Blakes Guide to Litigation and Dispute Resolution in Canada

1. Overview

Quebec is among the few Canadian provinces where law is practised regularly in both English and French. Although most lawyers practising in Quebec are bilingual and, therefore, can give advice in both languages, there is still a perceived language barrier that makes Quebec seem less accessible than other jurisdictions. However, most of the litigation in cities other than Montréal will be in French.

With the adoption of Bill 96, civil proceedings in Quebec are subject to new linguistic requirements. Although both French and English may be used in all matters before the courts of Quebec, legal entities must now attach a certified French translation to any pleading issued in English. The costs associated with these translations must be covered by the entity. At the time of writing, the application of these provisions is stayed pending a constitutional challenge of their validity.

Another important difference in Quebec is that the province operates under a civil law system (Civil Code of Québec), as opposed to the other nine provinces and all the territories, which operate under a common law system. The fact that Quebec is governed by a civil code does not mean that common law is not at issue in proceedings in Quebec. In fact, common law may govern public or administrative law litigation and litigation that is conducted before the Federal Court of Canada (which sits in the cities of Montréal and Québec) or in matters that fall within federal power under the Canadian Constitution, such as criminal law, bankruptcy and insolvency or maritime law.

From a procedural point of view, proceedings in Quebec are conducted under the CCP, which is similar to a certain extent to the various rules of practice found in the common law provinces. An important reform of the CCP came into force on January 1, 2016. The new CCP is intended to, among other things, streamline and modernize many rules of civil procedure and affirm the existence of private, voluntary dispute prevention and resolution processes, as well as encourage parties to explore such processes prior to pursuing judicial proceedings. The CCP has recently undergone further reform. Beginning on June 1, 2022, certain documents and deeds used in real estate transactions must be drafted in French. Bill 8, which came into effect on June 30, 2023, further introduced substantial changes to civil procedure at the Court of Quebec.

2. Quebec Courts and Jurisdiction

Quebec has two main court levels: (1) a superior court, designated as the Superior Court of Quebec, which has primary, inherent jurisdiction over most civil claims, and (2) a lower provincial court, designated as the Court of Quebec, which has a limited jurisdiction determined by statute. The Superior Court of Quebec is the court of original general jurisdiction and hears in first instance every action not assigned exclusively to another court by a specific provision of law. As such, the Superior Court of Quebec exercises an inherent competence that is akin to the jurisdiction of the Superior Courts in the other provinces.

As in the other provinces, jurisdiction in bankruptcy is specifically assigned to the Superior Court of Quebec under and by virtue of section 183(1.1) of the Bankruptcy and Insolvency Act.

The Court of Quebec has jurisdiction to the exclusion of the Superior Court for civil claims in which the sum claimed or the value of the thing demanded is less than C$75,000, except in actions reserved for the Federal Court of Canada. If the sum claimed or the value of the thing demanded is between C$75,000 and C$100,000, the Court of Quebec and Superior Court have concurrent jurisdiction. This unique state of affairs follows a 2021 decision by the Supreme Court of Canada and subsequent amendments to the CCP that came into force on June 30, 2023. However, it is not yet clear if the amendments are sufficiently robust to comply with the Supreme Court of Canada’s decision on claim limits at the Court of Quebec.

The Court of Quebec has a Small Claims Division with its own special procedure for monetary claims of C$15,000 or less. This amount is indexed to increase every year according to certain regulatory parameters and must increase by a minimum of C$1,000 per year. Additionally, there are municipal courts in Quebec in which jurisdiction and the powers of the justices of the peace are set out in special laws.

The Court of Appeal of Quebec is the general appeal tribunal for Quebec. It hears appeals from any judgment from which an appeal lies, failing an express provision to the contrary in the CCP. More specifically, an appeal lies from any final judgment of the Superior Court of Quebec or Court of Quebec. However, leave to the Court of Appeal is required when the value of the subject matter of the dispute under appeal is less than C$60,000.

An interlocutory judgment of the Superior Court or the Court of Quebec is appealable as of right if it rejects an objection to evidence based on certain duties of confidentiality. Other interlocutory judgments can only be appealed if leave is granted. A judge of the Court of Appeal may grant leave if the decision appears unreasonable in light of the guiding principles or procedures.

