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Court of Quebec - Civil Division

The Court of Quebec is very important because it is there that many cases are heard by a judge for the first time. The Court of Quebec is divided into three Divisions: the Civil Division, the Criminal and Penal Division, and the Youth Division. Remember that what’s often referred to as “small claims court” is really part of the Civil Division of the Court of Quebec. This section of Côtécour deals with the Civil Division of the Court of Quebec, excluding small claims.

The types of cases that can come before the Court of Quebec depend on the amount of money in dispute. In general, the Court of Quebec hears claims of less than $70,000.

The Court of Quebec hears a variety of matters ranging from the recovery of municipal or school taxes to having a person undergo a psychiatric examination, or confined to an institution.

In addition, only the Court of Quebec can hear appeals of certain decisions made by other bodies. For example, the Court hears appeals of decisions made by the Commission d'accès à l'information, the Régie du logement, the Comité de déontologie policière, and Revenu Québec on the issue of provincial taxation. The Court of Quebec has the power to uphold the body's decision or change it.


Please Note
The rules presented in the section entitled Step-by-step guide to procedure summarize the rules applicable to judicial proceedings filed as of January 1, 2003. However, the text is not a detailed explanation of every single step a file may go through before a judgment is rendered.



Judicial characters and concept

Judge

I have been a judge at the Court of Québec for about 10 years. Before becoming a judge, I was a lawyer for more than 15 years. I practised as a litigator at a well-known law firm in Montreal. I hadn’t really thought about becoming a judge until one of my co-workers was appointed. His enthusiasm for his new career sparked my interest. Finally, after a few years, I was appointed a judge as well: and so began a great career!

The work of the judge differs in many ways from that of a lawyer. I had to make some adjustments. The lawyer works to defend his client to the best of his knowledge and abilities. The judge, on the other hand, tries to fix a problem that exists between people who haven’t succeeded in coming to a settlement. The judge intervenes as a last resort. She listens to the parties without taking a side and decides according to the evidence that the lawyers present and the law in force. All this is done while ensuring that the debate is conducted fairly. Obviously, the judge must have good legal instincts, and having practised as a lawyer before becoming a judge is an important advantage in this regard. But if my old lawyer’s habits sometimes encourage me to ask questions of the parties, I have to remind myself that the judge must leave that job to the attorneys.

In addition to being patient and respectful with the people who appear before her, I think that a judge has to be a good listener. Even if a particular case might be the hundredth one that I listen to as a judge, that hearing is the BIG DAY for the parties involved. I have to give them all the attention necessary and work to create an atmosphere that encourages a smooth proceeding.

Of course there are some parts of my profession that I find difficult. For example, sometimes I might have to make a decision that is well founded in law but that I find difficult to accept personally. The judge must not make decisions based on personal convictions, though. Rules play an important role in our society in providing useful benchmarks for people; they must be able to rely on them. Even if I have some latitude when I interpret the evidence and the witness testimony, I have to be careful. In the same vein, it isn’t always easy to tell what is true and what is false when one witness contradicts another…I do my best to discover the truth, but, unfortunately, there is no fool-proof technique.

Judges, as a matter of judicial self-restraint, cannot explain their decisions in public. This is essential for the preservation of the honour and credibility of my profession, but I sometimes find it hard to resist publicly justifying a decision that is criticized by the media. It’s the appeal court’s job to review our decisions.

Even if the role of the judge involves many responsibilities, I find it very satisfying and I feel privileged to be able to fill it. I hope that these few lines have helped you to learn a little more about it.



Court usher

I am the most senior court usher at the courthouse. Twenty-four years of service! People often ask me what exactly I do at the court. So here you have it: a little overview of my role during a trial.

The word “usher” was originally used to describe a servant who was in charge of doors and allowing people to pass through them. But I’m not just a doorman! One of my responsibilities is to make sure that the courtroom is ready for the trial. For example, I have to make sure that the judge, the lawyers, and the parties have water available to them during the proceedings. If the court file is large, I am the one who transports it from the judge’s chambers to the courtroom. In some important cases, I have seen files that filled many boxes. I also make sure that any law books the judge will need are handy.

Once the room is ready, all we need are the lawyers, the parties and the judge. It’s up to me to coordinate everybody, as the judge only makes his appearance once everyone else is present and ready for the trial to begin. When it’s time to begin the proceedings, I have to go find the lawyers if they are not already in the room. Generally, they’re not too far away, waiting either in the hallway or in one of the nearby conference rooms.

The hearing usually starts on time. The judge may nevertheless delay it to allow the parties time to negotiate an out-of-court settlement. In such a case, I act as the messenger and let the judge know how the negotiations are going. If the parties come to an agreement, everyone will meet in the courtroom where the judge will ratify the settlement by pronouncing a judgment that is in line with it. On the other hand, if no settlement is reached, the trial goes ahead as planned.

