Procedural Law in Quebec: Procedural Law in Quebec: The Role Legal Traditions PlayThe Role Legal Traditions Play

Professor Rosalie JukierProfessor Rosalie JukierMcGill UniversityMcGill UniversityMarch 25, 2014March 25, 2014

Procedural ChangeProcedural Change

Compare the codification activity level with Compare the codification activity level with respect to Quebec’s two Codes: Civil Code, respect to Quebec’s two Codes: Civil Code, Code of ProcedureCode of Procedure

The new Code of Civil Procedure represents The new Code of Civil Procedure represents the the fourthfourth complete recodification of complete recodification of procedure in Quebec (1866, 1897, 1965, 2014)procedure in Quebec (1866, 1897, 1965, 2014)

This provides an opportune moment This provides an opportune moment to reflect on…to reflect on…

The influence of legal traditions on civil The influence of legal traditions on civil procedure in Quebecprocedure in Quebec

The role such traditions play in the legislative The role such traditions play in the legislative evolution and judicial interpretation of evolution and judicial interpretation of procedural law procedural law

““Societies may see their basic values reflected Societies may see their basic values reflected more in their procedural systems than in their more in their procedural systems than in their substantive law” substantive law” Stephen Goldstein, “The Odd Couple: Common Law Procedure and Stephen Goldstein, “The Odd Couple: Common Law Procedure and

Civilian Substantive Law” (2003) 78 Tul L Rev 291 at 293Civilian Substantive Law” (2003) 78 Tul L Rev 291 at 293

OutlineOutline

1.1. Main differences in procedural law in the two Main differences in procedural law in the two major legal traditions of the civil and the major legal traditions of the civil and the common lawcommon law

2.2. Historical evolution of procedure in Quebec Historical evolution of procedure in Quebec tracing the tradition-based changes that have tracing the tradition-based changes that have occurred over timeoccurred over time

3.3. Look closely at the present day through two Look closely at the present day through two lenseslenses

a.a. legislative (the 2014 Code)legislative (the 2014 Code)b.b. judicial (examine key judgments)judicial (examine key judgments)

Tradition-based differences in Tradition-based differences in Procedural LawProcedural Law

““adversarial” (common law) adversarial” (common law) versusversus

““inquisitorial” (civil law) inquisitorial” (civil law)

Misleading Nature of this Misleading Nature of this DifferentiationDifferentiation

1.1. Common law procedural systems do not have Common law procedural systems do not have a monopoly on the “adversarial” quality of litigation a monopoly on the “adversarial” quality of litigation

2.2. The civilian continental procedural system The civilian continental procedural system might better be labelled “investigative” or “judge-might better be labelled “investigative” or “judge-centred rather than “inquisitorial”centred rather than “inquisitorial”

3.3. Wrong to see the two systems as polar Wrong to see the two systems as polar opposites and often, differences are in degree not in opposites and often, differences are in degree not in kindkind

4.4. As in all areas of comparative law, we must be As in all areas of comparative law, we must be cognizant of the variances amongst legal systems cognizant of the variances amongst legal systems within the same legal traditions (eg U.S vs U.K)within the same legal traditions (eg U.S vs U.K)

Major tradition-based differencesMajor tradition-based differences

Role of the JudgeRole of the Judge The traditional Common law judge has been The traditional Common law judge has been

described as “a passive, receptive and described as “a passive, receptive and detached umpire”detached umpire”

as someone who views the case “from a peak as someone who views the case “from a peak of Olympian ignorance”of Olympian ignorance”

The Judge of the Civilian Tradition is, The Judge of the Civilian Tradition is, by contrast…by contrast…

vocal and dominantvocal and dominant ““activist, outspoken or even paternalistic”activist, outspoken or even paternalistic” ““the director of an improvised play”the director of an improvised play” or even a “priest, [where] the advocates act as or even a “priest, [where] the advocates act as

the acolytes – deferential assistants in a the acolytes – deferential assistants in a ceremony controlled thoroughly by the judge” ceremony controlled thoroughly by the judge”

Essence of the distinction Essence of the distinction The civilian judge controls the evidentiary The civilian judge controls the evidentiary

process and performs the critically important process and performs the critically important function of exploring and sifting evidence function of exploring and sifting evidence (engages experts, questions witnesses, asks (engages experts, questions witnesses, asks questions…)questions…)

In contrast, in the adversarial system, the parties In contrast, in the adversarial system, the parties (through their lawyers) take charge of the (through their lawyers) take charge of the process, frame the issues, investigate the process, frame the issues, investigate the evidence and select what will be presented at evidence and select what will be presented at trial.trial.

