FIRST SESSION

FORTIETH LEGISLATURE

Bill 28

An Act to establish the new Code of Civil

Procedure

Introduction

Introduced by
Mr. Bertrand St-Arnaud
Minister of Justice

Québec Official Publisher

2013
EXPLANATORY NOTES

The purpose of this bill is to establish the new Code of Civil

Procedure, whose main objectives are to ensure the accessibility,
quality and promptness of civil justice, the fair, simple, proportionate
and economical application of procedural rules, the exercise of the
parties’ rights in a spirit of co-operation and balance, and respect
for those involved in the administration of justice.

This bill is geared to achieving and upholding these goals, in

particular by

— streamlining and modernizing not only the organization and

language of the provisions but also the rules as to the form,
presentation and notification of pleadings, the institution of
proceedings before the courts, the revocation of judgments, the
recovery of small claims and the execution of judgments, to cite but
a few examples;

— affirming the existence of private, voluntary dispute prevention

and resolution processes, and encouraging potential litigants to
consider these processes before turning to the courts and to co-
operate actively in searching for a solution and, if applicable, in
preparing and applying a pre-court protocol;

— laying down certain principles that are to guide the courts,

the parties and their lawyers throughout a proceeding, including the
principle of proportionality, which dictates that the actions taken,
pleadings filed and means of proof used must be proportionate, in
terms of the cost and time involved, to the nature and complexity of
the matter and the purpose of the demand;

— recognizing that the mission of the courts includes not only

facilitating conciliation but also ensuring proper case management
in keeping with the principles and objectives of procedure, and
adopting rules to that effect, requiring that the parties file a case
protocol in which they have set out their agreements and undertakings
and the issues in dispute and determined how the proceeding will
unfold, and providing for case management conferences presided
over by a judge;
 — revisiting the concept of costs, maintaining the rule according
to which the legal costs are borne by the unsuccessful party;
introducing certain criteria to facilitate the awarding of legal costs,
and empowering the court, when apportioning costs, to impose
sanctions for any abuse of procedure or dilatoriness;

— defining rules for the disclosure of evidence that require the

parties to be open with each other and keep each other informed,
setting time limits consistent with these rules, allowing and
encouraging the parties to make their case orally, especially when
presenting, defending or contesting certain types of demands or
applications, providing a framework for pre-trial examinations which,
among other things, limits their length, encouraging the parties to
call on a joint expert, providing for the reconciliation of conflicting
expert’s reports and establishing that an expert’s mission is to
enlighten the court and that this mission overrides the parties’
interests;

— in family matters, allowing the court, when already seized of

a demand or an application relating to the children of de facto
spouses, to hear other demands or applications between the spouses
at the same time, and allowing the Court of Québec, when seized of
an application relating to the adoption of a child or to a youth
protection matter, to rule on ancillary issues relating to child custody
or the exercise of parental authority; and

— establishing that, in the execution of a judgment, the court

bailiff must act impartially and in the interests of justice to ensure
that the process is carried out in the manner that is most advantageous
for all the parties (the sale of seized property at a commercially
reasonable price, for example) and simplifying the rules regarding
exemption from seizure and the sale of seized property.

Lastly, the bill unifies the rules that apply to judicial review by
the Superior Court, formulates homologation rules, and brings the
special rules that govern mediation and arbitration together in a new
Book. As well, it allows the use of information technologies in civil
procedure.

LEGISLATION AMENDED BY THIS BILL:

–  Civil Code of Québec;

–  Tax Administration Act (chapter A-6.002);

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–  Act respecting legal aid and the provision of certain other legal
services (chapter A-14);

–  Act respecting insurance (chapter A-32);

–  Act respecting the Barreau du Québec (chapter B-1);

–  Building Act (chapter B-1.1);

–  Cities and Towns Act (chapter C-19);

–  Code of ethics and conduct of the Members of the National

Assembly (chapter C-23.1);

–  Code of Penal Procedure (chapter C-25.1);

–  Professional Code (chapter C-26);

–  Municipal Code of Québec (chapter C-27.1);

–  Act respecting the Communauté métropolitaine de Montréal

(chapter C-37.01);

–  Act respecting the Communauté métropolitaine de Québec

(chapter C-37.02);
–  Act respecting elections and referendums in municipalities
(chapter E-2.2);

–  Election Act (chapter E-3.3);

–  Act to secure handicapped persons in the exercise of their rights

with a view to achieving social, school and workplace integration
(chapter E-20.1);

–  Public Service Act (chapter F-3.1.1);

–  Court Bailiffs Act (chapter H-4.1);

–  Youth Protection Act (chapter P-34.1);

–  Act respecting the class action (chapter R-2.1);

–  Act respecting the Régie du logement (chapter R-8.1);

–  Act respecting the Québec Pension Plan (chapter R-9);

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–  Act respecting the Société de l’assurance automobile du Québec
(chapter S-11.011);

–  Act respecting trust companies and savings companies

(chapter S-29.01);

–  Act respecting public transit authorities (chapter S-30.01);

–  Transport Act (chapter T-12);

–  Municipal Works Act (chapter T-14);

–  Courts of Justice Act (chapter T-16);

–  Auditor General Act (chapter V-5.01);

–  Act respecting Northern villages and the Kativik Regional

Government (chapter V-6.1).

LEGISLATION REPLACED BY THIS BILL:

–  Code of Civil Procedure (chapter C-25).

LEGISLATION REPEALED BY THIS BILL:

–  Special Procedure Act (chapter P-27).

REGULATION REPEALED BY THIS BILL:

–  Tariff of Judicial Fees of Advocates (chapter B-1, r. 22).

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Bill 28
AN ACT TO ESTABLISH THE NEW CODE OF CIVIL
PROCEDURE

THE PARLIAMENT OF QUÉBEC ENACTS AS FOLLOWS:

PRELIMINARY PROVISION

This Code establishes the principles of civil justice and, together with the
Civil Code and in harmony with the Charter of human rights and freedoms
(chapter C-12) and the general principles of law, governs procedure applicable
to private dispute prevention and resolution processes when not otherwise
determined by the parties, procedure before the courts as well as procedure for
the execution of judgments and for judicial sales.

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, the exercise of the parties’ rights in a spirit of co-operation
and balance, and respect for those involved in the administration of justice.

This Code must be interpreted and applied as a whole, in the civil law
tradition. Its rules must be interpreted in light of the special provisions it
contains and those contained in other laws. In the matters it addresses, this
Code supplements the silence of other laws if circumstances permit.

BOOK I
GENERAL FRAMEWORK OF CIVIL PROCEDURE

TITLE I
PRINCIPLES OF PROCEDURE APPLICABLE TO PRIVATE DISPUTE
PREVENTION AND RESOLUTION PROCESSES

1.  To prevent a potential dispute or resolve an existing one, the parties

concerned, by mutual agreement, may opt for a private dispute prevention and
resolution process.

The main private dispute prevention and resolution processes are negotiation
between the parties, and mediation and arbitration, in which the parties call on
a third person to assist them. The parties may also resort to any other process
that suits them and that they consider appropriate, whether or not it borrows
from negotiation, mediation or arbitration.

Parties must consider private prevention and resolution processes before

referring their dispute to the courts.

2.  Parties who enter into a private dispute prevention and resolution process
do so voluntarily. They are required to participate in the process in good faith,
to be transparent with each other, including as regards the information in their
possession, and to co-operate actively in searching for a solution and, if
applicable, in preparing and implementing a pre-court protocol.

They must, as must any third person assisting them, ensure that any steps
they take are proportionate, in terms of the cost and time involved, to the nature
and complexity of the dispute.

3.  The third person called upon by the parties to assist them in the process
they have opted for or to decide their dispute must be chosen by them jointly.

The third person must be capable of acting impartially and diligently and in
accordance with the requirements of good faith. If acting on a volunteer basis
or for a disinterested motive, the third person incurs no liability other than that
incurred through an intentional or gross fault.

4.  Parties who opt for a private dispute prevention and resolution process
and the third person assisting them undertake to preserve the confidentiality
of anything said, written or done during the process, subject to any agreement
between them on the subject, to any special provisions of the law or to their
own remedies before the courts.

5.  The third person called upon to assist the parties may provide information
for research or statistical purposes or in connection with a general evaluation
of the dispute prevention and resolution process or its results without it being
a breach of the person’s duty of confidentiality, provided no personal information
is revealed.

6.  Parties who agree to resort to a private dispute prevention and resolution
process, together with the third person involved in the process, if any, determine
the procedure applicable to the process they have selected. If the parties have
opted for mediation or arbitration or a similar process and the procedure they
have determined must be supplemented, the rules of Book VII apply.

7.  Participation in a private dispute prevention and resolution process other

than arbitration does not entail a waiver of the right to act before the courts.
However, the parties may undertake not to exercise that right in connection

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with the dispute in the course of the process, unless it proves necessary for the
preservation of their rights.

They may also agree to waive prescription already acquired and the benefit
of time elapsed for prescription purposes or agree, in a signed document, to
suspend prescription for the duration of the process. Prescription cannot,
however, be suspended for more than two months.

TITLE II
PRINCIPLES OF PROCEDURE APPLICABLE BEFORE THE COURTS

8.  Public civil justice is administered by the courts under the legislative
authority of Québec. The Court of Appeal, the Superior Court and the Court
of Québec exercise their jurisdiction throughout the territory of Québec.

Municipal courts exercise civil jurisdiction in the matters assigned to them

by special Acts, but only within the territory specified by those Acts and by
their constituting instruments. The organization and operation of municipal
courts are governed by the Act respecting municipal courts (chapter C-72.01).

The Supreme Court of Canada, the Federal Court of Appeal and the Federal
Court of Canada have jurisdiction in some civil matters in Québec, as provided
for in the Acts of the Parliament of Canada.

CHAPTER I
MISSION OF THE COURTS

9.  It is the mission of the courts to adjudicate the disputes brought before
them, in accordance with the applicable rules of law and, in doing so, to speak
the law. It is also their mission to make a ruling, even in the absence of a dispute,
whenever the law requires that a demand or an application be brought before
the court because of the nature of the case or the capacity of the persons
concerned.

That mission includes ensuring proper case management in keeping with

the principles and objectives of procedure. It further includes, both in first
instance and in appeal, facilitating conciliation whenever the law so requires,
the parties request it or consent to it or circumstances permit, or if a settlement
conference is held.

The courts and judges enjoy judicial immunity. Judges must be impartial
and, in their decisions, they must have regard to the best interests of justice.

10.  The courts cannot seize themselves of a matter; it is up to the parties to

commence a proceeding and determine its subject matter.

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 The courts cannot adjudicate beyond what is sought by the parties. If
necessary, they may correct any improper term in the conclusions set out in a
written pleading in order to give them their proper characterization in light of
the allegations in the pleading.

The courts are not required to decide theoretical questions or to adjudicate

where a judgment would not put an end to the uncertainty or the controversy,
but they cannot refuse to adjudicate under the pretext that the law is silent,
obscure or insufficient.

CHAPTER II
PUBLIC NATURE OF PROCEDURE BEFORE THE COURTS

11.  Civil justice administered by the courts is public. Anyone may attend
court hearings wherever they are held, and have access to court records and
entries in the registers of the courts.

An exception to this principle applies if the law provides for in camera

proceedings or restricts access to certain documents filed in a court record.

Exceptions to the principle of open proceedings apply despite section 23 of

the Charter of human rights and freedoms.

12.  The court may make an exception to the principle of open proceedings
if, in its opinion, public order, in particular the preservation of the dignity of
the persons involved or the protection of substantial and legitimate interests,
requires that the hearing be held in camera, that access to a document or the
disclosure or circulation of information or documents specified by the court
be prohibited or restricted, or that the anonymity of the persons involved be
protected.

13.  Lawyers, notaries, their articling students, and journalists who show
proof of their status may attend a hearing held in camera; if the hearing concerns
a person’s personal integrity or capacity, anyone the court considers capable
of assisting or reassuring the person may also attend. However, if circumstances
so require, the court may exclude such persons to prevent serious prejudice to
a person whose interests may be affected by the demand or application or by
the proceeding.

Persons whose presence is, in the court’s opinion, required in the interests
of justice may also attend.

14.  Persons present at a court hearing must conduct themselves in a

respectful and restrained manner. Only those who prove their status as
journalists may make a sound recording of the proceedings and the decision,
unless the court prohibits them from doing so; they may not, however, broadcast
the recording. In no case may images be recorded.

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 The parties and their representatives are duty-bound to exercise restraint
throughout the proceeding out of respect for the judicial process.

All must obey the orders of the court and of the officers of justice under its
authority, under pain of contempt of court.

15.  In family matters, hearings of the court of first instance are held in
camera; however, the court, in the interests of justice, may order that a hearing
be public. Unless authorized by the court, no person attending a hearing nor
any other person may disclose information that would allow the persons
concerned to be identified, under pain of contempt of court.

Judgments in such matters may only be published if the anonymity of the

parties and of any child whose interests are at stake in the proceeding is
protected and the passages that would allow them to be identified have been
deleted or redacted.

16.  In family matters, access to exhibits and other documents in the court
record that contain identifying information generally held to be confidential is
restricted if they have been filed in a sealed envelope. In other matters, especially
those relating to personal integrity or capacity, access to documents pertaining
to a person’s health or psychosocial situation is also restricted if they have been
filed in a sealed envelope.

Access-restricted documents may only be consulted or copied by the parties,

their representatives and persons designated by law, and by any person,
including journalists, who has been authorized by the court after proving a
legitimate interest, subject to the access conditions and procedure determined
by the court. The Minister of Justice, by virtue of that office, is considered to
have a legitimate interest to access records for research, reform or evaluation
purposes.

No person who has had access to a record in a family matter may disclose
or circulate any information that would allow a party or a child whose interests
are at stake in a proceeding to be identified, unless authorized by the court or
by law or unless the disclosure or circulation of the information is necessary
for the purpose of applying a law.

CHAPTER III
GUIDING PRINCIPLES OF PROCEDURE

17.  The court cannot rule on a demand or an application, or order a measure

on its own initiative, which affects the rights of a party unless the party has
been heard or duly called.

In any contentious matter, the court, even on its own initiative, must uphold
the adversarial principle and see that it is adhered to until the judgment and

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during execution of the judgment. It cannot base its decision on grounds the
parties have not had the opportunity to debate.

18.  The parties to a proceeding must observe the principle of proportionality

and ensure that their actions, their pleadings, including their choice of an oral
or a written defence, and the means of proof they use are proportionate, in
terms of the cost and time involved, to the nature and complexity of the matter
and the purpose of the demand or the application.

Judges must likewise observe the principle of proportionality in managing

the proceedings they are assigned, regardless of the stage at which they
intervene. They must ensure that the measures and acts they order or authorize
are in keeping with the same principle, while having regard to the proper
administration of justice.

19.  Subject to the duty of the courts to ensure proper case management and
the orderly progress of proceedings, the parties control the course of their case
insofar as they comply with the principles, objectives and rules of procedure
and the prescribed time limits.

They must be careful to confine the case to what is necessary to resolve the
dispute, and must refrain from acting with the intent to cause prejudice to
another person or behaving in an excessive or unreasonable manner, contrary
to the requirements of good faith.

They may, at any stage of the proceeding, without necessarily stopping its
progress, agree to settle their dispute through a private dispute prevention and
resolution process or judicial conciliation; they may also otherwise terminate
the proceeding at any time.

20.  The parties are duty-bound to co-operate and, in particular, to keep one
another informed at all times of the facts and particulars conducive to a fair
debate and make sure that relevant evidence is preserved. They must, among
other things, at the time prescribed by this Code or determined in the case
protocol, inform one another of the facts on which their contentions are based
and of the evidence they intend to produce.

21.  A person who is called as a witness is duty-bound to appear, testify and

tell the truth.

Witnesses have the right to be informed, by the calling party, of the reason
they have been called, of the subject matter of the testimony and of the order
of the proceeding. They also have the right to be informed without delay that
their presence is no longer required.

22.  The mission of an expert whose services have been retained by a single
party or by the parties jointly, whether the matter is contentious or not, is to
enlighten the court. This mission overrides the parties’ interests.

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 Experts must fulfill their mission objectively, impartially and thoroughly.

23.  Natural persons may self-represent before the courts, but must comply
with the procedure established by this Code and the regulations under this
Code.

24.  The taking of an oath is a solemn undertaking to tell the truth or to

exercise a function impartially and competently.

In addition to cases in which an oath is required by law, an oath may be

required by the court whenever it considers it necessary in the interests of
justice. The oath may be taken before a judge, a court clerk or any other person
legally authorized to administer oaths.

CHAPTER IV
RULES OF INTERPRETATION AND APPLICATION OF THIS CODE

25.  The rules of this Code are designed to facilitate the resolution of disputes
and to bring out the substantive law and ensure that it is carried out.

Failure to observe a rule that is not a public order rule does not prevent a
demand or an application from being decided provided the failure is remedied
in a timely manner; likewise, if no specific procedure is provided for exercising
a right, any mode of proceeding may be used that is not inconsistent with the
rules of this Code.

26.  In applying this Code, appropriate technological means that are available
to both the parties and the court should be used whenever possible, taking into
account the technological environment in place to support the business of the
courts.

The court, even on its own initiative, may use such means or order that such
means be used by the parties, including for case management purposes; if it
considers it necessary, the court may also, despite an agreement between the
parties, require a person to appear in person at a hearing, a conference or an
examination.

27.  In a state of emergency declared by the Government or in a situation

where it is impossible in fact to comply with the rules of this Code or to use a
means of communication, the Chief Justice of Québec and the Minister of
Justice may jointly suspend or extend a prescription or procedural period for
a specified time, or authorize the use of another means of communication in
the manner they specify.

Their decision takes effect immediately, and must be published without delay
in the Gazette officielle du Québec.

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28.  After considering the effects of the project on the rights of individuals
and obtaining the agreement of the Chief Justice of Québec or the Chief Justice
of the Superior Court or the Chief Judge of the Court of Québec, according to
their jurisdiction, and after consulting the Barreau du Québec and, if applicable,
the Chambre des notaires du Québec or the Chambre des huissiers de justice
du Québec, the Minister of Justice, by regulation, may modify a rule of
procedure, or introduce a new one, for a specified time not exceeding three
years, for the purposes of a pilot project conducted in specified judicial districts.

TITLE III
JURISDICTION OF COURTS

CHAPTER I
SUBJECT-MATTER JURISDICTION OF COURTS

DIVISION I
JURISDICTION OF COURT OF APPEAL

29.  The Court of Appeal is the general appellate court in charge of hearing
appeals against appealable judgments of other courts, unless a provision
specifies that an appeal is to be made before another court.

30.  Judgments of the Superior Court and the Court of Québec that terminate
a proceeding, particularly in cases that pertain to personal integrity, status or
capacity, the special rights of the State or contempt of court, may be appealed
as of right.

The following, however, may be appealed only with leave:

(1)  judgments where the value of the subject matter of the dispute in appeal
is less than $50,000;

(2)  judgments rendered in non-contentious matters and not appealable as

of right;

(3)  judgments dismissing a judicial demand because of its abusive nature;

(4)  judgments denying an application for forced or voluntary intervention

of a third person;

(5)  judicial review judgments of the Superior Court relating to the evocation
of a case pending before a court or to a decision made by a person or body or
a judgment rendered by a court that is subject to judicial review by the Superior
Court, or relating to a remedy commanding the performance of an act;

(6)  judgments ruling on legal costs;

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 (7)  judgments confirming or quashing a seizure before judgment;

(8)  judgments ruling on execution matters.

Leave to appeal is granted by a judge of the Court of Appeal if that judge

considers that the matter at issue is one that should be submitted to that Court,
for example because it involves a question of principle, a new issue or an issue
of law that has given rise to conflicting judicial decisions.

If it is necessary to calculate the value of the subject matter of the dispute

in appeal, account must be taken of interest already accrued on the date of the
judgment in first instance and of the additional indemnity mentioned in
article 1619 of the Civil Code. Legal costs are disregarded. If the subject matter
of the appeal is the right to additional damages for bodily injury, only the
amount of those damages is to be taken into account.

31.  A judgment of the Superior Court or the Court of Québec rendered in

the course of a proceeding, including during a trial, is appealable as of right if
it rules on an objection to evidence based on the duty of discretion of public
servants or on professional secrecy.

Such a judgment may be appealed with leave of a judge of the Court of

Appeal if it determines part of the dispute or causes irremediable prejudice to
a party, including if it allows an objection to evidence.

An appeal against a judgment rendered in the course of a proceeding does

not stay the proceeding unless a judge of the Court of Appeal so orders. If the
judgment was rendered in the course of the trial, the appeal does not stay the
trial; however, judgment on the merits cannot be rendered nor, if applicable,
the evidence concerned heard until the decision on the appeal is rendered.

Any other judgment rendered in the course of a proceeding cannot be

challenged except on an appeal against the judgment on the merits.

32.  Case management measures relating to the conduct of a proceeding and

rulings on incidental applications concerning the continuance of a proceeding,
the joinder or severance of proceedings, the stay of a trial, the splitting of a
proceeding or pre-trial discovery cannot be appealed. However, if a measure
or a ruling appears unreasonable in light of the guiding principles of procedure,
a judge of the Court of Appeal may grant leave to appeal.

DIVISION II
JURISDICTION OF SUPERIOR COURT

33.  The Superior Court is the court of original general jurisdiction. It has
jurisdiction in first instance to hear and determine any demand or application
not formally and exclusively assigned by law to another court or to an
adjudicative body.

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 It has exclusive jurisdiction to hear and determine class actions and demands
or applications for an injunction.

34.  The Superior Court is vested with a general power of judicial review
over all courts in Québec other than the Court of Appeal, over public bodies,
over legal persons established in the public interest or for a private interest,
and over partnerships and associations not endowed with juridical personality.

This power cannot be exercised in cases excluded by law or declared by law

to be under the exclusive purview of those courts, persons, bodies or groups,
except where there is lack or excess of jurisdiction.

A matter is brought to the Court by means of an application for judicial

review.

