CB1p38):

Art. 2, para. 1: domicile of defendant Art. 5(1) contracts Art. 5(3) extra-contractual: where damage is felt or there is a risk that it may be felt. Arts. 16 and 19: special rules for consumer contracts, employment contracts: these people

can sue before courts of their own domicile even if defendant didn’t have anything to do with these.

Art. 23: freedom of parties to contract out of these rules. CCQ regime (mixed): Uses terminology of international jurisdiction, keeps this separate from other ques-

tions of jurisdiction. But quite a bit of judicial discretion: CCQ 3136: Quebec courts have the discretion to decide to hear a case, even if it doesn’t meet the

criteria, if it would be impossible to hear anywhere else and as long as there is a sufficient link—in practice, this means never.

CCQ 3135: Quebec courts have the discretion to refuse to hear a case, even if it does meet the crite-ria.

Spar Aerospace v. American Mobile Satellite Corp. (2002) SCC (CB2p103)Facts Spar (Canadian company, HQ in Toronto) built components of a satellite at its plant in

Quebec. (Only connection to Quebec was that component was manufactured at a branch plant located in Quebec.) Through negligence of AMSC and other US companies involved in testing it, satellite crashed. Spar sued in Quebec courts; at the last minute, it threw in a claim for $50,000 for loss of future profits caused by loss of reputation in Quebec.

Ratio Lebel J: The “real and substantial connection” requirement set out in Morguard is subsumed

under Quebec’s rules for jurisdiction and forum non conveniens in CCQ 3148 and 3135 respectively.

In any case Morguard “real and substantial connection” requirement was articulated in an interprovincial case. It doesn’t directly apply in an international case like this one.

Quebec was an appropriate forum for the action: forum non conveniens doesn’t apply. Lexus Maritime inc. v. Oppenheim Forfait GmbH lists ten factors to consider at para.

71.Comment admittedly, this was a case that didn’t have an obvious forum conveniens—so the find-

ing that Quebec was a forum conveniens was not outrageous) One of the defendants’ arguments was that since “injury” to a legal person is a fiction

anyway, better to just allow certainty and sue in domicile of headquarters. Bachand doesn’t think that this case has settled the issue. Enumeration of factors that should be taken into acct (para. 71 non-exhaustive)Constitutional elements of international competence: Constitution requires that there be a real and substantial link Defendant submits that “where damage was suffered” is not substantial enough to sat-

isfy constitutional requirements Court states that constitutional limit only applies to inter-provincial questions and not to

inter-provincial ones In obiter: even if this were inter-provincial, the list of “facteurs de ratt” in the CCQ are

all real and substantial. Also in obiter, the “real and substantial” criteria is a CML concept that should not be in-

serted into the CVL Amchem: sets out ten factors for FNC. If two tribunals are equally qualified, the domestic tribunal will hear the case

- More specifically, in Amchem, the SCC set out FNC criteria, “none of which are individually determinant”:

32

Droit judiciaire – Prof. Frédéric Bachand

     1) The parties' residence, that of witnesses and experts;     2) the location of the material evidence;     3) the place where the contract was negotiated and executed;     4) the existence of proceedings pending between the parties in another jurisdiction;     5) the location of Defendant's assets;     6) the applicable law;     7) advantages conferred upon Plaintiff by its choice of forum, if any;     8) the interest of justice;     9) the interest of the parties; 10) the need to have the judgment recognized in another jurisdiction.     C.c.Q. : art. 3134 et suiv.; Règlement (CE) n° 44/2001 du Conseil du 22 décembre 2000 concernant la compétence judiciaire, la reconnaissance et l'exécution des décisions en matière civile et commerciale (il n’est pas nécessaire de faire une lecture détaillée du règlement européen; un bref survol suffira.

B. Limits on the Right to Bring an Action

i) The Renunciation of the Right to Bring an Action The right to bring an action is not absolute; one can even renounce it in advance, in common law or civil law.

This was not always the case; at one point (until 25 years ago in Quebec), judges refused to give effect to choice of forum clauses or arbitration clauses—these were considered contrary to public order and good morals. they believe that access to Quebec forum should be inviolable. although Quebec judges know that the rules have changed, some crotchety old judges are still suspi-

cious of these clauses and like to find ways of striking them down. Now these are widely recognized. This is related to corporate globalization: need for certainty; avoiding lit-

igation and forum-shoppinga. In order to be heard by a foreign court we now recognize the obligatoriness of renunciations of the right to bring an action.

M/S Bremen v. Zapata Off-Shore Co. (1972) USSC (CB1p136)Facts Zapata (US company) hired Bremen (German ship) to tow its oil rig from Louisiana to the

Adriatic sea. Bremen owners drafted contract which included clause saying, “any dispute arising must be treated before the London Court of Justice.” Three big problems with this clause:

1. doesn’t say any disputes arising out of what.2. There is no such thing as the “London Court of Justice.”3. Even if the clause is interpreted to make sense, not clear that this is exclusive.

Storm arose in Gulf of Mexico, oil rig damaged, Zapata instructed Bremen to put into Florida port with damaged rig. Then Zapata sued Bremen in Florida court. Bremen owners contested this, but Florida Court of Appeals refused to decline jurisdiction in favour of English courts.

Ratio Burger CJ: In international markets, it doesn’t make sense to always insist on your own courts;

can’t be parochial. Choice of forum clauses facilitate international commercial transac-tions by providing certainty. A freely negotiated choice of forum clause should be given effect, unless there is evidence of fraud, injustice, etc.

New trial ordered: since there is room for exceptions, a first-instance judge should de-cide.

Comment This case shows that the obligatoriness of these clauses is not perfect: judges have a certain amount of discretion: can disregard choice of forum clause if it is “seriously in-convenient for the prosecution of the action” (forum non conveniens)

There is justification for discretionary power for inconveniences that could not be rea-sonably foreseen

In this case, the decision was sent back to trial to decide if there would be “serious in-convenience”

33

Droit judiciaire – Prof. Frédéric BachandCarnival Cruise Lines, Inc. c. ShuteFacts An elderly couple seek to have a cruise through Carnival Cruises. The contract says that

any litigation will be held in the State of Florida. One of the persons is injured off the US coast.

Majority You signed the contract, you sue in the jurisdiction agreed to in the K. USSC puts a high value on the bargain struck in the K, lest there is oppressiveness (which is very difficult to demonstrate). Freedom of K is central to the edifice of law (even in con-sumer Ks).

Comments No real protection for consumers here. Can we assume that all consumers have re-sources to pursue companies like this? (3149 CCQ) (1437?)

Large commercial parties have an interest in having access to neutral fora. If a dispute has nothing to do with a forum, would that forum have any interest in hearing the case? Or would

it do better to impose limits on which cases it will hear? The CCQ gives Quebec jurisdiction over any agreements that parties have chosen to litigate here (CCQ

3148(4)) But this is qualified by forum non conveniens doctrine (CCQ 3135)

In the civil law tradition, if a judge finds that the forum selection clause is valid, s/he will be required to block the action and send it to the other forum. no real need to analyze whether forum is appropriate. (CCQ 3148 in fine)

common law still recognizes a judicial discretion to disregard forum selection clauses if they would be unjust or Canadian common law position on this was made clear in Pompey Industrie:

Z.I.Pompey Industrie v. ECU-Line N.V. (2003) SCC (CB1p232)Facts Pompey (French company) sold some photo processing equipment which was to be

delivered to an American company in Seattle. It hired ECU-Line (Belgian company) to do the shipping. Contract contained clause saying all litigation had to be before the courts in Antwerp. Cargo was shipped to Montreal, then loaded onto trains bound for Seattle. Pompey and other companies alleged that the photo processing equipment was damaged in rail shipping. They brought an action before the Federal Court. ECU-Line contested this on the basis of the forum selection clause.

The Federal Court of Appeal applied the tripartite test for interlocutory injunctions, saying that this should also be the test for staying proceedings on the basis of a forum selection clause. It took all sorts of factors into account (availability of witnesses, language of proceedings, enforceability of judgment, etc.) and said that the forum selection clause was not necessarily primary; it was one factor among others.

The Court Bastarache J: Courts should respect choice of forum clauses and a stay of proceedings should be

granted unless there is “a strong cause” for retaining jurisdiction. The FedCA erred in applying the tripartite test to this situation.

Once it is determined that the bill of lading binds the parties, the “strong cause” test constitutes an inquiry into questions such as the convenience of the parties, fairness between the parties and the interests of justice, not of the substantive legal issues un-derlying the dispute.

Comments Canadian version of Bremen: “sufficiently important” instead of “seriously inconvenient”

Quebec’s position – opposite of the CML- Clavel c. DKD GNR- Clavel was suing DKD, and DKD was suing GNR in guarantee- Arbitration clause between GNR and DKD- It would not be convenient to invoke arbitration clause b/c it would create a multitude of trials- Discretion to refuse to give effect to an arbitration clause (or forum selection) in guarantee case

o Same principles applied

Supreme Court reversed this decision, consecrated the clause and refused the discretionary power in Grecon

GreCon Dimter Inc. c. J.R. Normand Inc. (2005)Facts A German manufacturer’s failure to deliver certain equipment to a Quebec supplier caused

34

Droit judiciaire – Prof. Frédéric Bachandthe partial nonperformance. The customer instituted an action in damages against the supplier in the Superior Court of Quebec. The supplier called the German manufacturer in warranty, and the manufacturer moved to dismiss on the basis of a choice of forum clause stating that only a German court had jurisdiction. The Superior Court applied art. 3139 C.C.Q. to dismiss the declinatory exception on the basis that the unity of the actions must prevail over the contractual choice of court provided for in art. 3148, para. 2 C.C.Q. The Court of Appeal affirmed the dismissal of the declinatory exception and resolved the conflict between art. 3139 and art. 3148, para. 2 by applying art. 3135 C.C.Q. relating to the forum non conveniens.

The Court Held: The appeal should be allowed. The fundamental substantive rule of the autonomy of the parties prevails over the sup-

pletive procedural rule of the single forum. Article 3148, para. 2 C.C.Q. must take precedence over art. 3139 C.C.Q. The Quebec authority must decline jurisdiction.

It is important to consider the principles of Private International law: autonomy of the parties and the legal certainty of private transactions.

The purpose of art. 3139, which extends to an incidental demand the Quebec author-ity’s jurisdiction to hear a principal demand, is primarily to ensure the efficient use of judicial resources, and the provision is the product of domestic procedural considera-tions. 3139 is procedural in nature and must be interpreted narrowly.

3139: there must be some connexity between the principal action and the incidental action. The connexity criterion derives from a line of cases decided under art. 71 C.C.P. When the courts have applied art. 3139 C.C.Q., their analysis has generally fo-cussed on determining whether there was connexity in the actions in warranty: (see Guns N’Roses Missouri Storm inc. v. Donald K. Donald) Like art. 222 C.C.P., 3139 confers discretion on the judge, who may decide to sever the principal action from the action in warranty.

Article 3135 has a suppletive function and is applicable only where the jurisdiction of the Quebec court has first been established.

Comments- Grecon: no longer any discretion in Canada- Pompei: recognizes a discretion in forum selection clauses, but not for arbitration clauses- NY Convention: obligation to give full effect to arbitration clauses- Hague Convention on Choice of Forum Clauses: see generally

b. In order to be heard by an arbitral tribunal Arbitration clauses are respected almost everywhere. Parties who use these clauses are understood to want

to avoid all litigation before state courts. Parties ask the arbitrator to settle the dispute in a final and binding manner—it’s not just a preliminary step before going to court.

Why arbitration? flexibility and customization: choice of adjudicator, choice of procedural and evidentiary rules confidentiality speed: The speed of the arbitration often depends on the arbitrator and whether he or she has the

guts to make a decision. Although some say that costs are a motivating factor, Bachand is skeptical: arbitration, too, can cost a for-

tune There is no recourse to judicial review or appeal of the arbitral decision itself, although parties can go to court

to challenge the terms of the arbitration agreement. Obligatory nature of arbitration agreements:

in common law: judges may exercise their discretion to ignore arbitration clauses and hear the dispute themselves. imagine situation: A sues B in court; B also has an indemnity agreement with C; B sues C for indem-

nity and C invokes arbitration clause; judge may want to require the whole thing to happen in court. However, more and more common law countries are making arbitration agreements mandatory, even

in domestic contracts. (They were already mandatory for international contracts under the NY Con-vention.) e.g. UK: new arbitration law in 1996 most Canadian common law provinces have done this too

in Quebec, mixed approach. Judge appears to have some discretion.

35

Droit judiciaire – Prof. Frédéric Bachand case of Guns n’ Roses concert cancelled. someone sued Donald (promoter?) as class action on be-

half of fans; Donald had arbitration agreement with Guns N’ Roses. QueCA decided to disregard arbi-tration clause; was more important to have a public hearing.

New York Convention: If the courts of a signatory state are seised of a dispute where the parties have signed an international arbitration agreement, the court is obliged to send the parties back to arbitration (unless the agreement is void for some reason) (NYConv 2(3)) This is the traditional civil law rule. It eliminates common law judges’ discretion with regard to interna-

tional agreements. This treaty was drawn up in 1958; almost all countries are parties to it now.

Arbitrability: In both civil law and common law jurisdictions, there are limits on the kinds of disputes parties can submit

to arbitration, although these limits can be hard to demarcate. The “Caillou” case was the SCC’s first major decision on arbitrability. It’s a good example of a contempo-

rary approach to arbitrability. It’s hard to imagine a decision more favourable to arbitration:

Éditions Chouette Inc. c. Desputeaux, (2001) QueCA, (2003) SCC (the “Caillou” case)Facts Authors and publisher in a dispute over certain copyright rights with regard to the fictional

character “Caillou.” They had an arbitration agreement; the arbitrator awarded the rights to the publisher. The authors sued, alleging that the question was not arbitrable.

QueCA Art. 37 of the federal Copyright Act says that federal courts and provincial courts have concurrent jurisdiction over copyright disputes. This is an exhaustive list. One can only have recourse to arbitration if the law explicitly says so.

CCQ 2639 says that “Disputes over the status and capacity of persons, family matters, or other matters of public order may not be submitted to arbitration.” Copyright is inti-mately connected to personality rights and is therefore inarbitrable.

Not only is the dispute inarbitrable, but the arbitration decision must be annulled (on both procedural and substantive grounds).

SCC Lebel J: The QueCA is all wrong. All litigation is arbitrable unless it is expressly prohibited by law. (In the mid-1980s, all

across Canada, arbitration laws were reformed in order to improve the prestige of arbi-tration, to counter mistrust. The arbitrability of litigation should now be the rule, not the exception.)

There is no good reason not to allow arbitration for copyright disputes. Laws like CCQ 2639 should be interpreted strictly: The mere fact that something is re-

lated to public order is not enough to make it inarbitrable (see CCQ 2693al2) Parties have the freedom to make any kind of procedural rules that they want; They

can even ask that a case be decided on the basis of the text of the contract alone. An arbitral decision can only be contrary to public order if the result is contrary to pub-

lic order—i.e., if a rule of public order is wrongly applied in a situation where it should be applied. But it wouldn’t be contrary to public order if, in an arbitral decision, a rule of public order were misapplied in a situation where it needn’t apply (e.g., consumer pro-tection laws applied to a contract between corporations).

Under art. 946.5 C.C.P., the court must examine the award as a whole to determine the nature of the result. It must determine whether the decision itself, in its disposition of the case, violates statutory provisions or principles that are matters of public order. An error in interpreting a mandatory statutory provision would not provide a basis for annulling the award as a violation of public order, unless the outcome of the arbitration was in conflict with the relevant fundamental principles of public order.

Comments Read this case not only as substantive law, but also for the way the SCC considered a question of arbitrability.

The QueCA decision shows the kind of mistrust that some judges have toward arbitra-tion.

If the QueCA’s decision had stood, it would also have banned arbitration in maritime law.

Possible limits: Specific rules for arbitration and forum selection clauses: 2639, 3149 CCQ General rules on the right of contracts: 1435 CCQ, 1437 CCQ and equivalents in CML An arbitration decision will only be against public order if the result is against public or-

36

Droit judiciaire – Prof. Frédéric Bachandder, and so not any mistake made by the tribunal will automatically void the decision

when asked to enforce an arbitral decision, a judge could still overturn or modify it if it violates rules of of public order. The judge could consider substantive as well as procedural rules of public order.

Bachand thinks this contradicts the principle that the substance of arbitral decisions are supposed to be insulated from judicial review.

Frédéric Bachand, “Éditions Chouette Inc. c. Desputeaux” (2003) (CB1p240) This decision is extremely favourable to arbitration. It’s a good thing. In particular you can arbitrate

IP questions. CNUDCI: This decisions conforms to this generally . It is worth noting that the SCC did not try to provide an exhaustive definition of “public order” as used

in CCQ 2639. The criteria for arbitrability in Quebec law are therefore still unclear. However, the decision happily puts an end to the conceptual uncertainty surrounding the relationship

between courts and arbitral tribunals. It is now clear that courts don’t supervise arbitration the same way they can supervise administrative tribunals. Instead, all of their power vis-à-vis arbitration de-pends on legislation.

Compare to the Mitsubishi case in the US

Bachand “L’efficacite en droit Quebecois d’une convention d’arbitrage ou d’election de for invoquee a l’encontre d’un appel en garantie”The jurisprudence of the Québec Court of Appeal is clear: generally speaking, the jurisdiction a court has over the principal action extends to an incidental action in warranty even where the latter relates to a dispute which falls within the ambit of an arbitration agreement or an agreement conferring an exclusive jurisdiction to a foreign court. Bachand argues that this solution is not convincing because it does not give sufficient weight to the principle of party autonomy, it is inconsistent with the civil law tradition, it fails to give due regard to Canada’s strong commitment to promoting international trade, it conflicts with the rule of interpretation adopted by the Supreme Court in the Desputeaux, case and it can lead to the violation of Canada’s international obligations.

2638 C.c.Q.: Definition of arbitration 940.1 Cpc: Judge must give up a case that has a clear arbitration clause. Validity of the “clause compromissoire” recognized in Zodiak International Productions Inc. c.

The Polish People’s Republic, [1983] 1 R.C.S. 529. 219 Cpc: appel en guarantie. Concordia Project Management Ltd. c. Décarel Inc., [1996] R.D.J. 484 (C.A.) ; and supported in

Société Asbestos ltée c. Lacroix, REJB 2004-70292 (C.A.): Someone not party to an arbitration clause can still, in some circumstances, be draw into one.

Dans l’affaire de la faillite d’Experts en traitement de l’information (E.T.I.) Montréal Inc. et Kustec, [2004] J.Q. no. 2487 (C.S.) : Don’t recognize choice of forum of arbitration clauses in contracts dealing with bankruptcy.

Big question: do we respect the free will of the parties or do we ensure that the cases involving the defendant and the guarantor are tried before the same court?

Arbitration: Guns N’ Roses: Key case: [t]he incidental action in warranty must be taken before the court in which the principal action is pending. Some author’s don’t think this case is well founded in cases involving foreign elements. See J. Talpis “If I am From Grand-Mere, Why am I being sued in Texas?”

Choice of Forum: GreCon: 3148 and 3139 are completed by 3135 (FNC). Spar: 3135 is only used exceptionally.

Art. 71 Cpc: ratione materiae. CNUDCDI not adopted as a whole like in other jurisdictions, but in the CPC in a civilian style,

while staying true to its substance. Having 3139 CCQ override 3148(2) CCQ causes problems with Canada’s international obligations under the NY convention (in light of articles 31 and 32 of the Vienna Convention on the Law of Treaties) as well as respecting freedom of the parties to contract. The latter include considerations of the purpose and object of the treaty (31(1) Vienna)—namely, enhancing the effectiveness if arbitration; taken into account of jurisprudence on the matter in other jurisdictions (31(3)(b) Vienna)

Mitsubishi Motors v. Soler Chrysler-Plymouth (USSC)(1985)37

Droit judiciaire – Prof. Frédéric BachandArbitration restricted to “certain matters”Issue:Could an international arbitration tribunal rule on regulatory or statutory claims?Held:Nothing in the FAA implies a presumption against the arbitration of statutory claims. A party can exclude statutory claims from the scope of an agreement to arbitrate. Parties are not released from their agreement to arbitrate because of the potential complexity of an arbitration

or a party's illusory perceptions of an arbitration panel's bias.There is no reason to assume at the outset of a dispute that an international arbitration will not provide an adequate mechanism for resolution. The tribunal is bound to honor the intentions of the parties. Where the parties have agreed that the arbitral body is to decide a set of claims, including those arising from

the application of American antitrust law, the tribunal is bound to decide that dispute in accord with the national law giving rise to the claim.

The concerns of international comity, respect for the capacities of foreign and transnational tribunals, and sensitivity to the need of the international commercial system for predictability in the resolution of disputes, all require that the parties' agreement be enforced, even though a contrary result might be forthcoming in a domestic context.

Stevens (Dissent):Basically saying that this only applied to a small part of the contract, but you’re allowing them to arbitrate everything to get it off the docket.

Mitsubishi: Could an international arbitration tribunal rule on regulatory or statutory claims? It was held that nothing in the FAA implies a presumption against the arbitration of statutory claims. A party

can exclude statutory claims from the scope of an agreement to arbitrate. There is no reason to assume at the outset of a dispute that an international arbitration will not provide an ad-

equate mechanism for resolution. The tribunal is bound to honor the intentions of the parties.

applicability: The Dalimpex decision seems to say that one’s right to bring an action is not only limited by a clear renun-

ciation, but also by the reasonable possibility of a valid renunciation. it is then left up to the private arbitrator to decide whether the arbitration clause is valid.

Dalimpex Ltd. v. Janicki (2003) OntCA (CB1p92)Facts Agros (a large Polish food company) had a contract with Dalimpex (a Canadian importer of

Polish food). The contract said that all disputes had to be decided by a Polish arbitral tribunal. Janicki was a long-term employee of Agros who left to become a senior executive of Dalimpex. Dalimpex alleged that Janicki had conspired with Agros to circumvent Dalimpex and undermine its business.

Dalimpex sued both Janicki and Agros in an Ontario court. Agros sued Dalimpex (for its unpaid bills) in the Polish arbitral tribunal, and brought a motion in Ontario for a stay of proceedings (because of the arbitration clause). Dalimpex argued that the arbitration clause did not apply because this was a tort claim; it was not a dispute arising from the contract. (Meanwhile, the Polish arbitral tribunal found in favour of Agros and awarded damages. Agros brought an action in Ontario for enforcement of this award.)

The Court Charron JA: If there is any doubt about the applicability of the arbitration clause, this should be de-

cided the arbitral tribunal itself, unless it is “clear” that the dispute is outside the terms of the agreement, of involves different parties, or the agreement is invalid or inopera-tive or incapable of being performed.

The dispute should therefore have been governed by the arbitration clause; Dalimpex’s lawsuit is dismissed and the arbitration award is enforced against it.

Comments This decision seems to say that one can lose one’s right to bring an action on the ba-sis of a mere suspicion that an arbitration clause may apply (one doesn’t have to prove applicability!).

The court sends the case back to arbitration, but doesn’t state a rule, doesn’t seem to make any decision about the applicability of the arbitration clause.

Bachand thinks that the Ontario judge should have the last word because a private judge should not force a party to renounce his rights (fundamental character of the

38

Droit judiciaire – Prof. Frédéric Bachandright to invoke the jurisdiction of the court). By giving the right to determine its own power to the tribunal, we limit question that could be asked to a judge and we acceler-ate the process by which we can find ourselves in arbitration

This is similar to the rule in France, Switzerland and other jurisdictions where the laws are very favourable to arbitration.

This means that if you’re representing the defendant, you don’t need to establish the validity of the clause, you just need to show that it is possibly valid in order for the judge to give up jurisdiction

The Quebec approach seems to oblige the judge to send a case to arbitration if either party so requests, “un-less the case has been inscribed on the roll or [the court] finds the agreement null” (CPC 940.1)

see sample arbitration clauses (handout)

We’re pro-arbitration except for in : 2639 CCQ; or capacity of persons, family law or questions of public order.In Ontario there was denial of religious arbitration and in QC family law is considered sensitive and should be re-served for judges. Consumer Protection Law in Ont: r. 7(2): arbitration clauses are invalid. We don’t know about bankruptcy. IP: 37 CCP: Concurrent jurisdiction and presumption of inarbitrability.

c. In order to have recourse to mediation/concilation Mediation/conciliation, unlike arbitration, doesn’t necessarily lead to the resolution of the dispute.

Therefore, if they’re going to be enforced, mediation/conciliation clauses can’t lead to a permanent renun-ciation of the right to bring an action. However, they could lead to a temporary renunciation of this right.

If you’re going to allow choice of forum clauses and arbitration clauses, there doesn’t seem to be any reason not to enforce these. It’s consistent with freedom of contract, the intention of the parties, etc. However, the obligatory nature of these clauses is uncertain, even in France.

Société polyclinique des fleurs c. Peyrin (2000) Cass.Civ.2e (CB1p65)Facts Peyrin and some other doctors had a contract with the Polyclinique allowing them to run a

radiology clinic. The contract contained a clause requiring the parties to submit any disputes to two conciliators before instituting any adversarial proceedings. The polyclinique skipped this and sued the doctors for breach of contract. The doctors did not invoke the conciliation clause immediately, but later tried to use it to have the action declared “irrecevable.”

The Court Buffet, président: The will of the parties, as expressed in the contract, is that any disputes should be

submitted to conciliators. This means that the right to bring an action was temporarily renounced.

CNUDCI model law on international commercial conciliation: Art.13 aims to enshrine the obligatory nature of conciliation clauses, but it does so very haltingly. It is very

formalist: If parties have “expressly” renounced the right to resort to arbitration or litigation during a certain period or until a certain event, courts and arbitral tribunals must give effect to this renunciation, except if one of the parties believes arbitration or litigation is necessary in order to defend its rights. (CB1p36) It also mentions that instituting arbitration or litigation doesn’t necessarily put an end to the concilia-

tion process. (CB1p36) In Canada, there is recent case law similar to the Peyrin case, from trial courts: favourable to conciliation.