Different conception of “truth”Different conception of “truth” The civilian system is predicated on finding “la vraie The civilian system is predicated on finding “la vraie

vvéritéérité” ” Common law procedure was not designed to establish Common law procedure was not designed to establish

the truth the truth ““The role of the court is to decide on the basis of The role of the court is to decide on the basis of

allegations of the parties and not on the basis of allegations of the parties and not on the basis of underlying truth”underlying truth”((Air Canada v. Secretary of State for Trade Air Canada v. Secretary of State for Trade 1983, House 1983, House

of Lords)of Lords) Procedural fairness is prioritized over truthProcedural fairness is prioritized over truth There is an assumption that truth will be teased out by There is an assumption that truth will be teased out by

examination and cross examination of witnesses examination and cross examination of witnesses

Primacy of the oral versus the writtenPrimacy of the oral versus the written

In the common law, the emphasis is on oral In the common law, the emphasis is on oral evidence and oral argumentationevidence and oral argumentation

In the continental civilian tradition, (the In the continental civilian tradition, (the “dossier system”), proof is essentially written “dossier system”), proof is essentially written with no examination or cross examination of with no examination or cross examination of witnesses by lawyers in open courtwitnesses by lawyers in open court

““Tout Tout témoignage lui est suspecttémoignage lui est suspect” ” (Augagneur)(Augagneur)

Role of Expert WitnessesRole of Expert Witnesses Nor are experts called by the respective parties, Nor are experts called by the respective parties,

or examined and cross-examined in open court or examined and cross-examined in open court In the continental conception of procedure, In the continental conception of procedure,

experts are:experts are: judge-appointed judge-appointed common or joint expertisecommon or joint expertise

Judge “outsources” the evidentiary work to an Judge “outsources” the evidentiary work to an expertexpert

Very different than the traditional common law Very different than the traditional common law procedural system: battle between the expertsprocedural system: battle between the experts

DifferentDifferent conceptions of the “trial” conceptions of the “trial”

Largely as a result of the jury , the common Largely as a result of the jury , the common law trial is a single event in which witnesses law trial is a single event in which witnesses and evidence are presented in a continuous and evidence are presented in a continuous procedure procedure

And there is a distinct “pre-trial” periodAnd there is a distinct “pre-trial” period The continental “trial” is segmentedThe continental “trial” is segmented Hearings before the court are very short – as Hearings before the court are very short – as

short as 15 – 30 minutes!short as 15 – 30 minutes!

Compare the French “trial” with what Compare the French “trial” with what we are used to in Quebecwe are used to in Quebec

Laflamme c. Groupe TDL ltée Laflamme c. Groupe TDL ltée ((2014 QCCS 312) 2014 QCCS 312) Facts: Facts: woman ingested a single spoonful of excessively woman ingested a single spoonful of excessively

hot soup at Tim Hortons and sued for $2 million damageshot soup at Tim Hortons and sued for $2 million damages The trial lasted The trial lasted 10 full days 10 full days 9 medical experts testified and countless others 9 medical experts testified and countless others

submitted written expert reportssubmitted written expert reports Judgment was 77 pages (or 426 paras) long and gave Judgment was 77 pages (or 426 paras) long and gave

judgment for the plaintiff in the amount of $69,000judgment for the plaintiff in the amount of $69,000 Note: Estimated cost of one day in court to taxpayer is Note: Estimated cost of one day in court to taxpayer is

$10,000$10,000

Pre-Trial and its Corollary…Pre-Trial and its Corollary…DiscoveryDiscovery

Directly related to counsel’s active role in Directly related to counsel’s active role in gathering and analyzing evidence during the gathering and analyzing evidence during the distinct pre-trial perioddistinct pre-trial period

Unavailable/improper in civil law jurisdictions Unavailable/improper in civil law jurisdictions No need for party-initiated discovery because No need for party-initiated discovery because

the court, rather than the parties, is in charge the court, rather than the parties, is in charge of the development of evidenceof the development of evidence

Additional Differences: Appellate Additional Differences: Appellate ReviewReview

Civilian conceptions of appeal are much broader Civilian conceptions of appeal are much broader both in their availability and in the nature of the both in their availability and in the nature of the reconsideration (facts as well as law)reconsideration (facts as well as law)