I make sure that decorum is respected in the court. When the judge enters, I ask everyone to stay quiet; once the judge sits down, I pronounce the famous line, “Court is now in session.” I then invite everyone to take their seats. During the trial, I often have to spend long hours seated and motionless. I spend the time listening to the testimony and to the lawyers’ arguments, while keeping an eye out for situations that may require my services. I might be called to go photocopy documents, to meet witnesses waiting in the corridor or, in hearings that are closed to the public, to ask people other than the parties or lawyers to leave the courtroom.

In my work, it is important to exercise a great deal of discretion. If I am ever assigned to a case that involves people I know personally, I ask another court usher to replace me. I am well-aware that it’s difficult and intimidating enough to find yourself in court, never mind also having to tell your story in front of an acquaintance.

Having attended so many trials during my career, I have picked up a lot about the law, but I have also learned about people’s lives and about human nature, in general. In the first few months of my work, I remember being quite affected hearing a woman recount how her child had died. I have listened to many sad stories, but I have also seen some pretty crazy situations.

So there you have it, that’s my role in court. The court usher is in some ways the person who makes the whole thing work. Discreetly, he makes sure everything is in order so as to make life easier for the judge, lawyers, witnesses and parties.



Court clerk

They also call me the clerk or the legal secretary. Someone once asked me the origin of the word “clerk.” I told him that it was derived from the word “cleric.” During medieval times the clergy were some of the few who could read and write, and so were often employed to do bookkeeping and other similar work. Does this give you a hint about my job?

I work alongside the judge. I was her secretary when she was a lawyer and I followed her here when she was appointed. Part of my work involves writing her correspondence, typing her judgments, taking her phone calls and organizing her schedule – in short, all the tasks that are assigned to a judge’s secretary. My training as a legal secretary helps a lot for this aspect of my job. The other part, really the essence of my role as a court clerk, I had to learn on the job.

It is not exaggerating to say that my role as court clerk is indispensable during the trial. I am the one who takes notes for the judge so that she can devote all of her attention to the lawyers and the witnesses. Even if I usually work for her, I am occasionally assigned to other judges. Today, for instance, I am the court clerk in a case presided over by another judge, who, while extremely polite, is very fussy about courtroom decorum. He also speaks very quickly when rendering decisions during the trial, to the point where I have had to ask him to slow down because I am sometimes unable to keep up when taking my notes. Like most court clerks, I wish I could remember my shorthand. But it’s not the end of the world, as I can always use the tape recording of the hearing to listen to what the judge said a second time.

A typical day as a court clerk begins with administrative tasks. Following that, I make my way to the courtroom with the file for the case that is to be heard. When there are many cases scheduled for the same day, I post a list at the entrance to the courtroom or I send a copy to the lawyers to let them know the order in which the cases will be heard. As soon as the judge arrives, I begin the recording. Then I formally open the proceedings by stating the number of the case, the names of the parties, and by asking the lawyers to identify themselves.

Once the hearing begins, I try to be as discreet as possible for the benefit of the lawyers, their witnesses and the judge. I may look like I’m twiddling my thumbs, but don’t be fooled: I am listening attentively to everything that is being said in order to record the minutes of the hearing. Sometimes I interact with the witnesses and lawyers; this is the part of my job that I enjoy the most. At the request of the lawyers, I call the witnesses to the stand and have them sworn in. I am also the one who collects the documents and exhibits of evidence submitted to the court record by the lawyers. I write a reference number on each of these, which I record in the minutes of the hearing, and I later hand them over to the judge. One of the strangest items I have ever received was a half-burned fire log submitted as evidence in a sexual assault case.

The minutes of the hearing, which I keep mentioning, are a series of forms that I could probably fill in with my eyes closed because I know them so well. I take note of the principal phases of the trial, such as the examinations and cross-examinations, the names of the witnesses, and the arguments of each lawyer. I also record each motion submitted to the judge and each objection raised by the lawyers, as well as the decision rendered by the judge. These minutes come to form a kind of roadmap of the trial. They make it easier to find particular parts of the trial on the audio tape recording, as the name of every speaker and the exact time at which he or she began speaking are recorded.

I have been doing this fascinating job for 10 years. During this time, I have seen all kinds of trials. Fraud cases, divorce hearings, disputes between multinational corporations; believe me, I’ve seen it all! So there you have it: that is what I do as a court clerk. It is definitely a job that requires a great deal of precision and attention to detail.



Defendant’s lawyer

Today I will be defending the interests of my client, Mr. Lee. Mr. Lee has a small jewellery store and rents a space in a mall that belongs to Mr. Lefebvre. Mr. Lefebvre also has a lawyer and is suing Mr. Lee for unpaid rent over the last five months.

When Mr. Lee spoke with me for the first time, he had just been served Mr. Lefebvre’s statement of claim. This document outlined all the alleged facts, as well as Mr. Lefebvre’s arguments and the results he hoped for.

I asked Mr. Lee to explain the details of what happened. The facts are really important for lawyers. Some elements that might seem unimportant to the client are actually essential to a case. A client can tell her lawyer anything without hesitation because he is bound by professional secrecy (also called privilege). This is one of the most important obligations for a lawyer. That’s why you never talk about the details of a file on a cell phone!

