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Superior Court - Civil Matters

In legal jargon, the Superior Court is said to be the "court of general jurisdiction" in Quebec. This means that the Superior Court can hear all claims not formally assigned by law to other Quebec courts. The Superior Court also has "superintending and reforming power" over decisions made by other organizations or tribunals in Quebec, with the exception of the Court of Appeal. This power allows the Superior Court to, for example, override decisions of a professional association or the Board of Directors of a university.

The Superior Court hears cases pertaining to civil law (Civil Division) or to criminal law (Criminal Division). The word "Division" refers to the nature of the case being heard, rather than to any physical division of the court.

The majority of cases heard in the Civil Division are those where the sum claimed, or the value of the object in dispute, is $70 000 or more. Because the Court of Quebec has jurisdiction in cases involving less than $70 000, it falls to the Superior Court, as the court of general jurisdiction, to decide cases involving more than this amount.

The Superior Court also renders decisions in all family matters, including divorce. This means that the Superior Court can render a judgment of divorce, award child custody, and set the amount for support payments. The Family Division is a special division of the Superior Court that deals with all family law matters.

Finally, the Superior Court also has the power to make decisions concerning bankruptcies, class action lawsuits, injunctions, the validity of civil status documents (like a birth certificate), or the validity of a last will and testament.

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 Superior Court for almost 12 years now. I preside over civil matters. Before being named a judge, I practised as a lawyer for more than 12 years in spheres as diverse as business law, real estate law and commercial law. I have therefore touched on everything we refer to as “civil law”. The actual practice of law, not studying in a classroom, is the best way to learn how to be a judge. My many years working as a lawyer prepared me very well to be a judge.

I always dreamed of one day becoming a judge. For me, this was an obvious and important goal in my career. The social dimension of being a judge always attracted me: I have the feeling that I am being useful and serving society. What’s more, each case presents a very stimulating legal challenge.

Being a judge is not just a privilege, it is also a heavy responsibility. My position requires me to exercise a high degree of fairness and impartiality. No reasonable and well-informed person should have any doubt about my capacity to render justice impartially, as this constitutes the very foundation of our judicial system. That is the reason that I am prohibited from participating in certain activities, such as those having to do with politics. In addition, I have to avoid placing myself in a situation of conflict of interest or an appearance of conflict of interest. This is why I cannot preside over a case in which I have a personal interest or where I am somehow linked to one of the parties or lawyers. For example, a few years ago, I had to remove myself from a case in which the plaintiff’s lawyer was a former colleague and good friend.

Being a “good” judge requires particular qualities. In my opinion, one of the most important ones is the ability to listen attentively. Some trials can be very long – I can spend weeks, even months, hearing the evidence of the two parties and listening to numerous witnesses. This requires a great deal of concentration and attention. It can be very demanding, both mentally and physically, but it’s necessary. I have to hear all of the evidence if I want to render a fair and well-founded decision.

Two other qualities that I think are really important, and that I have had to develop over the years, are an ability to make efficient use of my time and a good sense of organization. Once a trial comes to an end, it is time for me to make a decision. I prefer rendering my decision in writing so that I can carefully weigh my words and avoid any excesses of language that might wind up in the paper the next day! When a trial has been long and the case is complex, the preparation of my judgment requires a lot of research, reflection and drafting. Even though many people help me in these various tasks, there is still a lot of work for me to do. The time I have to do all this is often limited because I have to preside over another trial soon afterward. To avoid forgetting the facts of the case and the evidence that was presented, it is preferable that I render the decision as quickly as possible – this is also desirable for the parties, who are anxiously awaiting it.

As a judge, my role is not to act as an arbitrator, like many might think, but rather to consider the facts and apply the law in light of the evidence presented during the trial. I have to make sure that the debates between the parties are conducted as harmoniously and fairly as possible in order to facilitate the search for the truth. You could say that I am the master of the courtroom in that I guide the rhythm of its proceedings and ensure that general order is maintained within it.

While I cannot take over the role of the parties’ lawyers, I may sometimes take a more active role in the trial. From time to time, I will ask the witnesses a question if I think it will be useful. It can also happen that I will conclude that the evidence presented by the lawyers is insufficient to allow justice to be done. In such a case, I ask them to fill in certain gaps in their evidence.