Note: 2013 statistics for the Cour de Cassation state Note: 2013 statistics for the Cour de Cassation state that there were 20,049 dossiers juthat there were 20,049 dossiers jugés in civil matters gés in civil matters and 8,158 in criminal matters (total 28, 207). and 8,158 in criminal matters (total 28, 207). CoCompare that with the SCC which renders between mpare that with the SCC which renders between 60 and 80 judgments per year60 and 80 judgments per year

No concept of appellate dissent in the civil law No concept of appellate dissent in the civil law traditiontradition

Additional Differences related to the Additional Differences related to the Judge and JudgmentsJudge and Judgments

There are different conceptions of the training of There are different conceptions of the training of the judge (eg French the judge (eg French École de la magistrature) École de la magistrature) and the and the appointment of such judge (from the appointment of such judge (from the practicing Bar in common law systems)practicing Bar in common law systems)

Different status: Bureaucratic figure versus Different status: Bureaucratic figure versus commanding magisterial presencecommanding magisterial presence

Different judgment styles: Anonymous, Different judgment styles: Anonymous, impersonal and syllogistic vs signed, opinionated impersonal and syllogistic vs signed, opinionated and discursiveand discursive

Where Does Quebec Fit In?Where Does Quebec Fit In?

Easy question of the evening!Easy question of the evening! Quebec procedural law has been portrayed as Quebec procedural law has been portrayed as

having “un air de common law en pays de having “un air de common law en pays de droit civil” (Jutras)droit civil” (Jutras)

How did Quebec get to this end result? How did Quebec get to this end result?

Historical EvolutionHistorical Evolution RRéégime Français – 1534 – 1759gime Français – 1534 – 1759 16671667: : Ordonnance sur la Ordonnance sur la procédure civileprocédure civile Characterized by the French civilian tradition:Characterized by the French civilian tradition:

Testimony of witnesses is done by way of writing Testimony of witnesses is done by way of writing No examination or cross-examination in open court No examination or cross-examination in open court Experts are court-appointed and their testimony is in Experts are court-appointed and their testimony is in

writing writing Procedure is by way of the “Procedure is by way of the “enquenquêteête” whereby a ” whereby a

judge or commissioner reduces to writing what the judge or commissioner reduces to writing what the witnesses saywitnesses say

Historical EvolutionHistorical Evolution

The The Régime Anglais (1759 – 1867)Régime Anglais (1759 – 1867) 17741774 – Quebec Act: restores French law in – Quebec Act: restores French law in

private matters private matters However, various English law elements begin However, various English law elements begin

to infiltrateto infiltrate

English Law InfluencesEnglish Law Influences 1764: Judicial system modelled on the English 1764: Judicial system modelled on the English

administration of justice and its court system (the administration of justice and its court system (the “hardware”=English)“hardware”=English)

1777: English rules of evidence in commercial 1777: English rules of evidence in commercial matters matters

1785: J1785: Jury in civil matters ury in civil matters Brisson: “un divorce quasi complet avec la procedure Brisson: “un divorce quasi complet avec la procedure

française”française” 1787: Courts rules of practice1787: Courts rules of practice Result: Quebec procedure begins to adopt its mixed Result: Quebec procedure begins to adopt its mixed

charactercharacter

First Code: First Code: 1866 Code of Civil 1866 Code of Civil Procedure of Lower CanadaProcedure of Lower Canada

Goals: Consolidation, Compilation, ReconciliationGoals: Consolidation, Compilation, Reconciliation Contains elements of procedure that emanate from both Contains elements of procedure that emanate from both

legal traditionslegal traditions Examples that are reminiscent of the French tradition:Examples that are reminiscent of the French tradition:

Judge’s involvement in collecting evidence (including calling parties, Judge’s involvement in collecting evidence (including calling parties, questioning parties and witnesses and writing down their evidence)questioning parties and witnesses and writing down their evidence)

Court appointed experts Court appointed experts Examples that are reminiscent of the English tradition:Examples that are reminiscent of the English tradition:

Judges’ ability to make rules of practice Judges’ ability to make rules of practice Trial by Jury Trial by Jury Ability of parties to question each other Ability of parties to question each other

Upshot of the 1866 Code Upshot of the 1866 Code

Despite overt goal of simply “bringing scattered Despite overt goal of simply “bringing scattered elements together in one place”, the elements together in one place”, the Commissioners’ Report is not value-neutralCommissioners’ Report is not value-neutral