Mr. Lee says that he refused to pay his rent because of a clause in his lease. This clause states that the tenant can refuse to pay the rent if the space presents a danger to the health of the occupants. After consulting an expert, he discovered that the air quality in his location isn’t up to the required standards. He started spending less time at his store, out of fear that he would become ill. He also told me that he received a notice of default from Mr. Lefebvre but didn’t reply. With this information, I was able to take the necessary steps to represent Mr. Lee.

Often, clients are worried and anxious when they come to see me. I understand. For them, it is often their first contact with the legal system, which may appear complex and intimidating. Not having sufficient knowledge or expertise themselves, clients rely on my judgment a great deal. It is my job to guide them and defend their interests as ably as I can. But be careful: this doesn’t mean making false promises. I always try to let my clients know exactly where they stand!

During a trial, my role as the defence lawyer consists of either contradicting the allegations of the plaintiff or highlighting the facts that could justify the behaviour of my client. This is a task that demands sustained concentration throughout the trial, from both the lawyer and the client. We must be able to respond to every element submitted into evidence by the plaintiff – this is often pretty exhausting. The lawyer must be attentive while the opposing lawyer questions witnesses. He must object to questions if he thinks it’s necessary. He also must cross-examine the other party’s witnesses, either to attack their credibility or to contradict their testimony, etc.

I really enjoy my work because of its varied nature. I can do research for my files, write various documents like settlements or proceedings, follow up on files, and argue in front of the court. I should say that the least pleasant aspect of my work is tackling all of the paperwork, which is often an inescapable part of being a lawyer.

I have realized over the years that along with the legal aspects of my profession, human relations are an integral part of my practice. This is why a lawyer must develop good listening skills – and not just be a good speaker! The lawyer must also establish and preserve a relationship of trust between himself and his client.

In closing, I am happy to have been able to tell you a bit more about my role because, very often, people know more about it through the many lawyer jokes that are out there than anything else. Even if I admit they are sometimes hilarious, they don’t always reflect reality!



Plaintiff’s lawyer

I am Mr. Lefebvre’s lawyer. I know my client well because I have been his lawyer for several years. He owns a shopping mall and rents space to several retailers. We are in court today because one of his tenants has refused to pay the rent for several months.

Unfortunately, in Mr. Lefebvre’s case the issue couldn’t be resolved any other way. When he first called to let me know about the situation, I suggested sending a notice of default to the tenant. Often, it is enough for a lawyer to take this first step for the parties to decide to negotiate and resolve their dispute. But weeks passed and, despite this attempt, the rent still hasn’t been paid.

In everyday life people who contact me are often highly emotional about their situations. Although this is understandable, it is not necessarily the best state of mind to be in when making decisions. The lawyer has the advantage of having the necessary distance to examine the file and interpret it objectively. I always explain the positive and negative points in my client’s case. Even if clients aren’t always happy to hear bad news, this helps them avoid many unpleasant surprises along the way.

As much as possible, I imagine every other course of action before beginning legal proceedings that could lead to a trial because trials are usually long and expensive for the client. And how! It might seem surprising, but lawyers usually try to avoid confrontation. I think a good lawyer has to know the law well, have a good ability to listen, be a good communicator and be highly discerning. She must also be able to put things into perspective and stay as objective as possible for the good of her client.

My profession is very stimulating and interesting. It is also varied and every lawyer can choose to specialize in the fields that interest her. Personally, I have always preferred litigation, which at once demands good negotiating, strategy and speaking skills. I also appreciate the lack of a regular routine in my profession, which results in large part from the fact that every file is different. This allows me to constantly improve my knowledge on a host of subjects like real estate, business or construction.

Being a lawyer isn’t always relaxing, though. No matter how many years of experience one has, we still get “butterflies” the night before a trial. I once even saw a lawyer faint during a hearing!

Today, I am acting as a plaintiff’s lawyer, but I sometimes act for the defence on certain files. I prefer to intervene for the plaintiff because I find this role is more proactive and I get to control the process more. It’s kind of like a chess match in which I get to make the first move. The role of the plaintiff’s side is more difficult during the trial, though, because it is the plaintiff that has the burden of proof – she must prove the facts that support the allegations. If the plaintiff doesn’t succeed, she loses her case.

So there, in general, is what my role as the lawyer for the plaintiff involves. People often imagine that the main role of the lawyer consists of making arguments in court. They sometimes forget that the lawyer is first and foremost a counselor. It is important for me to listen to the needs of my clients and to offer them the best possible advice. We must never forget that it is the client who, in the end, must live with the decision…this is why I don’t take my job lightly.



Plaintiff


I don’t know if I look it, but I am really nervous. I was ready to fight for my rights all the way through the trial, but now that I’m in court, it’s another story. Will I win? Will I lose? Will the judge be in a good mood? Ahh! Luckily, my lawyer is here. It’s reassuring. I am certain that she will do her best to win my case.

I am a little surprised that my lawyer and the lawyer for the other party shook hands: aren’t they opponents? My lawyer says that lawyers often meet each other in the course of their work and that they have to maintain cordial and respectful relations. They also have the advantage of not being emotionally involved in the dispute.