DIVISION III
JURISDICTION OF COURT OF QUÉBEC

35.  The Court of Québec has exclusive jurisdiction to hear and determine
demands in which the amount claimed, including rent in lease resiliation
matters, or the value of the subject matter of the dispute is less than $85,000,
exclusive of interest, as well as applications ancillary to such a demand,
including those for the specific performance of a contractual obligation.
However, it does not have such jurisdiction in cases where jurisdiction is
formally and exclusively assigned to another court or adjudicative body, or in
family matters other than adoption.

A demand brought before the Court of Québec is no longer within the

jurisdiction of that Court if a cross-demand is made for an amount or value
equal to or exceeding $85,000, or if an amendment to the demand increases
the amount claimed or the value of the subject matter of the dispute to $85,000
or more. Conversely, the Court of Québec alone becomes competent to hear
and determine a demand brought before the Superior Court if the amount
claimed or the value of the subject matter of the dispute falls below that amount.
In either case, the record is transferred to the competent court if all parties
agree or if the court so orders on its own initiative or on a party’s request.

If two or more plaintiffs join together or are represented by the same person
in the same judicial demand, the Court of Québec has jurisdiction if it would
be competent to hear and determine each plaintiff’s demand.

The monetary jurisdiction limit of the Court of Québec is increased by $5,000

on 1 September of the calendar year following the calendar year in which the
total amount resulting from annual adjustments of the indexed limit amount on the
basis of the Consumer Price Index for Québec, determined by Statistics Canada,
since the last increase is equal to or exceeds $5,000. A notice stating the monetary
jurisdiction limit of the Court resulting from that calculation is published in the
Gazette officielle du Québec by the Minister of Justice not later than 1 August of
the year in which the new limit comes into force. Judicial demands introduced before
1 September of that year continue before the court seized.

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36.  Subject to the jurisdiction assigned to the municipal courts, the Court
of Québec has jurisdiction, to the exclusion of the Superior Court, to hear and
determine demands for the recovery of property taxes, other taxes or any other
amount due under an Act to a municipality or a school board, and demands by
which the existence or amount of such a debt is contested.

The Court also has jurisdiction to hear and determine demands for the
reimbursement of an overpayment to a municipality or a school board.

37.  The Court of Québec has jurisdiction, to the exclusion of the Superior
Court, to hear and determine applications in adoption matters.

In other youth matters, jurisdiction and procedure are determined by special

Acts.

If an adoption or youth protection matter is already before the Court of

Québec, it may rule on any related application concerning child custody, the
exercise of parental authority or tutorship requested by the director of youth
protection.

38.  The Court of Québec has exclusive jurisdiction to hear and determine
demands concerning a person’s confinement in a health or social services
institution for or after a psychiatric assessment without the person’s consent.

39.  The Court of Québec has exclusive jurisdiction to hear and determine
applications relating to an arbitration insofar as it would be competent to rule
on the subject matter of the dispute referred to the arbitrator, and to hear and
determine applications for the recognition and enforcement of a decision
rendered outside Québec in a matter within its jurisdiction.

CHAPTER II
TERRITORIAL JURISDICTION OF COURTS

DIVISION I
TERRITORIAL JURISDICTION––APPEAL

40.  The Court of Appeal sitting at Montréal hears appeals against judgments
rendered in the judicial districts of Beauharnois, Bedford, Drummond, Hull,
Iberville, Joliette, Labelle, Laval, Longueuil, Mégantic, Montréal, Pontiac,
Richelieu, Saint-François, Saint-Hyacinthe and Terrebonne. The Court of
Appeal sitting at Québec hears appeals against judgments rendered in all other
districts.

DIVISION II
TERRITORIAL JURISDICTION––FIRST INSTANCE

41.  The court having territorial jurisdiction in Québec to hear a judicial

demand is the court of the domicile of the defendant, or of one of the defendants
if there are two or more defendants domiciled in different districts.

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 If the defendant has no domicile in Québec, the court that has territorial
jurisdiction is the court of the defendant’s residence or, in the case of a legal
person, the court of the place where the defendant has an establishment, or the
court of the place where the defendant has property.

So far as public order permits, the court of the defendant’s elected domicile,
or the court designated by an agreement between the parties other than an
adhesion contract, also has territorial jurisdiction.

42.  At the plaintiff’s option,

(1)  a demand for the performance of contractual obligations may also be

brought before the court of the place where the contract was made;

(2)  a demand concerning extracontractual civil liability may also be brought

before the court of the place where the injurious act or omission occurred or
the court of any of the places where the injury was suffered; and

(3)  a demand whose subject matter is immovable property may also be

brought before the court of the place where the property is wholly or partly
situated.

43.  If a demand pertains to an employment contract or a consumer contract,

the court having jurisdiction is the court of the domicile or residence of the
employee or the consumer, whether that person is the plaintiff or the defendant.

If a demand pertains to an insurance contract, the court having jurisdiction

is the court of the domicile or residence of the insured, whether that person is
the plaintiff or the defendant, or, as applicable, the court of the domicile or
residence of the beneficiary under the contract. In the case of property insurance,
the court of the place where the loss occurred also has jurisdiction.

If a demand pertains to the exercise of a hypothecary right on an immovable

serving as the debtor’s main residence, the court having jurisdiction is the court
of the place where the immovable is situated.

An agreement to the contrary is unenforceable against the employee, the

consumer, the insured, the insurance contract beneficiary or the hypothecary
debtor.

44.  In matters relating to personal integrity, status or capacity, the court

having jurisdiction is the court of the domicile or residence of the minor or
person of full age concerned or, in the case of an absentee, of the absentee’s
representative.

A demand concerning a person of full age who resides in a health or social

services institution may also be brought before the court of the place where
the institution is situated, the court of the person’s former domicile or residence,
or the court of the domicile of the plaintiff.

18
 If the person of full age under protective supervision, the plaintiff or the
representative no longer lives in the district where the judgment was rendered,
an application for review of the judgment may be brought before the court of
the domicile or residence of any of them.

45.  In family matters, the court having jurisdiction is the court of the
common domicile of the parties or, if they do not have a common domicile,
the court of the domicile of one of the parties and, in cases of opposition to
marriage or civil union, the court of the place of solemnization.

In adoption matters, the court having jurisdiction is the court of the domicile
of the minor child or of the applicant or, if the parties consent, the court of the
place under the responsibility of the director of youth protection who was last
in charge of the child.

If the parties are no longer domiciled in the district where the judgment was
rendered, an application for review of the judgment may be brought before the
court of the domicile of one of the parties, but if one of them still lives in that
district, the application may only be brought in another district with the consent
of that party. Whenever a child is involved, the application may be brought
before the court of the child’s domicile.

46.  In succession matters, the court having jurisdiction is the court of the
place where the succession opened.

However, if the succession did not open in Québec, the demand may be
brought, at the plaintiff’s option, before the court of the place where the property
is situated, the court of the place where the death occurred or the court of the
domicile of the defendant or one of the defendants.

The court of the domicile of the liquidator of the succession is also competent
in respect of any application pertaining to the appointment of the liquidator or
the exercise of the liquidator’s functions.

47.  Incidental applications, such as recourses in warranty and applications

for additional damages for bodily injury, must be brought before the court
before which the demand was brought.

48.  At any stage of a proceeding, the chief justice or chief judge may, even
on their own initiative, in the interests of the parties or of the third persons
concerned or if warranted on serious grounds, order that a case, a trial or an
application relating to the execution of a judgment be transferred to another
district.

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CHAPTER III
POWERS OF COURTS

DIVISION I
GENERAL POWERS

49.  The courts and judges have all the powers necessary for the exercise of
their jurisdiction both in first instance and in appeal.

They may, at any time and in all matters, even on their own initiative, grant
injunctions or issue orders to safeguard the parties’ rights for the period and
subject to the conditions they determine. As well, they may make such orders
as are appropriate to deal with situations for which no solution is provided by
law.

50.  When sitting in first instance in non-contentious cases or in cases in

which a child’s interests or a person’s personal integrity, status or capacity are
at issue, the courts, even on their own initiative, may require the attendance of
a person or the presentation of evidence, and informally hear persons who may
enlighten them and, after calling them, persons whose interests may be affected
by the decision.

DIVISION II
POWER TO IMPOSE SANCTIONS FOR ABUSE OF PROCEDURE

51.  The courts may, at any time, on an application and even on their own
initiative, declare that a judicial demand or a pleading is abusive.

Regardless of intent, the abuse of procedure may consist in a judicial demand

or pleading that is clearly unfounded, frivolous or intended to delay or in
conduct that is vexatious or quarrelsome. It may also consist in a use of
procedure that is excessive or unreasonable or that causes prejudice to another
person, or attempts to defeat the ends of justice, particularly if it operates to
restrict another person’s freedom of expression in public debate.

52.  If a party summarily establishes that a judicial demand or pleading may

constitute an abuse of procedure, the onus is on the initiator of the demand or
pleading to show that it is not excessive or unreasonable and is justified in law.

The application is presented and defended orally, and decided by the court
on the face of the pleadings and exhibits in the record and the transcripts of
any pre-trial examinations. No other evidence is presented, unless the court
considers it necessary.

An application for a court ruling on the abusive nature of a pleading that

operates to restrict another person’s freedom of expression in public debate
must, in first instance, be dealt with as a matter of priority.

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53.  If there has been an abuse of procedure, the court may dismiss the
judicial demand or reject a pleading, strike out a conclusion or require that it
be amended, terminate or refuse to allow an examination, or cancel a subpoena.

If there has been or if there appears to have been an abuse of procedure, the
court, if it considers it appropriate, may do one or more of the following:

(1)  impose conditions on any further steps in the judicial demand or on the
pleading;

(2)  require undertakings from the party concerned with respect to the orderly
conduct of the proceeding;

(3)  stay the proceeding for the period it determines;

(4)  recommend that the chief justice or chief judge order special case
management; or

(5)  order the party that initiated the judicial demand or presented the pleading
to pay the other party, under pain of dismissal of the demand or rejection of
the pleading, a provision for costs, if the circumstances so warrant and if the
court notes that, without such assistance, that other party’s financial situation
would likely prevent it from effectively conducting its case.

54.  On ruling on whether a judicial demand or pleading, including one

presented under this division, is abusive, the court may order a provision for
costs to be reimbursed, order a party to pay, in addition to legal costs, damages
for any injury suffered by another party, including to cover the professional
fees and disbursements incurred by that other party, or award punitive damages
if warranted by the circumstances.

If the amount of the damages is not admitted or cannot be easily calculated

at the time the demand or pleading is declared abusive, the court may summarily
determine the amount within the time and subject to the conditions it specifies
or, in the case of the Court of Appeal, refer the matter back to the court of first
instance for a decision.

55.  If an abuse of procedure results from a party’s quarrelsomeness, the

court may, in addition to other measures, prohibit the party from instituting a
judicial demand or presenting a pleading in an ongoing proceeding except with
the authorization of and subject to the conditions determined by the chief justice
or the chief judge.

56.  If a legal person is responsible for an abuse of procedure, those of its

directors and officers who participated in the decision may be ordered personally
to pay damages. The same holds for an administrator of the property of others
who is responsible for such an abuse.

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DIVISION III
POWER TO PUNISH FOR CONTEMPT OF COURT

57.  The courts may punish the conduct of any person who is guilty of
contempt of court, whether committed in or outside the presence of the court.
In the case of contempt of the Court of Appeal committed outside the presence
of the Court, the matter is brought before the Superior Court.

A transaction that puts an end to a dispute cannot be invoked against the

court in a matter of contempt.

58.  A person who disobeys a court order or injunction or acts in such a way
as to interfere with the orderly administration of justice or undermine the
authority or dignity of the court is guilty of contempt of court.

A person not named in an injunction who disobeys that injunction is guilty

of contempt of court only if the person does so knowingly.

59.  A person charged with contempt of court must be summoned, by an

order of the court, to appear on the day and at the time specified to hear proof
of the acts held against the person and to raise grounds of defence.

60.  The order to appear is issued on the court’s own initiative or on an

application presented before the court, which does not require notification.

The order must be served personally; however, if circumstances do not permit

personal service, the court may authorize another method of notification.

If the alleged contempt of court is committed in the presence of the court

and must be ruled on without delay, the only requirement is that the person be
first called upon to justify their behaviour.

61.  The judge who is to rule on a contempt of court allegation must not be
the judge before whom it was allegedly committed, unless the matter must be
ruled on without delay.

The proof submitted to establish contempt of court must be beyond a

reasonable doubt, and the person charged cannot be compelled to testify.

If the judgment finds that contempt of court was committed, it must state
the sanction imposed and set out the facts on which the finding of contempt is
based.

62.  The only sanctions that may be imposed for contempt of court are

(1)  payment of a punitive amount not exceeding $10,000 in the case of a

natural person, or $100,000 in the case of a legal person, a partnership or an
association; and

22
 (2)  performance by the person or the person’s officers, over a maximum
period of one year, of compensatory community work the nature and terms of
which are specified by the court or determined under the Code of Penal
Procedure (chapter C-25.1).

If the person refuses to comply with the court order or injunction, in addition
to the sanction imposed, the court may order imprisonment for the term it
specifies. The person so imprisoned must be summoned before the court
regularly to explain themselves, and imprisonment may be ordered again until
the person complies. Imprisonment can in no case exceed one year.

The judgment is enforced in accordance with Chapter XIII of the Code of

Penal Procedure.

DIVISION IV
COURT REGULATIONS

63.  A court may make regulations to regulate practice in that court or in

any of its divisions and to ensure, in keeping with this Code, that the procedure
established by this Code is properly complied with. Such regulations must be
adopted by a majority of the judges of the court or, if special rules are needed
for the district of Québec or Montréal, by a majority of the judges of that
district.

If expedient, the chief justice or chief judge of the court, after consulting
the judges concerned, may issue instructions for one or more districts, as needed.
Those instructions, of a purely administrative nature, are the only ones
applicable.

64.  For the purpose of adopting regulations, the chief justice or chief judge
of the court determines the most effective method of consultation so as to obtain
the opinion of each of the judges concerned.

The chief justice or chief judge sends draft regulations to the Minister of
Justice so that the latter may submit observations on any provisions having
financial implications either for the State or for the parties to a proceeding.

After taking the Minister’s observations into consideration, the chief justice
or chief judge publishes draft regulations in the Gazette officielle du Québec
at least 45 days before they are to be adopted, with a notice stating that
comments are welcome and specifying where they should be sent. If required
by the urgency of the situation, the chief justice or chief judge may shorten the
publication period, giving reasons in the publication notice.

65.  Regulations adopted by a court come into force 15 days after their
publication in the Gazette officielle du Québec or on any later date specified
in the regulations.

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 All such regulations, as well as any instructions issued by the chief justice
or chief judge, must be published so as to be easily accessible to the public,
including through posting on the court’s website.

CHAPTER IV
COURT OFFICES

66.  Court offices provide clerical services to the court they serve, manage
the information and documents required for the operation of the court and have
custody of court registers, records, orders and judgments. They also manage
the fees and costs prescribed by regulation and are responsible for the
preservation of court archives.

Court offices perform their functions in accordance with this Code, the
regulations of the court, the instructions of the chief justice or chief judge and
the directives of the Deputy Minister of Justice and within the technological
environment in place to support the business of the courts.

67.  Court clerks are in charge of the court office to which they are assigned
and exercise the powers conferred on them by law. With the consent of the
Minister of Justice or a person designated by the latter, they may designate
deputy court clerks, who are authorized to exercise the powers of a court clerk.
Court clerks are assisted by the personnel needed to carry out their functions
and run the court office.

In addition, the Minister, by order and with the consent of the chief justice
or chief judge, may appoint special clerks to exercise, for the court, the
adjudicative functions assigned to special clerks by law. Special clerks, by
virtue of their office, may exercise the powers of court clerks.

CHAPTER V
POWERS OF COURTS, JUDGES AND COURT CLERKS

68.  The jurisdiction and powers conferred on the Court of Appeal are
exercised by the Court, its judges or the court clerk, as provided in this Code,
particularly in Title IV of Book IV, which governs appeals.

The jurisdiction and powers conferred on the courts of first instance are also
conferred on the judges appointed to those courts. The courts, when holding
hearings, are vested with all the powers conferred by law on judges.

A measure which, under this Code, may be taken by the chief justice or chief
judge may also, if warranted, be taken by the associate or assistant chief justice
or chief judge, according to the division of responsibilities that prevails at the
court, or by another judge designated by any of them.

69.  In first instance, judges sit in open court to hear and try a demand.

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 Judges, in chambers or in another place serving as chambers, may meet
parties to take case management measures and try and decide demands and
applications that require immediate intervention or do not require witness
evidence, such as incidental applications, demands proceeding by default,
non-contentious demands or applications, and applications relating to temporary
injunctions, seizures before judgment or execution matters. In all such cases
and in all cases where judges are permitted by law to exercise their powers in
chambers or such other places, minutes of the meeting must be drawn up.

On their own initiative or on an application, judges may refer to the court

any matter submitted to them in chambers or in another place serving as
chambers.

70.  Court clerks and special clerks only exercise the jurisdiction expressly
assigned to them by law. In matters within their jurisdiction, they have the
powers of the judges or the court.

If they consider that the interests of justice so require, they may refer any
matter submitted to them to a judge or to the court.

71.  If the judge is absent or unable to act and any delay could result in the
loss of a right or cause serious prejudice, the court clerk may exercise the
jurisdiction of the judge.

However, the court clerk cannot decide an incidental application, issue an

order for police assistance or authorize a seizure before judgment unless no
judge or special clerk is present in the district; nor may the court clerk decide
an application for a stay unless it is impossible to reach a judge in another
district or the on-call judge designated by the chief justice or chief judge.

In addition to demands and applications expressly excluded from the

jurisdiction of court clerks, the court clerk may in no case decide a demand or
an application relating to personal integrity, status or capacity, authorize the
seizure of property on a debtor’s person or decide an application for judicial
review or a demand or an application for an injunction.

72.  The special clerk may rule on any application, contested or not, whose
subject matter is security for costs, the calling of a witness, the disclosure,
production or rejection of exhibits, the examination or copying of an access-
restricted document, or the physical, mental or psychosocial assessment of a
person, the joinder of proceedings, amendments to pleadings or particulars to
clarify pleadings or a substitution of lawyer and on any application for relief
from default or to cease representing. In the course of a proceeding or of
execution, the special clerk may rule on any pleading, but only with the parties’
consent in the case of a contested pleading.

The special clerk may homologate any agreement between the parties that
provides a complete settlement of a child custody or support matter and, in
order to evaluate the agreement or assess the consent of the parties, may convene

25
the parties and hear them, even separately, in the presence of their lawyer. If
the special clerk considers that the agreement does not sufficiently protect the
children’s interests or that consent was obtained under duress, the case is
referred to a judge or to the court.

An agreement homologated by the special clerk has the same force and effect
as a judgment.

Applications that are within the jurisdiction of the special clerk are presented
directly to the special clerk and, unless contested, are decided on the face of
the record.

73.  In a non-contentious proceeding, the jurisdiction of the court may be

exercised by the special clerk.

However, the special clerk cannot decide demands or applications concerning

personal integrity or status, absence or a judicial declaration of death, for the
review of a decision of the registrar of civil status or relating to the publication
of rights or the reconstitution of an authentic act or public register.

74.  Decisions of the court clerk other than administrative decisions and
decisions of the special clerk may, on an application, be reviewed by a judge
in chambers or by the court. The same applies to decisions of the appellate
clerk, which may be reviewed by an appellate judge.

The application for review must state the grounds on which it is based, be
notified to the other parties and filed with the court office within 10 days after
the date of the decision concerned. If the decision is quashed, matters are
restored to their former state.

TITLE IV
SPECIAL RIGHTS OF STATE

75.  The State and state bodies, in seeking to resolve a dispute with natural
or legal persons, may, if they consider it advisable, resort to a private dispute
prevention and resolution process before taking the matter before the courts.

They are, however, required to comply with government regulations on the

subject and to resort to such a process only to the extent permitted by the public
interest or the applicable legal standards.

76.  In any civil, administrative, penal or criminal case, a person intending

to question the operability, the constitutionality or the validity of a provision
of an Act of the Parliament of Québec or the Parliament of Canada, of any
regulation made under such an Act, of a government or ministerial order or of
any other rule of law must give notice to the Attorney General of Québec.

26
 Such notice is also required when a person seeks reparation from the State,
a state body or a legal person established in the public interest for an
infringement or denial of their fundamental rights and freedoms under the
Charter of human rights and freedoms or the Canadian Charter of Rights and
Freedoms (Part I of Schedule B to the Canada Act, chapter 11 in the 1982
volume of the Acts of the Parliament of the United Kingdom).

Again, such notice is required when a person intends to raise, in a proceeding,

the issue of the navigability or floatability of a lake or watercourse or the issue
of the ownership of the bed or banks of a lake or watercourse.

No such demand may be ruled on unless such notice has been validly given,
and the court may only adjudicate with respect to the grounds set out in the
notice.

77.  To be validly given, the notice to the Attorney General of Québec must
clearly state the contentions the person intends to assert and the grounds on
which they are based, and be served on the Attorney General by a court bailiff
as soon as possible in the course of the proceeding but, in a civil matter, at least
30 days before the case is ready for trial and, in other matters, at least 30 days
before the trial; in addition, the notice must be accompanied by all pleadings
already filed in the record. The Attorney General becomes a party to the
proceeding without further formality and may submit conclusions to the court,
in which case the court must rule on them.

Only the Attorney General may waive the notice period.

The notice to the Attorney General must also be served on the Attorney
General of Canada if the provision or rule of law concerned comes under federal
jurisdiction; it must be notified to the Director of Criminal and Penal
Prosecutions if the provision or rule of law concerned relates to a criminal or
penal matter.

78.  In criminal or penal matters, a notice to the Attorney General of Québec

under the second paragraph of article 76 must be served at least 10 days before
the date of the trial on the demand for reparation. Failing that, the court orders
service of the notice and postpones the hearing, unless the Attorney General
waives the notice period or the court shortens it because, in its opinion, it is
necessary to prevent irreparable prejudice to the initiator of the demand or to
a third person.

Such a notice is not required if the reparation sought relates to the disclosure
or exclusion of evidence or to the period of time elapsed since the accusation,
or in the cases determined by order of the Minister of Justice published in the
Gazette officielle du Québec.

