Contents:
A pleading must specify the court seized, the judicial district in which it is filed, the number of the record to which it relates, the names of the parties and its date. If the court office can receive pleadings in technological media, the pleading must be in one of the standardized formats determined by the Minister of Justice to ensure the proper operation of the court office. An application in the course of a proceeding may be in writing or presented orally and without formality at the hearing.
If in writing, it must state the date, time and place it will be presented before the court, and must be notified to the other parties at least three days in advance. If presented orally, it must be submitted to the court in the presence of the other parties. An application in the course of a proceeding may also be set out in a note, a letter or a notice if it concerns a case management measure, if the judge so requires or if the judge and the parties so agree. The note, letter or notice must clearly state the nature of the application and its subject matter, the number of the record to which it relates and any conclusions sought.
An application in the course of a proceeding that is grounded on facts not supported by evidence filed in the record must be supported by an affidavit of the person alleging the facts. An application in the course of a proceeding can only be contested orally, unless written contestation is authorized by the court. During the hearing, any party may submit relevant evidence. When replying to a pleading, a party must admit the allegations that it knows to be true and deny those that it does not admit, giving reasons for the denial, or state that it is unaware of the fact.
To evoke an alleged fact, it is sufficient to refer to the paragraph in which it is stated. Silence with respect to an alleged fact is not an admission of that fact. In their pleadings, lawyers, notaries and bailiffs must designate themselves by their name, the name of their partnership or the name by which they are known. They must also state their professional address and give the name and contact information of the person in their office with whom the other parties may communicate. Whenever the law requires that a pleading be supported by an oath or whenever it requires or allows an affidavit as evidence, the oath must be sworn by a person who can attest to the truth of the facts alleged in the pleading or affidavit.
The pleading or affidavit must mention the date and place the oath is sworn or received, as well as the name and address of the person swearing the oath and the name and capacity of the person receiving it. The person who swore the oath may be examined on the facts whose truth the person attested to; similarly, the affiant may be examined on the facts mentioned in the affidavit if the pleading, attestation or affidavit is deemed by law to be sworn. If the person refuses to submit to such an examination without valid cause, the pleading or affidavit is rejected.
A sworn statement, whatever its medium, must set out the facts and other evidence clearly and only contain facts or evidence that are relevant and the truth of which can be attested to by the person making the statement. A reference to the paragraphs in the pleadings is sufficient to identify the facts that are sworn to. Repeating the wording of pleadings may constitute an abuse of procedure. Evidence by sworn statement is permitted when the defence is oral. It is required in the case of an interlocutory injunction, a seizure before judgment or a judicial review but does not preclude testimonial evidence.
An originating application must be filed with the court office before it is notified to the other parties. The court clerk records it in the court registers, opens and assigns an identification number to the case record and writes that number on the document to be used by the party for notification purposes.
All other pleadings must be filed with proof of notification and with any other required document. Pleadings that are to be presented at the hearing must be filed with the court office at least two days before the date of presentation, except in an urgent situation noted by the court. No originating application may be set down for trial or judgment unless the plaintiff has first filed proof of notification; an originating application expires if it is not notified within three months after it is filed.
Pleadings on technological media filed outside court office hours are deemed filed the following day, at opening time. In an urgent situation, the filing of a pleading outside court office hours may be attested to by the court clerk. To be considered received, a pleading must be filed with the prescribed court costs and fees, if any.
The parties and the lawyers, or in non-contentious proceedings, the notaries representing the parties, must see to it that exhibits and other documents that contain identifying particulars generally held to be confidential are filed in a form that protects the confidentiality of the information. Any document or real evidence that is filed in the record as an exhibit must remain in the record until the end of the proceeding, unless all the parties consent to its being removed.
Once the proceeding has ended, the parties must retrieve the exhibits they have filed; otherwise, the court clerk may destroy them one year after the date on which the judgment becomes final or the date of the pleading terminating the proceeding. In either case, the chief justice or chief judge, if of the opinion that the exhibits can still be useful, may stay their destruction. However, in reviewable or reassessable matters and, in non-contentious cases, notices, certificates, minutes, inventories, medical and psychosocial evidence, affidavits, statements, declarations and documents made enforceable by a judgment, including any child support determination form attached to a judgment, cannot be removed from the record or destroyed.
The purpose of notification is to bring a document, whether an originating application or any other pleading or document, to the attention of the persons concerned. A document intended for two or more addressees must be notified to each separately. Notification may be made by any appropriate method that provides the notifier with proof that the document was delivered, sent or published.
Such methods include notification by court bailiff, by mail, by delivery, by technological means and by public notice. If the law so requires, notification is made by a court bailiff, in which case it is called service. Whatever the method of notification used, a person who acknowledges receipt of the document or admits having received it is deemed to have been validly notified. If required by the circumstances, the court, on an informal request, authorizes notification of a pleading otherwise than as provided for in or outside the hours prescribed by this chapter; in such a case, the court determines how notification is to be proved.
The decision of the court is recorded on or attached to the pleading. The court clerk may exercise the powers conferred on the court with respect to notification, except as regards the notification of pleadings in personal integrity, status or capacity matters. The notifying party is required, on request, to let another party inspect the original or the document held by the notifying party. If the notifying party refuses or neglects to do so, the other party may seek a court order requiring compliance within the time specified by the court. Notification of a pleading cannot be made in a public place of worship, a courtroom or a hearing room of an administrative tribunal, nor to a Member of the National Assembly in the chamber or a room where the Assembly or a committee sits.
If the document cannot be so delivered, it must be left at an appropriate place in a sealed envelope or in any other form that protects its confidentiality. If the document is being served, the bailiff signs and stamps the document and records the date and time on it.
If the addressee refuses to accept the document, the bailiff records the refusal on the document, which is deemed to have been served or notified personally at the time of the refusal. The bailiff must leave the document on the premises by any appropriate means. In the latter case, notification is made by delivering the document to the addressee in exchange for a receipt.
When service is required by law, the only professional fees and expenses that may be charged by the bailiff as legal costs are those chargeable under the regulation under the Court Bailiffs Act chapter H A document may be served even if another method of notification is permitted by law; no additional cost above the cost of notification by mail may be charged to the addressee, however, unless the addressee has rendered service necessary or service has been authorized by the court.
Service is proved by a certificate of service drawn up by the bailiff under their oath of office. The bailiff may correct a clerical error in the certificate of service at any time before it is filed with the court office. Service by a person designated by a bailiff is proved by a certificate of service drawn up by the person, stating their name, capacity and address. The certificate of service must be supported by a receipt given by the person who received the document, unless that person refused to give one, in which case that fact is recorded in the certificate of service.
On the face of the certificate drawn up by the designated person after an unsuccessful attempt to serve a document, the court may authorize notification by any method appropriate in the circumstances. The authorization is recorded on the certificate and on the document to be notified. Service of an originating application must be made on the addressee personally if the addressee is 14 years of age or older and the application pertains to their personal integrity, status or capacity.
The same applies if the addressee is imprisoned or otherwise confined against their will, or if their true identity is unknown or uncertain. If the parties reside together, documents must be notified personally by one party to the other, unless they have agreed together to another method of notification. It may also be made by delivering the document personally to such an officer, director or agent, wherever that person may be.
Notification of a document to a general or limited partnership or an association or any other group not endowed with juridical personality is made at its business establishment or office by leaving the document in the care of a person who appears to be in a position to give it to the addressee. It may also be made by delivering the document personally to one of its partners, members or officers, wherever that person may be. Notification to a trustee, the liquidator of a legal person or enterprise or a trustee in bankruptcy is made at their domicile or place of work, either by delivering the document personally to them or by leaving the document in the care of a person who appears to be in a position to give it to the addressee.
In all cases, the owner, administrator or manager is required to co-operate with the bailiff, such as by providing access to an appropriate place. Alternatively, the notice may be sent by a technological means. A document is considered to be mailed by registered mail if the delivery or receipt of the document is recorded. Notification by registered mail is proved by the delivery notice or the receipt notice presented by the letter carrier at the time of delivery. The notification is deemed to have been made on the date the receipt notice was signed by the addressee or an intermediary capable of receiving notification or, as applicable, on the date of the delivery notice.
If the document is delivered to a person other than the addressee, it must be in a sealed envelope or in any other form that protects its confidentiality. Notification by a technological means is made by sending the document to the address provided by the addressee for the receipt of the document, or to the address that is publicly known as the address where the addressee receives documents, provided the address is active at the time of sending.
