Procedural Law in Quebec: The Role Legal Traditions Play

1. Procedural Law in Quebec: The Role Legal Traditions Play Professor Rosalie Jukier McGill University March 25, 2014

2. Procedural Change • Compare the codification activity level with respect to Quebec’s two Codes: Civil Code, Code of Procedure • The new Code of Civil Procedure represents the fourth complete recodification of procedure in Quebec (1866, 1897, 1965, 2014)

3. This provides an opportune moment to reflect on… • The influence of legal traditions on civil procedure in Quebec • The role such traditions play in the legislative evolution and judicial interpretation of procedural law • “Societies may see their basic values reflected more in their procedural systems than in their substantive law” • Stephen Goldstein, “The Odd Couple: Common Law Procedure and Civilian Substantive Law” (2003) 78 Tul L Rev 291 at 293

4. Outline • Main differences in procedural law in the two major legal traditions of the civil and the common law • Historical evolution of procedure in Quebec tracing the tradition-based changes that have occurred over time • Look closely at the present day through two lenses a. legislative (the 2014 Code) b. judicial (examine key judgments)

5. Tradition-based differences in Procedural Law “adversarial” (common law) versus “inquisitorial” (civil law)

6. Misleading Nature of this Differentiation • 1. Common law procedural systems do not have a monopoly on the “adversarial” quality of litigation • 2. The civilian continental procedural system might better be labelled “investigative” or “judge-centred rather than “inquisitorial” • 3. Wrong to see the two systems as polar opposites and often, differences are in degree not in kind • 4. As in all areas of comparative law, we must be cognizant of the variances amongst legal systems within the same legal traditions (eg U.S vs U.K)

7. Major tradition-based differences • Role of the Judge • The traditional Common law judge has been described as “a passive, receptive and detached umpire” • as someone who views the case “from a peak of Olympian ignorance”

8. The Judge of the Civilian Tradition is, by contrast… • vocal and dominant • “activist, outspoken or even paternalistic” • “the director of an improvised play” • or even a “priest, [where] the advocates act as the acolytes – deferential assistants in a ceremony controlled thoroughly by the judge”

9. Essence of the distinction • The civilian judge controls the evidentiary process and performs the critically important function of exploring and sifting evidence (engages experts, questions witnesses, asks questions…) • In contrast, in the adversarial system, the parties (through their lawyers) take charge of the process, frame the issues, investigate the evidence and select what will be presented at trial.

10. Different conception of “truth” • The civilian system is predicated on finding “la vraie vérité” • Common law procedure was not designed to establish the truth • “The role of the court is to decide on the basis of allegations of the parties and not on the basis of underlying truth” (Air Canada v. Secretary of State for Trade 1983, House of Lords) • Procedural fairness is prioritized over truth • There is an assumption that truth will be teased out by examination and cross examination of witnesses

11. Primacy of the oral versus the written • In the common law, the emphasis is on oral evidence and oral argumentation • In the continental civilian tradition, (the “dossier system”), proof is essentially written with no examination or cross examination of witnesses by lawyers in open court • “Tout témoignage lui est suspect” (Augagneur)

12. Role of Expert Witnesses • Nor are experts called by the respective parties, or examined and cross-examined in open court • In the continental conception of procedure, experts are: • judge-appointed • common or joint expertise • Judge “outsources” the evidentiary work to an expert • Very different than the traditional common law procedural system: battle between the experts

13. Differentconceptions of the “trial” • Largely as a result of the jury , the common law trial is a single event in which witnesses and evidence are presented in a continuous procedure • And there is a distinct “pre-trial” period • The continental “trial” is segmented • Hearings before the court are very short – as short as 15 – 30 minutes!