I am in court because one of my tenants, Mr Lee, has refused to pay his rent for several months. For three years he has been renting a space for his small business in my shopping mall in Laval. I liked Mr. Lee a lot, but if I allow this late payment from one person, I will have to do the same for all the other retailers. This is out of the question! Mr. Lee says that the quality of the air in my mall causes him problems. I don’t believe it because I already had the air quality verified by a specialist three years ago. My air ducts are impeccably clean!

My lawyer has been with me for the entire case. She always took care to explain the different possible options and has kept me up to date on how the case was progressing. I admire her ability to stay calm. For myself, I was so furious about Mr. Lee’s refusal to pay that I was ready to send a bailiff to seize his goods. My lawyer explained to me that it didn’t work that way – it was necessary to do things correctly and in an orderly fashion. First of all, it would be good to try to reach a settlement in the suit. Then, if that doesn’t work, we can think about going to court. My lawyer’s adivce is always well thought-out and I have confidence in her. In the end though, I am still the one who has to make the decisions.

I am the first to testify. My lawyer will ask me some questions and then it will be the other party’s turn to examine me. Though testifying makes me a little nervous, I have to say that my lawyer prepared me well. It is important to prepare well. We’re not allowed to refer to notes while testifying, unless the notes were taken while the events in question were happening. She told me to always tell the truth, to listen carefully to the questions and to stay calm. She also let me know what kinds of questions I was likely to have to answer and told me that the lawyer for the other side could ask me “leading” questions to try to influence my answers. When I finish telling my version of the facts, it will be Mr. Lee’s turn to tell his side. Then the judge will have to decide.

With all this preparation, how can we lose?

All I have to do now is hope for the best!

P.S.: I should have brought my good-luck charm…



Defendant


I would have preferred to have solved this problem differently, but neither my landlord nor I would give in. He is convinced that I must pay rent for the past five months, while I don’t think I owe him anything because of a clause in my lease.

This is what happened. I have a jewellery store in the plaintiff’s shopping mall. I like this location a lot because the clients are friendly and business is good. Even so, for several months I have been feeling ill while at the store. Sometimes I have headaches, other times I feel dizzy or have difficulty breathing. I only had these symptoms at work, so I started going into the store less often and this was affecting my bottom line. After reading an article in the paper about problems caused by poor air quality in some establishments, I asked my landlord to bring in an expert to evaluate the air quality at the shopping mall. He said that he had already done so a few years before. The expert had told him that the air inside the mall repected the standards. According to him, I just worried too much.

Faced with my stubborn landlord, I decided to contact an expert myself. The expert conducted his analysis and confirmed that the air in the mall was a problem. He recommended that I not stay in the store more than a few hours a day because the air could pose a risk to my health. I tried to reach my landlord to inform him of the situation, but he never returned my calls. I stopped paying the rent because the lease specifically stated that I could refuse to pay if the leased space presented a risk for my health.

After a few months, my landlord finally called to tell me to pay the missing rent immediately. I told him that he would have to correct the problem first. Both furious, we finally hung up the phone without an agreement.

Later on, I received a notice of default telling me that I had to pay the rent within 10 days. Complying was not an option: I was within my rights to refuse to pay.

And finally, bang! I get a document handed to me by a bailiff. The document explained the landlord’s demands in detail. Suddenly, I didn’t know what to do. Should I call my mother? The police?…I opted for a lawyer instead. It was a wise decision because he quickly took things in hand. He carefully explained what the document I had received was about, as well as the consequences that flowed from it. I found him to be highly competent.

The big day is here. I am happy that this affair is coming to an end, but at the same time, I am worried about the result. It is the first time I have ever set foot in a courtroom. After we all stood to welcome the judge, we are ready to begin the trial. I am still a bit surprised that the judge doesn’t have a gavel to bring us to order…I must have seen that in the movies! Such as it is, I put on my good suit and my lawyer put on his robe. We’re ready! And here we are, this whole story has brought us before a judge. I notice that I’m not the only one who is nervous: my landlord has even developed a nervous tic. Luckily, my lawyer has carefully explained how the trial will unfold. A little later, I will have to testify, but before that, it will be my landlord’s turn. I would have liked to have brought some written notes to avoid forgetting anything during my testimony, but my lawyer said that this is not allowed. As for the rest, it’s up to my lawyer!



Witness


I am an expert witness for the defendant. In everyday life, I am an engineer and I have specialized in the analysis of indoor air quality for several years. I have had my own consulting firm for 14 years now.

The defence lawyer asked me to testify about an analysis that I conducted in a shopping mall. It was Mr. Lee who first contacted me. He is the owner of a small jewellery store in the mall. He told me that he had certain symptoms that he thought were related to the bad air quality at the mall. After making the proper analysis, I was able to confirm that the air quality was a problem and that it presented risks for people’s health.

The lawyer for Mr. Lee asked me to produce a detailed report of my analysis. This report was sent to the other party and the judge also took note of it.