79.  In a proceeding involving a public interest issue, the court, even on its
own initiative, may order the parties to invite the Attorney General of Québec
to intervene as a party.

27
 The Attorney General, on the Attorney General’s own initiative, may
intervene as a party in a proceeding involving such an issue without notice or
formality and without having to prove an interest. As well, the Attorney General,
on the Attorney General’s own initiative, may appeal any judgment on a public
interest issue, whether or not the Attorney General was a party in the proceeding.

80.  No measures to force execution are available with respect to a judgment

against the Attorney General of Québec other than in accordance with the
special rules for forced execution in real actions. If the judgment orders the
payment of a sum of money, the Minister of Finance, on receiving the judgment
once it has become final, pays the amount specified out of available appropriations
or, failing that, out of the Consolidated Revenue Fund.

81.  The courts cannot order a provisional measure or a sanction against, or

exercise the power of judicial review over, the Government or a minister of the
Government or any person, whether or not a public servant, acting under their
authority or on their instructions in a matter relating to the exercise of a function
or the authority conferred on them by law. An exception to this rule may be
made if it is shown to the court that there was a lack or excess of jurisdiction.

TITLE V
PROCEDURE APPLICABLE TO ALL JUDICIAL DEMANDS

CHAPTER I
SITTINGS OF COURTS AND TIME LIMITS

82.  The courts do not sit on Saturdays or on holidays within the meaning
of section 61 of the Interpretation Act (chapter I-16), nor do they sit on
26 December or 2 January, which are considered holidays for civil procedure
purposes. In urgent cases, a demand may be heard on a Saturday or a holiday
by the on-call judge designated by the chief justice or chief judge.

In addition, courts of first instance are not required to sit between

30 June and 1 September, or between 20 December and 7 January. They are
nevertheless required to hear cases relating to personal integrity, status or
capacity or family matters, cases concerning a labour or leasing contract, cases
proceeding by default, incidental proceedings, proceedings concerning
provisional remedies or control measures, non-contentious demands or
applications and proceedings incidental to the execution of judgments. 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.

In all circumstances, habeas corpus demands, demands or applications

relating to personal integrity and demands or applications identified as urgent
by law or considered urgent by the chief justice or chief judge have priority,
in that order, over any other.

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83.  A time limit fixed by this Code, set by the court or agreed by the parties
for the performance of an act or of a formality runs as of the act, event, decision
or notification that gives rise to the time limit.

A time limit is counted by whole day or, if applicable, by month. If the time
limit is expressed in days, the day that marks the start is not counted but the
terminal day is. If the time limit is expressed in months, it expires on the day,
in the last month, that bears the same calendar number as the day of the act,
event, decision or notification having given rise to the time limit; if there is no
such calendar number in that month, the time limit expires on the last day of
the month.

A time limit expires at 12 midnight on the last day; a time limit that would
normally expire on a Saturday or a holiday is extended until the following
working day.

If a time limit is five days or less, Saturdays and holidays are not counted.

84.  A time limit described by this Code as a strict time limit cannot be
extended unless the court is convinced that it was impossible in fact for the
party concerned to act sooner. If the court considers it necessary, any other
time limit may be extended or, in an urgent situation, shortened by the court.
When the court extends a time limit, it may relieve a party from the consequences
of failing to comply with the original time limit.

In first instance, the parties may agree on time limits other than those
prescribed by this Code except in the case of strict time limits, those with which
the parties must comply in the interests of the proper administration of justice
and those established for the benefit of third persons.

CHAPTER II
INTEREST REQUIRED TO BRING PROCEEDINGS

85.  To bring a judicial demand, a person must have a sufficient interest.

The interest of a plaintiff who intends to raise a public interest issue is

assessed on the basis of whether the interest is genuine, whether the issue is a
serious one that can be validly resolved by the court and whether there is no
other effective way to bring the issue before the court.

CHAPTER III
REPRESENTATION BEFORE COURTS AND CAPACITY TO ACT

86.  The right to act before the courts in order to represent a person before
the courts is reserved to lawyers. However, notaries may do so in non-
contentious proceedings and in the other cases specified in paragraph 7 of
section 15 of the Notaries Act (chapter N-3).

29
87.  The following are required to be represented before the courts by a
lawyer in contentious proceedings, and by a lawyer or a notary in non-
contentious proceedings:

(1)  representatives, mandataries, tutors and curators and other persons acting
on behalf of another person who, for serious reasons, cannot act on their own
behalf;

(2)  in a class action, the representative plaintiff or any person applying to

act in that capacity;

(3)  legal persons, other than a legal person established for a private interest
having not more than five persons bound to it by an employment contract which
gives an express mandate to one of its directors to represent it;

(4)  general or limited partnerships and associations within the meaning of

the Civil Code, unless all the partners or members act themselves or mandate
one of their number to act;

(5)  the Public Curator, guardians and sequestrators;

(6)  liquidators, trustees and other representatives of collective interests when

acting in that capacity;

(7)  purchasers of accounts and collection agents.

88.  Persons and groups, including partnerships and associations not endowed
with juridical personality, may be represented by a mandatary other than a
lawyer for the recovery of small claims under Title II of Book VI, in accordance
with the rules of this Code.

Legal persons and groups may be represented by such a mandatary for the
purpose of participating in the distribution of money derived from an execution
measure.

89.  Tutors, curators and other representatives of persons who are unable to
fully exercise their rights act in their own name and capacity. The same applies
to administrators of the property of others as regards their administration, and
to mandataries as regards the fulfillment of a protection mandate.

90.  Whether in a contentious or non-contentious proceeding, the court, even

on its own initiative, may order representation if the court considers it necessary
to safeguard the rights and interests of a minor or those of a person of full age
not represented by a tutor, a curator or a mandatary and considered incapable
by the court.

91.  Two or more persons who have a common interest in a dispute may
mandate one of them to act in a proceeding on their behalf. The mandate must
be mentioned in the originating demand or in the defence.

30
 The mandators are solidarily liable with the mandatary for the legal costs.
The mandate is not affected by the death or change of status of any mandator,
and cannot be revoked except with the authorization of the court.

92.  An irregularity resulting from failure to be represented, assisted or

authorized has no effect unless it is not remedied, and this may be done
retroactively at any stage of a proceeding, even in appeal.

CHAPTER IV
DESIGNATION OF PARTIES

93.  Parties are designated by their name and, when they are not acting in a
personal capacity, by the capacity in which they are acting or, in the case of
public office holders, by their official title if it is sufficient to identify them.

Legal persons and general or limited partnerships are designated by the name
under which they were constituted or by which they identify themselves, and
by their juridical form. Syndicates of co-owners and associations and other
groups not endowed with juridical personality may be designated by the name
by which they are generally known; if the name of a syndicate of co-owners
is not known, it may be designated by the address of the building.

94.  A party whose name is unknown or uncertain is sufficiently designated

by a name that clearly identifies it.

If the subject matter of the demand is a bill of exchange or other private

writing, a party is sufficiently designated by the name or initials appearing on
the writing.

95.  If a party’s domicile or residence must be stated, but is unknown, the

party’s last known residence is sufficient. In the case of a legal person, a group
or an office holder, the principal establishment or any other known establishment
or a professional or other business address may be stated instead of the domicile.

96.  A demand pertaining to the rights and obligations of the Government

must be directed against the Attorney General of Québec.

A demand pertaining to the rights and obligations of a public body or of a

public officer or office holder who is called on to make changes to an act or a
register must be directed against the body or person concerned.

97.  A demand pertaining to the rights and obligations of the heirs, legatees
by particular title and successors of a deceased person must be directed against
the liquidator of the succession. However, if the liquidator is unknown or cannot
be identified in a sufficient time, the heirs, legatees and successors may be
collectively designated as a party, without specifying their names or residence.

31
 Heirs and legatees by particular title of a person whose succession opened
outside Québec who have not registered a declaration of transmission in
accordance with article 2998 of the Civil Code may be sued and designated
collectively in any immovable real action relating to the succession.

98.  A demand pertaining to certain and determinate property must describe

the property in such a manner as to clearly distinguish it from other property.

A demand pertaining to an immovable must designate the immovable in

accordance with the book of the Civil Code governing the publication of rights.

CHAPTER V
PLEADINGS

DIVISION I
FORM AND CONTENT OF PLEADINGS

99.  A pleading must specify its nature and purpose and state the facts on
which it is based and the conclusions sought. It must also state anything which,
if not alleged, could take another party by surprise or raise an unexpected
debate. The statements it contains must be clear, precise and concise, presented
in logical order and numbered consecutively.

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.

The author of a pleading must be identified by means of the author’s

signature, or that which serves the purpose of a signature as provided in the
Act to establish a legal framework for information technology (chapter C-1.1).

100.  An originating demand, whether in a contentious or non-contentious

case, is filed with the court in writing by the plaintiff or, as applicable, by the
plaintiff’s lawyer or notary. In addition to the parties’ names, it must state the
plaintiff’s domicile or residence, as applicable, and the last known residence
of the other parties, and indicate, if applicable, in what capacity a person is a
party to the proceeding if not in a personal capacity.

101.  An application in the course of a proceeding may be filed in writing

or presented orally and informally; if it concerns a case management measure
or if the judge so requires or the judge and the parties so agree, it may also be
set out in a note, a letter or a notice. If it is in writing, the application 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 before its presentation. If it
is presented orally, this must be done before the court in the presence of the
other parties.

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 Such an application filed in writing that is grounded on facts not supported
by evidence filed in the record must be supported by an oath sworn by the
person alleging the facts.

Such an application can only be contested orally, unless written contestation

is authorized by the court. During the hearing, any party may submit relevant
evidence.

102.  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.

103.  In their pleadings, lawyers, notaries and court 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.

104.  Model pleadings and documents established by the Minister are posted
on the Ministère de la Justice website.

DIVISION II
SWORN PLEADINGS

105.  Whenever the law requires that a pleading be supported by an oath,

the oath is sworn by the party or, in the case of a legal person, a general or
limited partnership, or an association within the meaning of the Civil Code,
by a specially authorized director or officer. Whenever the law requires or
allows a sworn written statement as evidence, the oath is sworn by a person
who can attest to the truth of the facts alleged in the statement.

The pleading or statement 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 concerning the facts whose
truth they attested to; if the person refuses to submit to such an examination
without valid cause, the pleading or statement is rejected. If the pleading,
attestation or statement is deemed by law to be sworn, the person who attested
to the truth of the facts alleged in the pleading or made the written statement
may be so examined.

106.  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

33
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 the giving of evidence by witnesses.

DIVISION III
FILING OF PLEADINGS AND DOCUMENTS

107.  An originating demand 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 demand may be set down for trial or judgment unless the
plaintiff has first filed proof of notification; an originating demand 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.

108.  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 or filed under seal.

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 exhibits are destroyed by
the court clerk 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.

34
 Exhibits filed in reviewable or reassessable matters and, in non-contentious
cases, notices, certificates, minutes, inventories, medical and psychosocial
evidence, statements, declarations and documents made enforceable by a
judgment cannot be removed from the record or destroyed.

CHAPTER VI
NOTIFICATION OF PLEADINGS AND DOCUMENTS

DIVISION I
GENERAL RULES

109.  The purpose of notification is to bring a document, whether an

originating demand 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.

110.  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 or by courier or any other
carrier, by technological means or by public notice. However, if the context
does not require such proof, notification may be made by any means of
communication.

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.

111.  Notification of a pleading by bailiff or by courier may only be made

on days other than holidays, between 7 a.m. and 9 p.m. Notification of pleadings
between lawyers, notaries and bailiffs cannot be made on Saturdays, on holidays
or after 5 p.m. except with their consent.

Notification by a technological means on a Saturday or on a holiday or after

5 p.m. is deemed to have been made at 8 a.m. on the next working day.

112.  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 authorization of the court may be obtained in the district where the
notification is to be made, the district of the court that is seized of the matter

35
or the district of the notifier’s residence or, for service of a notice of appeal, in
the district where the judgment of first instance was rendered.

In notification matters, the court clerk may exercise the powers conferred
on the court.

113.  Notification by a lawyer, a notary or a bailiff to a correspondent who

is a lawyer, a notary or a bailiff may be made by any means of communication
and the correspondent’s signature is proof of the authenticity of the document.

114.  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.

115.  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.

DIVISION II
SERVICE OR NOTIFICATION BY BAILIFF

§1. — General provisions

116.  Service or notification by bailiff is made by delivering the document

to the addressee personally or, if this cannot be done, by leaving it at the
addressee’s domicile with a person capable of receiving it. If the document is
not left with the addressee personally or at the addressee’s domicile, 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.

117.  A bailiff may serve a document anywhere in Québec. However, if there

is no bailiff firm in a radius of 75 kilometres from the place of service, service
may be made either by a person of full age residing within that radius and
designated by the bailiff to act in the bailiff’s name and under the bailiff’s
authority, or by any other method of notification best allowing the addressee
to be reached. In the latter case, notification is made by delivering the document
to the addressee in exchange for a receipt.

36
 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-4.1).

118.  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.

119.  Service is proved by a certificate of service drawn up by the bailiff

under their oath of office.

The certificate of service must mention

(1)  the court record number and the parties’ names;

(2)  the nature of the document;

(3)  the place, date and time of service;

(4)  the name of the person to whom the document was delivered and, if not
the addressee, the person’s capacity, or the place where the document was left,
if applicable;

(5)  if such is the case, the fact that the addressee refused to accept service
or that the attempt to serve the document was unsuccessful; and

(6)  the amount of the professional fees and costs.

The bailiff may correct a clerical error in the certificate of service at any
time before it is filed with the court office.

120.  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.

§2. — Personal notification

121.  Service of an originating demand must be made on the addressee

personally if the addressee is 14 years of age or older and the demand pertains
to their personal integrity, status or capacity. The same applies if the addressee

37
is summoned to answer a contempt of court charge or is imprisoned or otherwise
confined against their will, or if their true identity is unknown or uncertain.

122.  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.

123.  In the case of a document other than an originating demand, if there

is a risk that personal notification could worsen the addressee’s physical or
psychological condition, the court may authorize the delivery of the document,
in a form that protects its confidentiality, to an authorized person within the
health or social services institution or to the person in charge of the place where
the addressee is, or to any other person designated by the court.

By way of exception, the court, if it considers that notification of a demand

concerning a person’s confinement in a health or social services institution for
or after a psychiatric assessment would be harmful to the health or safety of
the person concerned or of another person, or in an urgent situation, may exempt
such a demand from notification.

§3. — Notification through intermediary

124.  Notification to a natural person is made by leaving the document at

the addressee’s domicile or residence in the care of a person who resides or
works there and appears to be capable of receiving the document; if this cannot
be done, notification may be made by leaving the document at the addressee’s
business establishment or place of work in the care of the person in charge of
the premises, or by leaving it at the addressee’s elected domicile or with a
person designated by the addressee.

If the addressee’s place of work is a means of transportation such as a ship,

an airplane or a bus, the document may, if need be, be notified by a technological
means.

125.  Notification to a legal person or an enterprise is made at its head office

or, if the head office is outside Québec, at one of its establishments in Québec,
by leaving the document in the care of a person who appears to be in a position
to give it to an officer or director or an agent of the legal person or enterprise.
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, an association

or a 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.

38
 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.

126.  Notification to the Attorney General of Québec is made at the Québec

or Montréal office of the legal department of the Ministère de la Justice by
leaving the document in the care of the person in charge of the premises.

127.  Notification to the liquidator of a succession is made in the same

manner as to any other natural person; if the liquidator is unknown or resides
outside Québec, notification may be made to one of the heirs.

Notification to heirs and legatees by particular title collectively designated

as a party is made by leaving the document at the deceased’s last domicile; if
that domicile is outside Québec or is closed, or if no member of the deceased’s
family is to be found there, notification may be made to one of the heirs or
legatees by particular title.

128.  Notification may be made to a person designated by the addressee or

at the addressee’s elected domicile. If the addressee has no domicile, residence
or business establishment in Québec, notification may be made at the firm of
the lawyer representing the addressee or of the notary acting for the addressee.

§4. — Notice of visit

129.  A bailiff who has been unable to deliver a document to the addressee
or to an intermediary leaves a notice of visit, in a sealed envelope, at the
addressee’s domicile, residence or business establishment, informing the
addressee of the unsuccessful delivery attempt and specifying the nature of the
document, the notifier’s name and the place where the addressee can take
delivery of the document.

The notice may be left in the addressee’s mailbox or in a place accessible

only to the addressee or, failing that, in a place where it will be plainly visible;
it may instead be left with the owner, administrator or manager of the building.
In all cases, the owner, administrator or manager is required to co-operate with
the bailiff by providing access to an appropriate place.

Alternatively, the notice may be sent by a technological means.

DIVISION III
OTHER METHODS OF NOTIFICATION

§1. — Notification by mail

130.  Notification by mail is made by sending the document to the addressee’s

last known residential address; if the place of residence is unknown, the

39
document may be sent to the addressee’s known place of work. A document is
considered to be mailed by registered mail if the delivery or receipt of the
document is recorded.

131.  Notification by registered mail is proved by the delivery notice or the

receipt notice presented by the letter carrier at the time of delivery. Failing that,
it is proved by the sender’s declaration that the document was sent, with a
reference to the delivery or receipt status.

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.

§2. — Notification by delivery of document

132.  Notification by courier or by any other carrier is made by delivering

the document to the addressee personally, to the addressee’s representative, to
a person capable of receiving it or to a person in a position to give it to the
addressee. 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.

The notification is made according to the notifier’s instructions and in

exchange for a receipt, which is proof of the date on which the notification is
deemed to have been made.

§3. — Notification by technological means

133.  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.

However, notification by a technological means to a party not represented

by a lawyer or a notary is permitted only with the party’s consent.

134.  Notification by a technological means is proved by the transmission

slip or, failing that, by a sworn statement 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.

§4. — Notification by public notice

135.  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

40
unsuccessfully to serve a document and has recorded that fact in the certificate
of service.

136.  Notification by public notice is made by publishing the document or

a summary of it by any means likely to reach the person concerned, such as
by posting it on a website recognized by an order of the Minister of Justice or
by publishing it in, or posting it on the website of, a newspaper circulated in
the municipality of the person’s last known address or the municipality where
the immovable that is the subject of the dispute is situated.

A document posted on a website must remain posted for at least 30 days,

while a document published in hard copy in a newspaper must be published
once only, in French; however, if required by the circumstances, the court may
order that a document be published in a newspaper more than once or that it
be also published in English.

137.  A public notice concerning an originating demand must direct the

defendant to take delivery of the demand at the court office within 30 days or
any other time specified, and must mention that its publication is by court order
or on the bailiff’s request.

138.  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.

DIVISION IV
NOTIFICATION OF CERTAIN PLEADINGS

139.  An originating demand must be served by bailiff. The same applies

to other pleadings required to be served under this Code or another law.

Documents that must be served include

(1)  subpoenas to witnesses;

(2)  cross-demands and intervention statements;

(3)  formal notices for the determination of boundaries;

(4)  judgments granting an injunction or containing any other order to do or

not do something;

(5)  notices of appeal, applications for leave to appeal and applications for
revocation of a judgment; and

41
 (6)  in execution matters, notices of execution, oppositions to seizure or sale,
and applications for the annulment of a seizure or sale.

However, a demand that impleads the Public Curator, the registrar of civil
status, the land registrar, the personal and movable real rights registrar or the
Agence du revenu du Québec may be notified to them otherwise than by service.
The same applies to demands and other pleadings under Title II of Book VI.

140.  An originating demand 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.

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BOOK II
CONTENTIOUS PROCEEDINGS

TITLE I
INITIAL STAGES OF PROCEEDING

CHAPTER I
JUDICIAL DEMAND

141.  In a contentious case, a judicial demand 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.

142.  Even in the absence of a dispute, a judicial demand 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.

143.  Two or more subject matters or claims may be joined in the same
judicial demand, provided the conclusions sought are compatible. In family
matters, the conclusions of the demand may pertain to provisional measures,
to claims for custody or support or to the principal claim.

Two or more plaintiffs may join their claims and conclusions in the same
demand 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 demand to the issue of law which is
likely to cause a dispute between them.

144.  A plaintiff cannot divide a debt that is due for the purpose of claiming
payment by means of more than one demand.

CHAPTER II
SUMMONS AND DEFENDANT’S ANSWER

145.  The plaintiff summons the defendant before justice by means of a

summons attached to the demand. The summons includes a list of the exhibits
in support of the demand and informs the defendant that they are available on
request.

The defendant must answer the demand within the following 15 days, failing
which a default judgment may be rendered and the legal costs awarded against
the defendant.

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146.  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 demand within 15 days after its service.

As well, the summons mentions that the defendant may contact the court
office to request that the demand be processed according to the rules of Title II
of Book VI relating to the recovery of small claims, provided the defendant
would qualify to act as plaintiff under those rules. It further states that if the
defendant requests that the demand be so processed, the plaintiff’s legal costs
will not exceed those prescribed for the recovery of such claims.

It also sets out the options available to the defendant in answering the
summons.

147.  In the answer to the summons, the defendant states their intention to
either negotiate a settlement or defend the demand and establish a case protocol
with the plaintiff. The defendant may also propose mediation or a settlement
conference. The answer to the summons must include the defendant’s contact
information and, if the defendant is represented by a lawyer, the lawyer’s name
and contact information.

The answer is notified to the plaintiff or the plaintiff’s lawyer, and filed with
the court office whose contact information is given in the summons. If two or
more defendants have been summoned, the plaintiff is required to inform all
the parties of the answers received and of the names of the lawyers of all other
parties.

CHAPTER III
CASE MANAGEMENT

DIVISION I
CASE PROTOCOL

148.  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, describe the steps to
be taken to ensure the orderly progress 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.

The case protocol covers such aspects as

(1)  preliminary exceptions and safeguard measures;

44
 (2)  the advisability of holding a settlement conference;

(3)  pre-trial written or oral examinations, their necessity and, if any are to
be conducted, their anticipated number and length;

(4)  the advisability of seeking one or more expert opinions, the nature of
the opinion or opinions to be sought and the reasons why the parties do not
intend to jointly seek expert opinion, if that is the case;

(5)  the defence, whether it will be oral or written and, if written, the time
limit for filing it;

(6)  the procedure and time limit for pre-trial discovery and disclosure;

(7)  foreseeable incidental applications; and

(8)  the extension of the time limit for trial readiness, if an extension proves
necessary.