14. Compare the French “trial” with what we are used to in Quebec • Laflamme c. Groupe TDL ltée(2014 QCCS 312) • Facts: woman ingested a single spoonful of excessively hot soup at Tim Hortons and sued for $2 million damages • The trial lasted 10 full days • 9 medical experts testified and countless others submitted written expert reports • Judgment was 77 pages (or 426 paras) long and gave judgment for the plaintiff in the amount of $69,000 • Note: Estimated cost of one day in court to taxpayer is $10,000

15. Pre-Trial and its Corollary…Discovery • Directly related to counsel’s active role in gathering and analyzing evidence during the distinct pre-trial period • Unavailable/improper in civil law jurisdictions • No need for party-initiated discovery because the court, rather than the parties, is in charge of the development of evidence

16. Additional Differences: Appellate Review • Civilian conceptions of appeal are much broader both in their availability and in the nature of the reconsideration (facts as well as law) • Note: 2013 statistics for the Cour de Cassation state that there were 20,049 dossiers jugés in civil matters and 8,158 in criminalmatters (total 28, 207). Compare that with the SCC which renders between 60 and 80 judgments per year • No concept of appellate dissent in the civil law tradition

17. Additional Differences related to the Judge and Judgments • There are different conceptions of the training of the judge (eg French École de la magistrature) and the appointment of such judge (from the practicing Bar in common law systems) • Different status: Bureaucratic figure versus commanding magisterial presence • Different judgment styles: Anonymous, impersonal and syllogistic vs signed, opinionated and discursive

18. Where Does Quebec Fit In? • Easy question of the evening! • Quebec procedural law has been portrayed as having “un air de common law en pays de droit civil” (Jutras) • How did Quebec get to this end result?

19. Historical Evolution • RégimeFrançais– 1534 – 1759 • 1667: Ordonnancesur la procédure civile • Characterized by the French civilian tradition: • Testimony of witnesses is done by way of writing • No examination or cross-examination in open court • Experts are court-appointed and their testimony is in writing • Procedure is by way of the “enquête” whereby a judge or commissioner reduces to writing what the witnesses say

20. Historical Evolution • The Régime Anglais (1759 – 1867) • 1774 – Quebec Act: restores French law in private matters • However, various English law elements begin to infiltrate

21. English Law Influences • 1764: Judicial system modelled on the English administration of justice and its court system (the “hardware”=English) • 1777: English rules of evidence in commercial matters • 1785: Juryin civil matters • Brisson: “un divorce quasi completavec la procedure française” • 1787: Courts rules of practice • Result: Quebec procedure begins to adopt its mixed character

22. First Code: 1866 Code of Civil Procedure of Lower Canada • Goals: Consolidation, Compilation, Reconciliation • Contains elements of procedure that emanate from both legal traditions • Examples that are reminiscent of the French tradition: • Judge’s involvement in collecting evidence (including calling parties, questioning parties and witnesses and writing down their evidence) • Court appointed experts • Examples that are reminiscent of the English tradition: • Judges’ ability to make rules of practice • Trial by Jury • Ability of parties to question each other

23. Upshot of the 1866 Code • Despite overt goal of simply “bringing scattered elements together in one place”, the Commissioners’ Report is not value-neutral • More borrowing of common law procedure via important amendments: • Discovery (1888) • Injunction: (1878 – brought into the Code in 1888)

24. 1897 Code of Civil Procedure • 1897 Code moves procedure in Quebec much closer to the English adversarial system • 1. The adoption of the Open Court principle • 2. The abolition of the “enquête” (“la principaleréforme ”) • 3. Examination in chief and cross-examination (“transquestionnement”) • 4. Broadening of rules of discovery • 5. Extension of Injunctive Relief

25. 1965 Code of Civil Procedure • Major achievement: decrease in formalism • The spirit of the Code isexpressed in art 2: • Procedureis the handmaiden not the mistress • Proceduralrulesshouldbefacilitative • Proceduraldefectscanberemedied • Important Amendment in 1978: Class Action • Irony: Quebec, a civil law jurisdiction, is the first province to introduce what is quintessentially a common law invention • At this stage, Quebec has all the elements of the common law adversarial procedural system

26. 1965 Code: Opens the door a crack…. • There is, however, the beginning of a move towards empowering the judge • Art 279: Pre-trial Conference (inviting attorneys to discuss ways of simplifying the suit and shortening the hearing) • Art 414: Court may, even of its own motion designate an expert to investigate or verify any fact

27. The pendulum starts to swing back…. • As we approach the new millenium, the unanimous opinion is that the civil justice system is in crisis • The Woolf Report is published in the U.K in 1996 forming the basis of considerable procedural reform in 1999 • In Quebec, in 2001: Ferland Report “Une nouvelle culture juridique” • Both reports bemoan: • The high cost of civil justice • Its complexity • Its delays

