– Non-Official English –

This is a quick English translation, hopefully sufficient to shed light for English speakers on how the “quarrelsomeness” provisions came to be added to the Quebec Code of Civil Procedure. If someone would like to volunteer to correct this, or to put more French Hansard into English, be pleased to hear from you.

Translation: 2009-05-26 (Hansard) of the
Committee on Institutions Final Version

39th Legislature, 1st Session
(January 13, 2009 to February 22, 2011)
Tuesday, May 26, 2009 – Vol. 41 No. 16
 

Detailed study of bill no. 9 – An Act to amend the Code of Civil Procedure to prevent improper use of the courts and to promote respect for freedom of expression and citizen participation in public debates

Contents

Opening remarks

Mrs. Kathleen Weil
Mrs. Veronique Hivon

Detailed study

Preamble
General provisions
Courts
Competence of the courts
Powers of the courts and and of judges
Document tabled
Document tabled
Rules applicable to all legal actions
Claims and pleadings manifestly ill founded or frivolous
On case management
Execution of judgments
Forced execution of judgments
Preliminary provisions
Effective date
Report on the implementation of the law
Coming into effect
Pending articles

Final remarks

Mrs. Veronique Hivon
Mrs. Kathleen Weil

Other speakers

Mr. Claude Bachand, Vice President
Mr. Pierre Marsan, Acting President
Mrs. Stéphanie Vallée
* Mrs. Marie-José Longtin, Ministry of Justice
* Witness questioned by the Members of the Committee

Hansard

(Eleven hours twenty-eight minutes)

The President (Mr. Bachand, Arthabaska): So, to order, Sirs, Mesdames, even if the order is already nevertheless well established. So, having noted the quorum, I declare the meeting of the Committee on Institutions open. I kindly request all those in the room to turn off their cell phone alarms.

The Committee is met in order to proceed to the detailed study of bill no. 9, An Act to amend the Code of Civil Procedure to prevent improper use of the courts and to promote freedom of expression and citizen participation in public debates.

Mr. Secretary, are there any substitutions?

The Secretary: No, Mr. President.

The President (Mr. Bachand, Arthabaska): So, I wish to welcome you, dear Members of the Committee. Madam Minister, you are always welcome in our Committee, particularly this morning for the presentation of your bill. So, for the opposition, of course, the official opposition, Madam Speaker of the Official Opposition on the subject of justice, welcome. Mr. deputy from Saint-Jean, you are welcome to our Committee.

Opening remarks

So, without further delay, we begin the opening remarks. Therefore, Madam Minister, you have a maximum of 20 minutes for your opening remarks. Madam Minister.

Mrs. Kathleen Weil

Mrs. Weil:

Thank you, Mr. President. I would like to start by welcoming all the Members of the Committee and pointing out some elements preliminary to our detailed study of bill no. 9, the An Act to amend the Code of Civil Procedure to prevent the abusive use of the courts and to support freedom of expression and the participation of citizens in public debates. This bill was presented to the National Assembly on April 7th last, and the principle was adopted by it on May 12th.

I would like, at the outset, to introduce to you the people who accompany me: Maître Jean-Philippe Marois, principal private secretary, Maître Christian Veillette, on my left, political attaché, and, for the Ministry for Justice, Maître Nour Salah, behind me, Maître Vincent Pelletier, also behind me, Maître Marie-José Longtin, highly lawyer emeritus.

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This bill is pursuant to two consultations held by this Committee: first of all, public consultations held from February 20th to April 8th, 2008 on the report on strategic law suits against public mobilization, frivolous law suits, drafted by Prs MacDonald, Noreau and Jutras; then, particular consultations on bill no. 99 held from October 7th to 22nd, 2008.

As I mentioned recently, during the adoption of the principle of this bill, the groups consulted were in general in favor of the measures contained in bill no. 99 and desired its adoption by the National Assembly. Bill no. 9 takes up again primarily those measurements envisaged in the bill tabled by my predecessor, Mr. Jacques Dupuis. Some amendments were however made to take account of the comments formulated during the particular consultations and also to improve the effectiveness of the bill.

The bill proposes to amend the Code of Civil Procedure in order to anticipate therein what may constitute an abusive procedure. Such an abuse can in particular result from a frivolous law suit, which is to say a law suit the essential purpose of which is not to obtain reparations for damages, but in fact to limit the expression of points of view and to neutralize the action of persons who are opposed to or critical of a bill. Such a law suit thus aims at intimidating them or at depleting them. It is thus a question there of a hijacking of the purposes of justice.

The bill envisages various measures that a court will be able to employ when a law suit or a procedural document might be abusive. The court will be able in particular to require undertakings by the parties as to the good conduct of the case, to order the payment of a provision for expenses of the the case, to recommend to the chief justice to order a particular management of the case.

In a case of abuse, in addition to dismissing the law suit or the procedure, the court will be able, if it considers it suitable, to condemn a party to pay damages and interest, including extra-judicial fees, to condemn a party to pay punitive damages, to condemn, taking into account the circumstances, the administrators personally and the managers of an incorporation who commit an abuse of procedure.

Finally, I make a point of stressing that the bill proposes the inclusion of a preamble in order to reinforce the message which the legislator wishes to send to the population, that is to say that it is important to protect freedom of expression, to prevent or at the very least to counter the abusive use of the courts so as to facilitate access to justice for all citizens.

So, those are my my opening remarks. We will have occasion to further elaborate during the examination of each provision of this law, which in my opinion is an important tool to improve access to justice for Quebecers.

I announce that as of now I will propose the adoption of an amendment to article 5 to correct a misprint. This article aims at amending article 547 of the Code of Civil Procedure. Thank you, Mr. President.

The President (Mr. Bachand, Arthabaska): Thank you, Madam Minister. So, I now invite opening remarks from the spokesperson for the Official Ppposition on the subject of justice, the Member from Joliette, for 20 minutes.

Madam Véronique Hivon

Mrs. Hivon: Thank you, then, Mr. President. I in turn greet all the Members of the Committee, my colleagues the Members of the ministerial wing of the party and my colleague the Member from Lake-Saint-Jean, obviously the Minister’s team, so the members of his Cabinet and the jurists, Maître Longtin in particular. Therefore, thank you for being with us to help us carry off this important work today. And I am accompanied, for my part, by Maxime Couture, who is a researcher for the parliamentary wing.

I am happy to undertake the detailed study of this important bill, bill no. 9, An Act to amend the Code of Civil Procedure to prevent the abusive use of the courts and to support respect for freedom of expression and the participation of citizens in public debates. As I expressed during the adoption of the principle, I think that it is a bill which is important and which must challenge us all, as members of Parliament on both sides of the Room, because I would say that it is a bill which is significant as much from a social point of view that from a legal point of view. Therefore, there is really a two-fold interest.

