On June 4, 2009, Bill no. 9, An act to
amend the Code of civil procedure to prevent improper use of the
courts and promote freedom of expression and citizen participation
in public debate1 (hereinafter the “Act”) came into
force.
The Act’s first objective is to modify the Code of civil
procedure (hereinafter “C.C.P.”) in order to promote
freedom of expression, to prevent improper use of the courts,
to promote access to justice for all citizens and to allow a fair
balance of financial strength of parties to a legal action.
One of the major consequences in the adoption
of the Act resides in the repeal of articles 75.1 and 75. 2 C.C.P.
and of their replacement with articles 54.1 to 54.6 C.C.P.
Thus, the Law permits a court to declare, at
any time, on request or even on its own initiative, after having
heard the parties, that an action or other pleading is improper
and to impose a sanction on the party concerned. The procedural
impropriety may consist in a claim or pleading that is clearly
unfounded, frivolous or dilatory or in conduct that is vexatious
or quarrelsome. The procedural impropriety may also consist in
bad faith, in the use of a procedure that is excessive or unreasonable
or causes prejudice to the person, or in an attempt to defeat
the ends of justice, in particular if it restricts freedom of
expression in public debate (article 54.1 C.C.P.)
In accordance with article 54.2 C.C.P. a party
may request the dismissal of an action by summarily establishing
that the action or pleading may be an improper use of procedure.
Therefore, it will be the onus of the initiator of the action
or pleading to show that it is not excessive or unreasonable and
it is justified in law. The aim of this somewhat surprising reversal
of the burden of proof is once again to dissuade the introduction
of an action or pleading that is clearly improper.
Moreover, contrary to article 75.1 C.C.P.,
which provided that the dismissal of the action or pleading could
be requested following an examination, the motion to have an action
in the first instance dismissed on the grounds of its improper
nature is now presented as a preliminary exception.
As stipulated at article 54.3 C.C.P., if it
is established that a motion to dismiss is well founded and the
court is of the opinion that it is an improper use of procedure,
it may:
>Dismiss the action or other pleading;
> Strike out a submission or require that
it be amended;
> Terminate or refuse to allow an examination,
or annul a writ of summons served on a witness.
If the court deems it appropriate, it can also,
in such a case or where there appears to have been improper use
of procedure:
1. Subject the furtherance of the action or
the pleading to certain conditions;
2. Require undertakings from the party concerned
with regard to the orderly conduct of the proceeding;
3. Suspend the proceeding for the period it
determines;
4. Recommend to the Chief Justice that a special
case management be ordered; or
5. Order the initiator of the action or pleading
to pay to the other party, under pain of dismissal of the action
or pleading, a provision for the costs of the proceedings, if
justified by the circumstances and if the court notes that without
such assistance the party’s financial situation would prevent
it from effectively arguing its case.
The court’s discretion provided for at
article 54.3, par.2 (5) C.C.P. may be subject to numerous debate
since there was some controversy during the public hearings on
Bill no. 9, particularly concerning the balance of financial strength
between parties to a legal action.
Ruling on whether an action or pleading is
improper, article 54.4 C.C.P. provides that the court may condemn
a party to pay, amongst others, damages in reparation for the
prejudice suffered by another party, for example, the fees and
extrajudicial costs incurred by that party and, if justified by
the circumstances, award punitive damages. It goes without saying
that punitive damages awarded in accordance with this article
may not exceed what is sufficient to fulfil the preventive purpose2.
The damages awarded by the court are similar
to the prerogative provided for at article 75.2 C.C.P., which
stated that the unsuccessful party could be ordered to pay damages
and compensation for the prejudice suffered by another party.
In addition, article 54.5 C.C.P. provides that
the court may prohibit a quarrelsome party from instituting legal
proceedings except with the authorization of and subject to the
conditions determined the Chief Justice. A quarrelsome party is
an individual who has a tendency to search for quarrels and to
request, in a manner that is out of proportion with the case,
the reparation of an alleged prejudice, whether real or imaginary.
Article 54.6 C.C.P. provides that directors
and officers of a legal person who took part in the decision,
or the administrator, may be personally condemned to pay damages.
Article 6 of the Act constitutes a transitional
provision under which the motion based on the improper use of
procedure introduced before the coming into force of the Act is
decided following the new provisions. However, article 6 adds
that article 54.2, par. 2 C.C.P., under which the motion must
be presented as a preliminary exception, and article 54.6 C.C.P.,
under which directors, officers, other legal person or the administrator
may
be personally ordered to pay damages, only
applies to actions instituted or pleadings filed after July 4,
2009.
Finally, articles 26 and 547 C.C.P. concerning
the right to appeal have been amended in order to permit the appeal
from any judgment that dismisses an action because of its improper
nature and to permit provisional execution notwithstanding appeal
of all judgments with regard to an improper use of procedure.
Even if the Act has only been into force for
3 months, courts have already rendered judgments on its application.
You will find hereinafter a brief summary of the first judgments
rendered on the matter.
In Tremblay and Gallant –vs- Carrier
et ComSpec3, defendants were requesting the dismissal of Gallant’s
motion to institute proceedings for latent defects based on article
75.1 C.C.P. Defendants were arguing that Gallant was not part
of the sale contract nor the inspection contract. The court underlined
that articles 75.1 and 75.2 C.C.P. have been repealed and that
articles 54.1 to 54.6 C.C.P. must now be applied. The court adds
that the new articles include situations that were previously
dealt with under articles 75.1 and 75.2 C.C.P. In such cases,
the court may be called upon to play a more active role, even
on its own initiative. In this case, the motion to dismiss was
granted because Gallant’s motion seemed clearly unfounded,
since there was no contractual or extra contractual link between
her and the defendants.