28. 2002 & 2009 Amendments to CCP • 1. Judges are given a more active role by making them case managers (art. 4.1, 151.1 et seq) • 2. The concept of proportionality is introduced (art. 4.2) • 3. Settlements are encouraged and a new process of Judicial Settlement Conference is established (art 4.3, 151.14 et seq) • 4. “Tougher” rules are introduced to keep parties in line such as the 180 day rule (art. 110.1) • 5. The use of discovery is limited to cases over $25,000 (art. 396.1) • 6. Provisions related to Abuse of Procedure and SLAPPs (art. 54.1 et seq.)

29. Purpose of these amendments • Ostensibly to mitigate against the problems of high cost, delay and complexity • Viewed through the lens of legal traditions, “la réforme a pour objet d’éliminer les effets pervers du système « contradictoire » ou « adversarial » .” (Justice YM Morissette) • Amendments all have some characteristics of the civilian procedural system (especially with respect to the role of the judge)

30. The Present Day – where do we stand legislatively? • 2014 Code of Civil Procedure • Purpose of the Reform: (Preliminary Prov’n) • Accessibility of Justice • Promptness of Justice • Proportionate application of procedural rules • Spirit of cooperation • Many macro changes re ADR, reinforcing proportionality, case management, discovery and expert evidence

31. Case Management • Made an explicit part of the court’s “mission” (art. 9(2)) • Parties continue to control their own case subject to the duty of the court to ensure proper case management (art. 19) • Case Protocol: broader than current échancier (art. 148) • Court is given more extensive case management “measures” (art. 158)

32. Discovery • Discovery is much more limited: (art. 229) • No discovery for cases less than $30,000 • In family cases or those less than $100,000, discovery is limited to 3 hours • For all other cases, discovery is limited to 5 hours • Slight extensions (3 – 4 hours, 5 – 7 hours) by agreement between the parties • Longer extensions require court authorization

33. Expert Evidence • Mission of expert is to enlighten the court (art. 22) • “This mission overrides the parties’ interests” • The case protocol must include information about the parties intentions re experts and their justification for not seeking a joint expert opinion (art. 148(4)) • Part of case management measures includes the court imposing joint expert evidence on the parties (art. 158(2)) • Court may, on own initiative, appoint expert (art. 234)

34. What do the changes tell us? • That the legislator continues to try new things to fix a problematic civil justice system • And they are doing so by borrowing heavily from the philosophy and attributes of a civilian procedural system • Not based (at least explicitly) on the desire to assert the integrity of the civil law or its distinct legal culture (reminiscent of the CCQ reform) • Justice Elena Kagan philosophy: “take a good idea wherever it comes from”

35. Why are these good ideas? • Not everyone thinks they are! • Demonstrate that the excesses of the common law adversarial system are blamed for the current crisis • Need for more “managerial judging” and that aspects of the continental system are worth studying • Borne out by the World Justice Project? • 7 of the countries ranked in the top 10 on the civil justice index are civilian jurisdictions

36. Where do we stand judicially? • Much of Quebec civil procedure is borrowed from or inspired by the common law • Perennial question: How should judges interpret and apply Quebec law when the provisions or issues in play originate in the common law? • Not an easy question for which there is not one answer

37. At one end of the spectrum…. • Judgments that freely apply common law precedents and principles • Eg: Droit de la famille – 1559, 1993 RJQ 625 (QCCA) dealing with recusation: • “Moreover, it is apparent that in civilized jurisdictions other than the Province of Quebec apprehension of bias is a ground for recusation like any other, urged in the same way as any other.  Surely the distinctiveness of our society, and our civil law rather than common law system, do not require that we be deprived of a useful and logical remedy available elsewhere!” (Justice Tyndale)

38. At that end of the spectrum • We find judgments that even suggest it is incumbent to go to the common law where there is a lacuna in the civil law • Wightman v. Widdrington2007QCCA 1687 at para 58 • “Aucun judgment publié au Québec ne porte sur des faits similaires à ceux qui ont donné naissance à la demande de récusation en Cour supérieure. Aussi incombe-t-il à la Cour de consulter la jurisprudence canadienne et étrangère sur cette question.Bien qu’il y ait lieu de faire un usage prudent et éclairé de la jurisprudence en provenance de ces autres systèmes de droit, cela demeure pertinent lorsque les principes fondamentaux applicables sont substantiellement les mêmes que ceux admis en droit québécois”