To better explain my role, it is important to know that there are two kinds of witnesses: “lay-witnesses” and expert witnesses. The lay-witness testifies about the facts that she knows; for example: what she said, did, heard, etc. The expert witness is called because of his professional expertise: he can give a professional opinion. It can be a psychologist, a real estate assessor, a pharmacist… Also, unlike the lay-witness, the expert is generally paid by one of the parties.

As an expert witness, my role doesn’t consist in defending one party in particular. Instead, I defend my professional opinion. Obviously, if one party asks me to come to testify, it is because they believe that my opinion is favourable to his side.

Before coming to court, Mr. Lee’s lawyer asked to meet with me to discuss the whole case. He explained the points that I should insist on, the weaknesses and strengths of the case. He also helped me to clarify my conclusions to ensure that I would be well-understood by the judge. However, the lawyer is not there to suggest what my answers should be or to try to change my opinion. I answer according to my knowledge and professional experience. This is vital because my professional reputation is on the line.

The lawyer also took care to explain how the trial would unfold. First of all, he will ask questions that will allow me to explain my abilities, the tests I performed, the nature of my analysis, my conclusions, etc. Then, it will be the other party’s turn to question me. The questions will be much more directive and will concern precise points of my testimony. The lawyer told me that this part is often very difficult for a witness. The lawyer who cross-examines will probably try to attack my credibility and try to raise defects in my testimony. I must not take it as a personal attack because the lawyer is only doing her job. Easier said than done – but at least I know what to expect!

Testifying in court can be a stressful experience. I am not that familiar with the legal system, but I know my work well and I feel completely comfortable with the conclusions of my report. I know that I did the necessary analyses well and that I wrote my report with care. Actually, it will be a good experience for me.



The Public


I am the public, the people; I am you and me. Some decisions of the court can have serious effects on our lives. This is why I have the right to be present in courtrooms and to consult the court records. I may attend every case at the Court of Québec, Civil Division if I want to. A few of us come to the court hearings regularly. Seated in the hearing room, we observe the dramatic spectacle that justice can be.

In the hearing room, besides curious observers, you will obviously find people who are waiting for their turn before the judge, as well as witnesses and even journalists. The parents or friends of these people sometimes come to court as well, to support their loved ones.

However, the judge may sometimes decide to conduct the hearing in camera, meaning that the public must be absent. In these cases, I will be asked to leave the room.

While the trial is in progress, I avoid entering or leaving the hearing room. If I want to read the paper or speak to another person, I go into the hallway. When the judge leaves the courtroom, I stand up and stay standing until she has left before moving from my place.

The public aspect of our system is of fundamental importance.



Recording


Every courtroom is linked to the courthouse’s central audio recording system, which consists of a network of microphones, tape recorders and speakers. The role of this system is to make recordings of each hearing, which are then available to judges, lawyers, journalists and the public. To do this, two independent systems are used at the same time – one makes a recording of each individual hearing, and the other makes a master recording.

The individual recording system is made up of a series of tape recorders, each of which is linked to a single courtroom. The court recorder starts the individual tape at the moment when the clerk of the court telephones him to say that the hearing is beginning. He stops the recording when the clerk lets him know there is a break in the hearing or that it has ended.

The master recording is a backup copy in case the individual system doesn’t work properly. The sound quality of this system is not as good as the individual system, but it allows the recording of sound in 20 courtrooms at once. It starts in the morning as soon as the courthouse opens, and doesn’t stop until the last hearing of the day ends.

Because the master system is constantly recording, private conversations, such as those between lawyers and their clients, may be picked up on it. For this reason, no one may listen to the master recording without the permission of the Chief Justice of the Court. This prohibition even applies to the court recorders.

Let’s come back to the individual recording system and how it can be used. Using the speakers in the courtroom, the judge and the people in the room can hear what had been said earlier in the proceedings, if needed. This can be useful when a witness says something and denies saying it a moment later. The clerk can rewind the tape to the right place at the request of the judge. Then, the court recorder plays the tape recording on the speakers.

In addition, the tapes are available at a certain cost to anyone who is interested. For example, sometimes journalists come to listen to a trial that they couldn’t attend in person. That being said, the public doesn’t have access to recordings of cases that happen in closed hearings, like those of the Family Division of the Superior Court, or those of the Court of Québec, Youth Division.

To use this service, all that is necessary is to give the date of the trial, the room number and the file number to the attendant responsible for the recordings at the courthouse. It is even possible to ask to hear exactly what was said at a specific time because there is a track that records the time on the tape.

It is also possible to obtain a written version of the recording. This is called a transcript. The tape is sent to an official stenographer who types out what is heard on the tape. This rather costly service can be useful when a person is involved in several legal proceedings related to the same events. For example, a person may be sued over a contract both in Small Claims Court and before a criminal court. During the criminal trial the person might say that the cat was red. In the Small Claims documents she said that the cat was blue. It could be useful to show the judge there are two versions of the story, in order call this person’s credibility into question.