Hasn’t gone to appeal. Similar in USA In Italy, supreme court said these clauses are not enforced. In England, growing trend to recognize effectiveness of such clauses.

ii) Jurisdictional immunities state immunities: limit a right of action against foreign states and their representatives (includes diplomatic im-

munities) These are procedural: in theory, the substantive right still exists, but the right to bring an action is cur-

tailed. these exist in just about every legal system in theory, these rules flow from the sovereignty and equality of states. Over the course of the 20th century, important trends:

move toward codification (need for more predictability and certainty).

39

Droit judiciaire – Prof. Frédéric Bachand restrictive notion of state immunity replaced absolutist notion:

no immunity if the state is acting in a commercial capacity. This is connected to the growing eco-nomic role of the state in the 20th century. State immunity makes sense when we’re talking about political acts of state; not relevant to commercial activities.

defendant state can waive the immunity if it chooses Limits on acting against state leaders or their representatives (rare in practice) Limit against acting against another state qua state

o Individual has no right to act against a foreign state – fundamental principleo Tied to the concept of state sovereignty

Would be forcing a state to submit itself to the power of another state They’re supposed to be juridical equals

o Mods to the principle: Codification of rules on immunity of foreign states Recognize a growing number of exceptions

Commercial activities of state… etc.

United States v. Public Service Alliance of Canada (1992) SCC (not in CB)Facts Sixty Canadian firefighters and maintenance workers on the US navy base in

Newfoundland tried to form a union.Majority La Forest J:

An employment contract is a commercial activity, not a political one. However, the ac-tion was still blocked by a sovereign immunity. It is necessary to look not only at the nature of the activity (contracts for employment) but also at its purpose (maintaining a naval base) before determining whethere it is jure gestionis.

Dissent Cory J: You should just look at the contract itself.

Comments Read between the lines: judges are nervous about interfering with international rela-tions and state sovereignty.

Schreiber v. Canada (A.G.) (1992) SCC (CBp198)Facts Schreiber was a Canadian citizen in Canada; Germany wanted to charge him with tax

evasion, issued a warrant for his arrest and asked Canada to extradite him to Germany. The RCMP arrested Schreiber and kept him in jail for eight days, then released him on bail. The charges against him were later dropped.

Schreiber sued both Canada and Germany in a Canadian court. Schreiber contended that Germany was not protected under the Canadian State Immunity Act, because (1) it had requested his extradition, and thus initiated the proceedings itself (and waived immunity) and (2) this was an action for personal injuries (the mental distress caused by imprisonment), and states cannot be immune to actions for personal injuries.

The Court Lebel J: Germany cannot not be sued because of state immunity. An extradition request does not constitute a “proceeding before a court”; it is an execu-

tive process. It would be contrary to the concepts of comity and mutual respect between nations to

hold that a country that calls upon Canada to assist in extradition only does so at the price of losing its sovereign immunity and of submitting to the domestic jurisdiction of Canadian courts in matters connected to the extradition request, and not only in re-spect of the extradition proceeding itself.

The mental distress caused by lawful imprisonment does not qualify as “personal in-jury” for the purposes of waiving state immunity. (especially since the French version of Canada’s State Immunity Act talks about “dommage corporel”).

Comments Unclear whether court is predisposed to maintaining state immunity. Limits to the immunity of a state : foreign state can renounce its immunity Germany did not renounce its immunity by asking for extradition, because it is a re-

quest made to the executive, not to the judiciary. Furthermore, it would be an attack on the fundamental principle of state sovereignty if by asking something of the execu-tive, a country renounced its immunity

Did the action flow from physical injury? No. Saying it did would be tantamount to saying that every person detained in Canada had right to redress. Limit to immunity: physical injury in the country

40

Droit judiciaire – Prof. Frédéric Bachand

Parent c. ____ (on WebCT): Quebec Superior Court decided that Taiwan was a state for the purposes of state immunity. A few weeks before the decision, a Singaporean court had ruled that Taiwan was not a state.

There can also be jurisdictional immunities that have nothing to do with state sovereignty. Some of these are substantive:

Clinton v. Jones (1997) USSCFacts Jones sued Clinton for non-official acts (sexual harrassment) that were alleged to have

occurred before he became president. US law holds that president cannot be held responsible for acts committed in the course of duties: a rule of immunity. (This is really not just an immunity (a procedural rule), it’s substantive.) Clinton tried to have the proceedings stayed until he would no longer be president. Clinton’s arguments: (1) principle of separation of powers, (2) need for president to not put time and effort into litigation.

The Court The rule of presidential immunity is substantive, not procedural. It’s meant to immunize the president from being held personally responsible for state actions, not to delay any litigation until his term is up. Jones should have her day in court like any other citizen.

Comments ironic result: Clinton’s refusal to give information in this case led to the accusations of obstruction of justice which bogged down his presidency

This is of historical and comparative interest; irrelevant for Canadian procedural law!

iii) Restrictions on the rights of a querulous litigant “abuse of process” This has been more and more important in recent years, as more and more people are su-

ing without the help of a lawyer. There is a need to restrain people from briging abusive lawsuits In Ontario, if someone repeatedly brings “vexatious” actions, a judge can strip them of their right to bring an

action (OCJA 140) such a person would then have to get permission of the Superior Court of Justice before bringing any new

action. (OCJA 140) In Quebec, if one party asks, a court can dismiss an action for being “frivolous or clearly unfounded” (CPC

75.1) If the court determines that the action was moreover “excessive or dilatory,” it can order the unsuccessful

party to pay damages to the other party (CPC 75.2) The court can also declare an appeal to be “dilatory or abusive,” either ex officio or on motion of a party; it

can order the abusive appellant to pay damages. (CPC 524)Yves-Marie Morissette,“Pathologie et thérapeutique du plaideur trop belliqueux”(2002) Causes of vexatious litigation:

the plaintiff: paranoia, pathological sense of indignation, certainty of being right the lawyer: desire to win at any cost, instrumental view of legal institutions the institutional and systemic environment:

The more people have “access to justice,” the more there will be vexatious litigation. The main way of reducing vexatious litigation is to impose preliminary controls before some-

one can bring an action. Therapy for vexatious litigation:

theoretical considerations: In the last 30 years there has been a movement toward a “teleo-logico-inductive” model of judgment and away from a “logico-dedctive” model. In other words, it is more accepted that law is indeterminate and that judicial decisions help constitute law, they are not mere applications of preexisting law. This means that it is probably not worth setting out criteria of absurdity in advance; instead, it may be appropriate to allow judges to have mini-trials on the alleged absurdity of an action (this is exactly what CPC 75.1 and 75.2 do).

practical considerations: In recent years, Quebec courts have used their general discretionary powers under CPC 46 to label certain litigants as “vexatious” and make them get approval be-fore bringing any new actions.

Productions Pixcom Inc. v. Fabrikant (2005)Facts A doctor filed an order against Fabrikant to have him declared a vexatious litigant. The

defendants each responded by filing a motion to dismiss summarily the appeal pursuant to art. 501 C.C.P. and to declare Mr. Fabrikant a vexatious litigant.

The Court Dalphond: The judge’s response was appropriate. The burden is on the vexatious litigant to show

41

Droit judiciaire – Prof. Frédéric Bachandthat his claim is valid.

Comments CCP 2, 20 and 46, 501.

C. Expiry of the right to bring an action There are two issues here, and both of them straddle the boundary between procedural and substantive law.

i) Prescription Prescription extinguish the right to bring an action (procedural), or does it alter the substantive rights at issue?

Although prescription seems to resemble state immunities (which are considered procedural), we have to consider prescription to be substantive; otherwise there would be too much forum-shopping.

Civil law tradition pretty unanimously considers prescription to be a matter of substantive law. In common law, limitation periods were traditionally considered procedural.

But in the 1994 case of Tolofson v. Jensen, the SCC completely eliminated the procedural approach and replaced it with substantive.

Quebec law seems kind of mixed up on these matters: procedural: extinctive prescription is defined as “a means of extinguishing a right which has not been

used or of pleading the non-admissibility of an action.” (CCQ 2921) some of the articles in this section have the structure “actions to enforce X rights are prescribed by Y

years” (e.g. CCQ 2923, 2925, 2928, 2929) However, others have the structure “X rights are prescribed by Y years” (CCQ 2924)

substantive: private international law: prescription is governed by the law applicable to the substance of the dispute (CCQ 3131)

This is really important stuff, and we need to learn it somewhere in our studies; but Bachand doesn’t think it belongs in a course on procedure.

N.C.P.C. : art. 122

ii) Le jugement ayant l’autorité de la chose jugée éteint-il le droit d’agir en justice?

C.c.Q. : art. 2848: res judicata. Is this procedural or substantive?

2. THE JURISDICTION OF COURTS Once you have established the right to bring an action within a legal system, you must figure out which court

or tribunal is the appropriate place to bring your action. In most countries, the state’s jurisdiction is divided among different organs (courts, administrative tribunals,

etc.). This notion of jurisdiction (compétence) is not just about the capacity of a court to hear a case, it’s also

intimately related to the idea of a separation of powers, a division of labour, an allocation of responsibility. Within a given legal system, to say that a court lacks jurisdiction necessarily implies that another court or

tribunal does have jurisdiction. It just means that you’ve gone to the wrong place. This is different from the concept of “jurisdiction” in private international law.

To say that a court lacks jurisdiction under private international law is simply a unilateral repudiation of responsibility; it means the plaintiff does not have a right to bring an action in this legal system (ordre juridique); it does not necessarily imply that another court in another legal system has jurisdiction.

This is a bit tricky in a federal system: in federal matters (s.91), all of Canada is one legal order; here we can discuss “jurisdiction” strictly

speaking. in provincial matters (s.92), each province is its own legal order; “jurisdiction” is used in the private

international law sense. Morguard, however, has managed to palliate most of the problems associated with inter-provincial jurisdiction.

A. The division of jurisdiction according to the object of the litigation In just about every legal system, there are several courts operating in civil matters; they have different

responsibilities according to subject matter. Subject-matter jurisdiction is considered a matter of public order; parties cannot contract out of it.

42

Droit judiciaire – Prof. Frédéric Bachand this is because the division of labour between courts is perceived to be intimately linked to legislative

policy decisions; the state has an interest in deciding who will do what.

CPC 163. A defendant, summoned before a court other than that before which the suit should have been instituted, may ask that the suit be referred to the competent court within the legislative authority of Québec, or that the suit be dismissed if there is no such court.

CPC 164. Lack of jurisdiction by reason of the subject matter may be raised at any stage of the case, and it may even be declared by the court of its own motion. The court adjudicates as to costs according to the circumstances.

In Quebec, if a defendant has been summoned before the wrong court, he or she can ask that the case be referred to the proper court (CPC 163). This can be done at any stage of the case (CPC 164) The courts can even take judicial notice of the fact that the action was brought before the wrong court,

and order the trial moved (CPC 164) It is interesting to compare this to the rules on territorial jurisdiction: there are limits on the parties’

right to raise this.

Ont. RCP 21.01(3) A defendant may move before a judge to have an action stayed or dismissed on the ground that,(a)    the court has no jurisdiction over the subject matter of the action;(c)    another proceeding is pending in Ontario or another jurisdiction between the same parties in respect of the same subject matter;

i) The subject-matter jurisdiction of courtsa. Courts of first instance (primarily)

CPC 31. The Superior Court is the court of original general jurisdiction; it hears in first instance every suit not assigned exclusively to another court by a specific provision of law.

CPC 33. Excepting the Court of Appeal, the courts within the jurisdiction of the Parliament of Québec, and bodies politic, legal persons established in the public interest or for a private interest within Québec are subject to the superintending and reforming power of the Superior Court in such manner and form as by law provided, save in matters declared by law to be of the exclusive competency of such courts or of any one of the latter, and save in cases where the jurisdiction resulting from this article is excluded by some provision of a general or special law.

Superior Courts (s.96 courts): these have a special role in the Canadian legal system: The superior courts are the courts of general jurisdiction (“tribunal de droit commun”): they hear

all kinds of cases that haven’t been specifically assigned to another court (CPC 31) Moreover, in Quebec:

legal persons established in Quebec are subject to “the superindending and reforming power of the Superior Court” (CPC 33)

Only the Superior Court can grant injunctions (CPC 751), including interlocutory injunctions (CPC 752)

The Superior Court has exclusive jurisdiction over class actions (CPC 1000) In Ontario, the Superior Court of Justice has “all the jurisdiction, power and authority historically

exercised by courts of common law and equity in England and Ontario.” (OCJA 11) Ontario’s Small Claims Court is a division of the Superior Court of Justice (OCJA 22,23) A few years ago, the Ontario government created a “unified family court” (now just called the

“Family Court”) which is a division of the Superior Court of Justice: it has exclusive jurisdiction over family law cases. The idea was to unite cases concerning a single family that would have otherwise ended up divided between the Court of Justice and the Superior Court of Justice. (OCJA 21.1-21.15) However, this reform has only taken effect in certain regions of Ontario. (OCJA 21.1(4),(5))

However, it’s also important to keep in mind that federal laws can derogate from the powers of the superior courts: in the matters assigned to the Federal Court (maritime law, intellectual property, etc.)

43

Droit judiciaire – Prof. Frédéric Bachand The subject-matter jurisdiction of superior courts is constitutionally protected: legislators aren’t free to

allocate responsibilities as they please. There are two types of limits: some powers and subjects can’t be assigned to any other kinds of courts. some powers and subjects can be assigned to other kinds of courts, just not exclusively.

This is necessary in order to give meaning to the federal powers in ss.96-101 Superior court judges are appointed by the federal government. The independence and impartiality of superior court judges is constitutionally protected.

At the time of confederation, the idea was to maintain existing superior courts and give the federal government some power over these.

MacMillan Bloedel Ltd. v. Simpson (1995) SCC Facts J.P., a minor, defied a Superior Court injunction prohibiting protest activities against MacMillan

Bloedel’s logging activities around Clayoquot Sound. He was charged with contempt of court, tried before the BC Supreme Court and sentenced to 45 days in prison. J.P. argued that he should have been tried in youth court pursuant to s. 47(2) of the Young Offenders Act which gives exclusive jurisdiction to the youth court for violations of injunctions. The BCCA held that s. 47(2) was unconstitutional, because it ultra vires Parliament to remove inherent powers of the Superior Courts from them.

Majority Lamer CJC: The three-step test set out in Residential Tenancies should be used to determine whether

a grant of power to a specialized tribunal is constitutionally valid at all. If it passes this test, one must then assess whether the power detracts from the “core” jurisdiction of superior courts (to control their own processes) and therefore cannot be taken away from s. 96 Courts (i.e. can be a concurrent but not exclusive power of any other court).

In this case, the result is that Parliament can grant youth courts the right to punish young offenders for contempt of court. But it cannot take this power away from s.96 courts or insulate the youth court from judicial review in Superior Court. Contempt of court is different from other crimes; it is a dispute between the individual and the court. Given the special nature of superior courts, no aspect of the contempt power can be removed from the superior courts without a constitutional amendment. The impugned provision of the Young Offenders Act should therefore be read down to allow for concurrent jurisdiction.

Dissent McLachlin J: One should use the (functional) Residential Tenancies test to assess whether a grant of

jurisdiction is valid. There’s no need for a second stage, determining whether the grant of jurisdiction infringes on the “core” jurisdiction of superior courts.

The inherent power of superior courts to control their process does not preclude Parliament or the legislatures from enacting legislation that affects them.

The fact that Parliament or the legislatures give certain powers to specialized tribunals doesn’t undermine the superior courts, because superior courts still have the power to review the decisions of inferior tribunals or even to circumvent them when necessary.

Comments Bachand disagrees with Lamer CJC: he doesn’t see why the legislatures shouldn’t be free to divvy up powers among courts.

The points that McLachlin is not dissenting on, are later cited. If you can call something an inherent power, then you can’t give away that power.

Provincial courts: In some provinces, provincial courts don’t hear civil cases.

e.g. Ontario Court of Justice: only has jurisdiction over criminal matters, provincial offences and family matters. (OCJA 38) In Ontario, all civil cases must go before the Superior Court of Justice. Ontario’s small claims court is a division of the Superior Court of Justice (OCJA 22)

In Ontario, the Small Claims Court doesn’t have exclusive jurisdiction. In Quebec, the Court of Quebec has exclusive jurisdiction over some civil matters: (CPC 34)

where the amount claimed is under $70,000 (CPC 34(1)), for contractual matters, where plaintiff is not asking for cash (specific performance, annulment,

etc.) but where the plaintiff’s interest is worth less than $70,000 (CPC 34(2)) claims under $70,000 related to leases (CPC 34(3))

exceptions: class actions (CPC 34(1), 1000) child support (CPC 34(1))

44

Droit judiciaire – Prof. Frédéric Bachand anything reserved for the Federal Court (CPC 34(1))

There are possibly other exceptions in other legislation: e.g. Court of Quebec can’t grant an injunction (CPC 751 defines injunctions as orders of the

Superior Court). Court of Quebec also has exclusive jurisdiction over adoption (CPC 36.1) Court of Quebec has exclusive jurisdiction over coercive psychiatric measures (CPC 36.2) Quebec’s small claims court is a division of the Court of Quebec (Book VIII of the CPC concerns

small claims) The small claims court has exclusive jurisdiction over claims under $7000 (CPC 953)

exceptions: residential leases, support payments, class actions, slander, assigned claims (CPC 954)

simplified procedures (e.g. CPC 963) Some argue that the jurisdiction of the Court of Quebec is unconstitutional, when compared to powers

that the magistrates’ courts exercised in 1867. In 1963, the jurisdiction of the magistrates’ courts was raised from $250 to $500. The Quebec

Court of Queen’s Bench ruled that this was unconstitutional, but the SCC reversed this decision, saying it was OK because it was just keeping up with inflation.

Since 1963, the limit has gone up to $70,000. In 2003 (as part of the reform of civil procedure), it went up from $30,000 to $70,000. If the goal is to preserve the powers that existed in 1867, they’re way off the mark. (Inflation from 1867 to date would to date would take it up to about $20,000.)

Interesting to note that most of the increases in the Court of Quebec’s jurisdiction have occurred while the PQ was in power—it’s an element in federal-provincial power struggle.

CPC 34.  Except where a recourse is brought under Book IX, the Court of Québec has jurisdiction to the exclusion of the Superior Court in any suit:

(1) wherein the sum claimed or the value of the thing demanded is less than $70,000, except suits for alimentary pension and those reserved for the Federal Court of Canada;

(2) for specific performance, annulment, dissolution or rescission of a contract or for reduction of the obligations resulting from a contract, when the value of the plaintiff's interest in the object of the dispute is less than $70,000;

(3) to annul a lease when the amount claimed for rent and damages is less than $70,000.

When, in answer to an action before the Court of Québec, a defendant makes a claim which itself would be within the jurisdiction of the Superior Court, the latter court is alone competent to hear the entire case, and the record must be sent to it with the written consent of all the parties or, failing such consent, on an application presented to the judge or the clerk. The same applies when following an amendment to a claim before the Court of Québec, such claim becomes within the jurisdiction of the Superior Court.

Likewise, where, following an amendment to a claim before the Superior Court, the claim becomes within the jurisdiction of the Court of Québec, the latter court is alone competent to hear the entire case and the record must be sent to it with the written consent of all the parties or, failing such consent, on an application presented to the judge or the clerk unless, if it so happens, the defendant makes a claim which itself would be within the jurisdiction of the Superior Court.

This article does not apply to an application resulting from the lease of a dwelling or land contemplated in article 1892 of the Civil Code of Québec, except where the application consists in a contestation contemplated in article 645 or 656 of this Code.

The Tassé case shows how hard it can be to apply CPC 34(2):

Ville de Montréal c. Tassé (1999) QueCA Facts Tassé was a city employee; he took early retirement and was promised a certain pension. The

pension was later revised, and Tassé sued the city of Montreal for the difference. Although this difference had amounted to only $8000 so far, the amount of the pension itself was more

45

Droit judiciaire – Prof. Frédéric Bachandthan $30,000. Tassé sued the City in the Court of Quebec. The City argued that the lawsuit should have been brought before the Superior Court, because the amount claimed was in excess of the Court of Quebec’s limit (at that time, $30,000).

Majority Deschamps JA: Because we are dealing with a contract, we must refer to the more specific provisions of

34(2) and not 34(1). It’s important to distinguish “the object of the dispute” from “the plaintiff’s interest in the

object of the dispute” (which is the wording of CPC 34(2)). Since Tassé’s interest in the object of the dispute (i.e. the pension itself) exceeded $30,000, he had to bring it before the Superior Court.

Comments This broad interpretation of the plaintiff’s interest helps take back some jurisdiction for the Superior Court. However, it is almost nonsensical in doing so. “Interest” could equally have been interpreted as a narrowing factor rather than vice versa.

Essentially, this decision reduces the application of 34(1) to only torts and property claims. The Superior Court is taking back jurisdiction through this. Jurisdiction in general is a lot

of flag waving.

Why would provinces want give provincial courts jurisdiction over civil matters? Judicial nationalism: they want to be able to fully control these courts, including appointing the judges. Meanwhile, the parties to a dispute can get caught in chicanery over where an action can be brought. The provincial procedural code applies; the province has legislative power over civil procedure

(s.92(14)) Judges of provincial courts are named by the provincial government, not federal. The SCC said that guarantees of independence and impartiality apply just as well to provincial court

judges. if they’re going to do this, there should at least be clarity over the rules (not like Tassé)

Federal Courts have exclusive jurisdiction over some matters, concurrent jurisdiction over others: concurrent jurisdiction over maritime law (the definition of maritime law is unclear; at the moment the

SCC is giving it a very broad interpretation). exclusive jurisdiction over some aspects of intellectual property (FCA 20(1))

conflicting applications for patents, copyrights, trademarks, etc. (FCA 20(1)(a)) actions to impeach or annul patents, copyrights, trademarks, etc. (FCA 20(1)(b)

concurrent jurisdiction over other lawsuits surrounding intellectual property (FCA 20(2)) In the case of Ordon Estate v. Grail (1998), the SCC held that unless there is a clear provision to the

contrary, one should always assume that the Federal Court’s jurisdiction is concurrent and that the plaintiff retains the right to sue in the provincial courts or superior courts.

Concurrent jurisdiction raises the prospect of forum shopping. What criteria would a litigant use to decide?

Procedure – rules are different, e.g. discovery, summary judgment (only in the Fed Ct). Costs – Fed Ct has higher court fees (usually a percentage of the amount claimed). Formality – Fed Ct has more formalities and is more strict about them. Travel – Fed Ct is in Ottawa, but has branches and can travel. It depends... Bilingualism – only Fed Ct is truly bilingual. Efficiency – Fed Ct is better administered, more professional. Expertise – Fed Ct judges are generally more specialized in federal matters (e.g. intellectual

property, administrative law), but it may be easier to think outside the box with a non-specialist. Fed Ct judges are also common law specialists while Sup Ct judges come from civilian tradition.

Recognition and execution – a Fed Ct judgment is immediately enforceable across the country while Sup Ct judgments need to be recognized. Recognition is now almost automatic (Morguard), but it still takes time/money. This is particularly important in interlocutory in junctions and other interim measures.

Caseload – Fed Ct tends to be less backed up than the provincial or superior courts. Why give the Federal Court jurisdiction over some civil matters?

Consistency of application of federal laws – However, there is already a mechanism for this: SCC Political control – This is not convincing, because Parliament equally appoints Superior Court

judges. Consistency of procedure – This is not convincing, because Parliament clearly has power to dictate

procedure in federal matters, no matter what the court (as noted by Binnie J at para 20 of the Sam Lévy judgment)

46

Droit judiciaire – Prof. Frédéric Bachand Specialization – There are only 32 federal court judges, and they get to know the subject-matter.

This could be especially key in Quebec-Federal situations where federal judges are more at ease with the common law methodology than Quebec judges. This is the only (mildly) convincing reason.

Note that the possibility of a Federal Court system is constitutionally enshrined in s.101 of the Constitution Act, 1867. So, despite the weakness of the arguments in favour, it would be hard to constitutionally challenge the Federal Court.

b. Courts that mainly hear appeals Advisory role: legislatures can use the “reference” procedure to get an opinion on the constitutionality of a

law. Secession Reference (2001) SCCFacts The amicus curiae argued that s. 101 of the Constitution Act, 1867 does not give Parliament

the authority to grant the Supreme Court the jurisdiction to decide references as provided for in s. 53 of the Supreme Court Act. Alternatively, it was submitted that even if Parliament were entitled to enact s. 53 of the Supreme Court Act, the scope of that section should be interpreted to exclude the kinds of questions submitted in this Reference. 

Ratio It is proper for a court of appeal to exercise original jurisdiction in some cases (both the ECWA and the USSC do in some cases).

It is also proper for a court of appeal to perform an advisory role at times (although the USSC doesn’t do this, many European courts do. and we don’t have as strict a separation of powers doctrine as the US.).

Therefore, aside from a right to bring an action, there exists a limited right to request a court to provide a legal opinion. Of course, this right only belongs to those with executive powers. But one could ask whether the relaxing of the requirements for “standing” (see Canadian Council of Churches) gives ordinary citizens a power comparable to the provincial or federal executive’s reference power.

The power to give a legal opinion is divided among several appeals courts according to the identity of the government asking the question.

Appeal role: aside from the right to bring an action, there is the right to appeal: the right to demand that one court review the substantive merits of another court’s decision. in common law, this is not considered fundamental to procedural justice and equity; it is not linked to the

right to bring an action: “Appellate courts are creatures of statute and their authority is conferred solely by legislation.” (Re Therrien)

In some cases, there is no right to appeal, e.g. Small Claims Court (CPC 984(1)). In some cases, the right to appeal is restricted: one must obtain leave to appeal—similar to the

limitations on a querulous litigant’s right to bring an action! In common law, appeals are limited in that they only examine questions of law rather than

questions of fact, unless the fact-finder made a “palpable and overriding error” in a finding of fact. (This is a general principle in common law countries.)

common law appeals courts therefore have two main functions: settling disputes clarifying the law (this role is perhaps primary) – public interest?