Notification by a technological means is proved by the transmission slip or, failing that, by an affidavit of the sender. The transmission slip must set out the nature of the document, the court record number, the names and contact information of the sender and the addressee, and the place, date, hour and minute of sending; unless the document was sent by a bailiff, the transmission slip must also contain the information needed to enable the addressee to make sure that the entire document was sent.
The transmission slip is filed with the court office only if a party so requests. Notification by public notice is by order of the court. Notification by public notice may also be used without a court order by a bailiff who has tried unsuccessfully to serve a document and has recorded that fact in the certificate of service. The notice or summary must be published in French on a website for at least 60 days or once only in hard copy in a newspaper. If required by the circumstances, the notice or summary may be published more than once or may also be published in English.
Notification by public notice is proved by filing with the court office a relevant extract from the published document, showing the date and the method or place of publication. Notification by public notice is deemed to have taken place on the first day of publication. An originating application must be served by bailiff. The same applies to other pleadings required to be served under this Code or another law. An originating application must be served on the defendant and the other parties. It is validly served only if certified by the serving party, its lawyer or the bailiff as being a true copy of the document filed with the court office.
Other pleadings by a party must be notified to the lawyers or, as applicable, notaries of the other parties, or to the parties themselves if they are not so represented. They may be certified as true copies on request. If the pleading notified is not a true copy of the pleading filed with the court office, the notifier may notify a new pleading, with or without leave of the court depending on whether the party that was notified has replied or not to the pleading.
In a contentious case, a judicial application originating a proceeding is conducted according to the procedure set out in this Book. The special rules for the conduct of certain civil matters set out in Book V and for special proceedings provided for in Book VI may supplement that procedure or depart from it. Even in the absence of a dispute, a judicial application may be instituted to seek, in order to resolve a genuine problem, a declaratory judgment determining the status of the plaintiff, or a right, power or obligation conferred on the plaintiff by a juridical act.
Two or more subject matters or claims may be joined in the same judicial application, provided the conclusions sought are compatible. In family matters, the conclusions of the application may pertain to provisional measures, to claims for custody or support or to the principal application. Two or more plaintiffs may join their claims and conclusions in the same application if they have the same juridical basis, are grounded on the same facts or raise the same points of law, or if circumstances permit. If the plaintiffs agree on the facts, they may confine the application to the issue of law which is likely to cause a dispute between them.
A plaintiff cannot divide a debt that is due for the purpose of claiming payment by means of more than one application. The plaintiff summons the defendant before justice by means of a summons attached to the application. The summons includes a list of the exhibits in support of the application and informs the defendant that they are available on request. The defendant must answer the application within the following 15 days, failing which a default judgment may be rendered and the legal costs awarded against the defendant.
The summons must be in keeping with the model established by the Minister of Justice. It states, among other things, that the defendant must co-operate with the plaintiff in preparing the case protocol that is to govern the conduct of the proceeding; it also specifies the sanction to which the defendant is subject for failing to submit an answer to the application within 15 days after its service.
The summons also sets out the options available to the defendant in answering the summons. It informs the defendant that, if article 43 applies, the defendant may ask for the referral of the originating application to the court having territorial jurisdiction by applying to the special clerk in the district concerned after notifying the request to the other parties and the office of the court already seized of the originating application.
In the answer to the summons, the defendant states their intention to either negotiate a settlement or defend the application and establish a case protocol with the plaintiff. The defendant may also propose mediation or a settlement conference. The parties are required to co-operate to either arrive at a settlement or establish a case protocol. In the case protocol, the parties set out their agreements and undertakings and the issues in dispute, indicate the consideration given to private dispute prevention and resolution processes, describe the steps to be taken to ensure the orderly conduct of the proceeding, assess the time completing these steps could require and the foreseeable legal costs, and set the deadlines to be met within the strict time limit for trial readiness.
If warranted by the complexity of the case or by special circumstances, the parties may agree on a complementary protocol to provide for points that cannot be determined at the case protocol stage or identify certain points on which they were unable to reach an agreement. It must be filed with the court office within 45 days after service of the summons or, in family matters, within three months after service of the summons.
Within 20 days after the case protocol is filed, the court examines it in light of the directives given by the chief justice or chief judge to ensure that the guiding principles of procedure are observed. The case protocol is presumed to be accepted unless the parties are called, within that same day period, to a case management conference, which must be held within 30 days after the notice calling the conference.
The case protocol accepted by or established in conjunction with the court is binding on the parties, who are each required to comply with it under pain, among other sanctions, of paying the legal costs incurred by any of the parties or by third persons as a result of their failure to comply.
The parties cannot amend the case protocol without the approval of the court unless the amendment pertains to the agreed time limits or facilitates the conduct of the proceeding, and is not inconsistent with specific decisions of the court; the parties are required to file all amendments to the case protocol with the court office. A person impleaded by the application may participate in the establishment of the case protocol. To do so, the person must inform the parties within 15 days after notification. Otherwise, the person is presumed to accept the case protocol established by the parties.
A person who becomes a party in the course of a proceeding must, within 15 days, propose terms for their participation in the proceeding, taking into account the existing case protocol. Failing agreement with the other parties, the person may ask the court to set those terms and amend the case protocol accordingly. If a party fails to co-operate in establishing a case protocol, the other party files a proposal within the time limit for filing. If the differences between the parties are such that they are unable to establish a case protocol, one of the parties or each of them files a proposal within the time limit for filing, stating the points on which the parties differ.
In such circumstances, the court may either convene the parties to establish the case protocol or establish the case protocol, even on its own initiative. If it considers it useful, the court may require undertakings from the parties as to the further conduct of the proceeding, or subject the proceeding to certain conditions. If a party is absent without valid reason, the court may hear the party that is present if the latter is ready to proceed on case management measures.
If the parties have agreed on a complementary protocol, the court may also schedule another case management conference. At the case management conference, the court may decide to hold a hearing of the parties, on the preliminary exceptions, or to hear the defendant on the grounds of defence, which are recorded in the minutes of the hearing or in a brief statement. The court may try the case immediately if the defence is to be oral and the parties are ready to proceed, postpone the hearing to a specified later date or leave it to the court clerk to set the case down for trial.
Preliminary exceptions are presented and contested orally, but the court may authorize the parties to submit the relevant evidence. If the court tries the application on the same day as the case management conference, the parties prove their cases by means of affidavits if the law so requires or permits. They may also present any other evidence, be it testimonial or documentary.
If it is shown to the court that the application is of a conservatory nature, that a settlement is possible and that the effort required to prepare the case for trial would be wasted or disproportionate in the circumstances, and the court is in addition convinced of the seriousness of the steps taken, the court may stay the proceeding for the time it determines. In order to ensure the orderly progress of a proceeding, the chief justice or chief judge may, on their own initiative, given the nature, character or complexity of the case, order that it be examined and, if warranted, case-managed as soon as the application is instituted and even before the case protocol is filed.
The chief justice or chief judge may also, for the same reasons, on their own initiative or on request, order special case management at any time and assign a judge as special case management judge. The special case management judge is responsible for deciding all incidental applications, convening a case management conference and a pre-trial conference if warranted, and issuing such orders as are appropriate, unless another judge is temporarily assigned because the special case management judge is unable to act.
The special case management judge may also be assigned to preside over the trial and render judgment on the merits of the principal application. Unless revised by the court, they govern the conduct of the proceeding together with the case protocol. In all cases where the representative of a minor or of an incapable person of full age has an interest adverse to that of the minor or incapable person, the court, even on its own initiative, may appoint a tutor or curator ad hoc to ensure proper representation of the minor or incapable person.
If required by the circumstances, the court may stay the proceeding for the time it specifies. At any stage of a proceeding but before the scheduled trial date, the chief justice or chief judge may assign a judge to preside over a settlement conference if the parties so request, briefly stating the issues to be examined, or if the chief justice or chief judge recommends that a settlement conference be held and the parties concur. The chief justice or chief judge may also do so even after the scheduled trial date, if exceptional circumstances so warrant.
Presiding over settlement conferences falls within the conciliation mission of judges. The purpose of a settlement conference is to facilitate dialogue between the parties to help them better understand and assess their respective needs, interests and positions, and explore solutions that may lead to a mutually satisfactory agreement to resolve the dispute. A settlement conference is held in the presence of the parties, and, if the parties so wish, in the presence of their lawyers. It is held in camera, at no cost to the parties and without formality.
The settlement conference does not stay the proceeding, but the judge presiding over the conference, if of the opinion that it is necessary, may modify the case protocol accordingly. Anything said, written or done during the settlement conference is confidential. In agreement with the parties, the judge determines the schedule of meetings, the rules applicable to the settlement conference and any measure to facilitate its conduct.