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.

149.  A case protocol agreed between the parties’ lawyers must be notified
to the parties unless they have signed it.

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.

150.  Within 15 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 15-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.

151.  A person impleaded by the demand may participate in the establishment

of the case protocol. To do so, the person must inform the parties within 15 days

45
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.

152.  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.

153.  Given the nature, character or complexity of a case, the chief justice
or chief judge may order case management to ensure the orderly progress of
the proceeding as soon as it is commenced and even before the case protocol
is filed.

DIVISION II
CASE MANAGEMENT CONFERENCE

154.  At the case management conference convened on the court’s own

initiative or on request, the court acquaints itself with the issues of fact or law
in dispute, examines the case protocol, discusses it with the parties and takes
the appropriate case management measures. 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.

155.  At the case management conference, the court may decide to hear the
parties, in open court, 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.

46
156.  If the court tries the demand on the same day as the case management
conference, the parties prove their cases by means of sworn statements if the
law so requires or permits. They may also present any other evidence, be it
oral or documentary.

157.  By way of exception, if it is shown to the court that the demand 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, the court may stay the proceeding for the time it determines. It
may lift the stay on a party’s request if it considers that the grounds for the
stay no longer exist.

DIVISION III
SPECIAL CASE MANAGEMENT

158.  Given the nature, character or complexity of a case, the chief justice
or chief judge may, on their own initiative or on request, order special case
management at any time to ensure the orderly progress of the proceeding, and
assign a judge as special case management judge. The special case management
judge is responsible, throughout the proceeding, for deciding all incidental
applications, convening a case management conference and a pre-trial conference
if expedient, 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 demand.

DIVISION IV
CASE MANAGEMENT MEASURES

159.  For case management purposes, at any stage of a proceeding, the court
may decide, on its own initiative or on request, to

(1)  take measures to simplify or expedite the proceeding and shorten the
trial by ruling, among other things, on the advisability of ordering the
consolidation or separation of proceedings or the splitting of the proceeding,
of better defining the issues in dispute, of amending the pleadings, of limiting
the length of the trial, of admitting facts or documents, of authorizing sworn
statements in lieu of oral evidence or of determining the procedure and time
limit for the disclosure of exhibits and other evidence between the parties, or
by convening the parties to a case management conference or a settlement
conference, or encouraging them to use mediation;

(2)  assess the purpose and usefulness of seeking expert opinion, whether
joint or not, determine the mechanics of that process as well as the anticipated
costs, and set a time limit for submission of the expert report; if the parties
failed to agree on joint expert evidence, assess the merits of their reasons and
impose joint expert evidence if it is necessary to do so to uphold the principle

47
of proportionality and if, in light of the steps already taken, doing so is
conducive to the efficient resolution of the dispute without, however, jeopardizing
the parties’ right to assert their contentions;

(3)  determine terms for the conduct of pre-trial examinations, if such

examinations are required, including their number and their length when it
appears necessary to exceed the time prescribed by this Code;

(4)  order notification of the demand to persons whose rights or interests

may be affected by the judgment, or invite the parties to bring a third person
in as an intervenor or to implead a third person if the court considers that that
person’s participation is necessary in order to resolve the dispute and, in family
or personal status or capacity matters, order the production of additional
evidence;

(5)  rule on any special requests made by the parties, modify the case protocol
or authorize or order provisional measures or safeguard measures as it considers
appropriate;

(6)  determine whether the defence is to be oral or written;

(7)  extend the time limit for trial readiness; or

(8)  issue a safeguard order, effective for not more than six months.

The court’s decisions are recorded in the minutes of the hearing and are
considered to be part of the case protocol. Unless revised by the court, they
govern the conduct of the proceeding together with the case protocol.

160.  If the court orders the appointment of a lawyer to represent a minor

or an incapable person of full age not represented by a tutor, a curator or a
mandatary, it rules, if need be, on the lawyer’s fee, which is borne either by
the minor’s father and mother, or by the incapable person.

In the case of an incapable person of full age not represented by a tutor, a

curator or a mandatary, the court may, on its own initiative, order that the
demand be notified to the incapable person’s spouse, to a close relative, a person
who shows a special interest in the incapable person or to the Public Curator.

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.

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CHAPTER IV
SETTLEMENT CONFERENCE

161.  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.

162.  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.

163.  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.

164.  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.

165.  If a settlement is reached, the judge may, on an application, homologate

the transaction.

If no settlement is reached, the judge may take the appropriate case

management measures or, with the parties’ consent, convert the settlement
conference into a case management conference. The judge cannot, however,
subsequently try the case or decide any incidental application.

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CHAPTER V
DEFENCE

DIVISION I
PRELIMINARY EXCEPTIONS

§1. — General provisions

166.  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. This may be done even before the time limit for filing the
case protocol, but must be done at least three days before the date set by the
court for the case management conference on the case protocol, if such a
conference is to be held.

§2. — Declinatory exception

167.  If a demand 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.

§3. — Exception to dismiss

168.  A party may ask that a demand or a defence be dismissed if

(1)  there is lis pendens or res judicata;

(2)  one of the parties is incapable or does not have the necessary capacity
to act; or

(3)  one of the parties clearly has no interest.

The party may also ask that a demand or a defence be dismissed if it is

unfounded in law whether or not the facts alleged are true. Such an exception
may pertain to only part of the demand 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 demand or defence is dismissed.

The dismissal of a demand may be urged even if the exception to dismiss

was not raised before the first case management conference.

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§4. — Other exceptions

169.  A party may apply to the court for any measure conducive to the
orderly progress of the proceeding.

A party may also apply to the court for an order directing another party to
clarify allegations made in the demand 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 demand or the defence
being dismissed or the allegations in question being struck.

DIVISION II
DEFENCE ON MERITS

170.  Defending a demand, 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 demand. In its defence, a party may allege any
material facts, even material facts that have arisen since the demand 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. 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.

171.  The defence is to be oral in all instances where the case does not
present a high level of complexity or it is desirable that it be decided promptly.
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 performed or the sole determination of an
amount of money due under a contract or as reparation for proven injury.

172.  In the defence, the defendant may make a cross-demand against the
plaintiff to assert a claim arising from the same source as the demand or from
a related source. The court remains seized of the cross-demand despite
discontinuance of the demand.

A cross-demand is made in writing but defended orally, unless the court, on

its own initiative, requires that it be defended in writing.

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CHAPTER VI
READINESS FOR TRIAL AND SETTING DOWN FOR TRIAL
AND JUDGMENT

173.  The plaintiff is required to ready the case for trial within six months
after the case protocol is filed or the subsequent case management conference
is held and to file a request with the court office, before the expiry of that strict
time limit, to have the case set down for trial and judgment. In family matters,
the time limit is one year.

Nevertheless, if warranted by the complexity of the case or by special

circumstances, the court may extend the time limit at the 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 45-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 demand. 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.

174.  A request for setting down for trial and judgment is made by means
of a joint declaration by the parties stating that the case is ready for trial and
containing

(1)  the name of each party and, if the party is represented, its lawyer’s name,
as well as their contact information;

(2)  a list of the exhibits and other evidence disclosed between the parties;

(3)  a list of the witnesses each party intends to call and a list of those whose
evidence it intends to present in the form of sworn statements, unless there is
valid cause not to disclose their identities;

(4)  a list of the facts that are admitted;

(5)  a list of the points to be determined by experts; and

(6)  an estimate of the length of the trial.

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.

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175.  If the defendant fails to answer the summons and the plaintiff so
requires, the court clerk sets the case down for judgment. If the defendant fails
to attend the case management conference or to file a defence within the time
limit set in the case protocol, the case is set down for judgment on an order of
the court.

In such instances, the plaintiff must file the exhibits and the plaintiff’s own
sworn statement with the court office.

176.  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.

177.  A plaintiff who fails to file a request for setting down within the strict
time limit is presumed to have discontinued the demand, 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.

178.  Once the case has been set down for trial, a notice of the scheduled
trial date is notified by the court clerk to the parties and their lawyers unless a
trial date was set by the court or with the parties’ consent. 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 clerk’s register.

The fact that a party did not receive the notice is not grounds for postponing
the trial if its lawyer received it.

CHAPTER VII
PRE-TRIAL CONFERENCE

179.  Once a case has been set down, the judge who is to preside over the
trial, or any other judge designated by the chief justice or chief judge, may, on
the judge’s own initiative or on request, convene the lawyers to discuss
appropriate means of simplifying and shortening the trial and to determine, if
applicable, the order in which the evidence is to be presented and any particulars
relating to witness evidence.

The lawyers must, on the judge’s request, provide any exhibits or other
evidence not already filed in the record that they intend to produce as evidence
during the trial.

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 The agreements and decisions made during the pre-trial conference are
recorded by the judge in the minutes of the conference and are binding on the
parties during the trial.

CHAPTER VIII
PROCESSING OF CASE SET DOWN FOLLOWING DEFENDANT’S
DEFAULT

180.  If a case has been set down following the defendant’s failure to answer
the summons, the plaintiff may obtain judgment without further delay or notice.
However, if the failure is attributable to the Attorney General, the plaintiff must
give the Attorney General at least one month’s notice before filing the request
for setting down.

If a case has been set down following the defendant’s failure to attend the
case management conference without valid cause or to defend the demand
within the time limit set in the case protocol, the plaintiff must give the
defendant at least five days’ advance notice before the case proceeds to trial.

181.  In default proceedings, the special clerk may render judgment if the
sole subject matter of the demand is the price of a service contract or the sales
price of movable property; the special clerk may also render judgment if the
demand seeks payment of an amount of money clearly stated in an authentic
act or private writing.

The special clerk renders judgment on the face of the demand, the exhibits
supporting the plaintiff’s claims and a sworn statement by the plaintiff attesting
that the amount claimed is owed to the plaintiff.

182.  When the presentation of evidence is necessary, the special clerk

receives the evidence, which may be adduced solely in the form of sworn
written statements.

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 and the parties consent. The witnesses’
depositions are sound-recorded, unless waived by the parties.

183.  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 demand or to avoid conflicting judgments, it orders the proceeding to
continue against all of them in accordance with the case protocol.

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TITLE II
INCIDENTAL PROCEEDINGS

CHAPTER I
INTERVENTION OF THIRD PERSONS IN PROCEEDING

DIVISION I
GENERAL PROVISIONS

184.  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.

DIVISION II
VOLUNTARY INTERVENTION

185.  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.

186.  A third person who wishes to intervene for conservatory or aggressive

purposes notifies an intervention statement to the parties, setting out the person’s
interest in the case and claims, the conclusions sought and the facts justifying
such conclusions. The intervention statement 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. If no opposition is notified, the third person’s interest is
presumed to be sufficient and the proposed intervention procedure to be
accepted on the filing of the intervention statement with the court office. If
opposition is notified, the third person presents the intervention statement

55
before the court in order to obtain a ruling on the person’s interest and the
intervention procedure.

187.  A third person seeking only to participate in argument during the trial
must obtain authorization from the court. The person must file an intervention
statement setting out the purpose of and grounds for the intervention and notify
it to the parties at least five days before the date the demand for authorization
is to be presented before the court.

After hearing the third person and the parties, the court may grant authorization
if it is of the opinion that the intervention is expedient; in making its decision,
the court considers the importance of the issues in dispute, particularly in
relation to the public interest, and the usefulness of the third person’s
contribution to the debate.

DIVISION III
FORCED INTERVENTION

188.  A third person is impleaded by service of an intervention statement

setting out the grounds justifying the forced intervention of that third person
as a party, together with the judicial demand. The intervention statement must
also propose an intervention procedure, with due regard for the case protocol.

189.  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 legal 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 demand brought against the
latter, if the person sees fit.

A third person called in legal 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 legal warrantor is enforceable against the plaintiff in warranty after
it is notified to the latter.

190.  The demand 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
demand and the recourse in warranty are tried together and a single judgment
decides them both.

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CHAPTER II
INCIDENTAL PROCEEDINGS RELATING TO PARTIES’ LAWYERS

191.  A party may ask, in the course of a proceeding, that its lawyer be
disavowed and that acts that exceeded the scope of that lawyer’s mandate be
repudiated. 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

demand. Execution of the judgment is not stayed unless the court so orders.

If the disavowal is held to be well-founded, the lawyer ceases to represent

the party, the repudiated acts are annulled and the parties, restored to their
former state.

192.  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 demand be dismissed.

A party represented by a lawyer is deemed to have been informed of another

party’s lawyer’s death, disqualification or appointment to a public office that
is incompatible with practice as a lawyer, without notification of the death,
disqualification or appointment being necessary.

193.  On a party’s application, a lawyer may be declared disqualified to act

in a proceeding, as when the lawyer is in a conflict of interest situation and
does not take steps to remedy it, has disclosed or is called on to disclose
confidential information to another party or a third person, or is called as a
witness in the proceeding on essential facts. In the latter case, the lawyer may
only be declared disqualified for serious cause.

194.  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.

57
195.  If parties joined as plaintiffs in a demand 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.

CHAPTER III
CONTINUANCE OF PROCEEDING

196.  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.

197.  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.

198.  A proceeding may be continued by a person who, as a result of a

party’s change of status or capacity or loss of capacity, has acquired the capacity
and the interest required to continue the proceeding.

A proceeding may also be continued by the person succeeding to a party’s

functions, by the liquidator of the succession or the heirs of a deceased party
or by a successor who has acquired the right that is the subject matter of the
dispute.

199.  Heirs who are parties to a proceeding are required to notify the
liquidator’s name, address and other contact information to the other parties
as soon as the liquidator takes charge of the succession.

Pleadings filed before the notification are valid, unless the court decides
otherwise on the liquidator’s request. Those filed after the notification are
without effect and the proceeding is stayed until continued by the liquidator.

200.  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.

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 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 demand be dismissed.

CHAPTER IV
RECUSATION

201.  A judge who considers that one of the parties may have serious reasons
to question the judge’s impartiality is required to declare as much to the chief
justice or chief judge without delay. In such a case, the chief justice or chief
judge designates another judge to continue or try the case and informs the
parties.

A party that has serious reasons to question the judge’s impartiality must
declare as much without delay in a written statement notified to the judge and
the other party. If the judge does not withdraw from the case within 10 days
after the notification, the 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.

202.  The following situations, among others, may be considered serious

reasons for questioning a judge’s impartiality and for seeking the judge’s
recusation:

(1)  the judge being the spouse of one of the parties or of the lawyer of one
of the parties, or the judge or the judge’s spouse being related by blood or
connected by marriage or civil union to one of the parties or to the lawyer of
one of the parties, up to the fourth degree inclusively;

(2)  the judge being a party to a proceeding pertaining to an issue similar to

the one before the judge for determination;

(3)  the judge having given advice or an opinion on the dispute or having
previously dealt with the dispute as arbitrator or mediator;

(4)  the judge having represented one of the parties;

(5)  the judge being a member of an association or a partnership, endowed

with legal personality or not, that is a party to the proceeding;

(6)  a serious conflict existing between the judge and one of the parties or
the lawyer of one of the parties, or threats or insults having been uttered between
them during the proceeding or in the year preceding the application for
recusation.

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203.  A judge who has an interest or whose spouse has an interest in a case
is disqualified and cannot hear the case.

204.  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.

205.  The application for recusation is decided by the presiding judge. 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
preside over 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.

CHAPTER V
INCIDENTAL PROCEEDINGS RELATING TO PLEADINGS

DIVISION I
WITHDRAWAL OR AMENDMENT OF PLEADING

206.  Before a case is taken under advisement, the parties may withdraw or
amend a pleading without it being necessary to obtain an authorization, 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 demand 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 demand.

207.  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 demand before the court for a
decision.

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 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 demand
must be notified to that party without delay.

208.  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.

DIVISION II
DETERMINATION OF ISSUE OF LAW

209.  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.

DIVISION III
CONSOLIDATION AND SEPARATION OF PROCEEDINGS

210.  Even when the demands 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.

When demands have been joined in the same proceeding, the court, if it
considers it advisable in order to protect the parties’ rights, may order that they
be separated and dealt with in different proceedings.

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DIVISION IV
SPLITTING OF PROCEEDING

211.  The court, even on its own initiative, may split a proceeding if it thinks
it advisable in order to protect the parties’ rights. The resulting demands are
tried before the same judge, unless the chief justice or chief judge decides
otherwise.

DIVISION V
STAY OF PROCEEDING

212.  If the Court of Québec is seized of a demand having the same juridical
basis or raising the same issues of law and fact as a demand instituted before
the Superior Court, it may, even on its own initiative, stay the proceeding,
provided this does not result in serious prejudice to the other parties.

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.

CHAPTER VI
INCIDENTAL PROCEEDINGS THAT TERMINATE PROCEEDING

DIVISION I
DISCONTINUANCE

213.  Discontinuance by the plaintiff of the whole of a judicial demand

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.

214.  If one of the plaintiffs in a joint demand discontinues it, the other
plaintiff may continue the proceeding alone. In such a case, the judicial demand
is amended accordingly and notified to the other parties, and the proceeding
is continued in accordance with the rules applicable to any demand.

DIVISION II
TENDER AND DEPOSIT

215.  A party to a proceeding may make or renew a tender and confirm it

in a judicial declaration, which is recorded.

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 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.

216.  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-29.01). 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-26) other than as a term deposit which would not be repayable at
all times 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.

DIVISION III
ACQUIESCENCE IN DEMAND

217.  The defendant or the defendant’s specially authorized mandatary may

acquiesce in all or part of the demand at any stage of the proceeding.

A notice of acquiescence is filed with the court office and notified to the
plaintiff. If applicable, the mandatary’s special authorization must be attached.

218.  If acquiescence in the demand is unqualified, the court clerk renders

judgment immediately.

If acquiescence in the demand is qualified, the plaintiff must notify

acceptance or refusal to the defendant within 15 days after notification of the
notice of acquiescence. If the plaintiff accepts, the court clerk renders judgment
accordingly. If the plaintiff refuses, the proceeding continues, but the plaintiff
may nevertheless obtain judgment for the amount specified in the notice 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.

219.  If there are two or more defendants and only one or some of them file
a notice of acquiescence, the court may render judgment against the acquiescing
defendants, on notification of a notice to all the parties. Alternatively, the court

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may choose to continue the proceeding and render a uniform judgment with
respect to all the defendants, either because of the subject matter of the demand
or to avoid conflicting judgments.

DIVISION IV
SETTLEMENT

220.  The parties may terminate the proceeding by making a transaction,

whether they reach their agreement in or outside the presence of the court. In
the latter case, they must file a notice of settlement with the court office without
delay.

TITLE III
PRE-TRIAL DISCOVERY AND DISCLOSURE

CHAPTER I
PRE-TRIAL EXAMINATION

DIVISION I
GENERAL PROVISIONS

221.  A pre-trial examination, whether written or oral, may bear on any fact
that is relevant to the dispute and on the evidence supporting such facts; it may
also be for documentary disclosure purposes. Pre-trial examinations may be
conducted only if they are provided for in the case protocol and must be in
compliance with the terms, number and length specified in the case protocol.

Other than the parties, the following may be examined:

(1)  a representative, an agent or an employee of a party;

(2)  in a judicial demand in which a party’s civil liability is at issue, the

victim and any person involved in the injurious act or omission;

(3)  a person for whom a party acts as administrator of the property of others;

(4)  a person for whom a party acts as prête-nom or whose rights a party has
acquired by transfer, subrogation or other similar title.

Any other person may be examined with their consent and that of the other
party, or with the judge’s authorization, subject to the conditions the judge
determines. Neither a minor nor an incapable person of full age may be
examined without the judge’s authorization.

222.  When a party submits evidence given in a sworn statement, another

party may call the deponent to attend in order to be examined on that statement.

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The examination may pertain not only to evidence attested to in the statement
but also to any other relevant fact. If the deponent fails to attend, the statement
is rejected.

DIVISION II
WRITTEN EXAMINATION

223.  A party may notify to the other party a written examination on facts
relevant to the dispute, and require that other party to answer within a specified
time, which cannot be shorter than 15 days or longer than one month. A party
may also, after informing the other party, notify such an examination to any
other person that 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.

224.  The answers to a written examination are given in writing, under oath,
and signed by the party or person examined. They must be direct, categorical
and specific, failing which they may be rejected and the facts to which the
questions pertain, held to be proved.

If the party is a legal person, a general or limited partnership, or an association

within the meaning of the Civil Code, 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.

225.  If the party or person examined fails to answer the questions asked,
the facts on which the examination bears are held to be proved as far as that
party or person is concerned.

Nevertheless, the court, for valid cause, may relieve the party from the default
and allow the party to answer, subject to the conditions it sees fit. The court
may also ask any other questions considered necessary and relevant, which the
party must answer, failing which the facts to which the questions pertain are
also held to be proved.

DIVISION III
ORAL EXAMINATION

226.  A party intending to conduct an oral pre-trial examination must inform

the person it wishes to examine at least three days in advance, stating the reason
why they are called as a witness and the nature, subject, time and place of the
examination. If the parties have not reached an agreement on those points, the

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person is required to attend on the date and at the place specified in a subpoena,
which must be served at least five days before that date.

If the judicial demand 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.

227.  The deposition of the person examined is subject to the same rules as
oral evidence given at trial; it is sound-recorded, unless waived by the parties.

The deposition forms part of each party’s file, and the party that conducted
the examination may produce all or excerpts of it in evidence or not produce
it at all. 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.

228.  Before a pre-trial examination is held, the parties may submit the
objections they anticipate to a judge for a decision or for directives as to the
conduct of the examination.

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.

229.  No pre-trial examination is permitted where the amount claimed or

the value of the property claimed in the judicial demand is less than $30,000.

No pre-trial examination may last more than five hours, or in family matters
or cases where the value in dispute is less than $100,000, two hours. In the
course of the examination, the parties may agree to extend its length from five
to seven hours or from two to three hours. Any other extension requires the
authorization of the court.