And we know that often, on the subject of justice, we are dealing with bills of a very technical nature. However, this one is not purely technical in nature. On the contrary, it truly aims at advances which I would describe as social, on the one hand, because it truly provides renewed measures to protect freedom of expression and participation in public debates, which are fundamental values of our democratic society, where one wants precisely to encourage such debates, which, as we know, by the contest of ideas, often lead us to have a more accurate view of things and to bring out the truth. Therefore, I think that it is an important value which is reflected in the bill.

I would say that it is also socially a progressive step because it is a bill which allows better access to justice and which permits a certain rebalancing of the forces, which are sometimes rather disproportionate in legal matters. It is often a situation of David versus Goliath. And we take note of this fact and we are tryiing in various ways to be able to rebalance the forces, in particular at the economic level. Therefore, I think that these are two important points for the bill.

And finally, obviously, in terms of legal subject matter, it is a bill which is of truly major interest because we are making new law. If the bill is adopted, Quebec will be the first State in Canada to equip itself with this legislation and, to my knowledge, from what I have read in the MacDonald Report, the first common law jurisdiction. Therefore, I think that it is an important advance in law, but which leads us all the more, I think, to be careful and meticulous in the examination of the provisions in order to be certain that the objectives we set for ourselves with this bill, as members of Parliament, are truly well reflected in the wording of the bill, and that they are also in conformity with our intended general thrust as found in the Code of Civil Procedure, and that the whole meshes correctly.

So, a lot of work has already been done. There have been numerous hearings in parliamentary committee on the old draft, bill no. 99. Therefore, I think that, to respect to this work, we should be certain that the bill is truly in conformity with intentions and with what was discussed beforehand.

And it is certain that another concern that I will have is that of sending a clear signal because that is the goal of the bill, too. We know that there are certain measures which already have been applied by the courts with regard to abusive law suits but which were done so quite minimally or very hesitantly. Therefore, with this bill, we want to send a clear message. It will be necessary to ensure that measures are going to be present, but that all the actuators will be present so that they are also applied by the courts, at the proper time.

And finally I would say that we should assure ourselves that the bill will well answer the fist problematic to which it is addressed, which is to say that of the gag lawsuits. There is a choice which was made to anchor the whole within a broader framework of abusive proceedings, but it will be necessary obviously to keep in mind that the main objective, which was to respond to the problem of the gag law suits, be quite present and that we bring to it all the necessary measures, even if that could mean slightly different approaches if one is situated as regards abusive procedures generally or if one is truly situated within the framework of a gag lawsuit, strictly speaking.

So then, we will surely have a number of questions from the Opposition, in order to ensure that the whole of what is envisaged by this bill is well understood, to ensure as well that all is in conformity with the objectives which are laid down, in particular in the Preamble. And it is obviously in a constructive spirit that we are going to work here, so that we truly make of this bill a progressive and innovative law which, I hope, will truly give better access to justice. So, I wish us good work.

Detailed Study

Preamble

The President (Mr. Bachand, Arthabaska): Thank you, Madam spokesperson for the Official Opposition. So, we are right now going to consider Article 1 of the bill. So, Madam Minister, you have the floor.

Mrs. Weil: Yes. This is about the preamble.

The President (Mr. Bachand, Arthabaska): So, I have read it. I therefore propose to you… We have the choice, but there are precedents. I can speak to you about it for about an hour’s time, but I would like to spare you that. In theory, without overwhelming you ad nauseam with all the decisions which have been made, it would be preferable, in my opinion, to study article 1, article 2, article 3 and to present the preamble afterward, to…

Mrs. Weil: It’s over?

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The President (Mr. Bachand, Arthabaska): Yes, for one and only one single logical reason, it allows us, if there are amendments to the articles… well that could also modify the Preamble, in the eventuality… But, if you adopt the preamble immediately, and then there are amendments to the very sense of each of these articles, well, then, it would not be possible to return to further consider the Preamble because the Preamble will have been voted. So, for this reason and because of the decisions which were made, I would suggest that you move along to article 1, which… good, and the Preamble will come at the end, for the purposes of discussion and adoption. I don’t know if that, if that is appropriate to you. Yes, Madam the Member from Joliette.

Mrs. Hivon: Well, just, perhaps, for the clarity of our work then people who could listen to us, it would be perhaps well nevertheless, I think, to quickly read it. And I wonder whether we should not have a discussion, even if it means to suspend the vote on the adoption, to continue, and then to come back for the adoption if there were to be amendments, as you underscored it, Mr. President. But perhaps, for the purposes of clarity…

The President (Mr. Bachand, Arthabaska): Madam Minister, yes.

Mrs. Weil: Well, I feel the same way, in the sense that the Preamble, it really sets the context which would enable us to touch upon the essential components of the objective of the bill. Therefore, perhaps just to read it, at least once.

Mrs. Hivon: I would propose that a discussion nevertheless be had.

The President (Mr. Bachand, Arthabaska): Okay. And in view of the possibility… at your suggestion, we would suspend the adoption of the Preamble for the end, but, for the purposes of discussion, we would commence immediately. So, let’s go. Is that okay? Are we agreed on this? I understand that there is agreement. Go ahead, Madam minister.

Mme Weil: “AS it is important to promote freedom of expression affirmed in the Charter of human rights and freedoms;

“AS it is important to prevent improper use of the courts and discourage judicial proceedings designed to thwart the right of citizens to participate in public debate;

“AS it is important to promote access to justice for all citizens and to strike a fairer balance between the financial strength of the parties to a legal action;”.

The bill includes a Preamble in order to express well the legislative intention conveyed by the bil, the more so as the provisions which it contains are inserted into the Code of Civil Procedure.

In its first element, the Preamble aims at reinforcing the message given to the citizens by the bill, according to which it is important, in a democratic society, to protect freedom of expression without however according it primacy over the other rights guaranteed by the Charter of Rights and Liberties of the Person of Quebec, including the rights to the safeguard of one’s reputation and to respect for private life.

The second element of the Preamble indicates that it is also important to prevent or at the very least to counter and sanction the abusive use of the courts and to thus avoid a hijacking of the purposes of justice, in particular in the context of the gag law suits.

The prevention of impropriety should, as the third element indicates, promote access to justice for all citizens by limiting the incidence of economic strength of the parties.

The bill thus comes to reinforce the powers of intervention of the courts when they examine law suits or procedural documents which appear abusive.

The President (Mr. Bachand, Arthabaska): Thank you, Madam Minister. Are there questions? Madam the Member from Joliette.