The rules may, among other things, allow the judge to meet with the parties separately and allow other persons to take part in the settlement conference if it is considered that their presence would be helpful in resolving the dispute. The parties are required to ensure that the persons who have the authority to make a settlement agreement are present at the conference or that they can be reached in sufficient time to give their consent.
If a settlement is reached, the judge may, on an application, homologate the transaction. The judge cannot, however, subsequently try the case or decide any incidental application. A party that has preliminary exceptions to raise must disclose them in writing to the other party in sufficient time and file the written disclosure with the court office. The party must do so before the time limit for filing the case protocol or on the date specified in the case protocol, or at least three days before the date set by the court for the case management conference on the case protocol, or, if no case protocol is required, at least three days before the originating application is to be presented before the court.
The disclosure and filing required by the first paragraph may only be effected at another time in cases determined by law or with the authorization of the court if serious reasons so warrant. If an application is brought before a court other than the court of competent jurisdiction, a party may ask that it be referred to the competent court or, failing that, that it be dismissed.
Lack of subject-matter jurisdiction may be raised at any stage of the proceeding, and may even be declared by the court on its own initiative, in which case the court adjudicates as to legal costs according to the circumstances. The party may also ask that an application or a defence be dismissed if it is unfounded in law even if the facts alleged are true.
Such an exception may pertain to only part of the application or defence. The party against which the exception is raised may be allowed a period of time to correct the situation but if, on the expiry of that period, the correction has not been made, the application or defence is dismissed. The dismissal of an application may be urged even if the exception to dismiss was not raised before the first case management conference. A party may apply to the court for any measure conducive to the orderly conduct of the proceeding. A party may also apply to the court for an order directing another party to provide particulars as to the allegations made in the application or the defence, disclose a document to the party or strike immaterial allegations.
A judgment granting such an application may require a party to do something within a specified time under pain of the originating application or the defence being dismissed or the allegations in question being struck. Defending an application, whether orally or in writing, consists in raising all the grounds of law or fact that argue against granting in whole or in part the conclusions sought in the application.
In its defence, a party may allege any material facts, even material facts that have arisen since the application was instituted, and advance any conclusions necessary to defeat grounds set up by the other parties. If the defence is oral, the arguments made are recorded in the minutes of the hearing or in a brief outline attached to the minutes. If the defence is written, it is set out in a pleading. A declaration by a party that it submits to justice is not a defence, nor is it acquiescence in the claims of another party.
The defence is to be oral unless the case presents a high level of complexity or special circumstances warrant otherwise. The defence is to be oral, for example, in all instances where the purpose of the proceeding is to obtain support or a right relating to the custody of a child, to obtain the surrender of property, an authorization, a designation, a homologation or the recognition of a decision, or a determination as to the manner in which an office is to be discharged or the sole determination of an amount of money due under a contract or as reparation for proven injury.
In the defence, the defendant may make a cross-application against the plaintiff to assert a claim arising from the same source as the principal application or from a related source.
The court remains seized of the cross-application despite discontinuance of the principal application. A cross-application is made in writing but defended orally, unless the court, on its own initiative, requires that it be defended in writing. The plaintiff is required to ready the case for trial within six months, or one year in family matters, after the date on which the case protocol is presumed to be accepted or the case management conference following the filing of the case protocol is held, or after the date the case protocol is established by the court, and, before that strict time limit expires, to file a request with the court office to have the case set down for trial and judgment.
Nevertheless, if warranted by the high level of complexity of the case or by special circumstances, the court may extend the time limit at a case management conference. Even after the case management conference, the court may extend the time limit before it expires, if the parties show that it was impossible in fact, at the time of that conference, to properly assess how long they would need to ready the case for trial, or that circumstances unforeseeable at that time have since occurred.
The new time limit set by the court is also a strict time limit. If the parties or the plaintiff have not filed a case protocol or a proposed case protocol within the prescribed day or three-month time limit for doing so, the six-month or one-year time limit under this article is counted from service of the application.
In such an instance, the court cannot extend the latter time limit unless it was impossible in fact for one of the parties to act. If the declaration cannot be made by the parties jointly, the plaintiff or, if the plaintiff fails to do so, another party, files a declaration and notifies it to the other parties.
The declaration is deemed confirmed unless the other parties specify, within 15 days after it is notified, what should, in their opinion, be added or deleted. If the defendant fails to answer the summons or to file a defence within the time limit set in the case protocol and the plaintiff so requires, the court clerk sets the case down for judgment. If the defendant fails to attend the case management conference, the case is set down for judgment on an order of the court.
A premature or irregular request for setting down a case may be cancelled by the court or the court clerk, on their own initiative. A request made after the expiry of the time limit prescribed by law or set by the court is inadmissible. A plaintiff who fails to file a request for setting down within the strict time limit is presumed to have discontinued the application, unless another party files such a request within 30 days after the expiry of the time limit. The court may relieve the plaintiff from this sanction if it is satisfied that it was impossible in fact for the latter to act within the time limit.
In such an instance, the court modifies the case protocol and sets a new time limit, which cannot be extended except for compelling reasons. The notice is notified at least one month but not more than two months before the trial date, unless the parties agree to a shorter notice period. The notice is presumed to have been received if the notification is recorded in the court register. The fact that a party did not receive the notice is not grounds for postponing the trial if its lawyer received it. The agreements and decisions made during the pre-trial conference are recorded in the minutes of the conference and are binding on the parties during the trial.
In default proceedings, the special clerk may render judgment if the sole subject matter of the application is the price of a service contract or the sales price of movable property; the special clerk may also render judgment if the application seeks payment of an amount of money clearly stated in an authentic act or private writing. The special clerk may also, after the evidence stage, render judgment on any other matter except family matters. When the presentation of evidence is necessary, the special clerk receives the evidence, which may be adduced solely in the form of affidavits.
During the evidence stage of the proceeding, the defendant cannot produce witnesses but may cross-examine any witnesses called by the plaintiff. The witnesses may also be examined by the special clerk or by the judge in chambers, if the clerk or judge sees fit. If there are two or more defendants but only one or some are in default, the plaintiff may proceed first against those in default and request that the case be set down for judgment by the court, after giving notice to all who are party to the case protocol.
However, if the court is of the opinion that the dispute requires a uniform decision for all the defendants, given the subject matter of the application or to avoid conflicting judgments, it orders the proceeding to continue against all of them in accordance with the case protocol. Intervention is either voluntary or forced. Intervention is voluntary when a person who has an interest in a proceeding but is not a party or whose participation in a proceeding is necessary in order to authorize, assist or represent an incapable party intervenes in the proceeding as a party.
It is also voluntary when a person wishes to intervene for the sole purpose of participating in argument during the trial. Intervention is forced when a party impleads a third person so that the dispute may be fully resolved or so that the judgment may be set up against that third person. It is also forced when a party intends to exercise a recourse in warranty against the third person. Voluntary intervention is termed aggressive when the third person seeks to be acknowledged as having, against the parties or one of them, a right which is in dispute.
It is termed conservatory when the third person wishes to be substituted for one of the parties in order to represent it, or to be joined with one of the parties in order to assist it or support its claims. A third person is said to intervene as a friend of the court when seeking only to participate in argument during the trial.
A third person who intervenes for aggressive or conservatory purposes becomes a party to the proceeding. The declaration of intervention must also propose an intervention procedure, with due regard for the case protocol. The parties have 10 days to notify their opposition to the third person and the other parties. A third person who wishes to intervene as a friend of the court during the trial must obtain authorization from the court. The person must file a declaration of intervention setting out the purpose of and grounds for the intervention and notify it to the parties at least five days before the date the application for authorization is to be presented before the court.
A third person is impleaded by service of a declaration of intervention setting out the grounds justifying the forced intervention of that third person as a party, together with the judicial application. The declaration of intervention is also notified to the other parties and they and the third person have 10 days to notify their opposition.
When the purpose of the forced intervention is to call a third person in warranty, the warranty is termed simple if the plaintiff in warranty is being sued as personally liable. The warranty is termed formal if the plaintiff in warranty is being sued as the holder of a thing. A third person called in simple warranty cannot take up the defence of the plaintiff in warranty, but may merely contest the application brought against the latter, if the person sees fit.
A third person called in formal warranty may take up the defence of the plaintiff in warranty and the latter may ask to be relieved from defending. In order to preserve their respective rights, the plaintiff in warranty, although relieved from defending, may remain in the proceeding and the principal plaintiff may require that the plaintiff in warranty remain in the proceeding. A judgment rendered against the formal warrantor is enforceable against the plaintiff in warranty after it is notified to the latter.