Court of Appeal decisions are generally rendered by panels of three or five judges. The final arbitrator of disputes in Quebec is the Supreme Court of Canada, as in the common law provinces.

3. Contractual Liability in Quebec

3.1 Breach of Contract

Two provisions in the CCQ set out the details of a claim for breach of contract. Article 1458 sets out the liability of the party in breach:

Every person has a duty to honour his contractual undertakings.

Where he fails in this duty, he is liable for any bodily, moral or material injury he causes to the other contracting party and is bound to make reparation for the injury; neither he nor the other party may in such a case avoid the rules governing contractual liability by opting for rules that would be more favourable to them.

Article 1590 sets out what constitutes the performance of an obligation:

An obligation confers on the creditor the right to demand that the obligation be performed in full, properly and without delay.

Where the debtor fails to perform his obligation without justification on his part and he is in default, the creditor may, without prejudice to his right to the performance of the obligation in whole, or in part by equivalence,

force specific performance of the obligation;
obtain, in the case of a contractual obligation, the resolution or resiliation of the contract or the reduction of his own correlative obligation;
take any other measure provided by law to enforce his right to the performance of the obligation.

Note that in the civil law, the failure to fulfil a contract does not always give rise to a cause of action. For example, force majeure exempts the contracting party from liability, even if the contract does not contain a force majeure clause.

3.2 Remedies for Breach of Contract

Several remedies are available for a breach of contract, including specific performance, termination of the contract and resolution of the contract, reduction of obligations, non-performance and right of retention.

Unlike under the common law, where specific performance is an exceptional remedy, specific performance is a common remedy in Quebec. The court will refuse to grant specific performance where the obligation to be performed is intuitu personae, meaning that it requires unique and personal involvement by a physical person. Specific performance will also be denied where the obligation is illegal, dangerous, impossible or prejudices the rights of a third party, and where the actions performed are sufficiently complex to render compliance with the order difficult or impossible for the court to verify.

The court may also grant the resolution or the termination of a contract. The resolution of a contract is the retrospective and prospective annulment of a contract, whereas termination is the prospective annulment of a contract. Where the breach by the defendant is not sufficiently serious to warrant termination or resolution, the plaintiff may petition the court to reduce their correlative obligations under a contract. Pending the execution of the contract by their co-contracting party, the plaintiff may also withhold execution of their obligations under the contract or retain property in their possession that belongs to the defendant.

3.3 Damages

In addition to the remedies noted above, the plaintiff may apply for damages to compensate a sustained loss or a profit of which they have been deprived. Contractual damages are less extensive than extra-contractual damages. The defendant is only liable for damages foreseeable at the time the obligation was contracted, except in cases of intentional or gross fault. Even in the latter circumstance, the defendant can only be held liable for the immediate and direct consequences of the non-performance.

4. Extra-Contractual Liability in Quebec

In Quebec, the general regime for extra-contractual liability — comparable to common law tort liability — is set out in Article 1457 of the CCQ. Note how it mirrors the article for contractual liability:

Every person has a duty to abide by the rules of conduct incumbent on him, according to the circumstances, usage or law, so as not to cause injury to another.

Where he is endowed with reason and fails in this duty, he is liable for any injury he causes to another by such fault and is bound to make reparation for the injury, whether it be bodily, moral or material in nature.

He is also bound, in certain cases, to make reparation for injury caused to another by the act, omission or fault of another person or by the act of things in his custody.

Subsequent articles in the CCQ deal with cases that have to do with liability for the act of a minor and liability for the act of a thing. To bring a successful action for extra-contractual liability in Quebec, a plaintiff must prove fault on the part of the defendant, injury suffered by the plaintiff and a causal link between the fault and the injury.

4.1 Duty of Care

A typical situation in which the common law and civil law approach differ is the case of the bystander. In a common law jurisdiction, a bystander who comes across a person in distress and does nothing to help said person cannot be held responsible, as the bystander owes no duty of care to the person in distress. In Quebec, a bystander is required to take all reasonable steps to help an individual in distress, although the bystander is not required to put themselves at risk.

4.2 Standard of Care/Fault

The civil law approach to fault and the standard of care is substantially similar to that of the common law. Both systems adopted an objective standard to measure the defendant’s conduct. Whereas the common law archetype is the fictional “reasonable person,” the traditional civilist archetype, doubtless reflecting the prejudices of the age, used to be the bon père de famille (the good head of the household). More recently, two new archetypes have become discernible in the literature, namely the honnête citoyen (the honest citizen) and the personne prudente et diligente (the prudent and diligent person).