If the recording system didn’t exist at the courthouse, the lawyers would have no choice but to hire an official stenographer to ensure that everything said during the trial was properly recorded. In fact, this was the method used in the past, before someone had the brilliant idea to install a tape recording system



The proceedings, step by step

This section explains the main steps in presenting a case in court. The idea is not to turn you into a legal expert, but simply to make sure you’re informed!


1. Notice of default

Before taking legal action, the plaintiff often decides to send a letter, or “notice of default”, to the other party. In this letter, the plaintiff asks that her legal or contractual rights be respected. The letter must also give the other party a reasonable amount of time to meet his obligation or correct a disagreeable situation. The plaintiff normally indicates that she will take legal action if the other party does not meet her demands within the time limit. If the dispute winds up in court, the date that the other party received the letter is often the starting point for calculating any interest owed. It is best to send the notice of default by registered or certified mail, in order to have proof that the other party received it.



2. Filing a claim

The motion
The statement of claim, or the "motion", is usually the first document filed with the court. It is prepared by the plaintiff or her lawyer. In her claim, the plaintiff states the facts that support her case, her arguments, and the results she hopes to achieve. It is very important for the plaintiff to include all of the facts that she wants to prove, because she cannot later try to prove a fact in court that was not included in her statement of claim.

The statement of claim is divided into numbered paragraphs. Each paragraph normally contains one allegation, i.e. a fact, an argument, or a reference to a piece of evidence. As with all other procedures, the statement of claim must be filed with the court clerk and then served on the defendant. The defendant can therefore expect to receive a copy of the motion, as well as a notice telling him what he must do if he wants to contest the claim. The party must also get the motion “stamped” at the courthouse, to show that he has paid all the applicable fees to submit the document. Once the fees are paid, a file number will be assigned to the case.

All written procedures filed with the court have to follow certain formatting standards. For example, the procedures must be written on legal-sized paper (8 ½ in x 14 in). The province and district should be indicated at the top of the document, along with the name and address of the parties.



3. Mandatory time limit: 180 days

Starting from the date when the defendant receives a copy of the motion (date of service), the "inscription" must be filed within 180 days. The inscription is the document that lets the court know that the file is complete and that the parties are ready for their hearing. This time limit is mandatory. It cannot be prolonged without the court’s permission, and then only if the file is complex, if it is impossible for one of the parties to act within the time limit, or if there are special circumstances which justify an extension.



4. Appearance

Once he receives the motion, the defendant has ten days to “appear”. The defendant normally does this by filing with the court a written document, signed by himself or his lawyer. This is how the defendant demonstrates his intention to defend himself before the court. If the appearance document is signed by a lawyer, that lawyer will be responsible for the case and subsequent communications and procedures should be addressed to her. Usually a lawyer may not communicate directly, either verbally or in writing, with another party who is also represented by a lawyer. However, the parties themselves may speak with one another. Just as with the statement of claim, the written appearance must be stamped to show that the applicable fees have been paid.

Judgment in default of appearance
If the defendant does not appear, the plaintiff can request that the court render a judgment “in default,” i.e. without advising the defendant. The court renders this judgment if it is satisfied with the evidence the plaintiff has submitted. At this point, it is too late for the other party to defend himself, so he must respect the judgment. He cannot ask the court to revoke (cancel) the judgment unless he can prove that he was prevented from defending himself for serious reasons recognized by law. Be careful not to confuse this with an appeal, which is explained below.



5. Case management

Case management by the parties
The motion must include a notice indicating the date on which it will be presented to the court. At the very earliest, the motion can be presented 30 days after the defendant receives it. The parties must agree on a timetable for their case before the motion is presented to the court. The timetable sets out when and how each step of the file will take place. The parties should keep in mind that the file has to be ready to be placed on the roll (i.e. registered to have the trial date set by the court) within 180 days.

The timetable must cover, among other things, preliminary exceptions and safeguard measures, the procedure and time limit for the communication of exhibits, examinations on discovery, the use of expert witnesses, and the time limit for filing a written defence.

Case management by the court
If the parties fail to agree on a timetable, the court will set one when the motion is presented. The court can also intervene with respect to a number of other issues. For example, a judgment by default can be rendered if the defendant doesn't appear before the court. It can hear preliminary exceptions. The court can also determine how best to simplify procedures and shorten the trial. Basically, from this point on, the court plays an active role in managing the conduct of the case. The parties must follow the court's decisions at this stage or they risk facing sanctions, which can go as far as the dismissal of the claim.



6. Preliminary exceptions

Before presenting his defence, the defendant can ask the court to dismiss the claim against him or to suspend the judicial proceedings based on a “preliminary exception”. The defendant can make this request for a variety of reasons, including the following:


Generally, the arguments for a preliminary exception are made orally in court when the motion to institute proceedings is presented. The parties explain their points of view, with or without the help of witnesses. The parties themselves do not always have to be present; sometimes, only the lawyers attend this hearing. The judgment may be delivered right away or at a later date.