230.  The court, on request, may terminate an examination that it considers

excessive or unnecessary and, on doing so, rule on the legal costs.

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CHAPTER II
EXPERT EVIDENCE

DIVISION I
WHEN EXPERT EVIDENCE MAY BE USED

231.  The purpose of expert evidence provided by a qualified expert in the

area or matter concerned is to enlighten the court and assist it in assessing
evidence.

To provide expert evidence is to give an expert opinion, taking into

consideration the facts relating to the dispute, on particulars relating to a
person’s personal integrity, status or capacity or adaptation to a given set of
circumstances, or on factual or real evidence; to determine or audit accounts
or other data; to give an expert opinion on the liquidation or partition of
property; or to ascertain the state or situation of certain premises or things.

232.  The parties agree on the need for expert evidence at the case protocol
stage or, with the authorization of the court, at any time before the case is ready
for trial.

The parties cannot seek more than one expert opinion, whether joint or not,
per area or matter, unless the court authorizes otherwise given the complexity
or importance of the case or the state of knowledge in the area or matter
concerned.

The parties are required to disclose to the court the instructions given to the
expert.

233.  In the case of joint expert evidence, the parties determine together
what parameters must be covered, what expert is to be appointed, what fee is
to be paid and how it is to be paid. If the parties fail to agree on any of those
points, the matter is decided by the court.

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.

234.  At any stage of a proceeding, if it considers that expert evidence is

necessary in order to decide the dispute, the court, even on its own initiative,
may appoint one or more qualified experts to provide such evidence. The court
defines the expert’s mission, gives the necessary instructions as to how it is to
be carried out, sets the time limit within which the expert must submit a report
and rules on the expert fee and its payment. The decision is notified to the
expert without delay.

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DIVISION II
EXPERTS’ DUTIES AND POWERS

235.  Experts are required to give an opinion on the points submitted to

them or, in the case of bailiffs, to make an ascertainment.

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.

236.  Court-appointed experts act under the court’s authority to gather the
evidence required to carry out their mission. They may examine any document
or thing, visit any premises and, with the authorization of the court, take
testimony under oath. They must preserve such testimony and certify its origin
and integrity.

Experts are required to give the parties at least five days’ notice of when and
where their operations are to begin.

237.  An expert who does not have the required qualifications or who is
seriously remiss in carrying out their mission may be replaced or disavowed
at a case management conference, on the court’s initiative or on a party’s
request.

DIVISION III
EXPERT REPORT

238.  An expert report must provide sufficient details and reasons to enable
the court to make its own assessment of the facts and conclusions. It must
include the instructions received from the parties or the court and set out the
analytical methodology used.

Any testimony taken by the expert is attached to the report and forms part
of the evidence.

The expert’s conclusions are not binding on the court or on the parties, unless
the parties declare that they accept them.

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239.  A joint or court-appointed expert submits an operations report, with
conclusions, to the parties and files a copy with the court office before the
expiry of the time limit given.

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.

240.  After the report has been filed but before the trial begins, the expert
must, if the court so requires or on the parties’ request, provide clarifications
on certain aspects of the report and meet the parties to discuss the expert’s
opinions ahead of the trial.

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.

241.  Before the trial begins, a party may apply for the dismissal of an expert
report on the grounds of irregularity, substantial error or bias, in which case
the application must be notified to the other parties within 10 days after the
party becomes aware of the grounds for dismissing the report.

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
another expert 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.

DIVISION IV
SPECIAL RULES APPLICABLE TO PHYSICAL, MENTAL OR
PSYCHOSOCIAL EXAMINATION

242.  A party, the person who is the subject of a demand or application

relating to personal integrity, status or capacity, or the person who suffered the
injury having given rise to the dispute cannot be required to undergo a physical
or mental examination unless their physical or mental condition must be
considered in order to rule on the matter. Even in such a case, the examination
must be warranted given the nature, complexity and purpose of the judicial
demand.

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.

69
243.  A party that requires a physical or mental examination or requests a
psychosocial examination must notify at least 10 days’ notice of the place, date
and time of the examination to the person concerned and the other parties’
lawyers. The party must give the person the name of the expert responsible for
conducting the examination and pay to the person in advance the indemnities
and allowances payable to a witness, unless the person is otherwise compensated.

The person, at their own expense, may be accompanied during the examination
by the expert of their choice.

244.  The court can, on an application, stop an examination from taking

place or change the conditions of an examination, despite an agreement between
the parties, if it considers it appropriate in order to protect the person’s right
to personal integrity and respect.

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.

245.  If necessary in order to determine the physical or mental condition of

a party or of the person who is the subject of the demand or who suffered the
injury having given rise to the dispute, the court may order the health and social
services institution holding the record of the person who is to undergo an
examination or whose death has given rise to a demand based on civil liability
to disclose that record to a party and allow the party to make a copy of the
information that is relevant as evidence.

CHAPTER III
DISCLOSURE AND FILING OF EXHIBITS AND OTHER EVIDENCE

DIVISION I
GENERAL PROVISIONS

246.  Unless otherwise determined by the court, the procedure and the time
limit for the disclosure of exhibits and other evidence between the parties must
be set out in the case protocol in compliance with the rules of this chapter.

If the case protocol sets out no such procedure or time limit, 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.

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DIVISION II
TIME LIMITS FOR DISCLOSURE AND FILING

247.  The exhibits in support of a judicial demand must be listed in the

summons to the defendant; those in support of a pleading must be listed in the
pleading or in a notice attached to it.

No notice is required if copies of the exhibits are delivered to the other parties
when the demand or the pleading is notified to them.

248.  A party in possession of evidence it intends to use at trial must send

it to the other parties with the declaration accompanying the request for setting
down for trial. The party is dispensed from doing so if the evidence is an exhibit
in support of a pleading or if the case protocol provides otherwise. In the case
of an oral defence, the evidence must be sent to other parties within 30 days
after the order to set down for trial is issued or the date of the trial is set, unless
the court determines another time limit.

A party that has failed to so disclose evidence cannot produce it at trial

except with the authorization of the court.

249.  A party that is unable, because of the circumstances or the nature of

an exhibit or other evidence, to deliver a copy to a party that requested one is
required to provide some other form of access to the exhibit or other evidence.

If the parties cannot agree, they may ask the judge to determine the procedure
and the time limit for such disclosure.

250.  Unless they have already been filed with the court office for the
purposes of the pre-trial conference, exhibits and other evidence must be filed
by the parties at least 15 days before the scheduled trial date, or at least three
days before that date if the trial is to be held within 15 days. However, in all
instances, the court may require that exhibits and other evidence be delivered
to it within the time it specifies.

When a case proceeds following the defendant’s default, exhibits and other
evidence must be filed with the court office with the request for setting down
for judgment.

DIVISION III
DOCUMENT OR REAL EVIDENCE IN POSSESSION OF PARTY
OR THIRD PERSON

251.  A third person holding a document relating to a dispute is required to

disclose it to the parties or produce it for their inspection on request.

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 A third person or a party in possession of real evidence is required to submit
it to an expert, if necessary, subject to the conditions agreed with the parties;
the person or party is also required to keep it or, if applicable, a suitable
representation that shows its current state, until the end of the trial.

In case of a refusal or disagreement, the court issues such orders as are

appropriate.

DIVISION IV
APPLICATIONS IN COURSE OF PROCEEDING

252.  In the course of the proceeding, any exhibits and other evidence used
by a party must be disclosed to the other party as soon as possible or, in the
case of real evidence, made available to the other party as soon as possible
before the hearing. Otherwise, the exhibits and other evidence cannot be
produced except with the authorization of the court.

CHAPTER IV
PRE-TRIAL DISCOVERY

DIVISION I
APPLICATIONS PRIOR TO PROCEEDING

253.  A person who expects to become a party to a dispute and has reason
to apprehend that some necessary evidence might be lost or become difficult
to produce may examine witnesses whom the person fears may be absent, may
die or may become incapacitated, or have a thing or property whose state may
affect the outcome of the dispute inspected. The person must obtain the consent
of the prospective plaintiff or defendant or the authorization of the court.

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.

254.  The application to the court must, in addition to stating the reasons
for the applicant’s apprehension, include the names and contact information
of all interested persons and of the witnesses to be heard, the facts that suggest
that a dispute may arise and a description of the nature of the potential dispute,
the facts to which the examinations will bear, the description and situation of
the thing or property to be inspected, the purpose of the inspection, and the
name and contact information of the person who is to make the inspection.

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.

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 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.

255.  If the application is granted, the parties agree on where and when the
witnesses will be heard or the thing or property inspected; how the thing or
property will be inspected is determined by the parties unless already determined
by the decision.

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.

256.  The depositions and expert reports are kept by each of the parties for
use by any of them in the proceeding in anticipation of which the discovery
was conducted. If a proceeding is commenced, the evidence gathered during
discovery does not prevent the witnesses or experts from being called to be
examined anew, nor does it adversely affect any grounds of objection that a
party may later wish to raise against the actual admissibility of the evidence
so gathered.

DIVISION II
PRE-TRIAL APPLICATIONS

257.  Before the trial begins, a party to the proceeding, with the authorization
of the court, may examine witnesses whom the party fears may be absent, may
die or may become incapacitated, or have a thing or property which may be
lost and whose state may affect the outcome of the dispute inspected by a
person of the party’s choice.

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.

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CHAPTER V
CONTESTATION OF EVIDENCE

DIVISION I
CONTESTATION OF AUTHENTIC ACT

258.  In the course of a proceeding, a party may ask that an authentic act
intended to be used at trial by that party or another party or already filed in the
record be declared a forgery.

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.

259.  Before raising the allegation of forgery, the party must notify a notice
to the other parties, asking them to declare whether or not they intend to use
the contested act.

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 a sworn
statement notified to all the parties and to the public officer who is in possession
of the original of the act. The statement must be accompanied by a certificate
of the court clerk attesting that an amount sufficient to cover the other parties’
costs if the allegation is dismissed has been deposited with the court office.

260.  If the original of the act alleged to be a forgery has not already been
filed in the record, the court, on request, may order the person who has custody
of the original to file it with the court office within a specified time. If the
custodian cannot surrender the original, the court may instead order that an
authentic copy of the original be filed; the court may nevertheless order the
filing of the original if it judges it essential.

The judgment ruling on the allegation of forgery also determines, if necessary,

to whom the original is to be delivered.

DIVISION II
CONTESTATION OF CERTIFICATE

261.  A party may ask that a certificate issued by a bailiff or other court
officer, or any person authorized to make a return of notification, be declared
false or inaccurate.

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 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.

DIVISION III
CONTESTATION OF OTHER DOCUMENT

262.  If the formalities required to establish the validity of an exhibit or

other document were not observed, a party may, not later than at the time of
setting down for trial and judgment, ask that the exhibit or document not be
admitted in evidence. The party may also do so if it disowns the exhibit or
document, does not recognize its origin or contests the integrity of the
information it contains.

A party that intends to contest the origin or integrity of a document must

specify, in a sworn statement, the facts and grounds that support the party’s
claim and make it probable.

263.  If the contested document is a semi-authentic act and only a copy has
been filed in the record, the party that intends to use the document is required
to prove its semi-authentic character. The court may direct the person who has
custody of the original to deliver it to the court office, which must in return
provide a certified copy, at the contesting party’s expense. If the custodian
cannot surrender the original, the court may order that a certified copy be filed
with the court office within a specified time.

CHAPTER VI
ADMISSION OF AUTHENTICITY OF EVIDENCE

264.  After the defence on the merits has been filed but before the trial
begins, a party may give another party a formal notice to admit the origin of a
document or the integrity of the information it contains.

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 to the formal notice.

The party having been given the formal notice admits or denies the origin
or integrity of the evidence in a sworn statement giving reasons, and notifies
the statement 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.

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TITLE IV
TRIAL

CHAPTER I
CONDUCT OF TRIAL

265.  A trial consists of the evidence stage, followed by oral argument, in

which parties make their addresses to the court.

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.

266.  If, on the day of the trial, a party does not produce witnesses or fails
to justify the absence of its witnesses, its evidence is declared closed.

However, if the party proves that it has been diligent and shows that the
absent witness is necessary and that the witness’s absence is not due to any
contrivance on its part, the court may adjourn the trial. 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.

267.  During the evidence stage, the court may issue any appropriate order
allowing it to inspect the premises in order to verify disputed facts and make
the observations it considers necessary in order to resolve the dispute; the court
may instead ask a bailiff to ascertain the state or condition of certain premises
or things.

268.  At any time before judgment, the court may draw the parties’ attention
to any gap in the proof or procedural defect and permit the parties to remedy
it, subject to the conditions it determines.

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CHAPTER II
EVIDENCE STAGE OF TRIAL

DIVISION I
CALLING OF WITNESSES

269.  Witnesses are called to attend at court by a subpoena issued by a judge,

a court clerk acting on a party’s request or a lawyer.

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 two days. 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 by an order addressed to the director or the jailer by a judge
or a court clerk.

270.  Witnesses may be called to give an account of facts of which they

have personal knowledge, to give an opinion as an expert or to produce a
document or other evidence.

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.

271.  A subpoena must state the nature of the demand, specify where and
when the witness is to attend at court and mention the right to request an advance
on witness indemnities and allowances.

It must also invite the witness to contact the lawyer of the party for which
they are to testify in order to obtain the necessary information about the case
and check beforehand whether their attendance at court is still required. The
lawyer’s contact information must be included for that purpose.

The subpoena must contain information concerning the role, rights and duties
of witnesses, and the indemnities and allowances to which witnesses are entitled.
It must also explain the consequences incurred by defaulting witnesses for their
failure to attend. The subpoena must be in keeping with the model established
by the Minister of Justice.

272.  Any person present at a hearing may be required to give evidence as

if under subpoena. A person cannot refuse to answer questions under pretext
of not having received an advance for expenses.

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DIVISION II
COMPENSATION OF WITNESSES

273.  A party that calls a witness, other than another party, sends with the
subpoena an advance, covering the first day of attendance at court, on the loss
of time indemnity and the travel, meal and overnight accommodation allowances
prescribed by government regulation. The calling party is dispensed from this
obligation for expenses which it covers directly or for which the witness is
otherwise compensated.

274.  A person who has been called and has received the prescribed advance
is required to attend at court under pain of being compelled.

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 on bail. Examination of any witness held in custody must begin
without delay.

275.  A witness entitled to an indemnity and allowances may pursue payment

of the amount owed them against the calling party. A certificate of the court
clerk attesting to the witness’s attendance and to the amount due to them is
equivalent to an immediately enforceable judgment.

DIVISION III
HEARING OF WITNESSES

276.  All persons are presumed competent to testify and may be compelled
to do so. However, persons who, because of their young age or physical or
mental condition, are unable to relate the facts they have witnessed are not
competent to testify.

277.  Before testifying, witnesses must state their name and place of
residence and swear under oath to tell the truth, the whole truth and nothing
but the truth.

A refusal to take the oath constitutes a refusal to testify; if it persists, it

constitutes contempt of court.

278.  Witnesses are entitled to the protection of the court if the disclosure
of their address gives cause to fear for their safety. They are also entitled to
the protection of the court against any intimidation tactics while they are
testifying and against any abusive examination.

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279.  In any defended proceeding, the witnesses are examined in open court,
the other parties being present or having been duly called.

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.

A witness who has been examined before the trial may be examined anew
during the trial on a party’s request.

If it is necessary to examine a witness at a distance, the technological means

used must allow the witness to be identified live, heard live and, to the extent
possible, seen live.

280.  Witnesses are examined by the calling party or that party’s lawyer.

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.

When the party has finished examining a witness it has called, any other
party adverse in interest may cross-examine the witness on any fact relevant
to the dispute and in any manner show cause for rebutting the witness’s
testimony.

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.

281.  The party that called a witness may attack the credibility of the
witness’s testimony by proving the opposite through other witnesses. With
leave of the court, the party may also do so by proving that the witness made
previous statements which are inconsistent with their present testimony,
provided the witness is first questioned about this.

282.  Witnesses cannot be compelled to disclose any communication that

may have been made to them by their spouse during their life together.

283.  Public servants called as witnesses cannot, given their duty of

discretion, be compelled to disclose information obtained in the exercise of
their functions if disclosing it would be contrary to the public interest.

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 The public interest reasons must be set out, for consideration by the court,
in a sworn statement by the minister or deputy minister to whom the public
servant answers.

284.  Except to the extent provided for in section 9 of the Charter of human
rights and freedoms, witnesses cannot be compelled if their testimony would
violate professional secrecy. The court, on its own initiative, ensures that
professional secrecy is respected.

285.  Witnesses cannot refuse to answer a question on the grounds that the
answer may tend to incriminate them or expose them to a judicial proceeding
of any kind; their answers cannot be used against them, except if they are
prosecuted for perjury or for the giving of contradictory testimony.

286.  A witness who is in possession of a document or other evidence that

is relevant to the dispute is required to produce it on request.

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.

287.  The court may order a party to produce, at the appropriate time, in the
courtroom or in any other suitable place, any real evidence in its possession
that a witness is called on to identify. If the party does not obey the order, the
evidence is deemed identified, unless the court relieves the party from the
default before the judgment is rendered.

288.  A witness who refuses to answer a question without valid cause is

guilty of contempt of court, as is a witness who is in possession of relevant
evidence and refuses to produce it or to make it available to the court.

289.  A witness cannot withdraw without leave of the court. If the deposition
cannot be completed on the first day of attendance at court, the witness is
required to re-attend on the next working day or at any other time specified by
the court.

A witness who withdraws without leave or fails to re-attend is subject to the

same sanctions as a witness who fails to attend.

DIVISION IV
HEARING OF MINOR OR INCAPABLE PERSON OF FULL AGE

290.  When the court is to hear a minor or an incapable person of full age,
the minor or person may be accompanied by someone capable of providing
assistance or reassurance.

291.  The judge may examine a minor or an incapable person of full age in
the courtroom or in chambers. If it is in the interests of an incapable person of
full age to do so, the court, after advising the parties, may examine the person

80
where they reside or are confined, or in any other suitable place. If the
circumstances so require, the judge, after advising the parties, may examine
the minor or person outside their presence.

The examination by a judge in chambers, or elsewhere outside the courtroom,

is conducted in the presence of the court clerk and, if the minor or person is
represented by a lawyer, the person’s lawyer. The parties’ lawyers attend the
examination unless the judge decides to examine the minor or person outside
their presence, in which case the judge’s decision must give reasons.

The deposition is sound-recorded and sent to the parties on request.

DIVISION V
EVIDENCE GIVEN IN A STATEMENT

292.  A party may produce, in lieu of oral evidence, a written statement by

a witness, including a bailiff’s ascertainment, provided the statement has been
notified to the other parties beforehand.

Any other party may, before the scheduled trial date, require the witness’s
presence at the evidence hearing or obtain the authorization of the court to
examine the witness outside the presence of the court.

DIVISION VI
EXPERT EVIDENCE

293.  The report of an expert stands in lieu of their testimony. To be

admissible, the expert report must have been disclosed to the parties and filed
in the record within the time limits for disclosure and filing of evidence.
Otherwise, it may be admitted only if it was made available to the parties by
another means in a timely manner so that they could react and determine whether
the expert’s presence might be useful. It may however be admitted outside such
time frames with leave of the court.

294.  Each of the parties may examine an expert that it has appointed, a
joint expert or a court-appointed expert to obtain clarifications on points covered
in the expert report or to obtain the expert’s opinion on new evidence introduced
during the trial; they may also examine such an expert for other purposes, with
the authorization of the court. A party adverse in interest may cross-examine
an expert appointed by another party.

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 note the irregularity, substantial error or bias before the trial.

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DIVISION VII
EVIDENCE GIVEN OUTSIDE PRESENCE OF COURT

295.  With leave of the court or if the parties so agree, an examination may
be conducted outside the presence of the court at the place and time determined
by the court or jointly by the parties.

The deposition of the witness is heard, all parties being present or having
been duly called. It is sound-recorded and filed in the record and has the same
force and effect as if it had been given before the court.

296.  If an illness or a disability prevents a witness from attending the

hearing, the court, even on its own initiative, may order that the witness be
examined at a distance using a technological means, or appoint a commissioner
to take the witness’s evidence. The court may do likewise in order to avoid
unnecessary travel by a witness living in a remote location.

If the court chooses to appoint a commissioner, it gives the commissioner

the necessary instructions; it also sets the time within which the examination
is to be conducted and the commissioner’s report is to be filed, and determines
the amount to be advanced to the commissioner to cover costs. The examination
is recorded in writing or sound-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.
A party that wishes to be represented at the examination must advise the
commissioner in sufficient time and designate a representative, who must be
given five days’ notice of the date and place of the examination.

297.  Objections raised during the examination of a witness outside the

presence of the court do not prevent the examination from continuing, the
witness being required to answer. However, if such objections pertain to the
fact that the witness cannot be compelled, to fundamental rights or to an issue
raising a substantial and legitimate interest, the witness may refrain from
answering. In all such cases, the objections are submitted to a judge as soon
as possible for a decision.

DIVISION VIII
INTERPRETATION SERVICES

298.  To facilitate the examination of a witness, the court may retain the
services of an interpreter.

The interpreter’s remuneration is borne by the Minister of Justice if one of

the parties is a beneficiary, in the judicial districts of Abitibi and Roberval,
under the agreement approved by the Act approving the Agreement concerning
James Bay and Northern Québec (chapter C-67) or, in the judicial district of

82
Mingan, under the agreement approved by the Act approving the Northeastern
Québec Agreement (chapter C-67.1).

299.  A witness who is unable to hear or to speak by reason of a disability

may take the oath and testify by any means enabling them to express themselves.
If such means are unavailable, the witness may be assisted by an interpreter,
whose remuneration is borne by the Minister of Justice.

DIVISION IX
PRESERVATION OF ORAL EVIDENCE

300.  Depositions by witnesses are sound-recorded so that the oral evidence

can be preserved and reproduced.

The Minister of Justice provides the court with the necessary sound-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 choose an appropriate
sound recording method or call on the services of a stenographer.

Sound recordings or stenographic notes of oral evidence may be destroyed

on the expiry of three years after the judgment of last resort or after the
occurrence of the act terminating the proceeding, unless their destruction is
stayed by the chief justice or chief judge.