To blunt the impact of the generalized duty of care, courts sometimes have recourse to the language of fault. The personne prudente et diligente, while prudent and diligent, is not expected to foresee all possible consequences of their actions. Thus, the court might find that the injury inflicted on the plaintiff is so unexpected or beyond reason that no fault exists on the part of the defendant.

4.3 Injury

The laws of injury in Quebec and the rest of Canada do not differ greatly. If anything, treating injury and causation separately in Quebec has led to a greater emphasis on each one. One particularity of the CCQ is the recognition of moral damages as a recoverable head of damages. Moral damages have been used, for example, to compensate solatium doloris, the harm felt by a spouse or relative following the death of the plaintiff, as well as nervous shock complained of by a plaintiff.

4.4 Causation

Causation and, in particular, remoteness are used by civil courts as a factor in limiting the effect of a generalized duty of care. A defendant will not be held responsible for losses that the court considers too remote.

5. Commencement of an Action and Service

In Quebec, an action is instituted by way of an originating application. The defendant responds to the application by filing an answer within 15 days of being served. The parties are then called upon to agree to a timetable for the prosecution of the case, known as a case protocol. The case protocol includes all procedural matters dealing with the presentation of preliminary motions, the scheduling of examinations out of court, the filing of expert reports and the filing of all pleadings to bring the case to trial. Should the parties fail to agree on a timetable, the judge will impose one on the parties, dictating the time periods that the various procedural steps must be completed.

The parties must file a request with the court to set the case down for trial within six months after the date on which the case protocol is approved. The request is made by a joint declaration that the case is ready for trial and setting out details such as lists of exhibits and witnesses. If the declaration cannot be made jointly, the plaintiff or another party can file a proposed declaration, and the other parties are given 15 days to file their own proposed declaration, stating what should be added or deleted; If the other parties fail to submit their own, the initially filed proposed declaration is accepted.

At any stage before the trial date, the judge may conduct a pre-trial conference to determine whether a settlement is possible, whether admissions can be made and how much time is required for trial. In a standard court action in Quebec, the parties will be heard approximately 12 to 36 months from the time the originating application was filed, and, in most civil matters, a Quebec judge has a maximum of six months from the time the trial ended to render a judgment. An unsuccessful party who wishes to appeal the judgment has 30 days to appeal the trial judge’s decision or, if applicable, apply for leave to appeal. There is no procedure for summary judgment in Quebec.

All originating documents — for example, the originating application — are to be served by a bailiff or via an enumerated alternative to personal service. Personal service is normally carried out by a process server and can take between one and several days to perform. All other court documents must be served personally, either by bailiff, by mail or, in cases where a party has permitted its lawyer to accept service, by email, facsimile or courier. Proof of service is made by an Affidavit of Service sworn by the person serving the documents and is accepted in court proceedings as proof of service.

Clear rules exist as to how documents are to be served on any entity that is not a natural person. For example, personal service on a corporation is made at its head office (if in Quebec) or one of its establishments in Quebec and involves leaving the document in the care of a person who appears in a position to give it to an officer, director or agent of the corporation, or by delivering the document personally to an officer, director or agent of the corporation at any place.

6. Procedures in Courts of First Instance

Within a standard court action in Quebec, the CCP sets out various remedies available to the parties within the context of civil proceedings. Apart from filing the originating application to seek a damage award, interim remedies are also available in Quebec, including interlocutory injunctions. Seizures before judgment may be permitted with leave of a judge, which allows the plaintiff to seize the property of a defendant when there is reason to fear that the recovery of the debt may otherwise be in jeopardy. Similarly, Article 517 of the CCP provides that a plaintiff may also seize, without obtaining leave of the court, certain property before judgment, including movable property that the plaintiff has a right to recover and movable property permitted to be seized by a provision of law, to assure the exercise of the plaintiff’s rights upon it.

Final judgments in Quebec may also be enforced by a writ of seizure and sale of property, garnishment by the judgment creditor of the debts owing to the judgment debtor, and an order for forced surrender. A final judgment in Quebec may only be enforced when it becomes executory and once a right of appeal has lapsed.