One of the most important tasks in my role as judge of first instance is to carefully consider the testimonies made before me. It is a delicate job that requires a lot of sensitivity and discernment. In addition to having to consider the testimony itself, I also have to analyze the witness’s attitude and body language. As well, I have to be careful not to be influenced by my personal values, as that would hamper my judgment. This is why judges are given courses on social realities to help them better understand cultural differences and the society in which we live.

Being a judge is therefore a heavy responsibility that I try to meet as straightforwardly and as honestly as I can. Every citizen who comes before me must be convinced that I consider their case to be important. Necessarily, my decisions will not please everyone; that’s the nature of things. But what is most important for me is to know that the law was applied to the facts at hand and justice was done.



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. When the judge arrives, I ask by telephone that the audio recording be started. 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.



Witness

A few months ago, I received a subpoena to testify in court. I have to admit, it worried me to see a bailiff at my door, handing me an official document! It was the first time something like that had happened to me. Was I being accused of something? When I read the document for the first time, I didn’t understand a thing it said! I managed to calm down a bit and I read it a second time. I was being asked to go to court to declare what I knew and to bring along documents listed in the subpoena.

The subpoena, which is officially called an “appearance notice” (or “citation à comparaître” in French), specified that I had to present myself at the court the following Tuesday at 9:00 a.m. I realized I would have to miss work that day and was worried about what my boss would say. As it turned out, he was not really happy to hear about it, but he had no choice in the matter because I had an obligation to go. He is not allowed to impose any sort of sanction, but neither is he obliged to pay me my salary for the hours I miss. If I were unionized, the payment of my salary might have been provided for in the collective agreement – unfortunately, that’s just not the case for me. In any event, I had the right to certain indemnities that covered a part of my costs, like my transportation to the courthouse.

A few days before my testimony, I figured that it would be better if I prepared myself a little. After all, the facts I was supposed to recount happened more than two years ago! I did my best to refresh my memory by thinking back and trying hard to remember conversations and dates.

The big day finally arrived! I was afraid of being late, so I arrived at the courthouse several minutes before I was supposed to. At the reception, I was told that the courtroom had been changed. Good thing I checked! When I arrived at the room where the trial would be held, the lawyer who had summoned me as a witness came to meet me. After introducing himself and shaking my hand, he took the time to give me the following tips:



When the trial started, the judge asked me to leave the courtroom until it was my turn to testify so that my testimony would not be influenced by that of the witnesses going before me. I spent two hours waiting in the hallway…I was eager for it to be over with!

Finally, it was my turn. They asked me to step into the witness “box.” The court clerk asked me to state my full name, age and address, and to take an oath. I was then questioned by the lawyer who had summoned me. After that, it was the other lawyer’s turn to ask me questions. This was a little more difficult because he kept trying to find inconsistencies in my testimony, and seemed to be implying that I was not certain of the facts that I was recounting. He also asked me some annoying and embarrassing questions that I would rather not have answered. But I was told that a refusal to answer questions would make me guilty of contempt of court, which could lead to a fine or jail time. Three hours later, everything was finally over! I felt drained, but proud of myself. I had fulfilled my duty as a good citizen.

While my experience may have been stressful, it definitely taught me a lot. I finally got an in-depth look at how our justice system works. I also realized how important my role as a witness was. It just so happens that the judge recently rendered his decision in this case and my testimony influenced the judgment. I am confident that I helped ensure that justice was done!



Public

Some civil court decisions could affect my life and the lives of others in important ways. It therefore makes sense that I have the right to attend court hearings to make sure for myself that justice is being done. I can attend any civil case I want to, except for trials taking place in the Family Division or the Youth Court that involve youth protection files. Even so, sometimes the judge may decide that the hearing will take place in camera, meaning that it is closed to the public. If that happens, I will be asked to leave the room. In addition to being able to attend the hearings, I can consult the court records and exhibits of evidence of the various proceedings, which are also open to the public.

As a general rule, I can be present in the courtroom, but I must respect decorum. The moment the judge enters the room, I have to stand and stay standing until she sits down and the court usher invites the other people present to do the same. Afterward, I must remain silent; I can’t express my approval or disapproval of the way the trial is going. When the judge leaves the courtroom, I stand again and wait for her to leave before moving from my place.

