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.

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.

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.

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.

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.

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:

• The defendant can argue that the case was not brought before the proper court or in the right judicial district. If this is true, the file will be transferred to the appropriate court.
  
  
• The defendant can request clarification of certain allegations in the motion, ask the plaintiff to provide a piece of evidence, or ask that a third party be added to the file.
  
  
• The defendant can argue that the claim is inadmissible. For example, he can show that even if all the alleged facts are true, the claim cannot be accepted due to a rule of law. This will be the case if the plaintiff has waited too long to make her claim and her rights under the law have expired. If the defendant succeeds, the court rejects the claim.

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.

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!

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:

• If the plaintiff claims she is owed money because she delivered goods to the defend ant, the defendant might argue that the goods were in bad condition, or that the money owed has already been paid.
  
• If the defendant is being sued by the buyer because of a hidden defect, the defendant might argue that the defect was obvious and the plaintiff should have noticed it prior to the purchase.

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.

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.

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.

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).

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.

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:

• “Isn’t it true that you concealed the cracks on the basement walls when the plaintiff visited?” instead of “What did the basement look like when the plaintiff visited?”
  
  
• “The supplies that you sent to the defendant were covered in snow for one month before their delivery, were they not?” instead of “How were the supplies stored before they were delivered?”

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.

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.

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.