Stages in civil trials

The originating application must clearly set out the facts of the case (on which your proceeding in based) and the conclusions sought (a monetary or other claim). 

A copy of the application is sent to the defendant, along with a summons, which specifies how long the defendant has to file an answer and the consequences of failing to answer within the time limit.

An originating application can be drawn up by the plaintiff or by the plaintiff’s lawyer.

Difference between a summons and a subpoena

A summons is not the same as a subpœna.

A summons is sent to the defendant, whereas a subpoena is sent to a witness, in other words a person whose knowledge may enlighten the court with respect to the case.

Witnesses have a duty to attend court and to tell the truth. If they fail to do so, an arrest warrant may be issued against them and they may be ordered to pay the costs caused by their failure to attend.

Witnesses are entitled to be informed, by the person who called them, of the reason why they were called and the subject on which they will be asked to testify.

If you receive a summons as the defendant in a case, do not ignore it.

A summons does not require you to attend court in person. Rather, it requires you to file a document, called the “answer”, in the court record.

You have 15 days from the moment when the bailiff hands you the originating application and the summons to file an answer or ask your lawyer to do so on your behalf, if you intend to defend the application. In the answer filed by you or your lawyer you must indicate which option you choose: to negotiate a settlement, to defend the application and establish a case protocol with the plaintiff, or to propose mediation or a settlement conference.

If you fail to file an answer, the proceeding will continue and a judgment may be entered against you without you having an opportunity to defend yourself.

Difference between a summons and a subpoena

A summons is not the same as a subpœna.

A summons is sent to the defendant, whereas a subpoena is sent to a witness, in other words a person whose knowledge may enlighten the court with respect to the case.

Witnesses have a duty to attend court and to tell the truth. If they fail to do so, an arrest warrant may be issued against them and they may be ordered to pay the costs caused by their failure to attend.

Witnesses are entitled to be informed, by the person who called them, of the reason why they were called and the subject on which they will be asked to testify.

If the defendant files an answer indicating that he or she intends to defend the application, you and the defendant must agree together on the key points for the rest of the trial. You are required by law to cooperate to establish the case protocol (formerly called the “agreement between parties as to conduct of proceedings”).

The case protocol covers the following aspects in particular:

• whether the defence will be oral or written, and the time limit for filing it;
• preliminary exceptions and safeguard measures;
• the methods of notification the parties intend to use (for example, service by bailiff, delivery by mail, etc.);
• the time limits for filing documents, exhibits and other evidence (such as expert reports).

The case protocol must be filed at the court office within 45 days (3 months in family cases) after the date on which the summons was received. Within the following 20 days, the court will examine the case protocol in light of the directives given by the chief justice or chief judge. The parties may also be called, within the same 20-day period, to a case management conference.

Failure to agree 

If the differences between the parties are such that they are unable to establish a case protocol, you or the other party must file a proposal within the 45-day period stating the points on which the parties differ. 

The court can then:

• convene the parties to establish the case protocol, or;
• establish the case protocol on its own initiative.

Effects of the case protocol

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.

As the defendant, you must set out in your defence all the grounds of law or fact that you will use to contest the plaintiff’s application. Your defence presents your version of the situation.

In your defence, you can:

• admit certain facts;
• raise any other relevant facts;
• deny certain facts, giving reasons;
• state that you are unaware of certain facts;
• raise issues of law. 

One example of an issue of law you may raise is prescription, when you allege that the plaintiff waited too long before taking action and, as a result, cannot bring proceedings against you.

Oral or written defence

In general, defence is oral. 

An oral defence is presented, in particular, when the dispute concerns:

• an application in a family matter (support payments, custody rights);
• the determination of an amount of money under a contract;
• the determination of an amount of money as reparation for proven injury.

A written defence is presented when the case presents a high level of complexity or special circumstances so warrant. 

The oral or written nature of your defence:

• must be specified in the case protocol;
• may be the subject of an agreement between you and the plaintiff;
• may be requested by you or the other party in a proposal for a case protocol;
• may be determined by the court. 