Journalists can also be present in the hearing room. Their role is to provide people with information about how the trial is unfolding and what evidence is presented. Unlike us, they can be present at the Family Division hearings – however, they are forbidden from publishing or circulating information that could identify the parents or children concerned. Nor can they report what is said during a trial when the judge orders a publication ban. While courts in the United States may allow proceedings to be broadcasted on television, as was the case in the O.J. Simpson trial, here no television or still cameras are allowed in courtrooms.

The media must also respect the rule of sub judice, which asks them to use restraint when reporting on a subject that is currently before the courts. They break this rule if they take a side, make judgments about how the trial is being conducted or how the court has decided an issue, or pronounce on the quality of the evidence presented. In short, journalists cannot take the place of the judge; their role is limited to reporting the facts. Once the judgment is made, however, they can express themselves freely and the “critique” can begin. The role the media plays is essential to keeping the public aware of important trials and decisions made by our courts.

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



Defendant


I am the defendant in a case of hidden defect following the sale of my house. During his visit to the property and after taking possession, the buyer declared himself satisfied. But the following spring, when the snow melted, the basement flooded. I had the house built seven years ago and this was the first time this had ever happened. The buyer was furious, and blames me for the mess. To buy myself some peace, I offered to pay him a bit of money, but it was impossible to agree on an amount. After that, I simply ignored his notice of default, as I figured I was not responsible.

Then, one day, a bailiff knocked on my door to give me a court document from the buyer’s lawyer claiming that I was responsible for $72,000 in damages. Since this was the first time that I had been involved in a civil action, I felt pretty helpless. On the last page of the document there was a notice indicating that if I failed to appear within 10 days, a default judgment could be rendered against me. I said to myself, “I have to find a lawyer right away!”

I haven’t regretted hiring a lawyer for even a moment. I’m not dealing with a small claims court case, where parties are not represented by lawyers and where the rules of civil procedure are kept to a minimum. And I’m being pursued for $72,000; that’s a lot of money! It was out of the question that I run the risk of losing my case because I didn’t know my rights or wasn’t familiar with the formal procedures.

Two days after receiving the court document, I found myself in the office of an experienced lawyer. He suggested that we submit an appearance document to the court and, later, a written defence explaining why I wasn’t responsible for the damage caused to the house. Also, he told me he would try to avoid a trial by negotiating with the other party. Finally, after agreeing with him on the payment of his fees, I left his office feeling that an enormous weight had been lifted off my shoulders.

Unfortunately, the two lawyers were not able to agree on an out-of-court settlement. A trial was therefore the only way to settle the matter; the idea of being in a court in front of a judge terrified me. In some ways, I can understand where the plaintiff is coming from; I might have pursued my seller in similar circumstances. But that doesn’t mean that he’s right! It will be up to the judge to resolve everything impartially by applying the law.

With the trial fast approaching, my lawyer explained how everything would proceed and went over my testimony with me. The trial date finally arrived. At the entrance to the courtroom, I crossed paths with the plaintiff and greeted him courteously. The tension was palpable. At the beginning of the trial, the judge asked the witnesses to stay outside the room until they were called. This was so as to avoid each witness’s testimony being influenced by what the others said. The parties, lawyers and expert witnesses were allowed to stay.

The most difficult part of the trial for me was when I was cross-examined by the plaintiff’s lawyer. His tone was aggressive and he seemed to be suggesting that I had made mistakes in my testimony. I succeeded in keeping my cool by remembering my lawyer’s advice: “Realize that he’s only doing his job. Don’t get pulled into his game. Stay calm.” I tried to figure out which way the judge was leaning, but I couldn’t tell. I will find out in a few weeks when my lawyer calls me to let me know he has received the written decision. I hope the wait won’t be too long. I am keeping my fingers crossed that the judgment will be in my favour.

There you have it: now you know a little more about what it’s like to be pursued in a civil action. During the trial, besides my testimony, my participation was limited to assisting my lawyer. I am convinced that this assistance was nonetheless very helpful; after all, we were a team!