301.  A stenographer certifies, under their oath of office, the correctness of

the stenographic notes or transcription. At the beginning of each deposition,
the stenographer enters the name of the judge presiding at the trial and the
name of the witness. The stenographer records objections and decisions, and
preserves the stenographic notes as set out in the applicable regulations.

In cases under appeal, stenographic notes 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.

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BOOK III
NON-CONTENTIOUS PROCEEDINGS

TITLE I
GENERAL PROVISIONS

302.  In the absence of a dispute, demands and applications are dealt with
according to the procedure for non-contentious proceedings set out in this
Book.

This is the case when the law requires, because of the nature of an act or the
plaintiff’s capacity, that a demand or an application be submitted to the courts
so that they may approve or authorize an act, give a person authority to act,
approve or homologate a decision or an act, or verify a fact or a legal situation
and determine its consequences, or whenever the law requires that a demand
or application be so dealt with.

303.  Demands and applications dealt with according to the procedure for
non-contentious proceedings include those relating to

(1)  authorization to consent to care that is not required by the state of health
of a person under 14 years of age or incapable of giving consent, or authorization
to consent to the alienation of a body part of a minor or an incapable person
of full age;

(2)  a declaratory judgment of death, the probate of a will, letters probate

or, in succession matters, the liquidation or the partition of a succession;

(3)  the alteration of the register of civil status;

(4)  tutorship to an absentee or to a minor, the emancipation of a minor or

the protective supervision of or a protection mandate for a person of full age;

(5)  the appointment, designation or replacement of any person that is

required by law to be appointed, designated or replaced by the court on its own
initiative or in the absence of an agreement between the interested parties, and
applications of a similar nature relating to tutorship to a minor, the protective
supervision of a person of full age, a succession or the administration of the
property of others;

(6)  the placement and adoption of a child and the assignment of a name to
the child;

(7)  the administration of undivided property, of a trust or of the property of

others;

(8)  the acquisition by prescription of ownership in an immovable;

84
 (9)  registration in the land register or the register of personal and movable
real rights or the correction, reduction or cancellation of an entry in either
register; and

(10)  the issue of a notarial deed or the replacement or reconstitution of a

writing.

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 3.1 of the Act to facilitate the
payment of support (chapter P-2.2), is also dealt with according to that
procedure.

304.  Non-contentious demands and applications, whether presented before

a court or a notary, are conducted according to the procedure set out in this
Book, subject to the special rules for the conduct of certain civil matters set
out in Book V.

However, as soon as a demand or 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 demand or 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.

305.  In dealing with a non-contentious case relating to personal integrity,

status or capacity, the court or the notary must act in the best interests of the
person concerned while protecting the person’s rights and safeguarding the
person’s autonomy.

TITLE II
RULES APPLICABLE BEFORE COURT

CHAPTER I
DEMAND

306.  A non-contentious demand is accompanied by a notice informing the

person concerned and the interested persons of the place, date and time it is to
be presented before the competent court. The notice must also include a list of
the exhibits in support of the demand, and inform the recipients that they are
available, unless they are confidential.

307.  A demand for authorization to sell property belonging to a minor, a

person of full age under tutorship or curatorship, an absentee or a person whose
property is administered by another must set out the reasons for the demand,
describe the property and propose a method of sale, such as by agreement,

85
through a call for tenders or by auction, as well as the name of a person who
could effect the sale. An appraisal of the property by an expert and, if applicable,
the opinion of the tutorship council, must be attached to the demand. The
demand may suggest a commercially reasonable reserve price.

CHAPTER II
PRESENTATION

308.  The demand is presented before the court on the date specified in the
accompanying notice, unless the plaintiff and the person concerned, before
that date, agreed with the court office on another presentation date.

The demand cannot be presented less than 10 days nor more than two months
after it was notified.

309.  The court ascertains that the demand presented before it has been
served on the person concerned and notified to the interested persons, and that
the necessary opinions, reports and expert reports have been filed in the record.

The court may order that the demand be notified to any person whom it
considers to have an interest, call a meeting of relatives, persons connected by
marriage or civil union, and 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 demand 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 plaintiff, the person concerned or another interested person may make
their proof by sworn statement, 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 demand was instituted.

310.  The court may invite interested persons who are present to make
informal representations that might enlighten the court in making its decision.

If such representations could constitute an actual contestation of the merits

of the demand, the court, after verifying that the person who made them intends
to contest the demand, 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.

311.  Persons invited to make representations or to participate in deliberations

are not considered witnesses.

86
 However, the court, if it considers it appropriate, may order the plaintiff or
the person who is the subject of the demand 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, and friends.

TITLE III
RULES APPLICABLE BEFORE NOTARY

CHAPTER I
JURISDICTION OF NOTARY

312.  Non-contentious applications relating to tutorship to a minor, to the

protective supervision of a person of full age (including demands for the
appointment or replacement of a tutor or curator), to a tutorship council or to
a protection mandate may be presented before a notary according to the
procedure set out in this Title. Applications for the probate of a will or for
letters probate may also be presented before a notary, unless the will concerned
was deposited with that notary or a member of the same firm.

The notary seized of an application may rule on any ancillary matters, except
those that require a special authorization from the court.

CHAPTER II
APPLICATION

313.  The notary seized of an application must have it served on the person
concerned and must notify it to all persons who may have an interest in it given
their close relationship with that person. The notary must attach a notice stating
the date and place the notary is to begin the notarial operations, the subject
matter of the application and the rights of the interested persons, including
their right to make representations they consider appropriate or to oppose the
application.

The notary is required to call a meeting of relatives, persons connected by

marriage or civil union, and 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
and all persons to whom the application was notified, to the meeting or
conference.

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

87
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.

CHAPTER III
OPERATIONS AND CONCLUSIONS

314.  If a meeting of relatives, persons connected by marriage or civil union,

and friends or a conference is held, the notary informs the plaintiff, the person
concerned and the interested persons present of the process undertaken and
hears any representations they wish to make to enlighten the notary in
determining conclusions. The notary examines with them the testimony,
documents and other evidence submitted, which may pertain to any relevant
fact, even one that has arisen since the notary was seized of the application. If
a meeting or conference is not required to be held, the notary receives their
representations by any other means and records them in the minutes of the
notarial operations.

315.  If the application relates to the institution or review of protective

supervision or the homologation of a protection mandate, the notary is required
to verify that the person concerned is incapable, but cannot determine
conclusions without having in hand the assessments required by the Civil Code
and a transcript of the person’s examination. The notary gives an account of
the assessments and the examination to all present at the meeting or conference
and informs them of any other relevant exhibits.

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 notes the existence of the document and determines whether it is valid.

316.  If the notary considers that an incapable person of full age needs to
be assisted by a lawyer or another notary or by a tutor or curator ad hoc, the
notary must inform the interested persons so that they may take the appropriate
measures. The notary may continue to act if the latter are not opposed to it.

If such assistance is needed, the notary and the interested persons must reach
an agreement on the costs of the assistance. If the only disagreement is on the
costs, the notary, before continuing the matter, may ask the court to determine
them.

317.  If representations or oppositions are received that are equivalent to an

actual contestation of the merits of the application, the notary, after verifying
that the person from whom they were received intends to contest the application,
must withdraw from the matter and inform the interested persons.

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.

88
 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 demand, the court refers
the matter back to the notary for the continuation of the notarial operations.

318.  On completing the notarial operations, the notary draws up minutes

and conclusions.

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, and 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, and 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.

319.  In matters relating to the probate of a will or the issue of letters probate,
the filing of the minutes with the court office is for the sole purpose of securing
public notice.

The notary advises the interested persons of the filing of the minutes.

320.  In matters relating to tutorship to a minor or the protective supervision

of or a protection mandate for a person of full age, the notary notifies the
minutes to the minor concerned, if 14 years of age or older, or to the person of
full age concerned. The notary also notifies the minutes to the tutor or curator,
the mandatary, the plaintiff, the spouse of the person concerned, the Public
Curator and the other persons to whom the application was notified. The notary
informs them, on the same occasion, of their right to file their opposition with
the court in the 10 days preceding the date specified by the notary for the filing
of the minutes with the court office.

If no opposition is received, the appointment of a tutor to a minor or of a

tutorship council becomes effective on the filing of the notary’s minutes.

In any other matter, the court seized by the filing of the notary’s minutes
may, if no opposition is received, grant, amend or reject the conclusions set
out in the minutes. The court clerk sends the judgment without delay to the
persons to whom the minutes were notified.

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BOOK IV
JUDGMENT, APPLICATION FOR REVOCATION AND APPEAL

TITLE I
JUDGMENT

CHAPTER I
GENERAL PROVISIONS

321.  The judgment deciding a dispute or ruling on a case terminates the

demand; whether given in open court or rendered after a period of advisement,
it must be in writing and give reasons.

The judgment removes the matter from the judge’s jurisdiction, and is final
if it cannot or can no longer be appealed.

322.  A judgment concerning support or custody or personal integrity or

capacity may be reviewed if the plaintiff or applicant or any interested person
is able to present new facts sufficient to result in the varying of the judgment.

The same applies to a judgment in a non-contentious case unless the decision

is conclusive in character. A decision conclusive in character, particularly if it
concerns a person’s status, the ownership of movable or immovable property
or a right in such property, has the authority of res judicata.

CHAPTER II
ADVISEMENT

323.  A judge who, after taking a case under advisement, notes that a rule
of law or a principle material to the outcome of the case was not debated during
the trial, must give the parties an opportunity to make submissions in the manner
the judge considers most appropriate.

Alternatively, the trial may be ordered reopened on the judge’s own initiative.
Such a decision must give reasons and state how the reopened trial is to be
conducted. The court clerk must send the decision without delay to the chief
justice or chief judge and to the parties’ lawyers.

324.  For the benefit of the parties, the judgment on the merits in first instance
must be rendered within

(1)  six months after the matter is taken under advisement in contentious
proceedings;

(2)  four months after the matter is taken under advisement in small claims
matters under Title II of Book VI;

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 (3)  two months in child custody or child support matters and non-contentious
cases;

(4)  two months after the matter is taken under advisement if the judgment
is to determine whether a judicial demand is abusive; and

(5)  one month after the case is ready for judgment if a judgment is to be
rendered following the defendant’s failure to answer the summons, attend the
case management conference or defend on the merits.

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.

If the advisement period has expired, the chief justice or chief judge, on
their own initiative or on a party’s application, may extend it or remove the
judge from the case.

325.  In the first week of each month, the court clerk sends the chief justice
or chief judge a list of all cases in the judicial district, whatever their nature,
that have been under advisement for five months or more and, in small claims
matters being dealt with under Title II of Book VI, for three months or more.

CHAPTER III
REPLACEMENT OF JUDGE

326.  If a judge is removed from a case, dies, leaves office or is unable to

act, the chief justice or chief judge may order that the case or cases pending
before the judge be continued and completed by another judge, or be set down
for a new trial, depending on the stage reached.

On the chief justice’s or chief judge’s request, a judge who is leaving office
must, within three months, complete any cases 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’s or chief judge’s decision must take the circumstances and
the parties’ interests into account. 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 judge to exercise them.

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 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.

327.  With the parties’ consent, the judge assigned to continue a case or to
hear a case set down for a new trial may decide to rely solely, as regards
evidence, on the recording of the original trial or the transcript of stenographic
notes. If that proves insufficient, the judge may recall a witness or require other
evidence from the parties.

If it is necessary to have stenographic notes transcribed or witnesses recalled,

the costs involved are assumed by the Government unless the judge orders
otherwise.

CHAPTER IV
RULES APPLICABLE TO JUDGMENT

328.  A judgment rendered against a party must be capable of being executed.

A judgment awarding damages must liquidate the damages; a judgment finding
persons solidarily liable for injury must, if the evidence permits, determine the
share of each of those persons in the award as between them only.

329.  A judgment awarding damages for bodily injury that reserves the
plaintiff’s right to claim additional damages must specify the subject matter
of the potential claim and the time within which the claim must be made.

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.

330.  A judgment granting an authorization to act expires if not acted upon

within the time specified in the judgment or, if no time is determined by the
court or by law, within six months.

A judgment authorizing care, the alienation of a body part 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.

331.  A judgment in a non-contentious case authorizing the sale of the

property of another must determine the method of sale and the terms of the
sale. It must also designate the person who is to effect the sale and determine
the particulars of that person’s remuneration, as well as those of the report on
the sale to be filed with the court office.

The court sets a reserve price to ensure that the property is sold at a
commercially reasonable price.

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332.  A judgment pertaining to immovable or movable real rights must
contain a description of the property concerned so as to permit the publication
of the rights in the property, if applicable.

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.

333.  A party may renounce the rights arising from a judgment in its favour
by filing a renunciation with the court office. The renunciation is made by the
party itself or by its mandatary acting under a special mandate.

If total and accepted by the other parties, the renunciation operates to restore
the proceeding to its state prior to the judgment.

CHAPTER V
FORMAL JUDGMENT

334.  A judgment dated and signed by the person who rendered it is an

authentic act. It is deposited at the court office and entered without delay in
the registers under the date appearing on it. It is kept in the court archives.

A judgment rendered in open court, 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. On a party’s request, the judgment may also be evidenced by
the transcript of the sound recording, signed 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.

335.  On entry in the court registers of a judgment other than a judgment

rendered in open court in the presence of the parties, a notice is notified to the
parties and their lawyers. The judgment may be notified by technological means
to the parties and lawyers who have provided the necessary contact information.

The court clerk may issue certified copies of a judgment on request and for
a fee.

336.  In a non-contentious case, a judgment on a demand or application

relating to personal integrity, status or capacity is notified to the person
concerned and, if that person has a representative, to the representative
according to the instructions of the court, if any are given.

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 A judgment concerning tutorship to an absentee or to a minor, protective
supervision or a protection mandate is notified without delay to the Public
Curator. A judgment on a demand or application relating to a person’s status
is notified to the registrar of civil status.

337.  The transcript of a judgment rendered in open court by a judge who

has since died, become unable to act or left office may be signed by the chief
justice or chief judge or by another judge designated by the latter.

338.  A judgment containing an error in writing or calculation, or any other

clerical error, including an error in the description of property, may be corrected
by the person who rendered it. The same applies to a judgment which, by
obvious inadvertence, grants more than was sought or does not rule on part of
the demand.

The correction may be made on the judge’s own initiative as long as execution
of the judgment has not begun, or at any time on a party’s request unless the
judgment is under appeal. 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.

TITLE II
LEGAL COSTS

339.  The legal costs of a case comprise court costs and fees, professional
fees and expenses for the service or notification of pleadings and documents,
witness indemnities and allowances as well as any expert fees, interpreter fees
and fees for registration in the land register or the register of personal and
movable real rights. They may also include the costs related to taking and
transcribing oral evidence filed in the court record, if that was necessary.

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.

340.  Legal costs are owed to the party that was successful, unless the court
decides otherwise.

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.

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 The costs related to joint demands or applications are apportioned equally
between the parties unless they have agreed otherwise.

341.  The court may order the successful party to pay the legal costs incurred
by another party if it is of the opinion that the successful party did not properly
observe the principle of proportionality or committed an abuse of procedure,
or that such an order is necessary to prevent serious prejudice to a party or to
permit a fair apportionment of the costs, including those incurred for expert
fees, the taking of oral evidence or its transcription.

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 acquiesce in
the demand, to admit the origin or integrity of evidence or, in a family matter,
to participate in a parenting and mediation information session.

As well, the court may make such an order if the successful party delayed
in raising grounds that resulted in the expert report being corrected or rejected
or a new expert’s opinion being necessary.

342.  The court, after hearing the parties, may punish serious breaches noted
in the conduct of the proceeding by ordering a party to pay to another party,
as legal costs, an amount that it considers fair and reasonable to cover the
professional fees of the other party’s lawyer or, if the other party is not
represented by a lawyer, to compensate the other party for the time spent on
the case and the work involved.

343.  Legal costs bear interest at the legal rate as of the date of the judgment
awarding them and are payable to the party to which they are awarded. If legal
costs are awarded against two or more parties, they are solidarily liable for
paying them.

344.  The party entitled to legal costs prepares a bill of costs based on the
tariffs in force and notifies it to the debtor party, which then has 10 days to
notify its opposition.

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 sworn
statement or by oral evidence 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. The clerk’s decision may be reviewed within 10 days by the
court or, as applicable, by an appellate judge. The bailiff may also, within
10 days after becoming aware of the decision, ask for its review as regards the
bailiff costs.

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 The decision concerning the taxation or homologation of the legal costs is
executed in accordance with the rules of provisional execution.

TITLE III
REVOCATION OF JUDGMENT

CHAPTER I
REVOCATION ON APPLICATION BY PARTY

345.  A judgment may, on a party’s application, be revoked by the court that

rendered it for serious grounds that could bring the administration of justice
into disrepute. The judgment may be revoked, for instance, if fraud was
committed by another party, if the judgment was based on false exhibits or if
the production of decisive exhibits was prevented by superior force or by the
act or omission of another party.

As well, a judgment may be revoked if

(1)  the judgment adjudicated beyond the conclusions set out in the demand
or did not rule on one of them;

(2)  no valid defence was produced in support of the rights of a minor or of

a person of full age under tutorship or curatorship or for whom a protection
mandate has been homologated;

(3)  a ruling was made on the basis of invalid consent or following an

unauthorized tender that was subsequently disavowed; or

(4)  evidence was subsequently discovered that would probably have led to
a different judgment if the party concerned or its lawyer had become aware of
that evidence in sufficient time, although they acted with due diligence.

346.  A party against which a default judgment has been rendered following
failure to answer the summons, attend the case management conference or
defend on the merits but that was prevented from doing so owing to fraud,
surprise or any other cause considered sufficient may apply to the court that
rendered the judgment for the revocation of the judgment and the dismissal of
the demand.

The application for revocation must contain the reasons justifying the
revocation as well as the grounds of defence raised against the demand.

347.  An application for revocation must be notified to all parties to the

proceeding within 30 days after the day on which the cause preventing the
party from filing a defence ceased to exist, or after the day on which the party
became aware of the judgment, evidence or fact that constitutes grounds for

96
the revocation. In the case of a minor, the 30-day period only begins to run as
of notification of the judgment after the person reaches full age.

The application for revocation must be presented before the court within
30  days after notification, 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 time limits are strict time limits.

348.  If, when the application for revocation is presented, the reasons given
are found to be sufficient, the parties are restored to their former state and the
court stays execution of the judgment; it continues the original proceeding after
agreeing with the parties on a new case protocol.

If circumstances permit, the court may decide the application for revocation
and the demand at the same time.

CHAPTER II
REVOCATION ON APPLICATION BY THIRD PERSON

349.  Any person whose interests are affected by a judgment rendered in a

proceeding in which neither they nor their representatives were called may
apply for the revocation of the judgment if it prejudices their rights. The
application for revocation commences a proceeding before the court that
rendered the judgment.

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 notified to the parties to the judgment whose
revocation is sought or, if the application is brought within one year after the
judgment, to the persons who represented them in the case.

CHAPTER III
EFFECT OF APPLICATION FOR REVOCATION

350.  An application for revocation does not stay execution of the judgment.
However, the court may order such a stay and, in urgent circumstances, may
do so without prior notice.

On notification of the application for revocation and the stay order, the
executing bailiff immediately stays the execution proceedings, except for
conservatory measures.

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TITLE IV
APPEAL

CHAPTER I
COMMENCEMENT OF APPEAL PROCEEDING

DIVISION I
INITIATION OF APPEAL

351.  The right to appeal belongs to any party to the judgment in first instance
having an interest in appealing, unless the party has waived that right. In a
non-contentious case, an appeal is also available to third persons to whom the
judgment was notified.

352.  The Court of Appeal is seized and an appeal initiated by filing a notice
of appeal with either the office of the Court of Appeal or that of the court of
first instance and notifying the notice to the office of the other court.

353.  The notice of appeal must designate the parties and specify the court
that rendered the judgment in first instance, the judgment date and the duration
of the trial.

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 files the notice of appeal together with a certificate certifying
that no transcript of depositions is necessary for the appeal or stating that it
has arranged for the transcription of the depositions it intends to use.

354.  As soon as the notice of appeal is filed with or notified to the office
of the court of first instance, the court clerk informs the judge who rendered
the judgment and, on the appellate clerk’s request, sends the case record without
delay to the Court of Appeal, along with an inventory of the exhibits in the
record and a list of the relevant entries in the court registers.

The court clerk must do so within two days after notification if the appeal
concerns a person’s release or personal integrity.

355.  A properly initiated appeal stays execution of the judgment, except if

provisional execution has been ordered or is provided for by law.

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 judgment debtor to comply with the judgment up to the
uncontested amount.

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356.  If the appellant is not able, before the expiry of the time limit for
appeal, to provide in the notice of appeal a detailed statement of all the grounds
it plans to argue, an appellate judge, on an application and if serious reasons
so warrant, may authorize the filing of a supplementary statement within a
specified time.

357.  If leave to appeal is required, the related application is attached to the

notice of appeal together with the judgment and the exhibits and evidence
necessary to obtain leave. The application is presented without delay and
contested orally before an appellate judge, who decides whether or not to grant
leave. The appellate clerk sends the judgment without delay to the office of the
court of first instance and to the parties.

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 matter is removed from the
jurisdiction of the Court of Appeal.

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.

358.  The notice of appeal, including, if applicable, the application for leave
to appeal, is served on the respondent and notified to the lawyer who represented
the respondent in first instance before the expiry of the time limit for appeal.
It is also notified, before the expiry of that time limit, to persons with an interest
in the appeal as intervenors or impleaded parties.

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. 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.

359.  If a notice of appeal has been filed by a party, another party in the case
may initiate an incidental appeal by filing a notice of incidental appeal with
the office of the Court of Appeal. An incidental appeal is continued despite the
withdrawal or dismissal of the principal appeal.

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DIVISION II
APPEAL TIME LIMITS

360.  A party intending to appeal a judgment is required to file, within

30  days after the date of the judgment, a notice of appeal together with an
application for leave to appeal, if applicable.

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.