Housen v. Nikolaisen (2002) SCCFacts Housen was injured in a car accident. He sued both Nikolaisen (the driver) and the

municipality (for not having adequate warning signs at the curve where the accident occurred). The trial judge found both the driver and the municipality to have been negligent, and apportioned some of the liability to the municipality. The Saskatchewan Court of Appeal overturned this finding, saying that the trial judge had made a palpable and overriding error in determining the applicable standard of care.

Majority Iacobucci and Major JJ (+3): The standard of review for pure questions of law is one of correctness. The main

reason for this is the law-making function of appellate courts: “While the primary role of trial courts is to resolve individual disputes based on the facts before them and settled law, the primary role of appellate courts is to delineate and refine legal rules and ensure their universal application. In order to fulfill the above functions, appellate courts require a broad scope of review with respect to matters of law.”

The standard of review for findings of fact is one of “palpable and overriding error”: i.e., error that can be plainly seen. There are three specific reasons for respecting the trial

47

Droit judiciaire – Prof. Frédéric Bachandjudge’s findings of fact:

1. Limiting the number, length and cost of appeals (conservation of judicial resources) – “Given the scarcity of judicial resources, setting limits on the scope of judicial review is to be encouraged. Deferring to a trial judge's findings of fact not only serves this end, but does so on a principled basis. Substantial resources are allocated to trial courts for the purpose of assessing facts. To allow for wide-ranging review of the trial judge's factual findings results in needless duplication of judicial proceedings with little, if any improvement in the result. In addition, lengthy appeals prejudice litigants with fewer resources, and frustrate the goal of providing an efficient and effective remedy for the parties.”2. Promoting the autonomy and integrity of trial proceedings – “The presumption underlying the structure of our court system is that a trial judge is [just as] competent to decide the case before him or her, and that a just and fair outcome will result from the trial process. Frequent and unlimited appeals would undermine this presumption and weaken public confidence in the trial process. An appeal is the exception rather than the rule.”3. Recognizing the expertise of the trial judge and his or her advantageous position – “The trial judge is better situated to make factual findings owing to his or her extensive exposure to the evidence, the advantage of hearing testimony viva voce, and the judge's familiarity with the case as a whole. Because the primary role of the trial judge is to weigh and assess voluminous quantities of evidence, the expertise and insight of the trial judge in this area should be respected.”

It is important to emphasize that this goes beyond the opportunity to hear witnesses first-hand; the trial judge is in a privileged position with regard to all of the evidence and conclusions drawn therefrom.

The standard of review for inferences of fact is also “palpable and overriding error.” – “To apply a lower standard of review to inferences of fact… would be contrary to the principles supporting a deferential stance to matters of fact… As stated above, trial courts are in an advantageous position when it comes to assessing and weighing vast quantities of evidence… Thus, where evidence exists which supports [a] conclusion, interference with this conclusion entails interference with the weight assigned by the trial judge to the pieces of evidence… We reiterate that it is not the role of appellate courts to second-guess the weight to be assigned to the various items of evidence. If there is no palpable and overriding error with respect to the underlying facts that the trial judge relies on to draw the inference, then it is only where the inference-drawing process itself is palpably in error that an appellate court can interfere with the factual conclusion.”

“We respectfully disagree with our colleague's view that the principal rationale for showing deference to findings of fact is the opportunity to observe witnesses first-hand. It is our view that the trial judge enjoys numerous advantages over appellate judges which bear on all conclusions of fact, and, even in the absence of these advantages, there are other compelling policy reasons supporting a deferential approach to inferences of fact. We conclude, therefore, by emphasizing that there is one, and only one, standard of review applicable to all factual conclusions made by the trial judge -- that of palpable and overriding error.”

Questions of mixed fact and law “involve applying a legal standard to a set of facts… Both mixed fact and law and fact findings often involve drawing inferences; the difference lies in whether the inference drawn is legal or factual.”

The standard of review for true questions of mixed fact and law is “palpable and overriding error.” “Because both processes [i.e. inferences of fact and questions of mixed fact and law]

are intertwined with the weight assigned to the evidence, the numerous policy reasons which support a deferential stance to the trial judge's inferences of fact, also, to a certain extent, support showing deference to the trial judge's inferences of mixed fact and law.”

“To adopt a correctness standard would change the law and undermine the traditional function of the jury. Therefore, requiring a standard of "palpable and overriding error" for findings of negligence made by either a trial judge or a jury reinforces the proper relationship between the appellate and trial court levels and accords with the established standard of review applicable to a finding of negligence by a jury.”

However, it may be possible to extricate general propositions from the question of

48

Droit judiciaire – Prof. Frédéric Bachandmixed fact and law that are properly characterized as questions of law and reviewed on a standard of correctness. “The matrices of facts at issue in some cases are so particular, indeed so unique, that

decisions about whether they satisfy legal tests do not have any great precedential value… In most cases it should be sufficiently clear whether the dispute is over a general proposition that might qualify as a principle of law or over a very particular set of circumstances that is not apt to be of much interest to judges and lawyers in the future… Where, however, an erroneous finding of the trial judge can be traced to an error in his or her characterization of the legal standard, then this encroaches on the law-making role of an appellate court, and less deference is required, consistent with a ‘correctness’ standard of review.”

For example, “if a decision-maker says that the correct test requires him or her to consider A, B, C, and D, but in fact the decision-maker considers only A, B, and C, then the outcome is as if he or she had applied a law that required consideration of only A, B, and C. If the correct test requires him or her to consider D as well, then the decision-maker has in effect applied the wrong law, and so has made an error of law.” (Southam)

“Appellate courts must be cautious, however, in finding that a trial judge erred in law in his or her determination of negligence, as it is often difficult to extricate the legal questions from the factual. It is for this reason that these matters are referred to as questions of "mixed law and fact".

The question of whether a defendant met a standard of care is a question of mixed fact and law (i.e. the standard of care is applied to the facts of the case).

In this case, the trial judge applied the correct test in determining that the municipality did not meet its standard of care – i.e. there was no “extricable” error of law – and the Court of Appeal should not have interfered absent “palpable and overriding error.”

Dissent Bastarache J (+3): The question of whether a defendant met a standard of care is a question of mixed fact

and law. Although there exist reasons for deference to determinations of mixed fact and law, there

are cases where these questions should be reviewable on a standard of correctness. “In a negligence case, the trial judge is called on to decide whether the conduct of the

defendant was reasonable under all the circumstances. While this determination involves questions of fact, it also requires the trial judge to assess what is reasonable. As stated above, in many cases, this will involve a policy-making or ‘law-setting’ role which an appellate court is better situated to undertake. For example, in this case, the degree of knowledge that the trial judge should have imputed to the reasonably prudent municipal councillor raised the policy consideration of the type of accident-reporting system that a small rural municipality with limited resources should be expected to maintain.”

Even when, “some questions of mixed fact and law may not have ‘any great precedential value’, such questions often necessitate a normative analysis that should be reviewable by an appellate court.”

Here, the trial judge failed to ask whether a reasonable driver exercising ordinary care would have been able to drive that section of road safely. This amounted to an error of law.

Comments The question of the role of appeal courts vis-à-vis mixed questions of fact and law is a controversial issue throughout common law countries which have varied approaches.

Re Therrien (2001) SCC (CB1p208) Facts Following an inquiry by the Conseil de la Magistrature, the Minister initiated the process of

removing Therrien from the bench of the Court of Quebec in accordance s. 95 of the Courts of Justice Act, which states that: “The Government may remove a judge only upon a report of the Court of Appeal made after inquiry at the request of the Minister of Justice.” Therrien sought judicial review at the Superior Court. The Court of Appeal subsequently denied this relief. Therrien appealed to the SCC. The Minister challenged that the Superior Court did not have jurisdiction to entertain judicial review in the first place and that Court of Appeal’s report was not a “judgment” appealable to the SCC.

Ratio Gonthier J:

49

Droit judiciaire – Prof. Frédéric Bachand “Appellate courts are creatures of statute and their authority is conferred solely by

legislation. We must therefore begin by considering the instruments by which jurisdiction is assigned.”

The report of the Court of Appeal is a “judgment” appealable to the SCC: The Supreme Court Act states that the definition of judgment "includes any judgment,

rule, order, decision, decree, decretal order or sentence". “Therefore, the expressions ‘judgment’ and ‘final judgment’ both contrast the concept of a decision, whether final or not, with the concept of mere opinion or advice.”

“From a careful study of the law and of its context and purpose, I conclude that the report of the Quebec Court of Appeal pursuant to s. 95 C.J.A. is in the nature of a decision… [T]his is a judicial report and, moreover, one made by the highest court in the province… Its report is a mandatory stage in the proceeding that may lead to the removal of a judge of the Court of Québec… Accordingly, it plays a vital role in the administration of justice in the province, and this is one factor that suggests that it should be recognized as a decision… The fact that the report of the Court of Appeal is judicial and is in the nature of a decision is one of the conditions that ensure the constitutionality of the process for removal of judges provided by the C.J.A.”

The Superior Court did not have jurisdiction in the first place to entertain judicial review as the Court of Appeal had exclusive jurisdiction of the matter under s. 95 of the CJA: “Under art. 31 C.C.P., the Superior Court hears in first instance every suit not

assigned exclusively to another court by a specific provision of law. In my opinion, where a request is properly made to the Court of Appeal by the Minister of Justice under s. 95 C.J.A., following a recommendation to that effect by the Conseil de la magistrature in accordance with s. 279 C.J.A., it is precisely the intent of the legislature that the Court of Appeal determine the matter to the exclusion of any other court. Although this is not spelled out, it clearly follows from the wording and the general scheme of the Courts of Justice Act. This is the only interpretation that will give true meaning to the provision in s. 95 C.J.A. that ‘[t]he Government may remove a judge only upon a report of the Court of Appeal’. (emphasis added) Furthermore, this interpretation is consistent with the legislature's intention of complying with the constitutional requirements regarding tenure of provincial court judges by assigning responsibility to the Court of Appeal, the highest court in the province, exclusively and in the first instance, for conducting an inquiry and making a report on the conduct of a judge. As a final point, to conclude otherwise would be inimical to the proper administration of justice, since it would encourage a multiplicity of proceedings before various tribunals. It is therefore far preferable to leave it to the Court of Appeal to determine all the questions of law and fact that may be raised in the course of the disciplinary process involving the scrutiny of the judge's conduct.”

Reference re Same Sex Marriage, [2004] SCC 79Facts The proposed legislation (Proposal for an Act respecting certain aspects of legal capacity

for marriage for civil purposes) states:1. Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.2. It is recognized that officials of religious groups may refuse to perform marriages that are not in accordance with their religious beliefs.NB: Marriage is federal [s.91(26)], but the ceremonial aspect of it is provincial.

Issues (1) Is the proposed legislation within federal legislative authority?(2) Is capacity to marry persons of the same sex consistent with the Charter?(3) Does the freedom of religion of the Charter protect religious officials from performing

same-sex marriage if it is contrary to their religious beliefs?(4) For civil purposes of marriage, is the opposite sex requirement of marriage consistent

with the Charter?Ratio (1) Yes.

(2) Yes.(3) Yes.(4) Refuse to answer: In the unique circumstances of this reference, the Court should ex-

ercise its discretion not to answer Question 4: The federal government has stated its intention to address the issue of same-sex

marriage legislatively regardless of the Court's opinion on this question.

50

Droit judiciaire – Prof. Frédéric Bachand As a result of decisions by lower courts, the common law definition of marriage in

five provinces and one territory no longer imports an opposite-sex requirement and the same is true of s. 5 of the Federal Law-Civil Law Harmonization Act, No. 1. The government has clearly accepted these decisions and adopted this posi-tion as its own.

The parties in the previous litigation, and other same-sex couples, have relied upon the finality of the decisions and have acquired rights which are entitled to protection.

Finally, an answer to Question 4 has the potential to undermine the government's stated goal of achieving uniformity in respect of civil marriage across Canada. While uniformity would be achieved if the answer were "no", a "yes" answer would, by contrast, throw the law into confusion. The lower courts' decisions in the matters giving rise to this reference are binding in their respective provinces. They would be cast into doubt by an advisory opinion which expressed a contrary view, even though it would not technically overturn them.

These circumstances, weighed against the hypothetical benefit Parliament might derive from an answer, indicate that the Court should decline to answer Q. 4.

civil law has a completely different conception of the role of appellate courts: an appeal is considered to be a fundamental element of a fair and equitable trial. in principle, everyone is entitled to an appeal; appeal is not subject to an application for leave to

appeal. the appeal is not limited to questions of law; you can have an appellate court re-hear your case in

its entirety. Cassation: this is a second appeal which only deals with questions of law. The French Cour de

Cassation only hears certain cases (there are other supreme courts depending on subject matter), but hears about 25,000 of them every year (cf. about 100 cases each year for the SCC). Is it really accurate to compare the SCC and the Cour de Cassation? It does not really fulfill the

role of clarifying the law as much as in the SCC. Judgments are extremely short – The case of Cass. civ. plén, 17 novembre 2000, X. c.

Mutuelle d’assurance du corps sanitaire français, pourvoi no 99-13700 (CB1p67) involved a claim for “wrongful life”: a mother, whose baby had been born with deformities due to her rubella, sued the doctors on behalf of her baby, that their negligence had prevented the mother from making a decision whether to abort. In finding for the baby, the Cour de Cassation wrote a decision only seven lines long!

The caseload and number of judges greatly increases the likelihood of contradictory judgments.

There is no reference to public policy. There are no dissents. All judges put forward a united front after deciding the case.

The right to appeal may be divided among different courts, just like the right to bring an action. In Ontario, an appeal from the Superior Court of Justice goes to the Divisional Court (a branch of the

Superior Court of Justice) rather than to the Court of Appeal if object of the dispute is less than $25,000 (OCJA 19). There is then a possible further appeal to the Court of Appeal (with leave) on questions of law or mixed fact and law. (There is no leave for questions of fact.)

The Federal Court of Appeal can only hear appeals from the Federal Court, and in some cases from the Tax Court and some administrative tribunals (FCA 27-28); it can’t hear appeals directly from a Superior Court, even if the federal court system has concurrent jurisdiction over that subject-matter.

ii) Quasi-judicial and inferior tribunals some of these have exclusive jurisdiction, not only over administrative matters but some civil matters as

well: Régie du Logement: has exclusive jurisdiction over any case involving:

(1) a residential lease and (2) an interest in a lease dispute of less than $70,000. renewal, rent determination, repossession, subdivision, changes of use etc. concerning a

residential lease. (Loi sur la Régie du Logement, s.28) Tribunal d’arbitrage de griefs: has exclusive jurisdiction over litigation surrounding collective

agreements. (This is not really “arbitration”! The jurisdiction is obligatory; it does not arise from the consent of the parties, but from statute.) (Code du travail, art. 1(f) et 100)

Commission des normes du travail: exclusive jurisdiction over litigation under the Code du Travail.

51

Droit judiciaire – Prof. Frédéric Bachand concurrent jurisdiction over complaints of wrongful dismissal

(Code du Travail, art.112 et Loi sur les normes du travail, art.126) Why would governments want to set up inferior tribunals? It is easier to justify this:

specialization (adjudicator can be an expert, not necessarily a judge) simplified and more efficient procedure Better than the implementation of legislative themes

B. The division of jurisdiction according to territorial criteria (rationae personae)

Subject-matter jurisdiction is intimately connected to public law and the powers of the state. This is not the case with territorial jurisdiction (rationae personae). Territorial jurisdiction merely provides criteria to link the subject for the link between the basis of the litigation and parts of the state territory.

The goal of the division of territorial jurisdiction is that the dispute should be settled in an appropriate location. In order to be legitimate, the trial should occur somewhere that is convenient enough for the parties.

This is a rule in the interests of the parties and not a rule of public order; the parties can waive it or contract out of it. The main rules in Quebec are at CPC 68-75.0.1:

general principle: action should be brought in judicial district of defendant’s domicile (CPC 68(1)al1) the domicile of a legal person is at its head office (CCQ 307)

if the defendant doesn’t have a domicile in Quebec, the plaintiff can sue before the court of: (CPC 68(1)al2) the defendant’s ordinary residence the place where the defendant has property in Quebec the place where the action is personally served on the defendant.

other rules give the plaintiff the choice to sue somewhere else: the place where all of the facts occurred that gave rise to the action (CPC 68(2)) the place where the contract was concluded (CPC 68(3))

no matter who is the defendant, an action based on an insurance contract can be brought in the place of the insured person’s domicile or the place where the loss of insured property occurred. (CPC 69)

Some rules are designed to prevent a single case from being split up according to territorial jurisdiction: “An incidental action in warranty must be taken before the court in which the principal action

is pending.” (CPC 71) When a plaintiff joins several personal causes of action from different districts, he or she can

sue before any court that would have jurisdiction over one of them. (CPC 72) If there’s more than one defendant in a personal action, the plaintiff has a choice of suing in any

of the places where one of them could be summoned. But if it’s a real action, the plaintiff has to sue in the place where the object of the dispute is located. (CPC 75)

Exceptionally, and in the interest of the parties, a judge can order that a trial take place in another district. (CPC 75.0.1) The judge retains this residual discretion, even if the other rules would have made the

jurisdiction clear. Note that the judge can exercise this discretion “at any time.” The provision doesn’t seem to require an application from the parties. This seems to indicate

that the judge could order this on his or her own motion. This is an extension of the doctrine of forum non conveniens, which was introduced into

Quebec law in 1994. There is a gap in these rules . It’s possible that a Quebec court would have international

jurisdiction over a case, but that no rule would tell us where the trial should take place. e.g. if a Quebec consumer bought a defective product abroad, and brings it back, the Quebec

courts would have jurisdiction (CCQ 3149), but nothing tells us where the trial should be. The result is that the plaintiff can sue anywhere; it’s up to the defendant to challenge this. The

only way the defendant could challenge would be to use forum non conveniens (CCQ 3135). Other rules specify the specify the procedure one can use to challenge the territorial jurisdiction of

a particular Quebec court:

52

Droit judiciaire – Prof. Frédéric Bachand Unless the parties agree otherwise, such “preliminary exceptions” must be disclosed to the

other party before the date of the presentation of the action. (CPC 159) “preliminary exceptions” must be presented orally at the time of the presentation of the action.

(CPC 151.5) This presentation of the action must occur at least 30 days after the defendant is served with

notice. (CPC 151.4) This means that if these rules are not rules of public order, the defendant can lose the right to challenge this jurisdiction by prescription (30 days) Keep in mind that judge can extend any time limit that is not peremptory (CPC 9)

Other rules for special kinds of actions: Appeals: some go to Montreal, others to Quebec City (CPC 30) Small claims: simplified: one can bring an action: (CPC 958)

before the court of the defendant’s domicile or last known place of residence the court of the insured’s domicile (when suing an insurer) where the cause of action arose where the contract was formed.

Ontario’s approach is quite different: These are “venue” rules rather than rules for jurisdiction rationae personae, because there is no real division between judicial districts in Ontario. The judge has delegated power to determine procedure. the plaintiff can bring an action wherever he/she wants, but the court has the discretion to decide

that the trial will take place in another location (ORCP 46). The judge can do this on his/her own motion if some statute requires it (ORCP 46.03(1)) The judge can do this at a party’s request if:

“the balance of convenience” favours it (ORCP 46.03(2)(a)) it is likely that a fair trial cannot be held at the place the plaintiff chose (ORCP 46.03(2)

(b)) The court therefore considers the dispute holistically.

Appeals to divisional court: must be brought to the court in the division where the decision appealed from took place, unless the parties agree otherwise or the CJ of the Superior Court of Justice deems it necessary in the interests of justice. (OCJA 20)

Sam Lévy & Associés Inc. v. Azco Mining Inc. (2001) SCC (CB1p124)Facts Eagle River was a Quebec company. Azco was an American company, registered in

Delaware, with its headquarters in Arizona and a Canadian branch office in Vancouver. Eagle River had a gold mining venture in Mali. Azco paid Eagle for shares in a Malian joint venture holding company.

Azco and Eagle had two contracts. Both of them had choice of law clauses saying they were governed by the laws of British Columbia:

1. a financing contract2. a management services agreement, which also contained an arbitration clause which said that Vancouver would be the place of arbitration.

Azco also had a debenture contract with Eagle’s Malian subsidiary, which had not only a choice of law clause but a choice of forum clause in favour of BC courts.

Azco eventually came to control a majority interest in the Malian joint venture holding company. Eagle went bankrupt. However, Azco never gave Eagle the holding company shares to which it was entitled. Sam Lévy, which was the syndic en faillite for Eagle, sued Azco in the Hull Division of the Quebec Superior Court sitting in Bankruptcy.

Azco objected to the fact that the action had been brought in Quebec. It argued that the whole action should have been brought in a BC court.

The trial judge held that the Quebec Superior Court had jurisdiction to hear the matter under the Bankruptcy and Insolvency Act, and that although it could be transferred to Vancouver, there were not sufficient reasons for doing so. It was more efficient and economical for of all the creditors that the proceedings be heard in Quebec.

The Court of Appeal upheld this reasoning and added that even if the contractual stipulations were choice of forum clauses (which they weren’t), they wouldn’t bind the syndic. And even if they bound the syndic (which they didn’t), they would have been overruled by the Bankruptcy and Insolvency Act.

The Court Binnie J: The Bankruptcy and Insolvency Act establishes a nationwide scheme for bankruptcy

proceedings. The superior courts have subject-matter jurisdiction (s.183). Bankruptcy proceedings should be filed where the bankrupt entity had its residence (s.43). This court

53

Droit judiciaire – Prof. Frédéric Bachandthen has territorial jurisdiction: all of the proceedings should be unified in this place. There’s a public policy interest (efficiency) in keeping all of the proceedings in one place.

s.187(7) of the Bankruptcy and Insolvency Act is like a forum non conveniens exception. It allows the judge to send the case elsewhere if there’s sufficient reason for doing so. But in this case there was not sufficient reason for doing so, especially since there was no choice of forum clause.

If there were a choice of forum clause, this would be a significant factor for the judge to consider, but it would not be a controlling factor.

constitutional division of powers: The fact that the dispute has a contractual element (property and civil rights) doesn’t exempt it from the court’s bankruptcy jurisdiction. Parliament retains the power under s.91(21) to legislate where and how bankruptcy litigation will be heard.

This was clearly a bankruptcy matter: Azco was not a “stranger to the bankruptcy.” Sam Lévy was asking for a form of restitution specifically targeted by the BIA.

Comments If the case had been decided purely according to Quebec private international law, the result is unclear. None of the linking factors in CCQ 3148 applied to Azco, and the last paragraph of CCQ 3148 says that a Quebec court has no jurisdiction if the parties have chosen another forum or an arbitrator. But there wasn’t really any choice of forum clause, and Azco’s links to Vancouver were tenuous. Anyways, in this case, the federal statute superseded Quebec law.

This case touches on lots of different topics in the course. Big themes: public v. private interests interests of parties v. interests of non-parties

ALI/UNIDROIT P.3.4 (under the heading “procedural equality of the parties”) states that “Whenever possible, venue rules should not impose an unreasonable burden of access to court on a person who is not a habitual resident of the forum.” (CB1p12)

3.4 Whenever possible, venue rules should not impose an unreasonable burden of access to courton a person who is not a habitual resident of the forum.

C. Overview of some questions related to the jurisdiction of courts

i) Lis pendens (la litispendence) As a result of the division of territorial and subject-matter jurisdiction in various legal systems, several courts

may have jurisdiction over the same action (the plaintiff may have a choice of fora). So what if the plaintiff tries to simultaneously launch multiple actions in multiple jurisdictions? Every system of civil procedure has had to face this problem.

In Quebec law, if there is lis pendens, the second court seised of the matter must unseise itself. (CPC 165(1)).

Rocois Construction, (1990) SCC Facts The plaintiff accused the defendant of price-fixing.

A first lawsuit at Fed Ct was based on Combines Investigation Act claimed $1M in damages and special costs related to investigation and proceedings.

A second lawsuit at Qc SC was based on CCQ 1457 claimed only $1M in damages and nothing else.

Both lawsuits dealt with the same factual occurrences. Ratio Gonthier J:

The conditions for lis pendens are essentially the same as those for res judicata (CCQ 2848):(1) the demands must be “based on the same cause”(2) the demands must be between the same parties acting in the same qualities(3) the thing applied for must be the same in both cases

The requirements under CCQ 2848 might not be met in a strictly technical sense, but the three identities should be interpreted expansively. Courts should exercise caution in dismissing cases on grounds of lis pendens , because they’re not as clear-cut as res judicata .

54

Droit judiciaire – Prof. Frédéric Bachando Cause of action doesn’t have to be exactly the same: “where there is a single

set of facts alleged to which two provisions are presumed to be applicable, there will be an identity of cause when the substance of each provision by the same legal principle produces an identical effect on the rights and obligations of the parties.” (Gonthier J in Rocois)

o Thing sought doesn’t have to be exactly the same: the fact that “accessory damages” were sought in Federal Court instead of only tortious “compensatory damages” didn’t make a difference.

Here, the claim for damages (i.e. “object”) is essentially the same and the “cause” is also the same. Although different legal rules are invoked, their legal basis is the same (liability for wrongful conduct) and the material facts are essentially the same in both cases.