The principal application and the recourse in warranty are joined in a single proceeding and, unless separated by the court, are subject to the same case protocol, which is revised to take the recourse in warranty into account. The principal application and the recourse in warranty are tried together and a single judgment decides them both. The application is brought by the party itself or by a specially mandated lawyer and is notified to the disavowed lawyer and the other parties.
After judgment, such a disavowal must be sought by means of an originating application. Execution of the judgment is not stayed unless the court so orders. If the disavowal is held to be well-founded, the repudiated acts are annulled and the parties, restored to their former state. If, before a case is taken under advisement, the lawyer of one of the parties withdraws, dies or becomes disqualified from practising as a lawyer, a formal notice must be given to the party to appoint another lawyer or send the other parties a notice of intention to self-represent.
The party must answer the formal notice within 10 days after its notification. No pleading may be filed or judgment rendered during that time. If the party does not appoint a new lawyer, the proceeding continues as though the party were not represented.
If the party does not comply with the case protocol or the rules of representation, any other party, if a plaintiff in the case, may request that the case be set down for judgment, or, if a defendant in the case, that the application be dismissed. In the latter case, the lawyer may only be declared disqualified for serious cause. Before a trial date has been set, a lawyer who wishes to cease representing a party may do so after notifying the party, the other parties and the court clerk. If a trial date has been set, the lawyer cannot cease representing the party, nor may another lawyer be brought in as a substitute, without the authorization of the court.
If parties joined as plaintiffs in an application are represented by the same lawyer, the court, to avoid genuine problems and to ensure that justice is done, may adjourn the trial until each of the parties has appointed a new lawyer or filed a notice of intention to self-represent. A proceeding is not delayed because a party has had a change of status or capacity, has ceased to exercise certain functions or has died. However, the court may extend the strict time limit for trial readiness so that interested persons may continue the proceeding or be given a formal notice to do so.
In such a case, the proceeding is stayed for the time specified by the court. A lawyer who learns that the party they are representing has had a change of status or capacity, has ceased to exercise certain functions or has died is required to notify that information to the other parties. Pleadings filed before the notification are valid.
Those filed after the notification are without effect, except conservatory ones intended to preserve the rights of the persons likely to continue the proceeding. Those filed after the notification are without effect and the proceeding is stayed until continued by the liquidator. A continuance of proceeding is obtained by filing with the court office a notice stating the facts giving rise to the continuance and notifying it to all the parties. The right to continue the proceeding may be contested within 10 days after the notification.
If it is not contested within that time, the continuance of proceeding is deemed admitted. If the interested persons do not continue the proceeding, a party may give them a formal notice to do so. If they fail to comply within 10 days, any plaintiff in the case may request that the case be set down for judgment as in default cases, and any defendant in the case, that the application be dismissed.
In such a case, the chief justice or chief judge designates another judge to continue or try the case and informs the parties. If the judge does not withdraw from the case within 10 days after the notification, a party may make an application for recusation. A party may, however, waive the right to recuse. Statements and any other document relating to the recusation are filed in the record.
The courts and judges, both in first instance and in appeal, have all the powers necessary to exercise their jurisdiction. The person so imprisoned must be summoned before the court periodically to explain themselves, and imprisonment may be ordered again until the person complies. The notice of appeal must state the grounds of law or fact the appellant intends to argue to have the judgment varied or quashed, the conclusions sought by the appellant and, if applicable, the value of the subject matter of the dispute. The notice must ensure that the adopters remain anonymous to the father and mother or the tutor and vice versa, and must state the subject matter of the application, the grounds on which the application is based and the conclusions sought. If they hold a trial on the merits during such a period, they must make sure, before setting the date, that the parties and their lawyers and their witnesses, if any, may attend without any major inconvenience to themselves or their families. Persons who have filed with the court office a certificate attesting that they have already participated in such an information session in connection with a prior dispute or confirming that they have gone to a victim assistance organization recognized by the Minister of Justice for help as a victim of domestic violence are exempted from participating in such a session. Write a customer review.
A judge who has an interest or whose spouse has an interest in a case is disqualified and cannot hear the case. An application for recusation is notified to the judge and the other parties on the expiry of 10 days after notification of the statement. If no statement was made, a party may apply for recusation at any stage of the proceeding, provided it shows that it has been diligent.
The application may be made orally during the trial, in which case the reasons given are recorded in the minutes of the hearing. If the application for recusation is against the sole judge assigned to sit in the district where the proceeding has been brought, the court clerk immediately informs the chief justice or chief judge. The application for recusation is decided by the judge seized of the case. The decision may be appealed by leave of a judge of the Court of Appeal.
If the application is granted, the judge must withdraw from the case and abstain from sitting. If the application is dismissed, the judge continues to be seized of the case. The court clerk advises the chief justice or chief judge of any case in which the trial is postponed because the judge has decided to withdraw from the case. At any time before judgment, the parties may withdraw or amend a pleading without it being necessary to obtain an authorization from the court, provided doing so does not delay the proceeding and is not contrary to the interests of justice.
However, the amendment of a pleading must not result in an entirely new application having no connection with the original one. An amendment to a pleading may be made, for instance, to replace, correct or complete statements or conclusions, allege new facts or assert a right accrued since the notification of the judicial application. A party that intends to withdraw or amend a pleading must notify the intended withdrawal or the amended pleading to the other parties, which have 10 days to notify their opposition.
If no opposition is notified, the withdrawal or amendment is accepted. If opposition is notified, the party that intends to withdraw or amend the pleading presents its application before the court for a decision. If any of the other parties must respond following the withdrawal or amendment of a pleading, the time limit for responding is set by the parties or, if the time limit is not already specified in the case protocol, by the court.
If, as a result, a new defendant is brought into the proceeding, the judicial application must be notified to that party without delay. During the trial and in the presence of the other parties, the court may authorize a party to withdraw or amend a pleading without formality.
The decision is recorded in the minutes of the hearing and any amended pleading is filed in the record as soon as possible, without notification being necessary. At any time before judgment, the court, on its own initiative, may order the immediate correction of any clerical error or error of form, expression or calculation in a pleading, subject to the conditions it sees fit.
The parties to a proceeding may jointly submit to the court a controversy between them on an issue of law raised by the dispute. The court determines the issue in the course of the proceeding if it considers that doing so is useful for the orderly progress of the proceeding; otherwise, it defers its determination of the issue until the judgment on the merits of the case.
Even when the applications do not arise from the same source or from related sources, the court may order that two or more proceedings between the same parties brought before the same court be consolidated, provided this does not result in undue delay for any of the parties or serious prejudice to a third person. As well, the court may order that two or more proceedings pending before it, whether or not they involve the same parties, be consolidated in order to be tried at the same time and determined on the same evidence, that the evidence in one of the proceedings be used in another or that one of the proceedings be tried and determined before the others.
The resulting applications are tried before the same judge, unless the chief justice or chief judge decides otherwise. A stay order is effective until the judgment rendered by the Superior Court has become final. The stay order may be revoked if new circumstances so warrant. Discontinuance by the plaintiff of the whole of a judicial application terminates the proceeding on the notification of a notice of discontinuance to the other parties and its filing with the court office. It restores matters to their former state, and is effective immediately if it takes place before the court and in the presence of the parties.
The legal costs are borne by the plaintiff, subject to an agreement between the parties or a decision of the court. If one of the plaintiffs in a joint application discontinues it, the other plaintiff may continue the proceeding alone. In such a case, the judicial application is amended accordingly and notified to the other parties, and the proceeding is continued in accordance with the rules applicable to any application. A party to a proceeding may make or renew a tender and confirm it in a judicial declaration, which is recorded.
If the tender is made by means of a letter of undertaking from a financial institution, a copy of the letter and proof that the letter was notified are filed in the record. If a sum of money or a security is tendered, it is deposited with a trust company, and the receipt for the deposit is filed in the record. Unless the tender is conditional, the party to whom the tender is made may obtain the sum of money or security deposited, without prejudicing its claim to the balance. For a deposit with a trust company to be valid, the trust company must be licensed under the Act respecting trust companies and savings companies chapter S The trust company must undertake to place the sum on deposit as a deposit of money within the meaning of the Deposit Insurance Act chapter A other than as a term deposit which would not be repayable at any time before maturity.