More borrowing of common law procedure via More borrowing of common law procedure via important amendments:important amendments: Discovery (1888) Discovery (1888) Injunction: (1878 – brought into the Code in 1888)Injunction: (1878 – brought into the Code in 1888)

1897 Code of Civil Procedure1897 Code of Civil Procedure 1897 Code moves procedure in Quebec much closer 1897 Code moves procedure in Quebec much closer

to the English adversarial systemto the English adversarial system 1.1. The adoption of the Open Court principle The adoption of the Open Court principle 2. 2. The abolition of the “enquThe abolition of the “enquêteête” (“la principale ” (“la principale

réforme réforme ””)) 3.3. Examination in chief and cross-examination Examination in chief and cross-examination

(“transquestionnement”)(“transquestionnement”) 4.4. Broadening of rules of discoveryBroadening of rules of discovery 5.5. Extension of Injunctive ReliefExtension of Injunctive Relief

1965 Code of Civil Procedure1965 Code of Civil Procedure Major achievement: decrease in Major achievement: decrease in formalismformalism The spirit of the Code is expressed in art 2: The spirit of the Code is expressed in art 2:

Procedure is the handmaiden not the mistressProcedure is the handmaiden not the mistress Procedural rules should be facilitativeProcedural rules should be facilitative Procedural defects can be remediedProcedural defects can be remedied

Important Amendment in 1978: Class ActionImportant Amendment in 1978: Class Action Irony: Quebec, a civil law jurisdiction, is the first Irony: Quebec, a civil law jurisdiction, is the first

province to introduce what is quintessentially a common province to introduce what is quintessentially a common law inventionlaw invention

At this stage, Quebec has all the elements of the At this stage, Quebec has all the elements of the common law adversarial procedural systemcommon law adversarial procedural system

1965 Code: 1965 Code: Opens the door a Opens the door a crack….crack….

There is, however, the beginning of a move towards There is, however, the beginning of a move towards empowering the judgeempowering the judge Art 279: Pre-trial Conference (inviting attorneys Art 279: Pre-trial Conference (inviting attorneys

to discuss ways of simplifying the suit and to discuss ways of simplifying the suit and shortening the hearing)shortening the hearing)

Art 414: Court may, even of its own motion Art 414: Court may, even of its own motion designate an expert to investigate or verify any designate an expert to investigate or verify any factfact

The pendulum starts to swing The pendulum starts to swing back….back….

As we approach the new millenium, the unanimous As we approach the new millenium, the unanimous opinion is that the civil justice system is in opinion is that the civil justice system is in crisiscrisis

The Woolf Report is published in the U.K in 1996 forming The Woolf Report is published in the U.K in 1996 forming the basis of considerable procedural reform in 1999the basis of considerable procedural reform in 1999

In Quebec, in 2001: Ferland Report “Une nouvelle In Quebec, in 2001: Ferland Report “Une nouvelle culture juridique”culture juridique”

Both reports bemoan:Both reports bemoan: The high The high costcost of civil justice of civil justice Its Its complexitycomplexity Its Its delaysdelays

2002 & 2009 Amendments to CCP2002 & 2009 Amendments to CCP 1. Judges are given a more active role by making them case 1. Judges are given a more active role by making them case

managers (art. 4.1, 151.1 et seq)managers (art. 4.1, 151.1 et seq) 2. The concept of proportionality is introduced (art. 4.2)2. The concept of proportionality is introduced (art. 4.2) 3. Settlements are encouraged and a new process of Judicial 3. Settlements are encouraged and a new process of Judicial

Settlement Conference is established (art 4.3, 151.14 et seq)Settlement Conference is established (art 4.3, 151.14 et seq) 4. “Tougher” rules are introduced to keep parties in line such 4. “Tougher” rules are introduced to keep parties in line such

as the 180 day rule (art. 110.1)as the 180 day rule (art. 110.1) 5. The use of discovery is limited to cases over $25,000 (art. 5. The use of discovery is limited to cases over $25,000 (art.

396.1)396.1) 6.6. Provisions related to Abuse of Procedure and SLAPPs Provisions related to Abuse of Procedure and SLAPPs

(art. 54.1 et seq.) (art. 54.1 et seq.)