Comments

common law doesn’t have as rigid a rule. However, a common law judge has discretionary powers which allow him or her to reach the same result:

if two cases are pending before the same court, a judge can order that they be heard together (ORCP 6.01)

same if two cases are pending before different courts (OCJA 107) The judge must simply decide whether the two cases have “a question of fact or law in common” and

whether they arise out of the same facts; or the judge can consolidate the cases “for any other reason.” (ORCP 6.01, OCJA 107)

This gives the judge lots of power to stop plaintiffs who might have been acting in bad faith. There might not be a huge difference between the two systems in practice. Quebec judges also have other means of alleviating the problems caused by lis pendens.

consolidation discretionary powers over cases of partial lis pendens:

suspension: if there are two parallel actions before the Superior Court and the Court of Quebec, “having the same juridical basis or raising the same questions of law and fact,” the Court of Quebec has to suspend the case until the Superior Court makes a judgment (CPC 273)

remember that courts have general powers: CPC 46 draws on common law theories of inherent powers (cf. Macmillan Bloedel) They have the power to suspend any action in a situation of imperfect lis pendens. This is a good example of the mixed nature of Quebec procedural law, as explained in Lac d’Amiante: Quebec law is mixed in its informal sources, but pure civil law in its formal sources.

ALI/UNIDROIT P2.5: “The court may decline to hear the case, or schedule the proceeding in deference to another court, if the same dispute is pending in an appropriate forum.”

ii) Prescription Time can run out. However, if a party’s application is dismissed for some procedural reason (without a decision on the merits),

and the prescriptive period has run out or will run out soon, the party gets another three months. (CCQ 2895)

Extra readings:

Laskin, B., « The Role and Function of Final Appellate Courts : The Supreme Court of Canada » (1975) 33 R. du B. can 469

Gagnon, B., La compétence des juridictions civiles de première instance (Montréal: Wilson & La-fleur, 1995)

McEvoy, « Separation of Powers and the Reference Power : Is There a Right to Refuse? » (1988) 10 Sup. Ct. L. Rev. 349

3. THE PROCEEDINGS AND THEIR UNFOLDINGToday we start on civil procedure: this is what happens after you’ve established that the plaintiff has a right to bring an action, and the court has jurisdiction.

55

Droit judiciaire – Prof. Frédéric BachandSeven major stages of civil procedure:

1. written stage: parties exchange writings (including statement of claim) (presentation de la demande?) the purpose is to identify the issues, delimit the debate, define each party’s position.

2. provisional/conservatory measures: this doesn’t occur in all lawsuits, but sometimes interim arrangements are ordered (especially if

there is a risk that something might happen in the meantime that would affect the efficacy of the final judgment) e.g., defendant might transfer property to another jurisdiction to avoid enforcement; could be

order that defendant can’t do this e.g., if there is a risk that some important evidence might disappear before it can be adduced.

the need for these could arise at any stage; parties may have to return to step 2. 3. discovery: preliminary divulgation of documents (divulgation préalable d’infos relatives au litigie)

This is found in North American law only: there is no discovery in a pure civil law system. means of investigation, allows parties to get as much information as possible from other side only divulgation of documents that parties agree to rely on in US, powers of discovery are extremely broad

4. trial: (procès) Preuves relatives aux faits en litiges sont formellement versées au dossier common law : the parties present the information on which they’d like the judge to base his/her

decision. three important aspects: after all of the preliminary stages, there is a “pre-trial” stage before the trial the parrties themselves decide which evidence will be adduced, how it will be adduced, and

in what order. (each party can “spin the story as they see fit”) this is why common law normally uses party-appointed experts

there is only one trial—one trial in which all the evidence is brought forward. civil law : the judge has an extremely important and active role in deciding which evidence can be

adduced, how and in what order; interrogates witnesses, names and mandates experts, etc. this is partly in order to have this done in the most efficient way: e.g. if there is a prescription

issue, the judge will hold a mini-trial on this before moving on to the other issues. there is no idea of the parties having some sort of “right” to decide how to present their

evidence rejection of idea of a single, fact-finding trial: appeals can re-examine the facts; multiple

opportunities to convince judges.5. the end of the proceedings (settlement, judgment, etc.)

there are lots of ways a civil action can end; in Quebec, about 5% go all the way to a judgment on the merits judgments can be by default, summary judgment (procedural), or decision on the merits

6. appeal for civilians, appeal procedures are considered to be fundamental to judicial fairness; much more

emphasis on availability of appeals than in common law. different ideas about; the conditions for availability of appeal the powers of an appeal court with regard to the trial judgment

7. execution of judgments (we will not cover this)

There is a trend toward “civilization” of common law : discovery : No discovery in CVL. Everyone recognizes that this is expensive and inefficient; there is a

movement to limit the kinds of documents that are available, especially in cases where the stakes are low the trial itself : the idea that the parties can decide for themselves what evidence to present is being

eroded. More active judge; more judicial control of evidence, especially expert witnesses. Conférences préparatoires/de gestion et de l’instance

there is also a retreat from the idea of the single, unitary trial where all the evidence is presented. It’s now understood that it’s sometimes more efficient and/or fairer to break down the trial into separate issues. cf. CPC 273.1: possibility of splitting up trial

There is a tendency to impose time limits in civil law: Tendency to limit time of proceedings by limiting pre-trial period (before, parties had quasi-absolute

control in these matters). Also, more active role of judges in pre-trial period (e.g., In QC, étape de la présentation de la demande, CPC 151.4ff)

e.g., in Quebec, 180-day limit for preliminary stages, otherwise action dies. This can be extended, but only in last 30 days. (CPC 110.1)

56

Droit judiciaire – Prof. Frédéric Bachand in Ontario there is a similar rule: if there hasn’t been a trial in two years, parties are given 90 days to

appear; parties may appear before a judge and explain themselves; judge may set a trial date (rare that judge would kill an action for this reason) (ORCP 48.14)

A. The parties to the proceedingsDans les cas les plus simples, un litige n’intéresse que deux personnes; lors-qu’une action est intentée, seules ces deux personnes – le demandeur et le défendeur – sont parties à l’instance. Mais souvent, un litige implique plus de deux personnes; un consommateur tient responsables le vendeur et le fabri-cant du bien défectueux, les copropriétaires d’un immeuble tiennent le ven-deur responsable pour les dommages liés à des vices cachés, etc. Nous sa-vons déjà que le droit judiciaire privé comporte des règles qui visent à éviter l’éparpillement du contentieux se rapportant à un seul et même litige, pour des raisons d’efficacité mais aussi afin d’éviter les inconvénients découlant de jugements contradictoires (par ex. : création d’une Cour de la famille en Onta-rio, incompétence matérielle de la Cour du Québec lorsque la partie défende-resse forme une demande reconventionnelle relevant de la compétence maté-rielle de la Cour supérieure (art. 34, al. 2 du C.p.c.), extension de la compé-tence territoriale et internationale d’un tribunal judiciaire québécois à l’endroit d’une action en garantie (art. 71 du C.p.c. et 3139 du C.c.Q.; voir aussi la r. 17.02o) des R.p.c. Ont.), extension de la compétence territoriale d’un tribunal judiciaire québécois à l’endroit de la demande additionnelle fondée sur une autre cause d’action (art. 72 du C.p.c.) et à l’endroit de l’action intentée contre un autre défendeur (art. 75 du C.p.c.), possible inefficacité d’une convention d’arbitrage invoquée dans le cadre d’une action en garantie (arrêt Guns N’ Roses), litispendance (art. 165(4), al. 1, par. 1)). Nous allons mainte-nant constater qu’il existe d’autres règles qui servent essentiellement les mêmes fins en permettant, dans des conditions qui varient d’un État à l’autre, qu’une instance implique plus de deux parties

The simplest litigation involves just two parties. Where there are more than two parties involved, there may be mechanisms allowing all of the claims to be considered at once.

PROS : This (1) makes litigation more efficient; (2) reduces the possibility of contradictory decisions.

Le principe sous-jacent Éviter les possibilités d’instances multiples se rapportant à un seul et même litige, c.-à-d. éviter le morcellement du contentieux, préserver son unicité

Cinq mécanismes qu’on retrouve pratiquement partout

- possibilité de poursuivre plusieurs déf. dans même instance• A c. B et C

- possibilité que plusieurs dem. agissent conjointement• A et B c. C

- jonction d’instances distinctes • A c. B • A c. C

A c. B et C

- Intervention volontaire - Intervention forcée • A c. B • A c. B C C

Principes ALI/UNIDROIT57

Droit judiciaire – Prof. Frédéric Bachand12. Joinder of Claims and Parties; Intervention

12.1 A party may assert any claim substantially connected to the subject matter of the proceedingagainst another party or against a third person who is subject to the jurisdiction of the court.

12.2 A person having an interest substantially connected with the subject matter of the proceedingmay apply to intervene. The court, on its own motion or motion of a party, may direct notice to a partyhaving such an interest, inviting intervention. Such an intervention should not be permitted when itwould result in unreasonable delay or confusion of the proceeding or otherwise unfairly prejudice aparty.

12.3 When it is necessary and just, the court should grant permission for a person to be substitutedfor a party in a proceeding.

12.4 The rights and obligations of participation and cooperation of a party added to the proceedingare ordinarily the same as those of the original parties. The extent of these rights and obligationsmay depend upon the basis, timing, and circumstances of the joinder or intervention.

12.5 The court may order separation of claims, issues, or parties, or consolidation with otherproceedings, for fair or more efficient management and determination or in the interest of justice.That authority should extend to parties or claims that have been joined but are not within the scope ofthese Principles.

Comment:P-12A Principle 12 recognizes the broad right to assert any claim available against another party, a rightwhich is afforded in many legal systems. In some legal systems joinder is permitted only of claims related to thesame transaction or occurrence.P-12B There are differences in the rules of various countries governing jurisdiction over third parties. Insome civil-law systems, a valid third-party claim is itself a basis of jurisdiction whereas in some common-lawsystems the third party must be independently subject to jurisdiction. Principle 12.1 does not require anindependent basis of jurisdiction.P-12C In any event, the court has authority to sever claims and issues, and to consolidate them, accordingto their subject matter and the affected parties.P-12D Joinder for interpleading parties claiming the same property is permitted by this Principle, but thePrinciple does not authorize class actions.

In Ontario, the joinder of proceedings is elevated to a general principle: “As far as possible, multiplicity of legal proceedings shall be avoided.” (OCJA 138)

There’s no equivalent general statement in Quebec, but there are lots of rules that have the same result.

i) Common mechanisms that can give rise to multi-party proceedings

At the beginning of the proceedings, the plaintiff has lots of discretion: can decide whether to sue single or multiple defendants; can decide whether to join with other plaintiffs. None of the rules oblige the plaintiff to do so.

but the judge can unite the actions by “judicial notice” even if none of the parties asked for this. CVL does this much more frequently CML doesn’t recognize a preponderant interest in this: consistent with the passive role of the judge

however, passive role of the judge is declining. CML might tend toward ordering joinder of claims It’s not only the plaintiff who has an interest.

The defendant also has an interest in the joining of actions: suppose that several buyers are suing a seller over defective product; seller (defendant) has an

interest in only having one trial rather than several, and could ask the court to unite the actions. so does the public/state.

a. The action brought against multiple defendants

Typical common law approach is to give judge discretionary power to join claims. ORCP 5.02(2) lists a broad range of factors (claim arising out of the same facts, common question of fact or law, doubt as to who is responsible, etc.) but then adds a catch-all provision: if “it appears that their being joined in the same proceeding may promote the convenient administration of justice” (ORCP 5.02(2)(e).

58

Droit judiciaire – Prof. Frédéric Bachand The fact that someone is erroneously joined as a defendant is not a reason to defeat the original action

(ORCP 5.04(1)) The court has broad discretion to add or remove parties from the action. (ORCP 5.04(2)) Broad judicial discretion to separate proceedings, etc. if the joinder “may unduly complicate or delay the

hearing or cause undue prejudice to a party.” (ORCP 5.05) One defendant can mount a defence on behalf of all of them (ORCP 12.07)

In Quebec, the approach is a little bizarre: “Several causes of action may be joined in the same suit, provided that the recourses exercised are

not incompatible or contradictory, that they seek condemnations of a like nature, that their joinder is not expressly prohibited and that they are susceptible of the same mode of trial.” (CPC 66 al1) QueCA: it’s this article that enshrines the possibility of bringing a claim against several defendants. Note that the claims do not have to be linked; could be suing two defendants who have nothing to do

with each other. But in general, more restrictive than Ontario. if the action is brought against defendants with domiciles in different districts, plaintiff has a choice which

district to sue in (unless it is a real action). (CPC 75) “The court may, on an application, split an action in any matter at any stage of the proceeding. The

resulting trials are held before the same judge, unless the chief judge or chief justice decides otherwise” (CPC 273.1)

Jeff Berryman, “Injunctions – The ability to bind non-parties” (2002) (Additional)

Traditionally, in Chancery, injunctions could not be used to bind non-parties. In the UK, some exceptions are being made. For instance, in the Spycatcher case, which involved a

confidentiality order, the HL said that an injunction could bind non-parties if: necessary to prevent behaviour that would completely defeat the purpose of the injunction (e.g.,

injunction of confidentiality: if anyone leaks the information, injunction is defeated). third party is aware that it would be defeating the purpose of the injunction.

But UK courts seem to be treading cautiously, conscious that they are making a special exception to a general principle.

But Canadian courts are now more and more willing to hold vast numbers of people liable for contempt of court if they disobey an injunction.

This has arisen especially in civil disobedience cases such as Macmillan Bloedel v. Simpson [1996]. According to Berryman, the SCC’s decision means that anyone who behaves in such a way as to defeat an injunction, knowing that they are doing so, is liable to be punished for contempt of court. [Bachand isn’t sure it’s right to read the case this way.]

Berryman suggests some alternative methods that could be used to bind non-parties while still giving them procedural safeguards.

Injunctions are odd because they are an exception to the idea that res judicata is relative (i.e., that people’s rights shouldn’t be modified by a decision in a case where they didn’t participate)

b. The action brought by multiple plaintiffs

CML: OntarioOntario’s rules for multiple plaintiffs are just about as liberal as its rules for multiple defendants. two or more plaintiffs can join their claims if they arise from the same facts, if they raise a common question of law or fact, or if it would “promote the convenient administration of justice.” (ORCP 5.02(1))

The fact that someone is erroneously joined as a plaintiff is not a reason to defeat the original action (ORCP 5.04(1))

The court has broad discretion to add or remove parties from the action. (ORCP 5.04(2)) Broad judicial discretion to separate proceedings, etc. if the joinder “may unduly complicate or delay the

hearing or cause undue prejudice to a party.” (ORCP 5.05)

CVL: QuebecIn Quebec, two or more plaintiffs can join their claims if their claims “have the same juridical basis or raise the same points of law and fact” (CPC 67)

Bachand thinks CPC 67 is unnecessarily complex; common law rules are more straightforward. (how?) This rule is more strict than Ontario’s. The claims must raise (all) the same points of law AND fact not just

a (one) common question of law OR fact.

59

Droit judiciaire – Prof. Frédéric Bachand “A person cannot use the name of another to plead, except the State through authorized representatives.

Neverthless, when several persons have a common interest in a dispute, any one of them may appear in judicial proceedings on behalf of them all, if he holds their mandate” (Goes on about mandate) (CPC 59 al. 1 and 2) “Tutators, curators and others representing persons who are not able to fully exercise their rights,

plead in their own name in their respective capacities” (Goes on about administrator of property) (CPC 59 al.3)

c. The joinder of distinct actions involving different parties

In Quebec, the court can order two actions between the same parties to be joined, even if claims are from different sources, if it appears expedient, causes no prejudice, etc. (CPC 270)

even if the actions are not between the same parties, the court can order the actions to be tried at the same time, or decided on the same evidence, or can order that one be tried first and the others stayed (CPC 271)

the court can always revoke any order under CPC 270 or 271 if judge believes that it is in the interest of justice to do so (CPC 272)

Also valid at appellate level (CPC 509)

In Ontario, again, more judicial discretion: if two or more actions have a question of law or fact in common, or arise from the same facts, or “for any other reason,” the court can order the actions consolidated, or heard simultaneously, or immediately one after the other, etc. (ORCP 6)

If the two proceedings are in different courts, a party can move to have one of the proceedings transferred to the other court so that ORCP 6 can be applied (OCJA 107)

ALI/UNIDROIT P12.5 : The court may order the disjunction of actions, questions or parties, or the joinder to other proceedings if it is more equitable, if it will be more efficient, or if it is in the interest of justice.

d. The forced involvement of a third party in the proceedings

Some mechanisms allow parties to haul in a third party who doesn’t want to join in the proceedings. This is most common in actions for guarantees. If defendant may be insolvent but a third party has

guaranteed defendant’s debt, plaintiff may want to haul guarantor into court. or e.g. consumer sues retailer, retailer invokes liability of manufacturer. but forced intervention mechanisms are usually applicable to other situations as well.

In Ontario, allows plaintiff to commence a third party claim against anyone who may be liable to the defendant, even

if the claim is unrelated (ORCP 29.01(b)) of course, this would be subject to all the rules of standing, interest, jurisdiction, etc.

if a third party’s participation is necessary (ORCP 5.03(1)) Recall articles on erroneous joinders (ORCP 5.04(1)), court’s discretion to add or remove parties (ORCP

5.04(2)), broad judicial discretion to separate proceedings if the joinder “may unduly complicate or delay the hearing or cause undue prejudice to a party.” (ORCP 5.05)

In Quebec, a party can “implead a third party” if “necessary to permit a complete solution” of the litigation (CCP 216)

this has been interpreted fairly strictly by Quebec courts—rarely invoked successfully. (Gariepy - ) “ recourse in warranty ” ( recours en garantie ) : purely a procedural mechanism (not like subrogation,

which involves a transfer of substantive obligations) (CC 216) Third party cannot take up the defence of the warrantee in cases of simple or personal warranty (CC

219), but can do so for legal warranty (CC 220). “Unless the court decides otherwise, the principal action and the action in warranty must be heard

jointly, and a single judgment decides them both” (CC 221 al.1).

1. L’intervention du tiers contre qui le défendeur désire exercer un recours (appel) en garantie (CC 216)

Permet au défendeur d’intenter, dans le cadre de la même instance, recours en garantie, c.-à-d. recours fondé sur un lien juridique entre le défendeur et un tiers, lien juridique par lequel ce dernier devra indemniser le défendeur, en tout ou en partie, dans l’éventualité ou la partie demanderesse avait gain de cause

60

Droit judiciaire – Prof. Frédéric Bachand

A c. Bc. B prétend que C devra l’indemniser si A gagne, C donc responsabilité de C liée à celle de B

***Donc: l’appel en garantie n’est régulièrement formé que s’il est fondé sur cause d’action selon laquelle C devra indemniser B si A gagne (B c. C. dépend -- au plan juridique -- de A c. B)

2. Autres cas d’intervention forcée:

- R.p.c. Ont.: 29.01b)A c. B B peut invoquer autre cause d’action contre C (donc cause

c. d’action qui ne dépend pas -- au plan juridique -- de cause d’action C de A) pourvu qu’il existe connexité suffisante entre A c. B et B c.

C

- L’intervention forcée du tiers dont la présence est « nécessaire » (216 C.p.c., 5.03(1) R.p.c. Ont.)A c. B.

A c. B et C C.

Gariépy: la présence de tiers aussi (ou exclusivement) responsables du préjudice allégué est-elle nécessaire ?

Fonds d’assurance responsabilité professionnelle du Barreau du Québec c. GariépyFacts First trial: Mathieu sold his business to Clair with an agreement that he would continue to receive

bonuses and to share profits with Clair. Contract written by notary Gariépy and accountant Forcier. Mathieu stopped receiving bonuses and profits and hired lawyer Daigle who advised him to go after Clair. At the trial, it was found that the contract was not well written by fault of Gariépy and Forcier.

Second trial: Mathieu sued Daigle for failing to counsel him to sue Gariépy and Forcier. The Barreau, defending Daigle, requested an obligation in solidum or a forced intervention of Gariépy and Forcier in the proceedings, arguing that they made the faults that were the reason for the proceedings, and so were necessary to permit a complete solution of the litigation (CC 216).

Ratio Forced intervention is only permitted where it is necessary that the third party intervene to allow for a complete solution, not simply where it is useful. The issue at trial is Daigle’s professional responsibility; Forcier and Gariépy’s roles are completely external to this. Their involvement would be more like a distinct trial rather than a response to the claim.

Comments L’obligation in solidum (solidarité imparfaite) is a concept created by the courts. It occurs when the obligations of debitors are from different sources, but contributed to the same fault. In this case, there is no common fault. Daigle’s fault occurred in 1993, while Gariépy and Fortier’s occurred in 1989. The nature of the claims is also distinct.

Eclipse Bescom Ltd. c. Soudures d’Auteuil Inc. (2002) QueCA (Additional)Facts Auteuil had negligently installed some “fumoirs”; Bescom had installed some gas burners. Together,

these started a fire. The insurance company, subrogated into the rights of the building owner, sued Auteuil but not Bescom. Auteil tried to bring Bescom into the action in a recourse in warranty.

Ratio Brossard JA: CPC 216 doesn’t allow a defendant to impose another defendant on the plaintiff. Plaintiffs have a

fundamental right to decide who they are suing, and their case will succeed or fail on this basis. If a defendant thinks someone else should be liable, it can make this part of its defence. And then plaintiff will have to decide to add this third party to the action.

However, things are changing; the plaintiff can no longer claim to be master of his or her own procedure. There are lots of case management and disclosure requirements, etc. State’s interest matters too. If it’s because of the plaintiff’s rights that we can’t force someone to become a co-defendant, this seems incompatible with the fact that we allow someone to voluntarily become a co-defendant, whether or not the plaintiff likes this. [note: this is from para 35: very important]

In this case, if Bescom could have been impleaded, it would only have been through the first part

61

Droit judiciaire – Prof. Frédéric Bachandof CC 216: because it is is “necessary to permit a complete solution.”

Comments Bachand agrees with this; defendant might try to join other defendants to try to confuse the issue, avoid liability, point finger at others.

e. The voluntary involvement of a third party in the proceedings

In Ontario, a third party can make a motion to intervene if they have an interest, if they may be adversely affected by a judgment, or if they share a common question of law or fact. (ORCP 13.01(1))

Once again, it’s left up to the judge’s discretion: “…the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and may make such order as is just.” (ORCP 13.01(2))

In Quebec, the criteria for this are not as liberal as those in Ontario A party may intervene if they have an interest in the litigation, or if necessary to represent an incapable

party (CPC 208) Intervention can be “aggressive” (claiming rights) or “conservatory” (substituting, being joined with

or supporting one of the parties) (CPC 209) The parties have to be notified in advance and given a chance to object. if they object, court must

determine whether they can intervene (CPC 210)

In both provinces, a third party may ask to intervene, not as a party, but in order to shed light on some issue. Court must authorize the intervention (ORCP 13.02, CPC 211) (“amicus curiae” sometimes means this)

Recall also ALI/UNIDROIT P.12.2: Any person with a substantial relation to the object of litigation may intervene. The intervention may be authorized by the court unless it will excessively delay or complicate the procedure.

Donc: A c. B C

Permet à tiers qui a intérêt juridique dans objet du litige d’intervenir dans l’instance afin de faire valoir droit/ demande qui lui est propre relativement à cet objetÉvite d’avoir à intenter action distincte C c. A et de demander ensuite jonction avec A c. B.Ex. Alta Mura Construction Inc***À distinguer de l’intervention d’intérêt public

Alta Mura Construction Inc. C. Corporation d’hébergement du QuébecFacts Alta Mura is pursuing CHQ for fees owed for services. Jevco (insurance company) claims a right to

intervene (hypothèque consented in its favour by Alta Mura) in order to secure funds owed by Marcel Picard to Alta Mura. Alta Mura claims Jevco’s aggressive intervention (209 CPC) is too late (past three year prescription period) and thus irrecevable.

(1) Does Jevco have a sufficient and plausible interest in the object of litigation?(2) If so, can Jevco intervene despite the time that has passed (not answered)?

Ratio Interest must be direct and personal, founded in law, in the same interest as the principle litigation. Here, Jevco’s interest in Picard’s dues is directly related to Alta Mura’s interest.

ii) The special case of class actions

What It IsClass actions are procedures by which one person (le représentant) is authorized to act on behalf of a disorganized group of people who have similar interests against defendant(s).

what is special about class actions: the plaintiff acts without any express mandate (agit sans mandate) from the members of the

group, and the decision binds all of the members of the group.

This can be seen as another form of multiparty action, but it is also used as a mechanism of social justice (contrary to other mechanisms that we studied), with the goal of increasing access to justice.

Historical Evolution

62

Droit judiciaire – Prof. Frédéric BachandClass actions have gone through an evolution towards less strict criteria.

Previously, the evidence needed to be the same for all members of the class. o An individual distinction would bar the claim. o A claim was not possible if members of the group were linked by distinct contracts

Through modern legislation and judicial reinterpretation of old statutes (Western Canadian Shopping Centres), the bar has been lowered in the interests of access to justice.

Procedure The alternative to class actions would have to be through the criminal law. Otherwise, small violations of

the law could easily be ignored by large corporations that stood to gain from them. Class actions start with an authorization stage. (CPC 1002-1005)

Criteria for authorization: (CPC 1003)(a) “the recourses of the members raise identical, similar or related questions of law or fact.” (b) “the facts alleged seem to justify the conclusion sought”(c) “the composition of the group makes the application of article 59 or 67 [on joinder of parties] difficult or impracticable”(d) “the member to whom the court intends to ascribe the status of representative is in a position to represent the members adequately”

Quebec judges have accepted that CPC 1003 is imperative; once criteria are met, judge doesn’t have any discretionary power to reject action. (Malhab c. Metromedia) QueCA in _____ case said: plaintiff should get benefit of any doubt about authorization.

