The conduct of a civil litigation
⚠️ Disclaimer: This text does not provide advice to enable a person to conduct his or her own proceedings. It is published for informational purposes only and is not exhaustive as the conduct of proceedings is a complex matter..
Unfortunately, litigants have difficulties having a good understanding of the course of their dispute.
One of the main reasons of this situation is that the proceedings in Quebec law are contradictory in nature, as opposed to the inquisitorial system in France, where the judge, in place of the parties and their attorneys, conducts all or part of the factual investigation.
While in civilian systems, the opposing parties are legal opponents, they are adversaries of law and fact in the contradictory systems inherited from the common law.
Here we examine the course of a general litigation procedure, the reader having to consider that the civil procedure includes a large number of rules and exceptions.
What are the procedural steps?
First of all, it is essential to know that the demand letter is not a procedure as such.
The letter of demand letter is named as an extrajudicial demand. Although it is a necessary step in some disputes and preferable in the others, it is not because the plaintiff sends a demand letter that he undertook, or will necessarily undertake, proceedings.
1. The plaintiff’s Judicial application
It is the judicial application which commences the proceedings. It is accompanied by a notice of summons and a list of supporting exhibits.
The principles for the drafting of written pleadings, including the originating application, are that they must:
a. indicate their nature;
b. explain their purpose;
c. state the facts justifying the procedure, which must be presented in a clear, precise and concise manner, in a logical order and consecutively numbered;
d. the conclusions sought;
The mode of writing procedures implies that it is necessary that be stated everything that, if it was not, could surprise a party or create an unexpected debate.
2. The defendant’s answer
The originating application shall be served by a bailiff. Then, the defendant has 15 days to formulate his answer.
By his answer, the defendant indicates if (1) he wants to negotiate a settlement (2) defend the application and establish the case protocol with the plaintiff or (3) propose a mediation or a settlement conference. He also states the name and address of his lawyer if he is represented.
3. The Protocol of proceedings
The parties and/or their lawyers will then have to cooperate to establish the Protocol of proceedings.
By this document, the parties mainly intend to establish the deadlines to be met within the delay of 6 months before filing the request with the court office to have the case set down for trial and judgment.
The parties have 45 days from service of the originating application to file the Protocol of proceedings.
With some exceptions, the 6-month deadline begin from (1) the date the Protocol of proceedings is allegedly accepted (within 20 days after the filing of the Protocol, unless an exception applies), or (2) from the date of service of the originating application if the Protocol of proceedings has not been filed within the time limit of 45 days.
4. 6 months to do everything: the conduct of the proceedings until filing of the request t have the case set down for trial and judgment.
The steps considered in the Protocol are the following:
a. Preliminary exceptions and safeguard measures;
b. The advisability of holding a settlement conference;
c. Pre-trial written or oral examinations;
d. Expertises;
e. Defence, either oral or written;
f. Foreseeable incidental applications;
g. The extension of the time limit for trial readiness;
h. The methods of notification the parties intend to use.
These steps, or some of them according to the nature of the procedures, will take place within the 6-month period of registration for trial and judgment.
5. Registration for instruction and judgment
At the end of the period of 6 months, unless it has been extended, the parties file for trial and judgment. By this procedure, the parties request the clerk to add the file to the list of cases ready for trial.
In order to make this filing request, the parties must fill out a joint statement indicating:
a. that the file is ready for trial;
b. the name of the parties and, if they are represented, that of their lawyer and their contact information;
c. the inventory of exhibits and other pieces of evidence;
d. a list of witnesses;
e. the list of admitted facts;
f. the list of issues to be decided by expertise;
g. the estimated duration of the instruction.
6. The call to the provisional role
Once the joint declaration is filed, there is a remaining step: the call to the provisional role.
A few months after the parties have filed the joint declaration, they (or their lawyers) receive a notice of provisional call if the file is complete. During this provisional call, the parties (or their lawyers) and the special clerk agree on the upcoming holding of the trial given the availability of the Court, the parties, their witnesses and experts. The parties (or their lawyers) will therefore previously verify the availability of all those involved in order to avoid the delays.
7. The trial
It is the last step. The trial takes place on one or more days depending on the length of presentation of the evidence.
It is the demand that begins to present its case, followed by the defence.
According to the number of days required for the trial, that may be fixed in a long time (in months or even years) after the provisional role. This is the reason for which he parties and their lawyers are required to work together in order to limit the duration of the trial.
If the trial judge took the case under advisement, the judgment must be rendered within the following 6 months.
Why is it usually long to get to trial ?
As you may have read, in principle a civil or commercial litigation the conduct of proceedings will take place within 7 and a half months (6 months + 45 days) between the service of the originating application and the date of filing of the request for trial and judgment.
Unfortunately, as Eisenhower once said: plans are useless but planning is indispensable.
Many factors may thus influence and extend the delays to get to trial:
a. the complexity of the litigation;
b. the number of parties involved;
c. the number of incidents and the interlocutory proceedings until the demand for instruction and judgment;
d. the delays to obtain the expert reports;
e. the debate on the objections following the conduct of the examinations;
f. the delays in obtaining the transcripts and the undertakings following the examinations;
g. the various delays;
h. judicial delays;
i. the number of days required for the trial;
j. unavailabilities of the different actors involved throughout the procedure;
k. the requests to postpone the trial for various reasons including the lack of a witness or a party.
These situations will be the basis of the additional delays until judgment.
How to avoid the costs and delays of a trial?
Before getting caught up in a dispute, the contracting parties may benefit from including a mediation and arbitration clause in their contract.
This type of clause is precisely intended to avoid the delays and costs associated with litigation. Arbitration also has the advantage that the decision can be kept confidential if the parties so decide, unlike court decisions which must be published.
As for the parties who have not been able to provide for such a mediation and arbitration clause, they can still count on the holding of negotiations and can even agree on the holding of a mediation or a settlement conference at out of court presided over by a judge.
In fact, you should know that the vast majority of disputes do not go to trial, but rather end in an agreement.