Purpose of these amendmentsPurpose of these amendments

Ostensibly to mitigate against the problems of Ostensibly to mitigate against the problems of high cost, delay and complexityhigh cost, delay and complexity

Viewed through the lens of legal traditions, “Viewed through the lens of legal traditions, “la la réforme a pour objet d’éliminer les effets réforme a pour objet d’éliminer les effets pervers du système « contradictoire » ou pervers du système « contradictoire » ou « « adversarial »adversarial » .” (Justice YM Morissette) .” (Justice YM Morissette)

Amendments all have some Amendments all have some characteristicscharacteristics of of the civilian procedural system (especially with the civilian procedural system (especially with respect to the role of the judge)respect to the role of the judge)

The Present Day – where do we The Present Day – where do we stand legislatively?stand legislatively?

2014 Code of Civil Procedure2014 Code of Civil Procedure Purpose of the Reform: (Preliminary Prov’n)Purpose of the Reform: (Preliminary Prov’n)

Accessibility of JusticeAccessibility of Justice Promptness of JusticePromptness of Justice Proportionate application of procedural rulesProportionate application of procedural rules Spirit of cooperationSpirit of cooperation

Many macro changes re ADR, reinforcing Many macro changes re ADR, reinforcing proportionality, case management, discovery proportionality, case management, discovery and expert evidenceand expert evidence

Case ManagementCase Management

Made an explicit part of the court’s “mission” Made an explicit part of the court’s “mission” (art. 9(2))(art. 9(2))

Parties continue to control their own case Parties continue to control their own case subject subject to the duty of the court to ensure proper case to the duty of the court to ensure proper case managementmanagement (art. 19) (art. 19)

Case Protocol: broader than current Case Protocol: broader than current échancier échancier (art. 148)(art. 148)

Court is given more extensive case management Court is given more extensive case management “measures” (art. 158)“measures” (art. 158)

DiscoveryDiscovery

Discovery is much more limited: (art. 229)Discovery is much more limited: (art. 229) No discovery for cases less than $30,000No discovery for cases less than $30,000 In family cases or those less than $100,000, In family cases or those less than $100,000,

discovery is limited to discovery is limited to 3 hours3 hours For all other cases, discovery is limited to For all other cases, discovery is limited to 5 hours5 hours Slight extensions (3 – 4 hours, 5 – 7 hours) by Slight extensions (3 – 4 hours, 5 – 7 hours) by

agreement between the partiesagreement between the parties Longer extensions require court authorizationLonger extensions require court authorization

Expert EvidenceExpert Evidence Mission of expert is to enlighten the court (art. 22) Mission of expert is to enlighten the court (art. 22)

““This mission overrides the parties’ interestsThis mission overrides the parties’ interests”” The case protocol must include information about the The case protocol must include information about the

parties intentions re experts and their parties intentions re experts and their justification for justification for not seeking a joint expert opinion not seeking a joint expert opinion (art. 148(4))(art. 148(4))

Part of case management measures includes the court Part of case management measures includes the court imposing joint expert imposing joint expert evidence on the parties (art. evidence on the parties (art. 158(2)) 158(2))

Court may, on own initiative, appoint expert (art. 234)Court may, on own initiative, appoint expert (art. 234)

What do the changes tell us?What do the changes tell us? That the legislator continues to try new things to fix a That the legislator continues to try new things to fix a

problematic civil justice systemproblematic civil justice system And they are doing so by borrowing heavily from the And they are doing so by borrowing heavily from the

philosophy and attributes of a civilian procedural philosophy and attributes of a civilian procedural system system

Not based (at least explicitly) on the desire to assert Not based (at least explicitly) on the desire to assert the integrity of the civil law or its distinct legal the integrity of the civil law or its distinct legal culture (reminiscent of the CCQ reform)culture (reminiscent of the CCQ reform)

Justice Elena Kagan philosophy: “take a good idea Justice Elena Kagan philosophy: “take a good idea wherever it comes from”wherever it comes from”

Why are these good ideas?Why are these good ideas? Not everyone thinks they are!Not everyone thinks they are! Demonstrate that the excesses of the common law Demonstrate that the excesses of the common law

adversarial system are blamed for the current crisisadversarial system are blamed for the current crisis Need for more “managerial judging” and that Need for more “managerial judging” and that

aspects of the continental system are worth studyingaspects of the continental system are worth studying Borne out by the World Justice Project?Borne out by the World Justice Project? 7 of the countries ranked in the top 10 on the civil 7 of the countries ranked in the top 10 on the civil

justice index are civilian jurisdictions justice index are civilian jurisdictions

Where do we stand judicially?Where do we stand judicially?

Much of Quebec civil procedure is borrowed Much of Quebec civil procedure is borrowed from or inspired by the common lawfrom or inspired by the common law

Perennial question: How should judges Perennial question: How should judges interpret and apply Quebec law when the interpret and apply Quebec law when the provisions or issues in play originate in the provisions or issues in play originate in the common law?common law?