Doubt works in favour of plaintiff. If authorization in granted, the court will order the principal to give notice to members of the group (CPC

1005-1006) Opting-out mechanism for members of the group who don’t want to participate (CPC 1007)

o or for members of the group who are already suing individually (CPC 1008) Intervention mechanism for members who are particularly enthusiastic (CPC 1017)

Malhab c. Métromedia CMR Montréal et André Arthur (2003) QueCAFacts A radio talk show host made racist remarks about taxi drivers of Arab and Haitian ancestry in

Montreal. Malhab brought a class action for defamation on behalf of anyone who held a taxi permit and was a taxi driver on the island of Montreal and whose mother tongue was either Arabic or Kreyol.

The Court Rayle JA: At the authorization stage, there are two stages to the analysis under CPC 1003(b):

1. whether the claim appears to be serious (not frivolous)2. whether class action appears to be compatible with the claim

If these (and the other criteria under CPC 1003) are met, the judge must accept the action; no discretion to reject it.

In this case: The defamation had enough of a personal impact on each of the taxi drivers to give them a

cause of action. (Defendants ordered to pay each member of the group $950.) Although class actions weren’t really designed to be used for cases of defamation, there is

nothing in the law to prevent a group of plaintiffs from using them this way. Comments If they had gone to small claims court, fees would have been about $200 each (in principle, they

would have gotten this back if they won, but there’s always a risk that something would go wrong)

policy justifications for class actions: access to justice (especially in view of high costs of litigation); redressing imbalance between large, powerful interests (government, corporations) and diffuse, unorganized groups (e.g. consumers)

theoretical problems: seems like an exception to the relative nature of res judicata detracts from individual, private nature of law in civil matters

Diversity of Approaches to Class Actions

H.P. Glenn, “A propos de la maxime ‘nul ne plaide par procureur’” (1988) (CB1p311) *ADDITIONAL the defeat of the “class action” in the United States and Quebec: judges never really accepted class actions

because they seems too much like legislating. The modern US class action began with 1966 reform of Federal Rules of Procedure. Four elements:

1. certification stage, which verifies that63

Droit judiciaire – Prof. Frédéric Bachand2. defendants have common elements in their relationship with the plaintiff3. giving notice to group members and letting them opt out4. rendering a judgment that binds the entire group

Quebec class action was inspired by US, but some original aspects:1. state funding2. preliminary judicial authorization (which verifies that there’s a prima facie cause of action)3. rights asserted by group members need not be identical, just similar or connected

US courts chipped away at class actions, ruled that: plaintiffs couldn’t use total amount claimed to invoke jurisdiction of federal courts; jurisdiction based on

individual claims in class action. principal plaintiff couldn’t claim from defendant cost of notifying other members of class, had to bear this

burden him/herself The defeat of the class action is a return to basic principles. The more the commonality of the group is

presumed, the more the class action comes to resemble legislation (with the force of res judicata). To avoid this, judges allow an adversarial debate over the commonality v. particularity of the members of the group. Cases often gets bogged down in this.

The actual number of class actions has been very low and has been declining, both in Quebec and in the United States.

Common Law.Class actions have existed for centuries in common law, but they were not frequently used because there were very strict criteria:

common interest identical evidence for all members of group (this meant that it wouldn’t work if there was an

individual dimension to the injury) would not work if group members had individual contracts.

Therefore class actions were unavailable in situations where they were most needed. The strict interpretation was due to judicial conservatism; judges were not sympathetic to consumer

advocates, environmentalists In 20th century, modern class action arose: increased accessibility and availability.

Many common law jurisdictions (especially US) adopted laws around class actions. Quebec adopted class action law in 1978. (Soul-searching about whether this is really consistent

with civilian tradition.)

Civil Law. stereotypical response that this is an American abomination, but more and more civilian countries are

contemplating ways of incorporating class actions into their legal systems. as far as Bachand knows, Brazil is the only civilian country that has adopted common law-style class

actions.

Not all Canadian provinces adopted a modern form of class action, but if they didn’t have one, the SCC gave them one in the case of Western Canadian Shopping Centres v. Dutton (2001) SCC:

Alberta did not have a modern class action law on its books, so McLachlin CJC read one into its general traditional common law provision: “…class actions should be allowed to proceed under Alberta's Rule 42 where the following conditions are met: (1) the class is capable of clear definition; (2) there are issues of fact or law common to all class members; (3) success for one class member means success for all; and (4) the proposed representative adequately represents the interests of the class. If these conditions are met the court must also be satisfied, in the exercise of its discretion, that there are no countervailing considerations that outweigh the benefits of allowing the class action to proceed.”

McLachlin CJC noted three distinct advantages of the class action:1. judicial economy2. access to justice3. behaviour modification (i.e., deterrence)

we’re not going to study details of class actions, except for authorization mechanisms.

Ontario law on class actions 1992: s. 5(1) five criteria (applied in Hollick case):a) request must contain a cause of action b) must be able to define the affected group sufficiently precisely

64

Droit judiciaire – Prof. Frédéric Bachandc) parties must raise common issuesd) class action must be the best way of dealing with the common issuese) the fact that the plaintiffs’ interest has an individual element is not enough to defeat the litigation

Hollick v. Toronto (2001) SCC Facts Hollick brought a class action on behalf of 30,000 residents who lived near a landfill and suffered from

physical and noise pollution. The Court McLachlin CJC:

The Ontario Class Proceedings Act should be construed generously and on a principled basis. (para 14)

The certification stage is not meant to be an assessment of the merits of the action, just the form: “not whether the claim is likely to succeed, but whether the suit is appropriately prosecuted as a class action” (para.16)

The Ontario Class Proceedings Act only allows class actions if they are “the preferable procedure for the resolution of the common issues.” Whether a class action is “preferable” in a given case depends on the application of the three

criteria in Western Canadian Shopping Centres: (1) judicial economy, (2) access to justice, and (3) behaviour modification: Judicial economy: this argument doesn’t work because there are big differences among

the individual plaintiffs’ issues. The pollution wasn’t evenly distributed. This analysis must consider “importance of the common issues in relation to the claims as a whole.”

Access to justice: Nor can it be said that a class action facilitates access to justice. The City had established a small-claims trust fund which distributed damages of up to $5000 on a no-fault basis. So there was a good alternative (even though no one had used it!)

Deterrence: Nor can it be said that the class action would help change behaviour: environmental law provides much better ways of doing this.

Comments The SCC’s decision betrays a hesitation about allowing class actions. Bachand thinks that courts inevitably end up considering the substantive merits of the claim at the

preliminary stages. The need for “a rational connection between the class as defined and the asserted common issues” (para 19) is one example.

Bachand doesn’t buy the access to judgment argument. If you have a claim for $12,000, you would only be covered by the Trust Fund up to $5000, and suing individually could cost $60,000.)

SCC says that it doesn’t want to rule out class actions in environmental matters, but that seems to be what it’s doing. (more optimistic view: SCC only ruling out class actions where there was a statutory compensation scheme in place)

More discretion to deny a class action here than there was in Malhab.

Quebec’s class action mechanism is more or less like common law, but has some unique procedural aspects:

1. Asymmetrical right of appeal:

If a request for authorization is refused by Superior Court, applicant has automatic right to appeal to QueCA. But the defendant doesn’t have any corresponding power to appeal an authorization. (CPC 1010) Le recours collectif est le seul cas oû un droit d’appel unilatéral existe. Le Québec est aussi la seule province

où cela est fait. Pharmascience : Dans Pharmascience, on a tenté de contester la constitutionalité de cette mesure. On a fait

un argument de droit fondamental à l’équité procédural, mais la cour d’appel rejette cela dans un jugement relativement sommaire. Est-ce que l’argument était complètement voué à l’échec?

Qu’en penser? Cela favorise très clairement le demandeur. En droit substantiel, il n’est pas rare qu’une partie soit avantagée par rapport à une autre, donc on ne devrait

pas trop s’en préoccuper. Pour appuyer la thèse contraire, on pourrait dire que cela viole un principe non écrit de la procédure civile :

l’égalité entre les parties. Toute la procédure civile est organisée autour de l’idée d’un débat contradictoire entre les parties dans lequel le juge est détaché. Dans ce contexte, il y a un principe d’égalité des armes qui est non écrit mais néanmoins fondamental.

o Est-ce que l’on pourrait, à partir de l’article 23 de la Charte, inclure ou interpréter la garantie à un pro-cès équitable, comme étant aussi l’égalité des armes. En Europe, par exemple, cette idée est une

65

Droit judiciaire – Prof. Frédéric Bachandrègle fondamentale. La question à se poser est donc de savoir s’il est lieu de consacrer ce droit expli -citement?

o Peut être que l’on a envoyé un message qui est trop favorable aux recours collectifs. Il faut aussi faire attention de ne pas baser les règles de la procédure sur la prémisse que tous les recours

collectifs impliquent un quidam contre une méga entreprise. Ce n’est pas toujours le cas. Il faut également tenir compte des intérêts et du rôle que jouent les avocats dans ces recours collectifs. Dans

les faits, les avocats voient qu’il y a de l’argent à faire et qui encouragent les recours collectifs. Il est essentiel de créer un recours collectif important pour les avocats afin de que le recours collectif, ce qui permet des ré -munérations en fonction du gain, et ce qui donne lieu à des déraillement parfois.

2. Oral argument only:

At the authorization stage, the defendant can only use oral arguments to contest the authorization. The defendant can’t submit written arguments and can only present evidence if the judge allows it. This is a new rule since 2003. (CPC 1002) This is justified by the fact that otherwise, the defendant might try to use the preliminary stages to complicate

the bringing of a class action (which often happens in common law jurisdictions). Cette modification a eu comme effet de rendre exceptionnelle la présentation de preuve au stage de l’autori -

sation, quoi que le juge ait le pouvoir discrétionnaire de permettre aux parties de présenter des éléments de preuve.

Cela constitue un changement important au rôle du processus d’autorisation dans la mesure où le rôle du juge est de trancher la question de savoir si les conditions de 1003 sont remplies à la lecture seulement de l’acte introductif d’instance.

Cette modification visait principalement à éviter les déraillements de la procédure d’autorisation. Les parties défenderesses, qui ont souvent des ressources plus importantes, se sont servies de l’étape de l’autorisation pour faire des démonstration sur les faits, ce qui retarde et complique le débat sur le fond. En conséquence, les phases d’autorisation étaient devenues trop complexes et trop coûteuses.

Exemple   : La requête en autorisation de recours collectif contre les compagnies de tabac a été intentée en 1995 mais la décision n’a été rendue qu’en 2003, parce que les compagnies de tabac se sont appropriées la phase d’autorisation pour faire des démonstrations factuelles.

Cette démonstration a aussi été contestée constitutionnellement dans Pharmascience .On avançait qu’il y avait une atteinte illégitime et inacceptable aux règles de l’équité procédurale.

o Selon Bachand, cet argument est moins convaincant que le précédent. Il ne voit pas comment retirer à la partie demanderesse la possibilité de faire des preuves est inconstitutionnel.

o Il faut vraiment se demander quelle est l’utilité que les parties fassent des preuves à cette étape considérant que le rôle du juge n’est pas de se pencher sur le fond de l’action? A t’on vraiment be -soin d’une enquête factuelle pour déterminer si les recours soulèvent des questions de faits ou de droit communes?

o Là ou on peut se poser + de questions c’est par rapport à la question de savoir si le représentant est adéquat.

Pharmascience Inc. argues that the amendment to article 1002 C.C.P gravely weakens the role of the Superior Court and violates the principle whereby the claimant is required to prove the facts supporting its legal claims. The two versions of the provision follow:  

 Former provision Amended provision

A member cannot institute a class action except with the prior authorization of the court, obtained on a motion.  The motion states the facts giving rise thereto, indicates the nature of the recourses for which authorization is applied for, and describes the group on behalf of which the member intends to act; the allegations of the motion are sup-ported by an affidavit. It is accompanied with a notice of at least 10 days of the date of presentation and is served on the person against whom the applicant intends to exer-cise the class action.

A member cannot institute a class action except with the prior authorization of the court, obtained on a mo-tion. The motion states the facts giving rise thereto, indi-cates the nature of the recourses for which authoriza-tion is applied for, and describes the group on behalf of which the member intends to act. It is accompanied with a notice of at least 10 days of the date of presen-tation and is served on the person against whom the applicant intends to exercise the class action; the mo-tion may only be contested orally and the judge

66

Droit judiciaire – Prof. Frédéric Bachand

 may allow relevant evidence to be submitted.

Pharmascience Inc. c. Option ConsommateursFacts Generic drug manufacturers, including Pharmascience Inc., were providing pharmacists with

premiums, discounts, rebates and other benefits. Believing that the practice was unlawful and that it had the effect of raising the price of drugs sold to the Régie de l’assurance-maladie while simultaneously increasing the obligatory financial contribution of the users of the prescription drug insurance plan, Option Consommateurs named Pharmascience Inc. as defendants in a class action. Pharmascience and the other defendant pharmaceutical corporations argued:

(1) constitutional invalidity of article 1002 C.C.P, which deprived them of their right to a full defence at the authorization stage of the action (alleged violation of s.23 of the Charter of Rights: right to a hearing before an independent and impartial tribunal).

(2) Violation of the separation of powers, as the Superior Court lacked the jurisdiction ratione materiae to rule on the class action dealing with matters properly falling to the Minister of Health or the National Assembly

Ratio Constitutional ValidityThe judge, whose task it is to filter and verify, authorizes the action if the allegations of fact seem to justify the claim. In all cases, there is no need for evidence. Consequently, the claim that the applicant must submit to a type of preliminary investigation on the merits does not comply with CCP requirements. Consequently, removing the obligation to produce an affidavit and limiting examinations to those that have received judicial authorization results in a speedier and more flexible procedure without fundamentally modifying the Quebec class action regime.

There is also no weakening in the role of the judge; not only must he still be satisfied that there is a good colour of right in addition to the other conditions in article 1003 CCP, the law also confers on him the discretion to admit relevant and appropriate evidence in the context of the class action authorization proceedings.

Finally, the amendment to article 1002 C.C.P. fits perfectly within the new legislative regime created by the reform of the CCP, which has increased the courts’ powers of intervention in case management in order to guide the dispute toward the essential stages of inquiry and the hearing on the merits.

JurisdictionThe manufacturers included prohibited costs in their prices. Determining the value of these costs does not require arbitration on the basis of political considerations nor put in issue the appropriateness of a ministerial or governmental discretionary decision. On the contrary, it involves qualifying and evaluating the benefits granted to pharmacists in light of the specific wording of the Regulation, defining the resulting prejudice to the beneficiaries, and determining the causal link.

3. Financing of the proceedings:

La politique de favorisation des recours collectifs nécessite que l’on prenne des moyens pratiques pour encourager les gens à intenter des recours collectifs comme représentants. Ces moyens financiers doivent permettre aux représentants d’absorber le coût plus élevé de l’action collec-

tive. Si le citoyen trouve qu’il n’est pas dans son intérêt de financer une action individuelle, il ne trouvera pas qu’il a assez d’intérêt pour intenter une action collective qui risque d’être encore plus longue et plus coûteuse car elle risque d’être contestée avec encore plus de vigueur.

Une des solutions a été de permettre aux avocats eux-mêmes de financer la poursuite, en obtenant en échange un % du gain dans le cas d’un jugement favorable.

o C’est une solution qui est très répandue dans les juridictions de common law, notamment aux USA.o Le Québec a aussi adoptée cette mesure.

Une autre solution est de mettre sur pieds un fond public de financement des recours collectif.o il existe un tel fonds en Ontario mais il est très limité. Les honoraires des avocats sont exclus, et

puisque c’est une partie importante des frais à couvrir, le fond n’est pas très efficace.o Au Québec, vue la spécifié du recours collectif québécois, ce fond a une importance primordiale.

67

Droit judiciaire – Prof. Frédéric BachandQuebec government set up a Fonds d’aide aux recours collectifs when the original class action law was passed in 1978 (Loi sur le recours collectif)

about 2/3 of class actions in Quebec have received money from the fund, even class actions against the government (institutional independence) the fund pays court expenses as well as honoraria for lawyers

Quebec lawyers also use contingency fees: lawyers front the money and take a risk this is the US approach and in most common law provinces. if lawyers work on contingency fees, this may lead to conflicts of interest; lawyers may not work in the

interest of those who need their help most. In Quebec, the Loi sur les recours collectifs gives judges the power to control the fees of lawyers

who work on class actionsNB:

Critères de 1003 un peu moins stricts que ceux de la loi ontarienne (surtout 1003d); pas de pouvoir de réduire groupe défini de manière trop large)

L’apport important des tribunaux: pas de discrétion, dans le doute on autorise

Problems with the Class Action Approach Risk that members of the group are not well represented Problems of remuneration of members of group Collective justice and the judge’s discretion is only ‘approximative’ (see table below)

Michael Lewis, “Quebec class action law called unfair to defence” (2003) and Jean-Maurice Bouchard, “Le Québec devient le paradis des recours collectifs

Quebec defence lawyers don’t like the new class-action procedure rules because: loss of opportunity to contest authorization in writing loss of defendant’s right to pretrial discovery meeting with plaintiff seeking authorization limited opportunity to present evidence to contest authorization

Au-delà de ses nombreux avantages, le recours collectif soulève néanmoins de nombreux problèmes, dont trois qui sont particulièrement importants :

a) La représentation des intérêts des parties Le recours collectif présente toujours la crainte que les intérêts des membres ne soient pas bien représentés.

C’est pour remédier à ce risque que l’article 1017 permet à un membre d’intervenir volontairement dans une instance.

Corollairement, un membre peut « opt-out » tel que prévu à l’art. 1007 CPC. Dans ce cas, il n’est pas lié par la conclusion du recours et garde son droit d’intenter des procédures distinctes.

b) Les honoraires des avocats Toute possibilité de rémunération astronomique de l’avocat est susceptible de poser des problèmes qui pourraient affecter de manière indue les intérêts du groupe (Landry). Parfois, l’avocat va avoir un intérêt à agir plus dans son intérêt que pour celui des membres du groupe. Au Québec, on a réglé le problème par un mécanisme de contrôle des honoraires des avocats. Si la cour

a l’impression qu’il serait déraisonnable pour les avocats de toucher 25 ou 30% du montant accordé dans le jugement final, elle peut réviser ce %. Guidelines in Code de déontologie des avocats, 3.08.02

Le problème est plus important aux USA parce que le montant est dommages y est plus élevé, notamment en raison du rajout de dommages punitifs. Ce contrôle existe aussi en droit américain.

Ce contrôle des frais contingents est une manière adéquate de répondre aux problèmes de conflits d’inté -rêts. Le fait que l’on ait inclus ce mécanisme montre qu’on était conscients des problèmes qui pouvaient se poser.

Landry c. Syndicat du transport de MontrealFacts Landry is the representative for the “Group” of plaintiffs in class action suit against STM. Landry’s

lawyers and STM came up with an agreement whereby STM would give $925K, to be distributed in a manner that would be decided when the agreement was to be probated. A notice in the newspaper calling all concerned parties to take part in the allocation of money was published, but no one showed up other than Landry, and there were no complaints in re: the proposed distribution scheme, which allotted $277.5K (i.e., 30%) in legal fees to Landry’s lawyers.

(1) Is the agreement reasonable?

68

Droit judiciaire – Prof. Frédéric Bachand(2) If not, should the court intervene to modify the amount of legal fees?

Ratio Even if there is agreement between the parties, the court must find the agreement reasonable, equi-table and appropriate, in the best interest of the members of the group. The agreement as a whole is reasonable, equitable and in the best interests of the Group, benefiting approximately 330,000 people. However, the distribution is inadequate: the legal fees are too high and refixed to $225K. The lawyers would have made $142K at an hourly wage of $150 (standard for their level of experience). Rejected claims that they should get more legal fees due to (i) the result they obtained from negotiations; (ii) the risk that they ran if no success.

4.2 CCP: “les parties doivent s’assurer que les actes de procédure choisis sont, eu égard aux coûts et au temps exigés, proportionnés à la nature et à la finalité de la demande et à la complexité du litige; le juge doit faire de même à l’égard des actes de procédure qu’il autorise ou ordonne.

c) Idée de jugement collectif Différentes mesures sont mises à la disposition du juge en cas de succès d’une action collective= art 1028, et

1031 et suiv. Quand le tribunal conclue qu’effectivement le défendeur est responsable, il peut se passer deux choses :

Recouvrement collectif si preuve permet d’établir d’une « façon suffisamment exacte » montant total des réclamations (1031), sinon recouvrement individuel (1028/1031)

Si recouvrement collectif Soit dépôt au greffier de $ correspondant à resp.

totale de déf., soit mesure réparatrice dont valeur correspond à cette $

Si dépôt de $ au greffier, soit distribution individuelle (sur preuve d’appartenance au groupe), soit distribution de totalité de $ dans l’intérêt des membres

s’il y a reliquat après dist. indiv., sera distribué dans l’intérêt des membres et non pas remis au défendeur(s)…)

Si recouvrement individuel Procédure de 1037 et suiv. Applicable Il faut faire des procès additionnels pour établir

montant exact de réclamation de chacun ***donc $ que devra verser déf. limité à ce qui aura

été prouvé dans ces autres procès Néanmoins, 1039 donne pouvoirs spéciaux au juge

pour favoriser preuve du montant de chaque récl. indiv.

(1) La cour rend un jugement collectif

1031.  Le tribunal ordonne le recouvrement collectif si la preuve permet d'établir d'une façon suffisamment exacte le montant total des réclamations des membres; il détermine alors le montant dû par le débiteur même si l'identité de chacun des membres ou le montant exact de leur réclamation n'est pas établi.

Le juge au terme du procès doit se demander si la preuve versée par le représentant est suffisante pour lui permettre d’évaluer la responsabilité totale du défendeur. La preuve ne sera jamais parfaite, elle ne sera ja -mais aussi bonne que si le juge avait présidé un procès dans tous les cas individuels, mais sur une preuve générale, le juge devra statuer sur la responsabilité générale du défendeur.

Puisque le droit québécois est très favorable au recours collectif, on considère que le recouvrement collectif est la règle et non l’exception.

o Si le recours collectif a été autorisé, c’est parce qu’un premier juge a prévu qu’en bout de ligne un se-cond juge pourrait statuer de la responsabilité complète même en absence d’une preuve individuali-sée.

Une fois que la cour décide de rendre un jugement collectif, deux possibilités sont ouvertes à la cour   , aux termes de l’article 1032 CPC : le dépôt au greffe de la somme convenue ou l’exécution d’une mesure réparatrice. Donc, les règles de recours collectifs dérogent aux règles normales car la conclusion logique devrait être que

le montant soit réparti de manière équitable entre tous les membres du groupe. On crée toutefois une discré -tion quand il coûterait trop cher de mettre en branle un processus de distribution individuelle.

.Si le juge ordonne le dépôt d’une somme d’argent au greffe, deux choses peuvent se produire :

o Distribution individuelle (1037, 1039 CPC) C’est la démarche normale et la plus logique

69

Droit judiciaire – Prof. Frédéric Bachando Autre distribution (1034 CPC) : Si le juge estime que l’argent devrait être déposé au greffe mais

qu’il ne serait pas pratique ou trop coûteux de mettre en branle un processus de distribution indivi-duelle, il peut rendre une ordonnance par laquelle les sommes seront distribuées autrement.

Dans cette décision, le juge n’a qu’un pouvoir discrétionnaire relatif. Il doit tenir compte de l’intérêt des membres et donner aux parties l’opportunité de se faire entendre (1036 CPC).

Cependant, il peut arriver que le juge exerce sa discrétion d’une certaine manière au détri -ment de l’intérêt des membres. Beaucoup de juges québécois ont utilisé ces dispositions pour que le reliquat soit disposé d’une manière qui ne bénéficiait que de manière très indi-recte aux demandeurs, ce qui a été très critiqué.

Du point de vue des membres du groupe , il y a toujours le risque que la disposition du reliquat ne leur bé-néficie pas. Cependant, c’est en quelque sorte le prix à payer parce que les membres individuellement n’au-raient pas poursuivi en justice.

Du point de vue des défendeurs, le recours collectif est gênant car il ne permet que d’avoir une estimation de sa responsabilité.

o C’est pour cela qu’il y a des dispositions qui permettent au juge de refuser de statuer de manière col-lective et de rendre une ordonnance qui permettra la règlement individuel. Alors, chaque membre du groupe devra venir devant le tribunal pour prouver non seulement son appartenance au groupe mais aussi son droit.

o Dans ce cas, le recours collectif dans une certaine mesure échoue. La procédure aura seule-ment été collective sur les autres éléments; le justiciable devra intenter sa propre action. Cela est nécessaire si on ne veut pas permettre que trop d’erreur soient commises à l’égard de la respon-sabilité du défendeur.

o Le critère n’est pas très élevé : on accepte que la preuve ne soit pas aussi rigoureuse que dans une preuve individuelle.

Question : Qu’est ce qui arrive si la cour ordonne le dépôt du montant au greffe et que peu de gens se présentent? Le défendeur ne paye que ce qui est réclamé. L’ampleur de la responsabilité de la partie défenderesse dé -

pend totalement de l’initiative des membres du groupe. Mais si la cour procède en rendant un jugement collectif et que le juge dépose de l’argent ou greffe et pro-

cède à une procédure de distribution individuelle, la responsabilité n’est pas conditionnelle comme cela.

B. The pleadings (les principaux actes de procédure) Nous nous intéresserons surtout aux principaux actes de procédure que sont les écrits dans lesquels les parties exposent leurs prétentions et conclusions quant au fond du li-tige. Qu’en est-il des prétentions et conclusions des parties quant à des questions procé-durales, c.-à-d. des questions qui ne touchent pas au fond du litige (pensez à un débat incident sur l’existence du droit d’agir en justice de la partie demanderesse (art. 165, par. (2) et (3), art. 940.1 du C.p.c.), sur la compétence du tribunal saisi (art. 163 et 164 du C.p.c.), sur l’opportunité de séparer l’appel en garantie de l’action principale (R.p.c. Ont. : r. 29.09) ou encore sur la réunion d’instances distinctes (R.p.c. Ont. : r. 6)) ? Elles doivent/peuvent parfois être exposées par écrit. Elles le seront alors dans des requêtes ou contestations dites interlocutoires; il s’agit d’actes de procédure qu’on peut qualifier de secondaires, auxquels s’appliquent parfois certaines règles spécifiques (voir par ex. les art. 88, 151.5, 159 et 1002 du C.p.c.)