Finally, the losing party, under and by virtue of Article 340 of the CCP, must pay all legal costs including the cost of the stenographer, unless the court, by decision-giving reasons, orders otherwise. Additionally, the court may, by a decision supported by reasons, reduce the costs relating to experts’ appraisals requested by the parties, particularly if in the opinion of the court there was no need for the appraisals, the costs were unreasonable or a single expert appraisal would have sufficed. Lawyers’ fees are recoverable in the event of abuse of proceedings by the other party, in which case they are usually awarded in the context of a claim for damages in the originating application or in an incidental proceeding rather than as costs. However, these awards remain exceptional. The general rule is that each party pays its own lawyers’ fees, which are not recoverable from the losing party.

7. Discoveries and Examination of Witnesses

7.1 Generally

Discoveries in Quebec are provided for in Articles 221 to 230 of the CCP. Written and oral discoveries must be set out in the case protocol. Oral discovery is not allowed in claims of less than C $50,000. In any event, the right to oral discovery is limited to three hours in claims of less than C$100,000 and five hours in other claims. It can be extended from five to seven hours or from three to four hours upon the agreement of all parties. Oral discovery is conducted under oath before a court stenographer and each party may ask relevant questions to every opposing party.

In Quebec, objections raised during oral discovery, including objections based on relevance, generally do not prevent the examination from continuing and the witness is required to answer under reserve of any objections to be adjudicated at trial. That said, the witness may refuse to answer questions objected to on the basis of (1) not being able to compel the witness, (2) fundamental rights, or (3) protecting a fundamental and legitimate interest. In such case, objections must be adjudicated before the court within five days.

Finally, an examined party may give information or documents by an undertaking to be provided at a later date if such information or documents are not available at the time of the examination. Note that the affidavit of documents does not exist in Quebec. A party has no obligation to disclose in advance all documents relevant to a matter in issue that are or have been in the party’s possession, control or power. Examinations out of court, thus, become particularly important in order for the party conducting the examination to obtain communication of the relevant documents through undertakings of the opposing party.

7.2 Abroad

Article 499 of the CCP provides for the examination of witnesses abroad by a rogatory commission. More specifically, the court may, on motion, appoint a commissioner to receive the testimony of any person who resides outside Canada, if the witness cannot be examined by technological means.

After notice is given to the other parties, any party may have examinations and cross-examinations admitted by the court and attached to the rogatory commission. In any event, whether or not there are examinations beforehand, the commissioner may ask and must allow the parties to ask any questions relevant to the case. Additionally, the commissioner shall reserve any objections made by the parties to the evidence. The depositions are recorded in writing and signed by the witness and the commissioner unless they are taken by a duly sworn stenographer.

Finally, the commissioner is authorized to make a copy of any document exhibited by a witness who refuses to part with it.

8. Recognition of Foreign Judgments

The authority of the country in which the decision was rendered had no jurisdiction under the provisions of the title in the CCQ pertaining to recognition and enforcement of foreign decisions
The decision is subject to ordinary remedy or is not final or enforceable in the jurisdiction in which it was rendered
The decision was rendered in contravention of the fundamental principles of procedure
A dispute between the same parties, based on the same facts and having the same object, has given rise to a decision rendered in Quebec, is pending before a Quebec authority or has been decided in a third country
The outcome of a foreign decision is manifestly inconsistent with public order as understood in international relations
The decision enforces obligations arising from the taxation laws of a foreign country

Article 3158 of the CCQ also provides that the Quebec courts are confined to verifying whether the foreign decision, with respect to which recognition or enforcement is sought, meets the requirements prescribed in the CCQ on recognition and enforcement of foreign decisions without entering into any examination of the merits of the decision.

Article 3168 of the CCQ provides that the jurisdiction of a foreign authority is recognized by the Quebec courts only where:

The defendant was domiciled in the country in which the decision was rendered
The defendant possessed an establishment in the country in which the decision was rendered and the dispute relates to its activities in that country
An injury was suffered in the country in which the decision was rendered
The obligations arising from a contract were to be performed in that country
The parties submitted to the foreign authority disputes that arose or could have arisen between them with respect to a specific legal relationship
The defendant accepted the jurisdiction of the foreign authority

As such, once the Quebec court has made the determination that the foreign authority was competent and that none of the exceptions stated in Article 3155 of the CCQ are applicable, the decision will be recognized and declared enforceable.