Not an easy question for which there is not Not an easy question for which there is not one answerone answer

At one end of the spectrum….At one end of the spectrum…. Judgments that freely apply common law precedents Judgments that freely apply common law precedents

and principlesand principles Eg: Eg: Droit de la famille – 1559Droit de la famille – 1559, 1993 RJQ 625 (QCCA) , 1993 RJQ 625 (QCCA)

dealing with recusation:dealing with recusation: ““Moreover, it is apparent that in civilized jurisdictions other Moreover, it is apparent that in civilized jurisdictions other

than the Province of Quebec apprehension of bias is a ground than the Province of Quebec apprehension of bias is a ground for recusation like any other, urged in the same way as any for recusation like any other, urged in the same way as any other. other. Surely the distinctiveness of our society, and our civil Surely the distinctiveness of our society, and our civil law rather than common law system, do not require that we law rather than common law system, do not require that we be deprived of a useful and logical remedy available be deprived of a useful and logical remedy available elsewhere!elsewhere!” (Justice Tyndale)” (Justice Tyndale)

At that end of the spectrumAt that end of the spectrum We find judgments that even suggest it is We find judgments that even suggest it is incumbentincumbent

to go to the common law where there is a lacuna in to go to the common law where there is a lacuna in the civil lawthe civil law

Wightman v. Widdrington Wightman v. Widdrington 2007QCCA 1687 at para 582007QCCA 1687 at para 58 ““Aucun judgment publiAucun judgment publié au Québec ne porte sur des faits similaires à é au Québec ne porte sur des faits similaires à

ceux qui ont donné naissance à la demande de récusation en Cour ceux qui ont donné naissance à la demande de récusation en Cour supérieure. supérieure. Aussi incombe-t-il à la Cour de consulter la jurisprudence Aussi incombe-t-il à la Cour de consulter la jurisprudence canadienne et étrangère sur cette question.canadienne et étrangère sur cette question. BienBien qu’il y ait lieu de qu’il y ait lieu de faire un usage prudent et éclairé de la jurisprudence en provenance faire un usage prudent et éclairé de la jurisprudence en provenance de ces autres systèmes de droit, cela demeure pertinent lorsque les de ces autres systèmes de droit, cela demeure pertinent lorsque les principes fondamentaux applicables sont substantiellement les principes fondamentaux applicables sont substantiellement les mêmes que ceux admis en droit québécoismêmes que ceux admis en droit québécois””

At the other end of the spectrum…At the other end of the spectrum…

Judgments that warn against looking to, and Judgments that warn against looking to, and applying, the common law applying, the common law

Eg: Eg: Anglo Pacific Group PLC v. Ernst & Young Anglo Pacific Group PLC v. Ernst & Young 2013 QCCA 1323 at para 362013 QCCA 1323 at para 36 ““Le droit civil est un système complet et il faut se Le droit civil est un système complet et il faut se

garder d’adopter des principes provenant de garder d’adopter des principes provenant de systèmes juridique étrangers sans se questionner systèmes juridique étrangers sans se questionner sur leur compatibilité avec notre droit civilsur leur compatibilité avec notre droit civil””

How to reconcile this diversity of How to reconcile this diversity of judicial opinion?judicial opinion?

Is that possible?Is that possible? ContextualContextual Definite trend in Procedural Cases decided by Definite trend in Procedural Cases decided by

Justice LeBel of the SCCJustice LeBel of the SCC Agenda promoting the integrity and heritage Agenda promoting the integrity and heritage

of the civil law traditionof the civil law tradition Focus on 3 recent cases: Focus on 3 recent cases: Lac d’Amiante, Globe Lac d’Amiante, Globe

& Mail, & Mail, and and VivendiVivendi

Lac d’Amiante Lac d’Amiante (2001 SCC)(2001 SCC)

Subject matter: DiscoverySubject matter: Discovery Issue: Its confidential natureIssue: Its confidential nature C.C.P.: Silent on the issueC.C.P.: Silent on the issue QCA: Confidential, largely because it is QCA: Confidential, largely because it is

confidential in common law, from where we confidential in common law, from where we borrowed discovery borrowed discovery

SCC (LeBel, J.): Upholds decision on the merits SCC (LeBel, J.): Upholds decision on the merits but criticizes the C.A. for its reasoningbut criticizes the C.A. for its reasoning

Lac d’AmianteLac d’Amiante ““The rules of Quebec civil procedure…are part of a The rules of Quebec civil procedure…are part of a legal legal

tradition that is different from the common lawtradition that is different from the common law.”.” ““The codified law is paramount. The courts must base their The codified law is paramount. The courts must base their

decisions on it.”decisions on it.” ““Although Quebec civil procedure is mixed, it is Although Quebec civil procedure is mixed, it is

nonetheless codified, written law, governed by a tradition nonetheless codified, written law, governed by a tradition of of civil law interpretationcivil law interpretation.”.”