Plaintiff's lawyer


My client chose me to represent him in court. So here we are, working together to convince the judge that he was wronged. My client’s interests are of paramount importance to me, and I will represent him to the best of my abilities for the duration of the mandate he has given me.

My work starts when the plaintiff comes to see me at my office to tell me his story. He might tell me that someone caused him damages, owes him money, or is failing to respect an agreement. I then have to offer my legal opinion, as he is counting on me to know his rights, recourses, and his case’s chance of success. Offering advice can be tricky, as the issues involved are rarely black and white. I often have to explain to my clients that the law is far from being an exact science!

Before advising my client to begin legal proceedings that will be costly and time-consuming, I make sure that I have exhausted all possibilities of settling out-of-court. I start by sending a notice of default to the other party. This letter sets out my client’s claims and states that if the recipient does not take certain steps within the given time-frame, legal proceedings will be instituted. I always hope that this convinces the other party that my client is serious and determined to go forward with his claim.

At all times, I have to make sure that legal proceedings are the best solution for my client. If this is not the case, it is my duty to inform him that he isn’t in the right, regardless of what he may think. However, if a trial seems to be the only option and my client gives me his consent, I draft a statement of claim. This is a very important task, as the statement of claim presents the facts, reasons and arguments that I will eventually submit to the judge.

If the parties do not reach an out-of court agreement, the last step of my work takes place on the day of the trial. People often think that appearing in court represents the major part of my work, but it is actually only the tip of the iceberg. Trials are in fact the result of hours of research, interrogations and reflection, all undertaken in an attempt to fully understand the case. When I enter the courtroom, I know the file inside and out. Once the trial is under way, I have to pay close attention at every stage to ensure that I don’t miss a thing. I take note of as many details as I can in order to adapt my closing arguments to what is said during the trial.

Many people seem to think (perhaps due to TV shows and movies) that the closing argument is a verbal sparring match that entirely determines the outcome of the trial. Well, this is what I have to say about that. On the one hand, it is right to believe that our judicial system is adversarial and that, theoretically, the clash of ideas is supposed to allow the truth to emerge and justice to triumph. We can all agree that the system is far from perfect, but it is aimed at minimizing the number of judicial errors. On the other hand, it is false to think that the outcome of the trial depends entirely on the oratory skills of the lawyers. The judge renders a decision based not only on their performance but on the law applicable to the case at hand.

These few lines summarize my role as attorney for the plaintiff. The thing that I appreciate the most about my work is that it is not monotonous. Every case is different and brings me its share of surprises and new challenges. It is important for me to meet these challenges with integrity.



Defendant's lawyer


In the movies we sometimes see the defence lawyer running into the courtroom, breathless, to tell the judge that he would like to call one last witness to the stand. Sure enough, the surprise witness always puts an end to the plaintiff’s suit. While my work is exciting, things don’t really happen quite like that!

It is often thought that I spend all of my time at the courthouse. In reality, less than half of my files actually ever reach the trial stage. My work is therefore a lot more varied and broader in scope than you might think. Everything often starts with a call from a client. He or she may have received a notice of default, a statement of claim, or might just be worried about a certain turn of events. I try to get as much information as possible about the file so that I have an accurate idea of the circumstances. I then discuss with my client the various steps that we should take to resolve the litigation to her satisfaction. Often, my clients will be under a lot of stress. I therefore try to answer all of their questions to try to reassure them and, at the very least, to inform them about what to expect.

My duty to advise sometimes puts me in very delicate situations. Last week, for example, one of my clients showed up at my office and was furious because he had just received a statement of claim. His company was being sued for improper performance in the construction of a house. His instructions were clear: he wanted war! I took the time to carefully study the file, and I came to the conclusion that his company was in fact responsible for the damages caused to the house. You can imagine that my client was not too pleased when I told him the results of my research. Despite my advice, he refused to negotiate an out-of-court settlement and directed me to contest any claim brought by the other party. Even if I am his legal advisor, I cannot make decisions in his place and I must follow his instructions.