The trust company must also undertake to remit the sum of money or security to the party to whom the tender is made on proof of performance of the obligation. The document recording the undertakings of the trust company is filed with the court office. The application may be made orally during the trial, in which case the reasons given are recorded in the minutes of the hearing.
If the application for recusation is against the sole judge assigned to sit in the district where the proceeding has been brought, the court clerk immediately informs the chief justice or chief judge. If the application is granted, the judge must withdraw from the case and abstain from sitting. If the application is dismissed, the judge continues to be seized of the case.
The court clerk advises the chief justice or chief judge of any case in which the trial is postponed because the judge has decided to withdraw from the case. An amendment to a pleading may be made, for instance, to replace, correct or complete statements or conclusions, allege new facts or assert a right accrued since the notification of the judicial application. If any of the other parties must respond following the withdrawal or amendment of a pleading, the time limit for responding is set by the parties or, if the time limit is not already specified in the case protocol, by the court.
If, as a result, a new defendant is brought into the proceeding, the judicial application must be notified to that party without delay. At any time before judgment, the court, on its own initiative, may order the immediate correction of any clerical error or error of form, expression or calculation in a pleading, subject to the conditions it sees fit.
As well, the court may order that two or more proceedings pending before it, whether or not they involve the same parties, be consolidated in order to be tried at the same time and determined on the same evidence, that the evidence in one of the proceedings be used in another or that one of the proceedings be tried and determined before the others. A stay order is effective until the judgment rendered by the Superior Court has become final.
The stay order may be revoked if new circumstances so warrant. If the tender is made by means of a letter of undertaking from a financial institution, a copy of the letter and proof that the letter was notified are filed in the record. If a sum of money or a security is tendered, it is deposited with a trust company, and the receipt for the deposit is filed in the record.
Unless the tender is conditional, the party to whom the tender is made may obtain the sum of money or security deposited, without prejudicing its claim to the balance. The document recording the undertakings of the trust company is filed with the court office. A declaration of acquiescence is filed with the court office and notified to the plaintiff.
If acquiescence in the application is qualified, the plaintiff must notify acceptance or refusal to the defendant within 15 days after notification of the declaration of acquiescence. If the plaintiff accepts, the special clerk renders judgment accordingly. If the plaintiff refuses, the proceeding continues, but the plaintiff may nevertheless obtain judgment for the amount specified in the declaration of acquiescence, in which case the proceeding continues only for the balance.
If the plaintiff notifies neither acceptance nor refusal, the plaintiff is presumed to have accepted the acquiescence with its qualifications. However, the court may relieve the plaintiff from the consequences of the default before judgment is rendered on the acquiescence. Other than the parties, the following may be examined: The questions must be clear and specific, so that the absence of an answer can be taken as an admission, by the party or person examined, of the facts to which the questions pertain.
The examination and the answers are filed in the court record by either of the parties. If the party is a legal person, a general or limited partnership, or an association or another group not endowed with juridical personality, the answers are given by an authorized director, officer or employee, unless they are determined by a special resolution of the legal person, partnership or association or group not endowed with juridical personality. Nevertheless, the court, for valid cause, may relieve the party or person examined from the default and allow them to answer, subject to the conditions it sees fit.
The court may also ask any other questions considered necessary and relevant, which the party or person examined must answer, failing which the facts to which the questions pertain are also held to be proved. If the judicial application is founded on an injurious act or omission that is also an indictable offence, the necessary measures must be taken to ensure that the victim is not, without having consented to it, confronted with the alleged or confirmed perpetrator. Another party may ask the court to order the party to produce any other excerpt that cannot be dissociated from an excerpt that has already been produced.
If the objections raised during the examination pertain to the fact that the person examined cannot be compelled, to fundamental rights or to an issue raising a substantial and legitimate interest, the person may refrain from answering. Such objections must be presented before the court within five days for a decision.
Other objections raised during the examination, including objections based on relevance, do not prevent it from continuing, the witness being required to answer. Such objections are recorded for a decision by the court at trial unless they can be heard by the court for an immediate decision. The judgment on an objection may be rendered orally or in writing. In the course of the examination, the parties may agree to extend its length from five to seven hours or from three to four hours. Any other extension requires the authorization of the court.
The parties cannot seek more than one expert opinion, whether joint or not, per area or matter of expertise, unless the court authorizes otherwise given the complexity or importance of the case or the state of knowledge in the area or matter concerned. A joint expert can require that the expert fee and disbursements be deposited at the court office before submission of the report. If such a deposit has not been required, the joint expert has a right of action against all the parties to the proceeding, who are solidarily liable for the amount due.
Experts are required, on request, to provide the court and the parties with details on their professional qualifications, the progress of the work and the instructions received from a party; they are also required to comply with the time limits given to them. They may, if necessary to carry out their mission, request directives from the court; such a request is notified to the parties. Experts act under their professional oath.
If an expert has not sworn a professional oath, the parties or the court may require that the expert be sworn in. In addition, experts must sign a declaration regarding the carrying out of their mission, corresponding to the model established by the Minister of Justice, and attach it to their report. Any testimony taken by the expert is attached to the report and forms part of the evidence. An expert appointed by one party submits the report to the party, which, if it intends to use the report, must disclose it to the other parties and file it in the court record within the prescribed time limits for disclosure of evidence.
If conflicting expert reports are filed, the parties may call the experts to a meeting so that they may reconcile their opinions, identify the points on which they differ and, if necessary, prepare an additional report on those points. At any stage of the proceeding, the court, even on its own initiative, may order the experts to meet and file an additional report within a specified time.
If the court considers the application well-founded, it orders that the report be corrected or that it be withdrawn. In the latter case, the court may allow other expert evidence to be appointed. It may also, to the extent it specifies, reduce the amount of the fee payable to the expert or order that the expert repay any amount already received. A psychosocial examination may be only requested in cases where personal integrity, status or capacity is at issue and if such an examination is necessary in order to rule on the matter.
In family matters, a psychosocial examination cannot be conducted unless the person concerned consents to it or, in cases where the parents differ on the advisability of themselves or their child being subjected to such an examination, the court orders it. The person, at their own expense, may be accompanied during the examination by the expert of their choice.
If it considers it necessary in order to decide the matter, the court, on an application, may order the person to undergo another examination by a court-appointed expert. The place, date, time and conditions of the examination are specified in the order. The examination is conducted at the expense of the party that applied for it. If the case protocol sets out no such procedure or time limit or if no case protocol is required, a party, on being informed that another party intends to use an exhibit or other evidence, may, without formality, request a copy of, or some other form of access to, the exhibit or other evidence.
If the request is not complied with within 10 days, the court issues such orders as are appropriate. No notice is required if copies of the exhibits are delivered to the other parties when the application or the pleading is notified to them. A party that has failed to so disclose evidence cannot produce it at trial except with the authorization of the court. If the parties cannot agree, they may ask the judge to determine the procedure and the time limit for such disclosure. A third person holding a document relating to a dispute or in possession of real evidence is required, if so ordered by the court, to disclose it, present it to the parties, submit it to an expert or preserve it.
A person who carries out work on an immovable that might damage a neighbouring immovable may apply for an inspection of the neighbouring immovable without being required to show that a dispute is likely. The application is presented before the court before which the potential dispute could be brought, as if it were an application in the course of a proceeding. The application must be notified, at least five days before its scheduled presentation date, to the interested persons and to any third person holding the thing or property to be inspected.
The discovery costs are borne by the applicant. However, if the evidence is subsequently used in a proceeding, the cost of the authorized depositions and expert reports forms part of the legal costs. If the court grants its authorization, the parties agree on where and when the witnesses will be heard or the thing or property inspected; in the latter case, how the thing or property is to be inspected is determined by the parties unless already determined by the decision.
The discovery costs form part of the legal costs if the evidence is filed in the court record. The depositions and expert reports do not prevent the witnesses or experts from being called to be examined anew, nor do they adversely affect any grounds of objection that a party may later wish to raise against the actual admissibility of the evidence so gathered.
Such an application may be made at any time before judgment, but after evidence is closed, it may be granted only if it is shown that the party had no earlier knowledge of the forgery. If the other parties do not respond within 10 days or if they declare that they do not intend to use the act, it cannot be produced at trial and, if already filed, is removed from the record.
If the other parties declare that they intend to use the act, the party raising the allegation of forgery presents its application before the court for a ruling. The grounds in support of the allegation of forgery must be set out in an affidavit notified to all the parties and to the public officer who is in possession of the original of the act. The judgment ruling on the allegation of forgery also determines, if necessary, to whom the original is to be delivered.