39. At the other end of the spectrum… • Judgments that warn against looking to, and applying, the common law • Eg: Anglo Pacific Group PLC v. Ernst & Young 2013 QCCA 1323 at para 36 • “Le droit civil est un système complet et il faut se garder d’adopter des principes provenant de systèmes juridique étrangers sans se questionner sur leur compatibilité avec notre droit civil”

40. How to reconcile this diversity of judicial opinion? • Is that possible? • Contextual • Definite trend in Procedural Cases decided by Justice LeBel of the SCC • Agenda promoting the integrity and heritage of the civil law tradition • Focus on 3 recent cases: Lac d’Amiante, Globe & Mail, and Vivendi

41. Lac d’Amiante(2001 SCC) • Subject matter: Discovery • Issue: Its confidential nature • C.C.P.: Silent on the issue • QCA: Confidential, largely because it is confidential in common law, from where we borrowed discovery • SCC (LeBel, J.): Upholds decision on the merits but criticizes the C.A. for its reasoning

42. Lac d’Amiante • “The rules of Quebec civil procedure…are part of a legal tradition that is different from the common law.” • “The codified law is paramount. The courts must base their decisions on it.” • “Although Quebec civil procedure is mixed, it is nonetheless codified, written law, governed by a tradition of civil law interpretation.” • “In the civil law tradition, the Quebec courts must find their latitude for interpreting and developing the law within the legal framework comprised by the Code and the general principles of procedure underlying it.”

43. Globe and Mail (2010 SCC) • Subject matter: Journalist source privilege • Issue: Did a journalist have to disclose a confidential source (whistle blower) • C.C.P.: Silent on the issue • Common Law: “Wigmore doctrine” provided a framework for finding the existence of a journalist source privilege • Given what LeBel, J said in Lac d’Amiante, could he resort to it?

44. Globe and Mail • “[The Code] is the primary source of the principles and rules of the law of civil procedure in Quebec”. • “But the codification of civil procedure does not mean that civil procedure…is completely detached from the common law model”. • “Not everything is found in the C.C.P.” • “When the mixed source of the Quebec law of procedure and evidence …is properly recognized, it becomes difficult to accept the argument that there is no residual role for common law legal principles in the development of this part of Quebec law.”

45. Globe and Mail • “If the ultimate source of a legal rule is the common law, then it would be only logical to resort to the common law, in the process of interpreting and articulating that same rule in the civil law.” • Sound like back-pedalling? • “This is, of course, premised on the fact that the interpretation and articulation of such a rule would not otherwise be contrary to the overarching principles set out in the C.C.Q. and the Quebec Charter.”

46. Vivendi Canada (2014 SCC) • Subject matter: Class Action • Issue: Meaning of art. 1003(a) - the commonality requirement for class action authorization • Could Court have recourse to common law decisions?

47. Vivendi Canada per LeBel and Wagner • “Caution must be exercised when applying the principles from [Alberta and B.C. cases] to the rules of Quebec civil procedure relating to class actions” • “[These cases] certainly provide a general framework for analyzing the application of the commonality requirement, but it must be borne in mind that tests established in a common law context cannot necessarily be imported without adaptation into Quebec civil procedure.

48. Justice LeBel’s influence • LeBel, J. judgments all speak, to varying degrees, to prioritizing the civilian tradition, interpretation and framework • His view is not substantively based • It is ideologically based

49. La sauvegarde de l’intégrité du droit civil • Reminiscent of Justice Mignault a centuryearlier • Mignault: the most vocal critic of subsuming the civil law to common law principles and interpretation • and the most ardent proponent of protecting the integrity of the civil law through autonomous interpretation

50. Lebel - Open-minded and cosmopolitan Mignault • Who recognizes that some areas of procedure are more conducive to convergence or harmonization given their globalized context. • Eg: Globe and Mail: “The overarching issues raised by this appeal are of course not unique to the province of Quebec. The news media’s reach is borderless. This is further support for an approach that would result in consistency across the country, while preserving the distinctive legal context under the Civil Code."