As you may have determined, my work requires a lot of patience and hard work: I have to make sure that I understand the facts of a file well so that I am able to reflect on them, study the problem and then undertake the research needed to master every aspect of the case. As my client has to live with the consequences of the advice I give, I have to weigh all of the pros and cons carefully before giving it to her. I would say that the part of my job that most people don’t know about is all of the legal research I have to do. If there are contracts or any other documents that are pertinent to the case, I have to carefully review them. I then have to identify the legal questions at issue and figure out what laws or regulations apply to the file and how they have been interpreted by courts in similar cases in the past. I also read the texts of authors who have considered these questions. In short, research takes up a lot of my time.

As well, I have to ask my client to be patient. Of course, they usually want the dispute to be resolved quickly, but I have to help them understand that the various steps in the judicial process are necessary to allow us to get a handle on all of the evidence and arguments of the other party so that we can prepare an adequate defence. Time often cools tempers and it is not rare that the two parties come to an agreement that is mutually beneficial after a few months.

I am not only a lawyer for defendants – sometimes, I also act as a lawyer for plaintiffs. However, my role as a defence lawyer is particularly enjoyable for me as it presents an interesting challenge. As with chess, I have to wait for my adversary to make a move and then I try to figure out his strategy. I have to find the weak points in his case and prepare a reply on behalf of the defendant with the goal of demonstrating that he is not responsible for whatever is alleged against him. This requires a lot of ingenuity, and I must pay close attention to details, especially in the courtroom, to make sure that I catch everything that might be able to help my client’s case. This skill is what has made me an expert in cross-examinations! I have become a master of the art of making people talk and leading them to contradict themselves. I know the witnesses don’t appreciate it too much, but what can I do, it’s my job!

After all these years of practice, I am still passionate about what I do. I learn something new every day. When I represent an appliance salesperson, I learn how a fridge works. When I represent an artist’s manager, I get an insider’s look at the artistic community. I love the diversity that my work brings me. I help my clients with their litigation, I draft their business contracts, I advise them on the structure of their businesses, and I often know what is happening with their companies, whether I am the lawyer on the file or one of my colleagues is looking after a question because it’s outside my expertise. How can you not love a profession that offers such a variety of opportunities?



The proceedings, step by step

This section is meant to introduce you to the main steps surrounding the presentation of a file 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 statement of claim, or the motion, is usually the first document filed with the court. Certain proceedings can be initiated with a document called a “declaration”, but those cases follow a very different procedure. Here, we will only deal with proceedings that are initiated by a motion.

The statement of claim is a written document prepared by the plaintiff or her lawyer. All written procedures filed with the court have to follow certain formatting standards. For example, the procedures must be written on letter-sized paper (8 ½ in x 11 in). The province and district should be indicated at the top of the document, along with the name and address of the parties. 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 party must also get the motion “stamped” at the courthouse, to show that he has paid all the applicable fees to submit the document.



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.



5. Case management

The parties (plaintiff and defendant) 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.

When they set a timetable, the plaintiff and defendant must agree on a number of things, including: the method and time limits for communicating documents, the use of examination for discovery, and the possibility of arguing for preliminary exceptions (see next step).

They should also decide how they will share their experts’ reports with one another, when the defence will be filed and whether it will be verbal or written, and whether they intend to ask for safeguard measures (i.e. measures to ensure that certain property or evidence is not lost, destroyed or damaged during the proceedings).

The parties must file their timetable with the court clerk before the presentation of the motion. During the proceedings, the parties have to follow their timetable or they risk facing sanctions, which can go as far as the dismissal of the claim. The parties can modify the timetable by mutual agreement, as long as they respect the mandatory time limit of 180 days.

Case management by the court
If the parties fail to agree on a timetable, the judge will take over and play an active role in managing the case. The judge can set a timetable when the motion is presented. The timetable can deal with the same subjects as above, and it has to respect the 180 day time limit. The parties must follow the judge’s timetable 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

Either before or after the defence is filed, the parties may question witnesses or the other party in the presence of a court stenographer, but without a judge. This is called “examination on discovery”. It allows the parties to obtain more details about the facts in the file and obtain copies of exhibits that may be used as evidence.

Before filing a defence
In lawsuits involving $25 000 or more, 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 court 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. Here are examples of what a defendant might argue:


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 Superior Court judge. 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 Superior Court 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 Superior Court – 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 Superior Court) 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 Superior Court 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.