Federal Court substitutes Quebec’s Code of Civil Procedure for its own rules for the first time

Judge dismisses application for proposed class action for lack of jurisdiction

Federal Court substitutes Quebec’s Code of Civil Procedure for its own rules for the first time

The Federal Court has released its first decision under the procedural bijuralism pilot project.

The pilot project permits the court to apply the Code of Civil Procedure, CQLR, c. C-25.01 instead of the Federal Courts Rules, SOR/98-106 if a member of the Quebec bar represents each party. In this case, the parties consented to the application of the pilot project, which covers proceedings brought as actions, including class actions, but which does not cover proceedings brought as applications for judicial review.

In M.S. v. Canada, 2020 FC 982, the applicant sought authorization to institute a class action on behalf of parents allegedly denied the Canada Child Benefit, the GST/HST credit and other benefits in situations where the child has been placed in a welfare agency pursuant to child protection legislation but is still staying with the parents on a part-time basis.

Justice Sébastien Grammond dismissed the application, stating that the Tax Court of Canada has exclusive jurisdiction because the benefits sought fall under tax legislation.

Justice Grammond explained how Quebec procedural law is distinct from its counterparts in other Canadian provinces and territories. It is codified, it draws from French sources especially when it comes to concepts, and it utilizes a different vocabulary, Grammond wrote.

“Because of these differences, Quebec lawyers — especially those who appear only occasionally before the Federal Courts — may find it difficult to comply with the Rules,” he wrote.

Grammond cited Rule 55 of the Federal Courts Rules, which gives the Federal Court the discretionary authority to depart from its rules, as the basis for the substitution.

The Federal Court’s pilot project seeks to advance better access to justice and to address these differences in Quebec’s procedural law by allowing the court to apply the Code in place of the Rules for specified judicial proceedings originating in Quebec, stated the news release.

“The pilot project was inspired by a desire for a closer connection with Quebec jurists,” wrote Paul Crampton, chief justice of the Federal Court, in the September 2019 news release announcing the pilot project. “It is consistent with our intention to provide improved access to justice in the general context of Canadian bijuralism, by making practice before the federal courts more familiar and accessible to Quebec counsel.”

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