Mrs. Hivon: Yes. Then, well, I think that there will be some general discussion of the preamble, since it is the introduction and the Preamble states well, I think, the objectives of the bill. And there is something which comes up, obviously, on reading. It is that there is a choice which was made after tabling of the MacDonald Report by the minister, to want to attack not only, in the bill, gag law suits and to situate measures which are present in the bill in a more complete context of abusive law suits.

I would like the Minister to explain to me why this orientation was chosen and how she thinks it will be translated concretely. What, for her, were the objectives which militated for this choice?

The President (Mr. Bachand, Arthabaska): Madam Minister.

Mrs. Weil: The idea was really to respect the general economy of the Code of Civil Procedure, of the Civil Law, and that formed a whole which made it possible to interpret legal actions before a judge in the general context of the Code of Civil Procedure and the Civil Law. Therefore, after the hearings, there was a certain consensus to go in the direction of integrating it. If I understand the question well: Why not have a specific law on the gag law suits?, the consensus was more to go in the direction that we chose. I do not know if that answers your question.

Mrs. Hivon: In fact, there are two choices. There was the first choice to know: Does one integrate it into the Code of Civil Procedure or does one makes a specific law? That, I understand that the choice was really taken, for the general economy, to put that in the Code of Civil Procedure. I am.

But the other question is: From the moment when one decides to put measures into the Code of Civil Procedure, once again, measures could have been aimed at the gag law suits specifically, rather than to aim at the abusive law suits, because there are already provisions which make it possible for the courts to hand down various orders when there is abuse. Then, I wanted to understand why this choice to really want to put to the… i.e. the general and the particular into the measures.

Mrs. Weil: The particular… Mr. President?

The President (Mr. Bachand, Arthabaska): Go, go ahead.

Mrs. Weil: I will go initially, then, if other details should be added… The particular is included obviously in the general. And I return to this concept of the general economy and coherence. It would make it possible for the court to consider all types of abusive measures without necessarily specifying that it is a gag law suit. A gag law suit belongs to the general picture of abusive proceedings. Therefore, it does not limit the range of actions of the judge faced with an action which he himself considers [[[inappropriate]]], or on his own initiative, or on request of the party to conclude as to its improper (abusive) nature. So, it is really a question of coherence and logic which does not limit the scope of these provisions but which makes it possible at the same time to attack the gag law suits, which are a type of abusive law suit.

Then, I don’t know if, with your permission, Mr. President, Mrs. Longtin could be asked if there are other elements to add concerning this choice.

The President (Mr. Bachand, Arthabaska): Is there agreement so that Mrs. Longtin can intervene? Agreement.

Mrs. Longtin, please present yourself for the benefit of the members of this Committee.

Mrs. Longtin (Marie-José): Then, Mr. President, Marie-José Longtin. I am a lawyer and I worked on the file for the Ministry of Justice.

I accompanied the previous Minister at the time of the public sittings. It is a question which was put from the outset, to know if effectively we had to strictly target the gag law suits or abuse in general. It is certain that currently, in the Code of Procedure, there are two provisions which aim at abuse of procedure, but this is in a truly procedural context. And the question, therefore, was also to avoid having two regimes, because essentially, a gag law suit is also an abuse of right that one can attach to articles 6 and 7 of the Civil Code and which are found in the Code of Procedure, and thus there would have been two regimes for abuse. What some intervenors have raised, is that, good, at this time, difficulties of interpretation were created, one also created two regimes, and it would have been to make it so that other abuses which are before the courts daily, at bottom, would have a regime of interpretation more strict than the gag regime.

The other difficulty also, is that by strictly targeting a particular regime, such as gag law suits, it would have been considered that the courts would have also been able to make a more restrictive interpretation. So, the choice was made, which is to say: It is a power of the Courts to control abuses, whatever these are, which unfold before them, and especially in this case. And that is why, inter alia, in the definition of abuse, one points to the case of… One can see at Article 1, there, where we end by pointing to this particular type of abuse.

The President (Mr. Bachand, Arthabaska): Madam the Member from Joliette.

Mrs. Hivon: Yes, that’s it. In fact, already, in the Preamble, I see that there is a will to really put the emphasis on, via “notably”, there, on the law suits which might be gag law suits. So, from the outset, there is a desire to … Yes, the particular is included in the general, but, from what I understand, the minister wanted specifically to put the finger on that for, I imagine, to favor an interpretation… finally to leave less room for maneuver in the interpretation when one is faced with a gag law suit. Was that really the intention?

Mrs. Weil: Completely.

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Mrs. Hivon: O.K. This being said, on this general consideration, the minister was undoubtedly briefed, there was a resolution adopted by the MRC of the Sources and there was an article in the Tribune. It’s because they said they had sent a copy of the resolution, so I don’t know. In fact, there was a questioning of the MRC, so I would just like us to immediately broach, namely if the municipalities and the MRC are targeted by the bill. Then, I would like the minister to tell us whether effectively, owing to the fact that it is in the Code of Civil Procedure, that it is of general application and thus… to reassure the municipalities or the MRC who might ask questions. Because, I can perhaps just say, the MRC des Sources has called on the governments to institute rules to protect not only citizens against abuse of legal procedures, but also the municipal authorities and their elected officials. So, I would simply like the minister to reassure the municipalities to say the general application of the Code of Procedure and the bill.

The President (Mr. Bachand, Arthabaska): Yes. Madam Minister.

Mrs. Weil: Yes, indeed, as incorporations, these entities would be targeted by the law.

Mrs. Hivon: Perfect. Then, I simply wanted us to clarify this thing from the outset, and, if you receive the resolution, you will know what it is about.

Before moving on to the study of the first article, as such, we referred to it, there are already provisions in the Code of Civil Procedure, which sanction abuses. And, from what I understand, to some extent, the bill, and the wording, and the additional measures, I would say, that one provides for, is it a bit of a signal that those measures in fact have been a failue because not used or that they have not had enough persuasive force with the courts so that they would use them? Is it in a way an admission of failure in that regard?

The President (Mr. Bachand, Arthabaska): Madam Minister.

Mrs. Weil: Yes, under-utilized but also in light certainly of a report that these abusive law suits are on the rise all over Canada, quite a lot in English Canada moreover, in Quebec as well, and thus a way to respond had to be found. I think that, after, I would say, really to the leadership of the two ministers who preceded me, this desire to go forward with an answer to the problem… it was necessary to reinforce these two provisions. It is true that the judge, in virtue of the terms of the Code of Civil Procedure? that is, articles 73 and 74… 75.1? could declare a law suit abuse, that it was of an abusive nature, but we are seeing a certain proliferation of these types of law suits that are called gag law suits. So, it took a clearer, more muscular approach to balance between the parties, therefore really to codify, in a sense, the right to push it further. Is it a failure? Perhaps I should let Mrs. Longtin tell us if in fact we have diagnosed a failure, but perhaps under-utilized.