Au Canada, les principaux actes de procédures (en première instance) sont l’acte intro-ductif d’instance (déclaration ou statement of claim, requête introductive d’instance au Québec) et la défense; la partie demanderesse peut parfois donner suite à la défense dans une réponse (v., par ex., l’art. 182 du C.p.c. et les r. 25.01 et 25.08-25.09 des R.p.c. Ont.)

Here, we’re concerned with the writings in which the parties lay out their substantive claims. In common law Canada, the principal acts of procedure in first instance are the “statement of claim” and

“statement of defence.” (ORCP 25.01) In Quebec, the principal acts of procedure are the “motion to institute proceedings” (requête introductive de

l’instance) (CPC 111) and the defence (CPC 172ff) In some cases, the plaintiff is allowed or required to reply to the defence. (CPC 182, ORCP 25.08, 25.09)

70

Droit judiciaire – Prof. Frédéric Bachandi) The act introducing the proceedings

a. The content of the act introducing the proceedings

En apparence assez techniques, les règles relatives au contenu de l’acte introductif d’ins-tance ont en réalité des incidences importantes sur certaines questions fondamentales, no-tamment l’accessibilité du système judiciaire en matière civile. Comme c’est le cas dans de nombreux pays, les règles en vigueur à l’échelle canadienne requièrent que les allégations factuelles et les conclusions recherchées soient formulées de manière relativement précise : voir les art. 76, 111, 118, 119 et 168, al. 1, par. (7) et 168, al. 2 du C.p.c., les r. 25.06 et 25.10 des R.p.c. Ont., l’exemple de déclaration qui se trouve à la p. 167 du vol. 2 du recueil et le P. 11.3 des Principes ALI/UNIDROIT

In bringing the action, the plaintiff must present his/her claim in writing. This is for the benefit of: Equity : The defendant: will be informed of the substance of the claim to help prepare defense. Efficiency : This saves the court time, knowing what to prepare for.

Possibilité de faire valoir dans l’acte plusieurs causes d’action

As in many countries, Canadian procedural laws generally require that the factual allegations and orders sought be spelled out in detail (as opposed to summaries). This is a procedural hurdle which may make it harder for a plaintiff to bring an action.

Importance of the question and incidence of access to justice Specificity of American law on this question

In Quebec: the motion to introduce proceedings is “a concise written statement of the facts on which the action or

application is based and the conclusion sought.” (CPC 111) “If the object of the demand is certain and determinate property, in must be described in such a

manner as clearly to establish its identity.” (CPC 118) Notice is given to the defendant at the same time as the motion to institute proceedings; this notice

must spell out a whole bunch of procedural rights and obligations (CPC 119) the defendant has the right to ask that the lawsuit be stayed while the plaintiff clarifies any “vague or

ambiguous allegations” (CPC 168(7)) In Quebec’s Small Claims Court, “The statement of claim must set out the facts on which the action is

based, the nature and amount of the claim, the amount of the interest, and the conclusions sought.” (CPC 961)

In Ontario: “Every pleading shall contain a concise statement of the material facts on which the party relies for

the claim or defence, but not the evidence by which those facts are to be proved.” (ORCP 25.06(1)) lots of other rules under ORCP 25.06 concerning law that must be pleaded, conditions precedent,

documents or conversations, nature of act or condition of mind, claim for relief, etc. “Where a party demands particulars of an allegation in the pleading of an opposite party, and the

opposite party fails to supply them within seven days, the court may order particulars to be delivered within a specified time.” (ORCP 25.10)

Les règles en vigueur aux États-Unis sont différentes, surtout en ce qu’elles n’exigent pas de la partie demanderesse qu’elle énonce ses prétentions et conclusions avec autant de précision; cette particularité du droit judiciaire privé américain est d’ailleurs – dans une cer-taine mesure – à l’origine du litige ayant donné lieu à l’arrêt récent de la Cour suprême dans l’affaire Beals c. Saldanha (la plainte (complaint) en cause est reproduite dans la sec-tion « autres » du vol. II recueil; l’art. 8 des Federal Rules of Civil Procedure est reproduit dans le vol. I du recueil; voir aussi l’exemple d’une déclaration québécoise qui se trouve dans la section « autre » du vol. II du recueil) Quels sont les avantages et les désavan-tages de l’approche en vigueur aux États-Unis ? Posez-vous la question en vous plaçant du point de vue de la partie demanderesse, du point de vue de la partie défenderesse et du point de vue du juge (et de l’État). Devrait-on l’adopter ici ?

71

Droit judiciaire – Prof. Frédéric BachandUS approach is unique: “notice pleading”: generally more favourable to plaintiff. US FRCP 8(a) para 2 just requires “a short and plain statement of the claim.” no detailed elaboration of factual claims or conclusions.

US got rid of detailed pleading over the course of 20thc: access to justice issue: it was hard for a plaintiff to apply to bring an action if s/he didn’t have all the information/evidence.

It’s now possible for a plaintiff to bring a perfectly valid action on the basis of a suspicion, as long as it’s a suspicion that can be fairly easily investigated through the discovery process.

Beals c. Saldanha- Request to recognize and American judgment- Judge for more than a million dollars on a transaction of $8,000- Judge can refuse to acknowledge a judgment if procedure does not conform to Canadian principles of eq-

uity- The complaint alleged a request for more than $5k, on a deal of $8K, could not imagine a claim of over a

million dollars- Major:

o Even if the complaint was succinct, Saldanhas were sufficiently advisedo The US rules are not contrary to Canadian equityo Allegations of fraud, etc, reasonable to think that the claim would be more than $8,000

- Lebel (dissent)o This is contrary to Canadian rules of equity

- Bachand argues that although it was reasonable that the claim would be more than $8K, is it reasonable that it be $268K? Probably not.

Beals v. Saldanha is interesting because it shows the Canadian courts’ reaction to American pleading rules. The Beals’s pleadings didn’t state the amount they were claiming; they just stated that they claimed “damages in excess of $5,000.00” (this was required to establish the jurisdiction of the Florida Circuit Court). Defendants in Florida are expected to find out the amount of damages claimed through the discovery process. The Saldanhas had no idea tha they might be asked to pay $260,000 on a claim that began as $8000.

These rules on pleadings and discovery prompted the SCC to discuss the notion of natural justice and whether there was any requirement to notify someone of their potential liability.

ALI/UNIDROIT R12 (CB1p19-20) rejects the US approach. (see above) Plaintiff must include: facts, evidence, law (R12.1) “detail as to time, place, participants, and events” (R12.3) amount of money and other remedies sought (R12.5)

Edward H. Cooper, “Transnational Civil Procedure: Fact Pleading or Notice Pleading? A Viewpoint from the USA” (2001) The ALI/UNIDROIT Principles and Rules use “fact pleading” (detailed pleading) rather than the US FRCP

approach of simple “notice pleading.” “Notice pleading” is deliberately designed to diminish the role of pleadings. It is premised on the existence of

an extensive pre-trial process of disclosure of evidence (including examination on discovery), which is in turn linked to the common law notions of the unitary trial and the passive role of the judge (see Hazard article, CB2p135) as well as different standards of proof and of privacy in American law. It may make sense to modify pleading requirements under different conditions such as transnational arbitration.

One of the main reasons the US FRCP allowed “notice pleading” was as an access to justice issue: it makes it easier for the plaintiff to sue even if s/he doesn’t know the details of the facts. This is less important for ALI/UNIDROIT Principles and Rules because these only apply to sophisticated commercial parties who presumably have relatively equal knowledge of the facts

b. Uniting several causes of action in a single introductory act

Such rules exist everywhere: In Quebec: “Several causes of action may be joined in the same suit,” etc. (CPC 66) In Ontario: “A plaintiff or applicant may in the same proceeding join any claims the plaintiff or applicant

has against an opposite party.” (ORCP 5.01) court has broad discretion to separate, add, delete joined actions, etc. (ORCP 5.04, 5.05)

72

Droit judiciaire – Prof. Frédéric Bachandii) The defence

In Quebec: defendant can bring a cross-demand (demande reconventionelle) against plaintiff, if it arises from the same source (172, al.2 CPC). Recall difficulties to contest by written statement the merits of the action.

In Ontario: less restrictive approach: no requirement of same source, etc: just delegating power to judge to decide whether it’s relevant:

counterclaims (against plaintiff) (ORCP 27) crossclaims (against another defendant) (ORCP 28) cross-claims, counter-claims much harder in civil law than in common law

Can’t claim against third party who isn’t party to the action Bachand isn’t crazy about the civil law’s search for conceptual clarity; he’d be happier to leave this up to the judge as in common law.

Possibilité pour le déf. de répondre par écrit à l’acte introductif d’instance est largement reconnu **Au Québec, on l’a récemment limitée dans certains types d’actions (efficacité, réduction des coûts):

175.2 Cpc, sauf accord des parties/autorisation du juge (175.3) Constat d’échec : « L’étude statistique des dossiers de la Cour supérieure et de la Cour du Québec a

permis de constater que le fait de laisser plus de place à l’oralité ne s’est pas concrétisé dans la pratique. De fait, les parties ont privilégié l’écrit, même dans les matières ou l’oralité fonctionnait très bien » (Rapport de 2006 sur la réforme)

Possibilité pour le déf. de faire valoir, dans sa défense, des réclamations qui présentent une certain connexité avec réclamation du dem.

Largement reconnue et acceptée au niveau du principe Pas toujours aussi étendue d’un ressort à l’autre; ex. au Qc, marge de manoeuvre du déf. plus limitée

qu’en Ont. Peut seulement faire valoir récl. contre dem. (sauf évidemment cas de l’appel en garantie); Ontario:

possible contre tiers ou codéfendeur) « Même source/source connexe », quoique interprété très libéralement aujourd’hui

iii) La signification ou notification des actes de procédureTout acte de procédure doit avoir été porté à la connaissance de la partie ad-verse, d’où cette catégorie de règles fondamentales que l’on retrouve dans tout système et qui ont trait à la signification (ou notification) des actes de procédure. Évidemment nécessaire afin d’assurer respect des règles de justice natu-relle/règles fondamentales de toute procédure juste et équitable.

a. La signification/notification sur le territoire du for

Quebec CPC 110.1 : Peremptory time limit of 180 days after service of the motion for oral contestations for

hearing or proof of scheduling. The court may extend the time limit if warranted, or may relieve a party from consequences of failure to act within time limit if it was impossible to do so.

CPC 119.2ff: Service (signification)o By a sherriff or bailiff (120 CPC); or by any person of legal age or by registered or certified mail if

no sheriff or bailiff within 50 kms (122). Places not allowed to serve (125).o Leave a copy of proceeding; made be personal service or domiciliary service or at business

establishment if domicile unknown (123)o Copy must be certified by the party or his attorney (124)o Refusal (125)o A proceeding addressed to several parties must be served upon each of them separately (128)o Rules for services served against specific parties: partnership (129), legal person (130), joint

stock company (132), trustee (132.1), heirs (133), navigator (134), persons in prison (135), incapacity (135.1), party in another province (137)

o When service may be made (141-143)o Proof of service (144-146.0.2)

CPC 146.1-146.3: Notification73

Droit judiciaire – Prof. Frédéric Bachand

Ontario RPC Ont. r16 :

General rules (16.01) Personal service (16.02) Other modes of direct service (16.03) Indirect service by a tribunal (16.04) Service to an attorney (16.05)

Mail service (16.06) Non-reception (16.07) Validation (16.08) Proof (16.09)

b. La signification/notification de l’acte introductif d’instance à l’étrangerQuebec: Public notice (138-139);

Notice by mail (140-141)Ontario: RPC Ont. R. 17.03-17.05

iv) L’amendement des actes de procédureDroit d’amender largement reconnu; autorisation de la cour parfois nécessaireQuebec

At any time before judgment, parties may amend pleadings without resulting in a new ac-tion: To modify correct or complete allegations or conclusions, to invoke new facts or to as-sert a right accrued (199)

Must notify other parties and file a copy at the office of the court. 10 days response time. If no opposition filed, amended pleading is accepted (200)

Discretions of the court (204-205)

Ontario Can be authorized by court (26.01) Can be done without authorization in certain

circumstances (26.02) Procedure (26.03)

Service to each party and proof required (26.04)

Response within longest of 10 days or amount of time allotted (26.05

74

C. Provisional or conservatory measures All Western legal systems have these mechanisms; not all use these terms; “provisoires” and “con-

servatoires” are the terms used in transnational doctrine there are also provisional/conservatory measures in arbitration, even international disputes (ICJ)

i) Nature and specifics of provisional or conservatory measures These are procedural mechanisms; important to distinguish them from real judgments. These mechanisms act by modifying a state of fact in order to protect:

the court’s ability to render a judgment on the merits the effectiveness/enforceability of the court’s decision

e.g. “saisie conservatoire”: if there’s reason to believe that defendant might damage property to make it useless to the plaintiff: the court can issue a preliminary order allowing the plaintiff to seize the property; freezes the property for the course of the proceedings.

these measures are therefore focused on the “effectiveness” of civil procedure (one of three prin-ciples, along with procedural justice and equity)

These measures are usually used to support traditional court proceedings within a territory. however, they can also support:

arbitration (CPC 940.4) Plaintiff would have a choice of whether to go to arbitrator about this, but would only

really be enforceable if went to judge. justification for this is state policy support for effectiveness of arbitration

Proceedings in another country: “A Québec authority may order provisional or conserva-tory measures even if it has no jurisdiction over the merits of the dispute.” (CCQ 3138) this is justified by principle of “courtoisie” toward other legal systems

This is a modern trend; judges don’t have such powers in all jurisdictions. Issues particular to Quebec and Canada:

in MacMillan Bloedel, SCC held that injunctions were among inherent powers of Superior Courts This may mean that it would be ultra vires for Quebec to give injunctive powers to the Court

of Quebec. In Quebec, there’s an opportunity for legal creativity (despite what Lebel said about codification in

Lac d’Amiante): judges have power to “issue orders to safeguard the rights of the parties, for such time and on such conditions as they may determine.” They can also “issue injunctions…and make such orders as are appropriate to deal with cases for which no specific remedy is provided by law” (CPC 46) There is therefore probably no numerus clausus of provisional or conservatory measures in Quebec.

UNIDROIT Principles (P.8) 8. Provisional Measures8.1 The court may grant provisional relief when necessary to preserve the opportunity to granteffective relief by final judgment. The extent of the remedy is governed by the principle ofproportionality. An injunction may require disclosure of assets wherever located.8.2 A court may order provisional relief without notice only upon the applicant’s disclosure of allfacts and circumstances of which the court properly should be aware. A person against whom ex parterelief is directed must have the opportunity at the earliest practicable time to respond concerning theappropriateness of the relief.8.3 An applicant for provisional relief should be liable for full indemnification of a person againstwhom the relief is issued if, upon subsequent reconsideration with participation of other parties, thecourt determines that the relief should not have been granted. The court may require the applicantfor provisional relief to post a bond or formally to assume a duty of indemnification.

ii) Typology of provisional or conservatory measures A) Measures designed to avoid irreparable harm to rights in dispute1. Interlocutory injunctions (See Cpc 751ff)

In exceptional circumstances, an interlocutory injunction allows the plaintiff to get his/her right en-forced on a temporary basis, without even having established its merits. This seems like a theoretical anomaly, but it’s possible in every system. in exceptional circumstances, a judgment rendered on a case months or years later will not be

able to protect the plaintiff’s rights, if: defendant is infringing on plaintiff’s rights, and this infringement is continuing or there is a risk

that it will continue the plaintiff’s interest in effectively stopping an infringement of his rights outweighs the defen-

dant’s interest in having his rights unrestricted The leading case on interlocutory injunctions in Charter cases is RJR-MacDonald v. Canada. This

case restated the criteria for interlocutory injunctions, taken from the Metropolitan Stores case: ap-plicable across Canada

RJR-MacDonald v. Canada (1994) SCCFacts Tobacco corporation sought to suspend entry into force of federal cigarette labelling

legislation while constitutional challenge pending. The Court Sopinka and Cory JJ:

requirements for an interlocutory injunction (taken from the Metropolitan Stores case):1. “serious question to be tried”

all this means is that the case is neither vexatious nor frivolous higher standard in a Charter claim: “strong prima facie case”

2. irreparable harm will result if interlocutory injunction not granted: This refers to the nature of the harm, not the magnitude. It includes:

harm that can’t be quantified in monetary terms (e.g., if a company will go out of business, if natural resources will be permanently destroyed, if a company’s reputation will be permanently harmed)

harm that the defendant wouldn’t be able to remedy (usually because the plaintiff would not be able to collect damages, because the defendant is insol-vent) this is granted less frequently in practice

3. Balance of inconveniences: which party would suffer greater harm if injunction granted or not granted?

burden is on plaintiff: if the defendant would suffer just as great an inconvenience from the injunction as the plaintiff would suffer without one, the court will not issue an injunction.

maintenance of the status quo is not valued as highly in Charter cases. Comments Judges tend to interpret these criteria very flexibly; it’s not necessary to find precedent

that fits your case exactly. this shows that effectiveness is not the only criterion courts have said that they will skip step 3 if steps 1 and 2 are really strong; if a court

does this, the litigation usually ends there (defendant will get the message)

With regard to the “irreparable harm” requirement, cf. the case of Varnet UK v. Varnet Software (1994) QueCA (WebCT): A Quebec software company had a contract with a UK distributor, but ter-minated its contract. The UK company sued the Quebec company and sought an injunction to main-tain the contractual status quo while the case was heard. Although the UK company would certainly go out of business in the meantime, Baudouin J held that this did not qualify as “irreparable harm” (under the Metropolitan Stores test): it could be compensated by an award of damages.

Varnet UK v. Varnet Software (1994) QueCA Facts Above.Baudouin Conditions upon which injunctive relief can be granted: a clear and apparent right to

the remedy; a prejudice that the final judgment will not be able to remedy; a balance of inconvenience favouring the petitioner.

Orders must be enforceable—not too general or wide. They are fine in this case.

To obtain injunctive relief, petitioner must show it has a prima facie a right to the remedy (Favre v. Hôpital Notre-Dame, [1984] (C.A.); Brasserie Labatt Ltée v. Ville de Montréal, [1987]; and Metropolitan Stores (1987) SCC).

Justice Owen in Société de développement de la Baie James v. Kanatewat, [1975], very clearly set out the different questions that the Court must examine at the interlocutory stage as to the criteria of appearance of right: At the interlocutory in-junction stage these rights are apparently either (a) clear, or (b) doubtful, or (c) non-existent.

(a) If it appears clear, at the interlocutory stage that the Petitioners have the rights which they invoke then the interlocutory injunction should be granted if considered neces-sary in accordance 752 (2) C.P..

(b) If they appear doubtful then the Court should consider the balance of convenience and inconvenience in deciding whether an interlocutory injunction should be granted.

(c) If they appear non-existent then the interlocutory injunction should be refused.

In Quebec, interlocutory injunctions can be granted “when the applicant appears to be entitled to it and it is considered to be necessary in order to avoid serious or irreparable injury to him, or a factual or legal situation of such a nature as to render the final judgment ineffectual” (CPC 752al2)

however, the criterion of “serious or irreparable injury” has been read down to just “irrepara - ble,” following RJR-MacDonald.

the applicant must give security for the potential harm caused by an interlocutory injunction. (CPC 755)

Once again, Ontario has vaguer and more discretionary rules: An interlocutory order can be granted “where it appears to a judge of the court to be just or con-

venient to do so” (OCJA 101(1)) and it can include “such terms as are considered just.” (OCJA 101(2)).

There are special rules for labour injunctions (OCJA 102) One can get an interlocutory injunction without giving notice for up to ten days; the other party

must be notified if you want to extend it. (ORCP 40.02) the moving party must provide an undertaking to pay damages if it ends up that they should

(ORCP 40.03)

Z.I. Pompey Industries c. ECU-Line (Some paragraphs) Facts See earlier in Summary.The Court The tripartite test for interlocutory injunctions is an inappropriate test for a stay of

proceedings to enforce a forum selection clause in a bill of lading.  First, the tripartite test would render most forum selection clauses unenforceable, creating commercial uncertainty by unduly minimizing the importance of contractual undertakings.  Second, the tripartite test is also problematic because the first part of the test requires the court to evaluate the likelihood of success on the merits of the case — which would be impossible because there is normally no determination on the merits.  Finally, the tripartite test would make it difficult to establish irreparable harm in the context of a stay application based on a forum selection clause.

2. Measures used to preserve evidence, including Anton Piller orders: The possibility that one party might destroy evidence or render it inaccessible threatens the court’s ju-

risdictional power. All modern Western legal systems have mechanisms allowing the court to inter-vene to preserve evidence when necessary.

In Quebec: normal provisions:

After the defence is filed, but before the trial, the court can order one of the parties or a third party to exhibit, preserve, or submit for appraisal any relevant evidence s/he has in her/his possession. (CPC 402al2)

At any stage of the proceedings, parties or court may decide to interview a witness out of court. This is sometimes used because the witness might not be available later. (CPC 404)

A more unusual provision: parties can move to have evidence preserved even before any pro-ceedings are instituted (CPC 438): “Anyone who, expecting to be a party to a legal proceeding, has reason to fear that some evi-

dence that he will need may become lost or more difficult to present, may, by motion, ask:“(a) that the witnesses whose absence or incapacity he fears be heard before the hearing;“(b) that anything movable or immovable, the condition of which may affect the outcome of the expected legal proceeding, be examined by a person of his choice.” (CPC 438).

This provision is usually used by potential plaintiffs. However, judges interpret it strictly. They tend to point out that the potential plaintiff

should just sue and use CPC 402al2 and 404, rather than compelling persons who are not formally sued to do something.

One example where it was allowed was in the case of Compagnie d’Assurances Mis-sisquoi c. Caribou Caraïbes (2000) QueSC. A fire burned down Caribou Caraibes’ building and damaged the neighbouring building which was insured by Missisquoi. Mis-sisquoi’s expert determined that the fire probably originated in the Caribou building, and wanted to search the ruins for evidence to be sure. Caribou didn’t want to allow the search, wanted to clear away the rubble. Missisquoi sought and obtained an order under CPC 438 to prevent Caribou from clearing the rubble. It was way too early for Missisquoi to know whether it would decide to sue Caribou.

It can also be used by someone who anticipates being a defendant, but this is rare. However, it’s easier for a potential defendant to invoke 438 than for a potential plaintiff,

because no need to prove inapplicability of 402 and 404. (See Cpc 438ff) CPC 438 is taken directly from French NCPC 145. This is a good example of civil law influ-

ence on CPC. but similar provisions exist in English civil procedure, in Federal Courts Act.

But note: must give advance notice to other party (CPC 441) Ontario has equivalents for the normal CPC rules (but not for CPC 438)

the court can order the inspection of real or personal property when it’s necessary to determine an issue in dispute (ORCP 32)

the court can issue an interim order for the preservation of “property” (includes property to be used as evidence) (ORCP 45)

Anton Piller order: this is a common law injunction allowing the plaintiff to search the defendant’s premises and seize evidence, without even giving the defendant notice of the action. It is addressed to the defendant in personam, saying that if the defendant does anything to stop

the plaintiff from entering and searching, s/he will be held in contempt of court. It has been called the “nuclear weapon of civil procedure.” This is mainly needed in matters of intellectual property (counterfeiting of brand-name goods): be-

cause of risk that defendant, served with notice, could quickly dispose of all the evidence and make it more difficult to obtain.

Before issuing an Anton Piller order, the judge will require the moving party to demonstrate:1. “extremely strong prima facie case” 2. that the plaintiff will suffer an extremely strong prejudice if the order isn’t given (e.g., impossibility of proving claim)3. that the defendant possesses highly pertinent evidence, and that there’s a risk that the defendant would dispose of the evidence

Before Raymond Chabot SST c. Groupe AST, Anton Piller orders were not thought to be avail-able in Quebec. The availability of the Anton Piller in the Federal Court system was then one of the main reasons litigants might have chosen to use Federal Courts. (Remember that there is concurrent federal and provincial jurisdiction in IP matters.)

Raymond Chabot SST c. Groupe AST (2002) QueCAFacts Former employees of Groupe AST had taken lots of documents (unfair competition)

and used them to start their own company (Chabot SST). Groupe AST applied ex parte for an order preventing Chabot SST from disposing of these documents and al-lowing Groupe AST access to all of Chabot SST’s files: basically, an Anton Piller or-

der. The Superior Court granted this. Chabot SST appealed, arguing that Anton Piller orders were unavailable in Quebec because they were not in the CPC. (They also ar-gued that these orders infringed on privacy rights in the Quebec Charter.)

The Court The order that Groupe AST asked for is basically an Anton Piller order. Although there is no express provision for such an order in the CPC, it can be inferred from CPC 20 (any proceeding may be adopted which is not inconsistent) and CPC 46 (courts’ pow-ers to exercise their jurisdiction).

Comments This case demonstrates that Lac d’Amiante doesn’t absolutely forbid judges from exer-cising new powers; list is not totally closed; but Lac d’Amiante still means that we have to look to the provisions of the Code and see how things fit into this before going ahead and creating new powers; not a free-for all.

FB thinks it’s good that the QueCA didn’t stretch interlocutory injunction rules to cover this situation: That would have created conceptual confusion. An interlocutory injunc-tion allows plaintiff to get the right she is asking for, provisionally. Anton Piller order just protects evidence.