However, the court may authorize the correction of errors in the certificate. The parties may, at any time before a decision is rendered, give the court officer their consent to a correction. The formal notice must be notified at least 30 days before the trial. If the document or other evidence has not already been disclosed, a suitable representation of it or, in the absence of such a representation, particulars on how to access it must be attached. The party having been given the formal notice admits or denies the origin or integrity of the evidence in an affidavit giving reasons, and notifies the affidavit to the other party within 10 days.
Failure to respond to the formal notice is deemed an admission of the origin and integrity of the evidence, but not of the truth of its contents. During the evidence stage, the party on which the burden of proof lies examines its witnesses first; the other party then submits its evidence, after which the first party may submit evidence in rebuttal.
The court may allow the examination of other witnesses. After evidence is closed, the party on which the burden of proof lies presents its arguments first, followed by the other party. The first party may reply and, if the reply raises any new point of law, the other party may answer. No other address to the court may be made without leave of the court. If the circumstances so require, the court may adjourn a trial subject to the conditions it determines.
In such a case, it immediately sets another date or asks the court clerk to set the case down again for trial so that a new date may be set. The adjournment can be avoided if the other party consents to the party stating under oath the facts the defaulting witness would have related, and either admits the truth of those facts or admits that the witness would have testified to those facts.
They must be called at least 10 days before the time at which they are scheduled to attend at court, unless there are urgent circumstances and the judge or court clerk shortens the notification period. However, the notification period cannot be shortened to less than 24 hours. The decision to shorten the notification period must be recorded on the subpoena. A witness who is confined in an institution governed by health services and social services legislation or held in a detention centre or a penitentiary is called to attend at court to testify by an order addressed to the director or the jailer by a judge or a court clerk.
Notaries and land surveyors cannot be called for the sole purpose of producing an authentic copy of an act executed en minute, unless the document has been alleged to be a forgery. Bailiffs cannot be called to testify about facts or admissions they may have become aware of in the course of notifying a pleading. The subpoena must be in keeping with the model established by the Minister of Justice and provide information on such matters as the role, rights and duties of witnesses and the consequences incurred by witnesses who fail to attend.
If the person fails to attend and the court considers that their testimony would be useful, it may order them to pay all or part of the costs caused by the failure to attend and issue an arrest warrant, which is executed by a bailiff. The person may be held in custody under the warrant until they testify or are released subject to conditions determined by the court. Examination of any witness held in custody must begin without delay. A refusal to take the oath constitutes a refusal to testify; if it persists, it constitutes contempt of court.
A party may request that witnesses testify without knowledge of the testimony given by other witnesses. However, barring exceptional circumstances, no such request may be made in the case of expert witnesses. If it is necessary to examine a witness at a distance, the technological means used must allow the witness to be identified, heard and seen live. The court may however decide, after consulting the parties, to hear a witness without the witness being seen. Questions must pertain only to the facts relevant to the dispute.
They cannot be put in such a way as to suggest the desired answer; however, a leading question will be allowed if the witness is clearly trying to elude a question or to favour another party or, being a party, is adverse in interest to the examining party. The witness may be called again by the calling party, either to be examined on new facts revealed on cross-examination or to explain answers to the questions asked by another party.
Subject to the rules of evidence, the court may ask the witness any question it considers useful. The public interest reasons must be set out, for consideration by the court, in an affidavit by the minister or deputy minister to whom the public servant answers. A copy of the evidence made, and certified as being true to the original, by the court clerk, has the same probative force as the original.
A witness who withdraws without leave or fails to re-attend is subject to the same sanctions as a witness who fails to attend. The deposition is recorded and sent to the parties on request. The parties cannot, however, raise a ground of irregularity, substantial error or bias against the expert report unless they were unable, despite their diligence, to know of the irregularity, substantial error or bias before the trial. The deposition of the witness is heard, all parties being present or having been duly called.
It is recorded and filed in the record and has the same force and effect as if it had been given before the court. The examination is taken down in writing or recorded, and certified by the commissioner; the commissioner is authorized to make copies of any documents the witness exhibits but is not willing to surrender. The examination together with the exhibits produced by the witness are disclosed to the parties and to the court. The Minister of Justice provides the court with the necessary recording systems. However, if an examination is conducted elsewhere than at the court, in a place chosen by the parties, it is up to the parties to call on the services of an official stenographer or, if needed, to agree on an appropriate method of recording to ensure the integrity of the deposition.
Any transcript of an examination that is filed with the court must be made by an official stenographer. In cases under appeal, depositions are transcribed if a party requires their transcription. They are also transcribed if the judge so orders, in which case the parties advance the cost of transcribing the depositions of their respective witnesses.
Any application for an exemption from the obligation to pay support and arrears to the Minister of Revenue, or for the suspension of that obligation, if the parties satisfy the conditions of section 3 or 3. However, as soon as an application is contested, it is referred to the court to be continued according to the procedure set out in Book II. Depending on the readiness of the case and on how much time has elapsed since the application was brought, the court gives the parties the instructions they need to establish a case protocol, unless the court exempts the parties from doing so and subjects the furtherance of the case to other conditions or immediately schedules a case management conference or the trial.
The application cannot be presented less than 10 days nor more than two months after it was notified. The court may order that the application be notified to any person whom it considers to have an interest, call a meeting of relatives, persons connected by marriage or civil union, or friends, or request the opinion of a tutorship council; it may also require the complementary opinions, reports or expert reports it considers necessary and, if applicable, order an appraisal by an independent expert designated by the court if it has reason to believe the appraisal attached to the application does not reflect the value of the property.
The court may also authorize an interested person to produce evidence in support of the view that person intends to assert. The court may take any other appropriate case management measure. The applicant, the person concerned or another interested person may make their proof by affidavit, by testimony or by means of documents or real evidence. The evidence so submitted may pertain to any relevant fact, even one that has arisen since the application was instituted. If such representations could constitute an actual contestation of the merits of the application, the court, after verifying that the person who made them intends to contest the application, orders a postponement of the case for it to be dealt with according to the procedure for contentious proceedings, subject to the conditions it determines.
However, the court, if it considers it appropriate, may order the applicant or the person who is the subject of the application to pay them compensation equivalent to that paid to witnesses to cover transportation, meal and accommodation expenses. No compensation is paid to those called to a meeting of relatives, persons connected by marriage or civil union, or friends. The notary seized of an application may rule on any ancillary matters, except those that require a special authorization from the court. The notary is required to call a meeting of relatives, persons connected by marriage or civil union, or friends in the cases provided for in the Civil Code, including when the application relates to the institution of tutorship for a minor or of protective supervision for a person of full age.
The notary may call a conference if the person concerned or a person to whom the application was notified requests one, including when the application relates to the homologation of a protection mandate. The notary is required to invite the person concerned to such a conference and all those to whom the application was notified. The notary files a copy of the application and a copy of the notice with the court office, together with the notice of meeting if a meeting or a conference is to be held, in order to secure public notice and enable any person wishing to do so to make representations to the court clerk or to the notary.
The clerk informs the notary without delay of any representation or opposition received. If the application relates to a protection mandate given in the presence of witnesses, a holograph will or a will made in the presence of witnesses, the notary confirms the existence of the document and determines whether it is valid. In such a case, the notary draws up the minutes of the operations carried out so far and transfers the matter to the competent court, which is seized of it on the filing of the minutes. If the application is for the probate of a will and the notary is in possession of the original of the will, the notary attaches it to the minutes.
If it considers it expedient, the court may ask the notary to gather all the evidence necessary for the furtherance of the matter, setting a time limit within which the notary is to report back to the court so that it can make its own assessment of the facts. If the person contesting discontinues their judicial application, the court refers the matter back to the notary for the continuation of the notarial operations. The minutes must identify the applicant, the person concerned, the persons to whom the application was notified, those who attended the meeting of relatives, persons connected by marriage or civil union, or friends or the conference, if one was held, and those who made representations otherwise.
The minutes must state the facts on which the application is based and provide a detailed account of the operations carried out and the evidence submitted. The minutes must also provide an account of any testimony taken and any deliberations had by the tutorship council or the meeting of relatives, persons connected by marriage or civil union, or friends. The notary promptly files the minutes and conclusions with the office of the court of competent jurisdiction, together with the documents supporting the conclusions.
The notary advises the interested persons of the filing of the minutes. The court clerk sends the judgment without delay to the persons to whom the minutes were notified. The judge is no longer seized of the matter and the judgment is final if it cannot or can no longer be appealed. The same applies to a judgment in a non-contentious case unless the decision is conclusive in character. Such a decision must give reasons and state how the reopened trial is to be conducted. The time limit is two months after the matter is taken under advisement in the case of a judgment in the course of a proceeding, but one month after the court is seized when it is to rule on an objection raised during a pre-trial examination and pertaining to the fact that a witness cannot be compelled, to fundamental rights or to an issue raising a substantial and legitimate interest.
