According to the Preliminary Provision of the NCCP:
This Code is designed to provide, in the public interest, means to prevent and resolve disputes and avoid litigation through appropriate, efficient and fair-minded processes that encourage the persons involved to play an active role. It is also designed to ensure the accessibility, quality and promptness of civil justice, the fair, simple, proportionate and economical application of procedural rules, and the exercise of the parties’ rights in a spirit of co-operation and balance, and respect for those involved in the administration of justice.
Although there are significant changes to each of the procedural stages, this article is limited to some of the changes found in Book I and Book II of the NCCP, entitled, respectively, “General Framework of Civil Procedure” and “Contentious Proceedings.”
The first section of the NCCP identifies what are deemed to be the “main private dispute prevention and resolution processes” and provides that the parties must “consider” those processes before referring their dispute to the courts. To add teeth to that provision, the legislature has codified the rules applicable to mediation and modified those in respect of arbitration.
The NCCP also spells out the “guiding principles of procedure,” one of which is respect for the proportionality principle, whereby each party must ensure that each step in the proceedings is proportionate, in terms of the cost and time involved, to the nature and complexity of the matter.
This protocol is more comprehensive than the former one as the parties are now required to: indicate the consideration they have given to private dispute prevention and resolution processes; justify the necessity of conducting pre-trial examinations and, if they are to be conducted, their anticipated number and length; indicate the advisability of seeking one or more expert opinions and, as the case may be, the reasons why the parties do not intend to jointly seek a single expert opinion.
Once the judicial process has begun, the courts have broad discretionary powers to fulfil the mission conferred upon them by the legislature. That mission includes ensuring proper case management in keeping with the principles and objectives of procedure. It further includes, both at first instance and on appeal, facilitating conciliation whenever the law requires or the parties request or consent to it.
Thus, at a case management conference convened at any stage of proceedings, on request or on the court’s own initiative, the court may: take measures to simplify or expedite the proceedings; assess the purpose and usefulness of seeking expert opinion and impose the use of a joint expert if necessary to do so to respect the proportionality principle; determine the terms for the conduct of pre-trial examinations.
With respect to pre-trial examinations, the NCCP no longer makes any distinction between those held before or after the filing of the defence. Moreover, the NCCP provides that objections raised during the examination, including those based on relevance, do not prevent the examination from continuing; the witness is required to answer except where the objection pertains to a fundamental right or to an issue raising a substantial or legitimate interest.
The NCCP also imposes a time limit on pre-trial examinations: They may not last more than five hours. In family matters or in cases where the amount at issue is less than $100,000, the duration of an examination cannot exceed three hours. In the course of the examination, the parties may agree to extend its length to seven from five hours or to four from three hours. Any other extension requires the court’s authorization.
The NCCP also makes significant changes to the adducing of expert evidence, designed to promote the resolution of the dispute and reduce legal costs and delays.
The foregoing are highlights of only a few of the many changes brought in by the NCCP. It is too early to conclude whether those changes will meet the underlying objectives of the legislature. Nevertheless, we can already see that the courts are being much more proactive regarding the conduct of the proceedings.
Bernard Jolin is a partner in Langlois lawyers LLP Montréal office.