Federal Rules of Civil Procedure (r. 27)

Celanese Canada Inc. c. Murray demolition Corp (2006)Facts Celanese got an ex parte Anton Pillar motion that was overseen by an indepen-

dent lawyer. The computer information was not properly documented and was ac-cidentally passed on to their lawyers.   Canadian Bearings then brought this mo-tion to disqualify Celanese’s council from continuing to act for Celanese, but this was dismissed by the motions judge. 

The Divisional Court allowed Canadian Bearings’ appeal and ordered that Celanese’s council be removed.  The Court of Appeal set aside that decision, find-ing that neither of the courts below had applied the correct test for removal.  In its view, Canadian Bearings bore the onus of demonstrating that there is a real risk that opposing counsel will use information obtained from privileged documents to the prejudice of Canadian Bearings and that such prejudice cannot realistically be overcome by a remedy short of disqualification.  The matter was therefore remitted back to the motions judge for further consideration.

Held The appeal should be allowed. The plaintiff did not meet the onus of proving that the information was not used inappropriately. He can no longer use the same council as the extent of knowledge is not known.

The Court Binnie (McLachlin, Bastarache, LeBel, Deschamps, Fish, and Charron concurring) This dispute presents a clash between two competing values — solicitor-client

privilege and the right of a party to select counsel of choice.  The principal source of the present difficulty lies in the post-search conduct of

Celanese’s solicitors.  Having created the problem, it should bear the burden of re-solving it. [para. 51] Difficulties of proof compounded by errors in the conduct of the search and its aftermath should fall on the heads of those responsible for the search, not of the party being searched.  The onus was not met by the searching party in this case.  [41-51] [55]

The protection of the party against which an Anton Piller order is issued ought to be threefold:   (1)   a carefully drawn order which identifies the material to be seized and sets out safeguards to deal, amongst other things, with privileged documents; (2)   a vigilant court - appointed supervising solicitor who is independent of the par - ties; and (3)   a sense of responsible self - restraint on the part of those executing the order. [para 31]

Their problem stems from carelessness and an excessively adversarial approach in circumstances that called for careful restraint in recognition of the exceptional position of responsibility imposed by the unilateral and intrusive nature of an Anton Piller order.  Remedial action in cases such as this is intended to be curative not punitive.  [34] [52-54]

The right of a plaintiff to continue to be represented by counsel of its choice is an important element of our adversarial system of litigation.  In modern commercial lit-igation, mountains of paper are sometimes exchanged.  Mistakes will be made.  There is no such thing, in these circumstances, as automatic disqualification.  If a remedy short of removing the searching solicitors will cure the problem, it should be considered.  In this respect, a number of factors should be taken into ac-count:  (i) how the documents came into the possession of the plaintiff or its coun-sel; (ii) what the plaintiff and its counsel did upon recognition that the documents were potentially subject to solicitor-client privilege; (iii) the extent of review made of the privileged documents; (iv) the contents of the solicitor-client communications and the degree to which they are prejudicial; (v) the stage of the litigation; (vi) the potential effectiveness of a firewall or other precautionary steps to avoid mis-chief.  [56-59]

3. Measures aimed at preserving disputed property judges have the power to order the conservation of property in dispute. There’s really no theoretical

problem with this—it’s justified in terms of preserving the effectiveness of the court’s jurisdiction. In Quebec:

judicial sequestration: judges can order property to be put in the hands of a neutral third party who they could choose “sequestrator” (CPC 742ff) criteria are similar to those for interlocutory injunction:

prima facie case risk of irreparable harm (Quebec judges concentrate on this)

goal is similar to that of interlocutory injunction: protecting the court’s jurisdictional power. This is based on the model of contractual sequestrations (CCQ 2305) This is used much less often than interlocutory injunctions

In Ontario: under an interlocutory injunction, one can have a “receiver” appointed for disputed property

(ORCP 41)—this is pretty similar to Quebec rules on sequestration. a plaintiff can also get an order to “recover” personal property from the defendant while an action

is pending. In this case it doesn’t go to a “receiver”: the plaintiff gets to keep it until the action is decided. (ORCP 44) a plaintiff can even get authorization to do this without notice, if “there is reason to believe

that the defendant may improperly attempt to prevent recovery of possession of the property” or “for any other sufficient reason” (ORCP 44.01(2))

Ontario judges seem to be mostly concerned with the merits of the plaintiff’s claim; they will award such orders if the plaintiff has a strong prima facie case, “substantial grounds.” Bachand doesn’t like this: If we are really interested in trying to protect the jurisdiction of courts, the real question should be whether there’s a risk of irreparable harm to the property in dispute; the merits of the claim (as long as it’s not frivolous or vexatious) shouldn’t be that important. Door seems open to other considerations too, but “substantial grounds” is the classic crite-

rion. there are also rules which allow the defendant to challenge this and reclaim property. (OCJA 104) OCJA 101: ORCP 45:

In Quebec (Cpc 734 and 735ff): saisie-revendication (this is one kind of “seizure before judgment”) (CPC 734al1):

a plaintiff can obtain a writ from a clerk of court (no judicial authorization necessary) to get a bailiff to seize property without giving notice to the defendants. (CPC 735) therefore potentially a serious interference with defendant’s affairs, without any assess -

ment of either (a) the merits of the claim or (b) whether there is a risk of loss. Bachand finds this absurd: seems like a presumption of bad faith (contradicts CCQ 2805?); seems like taking the law into one’s own hands

the purpose of saisie-revendication (and other “seizure before judgment”) is to put the prop-erty in “in the hands of justice pending suit”: it is entrusted to a guardian. (CPC 737)

defendant has only five days following the seizure to challenge it. criteria: (CPC 738)

insufficiency of allegations falsity of allegations

burden is on seizing party to justify seizure. Note that the court only assesses the merits of the plaintiff’s claim (in terms of sufficiency

and veracity—i.e., whether there’s a prima facie case). There’s no assessment of the ne-cessity of seizure (i.e., risk of loss or damage).

Bachand thinks that these proceedures are way too easy, not enough safeguards .

Saisie-revendication of Art. Cpc 734:

Theberge c. Galerie d’Art [2002] (para 76ff & 101ff) 2 S.C.R. 336Facts The respondent painter claims that an art gallery (appellant) violated his copyright. The

respondent applied for an injunction, accounting, and damages against the appellants in the Quebec Superior Court.  He also obtained a writ of seizure before judgment, under art. 735 of the Code of Civil Procedure (“C.C.P.”), with respect to all of the canvas-backed reproductions embodying his works, claiming to have a deemed right of ownership in those items under s. 38(1) of the Copyright Act.  The appellants applied to have the seizure quashed.  The Court of Appeal, finding that there had been infringement, set aside that decision of the Superior Court and upheld the seizure before judgment.

Held The appeal should be allowed.  The order of the motions judge setting aside the seizure and ordering that the seized goods be returned to the appellants should be restored.

Majority McLachlin C.J. and Iacobucci, Major and Binnie Moral rights act as a continuing restraint on what purchasers can do with a work

once it passes from the author, but respect must be given to the limitations that are an essential part of the moral rights created by Parliament.  Economic rights should not be read so broadly that they cover the same ground as the moral rights, making inoperative the limits Parliament has imposed on moral rights. In this case, the respondent is asserting a moral right in the guise of an economic right, and the attempt should be rejected. 

Because s. 38 of the Copyright Act was not infringed, he had no right to art. 734 C.C.P.  An art. 734 seizure before judgment is not available to an artist or author who relies on the alleged infringement of a moral right. 

Quoted Gonthier (as he was then) in Thériault v. Succession de Rémi Thériault, [1977] C.S. 1120, at p. 1121: [translation] It is moreover settled law that seizure before judgment is a draconian procedure and is an exception to the ordinary rules of law, and that a person who uses that procedure must comply strictly with the rules set out in the CCP.

Dissent Gonthier J. L’Heureux-Dubé, Gonthier and LeBel The appellants had engaged in infringement and the respondent was entitled to

seize the canvas-backed reproductions under art. 734(1) C.C.P. and s. 38(1) of the Copyright Act.

(108) seizure before judgment does not, strictly speaking, call for a determination of the merits of the case. That is in fact why the affidavit in support of the applica-tion for a writ need only set out sufficient supporting facts, and those facts must be accepted by the judge who hears the motion to quash under art. 738 C.C.P.

Tri-Tex Co. c. Gideon (1999) (C.A.)Facts Tri-Tex, alleging a right of ownership of stolen secret cleaning formula, got a Writ of

seizure before judgment (734(1) CCP). He wanted the chemical secret as well as their client list seized. Gideon filed a motion to squash under 738 CCP. They claim that they seized information that contains confidential information about their company. Two appeals from an interlocutory judgment of the Superior Court. One appeal is by the seizing party who claims that part of its seizure should not have been quashed. The other appeal is by the seized party who claims that the seizure should have been quashed in its entirety and that the judge in first instance should not have ordered the taking of an

inventory.Nuss J.A. The trial judge correctly states that in matters putting into question the sufficiency

of an affidavit on the strength of which a writ of seizure before judgment issues, all the allegations contained therein must be held to be true.

It is a fundamental rule of copyright law that there can be no copyright in ideas or information. This principle was clearly stated and applied in Moreau v. St-Vincent (1950). The Tri-Tex chemical formulae are ideas and as such are not subject to copyright. They might be trade secrets, tough, they are still not protected by the act. They did not have the right so seize.

Is confidential information "moveable property" that can be seized before judgment pursuant to article 734(1) C.C.P.? There is a lot of discussion around it, but Tri-tex has failed to prove that it is.

Both parties pay their own costs because of the novelty of the case.

Provisional measures:

L. Sarna “Aspects of the Law of Judicial Sequestration in Quebec” MLJ, 1977 Definition: The recourse in judicial sequestration is an interlocutory and conservatory proceeding

which seeks to place into the hands of a third party property or proprietary rights directly or indi-rectly affected by the principle litigation. This interim remedy is often associated with seizure before judgment and is frequently mistaken for a proceeding under bankruptcy legislation.

To get an order you must establish a prima facie right which would be irreparably prejudiced, that other recourses, like injunctions, are inappropriate under the circumstances, and allege gross or fraudulent mismanagement of property.

743 and 746 CCP: the sequestrator cannot be one of the parties to the litigation. 748 CCP: the sequestrator decides the final date of his function. This is used to give him time to

put things in order—he must, though, have a reason to delay. He may also have to pay for the cost of delivery himself (478 CCP).

745 CCP: sequestrator has access to the courts for authorization of acts beyond administration. The author thinks this is a bad thing because it means the court is giving legal advise (?). While courts normally abstain from this, this is an exceptional case.

It can’t be a corporation (365 CCBC = CCQ?). This happens all the time in reality though as they most often have the resources to properly manage the property.

The sequestrator must: not have conflicts of interest; physically and mentally capable; and a record of competence.

The parties are responsible for the order of sequestration as well as appointing the sequestrator. 750 CCP: they are also responsible for costs.

Clark Door of Canada Ltd. v. Inline Fiberglass Ltd. (1996)Facts Replevin for dies in possession of an old associate.HeldMolloy J.

The substantial grounds test was not as high as that for summary judgment but higher than the substantial issue test for interlocutory injunctions. It required a high degree of assurance that the plaintiff would succeed at trial. Here there was little evidence to support the defendant's assertion that the moving party was not entitled to possession of the dies and the credibility of that evidence was seriously in question. The balance of convenience also favoured the moving party. The moving party was granted possession and enjoined from showing the dies to others, communicating information about them to anyone or using them, and required to post $150,000 security for costs.

Comments The classic statement of the test to be applied before making an interim recovery order is that propounded by the Senior Master in Ryder Truck Rental Ltd. v. Walker [1960] a case involving the disputed ownership of 20 trucks under the Replevin Act R.S.O. 1950, c. 339, s. 2 and Rules 359 and 360 (the precursors of the current legislation and Rules set out above). The Senior Master ruled:

The first matter for consideration is the scope of the enquiry under Rules 359-60. Having regard to the nature of the relief obtainable in a replevin action, which

allows a preliminary taking of possession before trial, in my view it is not contemplated that the Court at this stage should embark upon a trial of the issues raised but only require the plaintiff to show the facts upon which it bases its claim, and if these facts afford substantial grounds for the plaintiffs claim, then the order should be granted. ...

Therefore, in my opinion the enquiry is limited to determining whether there are substantial grounds for the plaintiffs allegations, which if proved, bring the case within the statute.

(para. 17) I accept the submission that the plaintiff must satisfy all of the elements listed in Rule 44.01(1). In particular, it is not enough for the plaintiff to prove ownership or lawful entitlement to possession (as required by Rule 44.01(1)(c)). The plaintiff must also show that the property was "unlawfully taken" or is "unlawfully detained" (Rule 44.01(1)(d)).

Substantial grounds test requires: Obviously since the order is only for interim recovery pending trial, the degree of proof is less than would be required on a motion for summary judgment.

(para. 19) The nature of a replevin order is in many ways similar to that of an injunction. Accordingly, I find the standard of proof applied in interlocutory injunctions to be useful for comparative purposes.

Comments Test:1. Substantial Grounds Test2. Balance of Convenience

Associates Capital Ltd. C. 1204662 Ontario Ltd. [2000]Facts Application for interim recovery of personal property. Associates claimed that the

defendant, Spruce River, had unlawfully detained possession of the equipment leased to it. There was evidence of rent arrears owing under the lease and a default by Spruce River in maintaining insurance coverage. Spruce River argued that onerous terms set out in the fine print of the lease could not be binding, that Associates had misrepresented the value of the equipment and that it was entitled to an accounting as to payments made by the previous lessee which had gone into receivership.

Held Associates had shown to a high degree of assurance that it would be successful at trial. It had met the evidentiary requirements for an interim order to recover possession of personal property under Rule 44.01 as it had shown that Spruce River was in breach of the lease by defaulting on the payments owing and failing to maintain insurance coverage so that it was entitled to cancel the lease and demand the immediate return of the equipment. The terms of the lease could not be categorized as onerous and in any case the provisions were adequately brought to Spruce River's attention prior to execution.

Kurisko J. The authority of a judge to make an order for interim recovery of personal property is set out in section 104 of the Courts of Justice Act which provides: (1) In an action in which the recovery of possession of personal property is claimed and it is alleged that the property, (a) was unlawfully taken from the possession of the plaintiff; or (b) is unlawfully detained by the defendant, the court, on motion, may make an interim order for recovery of possession of the property. (2) A person who obtains possession of personal property by obtaining or setting aside an interim order under subsection (1) is liable for any loss suffered by the person ultimately found to be entitled to possession of the property.

The essential evidence to be put before the court on a motion for interim recovery is listed in ORCP Rule 44.01 as follows: (1) An interim order under section 104 of the Courts of Justice Act for recovery of possession of personal property may be obtained on motion by the plaintiff, supported by an affidavit setting out, (a) a description of the property sufficient to make it readily identifiable; (b) the value of the property; (c) that the plaintiff is the owner or lawfully entitled to possession of the property;

(d) that the property was unlawfully taken from the possession of the plaintiff or is unlawfully detained by the defendant; and (e) the facts and circumstances giving rise to the unlawful taking or detention.

The powers of the judge on disposition of the interim recovery motion are set out in Rule 44.03.

In Clark Door of Canada Ltd. v. Inline Fibreglass Ltd. (1996) Molloy J. outlined the evidentiary requirements that must be satisfied by a plaintiff seeking an order under the foregoing provisions. These must all be met:

a description of the property to make it readily identifiable; * the value of the property; * proof the plaintiff is the owner or lawfully entitled to possession of the property; * proof the property is unlawfully detained by the defendant; * the facts and circumstances giving rise to the unlawful detention of the property.

(para. 39) In Tilden Rent-A-Car the Court of Appeal held that where the plaintiff in its advertising emphasizes the speed and ease of the transaction, it can be held to know that its customers do not really assent to all the provisions of the documents they sign, and in such circumstances the plaintiff cannot rely on unusual and onerous printed terms not drawn to the customer's attention. In Beer v. Townsgate the impugned transaction was negotiated in a frenzied atmosphere. And in Crocker held that Crocker was lead to believe he was signing an entry form and the waiver was not drawn to his attention. In the case at bar there is no misunderstanding as to the nature of the Spruce River Lease. There is no evidence of pressure, rush or frenzy concerning execution of the lease. In fact Atkinson initiated the negotiations for the Spruce River Lease. Furthermore, with the possible exception of the repairs to the Loader the terms of the Spruce River Lease cannot be categorized as onerous. (para. 42) There is a broad residual discretion under Rule 44 to make whatever order

is just.

Toronto v. MFP Financial [2002]Facts Motion by MFP for interim recovery of personal property in the possession of the City.Held Motion for recovery of the equipment denied and the City was permitted to retain

possession on terms including that it pay all future lease payments and pay the nine million dollars into court.

Court The equipment remained the property of MFP and MFP established the facts to support its claim of entitlement to the order for possession. However, the statutory provision and the Rules indicated that the power to order recovery of the property was discretionary. The Court had to examine the balance of convenience.

This is not a summary judgment motion. It is a motion for replevin. The test for a replevin order was stated by the then Senior Master and approved by Ferguson J. in Ryder Truck Rental Ltd. v. Walker, [1960]

"it is not contemplated that the court at this stage of the proceedings should embark upon a trial of the issues raised but only require the plaintiff to show the facts upon which it bases its claim" ... "the inquiry is limited to determining whether there are substantial grounds for the plaintiff's allegations, which if proved, bring the case within the statute".

In Clark Door of Canada Ltd. v. Inline Fibreglass Ltd. [1996] Molloy J. analyzes the "substantial grounds test" in Ryder, and finds it to be somewhere between the "strong prima facie case" test and "substantial issue" test used in injunction cases. In Clark Door the court held that the "substantial grounds" test "requires a high degree of assurance that the plaintiff will be successful at trial".

Both the wording of the Act and the Rule are discretionary. In Clark Door, the court approves "balance of convenience" as an appropriate

consideration when fashioning an order under Rule 44. (para. 34) whether or not the City has grounds for its court action, MFP has

substantial grounds for alleging the City is unlawfully detaining its property. An order under Rule 44 is therefore justified. The balance of convenience favours the City and an order shall go that the equipment may remain in the possession of the City with terms.

B) Measures designed to ensure the execution of a judgment on the merits1. Security for costs: Assuming (as is the case in many systems), winning party can recover some costs from losing party,

security are important if the plaintiff doesn’t have any property in the country where the action is brought (see Lapierre c. Barrette). If the defendant wins, it would be hard for the defendant to exe-cute the costs order. So in many systems (both civil law and common law), local defendant can re-quire foreign plaintiff to provide security.

Ideally, orders requiring security would be based on a determination of whether there is a real risk that a losing plaintiff wouldn’t pay. But for the sake of efficiency (avoiding mini-trials on this issue), many jurisdictions prefer to have a clear rule (like Quebec’s, based on residence).

disadvantages of security for costs: Quebec approach amounts to discrimination on basis of residence (as demonstrated by Lapierre

case) 1954 international convention on civil procedure: bans obligation to give a deposit for costs (if

obligation is imposed on the basis of criteria of nationality, residence, domicile) Canada is not a signatory (very few common law countries are), but 50 countries are—

this points to a significant international consensus against this kind of criteria for deposits administrative agreement between Quebec and France: CPC 65 doesn’t apply to a French

plaintiff. UNIDROIT 32.9 is also against these criteria. “32.9 A person may be required to provide se-

curity for costs, or for liability for provisional measures, only when necessary in the interest of justice to guarantee full compensation of possible future damages. Security should not be re-quired solely because a party is not domiciled in the forum state.”

Quebec: plaintiffs who are not residents of Quebec must provide security (CPC 65) this is a straightforward rule, but it may produce unfortunate results:

e.g., a plaintiff company may not be based in Quebec but may have lots of assets in Quebec. There would be no reason to fear inexecution, but the law requires a deposit anyway.

e.g., a plaintiff who resides in Quebec may have lots of property elsewhere but not in Que-bec. Such a person would not have to give security, even though there is a risk of inexecu-tion.

now the only debates are over the amount of security: CPC 152 lists criteria to consider In Ontario, again, the court has more discretion. On motion from the defendant, the judge may “make

such order for security for costs as is just” if: (ORCP 56) the plaintiff is ordinarily resident outside Ontario the plaintiff still owes the defendant money for costs in another proceeding the plaintiff is a corporation, etc. with insufficient assets in Ontario to pay costs the action appears to be frivolous or vexatious etc.

this approach is more nuanced than Quebec’s, but could give rise to complicated debates. access to justice issue if plaintiff can’t give deposit (cf. Lapierre c. Barrette): judges have reserved

discretionary power to reduce amount of deposit. In Ontario, judges have gone as far as eliminating the requirement altogether; Bachand doesn’t think Quebec judges have gone that far.

Think about the post-Morguard situation in Canada: given broader interprovincial recognition of judgments, is it still constitutional to require deposits between provinces? Bachand isn’t sure what the outcome would be, but he thinks it’s worth contesting this.

there are also deposits for costs in Federal Court.

UNIDROIT Principles (p.3.3)3.3 A person should not be required to provide security for costs, or security for liability for pursuing provisional measures, solely because that person is not a national or resident of the forum state.

2. Saisie-conservatoire, Mareva injunctions, and complementary orders In Quebec: saisie-conservatoire (this is one kind of “seizure before judgment”) (CPC 733 & 735ff).

allows the plaintiff to seize the defendant’s property. criteria: must be authorized by a judge (unlike saisie-revendication) (CPC 733) must have “reason to fear that without this remedy the recovery of his debt may be put in

jeopardy.” (CPC 733) it’s not just a risk that the judgment will be impossible to execute; plaintiff must also

demonstrate objectively reasonable fear that this defendant might act in bad faith to evade justice (can’t be transaction that defendant might make in the normal course of business) (but direct evidence of bad faith not required).

there are no more precise criteria than this; a lot of judicial discretion; if you’re litigating, best to look up judge’s record and attitude toward these things!

in common law, this developed in the form of the Mareva injunction—fairly similar to CPC 733 : A Mareva injunction freezes assets, especially to prevent the defendant from transferring them

outside the jurisdiction. Often combined with an Anton Piller order. since 1980s, this has been adopted in all Canadian common law provinces. criteria:

a “good arguable case”: prima facie claim real risk that defendant would act in such a way as to undermine the effectiveness of a judg-

ment procedures:

can be granted ex parte applicant must undertake to compensate for any harm caused

Opera on Original Site Inc. c. China Performing Art Agency (2005) Facts Although the contract has a valid arbitration clause, the plaintiff seized millions of dollars in

‘Cirque du Soleil’ assets under 733 CPC out of fear of loosing them and not being able to enforce an arbitral judgment. The defendant is trying to annul the seizure pursuant 738 CPC.

Senecal J. The five-day limit set out in 738 CPC can be adjusted if there are serious reasons to do so (See arts. 2 and 9 CPC)

Genier c. Rauh (1985) C.S.: «La simple appréhension d’une impossibilité d’exécu-ter un jugement n’est pas suffisante pour justifier une émission d’une saisie avant jugement.»

Venture Steel inc. c. Monsteel inc (2002): you also need “persistent conduct”. Simply saying that China may not enforce or honour the arbitral decision is not

enough.

Mareva injunctions:

Aetna Financial c. Feigelman [1985] 1 RCS 2Facts The appellant company’s assets in question, valued at about $270,000, had been acquired

from collection in receivership proceedings concerning appellant's other Manitoba client and was about to be transferred to one of appellant's offices out of Manitoba. Appellant had appointed a receiver when respondent Pre-Vue defaulted on debentures issued to and held by it. Respondent Pre-Vue and its stockholders later brought an action for unliquidated damages arising from the allegedly improper appointment of the receiver and obtained an ex parte interlocutory order from the Court of Queen's Bench enjoining the movement of assets out of Manitoba. An application to set aside the Mareva injunction was dismissed but the injunction's terms were modified to set a ceiling to the value of the assets affected. The Court of Appeal found this type of injunction to be available and varied the injunction granted only to the extent of allowing its discharge through the posting of security. The three threshold issues here are: (a) is a Mareva injunction available in Manitoba as a matter of law; (b) is it available in these circumstances; (c) is the discretion of the court of first instance properly reviewable on appeal.

Held The appeal should be allowed.Court Estey

The rightful removal of assets in the ordinary course of business by a resident re-spondent to another part of the federal system will not of itself trigger an exceptional remedy such as the Mareva injunction.

The gist of the Mareva injunction is the right to freeze exigible assets when found in the jurisdiction, wherever the defendant may reside, providing there is a cause of jus-ticiable action between plaintiff and defendant in the courts of the jurisdiction. Unless there is a genuine risk of disappearance of assets, however, either inside or outside the jurisdiction, the injunction will not issue. The harshness of the Mareva injunction, which is usually issued ex parte, is relieved against or justified in part by the Rules of Practice which allow the defendant an opportunity to move against the injunction im-mediately. The injunction is in personam and affords no priority to the potential credi-tor.

Neither the presence nor the absence of legislation granting remedies similar to the Mareva injunction precludes the issuance of a protective injunction. The entitlement to issue a Mareva injunction springs from the authority of the court at law to make the order and the qualification of the respondent under the rules and tests applied by the courts in doing so.

Look at the intention of the transfer, the means of enforcement and the possibility of loss. Here, respondent had extensive and easily enforceable rights under the Bank-ruptcy Act and the Canada Business Corporations Act in the event of an attempt to defraud creditors through a business default or a winding up of the company.

Mareva’s are more complex in the federal context than in a unitary state.