The President (Mr. Bachand, Arthabaska): So, I understand that there is agreement for the intervention of Mrs. Longtin or… If ever you wish…

Mrs. Hivon: … that it be the Minister.

The President (Mr. Bachand, Arthabaska): … to withdraw your assent, you tell me, agreed? I take for granted that this is the case. Go ahead, Madam.

Mrs. Longtin (Marie-José): Yes, Mr. President. Then, in fact … I have lost the thread.

Mrs. Hivon: … the question is…

Mrs. Longtin (Marie-José): Ah! Okay.

Mrs. Hivon: Is it a failure because it is now necessary to come and legislate in a more specific manner, whereas there were already provisions?

Mrs. Longtin (Marie-José): It would be perhaps abusive to say that it is a failure, but it remains, I think that one can generally see it in the jurisprudence, that the courts always have a certain reserve, and one can understand it, to refuse from the start to dismiss an action because obviously it is a right to address the courts. And as it is… one would like to allow the parties the chance to express themselves, from whence the fact to say that, if it were not… if they currently have doubts, they are not… there is no specific scheme or there is no indication as to what they can do to control the management of the instance. Therefore, one of the objectives here is to say… to reinforce the possible intervention of the court to control the course of those instances which could be abusive, and, by doing this, obviously, one does not remove the power to immediately summarily dismiss an action which, on its very face, would be… i.e. which would be established as abusive, from the beginning. That would normally, I think, reinforce…

The President (Mr. Bachand, Arthabaska): Yes, go ahead, Madam Minister.

Mrs. Weil: Mr. President, I would also add an important component, it is the element of dissuasion. Because one brings… We will see it when we study the various provisions, there is an element really of sending up an alert. It was said earlier, in the introduction, for example of the members of the boards of directors which could take part in company decisions, of the corporation, who might eventually think a law suit abusive. Therefore, there are elements generally which make so that one will have, one hopes, fewer abusive law suits because already people will be alerted. Therefore, I think that it is an additional component which comes to reinforce this area of the law.

Mrs. Hivon: In fact, what you are telling us is that the basic objective was the gag law suits, in fact it was the immediate reason for the intervention, but that in light of the very, very minimal use, not to say practically [non-]existent, of the provisions concerning abuse, there was a desire to generally strengthen all the provisions concerning abusive pursuits, to somewhat, I would say, extend a hand and indicate the intention of the legislator even more clearly. Because, from her first response, the Minister spoke strictly about the gag law suits. Therefore, one would have been able to imagine that, yes, since it is a relatively new problem which is on the rise, that it was really necessary to attack it and with very clear, very specific measures. But, from this I understand, it was decided to not only to hold to provisions which were already present for abusive law suits, but to tighten things up and to anticipate measures much more, I would say, expanded and specific. So, it’s a little, to some extent, a way of saying that the regime, such as it was envisaged as regards abuse, in fact was not sufficient to the designated objectives.

Mrs. Weil: Excuse me, Mr. President.

The President (Mr. Bachand, Arthabaska): Go ahead. No, no, absolutely.

Mrs. Weil: Especially in light of, I think you have said it well, of the development of cases and the state of the law which one sees elsewhere in North America. Therefore, there were new problems and thus it was time to re-examine all of that together but all in… without creating a specific scheme for the gag law suits but generally for abuses of procedure.

Mrs. Hivon: O.K. Because in fact, what I am telling is: with this intention, which is affirmed, to take the general framework of abusive procedures, to not restrict itself to the gaga law suits, I see a nevertheless powerful signal finally which is sent to the courts to say: Use the mechanisms which are at your disposal because we noted a reserve.

Then, I would just like the Minister to tell us if indeed it is a clear general objective for abusive actions, not just the gag law suits.

Mrs. Weil: Yes. And I believe that the Preamble comes to reinforce this concept.

Mrs. Hivon: Then you said as that there is a proliferation of abusive law suits or of the gag law suits. Do you have any examples of the number of suits or of the increase?

Mrs. Weil: It is above all studies or commentaries that I have read everywhere in North America. I obviously would not like to comment on examples because, as you know, we will look at it later, this bill, once adopted, this law will apply to pending cases. Therefore, out of prudence, I will not comment on the types of examples. But obviously the current literature, everywhere in North America, shows this type of abuse of procedure and of, I don’t know if “proliferation”, it is a big word, but it is on the increase.

Mrs. Hivon: O.K. Then you seemed to say to in Canada and in Quebec. Is the phenomenon of about the same scope, if we compare?

Mrs. Weil: What I have read — and I will perhaps ask an expert — what I have read, one would say it’s a bit more in English Canada that it has been seen. Earlier, you mentioned that our would be the first jurisdiction. In fact, we are not the first jurisdiction, British Columbia… but we will be the only one. So, in British Columbia, I think that it is prevalent there, that they have seen law suits of the kind of the gag law suits, abuse of procedure. Obviously, in the United States, there is a lot of slandering, that is what we see a lot in the United States.

So, perhaps I would ask Mrs. Longtin to qualify… whether it is on the increase, or the observation generally made in North America or in Canada, in any case.

The President (Mr. Bachand, Arthabaska): Yes, go ahead, Mrs. Longtin.

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Mrs. Longtin (Marie-José): I think that we are obviously emphasizing in the report, that there were cases just about everywhere. Obviously, in the United States, there are quite numerous laws, therefore we presume that they were not passed for nothing… adopted for nothing. But, I want to say, we have no statistical data there, because, in any event, the perception that we have of it today is a perception, since we do not yet have any court decisions which have said: It is abusive or it is not.

Mrs. Hivon: Here.

Mrs. Longtin (Marie-José): Here.

Mrs. Hivon: Here, in Quebec, yes, that’s it.

Mrs. Longtin (Marie-José): Or in the other provinces.

Mrs. Hivon: That’s it, because in British Columbia, it has been in effect for about three or four months, I think, that law.

Mrs. Longtin (Marie-José): The law has not…

Mrs. Weil: Yes, that’s it.

Mrs. Longtin (Marie-José): … never been in force.

Mrs. Hivon: Yes, that’s it. With a change of government, the law died. O.K.

And, the last question before we… The fact of having a Preamble… It’s really a question of a much more technical, legal nature. I seem to see that it’s an increasingly frequent practice to have, really, in the bill, preambular statements which obviously belong to the bill but will not form part of the law because they will not be in the Code of Civil Procedure, as such. Right?

The President (Mr. Bachand, Arthabaska): Yes, go ahead.

Mrs. Weil: Yes. Mr. President, they will be there but not in the form of a preamble, they will be there in the form of a note. Therefore, the preambular statements will be there possibly for the court or the other parties, to interpret the intention of the legislator.