7. Examination on discovery

In lawsuits involving $25 000 or more, a party can question witnesses or the other party before or after the defence is filed. This process is called an "examination on discovery" and is done in the presence of a stenographer, but without a judge. It allows the parties to obtain more details about the facts in the file and copies of exhibits that may be used as evidence.

Before filing a defence
The defendant can question the plaintiff before presenting his defence. The judge is not present at this examination; only the parties and their lawyers attend. Everything said during the examination is recorded and transcribed by a stenographer. The examination often takes place in a room at the courthouse or at the office of one of the lawyers. The questions are aimed at clarifying the facts set out in the motion. The defendant can also request that the person being questioned provide a copy of the documents or other pieces of evidence mentioned in the motion. This allows the defendant to better understand the case against him and to learn more about the plaintiff’s version of the facts. The parties sometimes use this session to begin negotiating a possible out-of-court settlement.

After filing a defence
In cases where a written defence is required, any of the parties can question each other after the defence is filed. The plaintiff will often question the defendant but he can also, for example, question an employee of the defendant. As in the examination before producing a defence, the judge is not present for this examination and everything is transcribed by a court stenographer. Questions at this stage can relate to any of the facts detailed in the plaintiff’s claim and can cover any aspect of the litigation. As always, the questions must be relevant to the case.

How an examination on discovery is used
The party who requests an examination on discovery can file a written copy of the session, prepared by the stenographer. The transcript – either in whole or in part – is placed in the court file. Statements made during the examination can then be used as evidence during the trial. For this reason, it is important to be well-prepared before answering questions at the examination on discovery: it won’t do you any good if your version of the facts suddenly changes at trial!



8. Defence

As a general rule, the defendant must prepare a written defence for the court, which is then served on the plaintiff. Sometimes, though, the defence can be presented orally. In his defence, the defendant responds to the plaintiff’s motion, often adding his own side of the story. The defendant concludes his defence by listing the results he wants to obtain from the court (for example, that the plaintiff’s claim be rejected).

Should the defence be oral or written?
The Code of Civil Procedure sets out the instances when a defence is to be presented in writing and when it may be made orally. However, the court may decide otherwise, as long as it doesn’t put either party at a disadvantage. If the parties can agree, they may also decide whether the defence will be written or oral. An oral defence contains the same thing as a written defence; the only difference is that it is presented orally before the judge on the date set in the court timetable.

If a defence is written, it must be served on the defendant and filed with the court.

Time limit for filing a defence
The defendant must normally file her defence within the time limit fixed by the timetable. It is possible to obtain an extension, either with the plaintiff’s consent or with the court’s permission. However, the parties should keep in mind that their inscription must be filed within 180 days (i.e. the document that lets the court know they are ready for their hearing).

Judgment by default to file a defence (or by default to plead)
A judgment by default can be rendered against a defendant who neglects to file a defence. To do so, the plaintiff file the inscription and notify the defendant. She must also file the documents supporting her claims and request that a judgment be rendered. The defendant must respect the resulting judgment. He cannot request that the judgment be revoked or annulled, unless he can prove that he was prevented from filing a defence or that there was another serious reason for his failure.



9. Response and inscription

Response
The response step is optional. This procedure allows the plaintiff to respond to the defence. The plaintiff is allowed to add new facts in this procedure to counter the defendant’s claims. In concluding her response, the plaintiff repeats how she would like the judge to decide the case. She can also add new conclusions, as needed. The response is often filed and served at the same time as the inscription.

Inscription
The inscription is the document filed by the parties to advise the court that they are ready to have the trial date set. While the plaintiff normally prepares this procedure, the defendant may also do it.

Time limit for filing the inscription
Remember that the inscription must be filed within the mandatory time limit of 180 days, unless the court extends this period for one of the reasons provided by law.



10. Declaration of inscription on the roll

The party who files the inscription must include a declaration with the following information: the names and addresses of the parties and their attorneys, a list of the exhibits communicated to the other parties, the expected length of the hearing, and a list of witnesses. The other party produces a similar declaration no later than 30 days after the inscription is filed.



11. Settlement conference

At any stage in the case, the parties may, by agreement, demand that a settlement conference be held under the guidance of a judge of the Court of Quebec. The aim of the conference is to help the parties communicate, negotiate, identify their interests, evaluate their positions, and explore mutually satisfying solutions. This is not a pre-trial conference - although it can become one with the parties’ consent - nor is it a mini-trial. The parties can use the settlement conference to reach a friendly agreement or they may simply record the minutes if the process becomes a pre-trial conference. Everything said or written during a settlement conference remains strictly confidential and cannot be referred to by anyone if a trial ensues (except of course if the meeting becomes a pre-trial conference).



12. Provisional roll and pre-trial conference

Calling of the provisional roll
Once the file is considered complete, the court summons the lawyers to a provisional roll call. The parties rarely need to be present unless they are representing themselves. During this session, the judge makes sure the file is complete and ready to be heard. The judge discusses with the lawyers how they can simplify and shorten the trial. The judge also sets a trial date at this time.