D. Preliminary disclosure of information modern civil procedure, just about everywhere, gives parties right to obtain some information related

to the case before the trial starts. Trials are very boring now: no surprise witnesses, etc.

i) Disclosure of evidence a party can get access to most the other party’s evidence (information which parties intend to use to

support their claim) before trial starts. Justification: fairness: each party needs to know the other party’s case in order to prepare to respond ade-

quately and thus have a full and fair hearing. Surprises aren’t fair. efficiency: helps parties to find out what the real issues are and focus their arguments favouring ADR: encourages parties to find other ways of settling disputes

note: discovery is less important and less extensive in civil law countries; this is perhaps part of the reason that far more civil

in most jurisdictions, parties must disclose: any documents or material evidence on which they intend to rely (CPC 331.1ff, ALI/UNIDROIT

R21.1.1, US FCRP 26(a)(3)(C)) the report of any expert witness who will testify (CPC 402.1, ORCP 53.03, US FCRP 26(a)(2)

(B?)) the identity of each witness and a summary of his/her testimony (Quebec Superior Court rules of

practice, ALI/UNIDROIT R21.1.2, US FCRP 26(a)(3)(A)) Communication of evidence in small claims court (962, 964,al.1, 968, atl.1 and 972 Cpc)

Common law has this idea of an extensive pre-trial exchange of evidence followed by one grand uni-fied trial. Civil law tends to let the judge mix up the evidence-finding-and-evaluating with the decision-making.

In Canada, the Federal Court system has a much more formalist approach to procedure than provin-cial and superior courts; a matter of culture.

ii) Access to other information surrounding the litigation Mechanisms in this category are designed not just to prevent surprises but to rectify informational

asymmetries. (In practice, the parties rarely start with equal access to information; recall: this is why the US adopted notice pleading) These mechanisms allow parties to look for evidence that they sus-pect exists, but that they don’t know about yet. The advantage of such procedures is counterbalanced by their cost. They are sometimes enor-

mously expensive. civil law has always said that the costs of these mechanisms exceed the benefits.

Civil law doesn’t have a functional equivalent, not even the “active judge.” A civilian judge can question witnesses, point out gaps in the evidence, point out gaps in the legal reasoning, se-lect expert witnesses, but the law doesn’t allow the judge to go after evidence that s/he only suspects exists (can’t go on fishing expedition)

debates over these procedures often arise in international commercial arbitration. ALI/UNIDROIT Principles and Rules cautiously allows some kinds of discovery: It’s possible

to have access to discovery in a limited way, but no notion of an automatic right to discovery. “The philosophy expressed in Rules 21 and 22 is essentially that of the common-law

countries other than the United States.” (Comment R-22C) in international commercial arbitration, common law parties are often forced to renounce

some of the discovery rights they normally expect: important to warn your clients about this.

A) Foundations of the discovery mechanisms for party access to other information in common law jurisdictions

Geoffrey C. Hazard, Jr., “Discovery and the Role of the Judge in Civil Law Jurisdictions” (1998) (CB2p135) Although American lawyers may be puzzled by the absence of a “discovery” stage in civil law coun-

tries, this is largely explained by the active role of the judge in civil law. Under the adversarial common law model, there is this idea of a unitary, concentrated, fact-finding

trial (often before a jury) where the parties are free to present their case as they see fit. If this is to work, both parties need to know about each other’s evidence so they can present it to the jury in one grand performance.

In civil law, the judge takes a more active role in fact-finding, and there’s no concept of a single, uni-tary trial. There’s therefore no need for a “pre-trial”: the judge can conduct the trial in stages, issue by issue, alternating between questions of fact and questions of law, until s/he has seen/heard enough to make a decision.

When civilians hear about discovery, they therefore see it as an circumventing the legitimate powers of the judiciary.

Hoffman “Access to Information, Access to Justice…”What is the relationship between access to information and access to justice?

The ability of private parties to compel the production of information, documents or testimony before litigation rarely has been seriously considered as a factor bearing on access to court. Be-yond the lack of treatment of the doctrinal sources of authority, no attempt has been made by academic commentators or those most closely involved in civil procedural reform to gather em-pirical evidence to try to fix how important to the institution and maintenance of civil suits is the right to take pre-suit investigatory discovery.

This Article seeks to fill these vital gaps that exist in the literature and in the public debates, more generally, over access to justice. The empirical evidence from Texas may reasonably be read as indicating widespread use of the state's pre-suit discovery rule.

Examining the available data, the author argues that there are good reasons to believe that the perceived need to satisfy formal legal requirements to bringing suit, as well as the pull of practi-cal considerations, may plausibly explain the incidence of use of the state's pre-suit discovery rule. Read in this manner, the empirical evidence suggests an important relationship exists be-tween access to information and access to justice.

B) Typology of procedural mechanisms permitting access to other information surrounding the litigation

US Federal Rules of Civil Procedure (US FRCP): 26, 30, 34, 35 and 37 (don’t get lost in the details of these—only important for a general idea).

1. Affidavit of documents: (ORCP 30 & 30.1) This is found in most common law jurisdictions (including Canadian common law provinces), and

Federal Court, but not in Quebec. This mechanism forces all parties to disclose a list, not only pf documents that they intend to rely on

as evidence, but all documents that seem relevant to the litigation, whether favourable or un-favourable to their case.

In Ontario, this exchange occurs after the preliminary statement of claim, defence, etc. In Ontario, parties must disclose a list of: (ORCP 30.03(2))

all documents in their possession that they do not object to producing all documents in their possession that they claim privilege for all documents that party once had but no longer has

parties must swear under oath that this is all they’ve got. Standard is lower than “relevance” for evidence purposes:

Ontario: “relating to any matter in issue” (ORCP 30.03(2)) “semblance of relevance”

Federal Court: any document that “might reasonably be supposed to contain information” that would be relevant.

It’s easy to see how this mechanism could reduce informational asymmetry, but it costs a fortune; it also allows the party with the documents to slow things down: e.g. deliver a truckload of documents and tell other party to go through it. This is dead boring: a good reason to decide to become a litigator in Quebec rather than else-

where in Canada! US moved toward really broad notion of discovery of documents in 1980s (US FRCP 26(a)(3)(C)), but

this was acknowledged to go too far, in 2000 limited discovery (any documents which “may be used to support its claims or defences”) in US, this obligation begins right at the beginning of the proceedings, whereas in Canada it

doesn’t start until preliminary steps have taken place.

2. Examination on discovery (interrogatoire préalable): Exploratory nature: parties get information, but it doesn’t automatically go into the court file; it’s up to

the parties to decide whether they want to adduce this as evidence. parties really have a power of in-quiry over each other

This is part of a North American legal tradition. It originated in the US in 1930s and has now spread across Canada to a greater or lesser extent. It has never been standard procedure in England (as Lebel pointed out in Lac d’Amiante).

principal rules desiged to balance advantages and disadvantages: advantages:

Truth-seeking (inclusive version of theory); more facts on which to base decision. disadvantages: (why civil law rejects this):

Expensive and slow (Occurs in the presence of both parties’ council, with court stenographer present. If an objection arises during the discovery, parties must go before a judge to settle dispute)

Interference with privacy (this is what the courts were concerned with in Lac D’Amiante, al-though nowhere in the case did the court discuss whether legal persons have privacy rights.)

In Lac d’amiante: court had two policy motivations: a desire to protect privacy of party being in-vestigated, but also a desire to make discovery more efficient.

In Quebec: limited version of discovery Discovery more limited in Quebec than in common law provinces. This may reveal an interesting

difference in the theoretical basis, because it has to do with different ways of settling disputes. It’s

also important in practice: different legal cultures. There are times when availability of discovery may determine where you would sue.

availability of discovery: since January 1, 2003, discovery only in cases over $25,000 (CPC 396.1) parties can ask questions as well as obtain documents (CPC 397, 398)

Quebec discovery thus includes the power to obtain documents—this part of discovery performs a role functionally equivalent to “affidavit of documents” in common law.

the defendant gets the first chance to can investigate (before filing defence), but investigation can only relate to facts alleged in the plaintiff’s motion to introduce proceedings (CPC 397)

after the defence is filed, either party can investigate all facts in dispute (CPC 398) In practice, much more happens at this stage.

standards of discoverability: Widened standard of relevance (wider than the standard of relevance used to determine ad-

missibility of evidence): documents must be “useful, appropriate, and susceptible of advanc-ing the debate.”

Judges tend to accept most things; at this preliminary stage, they will reject objections on grounds of lack of relevance; would rather leave those debates for later.

Judges will allow objections if it seems like one of the parties is going on a “fishing expedi-tion.” e.g., if you’re suing someone for professional liability, and you try to investigate their work

for other clients (in hopes of finding other wrongdoing), judge probably won’t allow this. Bachand thinks that, once a party has used discovery, judges might apply a higher standard

of “relevance” for evidence. There is a jurisprudential current saying that any document you ask for in discovery

should be admissible as evidence using the relevance criterion. who can be investigated:

parties automatically have the right to investigate any other party as well as any party’s repre-sentative, agent or employee (CPC 398(1))

in civil liability cases, the victim and any person who committed the act that caused the injury (CPC 397(2), 398(2))

It’s possible for the parties to investigate third parties (e.g., witnesses), but only with judicial authorization (CPC 398(3)) Bachand agrees with this: third party should have some protections (privacy, etc.) Judges don’t often grant authorization to investigate third parties under this provision. It’s

considered exceptional (and criteria for when they do grant it are inconsistent) Ontario (ORCP 31): not too different from Quebec

availability of discovery: no discovery in cases under $50,000 (cases under $50,000 are governed by ORCP 76 (“sim-

plified procedure”), perhaps most notable characteristic of which is unavailability of discovery (ORCP 76.04))

standards of discoverability: “A person examined for discovery shall answer, to the best of his or her knowledge, informa-

tion and belief, any proper question relating to any matter in issue in the action…” (ORCP 31.06; emphasis added)

other provisions for identity of others who may know something about the facts, for expert evi-dence, for insurance policies

who can be investigated: (roughly the same as in Quebec): parties automatically have the right to investigate any other opposing party (ORCP 31.03) right to investigate third party with judicial authorization. criteria: (ORCP 31.10)

unable to obtain same information from parties would be unfair to party to go ahead to trial without obtaining this information no undue delay or expense, or injustice to third party.

USA: extremely broad, powerful discovery processes standards of discoverability:

“Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party….Relevant information need not be admissible at the trial if the

discovery appears to be reasonably calculated to lead to the discovery of admissible evi-dence.” (US FRCP 26(b)(1)) Bachand: not only are fishing expeditions not prohibited, they are protected!

judges have powers to stop discovery if it’s abusive (same information available elsewhere, burden or expense outweighs benefit, etc.) (US FRCP 26(b)(2), 26(c)) but these are rarely exercised; powers are interpreted strictly.

who can be investigated: opposing party any potential witness.

Only limit is that you can subject only 10 persons to discovery for up to 7 hours each; any more than this and you have to get judicial authorization

US law seems to have less concern for interests/privacy rights of third parties. This seems even more problematic because confidentiality is not protected in US discovery

hearings they think it goes too far in making possible fishing expeditions. Major concerns about

constroversial issues: major concerns about costs and delays parties use this not as a way of obtaining information, but as a way of putting pressure on

the other party to make a more favourable settlement. many companies go into arbitration in order to avoid or limit discovery.

These procedures scare many comparative lawyers. The US also uses:

depositions upon oral examination (US FRCP 30) “written interrogatories”

3. Demands for access to documents and materials CPC 396.1-398.1, and 402 ORCP: 30.10 and 32 US FRCP: r.34

4. Medical exam CPC 399-400 OCJA: art. 105 ORCP: 33 US FRCP: r.35

E. The end of the proceedings The proceedings can end prematurely if the plaintiff didn’t bring the action properly (e.g. lack of

jurisdiction, no right to bring an action). Civil procedure almost always gives the defendant a right to raise these objections at a preliminary stage.

However, not all irregularities necessarily lead to the end of the proceedings. (e.g. if the irregularity is that the plaintiff’s allegations are not detailed enough, the court will simply suspend the proceedings until the plaintiff makes up for this)

i) Proceedings that end without a judgment on the merits We can distinguish:

proceedings that end as a result of the will of one of the parties proceedings that end as a result of the will of all of the parties proceedings that end due to the passage of time

a. The end of the proceedings brought about by one of the parties: discontinuance and acquiescence discontinuance (désistement): plaintiff abandons claim: There’s not much to say about this.

In Quebec, all the plaintiff has to do is sign a declaration and present it to the court. Everything is supposed to be put back the way it was before. The plaintiff has to pay costs (CPC 262-264).

In Ontario (and USA), the rules have one curious aspect: If a plaintiff wants to discontinue his/her claim after the close of pleadings, must obtain permission of court to do so (ORCP 23.01(1)(b)) One can see how this could be designed to protect the plaintiff, the defendant, or the public

interest. Case on WebCT: QueCA has also recognized power of court to rule on regularity of

discontinuance. In this case, discovery had led to the conclusion that the claim was manifestly unfounded. Plaintiff had tried to discontinue action to avoid having it judged frivolous under CPC 75.1, which would have the force of res judicata. QueCA said no, defendant has a right to have this judgment rendered.

acquiescence: this is really a civil law concept unconditional acquiescence: doesn’t rule on the merits of the claim as such, but immediately

gives effect to plaintiff’s claim (CPC 459) also gives it force of res judicata. This actually happens in practice:

if the plaintiff didn’t bother to find out the defendant’s position before bringing an action if the defendant was bluffing in negotiations but when it comes to litigation, backs down

can’t acquiesce in many family law cases (separation, divorce, filiation, etc.) (CPC 457) these have a strong public order component; judge must decide similar to the idea of obligatory provisions, can’t modify family law rights by contract.

no real equivalent in Ont rules—Bachand suspects that this might be a typical civil law provision, but he’s not sure.

closest equivalent in Ontario rules is “withdrawal by defendant”: a defendant can withdraw all of part of the statement of defence; if s/he withdraws all of it, this makes it a judgment in default—but a default that has the force of res judicata. (ORCP 23.06)

b. The end of the proceedings brought about by both of the parties: transaction 95% of cases don’t lead to a judgment—parties make a transaction or a “settlement agreement”. Settlement is now the “normal” way to resolve civil actions. More and more, the state encourages amicable settlements rather than just allowing them to occur. ADR: state must take an interest not only in process of ADR, but also in result (transactions,

settlement agreements): state has an interest in enforcing binding nature of these in common law, settlement agreement is a contract like any other, subject to the same conditions of

validity as any other contract, can seek enforcement in the normal way (sue other party for breach) in civil law, this is a special kind of nominate contract:

“Transaction is a contract by which the parties prevent a future contestation, put an end to a lawsuit or settle difficulties arising in the execution of a judgment, by way of mutual concession or reservations.” (CCQ 2631al1)

a hybrid legal creature: like a judgment: has force of res judicata (CCQ 2633al1)

designed to ensure finality (efficacy) of procedures like a contract: can be annulled for defects in formation: error, fraud, etc.

error of law is insufficient to nullify transaction (CCQ 2634) subsequently discovered facts normally don’t nullify transaction, unless one of the parties

knew about them and didn’t disclose (CCQ 2637al1) judge can homologate the transaction on request (CPC 151.22)

before 1994, if one of the parties didn’t respect the terms of the transaction, you had to sue them the same way you’d sue anyone else

In Ontario: mandatory mediation provisions: ORCP 24.1.15 on outcome of mediation and mediator’s report:

if one of the parties doesn’t comply with the agreement, other party can move for a judge to grant judgment according to the agreement; this would give agreement the force of res judicata.

offers to settle: if plaintiff makes a reasonable offer to settle, and defendant rejects it, and plaintiff wins

but with judgment more favourable than the offer, court can allow plaintiff to recover

“substantial indemnity costs” from the defendant for all costs after that date. (ORCP 49.10(1))

if defendant makes a reasonable offer to settle, and plaintiff rejects it, and plaintiff wins but with judgment less favourable than the offer, both plaintiff and defendant are entitled to “partial indemnity costs” from the time the offer was served. (ORCP 49.10) – i.e. less costs will be awarded than normally to plaintiff.

This is a way of punishing parties for refusal to settle; creates incentive to settle. This works in practice.

The judge still retains some discretion to deal with situations where the rule’s purposes are not served.

some limits on settling out of court: can’t settle a dispute out of court when capacity of the state (or other matters of public interest,

such as the status or capacity of persons) are at issue (CCQ 2632) some family law matters, e.g. divorce cases: parties don’t have complete freedom to set their own

terms; nor does an agreement between the parties settle the dispute with any finality.

c. The end of the proceedings brought about by the passage of time: la péremption de l’instance if time runs out, plaintiff loses action, but no res judicata the possibility of prescription thus implies that plaintiff has an obligation to make sure the proceedings

proceed in a timely fashion, can’t drag feet. time limits protect interests of:

defendant: ongoing proceedings would be greater cost for defendant and threat hanging over head the passage of time affect defendant’s evidence; ability to if there were interim measures, would be unfair to allow these to be de facto permanent. it is necessary to give effect to prescription (since an action interrupts prescription)

public: preserving judicial resources cf. before Jan. 2001, CPC contained rule that allowed one of the parties to move for

peremption if nothing had happened in six months. Other party had 30 days to do something. But court couldn’t take judicial notice. This is more like the traditional common law idea that parties are free to do whatever they want.

different jurisdictions agree on these general notions, but different ways of implementing them: In Ontario, defendant can ask to have an action dismissed for delay if plaintiff hasn’t set the action

down for trial within six months of the close of the pleadings (ORCP 24.01(1)(c)) It’s rare that a defendant will be able to have an action rejected on this basis. The only time

Bachand has seen this happen has been in situations where time delay reduced quality of defendant’s evidence—affected defendant’s fundamental right to defend self. In practice, if you really want the action thrown out, don’t try to invoke ORCP 24.01(1)(c), wait

until something happens to your evidence and argue on this basis. Even if you don’t want to get the action thrown out, you can use a motion under ORCP

24.01(1)(c) to undermine the plaintiff’s credibility before the trial starts. In practice, the fact that the plaintiff hasn’t done anything for a few months means that it might

be a good time to start negotiating. if action not on trial list within two years after statement of defence, parties’ counsel will receive a

written notice. Counsel has obligation to communicate this to their clients. If they still don’t do anything within 90 days, action is dismissed for delay. (ORCP 48.14) this provision seems designed to protect the public interest. status hearing:

the defendant doesn’t have to have suffered a prejudice for the action to be thrown out. seems more like a reversal of burden: plaintiff must now show that there are particular circumstances that justify prolonging the proceedings.

this provision seems even more designed to protect the public interest. what usually happens it that judge will ask plaintiff to explain exactly what needs to be

done; judge will set strict time limits on this.

In Quebec, there was a new 180-day limit for getting through the preliminary stages (from signification (requete d’introduction d’instance) to inscription on trial roll) (CPC 110.1) or the claimant will be deemed to have discontinued his action (CPC 274.3). this can include finding experts, exchange of evidence, discovery, joinder of claims (and

contesting this), etc. A judge has discretionary power to extend the time limit or to excuse a delay. However, an

extension will not be entertained, even if both parties demand the extension, until the 150 th day (i.e. within 30 days of the time limit) (CPC 110.2).;

The criteria for granting extensions are applied relatively strictly: complexity (CPC 110.1al2) special circumstances (CPC 110.1al2) or impossibility of acting within the time limit (CPC 110.1al3)

This is a clear retreat from the idea that parties are free to run the proceedings as they see fit. Bachand gets a sense that judges are saying to lawyers: hurry up, you can do this faster. What bothers Bachand is that strict time limit makes parties panic to try to meet the deadlines for

trial; not enough time to consider ADR. They will only have time to stop and consider ADR after they have prepared for trial (after 180 days), and by this time they’ve already sunk lots of money into trial preparation. (Ironic that in same CPC reform, legislature introduced judicial mediation.)

It is annoying that parties have to proceed for five months under the assumption that 180 days is the time limit.

Then, in 2004, the rule was changed again. an application for extension can be made from the outset. The limit in family matters is 1 year. However, the rule is now ridiculous in practice. Almost all extension request are granted whether

before or after the expiry of the time limit. All this means now is that you have to go to court every 6-months to ask for another extension (adding significantly and unnecessarily to the costs of litigation).

Bachand thinks that the Ontario rule is a better compromise.

ii) Proceedings that end by a judgment on the meritsa. Premature forms of judgments on the merits 1. default judgments: If one party doesn’t show up, simplified procedures allow plaintiff to assert rights.

however, plaintiff may still have the burden of proving allegations. rules about notification become extremely important in these cases. look at ALI/UNIDROIT principles and rules (point is that default judgment procedures are found in just

about every legal system).

2. summary judgments: Basic idea: to allow a party to get the court to reject the assertions of the other party without having

to go through the entire trial process. It requires that the other parties assertions be deemed patently unfounded.

If the claim or the defence is patently unfounded, there no interest in going through the entire process to reach that same conclusion. It would be wasteful.

However, the interest in efficiency must be balanced with procedural fairness. Summary judgments are more normal in common law than in civil law.

In civil law, more active judge, doesn’t really make a distinction between full trial and summary judgment; judge just inquires enough to make a decision. (see ALI/UNIDROIT)

two kinds of problems in practice: if the dispute is based on a pure question of law

in this case, no need to have a trial where you present evidence. Just about everywhere, procedural rules allow judge to decide case on basis of law, without trial. If the case involves contesting the constitutional validity of the law itself, this must be

considered an exception to the rule about questions of law. (Perhaps in administrative law too—when it comes to the interpretation and application of a law.)

In Quebec, defendant can ask to have suit dismissed if “is unfounded in law, even if the facts alleged are true” (CPC 165(4)) This is not irrecevabilité, strictly speaking: action is thrown out for substantive

reasons, not procedural ones; just happens to be thrown out faster this way. Quebec courts have been reluctant to let CPC 165(4) be used just to reject part of a

claim. Can only use 165(4) to defeat entire claim. The Saint-Martin case is an example of this rule; it also shows how judges are

growing uncomfortable with this limitation, and trying to find ways around it. This jurisprudential trend allows you to attack the causes of action that are dissociable from the other causes of actions (based on CPC 66 on joinder of claims). (This wouldn’t work in e.g. trying to eliminate a ground of damages.)

In Ontario a party can move to have an issue of law decided before trial (ORCP 21.01(1)) Unlike in Quebec, Ontario parties can use this to have some issues decided, even it

doesn’t settle the entire action. e.g., if the plaintiff sued for compensatory damages plus punitive damages, but the

legal rules on the topic didn’t allow for punitive damages, defendant could bring a motion to have punitive damages claim rejected in advance.

if the dispute also raises questions of fact, but the facts can’t seriously or reasonably be contested, the judge can still render summary judgment Ontario: more flexible rules (ORCP 20)

criteria: (ORCP 20.04(2): “no genuine issue for trial” or if parties agree to have all or part of case decided by judgment

procedure: the party that mores for this must present a motion, accompanied by affidavit and

supporting evidence (ORCP 20.01) if the other party doesn’t want to have summary judgment, must respond and try to

show that there is a “genuine issue for trial,” cannot rest on denials of moving party’s allegations. (ORCP 20.04(1))

these procedures are found Gordon Capital is an example of a case about whether there is a genuine issue for trial.

argument about whether credibility of witnesses might have an impact on findings of fact. (look only at section of case on whether there is a genuine issue of trial);

“summary judgment” in common law provinces really means this second type of process, although Bachand is using it to refer to the first type (pure question of fact) as well.

In Quebec, CPC 75.1 this tells us that an action that is frivolous or clearly unfounded for a reason other than

being unfounded in law (which would be covered by CPC 165(4)) can be dismissed by the court, on motion.

in practice, CPC 75.1 is less accessble than the Ontario provision. as with rejection on question of law, this only works if seeking dismissal of entire

action. Not if just one issue. the only facts that may be used to support motion are those coming out of pre-trial

discovery. in practice, judges are rarely convinced that an action is frivolous or clearly

unfounded on this basis. Bachand doesn’t understand why there are two separate provisions here for summary

judgments, why not integrated. Probably overly concerned about guaranteeing procedural fairness.

Cases: Guarantee Co. of North America c. Gordon Capital Corp Saint-Martin c. Federation des enseignants des ecoles juives

E. Costs This touches on the economics of litigation; related to issues like legal aid; litigation insurance; more

and more litigants representing themselves (interesting especially in civil law system where judge is supposed to be more active); contingency fees;

The costs that we are dealing with here are judicial costs (fees for certain acts of procedure, bailiffs charges, indemnization for witnesses, transcription costs), experts’ costs (where applicable), and lawyers’ costs (fees, expenses).

essentially three issues interest Bachand: 1. whether the rules of civil procedure should allow winning party to recover from the losing party

the expenses that were needed to assert/defend your rights almost all systems say yes, in principle.

2. what does this include: does it cover everything (judicial costs are generally-accepted, big question is lawyers’ fees) In US, Japan you can only ever get judicial costs.

You allow greater access to justice even if you are completely sure that you will win at the end of the day. However, it means that

It also discourages the unnecessary accumulation of lawyers’ or experts’ fees In most other countries (e.g. UK) you can recover all costs, including for experts and lawyers.

Pro: It favours access to justice for those who are sure of their rights, but it makes you think twice about commencing or defending an action where you are not confident.

In Canada, you can get some of what it cost you to assert/defend your rights, but not everything. In common law provinces, costs awards generally allow a significant part of lawyers’

costs. In Quebec, a lesser proportion of actual costs is awarded at the discretion of the judge. Usually this translates into about 2/3 in common law provinces, but around 1/3 or even

less in Quebec. 3. use of costs as a policy tool; encouraging/discouraging certain behaviour

Okanagan case: in some exceptional cases, if there’s an abuse of process, court will allow winning party to recover for

legal fees. CA tries to clarify the rules around this in this Viel c. Entreprises immobilières du Terroir Ltée (2002) QueCA (CB2p115): You can only recover legal fees if the other party acted abusively or in bad faith in the conduct of the litigation itself. Bad faith in the subject-matter that gave rise to the dispute (e.g., contract breached in bad faith) only gives one a claim to damages for that harm, not for the harm caused by the litigation.

This summary was graciously provided by:

Martin Doe, Caolan Moore, and Melissa PangAdapted from a previous summary by Derek McKee

Please show your gratitude by also making your own summaries (or future modifications of this one) also available on PUBDOCS.