Mrs. Hivon: In the form of a note in the Code of Civil Procedure with, at the end of…

Mrs. Weil: That’s it, in the form of note. That’s it.

Mrs. Hivon: O.K. And, that’s it, so it’s something which I see proliferating. I don’t know if indeed there is a pedagogical intention behind that or a simplification, of the interpretation of the legislator’s intention. That is really a question to enlighten me, to know what is the real goal in having preambular statements as an integral part, because before, the law had to speak by itself, and I wanted to know what was the aim of the minister or the ministers when now, increasingly they come to add preambles.

Mrs. Weil: I cannot comment on the trend. Honestly, I haven’t got enough experience with this trend. I nevertheless asked this question myself because it is unusual generally see a preamble, especially for the Code of Civil Procedure. But I see the scope of this preamble as being very useful possibly for litigants, for the courts, allowing them to understand a little the context of this new codification, to direct the courts. It will be more in the form of a note, therefore it will be at the bottom of the page, it is not the preamble which we see here before us. Therefore, it is an additional tool, I think, to enlighten us all as to our reflection at this stage in our history of the development of the Code of Civil Procedure and of the civil law, that marks a certain period. From a perhaps slightly more procedural point of view, perhaps we could ask Maître Longtin to reply.

The President (Mr. Bachand, Arthabaska): Mrs. Longtin.

Mrs. Longtin (Marie-José): Good, obviously, it’s because these are elements which serve for interpretation, to express a legislative intention. And also, considering the origin as well, the starting point of the file, there was an intention to clearly indicate that… Even if we were proceeding broadly for the gag law suits, there was this marked intention to mention them, inter alia via the preamble, that it was one of the objectives which it was necessary that the law…

Mrs. Hivon: You are doing is for this particular law. Then, is it indeed a growing trend to include, in bills, I would say, which have a bit broader scope than simply technical, really, these preambular statements? Because, for the law on water, for example, I saw it, or finally… No?

Mrs. Weil: But, as I said, Mr. President, I could not personally answer this question, not having seen these preambles enough. I don’t know if Mrs. Longtin…

Mrs. Hivon: O.K. That’s fine. I wanted…

A voice: …

The President (Mr. Bachand, Arthabaska): Ok? Madam the Member for Joliette.

Mrs. Hivon: That’s fine. Then so, the note, just to understand, because… it would be inserted after what…

Mrs. Weil: … article, the very first one.

Mrs. Hivon: The very first article.

Mrs. Weil: I think so.

Mrs. Hivon: Therefore, 54.1? There would be small… … Is it… But…

Mrs. Weil: 54, that’s it, the article, the very first one.

Mrs. Hivon: O.K., that’s it. Which is really new law. So, there would be a small footnote. Because it is nevertheless rather uncommon.

Mrs. Weil: Yes, it would be under 54, therefore not under article 26 in fact, which is also amended, but article 54.1. Therefore, there would be a footnote.

Mrs. Hivon: Ah! Good. I’m learning something.

Mrs. Longtin (Marie-José): Then, it’s a verification which we have made with the services who update the statutes, for the [[[ refonte / recasting ]]], who have told us in fact that it was something… Because we didn’t want the people to miss this text, which in fact is always authentic, which always has a value, but, if it is not reproduced in the updates, it is likely to be forgotten. So, it was made quite clear to us that indeed it was possible to reproduce it in an informational note, so that people will be able to establish the link between the law, as it was adopted, the preamble… which contained a preamble used for interpretation.

Mrs. Hivon: Is this a first for the Code of Civil Procedure?

Mrs. Longtin (Marie-José): It would be a first for the Code of Civil Procedure.

Mrs. Hivon: And in general?

Mrs. Longtin (Marie-José): I think yes. There are informational notes, but of this kind, it would be a first.

Mrs. Hivon: Therefore, there is really an affirmed wish to clearly say: Here is the intention, and one will not have to search high and low for the intention.

Mrs. Weil: Exactly, Mr. President.

Mrs. Hivon: O.K. That makes it so that we really are making new law from the technical point of view. O.K. We can, perhaps, indeed, suspend the formal adoption of the preamble in case we would want…

General provisions

The Courts

Powers of Courts and Judges

The President (Mr. Bachand, Arthabaska): So, I understand that there has been agreement to suspend the adoption of the Preamble. That’s fine. So, let us proceed to the study article by article. Therefore, Madam Minister, article 1.

Mrs. Weil: Article 26 of the Code of Civil Procedure is modified by insertion, after paragraph 4 of the second subparagraph, the following paragraph:

“ 4.1. Judgments which dismiss an action because of its abusive character; ”.

This article establishes that judgments which dismiss an action because of its abusive character could only be subject to appeal on permission of a judge of the Court of Appeal. Thus, permission of the Court of Appeal will be required, even if the applicant could have otherwise automatically appealed, for example because of the amount in litigation.

The President (Mr. Bachand, Arthabaska): Is that fine? Madam the Member from Joliette.

Mrs. Hivon: Yes, then, this article was not present in bill no. 99. I thus want to know: Was that an oversight or was there, in fact, a certain change of will to want to come to specify that it was on appeal? The change, in fact, by introducing this new article there, is it primarily on the question of the permission to appeal, so there would be a but of a change of orientation, or if it was an oversight in the first draft?

Mrs. Weil: I don’t think that it was an oversight, Mr. President. What I had read, is that there was an uncertainty as to the applicable regime with regard to appeal, and so the article comes to specify and to respond to the uncertainty which had been expressed at the time.

(Consultation)

Mrs. Weil: I will ask Mrs. Longtin to continue.

The President (Mr. Bachand, Arthabaska): Yes. Mrs. Longtin, yes.

Mrs. Longtin (Marie-José): Yes. In the absence of this provision, the situation would have been that the appeal would have been possible if it was a litigation of over $50,000, but one would already have had, at basis, a first judgment saying that it is abusive, and from there one goes to appeal on a question where the basis of the action was not discussed, but simply the abuse, and at bottom one continues the abuse, to some extent, supposedly, since time passes during this time, and the parties are held to make… to continue the parade of procedures. So, that is why we came to answer, at bottom, the concerns which had been expressed by various groups, to say what must really be the applicable regime in these cases.

The President (Mr. Bachand, Arthabaska): Madam the Member from Joliette.

Mrs. Hivon: Does that mean that, as this article was not present, there could flatly have been no right of appeal, orwas it only on the question of the $50,000 which made the difference?

N (12. 10) N

Mrs. Longtin (Marie-José): I think that there was a right of appeal…

Mrs. Hivon: General.

Mrs. Longtin (Marie-José): … general. It could have been a general right of appeal.