The death of a party or its lawyer cannot operate to delay judgment in a matter taken under advisement. A judge who is leaving office because of an appointment to another court must, if the chief justice or chief judge of that other court agrees, continue and complete any cases pending before the judge. The chief justice or chief judge exercises the responsibilities conferred by this article personally, but may also ask a senior associate or associate chief justice or chief judge to exercise them.
In the decision, the chief justice or chief judge rules on the legal costs for any proceedings already had and may take any other measure as is considered fair and appropriate. If it is necessary to have stenographic notes transcribed or witnesses recalled, the costs involved are borne by the Minister of Justice unless the judge orders otherwise. The judgment is enforceable despite an appeal insofar as the appeal pertains to the reserved right to claim damages or the time within which it is to be exercised.
A judgment authorizing care, the alienation of a part of a person's body or confinement in a health or social services institution expires if not acted upon within three months or within any other time specified by the court. The court sets a reserve price to ensure that the property is sold at a commercially reasonable price. A judgment ordering restitution of fruits and revenues must, if necessary, order their liquidation by an expert; the party liable to the restitution is required to deliver all necessary supporting documents to the expert.
If total and accepted by the other parties, the renunciation operates to restore the proceeding to its state prior to the judgment. A judgment rendered at the hearing, whether a judgment on the merits or a judgment in the course of a proceeding, is evidenced by entry of the decision and its main whereas clauses in the minutes, attested by the person who rendered the judgment. The operative part of the judgment cannot be modified in such a transcript but the judge may correct its form. If there is a discrepancy between the original judgment and the entries in the court registers, the former prevails, and the judge may without formality order that the necessary corrections be made in the court registers.
The court clerk may issue certified copies of a judgment on request and for a fee. In a case relating to adoption, the judgment is notified to the parties or their representatives in compliance with the rules governing publication of judgments in family matters. If the person who rendered the judgment has left office or is unable to act, the court may make the correction. If the correction is to the operative part of the judgment, the time limits for appeal and execution begin to run on the date of the correction.
Expert fees include the costs related to the drafting of the report and, if applicable, preparing testimony, and remuneration for the time spent testifying and, to the extent useful, attending the trial. A party to a proceeding may, given their financial situation, apply to be exempted from paying the costs prescribed for each hearing day required to try the merits of a case. Such an exemption is exceptionally granted by the court, in whole or in part, taking into account any appropriate factor, including such factors as may be specified by government regulation, if it is shown to the court that paying those costs would result, for that party, in difficulties so excessive that the party would not be able to effectively conduct its case.
An application for such an exemption may be made at any time during the proceeding. It suspends the obligation to pay the costs concerned until the court rules on the application. The decision of the court cannot be appealed. The court may not, however, grant such an exemption if it is related to a judicial application or pleading by the party that is clearly unfounded, frivolous or intended to delay or is otherwise abusive. However, the legal costs are borne by each of the parties in family matters, by the plaintiff or applicant in personal integrity or status matters and by the person concerned in personal capacity matters.
In any such cases, the court may decide otherwise.
When the court authorizes representation of a child or an incapable person of full age by a lawyer, the related legal costs are decided by the court according to the circumstances. The costs related to joint applications are apportioned equally between the parties unless they have agreed otherwise. The court may also make such an order if the successful party breached its undertakings with regard to the conduct of the proceeding, such as by failing to meet time limits, if it unduly delayed in presenting an incidental application or filing a notice of discontinuance, if it needlessly required a witness to attend at court or if it refused, without valid cause, to accept tenders, to admit the origin or integrity of evidence or, in a family matter, to participate in a parenting and mediation information session.
If such opposition is notified, the bill of costs is sent for taxation to the court clerk, who, to determine the costs, may require that it be proved by affidavit or witness testimony that the costs were incurred. In appeal, legal costs are taxed by the appellate clerk. Once the bill of costs has been drawn up, a party may ask the clerk to homologate it.
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The bailiff may also, within 10 days after becoming aware of the decision, ask for its review as regards the bailiff costs. The decision concerning the taxation or homologation of the legal costs is executed in accordance with the rules of provisional execution.
The application for revocation must contain the reasons justifying the revocation as well as the grounds of defence raised against the original application. The application for revocation must be presented before the court within 30 days after service, as if it were an application in the course of a proceeding.
It cannot be presented if more than six months have elapsed since the judgment. These are strict time limits. If circumstances permit, the court may decide the application for revocation and the original application at the same time. Except if personality rights or personal status or capacity are at issue, the application must be brought within six months after the person becomes aware of the judgment.
It must be served on the parties to the judgment whose revocation is sought or, if the application is brought within one year after the judgment, on the persons who represented them in the case. On notification of the application for revocation and the stay order, the executing bailiff immediately stays the execution proceedings, except for conservatory measures.
The notice of appeal must state the grounds of law or fact the appellant intends to argue to have the judgment varied or quashed, the conclusions sought by the appellant and, if applicable, the value of the subject matter of the dispute. The appellant must, within 45 days after the date of the judgment under appeal, file the notice of appeal together with a certificate certifying that no transcript of depositions is necessary for the appeal or stating that it has given instructions to an official stenographer for the transcription of the depositions it intends to use.
If the sole object of the appeal is to obtain an increase or a decrease in the amount awarded by the judgment, a judge of the Court of Appeal may, on an application, order the party against which the judgment was awarded to comply with the judgment up to the uncontested amount. If leave to appeal is granted, the notice of appeal is deemed to have been filed on the date of the judgment granting leave.
If leave to appeal is denied, the judgment must give brief reasons and the Court of Appeal is no longer seized of the matter. If leave to appeal was not required and the appeal could have been initiated solely by filing a notice of appeal, the notice of appeal is deemed to have been filed on the date the judge takes note of its filing.
The appellant has 15 days as of the judgment granting leave to appeal or as of the date the judge takes note of the filing of the notice of appeal to file the certificate concerning the transcription of depositions with the court office and to notify it to the other party. Within 10 days after notification, the respondent, the intervenors and the impleaded parties must file a representation statement giving the name and contact information of the lawyer representing them or, if they are not represented, a statement indicating as much.
If an application for leave to appeal is attached to the notice of appeal, the intervenors and the impleaded parties are only required to file such a statement within 10 days after the judgment granting leave or after the date the judge takes note of the filing of the notice of appeal. The lawyer who represented the respondent in first instance, if no longer acting for the respondent, must so inform the respondent, the appellant and the office of the Court of Appeal without delay.
A notice of incidental appeal must be filed and served within 10 days after service of the notice of appeal or after the date of the judgment granting leave to appeal. Nevertheless, the Court of Appeal may authorize an appeal if not more than six months have elapsed since the judgment and if it considers that the appeal has a reasonable chance of success and that, in addition, it was impossible in fact for the appellant to act earlier.
The Court may, even after the time limit has expired, authorize an incidental appeal if it considers it appropriate. The judge suspends such time limits if there are compelling reasons for an appeal against the judgment and an appeal concerning the application for additional damages to be heard together; in such a case, the duration and terms of the suspension are determined by the judge.
The Court or the judge determines the amount of the suretyship and the time limit within which the appellant is required to furnish the surety.
The application for the dismissal of an appeal must be filed with the office of the Court within 20 days after service of the notice of appeal, and cannot be presented before 30 days have elapsed since its filing. The time limits for preparing the appeal record are suspended until judgment is rendered on the application for the dismissal of the appeal.
The inadmissibility of an appeal may be urged despite a failure to oppose the appeal within the allotted time. After giving the parties the opportunity to make representations, the judge may suggest that they take part in a settlement conference and may determine or limit the pleadings and the documents to be filed, setting the time limit for doing so. As well, the judge may decide, despite the rules otherwise applicable, that it is best to proceed by way of briefs or memorandums or may, if necessary, modify time limits prescribed by this Code.
The judge may also set the date, time and duration of the hearing and, if required by the circumstances, refer the matter to the Court so that appropriate measures, including dismissal of the appeal, may be taken. The appeal management conference is held without formality and requires no prior documents. Any appropriate means of communication may be used.
Appeal management decisions are binding on the parties. A hard copy transcript of relevant extracts from the evidence must be attached to each brief or memorandum. A full transcript of the depositions and evidence is filed only if available on a technological medium. It must be filed with the office of the Court of Appeal within 45 days after the notice of appeal is filed.