Pre-trial conference
At any time following the inscription of the case, the judge can call a pre-trial conference. This step is only taken in complicated cases that require several days of hearings. The pre-trial conference provides an opportunity to discuss ways to simplify and shorten the trial. It allows for a more in-depth treatment of these questions than at the calling of the provisional roll. The trial date is also set at this time. The pre-trial conference allows the parties to adapt procedures to their needs, define the real issues involved, and to agree on the reliability of certain facts and documents. The session takes place in a relaxed atmosphere to encourage a spirit of compromise. A summary of the conference is later given to the judge who will hear the case.



13. The trial

How the trial unfolds
The case is now ready to be heard. The judge, parties, attorneys, clerk, and witnesses come together for the trial. The court hears the evidence of the parties and listens to their arguments. The plaintiff pleads first. She calls her witnesses to the stand and submits her evidence (for example, she might have a video or an object as evidence). The plaintiff is also questioned by her lawyer so that she can present her version of the facts. It is up to the lawyer, or the plaintiff if she is representing herself, to question the witnesses and to make sure that all the evidence is heard by the judge. While the judge is free to intervene, her questions are usually limited to simply clarifying a point, or to ensuring that she has understood a point. The defendant will then have a chance to cross-examine all of the plaintiff’s witnesses. He will try to get the witnesses to contradict themselves or to place their credibility in doubt. The defendant will often ask questions that force the witness to give a yes-or-no answer, for example:


Once the plaintiff states that all of her evidence has been introduced, it is the defendant’s turn to present his case. The defendant is subject to the same rules of evidence as the plaintiff. When the parties have finished presenting their evidence, they are ready to make their closing arguments before the court. The closing argument is an explanation of the facts presented in court and of the applicable law. Each party tries to convince the court that their version of the facts should be believed over the other party’s version.



14. Deliberation and judgment

Once the trial is over, the judge must render a decision.

Preponderance of evidence (the balance of probabilities)
Most often, the parties end up in a trial because their versions of the facts or their understanding of the law contradict each other. The judge must use the criteria of the preponderance of evidence (the balance of probabilities) to settle the matter. This means that she must ask herself which of the versions seems more probable or truthful. She does not need to be absolutely convinced of one version beyond a reasonable doubt, as in criminal law. Rather, she must simply choose the version of the story that is the most plausible. She must also determine how the law applies to the case before her.

Deliberation
The judge is often not ready to make a final decision immediately after the closing arguments. She may take some time to return to her chambers and reflect, before returning to the courtroom to deliver her decision. Sometimes, when the issues involved in a case require more time to consider, the judge announces that she will reserve judgment (or take the case under advisement). This means that she will take the time necessary to come to a decision; sometimes she may spend weeks or even months before delivering her judgment.

Judgment
In her judgment, the judge reveals the results of her reflection and delivers her decision. The judgment is rendered either orally in front of the parties and their lawyers, or in writing. The judge must explain the reasons for her decision. She does not need to give too much detail nor explain all of the elements she weighed during her deliberation, but she will often do this anyway.



15. Appeal and execution of judgment

If a party believes that a Court of Quebec decision contains an error of law or fact, he can try to have it changed by the Court of Appeal of Quebec.

Appeal
Don’t expect to win your appeal just because you’re unhappy with the judgment! You have to be prepared to show that the judge made a mistake in assessing the law or the facts of the case. This mistake must be serious and must have influenced the outcome of the trial. It is difficult at this stage to raise a new argument or present new evidence that was not introduced in the Court of Quebec – keep in mind that the appeal is not a second trial.

In certain circumstances, you must obtain the permission of the Court of Appeal to bring your case forward. For example, you need permission when the value of the object in dispute is less than $50 000. The rules of the Court of Appeal also state that each party has to prepare a “factum”. This is a document that explains in detail the facts of the case and the party’s arguments. The judges study it carefully before hearing the case. Certain costs must be paid at the court clerk’s office in order to launch an appeal.

Since the Court of Appeal does not hear any witnesses, the lawyers must use the factum to explain the facts and testimony heard by the Superior Court. The judge of the original court (the Court of Quebec) is considered to have been in a better position to evaluate the facts because he had the advantage of hearing the witnesses and the evidence. As a result, when a party appeals on the basis that the Court of Quebec judge made a fact-related mistake, that party must prove that the error had an impact on the judge’s final decision.

Execution of judgment
“Executing a judgment” means taking the necessary legal steps to ensure that the losing party respects the judgement. For example, the winning party can carry out an “examination after judgment”, which is a procedure that allows for the identification of the property and revenues of the other party. Of course, the losing party may respect the judgment on his own. But if this does not happen, there are measures available in order to force the execution of the judge’s decision. The measures most often used are the seizure of personal property, land or wages. The party who wants to do this must prepare a “writ of seizure”. The legality of the writ will be verified by the clerk of the court, who then signs it if it is valid. We then say that the writ has been “issued” by the clerk. Certain court fees must be paid to the clerk for the execution procedures. Keep in mind, however, that there are precise rules about what you can and cannot seize. You cannot take all of someone’s belongings, even if the judgment awarded you a large sum of money.