Mrs. Hivon: O.K. We come…

Mrs. Longtin (Marie-José): But perhaps that the Court of Appeal would have said: It cannot be that it is general, therefore… In any case, it came to meet these needs which had been presented to us by certain organizations.

Mrs. Hivon: O.K. Then, just so that one understands… But, in fact, he, I would like it that a discussion be had, then, he too, I will ask that we suspend because, considering it is the appeal, I would like us to look at all the measures which could be granted to see what is subject to appeal, or not.

Therefore, just so that one is correctly situated, if the defendant party invokes, as a preliminary exception, that there is abuse, the moving party pleads, and the court judges that there is indeed an abuse and dismisses, the moving party has a right of appeal upon permission to appeal.

A voice: Exactly.

Mrs. Hivon: That’s it. So if on the other hand, the defendant party raises the question, it’s doable… the other party pleads, and one says: There is no abuse or, at the very least in any case, there is not enough abuse, so that the application is dismissed, in this case, there is no right of appeal because, there, it is interlocutory.

Mrs. Longtin (Marie-José): It is that.

Mrs. Hivon: Therefore, the only situation where there can be an appeal, is really when it is the moving party who says that its procedure is abusive and that there is a dismissal of the motion. O.K. Therefore, in any case, one will get back there, because one will look at the whole of the measures. Therefore, as soon as one would be on another measure, for example provisions for costs or… there would be no right of appeal because one would be in an interlocutory matter. Is that what I understand?

Mrs. Weil: Yes, Mr. President. But, like you said, one could suspend, then, when one sees… It is enough… it is very complex.

Mrs. Hivon: Yes, it is that, one will return. Because I am likely to have questions more, yes, precise once all the detail will have been made.

The President (Mr. Bachand, Arthabaska): Therefore, do I have to understand that you are ready to suspend, Mrs. the deputy of Joliette?

Mrs. Hivon: Yes.

Powers of Courts and Judges

The President (Mr. Bachand, Arthabaska): Yes. So, yes, that goes for Madam the Minister. Therefore, I will suspend the study of article 1. We thus will pass to article 2. Madam Minister.

Mrs. Weil: This Code is amended by the insertion, in chapter III of title II of Book I bearing on the powers of the courts and of the judges, and after article 54, as follows:

“Section III. Power to impose sanctions for improper use of procedure.

“54.1. The courts may, at any time, on request or even on its own initiative after having heard the parties on the point, declare an action or other pleading improper and impose a sanction on the party who has acted abusively.

The abuse can arise from a claim or pleading that is clearly unfounded, frivolous or dilatory or from conduct that is vexatious or quarrelsome. It may also result from bad faith, from a use of procedure that is excessive or unreasonable or causes prejudice to another person, or in an attempt to defeat the ends of justice, in particular if it restricts freedom of expression in public debate.”

2009, c. 12, s. 2.

This new section is added to the chapter on the powers of courts and judges in the Code of Civil Procedure to place emphasis on the powers of intervention of the courts when they are seized of an abusive procedure. This approach falls under the tread of articles 4.1 and 4.2 of the Code which, in 2002, recognized to the courts the responsibility to see to the orderly conduct and sound management of instances, while ensuring compliance with the rule of proportionality according to which acts (of procedure) must, as to their cost and the time required to deal with them, be proportionate to their nature and their objective.

The first subparagraph of article 54.1 provides that the courts, at first instance as much as in appeal, will be able to declare an action or other pleading abusive and sanction the party who introduced it. The possible sanctions are envisaged at the following articles.

The second subparagraph defines what may constitute an abuse and includes under this concept several acts which in and of themselves are manifestation of an abuse of right. The provision tackles the question of abuse in a much broader way than article 75.1 of the Code of Civil Procedure currently does. This one is based on a more procedural approach. It is interpreted in a strict manner by the courts. Which do not want to deprive a party of being heard, and which generally do not dismiss an action or a procedure unless a clear case requires it and while ensuring that the procedure appears futile and dilatory and presents no reasonable chance of success.

The provisions of the bill, while taking notice of this approach of the courts, aim at offering additional means to them when they are confronted with possible abuses. It is to be stressed that the definition of “abuse” aims in particular at gag law suits, strategic law suits against public mobilization, which were the subject of the report prepared by Prs MacDonald, Noreau and Jutras in 2007.

The President (Mr. Bachand, Arthabaska): Is that fine? Madam Member.

Mrs. Hivon: Then, as it was said a short while ago, I think that it is manifest on reading this article and from the commentary of the minister:  there is a certain judgment made that room for maneuvering by the courts may already exist, in particular at 75.1 and 75.2, but that there was a very, very, very reserved approach and we are somewhat sending the message to them to have a less-reserved approach as regards abuse. Is that it, the intention?

Mrs. Weil: That’s quite it.

Mrs. Hivon: And can you … Can the minister tell us if there have been judgments rendred pursuant to 75.1 and 75.2 on questions of abuse in recent years? … Nonetheless, it was rarely used, but has it nevertheless been used?

(Consultation)

The President (Mr. Bachand, Arthabaska): Yes, Mrs. Longtin.

Mrs. Longtin (Marie-José): We do not have our Alter Ego with us, but, in fact, it seems that there are nevertheless decisions which are published regularly on these questions. But let us say that it is not so … perhaps that it is not done quite as often as it might be done, in any case according to the interventions which have been made, inter alia at the time of the Committee, some said: Good, there are constant abuses, and the courts do not make use of it. And there is an element nevertheless which is new compared to 75.1, since one intervenes possibly proprio motu, which currently 75.1 does not provide.

The President (Mr. Bachand, Arthabaska): Madam Member.

Mrs. Hivon: So, one cannot say whether there has been, I would say, in recent legal history, if there have been decisions which came to really sanction an abusive procedure in the sense intended in these articles. In fact, my question is: Would it be plainly non-existent, going so far as to dismiss a procedure?

Mrs. Longtin (Marie-José): Well, I think that what one can note, upon reading, obviously, the synopses of the jurisprudence, is that… as for me, I do not remember any decisions [sic] which they dismissed, but, if there are, they are sufficiently limited. But there is nevertheless, in the pleadings, there are nevertheless things which are regularly noted as abuses of procedure and which are dismissed. I want to say, they are not currently useless articles, non-utilised.

The President (Mr. Bachand, Arthabaska): Yes, Madam Minister.

Mrs. Weil: I would add: certainly on the motions. Because one can very often imagine motions which are dismissed because the judge considers that it is not abusive, at the very least not excessive. But I do not have the jurisprudence in front of me either, but…

Mrs. Hivon: No, no, that’s OK. But, on a motion such as …

Mrs. Weil: On a motion such as…

Mrs. Hivon: Mrs. Hivon: Because that is a little bit what we have just provided for. Therefore, I wanted to know if, nevertheless, these articles have been used to go so far as to sanction by dismissing an application, in the current status… in the current state of things in the law. Because in fact it would come a little bit to corroborate the theory that it is quite relevant to go to reinforce, I would say, the pedagogical effect of a law.