An appellate judge may extend a time limit if an application for an extension is made before the time limit expires. Memorandums are filed with the office of the Court of Appeal and notified to the other parties to the proceeding within the time limits specified in the appeal management decision of the appellate clerk or an appellate judge.
A respondent or any other party that does not make a timely filing of its brief or memorandum is precluded from filing and cannot be heard at the hearing unless so authorized by the Court of Appeal. An appellate judge sitting alone is competent to decide incidental applications, except those that relate to the merits of the case.
However, applications to cease representing a party, for a substitution of lawyer or for the consolidation or separation of appeals, or appeal management applications for the setting or extension of time limits or for authorization to file a supplementary statement are decided by an appellate judge sitting alone or the appellate clerk. In all cases, the appellate clerk may refer an application to a judge, or the appellate judge, to a panel of the Court of Appeal, if the clerk or judge considers that the interests of justice so require.
Such applications are filed by means of a letter and notified to the other parties. The Court decides how the evidence is to be presented, and may even refer the case back to the court of first instance so that further proof may be made. Notice of the settlement conference is given to the appellate clerk by the parties, and the holding of the conference suspends the time limits prescribed by this Title. A transaction terminating the case is submitted to the Court of Appeal by the appellate clerk to be homologated and made enforceable. If the respondent has not filed nor notified a brief or a memorandum within the allotted time, the appeal is nevertheless set down by the appellate clerk for hearing.
An appellate judge or the appellate clerk may strike an appeal from the roll and postpone the hearing to a later date. In such a case, the appellate clerk informs the parties of the date on which the appeal is to be taken under advisement and of the identity of the judges on the panel. At any time during the advisement period, the judges may ask the appellate clerk to set the appeal down for hearing if they consider that a hearing is necessary.
The appellate judge who was the trial judge in first instance or who presided over a settlement conference concerning the matter cannot hear the appeal. The appellate clerk informs the parties without delay that a decision has been rendered by the Court of Appeal and sends it to the court of first instance along with the record. All decisions of the Court of Appeal and its judges are subject to the rules of this Book governing judgments, with the necessary modifications.
A judge who is unable to act or has left office, including because of an appointment to another court, may nonetheless participate in the decision. The decision must give reasons, unless it refers to one or more opinions issued by the judges. However, the Court of Appeal or one of its judges, on an application, may order execution stayed, on appropriate conditions, if the party shows that it intends to bring an application for leave to appeal to the Supreme Court of Canada. In the case of a person of full age living in a remote location, the notary seized of an application may delegate the responsibility of hearing the person to another notary in order to avoid excessive travel expenses.
The latter hears the person, draws up minutes of the meeting and attaches the answers recorded. If the person has not been examined, that fact is recorded, with reasons, in the judgment rendered by the court or in the minutes drawn up by the notary seized of the application.
An application relating to suppletive tutorship must be served on the minor if the minor is 10 years of age or over. The application must be accompanied by a notice, in keeping with the model established by the Minister of Justice, informing the person of their rights and obligations, including their right to be represented. In addition, the judgment is notified to every person to whom the application was notified. It may be executed by a peace officer. The summons directs the detaining authority to appear before the court on the date specified in order to explain the reasons for the detention.
If the deprivation of liberty is due to confinement in an institution governed by health services and social services legislation or to detention in a correctional facility or a penitentiary, the application must be notified to the Attorney General, together with a notice of the date of presentation. If the court considers that the Attorney General has a sufficient interest, it orders that the application be notified to the Attorney General and adjourns the trial to an early date, which cannot be more than three days later. An application relating to a protection mandate is notified to the person designated by the mandator to act as mandatary or substitute mandatary or to receive a rendering of account.
The notice of meeting is notified to the relatives, persons connected by marriage or civil union, or friends, informing them of the date and time of the meeting and of the place where they must attend or, as applicable, of the technological means to be used to enable them to communicate with each other. The date of the meeting cannot be less than 10 days nor more than two months after notification.
The meeting is presided over by the special clerk or the notary, as applicable. However, when a judgment declares a legal person without share capital to have been unlawfully constituted, the legal costs constitute a personal debt of the persons forming the legal person. The declaration is made by notifying a notice to the land registrar, which the latter enters in the land register. If one of the spouses asks for the cancellation of the entry in the register, the court may order the cancellation subject to a sufficient suretyship being provided.
If an application with such conclusions is joined with an application for the annulment of a marriage or a civil union, for separation from bed and board, for a divorce or for the dissolution of a civil union, it is heard in the same manner as an application in the course of a proceeding. If a party is seeking support for itself, the application cannot be decided unless the party files an income and expense statement and a balance sheet with the court office at least 10 days before the application is to be presented.
The defendant must file such a statement and balance sheet at least five days before the presentation date, unless it admits having the resources to pay the amount sought; even when a party admits as much, the court may ask that it produce a statement of property. For that purpose, the court may convene and hear the parties, together or separately, in the presence of their lawyers or, as applicable, of the notary presenting the joint application on a draft agreement.
Persons who have filed with the court office a certificate attesting that they have already participated in such an information session in connection with a prior dispute or confirming that they have gone to a victim assistance organization recognized by the Minister of Justice for help as a victim of domestic violence are exempted from participating in such a session.
If the parties wish to attend separate sessions, their wish must be respected. After the session, a participation certificate is issued by the Family Mediation Service. Before making such a decision, the court considers such factors as whether the parties have already met with a certified mediator, whether there is an equal balance of power between the parties, whether there have been incidents of family or spousal violence and whether mediation is in the interests of the parties and their children. Mediation is governed by the general principles set out in this Code and conducted in keeping with the process provided for in this Code.
The judge who stays the proceeding or adjourns the trial remains seized of the matter, unless the chief justice decides otherwise. The court clerk records the report filing date in the court register, then informs the judge seized of the matter and delivers the case record to the latter so that a trial date can be set. The stay or adjournment ends on the recording of that date in the court register.
However, if the expert shows that it was impossible in fact to submit the report within the time limit, the expert may, after informing the Service, ask the court to extend the time limit. If an extension is granted, the court clerk so informs the Service. The draft agreement applies from the date of the application to the date of the judgment, subject to any provisional measures that the spouses have set out in it.
If a notice of the applications must be notified to a party or to an interested person, it is notified by the director. The notice must ensure that the adopters remain anonymous to the father and mother or the tutor and vice versa, and must state the subject matter of the application, the grounds on which the application is based and the conclusions sought. If the child is 14 years of age or older, the court may send the report to the child if it sees fit; it is required to do so if it intends to dismiss the application for adoption on the basis of the report.
The Minister also prescribes and publishes a table determining the combined basic child support contribution payable by the parents on the basis of their disposable income and the number of children they have. The Minister also identifies the documents that must be filed with the forms. If the defendant fails to file those documents, their defence cannot be heard, and the court may make a ruling after hearing, and examining the documents filed by, the plaintiff. Before making a ruling, the court may nevertheless relieve the defendant from the default, subject to the conditions it determines.
The statements filed with the court office are destroyed if no support is granted by the court or if no judgment is rendered within one year after they are filed. A judgment awarding child support and spousal support must clearly specify the amount to be paid in child support and the amount to be paid in spousal support. The support determination form used by the court to determine the child support payable must be attached to the judgment awarding child support.
Information entered in the register of support payments is confidential. An application by the mother and father, or by either parent, to have their authority restored is served on the person having parental authority or, as applicable, on the tutor and notified to the persons who were party to the application for deprivation or withdrawal. The depositary is required to bring to the attention of persons who refer to the original or a copy of such a contract the fact that a judgment has been rendered in connection with the contract and to give them the information needed to access the judgment, including the judgment date, the court record number, the court that rendered the judgment, and the judicial district in which the judgment was rendered.
Unless it is abusive, the court admits the opposition and sets an early hearing date. Admission of the opposition stays the solemnization of the marriage or civil union. If the opposition is not presented on the scheduled date, any party may obtain a default certificate from the court clerk. On receiving notification of the default certificate, the officiant may proceed with the solemnization of the marriage or civil union.
When dismissing an opposition, the court, on an application, may immediately order the opposer to pay damages or may schedule a date to hear evidence on damages. The notary issues certified copies of the will and minutes of the probate to any interested person on request. The letters of verification certify that the succession has opened and identify the liquidator of the succession. In the case of an intestate succession, the letters of verification also certify that the property of the deceased devolves to the persons named in the proportions specified.