361.  The time limit for appealing a judgment that lifts an interlocutory
injunction or denies a person’s release is 10 days; the time limit for appealing
a judgment confirming or quashing a seizure before judgment is also 10 days.

The time limit for opposing a person’s release or appealing a judgment

granting a demand for authorization relating to personal integrity or ordering
confinement for or after a psychiatric assessment is five days.

362.  If a party dies before the expiry of the time limit for appeal without
having exercised their right to appeal, the time runs against the successors as
of the time the judgment in first instance is notified to them.

363.  The time limits for appeal are strict time limits, and the right to appeal
is forfeited on their expiry.

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.

An appellate judge may, on an application, suspend the time limits for appeal
if the judgment has reserved the plaintiff’s right to claim additional damages
for bodily injury. The judge suspends such time limits if there are compelling
reasons for an appeal against the judgment and an appeal concerning the demand
for additional damages to be heard together; in such a case, the duration and
terms of the suspension are determined by the judge.

DIVISION III
CONDITIONS IMPOSED ON APPEAL OR DISMISSAL OF APPEAL

364.  The Court of Appeal or an appellate judge, on their own initiative or

on an application by the respondent, may subject an appeal to the provision of
a suretyship to guarantee payment of the appeal costs and of the judgment
amount if the judgment is affirmed.

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 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, under pain
of dismissal of the appeal.

365.  The Court of Appeal, even on its own initiative, may dismiss an appeal
if the right to appeal is non-existent or has been forfeited or if the appeal is
abusive or improperly initiated. It may also, on an application by the respondent,
dismiss an appeal if the judgment under appeal has been acquiesced in or a
party in whose favour the judgment was rendered has renounced the rights
arising from it, or if the appeal has no reasonable chance of success.

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.

366.  The Court of Appeal may, on the face of the record, deny an application
for the dismissal of an appeal that is based on the grounds that the appeal has
no reasonable chance of success or is abusive. Alternatively, it may, on the face
of the record, subject the appeal to the conditions it determines, including
requiring the appellant to provide a suretyship.

CHAPTER II
APPEAL MANAGEMENT

367.  An appellate judge may, at any time, on the judge’s own initiative or
on request, convene the parties to confer with them on the advisability of
adopting appeal management measures in order to define the issues really in
dispute and determine possible ways of simplifying the proceedings and
shortening the debate.

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 set the time limit for preparing the appeal
record and decide, despite the rules otherwise applicable, that it is best to
proceed by way of briefs or memorandums and, if necessary, modify time limits
prescribed by this Code. The judge may also set the date, time and duration of
the hearing.

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.

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368.  In matters where the appeal record is to comprise memorandums, the
appellate clerk may set the date and time of the hearing and establish a calendar,
with the parties, for the filing of documents.

369.  At any time during the appeal proceeding, a party may, without
formality, request directives from the chief justice for the subsequent conduct
of the appeal.

CHAPTER III
APPEAL RECORD

370.  The appeal record comprises the notice of appeal and, in addition to
the various related pleadings and documents, all the elements necessary to the
appeal hearing, namely, the pleadings filed in first instance, the judgment under
appeal and a single hard copy of the transcript of relevant extracts from the
evidence. The full transcript of the depositions and evidence is filed only if
available on a technological medium.

The appeal record also contains either the briefs or the memorandums of
each of the parties.

The content and format of the appeal record and of briefs and memorandums
are also governed by the regulations of the Court of Appeal.

371.  A respondent making an incidental appeal includes all particulars

relevant to the incidental appeal in its brief or memorandum on the main appeal.

372.  In its brief, each of the parties sets out the arguments raised and the
conclusions sought in relation to the issues in dispute, a list of the authorities
relied on and relevant excerpts from the depositions and exhibits. In the absence
of a joint statement by the parties, it includes the party’s statement of the facts
and issues in dispute.

The parties’ joint statement, if included, sets out the facts and the issues in
dispute and identifies the evidence that is relevant to the appeal. It must be filed
with the office of the Court of Appeal within 45 days after the notice of appeal
is filed.

373.  Briefs must be filed with the office of the Court of Appeal and notified
to the other parties to the proceeding within the time limit specified in the
appeal management decision made by an appellate judge or, in the absence of
such a decision, within three months after the notice of appeal is filed in the
appellant’s case and within the following two months in the respondent’s case.
Any impleaded party must file a brief within four months after notification of
the appellant’s brief.

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 A respondent in an incidental appeal may file and notify a brief in reply to
the incidental appeal within two months after notification of the incidental
appellant’s brief.

An appellate judge may extend a time limit if an application for an extension

is made before the time limit expires.

374.  In an appeal against a judgment in a personal integrity, status or

capacity, habeas corpus, family, international child abduction or seizure matter,
or against a judgment rendered in a non-contentious proceeding or in the course
of a proceeding, a memorandum is filed. A memorandum is also filed in other
cases if so ordered by an appeal management decision of an appellate judge.

A memorandum presents in a concise manner the issues in dispute as well

as the party’s contentions, conclusions and main arguments.

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.

375.  At any time before the hearing, after a brief or joint statement or
memorandum has been filed, an appellate judge may ask a party to file additional
notes in the appeal record.

376.  The appeal lapses if the appellant does not file a brief or a memorandum
within the time limit for filing. The appellate clerk issues a certificate of lapse
of appeal, unless an appellate judge is seized of an application for an extension.

A respondent or impleaded 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.

CHAPTER IV
CONDUCT OF APPEAL

DIVISION I
APPLICATIONS IN COURSE OF PROCEEDING AND INCIDENTAL
APPLICATIONS

377.  Any application in the course of a proceeding must be in writing and

be notified to the other parties, together with a notice of the date of presentation,
at least five days before that date if the application is to be presented before
the Court or at least two days before that date if it is to be presented before an
appellate judge or the appellate clerk.

378.  Incidental applications available in first instance may be presented on

appeal, insofar as they are applicable.

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 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.

379.  In any case before the Court of Appeal, an appellate judge may issue
a safeguard order or authorize the correction, within the time and subject to
the conditions the judge determines, of any irregularity in the appeal proceeding,
provided the notice of appeal has been duly filed and notified.

380.  The Court of Appeal may authorize a party to present indispensable

new evidence after giving the parties an opportunity to make representations.

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.

DIVISION II
SETTLEMENT CONFERENCE

381.  On the parties’ request, an appellate judge may, at any time, preside
over a settlement conference to assist the parties in resolving the issues under
appeal.

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.

382.  A settlement conference is held in camera in the presence of the parties

and of their lawyers. It is conducted at no cost to the parties and without
formality and requires no prior documents. Anything said, written or done
during the conference is confidential. All other rules governing the conference
are defined by the judge and the parties.

A transaction terminating the case is submitted to the Court of Appeal by

the appellate clerk to be homologated and made enforceable.

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DIVISION III
SETTING DOWN FOR HEARING

383.  The appellate clerk sets an appeal down for hearing as soon as it is
ready to be heard, that is, once the appeal record has been completed by the
filing of all the briefs or memorandums, or when the Court of Appeal so orders.

If the appeal concerns a person’s release or personal integrity, it is set down

to be heard at the earliest opportunity after the appellant’s brief is filed.

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.

384.  The Court of Appeal or an appellate judge, on their own initiative or

on the parties’ request, may decide that the appeal will be decided on the face
of the record.

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.

DIVISION IV
HEARING

385.  The appellate clerk informs the parties of the hearing date and specifies
the time allotted to each party for oral argument.

386.  The Court of Appeal hears the parties in a three-judge panel, but that
number may be increased if the chief justice sees fit.

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.

CHAPTER V
DECISION

387.  A decision is rendered by the Court of Appeal when a majority of the

judges having heard the appeal concur. The decision may be given in open
court by the judge who presided over the appeal hearing, even in the absence

105
of the other judges; alternatively, it may be deposited at the office of the Court
under the signature of all or the majority of the judges who heard 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.

388.  The fact that a judge who heard the appeal cannot make their opinion
known does not prevent the other judges, if sufficient in number, from rendering
a decision. Otherwise, the chief justice may order a new hearing if the interests
of justice so require.

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.

389.  In addition to the operative part, a decision of the Court of Appeal

must contain the names of the judges who heard the appeal and mention any
judge who does not concur in the opinion of the majority.

The decision must give reasons, unless it refers to one or more opinions
issued by the judges.

390.  A decision of the Court of Appeal is enforceable immediately and

bears interest from the date it is rendered, unless it specifies otherwise. Its
execution, as regards both the principal and any legal costs, is carried out by
the court of first instance.

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.

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BOOK V
RULES APPLICABLE TO CERTAIN CIVIL MATTERS

TITLE I
APPLICATIONS IN MATTERS GOVERNED BY LAW OF PERSONS

CHAPTER I
GENERAL PROVISIONS

391.  A person of full age or a minor who is competent to testify and who
is the subject of an application relating to personal integrity, status or capacity
must, before a decision is made by the court seized or minutes of the operations
and conclusions are drawn up by the notary, as applicable, be heard in person
for the purpose of making representations, giving their opinion or answering
questions.

An exception to this rule applies if it is impossible to hear the person, if it

is clearly inexpedient to insist on such representations, opinion or testimony
being given because of the urgency of the situation or the person’s state of
health, or if it is shown to the court that requiring that the person testify could
be harmful to the person’s health or safety or that of other persons.

392.  The court seized of an application may delegate the responsibility of

hearing the person of full age or the minor, and of drawing up minutes recording
their answers, to a judge or a court clerk in the judicial district of the person’s
residence or to a notary practising in that district. The minutes are sent to the
court and to the applicant.

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. If not sufficiently
fluent in the person’s language, the notary may also mandate a notary who
speaks the language. The latter hears the person, draws up minutes of the
meeting and attaches the answers recorded. If it is necessary for the notary
seized of the application or the other notary to retain the services of an
interpreter, the interpreter, in the notary’s presence, records the answers, and
attests to their faithfulness, in a document that the notary attaches to the minutes.

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.

393.  An application relating to the personal integrity, status or capacity of

a person of full age or a minor 14 years of age or older must be served on that
person. In the case of a minor, it must also be served on the person having
parental authority and the tutor.

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 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. The court bailiff who serves
the application must draw the person’s attention to the content of the notice.

394.  All applications relating to the institution or review of protective

supervision for a person of full age, the replacement of the tutor or curator to
a minor or to a person of full age under protective supervision or the replacement
of the tutor to an absentee and all applications relating to the homologation or
revocation of a protection mandate given by a person in anticipation of
incapacity must be notified to the Public Curator together with the exhibits in
support of the application. The proceeding is stayed until proof of notification
is received by the court office.

The Public Curator, on the Public Curator’s own initiative and without notice,
may take part in the trial of an application for the institution or review of
protective supervision.

CHAPTER II
APPLICATIONS RELATING TO PERSONAL INTEGRITY

DIVISION I
CARE AND CONFINEMENT IN INSTITUTION

395.  An application to obtain authorization from the court for the provision
of care to, or the alienation of a body part of, a minor or a person of full age
incapable of giving consent cannot be presented before the court less than five
days after the application is notified to the interested persons, including the
person having parental authority, the tutor or the curator or, in the case of a
person of full age, the mandatary designated by the person at the time the
person was capable of giving consent or, if not so represented, by a person who
could consent to care for the person. If there are no such persons, the application
and exhibits are notified to the Public Curator.

396.  An application concerning a person’s confinement in a health or social

services institution for or after a psychiatric assessment cannot be presented
before the court less than two days after it is notified, in the case of a minor,
to the person having parental authority and the tutor and, in the case of a person
of full age, to the tutor, curator or mandatary or, if the person is not so
represented, to a member of the person’s family, to the person in whose custody
the person is confined or to a person who shows a special interest in the person.
If there are no such persons, the application and exhibits are notified to the
Public Curator.

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397.  A judgment ordering a person’s confinement for or after a psychiatric
assessment is enforceable immediately. A judge of the Court of Appeal may,
however, suspend execution of the judgment.

The court clerk sends the judgment and the record without delay to the
Administrative Tribunal of Québec, at no cost to the parties. In addition, the
judgment is notified to every person to whom the application was notified. It
may be executed by a peace officer.

DIVISION II
HABEAS CORPUS

398.  Any person deprived of liberty without it having been ordered by a

decision of the competent court may ask the Superior Court to rule on the
lawfulness of the detention and order the person’s release if the detention is
unlawful. A third person may act on the person’s behalf.

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.

399.  The application must be tried on the day it is presented. The plaintiff’s
proof may be made by sworn statement.

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.

400.  If the application cannot be tried on the day it is presented, the court
may authorize the person’s immediate release; however, if the person is in
detention, the court may require that a suretyship be provided to ensure the
person’s attendance at the trial and compliance with any orders that may be
issued.

401.  A habeas corpus order is served personally, unless circumstances

prevent it, in which case the court determines the method of notification it
considers most appropriate.

402.  The court’s decision is enforceable on the expiry of the time for appeal
or as soon as the adverse party and the Attorney General, if party to the
proceeding, indicate that they do not wish to appeal, or acquiesce in the
judgment.

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 If there is an appeal, the court or a judge of the Court of Appeal may order
the person’s provisional release and set the conditions of release.

CHAPTER III
APPLICATIONS RELATING TO PERSONAL STATUS AND CAPACITY

403.  An application for the review of a decision of the registrar of civil

status is admissible only if it is instituted within 30 days after the decision is
notified to the plaintiff. The registrar of civil status sends the relevant record
to the court office without delay.

404.  An application relating to protective supervision for a person of full

age is notified, as applicable, to the person’s spouse, father and mother or
children of full age. If there are no such persons, it is notified to at least two
persons who show a special interest in the person.

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 an accounting. It is also notified to at least two other persons from the
mandator’s family or who show a special interest in the mandator.

405.  If it is necessary to call a meeting of relatives, persons connected by

marriage or civil union or friends in connection with an application concerning
a minor or a person of full age, the notice of meeting is drawn up and notified
by the special clerk or the notary, depending on whether the application is
presented before the court or before a notary. If the application is contested, it
is up to the person contesting to give and notify the notice of the meeting.

The notice of meeting informs the relatives, persons connected by marriage

or civil union or friends 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.

406.  The Public Curator may apply for the institution of protective
supervision and propose a suitable person to assist or represent the person of
full age as provided for in section 14 of the Public Curator Act (chapter C-81)
if, within 30 days after the Public Curator’s recommendation to that effect is
filed with the court office, the court clerk informs the Public Curator that no
other person is applying for the institution of such supervision.

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CHAPTER IV
LEGAL PERSONS

407.  The Attorney General or any interested person may ask the court to
annul a legal person’s constituting act or impose any other sanction prescribed
by law if

(1)  the legal person was not constituted in accordance with the law;

(2)  juridical personality was obtained unlawfully or by fraud or was granted

in ignorance of some essential fact;

(3)  the legal person, its founders or their successors or its directors or officers
repeatedly act in contravention of the laws governing them, or exercise powers
the legal person does not have; or

(4)  the legal person does or omits to do something, which act or omission
amounts to a waiver of its rights.

The Attorney General or any interested person may also ask the court to
annul any instrument amending a legal person’s constituting act and any related
certificate if the amending instrument contains unlawful provisions or false or
erroneous statements.

408.  A judgment annulling a legal person’s constituting act must designate

a liquidator to liquidate the property as provided in the applicable legislation
or in the Civil Code. The judgment is notified to the enterprise registrar.

The legal costs are paid out of the legal person’s patrimony and, if it is
insufficient, out of the personal patrimony of its directors and other officers.
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.

TITLE II
DEMANDS AND APPLICATIONS IN FAMILY MATTERS

CHAPTER I
RULES GOVERNING DEMAND AND PROCEEDING

409.  Demands under the Divorce Act (Revised Statutes of Canada, 1985,
chapter 3, 2nd Supplement) and applications under Book Two of the Civil Code
are governed by the general rules that apply to all judicial demands, subject to
the provisions of this chapter.

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410.  A demand for the annulment of a marriage or a civil union, for
separation from bed and board or as to property, for a divorce or for dissolution
of a civil union may be declared to the land registrar by either of the spouses.
Such a declaration must be made if one of the spouses may claim to have a
right in an immovable under the matrimonial or civil union regime or if the
immovable serving as the family residence is the property of one of the spouses.

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.

411.  An originating demand whose conclusions pertain exclusively to a

support obligation, child custody or related provisional measures cannot be
presented before the court less than 10 days after it is served. The demand is
tried and determined by preference.

If an application with such conclusions is joined with a demand 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.

412.  Demands between parents relating to patrimonial rights arising from

their cohabitation may be joined with an application relating to child custody
or parental child support obligations if the parents were de facto spouses before
the demand was instituted.

413.  If one of the conclusions sought in a demand is the partition of family

patrimony, each party must attach to the case protocol a statement listing all
its property and indicating, for each item, whether it is included in the family
patrimony.

If a party is seeking support for itself, the demand 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 demand 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.

414.  The parties may make their proof by sworn statement. Each party files
a single sworn statement, but the plaintiff may produce a second one if the
defendant has also chosen to proceed in this manner. Any further statements
must be authorized by the court.

415.  Whenever it is asked to rule on an agreement in a family matter, the

court makes sure that each party has given its consent freely and that the
agreement sufficiently protects the interests and rights of the parties and the
children.

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 For that purpose, the court may convene and hear the parties, together or
separately, in the presence of their lawyers.

416.  The court may order a party to pay a provision for costs to the other
party if the circumstances so warrant, as when the court notes that without such
assistance the other party’s financial situation would likely prevent it from
effectively conducting its case.

CHAPTER II
MEDIATION IN COURSE OF PROCEEDING

DIVISION I
PARENTING AND MEDIATION INFORMATION SESSION

417.  Any case in which the interests of the parties and their children are at
stake in connection with child custody, spousal or child support, the family
patrimony, other patrimonial rights arising from the marriage or civil union or
the partition of property between de facto spouses cannot proceed to trial unless
the parties have jointly or separately participated in a parenting and mediation
information session.

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. In any
such case, the court, in the children’s interests, may nonetheless order
participation in such an information session.

418.  The information session deals with parenting issues, such as the effects
of conflict on the children, and with the parental responsibilities of parties, and
explains the nature and purpose of mediation, the process involved and how
the mediator is chosen.

419.  The information session is conducted in a group setting; it is given by

two mediators certified in accordance with the regulations under article 619,
only one of whom must be a lawyer. The session may be held using any
appropriate technological means available.

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.

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DIVISION II
MEDIATION

420.  The court may, at any time, stay the proceeding or adjourn the trial to
enable the parties to enter into or continue mediation with a certified mediator
of their choice, or to ask the Family Mediation Service to work with the parties.

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 best 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.

421.  The court may stay the proceeding or adjourn the trial for not more
than three months. On or before the expiry of that time, if mediation has not
begun or if it has been ended, the proceeding is continued unless the court
extends the stay or adjournment, with the parties’ consent, for the time it
specifies.

The judge who stays the proceeding or adjourns the trial remains seized of
the matter, unless the chief justice or chief judge decides otherwise.

422.  When intervening at the court’s request, the Family Mediation Service
designates a mediator and sets the date of the first meeting, which must be held
within 20 days after the decision. A mediator chosen by the parties is required
to begin the mediation within the same time.

423.  If the parties do not enter into mediation within the allotted time or if
they put an end to mediation before the dispute is resolved, the mediator files
a report to that effect with the court office. The mediator also sends the report
to the Family Mediation Service and, within the following three days, to each
of the parties and, if represented, to their lawyers.

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.

424.  Any part of the mediator’s fee that is not borne by the Family Mediation
Service is apportioned between the parties based on their respective income
or according to their agreement, unless the court orders a different apportionment.

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CHAPTER III
ASSESSMENT BY PSYCHOSOCIAL ASSESSMENT SERVICE

425.  In any family law case in which the interests of a minor child are at
stake, the court, on its own initiative or on an application, may order the
Psychosocial Assessment Service of the Superior Court to appoint an expert
to enlighten the court on any custody-related or other issue affecting the child.

The decision must define the expert’s mission and set the time limit within
which the expert report is to be filed with the Psychosocial Assessment Service,
which must not exceed three months after the expert’s appointment.

426.  The court clerk immediately notifies the decision as well as the other
relevant documents to the Psychosocial Assessment Service. The Service
appoints an expert and informs the judge who made the decision or the chief
justice or chief judge of the expert’s name.

427.  The Psychosocial Assessment Service takes all the necessary measures
to ensure that the appointed expert complies with the time limit for submitting
the expert report.

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.

428.  The expert files the report with the Psychosocial Assessment Service,
which forwards it to the court clerk. The court clerk sends the report to the
judge who ordered the assessment or, if that judge is no longer seized of the
matter, to the chief justice or chief judge or the judge designated by the latter,
and to the parties.

429.  As provided in section 19 of the Act respecting health services and

social services (chapter S-4.2), the court may order an institution to give an
appointed expert access to any information in a user’s record that is necessary
for the purposes of the expert’s assessment.

CHAPTER IV
JOINT DEMAND FOR SEPARATION FROM BED AND BOARD,
DIVORCE OR DISSOLUTION OF CIVIL UNION ON BASIS OF DRAFT
AGREEMENT

430.  Spouses filing a joint demand for separation from bed and board, a
divorce or the dissolution of their civil union may, together with the demand,
submit to the court for approval a draft agreement, dated and signed by them,
that provides a complete settlement of the consequences of their demand.

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 The draft agreement applies from the date of the demand to the date of the
judgment, subject to any provisional measures that the spouses have set out in
it.

The draft agreement must identify, if one is required, the liquidator of the
matrimonial or civil union regime and of the spouses’ other patrimonial rights.

431.  The joint demand lapses if, following an adjournment order, the spouses
fail to present an amended draft agreement within three months or any other
time limit set by the court. The joint demand also lapses if one of the spouses
discontinues it and neither of them amends it and continues the proceeding
within the following three months.

CHAPTER V
APPLICATIONS RELATING TO ADOPTION

432.  Applications relating to the adoption of a minor child, unless supported

by general consent to the child’s adoption, are notified to the director of youth
protection having jurisdiction in the child’s place of residence or, if the child
is domiciled outside Québec, in the adopter’s place of domicile. The director
may intervene as of right as regards such applications.