N (12. 20) N

Mrs. Weil: Mr. President, we could ask somebody with the ministry to check, because on the one hand that could serve as a little precedent to see how the courts would have interpreted these provisions in the light of what we are aiming at. I repeat nevertheless that the intention of these provisions, is also the dissuasive element. Therefore, there are two objectives in a sense, that is prevention and the curative aspect also to help litigants, quickly, who would be grappling with abuse. But thus, with your permission, Mr. President, we will go and do the research, it would be interesting, it would add to the debate.

Mrs. Hivon: In fact, that’s it, it’s just that I asked myself obviously, in studying this bill here, to what point this bill is necessary to really mark, I would say, to clear a path and to send a clear signal. And I think that it is all the more (necessary) if it is noted that to date these articles in fact were never used to sanction by dismissal of an action. Therefore, I think that, yes, for the purposes of our study, it might be relevant to see what the status is, the state of the law, in virtue of these articles. It is not an exhaustive review of the jurisprudence, but it is to know: has it already been done, a dismissal pure and simple of an action, in virtue of those articles?

Mrs. Weil: Completely, Mr. President, I see the relevance of the request.

The President (Mr. Bachand, Arthabaska): Is that fine? Any other interventions? Madam the Member from Joliette.

Mrs. Hivon: Then I imagine that, in the design of things, the abuses apply to all domains, obviously, because one sees some in particular in the Family Division when a party decides to bring procedure after procedure against a party who may be less economically favoured. And one knows all the human tension and the emotions which can be involved. Is it really also, not in terms of gag law suits, but in terms of generally abusive actions, one of the objectives which you have, that it be more disciplined in the Family Division, in particular?

Mrs. Weil: Well, for that matter, when you posed your question, then we undertook to go and see, at the ministry, my instincts told me that it would be much more in the Family Division that one would see these kinds of abusive procedures, motions, etc., having practiced family law for a period of time, I have memories of that.

Mrs. Hivon: Because I think that there was a Parizeau case… finally, it seems to me that there was precisely a case in the Family Division, but I can’t remember if there was a dismissal, I don’t remember if there were a dismissal of the action, then that’s it… In any case, I would like to know if the courts have already gone so far on the subject of abuse.

Mrs. Weil: Then, Mr. President, with permission, I would ask Mrs. Longtin to add elements.

The President (Mr. Bachand, Arthabaska): Yes, of course, Mrs. Longtin.

Mrs. Longtin (Marie-José): Yes, it seems indeed that there was nevertheless… It’s because there is a note, there, in the computer, that there are, in fact, certain cases, actions which were dismissed from the start, but what we see here, for example: dismissal of an action in extracontractual liability; rupture of matrimonial relations, whereas the rupture does not constitute a fault, thus obviously ill founded; or again, an introductory motion with no allegation of concrete facts. But, still, these are reall obvious cases.

Mrs. Hivon: But there was… It was not that the motions in … we weren’t looking only at the preliminary objections, we were looking at the actions, in depth, which had been dismissed…

Mrs. Weil: There are dismissals of actions. One could register, in fact, eh?

Mrs. Hivon: Yes, it would be useful.

Mrs. Weil: It would be interesting.

Mrs. Hivon: If it is possible.

Mrs. Weil: One could register the list. There is a whole list of examples.

The President (Mr. Bachand, Arthabaska): So, I understand that you will transmit to the Committee the documents which… we, on our responsibility, will transmit to you, Madam Member from Joliette. Madam Member.

Mrs. Hivon: As for me, that goes for this article.

The President (Mr. Bachand, Arthabaska): Is that fine? So…

Mrs. Weil: Just for clarification.

The President (Mr. Bachand, Arthabaska): Yes, go ahead.

Mrs. Weil: It is important, it is a confidential note, therefore it will be necessary to make an extract from it.

Mrs. Hivon: In fact, it’s the actions, the cases which interest me.

Mrs. Weil: Yes, that’s it, we could go look for the in fact public cases, to seek the causes.

Mrs. Hivon: Yes, it would be useful.

Mrs. Weil: It would be interesting.

Mrs. Hivon: If it is possible.

The President (Mr. Bachand, Arthabaska): Is that fine? So, I thought I understand that we could dispose of article 54.1. So, is article 54.1 is adopted?

Voices: Adopted.

The President (Mr. Bachand, Arthabaska): Adopted. Madam Minister, article 54.2.

Mrs. Weil:  54.2. If a party summarily establishes that an action or pleading may be an improper use of procedure, the onus is on the initiator of the action or pleading to show that it is not excessive or unreasonable and is justified in law.

A motion to have an action in the first instance dismissed on the grounds of its improper nature is presented as a preliminary exception.

This article envisages a reversal of the burden of the proof if a party establishes summarily that the action or the pleading of the opposing party may constitute an abuse. It will belong to the court to determine the proof which might be presented. The party who has introduced the pleading will have to then show to the court that its initiative is founded on a legitimate reason and is justified in law, therefore that it is not exercised in an excessive or unreasonable manner.

The motion of a party seeking to have an action declared abusive will generally be done as a preliminary exception and must be served on the adverse party before presentation of the action, within 30 days from receipt of the notice of presentation. If such a motion is presented after this delay, the court may refuse its presentation, article 159 of the Code of Civil Procedure. If the request seeks to have a pleading declared abusive, it should be presented to the court within a reasonable delay. That’s it, Mr. President.

The President (Mr. Bachand, Arthabaska): That’s fine. Madam the Member from Joliette.

Mrs. Hivon: I have just, firstly, a little question. In your comments, you said that the motion of a party seeking to have an action declared abusive, will generally be done as a preliminary exception. Is that generally or in all cases? Because obviously the second subparagraph comes to really to say us that it will be presented as an instance… in first instance as a preliminary exception. Therefore, I wanted just a clarification on this matter. I imagine that, in all cases… It is because you said “generally” in the comments, therefore I wanted to know… I imagine that the nuance is…

Mrs. Weil: That it would be by preliminary exception, but which, generally…

Mrs. Hivon: In fact, can somebody raise it in the course of the instance?

(Consultation)

Mrs. Weil: Then, it would be necessary to go and look at article 159 of the Code of Civil Procedure, where there is a certain latitude for the judge, because he can reject, in the course of an instance, a motion, which supposes that he could also accept it en route. Therefore, generally, that would be done by preliminary exception, but there article 159 seems to envisage situations where it might be en route. So…

Mrs. Hivon: … on the interpretation which is made of 159, that, since he can dismiss, he could accept.