If the defence is written, the time limit for filing it must be indicated in the case protocol.

Transfer of a case to the Small Claims Division

If a case has been brought against you in the Civil Division of the Court of Québec you can, if certain conditions are met, ask for it to be transferred to the Small Claims Division.

If your case is to be heard by the Court of Appeal, the Court of Québec or the Superior Court, you and the other party can request the holding of a settlement conference at any state in the judicial process.

Once you have made this joint request, a judge will preside over the settlement conference, which often allows the parties to reach an agreement that will save them both time and money and avoid the need for a trial. 

A settlement conference is held in camera (behind closed doors), at no cost to the parties and without formality.  Anything said, written or done during the settlement conference is confidential.

In general, civil cases are heard by a single judge. 

Most civil hearings are public except when the law requires them to be held in camera (behind closed doors), for example in family cases, or when the court so orders.

When a case is heard in camera, the general public and anyone not involved in the case cannot be admitted. There are some exceptions: lawyers and notaries, their articling students, and journalists who show proof of their status. Journalists may, in principle, make a sound recording of the proceedings and the decision, but may not broadcast the recording. In no case may images be recorded.

Persons present at a court hearing must conduct themselves in a respectful and restrained manner and obey the orders of the court and of the officers of justice under its authority, under pain of contempt of court.

Under the Civil Code of Québec, a person seeking to assert a right must prove the facts on which the claim is based. Both parties (the defendant as much as the applicant) therefore have an interest in gathering as much evidence as possible in order to convince the judge.

Presentation of evidence

To present evidence, the plaintiff and defendant may:

• file written documents;
• call witnesses;
• invoke a presumption (generally a legal presumption);
• invoke an admission (generally made by the adverse party);
• present material evidence (an object).

To prove a simple fact, all types of evidence are admissible. However, in the case of a legal agreement (such as a lease, loan contract, donation, etc.), the law gives extra weight to a written document. 

There are several kinds of written documents: 

• authentic acts (drafted by a notary or bailiff, for example);
• private writings (drafted and signed by the party);
• private letters;
• registers;
• notes in a diary;
• any other relevant document.

Of all the above documents, authentic acts are those whose validity, content and origin are the hardest to challenge.

In some situations, a written document is the only evidence admitted. In civil cases, this applies when the amount of the claim exceeds $1,500. In this type of case, the hearing of witnesses is not generally permitted, unless authorized by the judge.

When evidence from witnesses is permitted, only a person who was present at the time of the incident can testify. Hearsay is not admitted.

After hearing your evidence and the evidence of the adverse party, the judge hears the arguments.

Assessment of evidence

In general, judges enjoy a great deal of latitude in assessing the evidence. This is referred to as their “discretionary power”. As a result, each party must present the best possible evidence in order to convince the judge. 

After hearing the arguments of both sides and studying the record, the judge will make a decision based on a preponderance of evidence. This means that the judge will find for the party which, in the judge’s opinion, gathered the most convincing evidence in support of its position. 

If it is impossible to find for either party, the judge will consider that the plaintiff has failed to meet the burden of proof and will dismiss the applicaiton.

An argument is an address to the court in which each party in a civil proceeding sets out its version of the facts. The plaintiff (or the plaintiff’s lawyer) is heard before the defendant (or the defendant’s lawyer). 

Each party will attempt to present the facts and its claims in as convincing a manner as possible.

In a simple civil case, the judge may render judgment in open court, before the parties to the case. 

In a more complex case, the judge may need time to reflect or review the evidence. It may take several months before the judge renders a judgment, in writing, based on the law and the evidence submitted.

The judgment may be for the plaintiff (the application is granted), or for the defendant (the application is dismissed). The judge may also find for the plaintiff but on some issues only.

Copy of judgment

Each party to the case receives a copy of the judge’s decision. You may obtain additional copies from the court office at the courthouse, or by making a request in writing or by telephone. 

Please note than an addition fee may be charged for additional copies, as set out in the tariff of judicial fees.