In Sévigny –vs- Chartier4, plaintiff
was requesting the dismissal of the plea to the motion for unjust
enrichment since the defendant had omitted to provide undertakings
subscribed during the examination after defence. Even if the motion
was produced on May 25, 2009, the court was of the opinion that
the new rules are applicable based on article 6 of the Act which
provides that the improper nature of an action or pleading filed
before June 4, 2009 is decided following the new provisions of
the Act. In this case, the court dismissed without costs the motion
to dismiss the plea in view of the fact that it considered it
to be premature due to the early stage of the case.
In 9176-1874 Quebec Inc. (FPG Construction)
–vs- Dion5, defendant filed a motion to dismiss an action
in execution of title based on article 75.1 C.C.P. since the conditions
for the exercise of such an action had not been respected, particularly
because the deed of purchase to be signed did not respect the
conditions set forth in the offer. The court held that the new
provisions of the C.C.P. extend what was already provided for
by article 75.1 C.C.P. Hence, the court held that following an
examination on discovery, a party may continue to present a motion
to dismiss a proceeding which is frivolous or clearly unfounded.
However, the court stated that under the new provisions, it is
not necessary that a party proceed by way of motion to dismiss,
nor following an examination. From now on, courts may proceed
at any time, on request or even on its own initiative. Article
54.1, par. 2 C.C.P. enumerates a few examples of impropriety.
Since the legislator uses
the word “may”, the enumeration
is not meant to be restrictive. After considering the examination
after defence held by plaintiff’s representative, the court
grants the motion to dismiss and declares that the action is frivolous
and clearly unfounded.
In Laferté Inc. –vs- Cosoltec
Inc.6, Laferté requested the dismissal of the plea and
counter claim based on articles 75.1 and 169 C.C.P., following
the default of Cosoltec to communicate undertakings. The court
declared that the dismissal of a pleading constitutes the most
drastic measure and, consequently, it must only be imposed in
the most serious cases. The court then examined the new provisions
as well as transitional law and concluded that the matter must
be decided in accordance with the Act. The court confirms that
the aim of the Act is not only to counter SLAPP7, but aims all
improper use or appearance of improper use of a claim or pleading.
Notwithstanding the reprehensible and improper behaviour of Cosoltec,
the court chose another sanction which better corresponds to the
seriousness of the improper use of procedure in the case. The
court thus opted for the definite striking out of certain allegations
in the defence and counter claim. The Court of Appeal granted
a permission to appeal and orders that the procedures be suspended
in the first instance, in order to verify whether Cosoltec had
a valid opportunity to satisfy its burden of proof under article
54.2 C.C.P.8
In Centre Hospitalier Robert-Giffard –vs-
Gestion Francis Carrier Inc. and BERKO s.e.c.9, BERKO s.e.c. presented
a motion to dismiss the action directed against it as the new
lessor following plaintiff’s eviction from the sold building.
The court underlines that the interpretation principles of articles
75.1 and 75.2 C.C.P. established by jurisprudence are still applicable.
In fact, the court stated that it must be prudent in regards to
a motion to dismiss at the preliminary stage of a claim or pleading.
It added that putting an end to a case prematurely must be avoided
unless a matter is clearly unfounded. Consequently, the court
concluded that the plaintiff met its burden of proof. It held
that it was premature to conclude that plaintiff’s claim
had no legal basis, having not had the chance to prove all of
its claims and to complete its file.
In La Fédération, Compagnie d’Assurances
du Canada –vs- Les Constructions Luc Loiselle Inc. &
Al.10, co-defendant Cheminées Sécurité International
Ltée presented a motion to dismiss the action in recovery
based on the provisions of the Act. Particularly, the initiator
of the motion to dismiss claimed that the examinations on discovery
and the expertise in the file demonstrated that the action was
improper and frivolous. The court dismissed the motion to dismiss
based on the fact that the motion was premature at this stage
since the proof was incomplete. The court reminded the importance
of the principle of caution and concluded that the action in recovery,
in this case, was not frivolous.
In conclusion, it will take some time before
seeing in what way the Act will be interpreted. However, based
on all of the above, we note that the principle of caution established
by jurisprudence based on articles 75.1 and 75.2 C.C.P. seems
to be maintained by the courts.
Me Julie Rondeau*
Marchand Melançon Forget, LLP
1 An act to amend the Code of civil procedure to prevent improper
use of the Court and promote freedom of expression and citizen
participation in public debate (project law no. 9, adoption of
principle on June 3, 2009), 1st session, 39th legislature (Quebec).
2 Quebec Civil Code, L.Q., 1991, c. 64, art. 1621.
3 2009 QCCS 3196 (29/06/2009).
4 2009 QCCS 3024 (23/06/2009).
5 2009 QCCS 2876 (29/06/2009.
6 2009 QCCS 3226 (10/07/2009).
7SLAPP (Strategic Lawsuit Against Public Participation): Lawsuits
instituted by companies or institutions against individuals or
pressure groups intended to suppress the latter when they publicly
expose their activities.
8 2009 QCCA 1435 (27/07/2009).
9 2009 QCCS 3131 (07/07/2009).
10 La Fédération, Compagnie d’Assurances du
Canada –vs- Les Constructions Luc Loiselle Inc. & Al.,
C.S., no 500-17-042491-087, 11 novembre 2009, j. Claudine Roy.
* The undersigned thanks Mrs. Selena Lu, student in law, for her
collaboration in the research of this article.