Mrs. Weil: Yes. I don’t know, Mr. President, if you wish me to read the article for… So, that’s alright?

The President (Mr. Bachand, Arthabaska): If it can enlighten the Member from Joliette, there is no disadvantage.

Mrs. Hivon: Ah! well, perhaps… no… well, I can read it, but perhaps, yes, for the…

Mrs. Weil: For the transcription.

Mrs. Hivon: Yes, perhaps for the transcription.

Mrs. Weil: Therefore, article “159: Unless otherwise agreed by the parties in accordance with article 151.1, preliminary exceptions and the conclusions sought must be disclosed in writing to the opposite party before the date of presentation of the action or application, failing which the court may refuse the presentation of preliminary exceptions.”

Mrs. Hivon: Therefore, it is the “can” which comes… because, if not…

Mrs. Weil: To presume the reverse.

Mrs. Hivon: … it would be “refuse”.

Mrs. Weil: That’s it.

Mrs. Hivon: Therefore, there would be no right… no possibility of getting out of it.

The President (Mr. Bachand, Arthabaska): Yes, go ahead, Mrs. Longtin.

Mrs. Longtin (Marie-José): Yes, Mr. President. The majority of the speakers who came to express themselves before the Committee asked that this be settled quickly, this question. In the American legislation, one often sees 15 days, 30 days, often 45 days, and here, obviously by qualifying it as a preliminary exception, one ensures that generally it is within a 30-day delay, since it is the usual delay for presentation.

Mrs. Hivon: That’s it. Then that, it was my second question. The 30-day deadline to which you have referred in the commentary, it’s the usual delay, but it is not envisaged in article 159, for example, or… Is it envisaged black on white somewhere, or is it in fact the usual manner in which the courts function? Because, precisely, it was seen that it was an important request of the groups which came, that there be tightened deadlines, that the things not be stretched out. I see the 30 days appearing in the commentary, but I don’t see it in the law.

The President (Mr. Bachand, Arthabaska): So, after your answer, I will have the Member from Gatineau who wishes to briefly intervene.

Mrs. Weil: That’s it.

Mrs. Hivon: So, there be no right… no possibility of getting out of it.

The President (Mr. Bachand, Arthabaska): Yes, go ahead, Mrs. Longtin.

Mrs. Hivon: If Maître Longtin wants to look while, we can come back to this question.

The President (Mr. Bachand, Arthabaska): Mrs. Longtin, do you prefer to do your research while…

Mrs. Longtin (Marie-José): Yes, because I…

The President (Mr. Bachand, Arthabaska): Yes? In agreement. Madam the Member from Gatineau.

N (12. 30) N

Mrs. Vallée: Thank you, Mr. President. Then, a question quite simply because speaking about the delays for presentation of the motion within the framework of an originating motion to an instance. On the other hand, if I truly understood the remarks of the minister, this article and the means which are adopted or which will be adopted within the bill are also aimed at the whole of the pleadings, the motions for interrogatory, the various motions, I think, among others, in matrimonial dossiers, I believe that there is no… The principle applies in general. One notices regularly, both in the matrimonial files or sometimes in files of litigations between neighbors, a multiplication of procedures en route, amendments, additional procedures.

RESUMING THE TRANSLATION…. 6 Jan 2016

How will the application of these criteria to abusive law suits be managed when a party files a motion, a motion for an interrogatory, a procedure en route which would possibly be colored by a spirit of vengeance have a mind to exhaust the recourses of the other party? Because that is often seen and… in private practice, one often has, one often hears the comment on the part of our clients that, ok, the procedure which is filed is aimed at weakening the other party, and one sees it as well in the course of the instance. Even as a prosecutor, one can experience this feeling of exasperation when there is a multiplication of procedures by a colleague. Therefore, how will these files be managed when it will be a question of pleadings filed in the course of the instance?

The President (Mr. Bachand, Arthabaska): Madam Minister.

Mrs. Weil: Then, if I understand the question, I think that the answer is really in article 54.3, which will be the next article, which allows the court, that is to say either with a law suit it considers abusive, or a pleading en route… there is a series of solutions which are proposed in the bill, that can be discussed when we look at article 54.3, and one sees really a judge who is much more proactive in the management of the instance.

The President (Mr. Bachand, Arthabaska): So, in regard to 54.2, Mrs. Longtin, was your research fruitful?

Mrs. Longtin (Marie-Jose): Yes. I was looking at 119, and it’s article 151.4 which says that the delay for presentation “cannot be fixed at less than 30 days from the time of service, except with the consent of the parties or whenever the law envisages a shorter delay”. For certain types of action, that can be 10 days. And so, that is what essentially determines the use of the 30 days which …

Mrs. Hivon: Thank you. But in fact, so, it’s 30 days or more, unless notice to the contrary. There, there is… nothing specific envisaged. So, there is a certain tradition of 30 days, but nothing prevents it being more, so it could be 60 days or it could be…

Mrs. Longtin (Marie-José): It could be 60 days, but we also know moreover that we have the 180 days rule. Then, obviously, the longer the delay for presentation, the more one is restricted in the other delays which can be used by the parties.

Mrs. Hivon: But wouldn’t it be necessary to provide for it in black and white? Because precisely there is a case of abuse, one party is under quite incredible stress, financial problems, technical, sometimes he can’t take care of his business. Wouldn’t it be relevant to foresee it in black and white, that the motion be made within a given delay?

The President (Mr. Bachand, Arthabaska): Mrs. Longtin, Madam Minister.

Mrs. Hivon: Because in fact, I understand the 180 days rule, but that’s just it, it can be in the interest of the party which is more malevolent not to accept a rapid date. Lastly, I raise the question. Wouldn’t it be just relevant, to reassure those who made motion for rapid action, to come to anticipate it?

(Consultation)

The President (Mr. Bachand, Arthabaska): We can suspend for a few moments.

A voice: …

The President (Mr. Bachand, Arthabaska): Yes? So, are we agreed to suspend work for a few moments? Thank you.

(Adjournment to 12:36)

(Resumption at 12:48)

The President (Mr. Bachand, Arthabaska): So, we will resume our work. We were thus…

Mrs. Weil: Perhaps Mr. President, I would like…

The President (Mr. Bachand, Arthabaska): Madam Minister, go ahead.

Mrs. Weil: … to ask the Member to perhaps repeat the question. If I understood correctly, it would be to see whether we could, under the terms of this new bill, require a shorter delay than that envisaged at article 151.4, which really speaks of a 30- day minimum? It is more a minimum than anything else.

Mrs. Hivon: That’s it, it’s…