““In the civil law tradition, the Quebec courts must find their In the civil law tradition, the Quebec courts must find their latitude for interpreting and developing the law within the latitude for interpreting and developing the law within the legal framework comprised by the Code and the general legal framework comprised by the Code and the general principles of procedure underlying itprinciples of procedure underlying it.”.”

Globe and Mail Globe and Mail (2010 SCC)(2010 SCC)

Subject matter: Journalist source privilegeSubject matter: Journalist source privilege Issue: Did a journalist have to disclose a Issue: Did a journalist have to disclose a

confidential source (whistle blower)confidential source (whistle blower) C.C.P.: Silent on the issueC.C.P.: Silent on the issue Common Law: Common Law: “Wigmore doctrine” provided a “Wigmore doctrine” provided a

framework for finding the existence of a framework for finding the existence of a journalist source privilege journalist source privilege

Given what LeBel, J said in Given what LeBel, J said in Lac d’Amiante, Lac d’Amiante, could could he resort to it?he resort to it?

Globe and MailGlobe and Mail ““[The Code] is the [The Code] is the primary source primary source of the principles and of the principles and

rules of the law of civil procedure in Quebec”. rules of the law of civil procedure in Quebec”. ““But the codification of civil procedure does not mean But the codification of civil procedure does not mean

that civil procedure…is completely detached from the that civil procedure…is completely detached from the common law model”.common law model”.

““Not everything is found in the C.C.P.”Not everything is found in the C.C.P.” ““When the mixed source of the Quebec law of procedure When the mixed source of the Quebec law of procedure

and evidence …is properly recognized, it becomes and evidence …is properly recognized, it becomes difficult to accept the argument that there is no difficult to accept the argument that there is no residual residual role for common law legal principles role for common law legal principles in the development in the development of this part of Quebec law.”of this part of Quebec law.”

Globe and MailGlobe and Mail ““If the ultimate source of a legal rule is the common If the ultimate source of a legal rule is the common

law, then it would be only law, then it would be only logical to resort to the logical to resort to the common lawcommon law, in the process of interpreting and , in the process of interpreting and articulating that same rule in the civil law.”articulating that same rule in the civil law.”

Sound like back-pedalling?Sound like back-pedalling? ““This is, of course, premised on the fact that the This is, of course, premised on the fact that the

interpretation and articulation of such a rule would interpretation and articulation of such a rule would not otherwise be contrary to the not otherwise be contrary to the overarching overarching principles set out in the principles set out in the C.C.Q.C.C.Q. and the and the Quebec Quebec CharterCharter.”.”

Vivendi Canada Vivendi Canada (2014 SCC)(2014 SCC)

Subject matter: Class ActionSubject matter: Class Action Issue: Meaning of art. 1003(a) - the Issue: Meaning of art. 1003(a) - the

commonality requirement for class action commonality requirement for class action authorizationauthorization

Could Court have recourse to common law Could Court have recourse to common law decisions?decisions?

Vivendi Canada Vivendi Canada per LeBel and Wagnerper LeBel and Wagner

““Caution must be exercised when applying the Caution must be exercised when applying the principles from [Alberta and B.C. cases] to the rules principles from [Alberta and B.C. cases] to the rules of Quebec civil procedure relating to class actions”of Quebec civil procedure relating to class actions”

““[These cases] certainly provide a general framework [These cases] certainly provide a general framework for analyzing the application of the commonality for analyzing the application of the commonality requirement, but it must be borne in mind that tests requirement, but it must be borne in mind that tests established in a established in a common law context cannot common law context cannot necessarily be imported without adaptationnecessarily be imported without adaptation into into Quebec civil procedure.Quebec civil procedure.

Justice LeBel’s influenceJustice LeBel’s influence

LeBel, J. judgments all speak, to varying LeBel, J. judgments all speak, to varying degrees, to prioritizing the civilian tradition, degrees, to prioritizing the civilian tradition, interpretation and frameworkinterpretation and framework

His view is not substantively basedHis view is not substantively based It is ideologically basedIt is ideologically based

La sauvegarde de l’intégrité du La sauvegarde de l’intégrité du droit civildroit civil

Reminiscent of Justice Mignault a century Reminiscent of Justice Mignault a century earlierearlier

Mignault: the most vocal critic of subsuming Mignault: the most vocal critic of subsuming the civil law to common law principles and the civil law to common law principles and interpretation interpretation

and the most ardent proponent of protecting and the most ardent proponent of protecting the integrity of the civil law through the integrity of the civil law through autonomous interpretationautonomous interpretation

Lebel - Open-minded and Lebel - Open-minded and cosmopolitan Mignaultcosmopolitan Mignault

Who recognizes that Who recognizes that some areas of procedure are some areas of procedure are more conducive to convergence or harmonization more conducive to convergence or harmonization given their globalized context. given their globalized context.

Eg: Eg: Globe and Mail: “Globe and Mail: “The overarching issues raised The overarching issues raised by this appeal are of course not unique to the by this appeal are of course not unique to the province of Quebec. The news media’s reach is province of Quebec. The news media’s reach is borderlessborderless. This is further support for an approach . This is further support for an approach that would result in that would result in consistency across the country, consistency across the country, while preserving the distinctive legal context under while preserving the distinctive legal context under the the Civil CodeCivil Code." ."

Nonetheless…Nonetheless…

LeBel consistently articulates the need to LeBel consistently articulates the need to preserve the primacy and integrity of the civil preserve the primacy and integrity of the civil law tradition (see also non procedural cases law tradition (see also non procedural cases such as such as Prud’homme Prud’homme and and Riopel)Riopel)

What does this mean, particularly in the What does this mean, particularly in the procedural context?procedural context?

What is the civilian tradition in an area of law What is the civilian tradition in an area of law that is entirely foreign to the civil law that is entirely foreign to the civil law (discovery) (discovery)

Meaning of Civilian Tradition?Meaning of Civilian Tradition? Methodology of the civil law and codal interpretation or Methodology of the civil law and codal interpretation or

something more?something more? Only Only reference to the “civil law tradition” in 201reference to the “civil law tradition” in 2014 Code is in 4 Code is in

the Preliminary Provision:the Preliminary Provision: ““This Code must be interpreted and applied as a whole, in the This Code must be interpreted and applied as a whole, in the

civil law tradition”civil law tradition” Consistent with DorConsistent with Doréé v. Verdun (1997 SCC) v. Verdun (1997 SCC)

““Thus, unlike statute law in the common law, the Thus, unlike statute law in the common law, the Civil Code Civil Code is is not a law of exception, and this must be taken into account in not a law of exception, and this must be taken into account in interpreting it. It must be interpreted broadly so as to favour its interpreting it. It must be interpreted broadly so as to favour its spirit over its letter and enable the purpose of its provisions to spirit over its letter and enable the purpose of its provisions to be achieved”be achieved”

ConclusionConclusion ““Civil-isation” of Procedural Law Civil-isation” of Procedural Law Both the legislator and the judiciary are moving in the Both the legislator and the judiciary are moving in the

same civiliste direction (although probably with different same civiliste direction (although probably with different motivations)motivations)

The judiciary (at the SCC through the pen of Justice The judiciary (at the SCC through the pen of Justice LeBel) by emphasizing the importance of the civil law LeBel) by emphasizing the importance of the civil law tradition in procedural (and other) cases tradition in procedural (and other) cases

Begs the question: with LeBel’s imminent retirement Begs the question: with LeBel’s imminent retirement from the bench, who will take over the role of standard from the bench, who will take over the role of standard bearer for the civilian tradition on the Court?bearer for the civilian tradition on the Court?

ConclusionConclusion The legislator is doing the same by importing The legislator is doing the same by importing

substantive civilian procedural concepts (active substantive civilian procedural concepts (active judge, common expertise)judge, common expertise)

And limiting the ambit of common law procedural And limiting the ambit of common law procedural concepts (discovery)concepts (discovery)

This is part of the ebb and flow of the ever changing This is part of the ebb and flow of the ever changing and developing nature of law (legal transplantation)and developing nature of law (legal transplantation)

This shows the ability of mixed jurisdictions to learn This shows the ability of mixed jurisdictions to learn and experiment through the experience of two legal and experiment through the experience of two legal traditionstraditions