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.

433.  If the adoption process is based on general consent to the child’s

adoption, the court admits to its hearings any member of the Commission des
droits de la personne et des droits de la jeunesse or any other person expressly
authorized to attend by the Commission. Such a person cannot disclose, or be
compelled to disclose, anything that was said or disclosed or that occurred at
a hearing.

434.  An application by a person who, having given consent to a child’s

adoption and having failed to withdraw it within the prescribed time, is seeking
to have the child returned to them is served on the person to whom the child
was entrusted or, if general consent was given, notified to the director of youth
protection. The latter gives notice of the application to the person having or
exercising parental authority, to the father and mother if they no longer have
parental authority and, if applicable, to the tutor.

In either case, unless all the parties agree otherwise, the court takes all
measures needed to ensure that the persons seeking the child’s return never
meet the adopters face to face and, if general consent was given to the child’s
adoption, can never identify them or be identified by them.

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435.  An application for a declaration of eligibility for adoption is notified
to the child’s father and mother, if known, to the child’s tutor, if the child has
one, and to the child if the child is 14 years of age or older; the judge may
order that the application be notified to the child if the child is 10 years of age
or older.

436.  An application for placement of a child is made by the adopter and

the director of youth protection; if special consent was given to the child’s
adoption, the application may be made by the adopter alone.

An application for placement of a child may also be made by the child’s

parent or a spouse who, alone, made an application for a declaration of eligibility
for adoption in accordance with article 560 of the Civil Code.

437.  A notice of the application for placement, stating the plaintiff’s name
and place of domicile, is notified to the child concerned if the child is 10 years
of age or older. The director of youth protection notifies a notice of the
application to the child’s father, mother or tutor if they are domiciled in Québec
and consented to the adoption in the year preceding the application.

If the adoption process is based on special consent to the child’s adoption

or if a declaration of eligibility for adoption was granted, the notice of the
application for placement is notified by the applicant.

438.  An application for the revocation of a placement order is notified to

the director of youth protection, who gives notice of the application to the
adopter and to the child.

If special consent was given to the child’s adoption, the application for
revocation is notified to the adopter and to the child if the child is 10 years of
age or older.

439.  If a report stating that the child has not adapted to the adoptive family
is filed with the court, the court sends the report to the adopter and, if applicable,
to the child’s tutor or lawyer, and informs them of the time within which they
may contest the report.

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.

440.  An application for adoption is made by the adopter. If there are two
adopters, the application is made jointly.

441.  In addition to being notified to the person concerned, an application

for the adoption of a person of full age is notified to the person’s married or
civil union spouse, children 14 years of age or older and ascendants.

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442.  To be admissible, an application for recognition of an adoption order
made outside Québec must be filed together with certified copies of the adoption
order and the foreign legislation. The applicant may attach ancillary applications
such as for a change of the adoptee’s name or given name.

CHAPTER VI
APPLICATIONS RELATING TO SUPPORT OBLIGATIONS

443.  The Government, by regulation, establishes standards for determining

the child support payable by a parent. The standards are established on the
basis of, among other factors, the combined basic child support contribution
payable by the parents, childcare expenses, postsecondary education expenses,
special expenses for the child and the custodial time of each parent.

The Minister of Justice prescribes and publishes in the Gazette officielle du

Québec the statement form and the support determination form the parties are
required to file. 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.

444.  No applications relating to a support obligation or defence against

such an application may be heard unless the applicant’s statement containing
the required information or, as applicable, the defendant’s statement has been
filed with the court office. The statement of a support creditor who is a minor
is made by the person acting for the minor. If the application or defence relates
to a parental child support obligation, the support determination form and the
prescribed documents must also be filed. The court may relieve the defendant
from failure to file any of those documents subject to the conditions it
determines.

No ruling on a support obligation may be made unless each party has filed
its statement and, if applicable, support determination form with the court
office in a sealed envelope.

445.  Unless the parties have made an agreement on the delivery of

documents, the applicant parent notifies the application for child support,
together with the prescribed documents, to the other parent. After receiving
notification of the application, the latter must in turn notify the prescribed
documents to the applicant at least five days before the application is to be
presented.

446.  If the particulars in a prescribed document are incomplete or contested,

or in any circumstances it considers it necessary, the court may supplement the
information. The court may determine a parent’s income by considering, among
other things, the value of the parent’s assets and the income they generate or
could generate, as it considers appropriate.

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447.  Child support is determined without consideration of any spousal
support claimed by a parent for themselves.

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.

448.  Parents who agree on a child support amount that differs from the
amount that would be payable under the child support determination rules must
clearly set out, in their agreement and in the support determination form, the
reasons for the difference.

If the judgment awards child support that does not reflect the parents’
agreement or, in the case of a defended application, the particulars in the forms
filed by the parents, the judgment must clearly state the reasons for the
difference, referring, if applicable, to the relevant sections of the form.

449.  If an agreement is reached on an application relating to a support

obligation and one of the parties is receiving benefits under a social assistance
or social solidarity program created under the Individual and Family Assistance
Act (chapter A-13.1.1), that party must state as much in the agreement. If a
party was receiving benefits under such a program during any period covered
by the agreement, that fact must also be stated in the agreement.

450.  As soon as a judgment awarding support or varying a judgment

awarding support is rendered, the court clerk enters the relevant information
from the judgment and statements in the register of support payments and sends
the statements to the Minister of Revenue with the judgment.

Information entered in the register of support payments is confidential.

CHAPTER VII
APPLICATIONS RELATING TO PARENTAL AUTHORITY

451.  An application for deprivation of parental authority or for withdrawal

of an attribute or of the exercise of an attribute of parental authority is notified
to the director of youth protection having jurisdiction in the child’s place of
residence. The director may intervene as of right as regards the application.

An application by the mother and father, or by either parent, to have their

authority restored is notified not only to the person having parental authority
or, as applicable, to the tutor, but also to the persons who were party to the
application for deprivation or withdrawal.

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452.  The court, even on its own initiative, may order the establishment of
a tutorship council so that it may seek its advice on the designation of a person
to hold parental authority or on the appointment of a tutor.

CHAPTER VIII
JUDGMENT

453.  When granting the annulment of a marriage or a civil union, separation

from bed and board, a divorce or the dissolution of a civil union, the court rules
on ancillary applications, such as applications relating to the custody,
maintenance or education of the children or to child or spousal support. At the
same time or at a later date, if warranted by the circumstances, the court rules
on issues relating to family patrimony and other patrimonial rights arising from
the marriage or civil union.

454.  The court seized of an application for the homologation of an

agreement or a draft agreement between the parties may amend the agreement
or draft agreement on the basis of the interests of the children or one of the
spouses. The court may also postpone its decision until the parties have amended
the agreement or draft agreement, or deny homologation, in which case the
proceeding continues.

455.  A judgment ordering the drawing up or correction of an act of civil

status or the alteration of the register of civil status must specify the entries to
be made in the register. The judgment is binding on the registrar of civil status.

456.  The court clerk notifies a judgment granting the annulment of a

marriage or a civil union, separation from bed and board or as to property, a
divorce or the dissolution of a civil union to the registrar of civil status, the
personal and movable real rights registrar, the Régie des rentes du Québec, the
depositary of the original of the marriage contract or civil union contract and
the depositary of the original of any contract modifying the matrimonial or
civil union regime.

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.

457.  If a judgment varying support obligations, child custody or provisional

measures is rendered in a different judicial district than the one in which the
initial judgment was rendered, the court clerk sends the judgment to the court
clerk of the district in which the initial judgment was rendered.

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CHAPTER IX
OPPOSITION TO MARRIAGE OR CIVIL UNION

458.  An opposition to a marriage or civil union must be notified, at least

five days before the date the opposition is to be presented, to the officiant, to
the intended spouses and, in the case of a marriage, to any person who must
consent to its solemnization.

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. A judgment dismissing an opposition cannot be appealed.

TITLE III
APPLICATIONS RELATING TO SUCCESSIONS, PROPERTY,
SECURITY AND EVIDENCE

CHAPTER I
PROBATE OF WILLS AND LETTERS PROBATE

DIVISION I
PROBATE OF WILLS

459.  When it would prove impractical or too costly to call all the known
successors to the probate of a will, the special clerk may grant an exemption
from that requirement and determine the persons to be notified by the applicant
or the notary seized of the probate application.

460.  If the original of the will is in the hands of a third person, the special
clerk may order the person to file it with the court office or to deliver it to the
notary designated by the special clerk so that the notary may examine it.

461.  A will probated by the court is deposited at the court office. The court
clerk issues to any interested person, on request, certified copies of the will,
the judgment probating the will and any evidence produced in support of the
probate application.

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 A will probated by a notary is attached to the minutes of the probate and
kept in the notary’s records. The notary issues certified copies of the will and
minutes of the probate to any interested person on request.

462.  A will may, subsequent to its probate, be contested by any interested

person who did not oppose the probate application or who, having opposed it,
raises grounds they were not in a position to raise at the time.

DIVISION II
LETTERS PROBATE

463.  Any interested person may apply for letters probate, for use outside
Québec, to prove their capacity as heir, legatee by particular title or liquidator
of the succession.

The letters probate certify that the succession has opened and identify the
liquidator of the succession. In the case of an intestate succession, the letters
probate also certify that the property of the deceased devolves to the persons
named in the proportions specified. In the case of a testamentary succession,
the letters probate certify that it has been proved that the will, a copy of which
is attached to the letters probate, is the only will made by the deceased or the
last will made by the deceased; in the latter case, they certify that the will
revokes previous wills in whole or in part.

464.  The application for letters probate is notified to the liquidator of the
succession, if known, and to all known heirs and legatees by particular title
who are resident in Québec.

465.  Letters probate may be revoked or corrected on an application by any

interested person who did not oppose their issue or who, having opposed it,
raises grounds they were not in a position to assert at the time.

466.  The court clerk or the notary issues certified copies of letters probate
to any interested person on request. However, if the letters probate are contested,
no copies may be issued until the application has been dealt with.

If letters probate are rectified by a judgment, the court clerk issues new
letters probate to replace the initial ones.

CHAPTER II
APPLICATIONS RELATING TO PUBLICATION OF RIGHTS

467.  An application relating to registration in the land register or in the

register of personal and movable real rights, or to the correction, reduction or
cancellation of an entry in either register, must be supported by a statement,
certified by the registrar, setting out the rights registered in the register in
respect of the property, the nature of the universality, or the name of the grantor.

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468.  An application relating to acquisitive prescription of an immovable
must be supported by a recent statement, certified by the registrar, setting out
the rights registered in the land register. It must also be supported by a copy
of or an extract from the cadastral plan or, if the immovable is not immatriculated
or is a part of a lot, by a technical description of the immovable and the related
plan, both prepared by a land surveyor. If a construction has been erected on
the immovable, a location certificate must also be attached.

The court that is to determine the right of ownership may, even on its own
initiative, order a determination of the boundaries of the immovable if the
accuracy of the plan is contested by the owners of the adjoining immovables.

CHAPTER III
BOUNDARY DETERMINATION

469.  A formal notice for the determination of boundaries must set out the
demand and the reasons for it, without any reference to disturbances, damage
or other claims. It must describe the immovables concerned and include the
name and contact information of the land surveyor proposed to perform the
operations.

If, following the formal notice, the owners agree to a boundary determination
and on the choice of a land surveyor, they record their agreement in a document
stating the reasons for the boundary determination, describing the immovables
concerned and identifying the land surveyor.

In the absence of an agreement, the person who gave the formal notice may
ask the court to rule on the right to a boundary determination or designate a
land surveyor.

470.  The land surveyor chosen by the owners or designated by the court
draws up a boundary determination report under the surveyor’s professional
oath and in the surveyor’s capacity as an expert. The report must give an account
of all the operations necessary to determine the boundaries of the immovables
concerned. It must include a plan of the premises, state the respective
contentions of the owners concerned and establish the boundaries between the
immovables that appear to the surveyor to be the most accurate. The land
surveyor, after filing the report with the court office if the land surveyor was
designated by the court, notifies a copy of it to the owners and informs them
of the consequences of their accepting, not accepting or contesting the report.

The expert fees are apportioned equally among the owners.

471.  If the owners accept the boundary determination report, they record
their agreement in writing, sign it in the presence of the land surveyor and ask
the land surveyor to place boundary markers, to draw up minutes of the
boundary marking operations and to register the report and the minutes in the

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land register. The boundary determination is, between the parties, declaratory
as regards the boundary lines of the immovables and ownership rights.

472.  If one of the owners does not accept the boundary determination report,
that owner, within one month after the notification of the report, may ask the
court to rule on the boundary determination and determine the boundary lines
of the immovables. If no such demand is instituted within that strict time limit,
the other owner may ask the court to homologate the report.

After examining the report, the court rules on the boundary determination,
determines the boundary lines of the immovables and orders the land surveyor
to place boundary markers in the presence of witnesses, to draw up minutes of
the boundary marking operations and to register the boundary determination
report and the minutes in the land register. The court issues the same orders if
it agrees to homologate the report.

The judgment is, for all, declaratory as regards the boundary lines of the
immovables and ownership rights, and the registration of the minutes of the
boundary marking operations constitutes proof of the execution of the judgment.

473.  If, in the course of the proceeding, an owner transfers their rights in
the immovable that is the subject of the boundary determination, the transferee
may be compelled to continue the proceeding.

474.  If a boundary determination might affect immovables that are not

adjoining to the plaintiff’s immovable, the court, even on its own initiative,
may order the owners of the non-adjoining immovables to intervene in the
matter. A land surveyor appointed by the parties may also ask the court to order
such intervention.

475.  The costs of the boundary marking operations and of the minutes are
apportioned according to the length of the boundary line of each immovable,
as determined.

CHAPTER IV
CO-OWNERSHIP AND PARTITION

476.  In granting an application for the partition of undivided property, the

court may order either a partition in kind or the sale of the property.

The court may appoint an expert, or more than one expert if necessary, to
assess the value of the property, divide the property into lots and distribute the
lots, if the property can conveniently be divided and distributed, or to sell the
property in the manner determined by the court. On completion of the
operations, the expert prepares a report, files it with the court office and delivers
a copy to the co-owners.

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 The expert must have the report homologated; the homologation application
may be contested by any interested person. When homologating the report, the
court may, if necessary, direct the court clerk or any other person it designates
to hold a drawing of the lots; minutes of this operation must be filed in the
court record.

477.  An application relating to divided co-ownership of an immovable is

notified to the syndicate of co-owners, which must inform all the co-owners
of the subject matter of the application within five days after the notification.

CHAPTER V
SAFETY DEPOSIT BOXES

478.  A person may open a safety deposit box leased by another person in
a financial institution if authorized to do so by that person or, if that person is
deceased, by the liquidator of the succession or, in the absence of a liquidator,
by the successors. As well, a person may open such a safety deposit box if
authorized by the court to do so.

The court grants its authorization only if it is satisfied that all those who
may have rights in the property contained in the safety deposit box have been
notified of the application or that sufficient effort has been made to notify them.
The court may authorize the opening of the box subject to the conditions it
specifies.

When the safety deposit box is opened, a notary or a bailiff draws up minutes
stating the names of the persons present and describing the content of the box
and the property removed from the box. If the lessee of the box is deceased,
only a notary is authorized to draw up the minutes.

479.  Before the safety deposit box is opened, the applicant pays to the lessor
an amount sufficient to cover the cost of opening and restoring the box.

CHAPTER VI
APPLICATIONS RELATING TO SECURITY

480.  An application relating to security must be supported by a recent

statement from the relevant register, certified by the registrar.

481.  A judgment ordering the forced surrender of property specifies the

time within which, the manner in which and the person to whom the property
is to be surrendered. The judgment also orders that, on failure to surrender the
property within the time specified, the debtor or the possessor or holder of the
property be evicted, or the property be taken away from them, as applicable.

482.  An order to surrender property issued before the expiry of the time
specified in the prior notice of the exercise of a hypothecary right may be

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annulled by the court on the application of the possessor or holder of the
property if the allegations in the demand that led to the issue of the order are
insufficient or false.

The application for the annulment of the order must be notified to all the
parties to the proceeding within five days after notification of the order.

If the order is annulled, the creditor is required to return the property or pay
back the alienation price, as applicable.

483.  Where the identity of the owner or of one of the owners of hypothecated
property is unknown or uncertain and the application was notified by public
notice, the court may authorize the creditor to exercise a hypothecary right if
no one contests the application or exercises the rights of the hypothecary debtor
or of the person against whom the right is exercised.

CHAPTER VII
COPIES OF OR EXTRACTS FROM NOTARIAL DEEDS

484.  Notaries are required, subject to payment of their professional fees

and expenses, to give access to or issue copies of or extracts from any deed in
their records, or in the records of which they are the assignee or custodian, to
the parties to the deed, their heirs or their representatives.

They are not required, however, to give access to or issue a copy of a will
that has been revoked or of a deed that is not required to be published, unless
ordered by the court or requested by the testator or a party to the deed.

485.  If a notary refuses, or fails to respond, any person who establishes

their right or their interest may request a court order directing the notary to
give access to or issue a copy of or extract from a deed.

The order specifies the date and time when access must be given or the copy
or extract issued. It must be notified in sufficient time to the notary; the notary
certifies on the deed that they are acting on the order of the court.

CHAPTER VIII
RECONSTITUTION OF CERTAIN DOCUMENTS

486.  When the minute or the original of an authentic act or of a public

register has been lost, destroyed or removed, any person holding an authentic
copy of or extract from the act or register, or any interested person, may ask
the court to authorize or order that it be deposited with the public officer the
court designates to serve as the original.

The applicant pays the depositing fee and provides a new copy to the original
holder as well as compensation for the disbursements incurred.

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487.  When an authentic act or a public register cannot be replaced, the
public officer who had custody of the act or register establishes and implements
a procedure for reconstituting it.

If the public officer does not act in a timely manner, any interested person
may ask the court to designate a person to establish a reconstitution procedure.

The court homologates the reconstituted document on being satisfied that

the procedure followed was suitable and provides a valid reconstitution.

488.  The homologated reconstituted document serves as the original; it is

deposited with the public officer who had custody of the original or with that
officer’s transferee.

Homologation does not prevent an interested person from contesting the

content of the document or asking for corrections or additions.

TITLE IV
DEMANDS AND APPLICATIONS INVOLVING PRIVATE
INTERNATIONAL LAW

CHAPTER I
GENERAL PROVISIONS

489.  Any person having the legal capacity to sue or be sued may do so
before the courts of Québec. If, under the law governing such capacity, the
person must be represented, assisted or authorized, they must, before the courts
of Québec, be represented, assisted or authorized in the manner specified by
that law or by Québec law.

Any person who may sue or be sued in a certain capacity under the law of
a foreign State may do so in the same capacity before the courts of Québec.

Any group of persons authorized by its constituting Act to sue or be sued

may do so before the courts of Québec.

490.  Where a Québec court is seized of a dispute that involves a foreign

element and the defendant has no domicile, residence or establishment in
Québec, the latter has 30 days to answer the summons and the parties have
three months from the date on which the originating demand is served to file
a case protocol; these time limits may be shortened if the parties consent or if,
in an urgent situation, the judge so orders.

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CHAPTER II
PRELIMINARY EXCEPTIONS AND SURETYSHIP

491.   An application urging a Québec court to decline international

jurisdiction, stay its ruling or dismiss a demand for lack of international
jurisdiction is made, as with any preliminary exception, no later than at the
case management conference.

When ruling on its international jurisdiction, the court considers the guiding
principles of procedure in addition to the provisions of article 3135 of the Civil
Code.

492.  If a plaintiff is not resident in Québec or, being a legal person, is not
domiciled in Québec, the defendant may, at any stage of the proceeding, require
that the plaintiff be ordered to provide a suretyship, within a specified time, to
cover the legal costs the court may award against the plaintiff, under pain of
dismissal of the demand. A person acting for another person under the rules
of representation before the courts may also be required to provide a suretyship
if the representative or one of the representative’s mandators is not resident in
Québec or, being a legal person, is not domiciled in Québec.

In determining the amount of the suretyship, the court considers the nature,
complexity and importance of the case, including the costs involved, as well
as the plaintiff’s financial situation and the value of the plaintiff’s property in
Québec; if the plaintiff is acting on behalf of a mandator who is not resident
in Québec, the court considers the mandator’s financial situation. On a party’s
request, the court may increase or reduce the amount of suretyship if warranted
by developments in the case or by the plaintiff’s circumstances.

493.   No suretyship covering legal costs may be ordered in judicial

proceedings relating to family matters or in situations that are subject to the
Act respecting the civil aspects of international and interprovincial child
abduction (chapter A-23.01) or the Act to secure the carrying out of the Entente
between France and Québec respecting mutual aid in judicial matters
(chapter A-20.1).

CHAPTER III
INTERNATIONAL NOTIFICATION

494.  In States party to the Convention on the Service Abroad of Judicial

and Extrajudicial Documents in Civil and Commercial Matters, made at The
Hague on 15 November 1965, international notification is made in accordance
with the Convention, which is reproduced in a schedule to this Code and has
force of law in Québec.

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 In States not party to the Convention, notification is made as provided for
in Book I or in accordance with the law in force in the place where the
notification is made. The court, on request, may authorize a different method
of notification if it is required by the circumstances.

The certificate of notification is sent to the notifying party through the same
channels as those used to send the request for notification.

495.  If it is established that no certificate of notification was received within

six months after an originating demand was sent to a foreign State for
notification in that State according to a method recognized by the law of that
State for the notification of pleadings from abroad, despite reasonable efforts
to secure the certificate through the competent authorities of the foreign State,
the court may render judgment against the defendant. However, if such
notification was made in a State not party to the Convention, the court may so
render judgment if no certificate of notification is received within three months.

A party against which a default judgment is so rendered following failure

to answer the summons or defend on the merits may, within one year after the
judgment date, apply for the revocation of the judgment if it can show that, by
no fault of its own, it did not become aware of the proceeding in sufficient time
to file a defence or to exercise a recourse against the decision, and if the grounds
raised in its defence do not appear completely unfounded.

496.  The Minister of Justice, on a request received by the Government

through diplomatic or consular channels, may direct a bailiff to notify a pleading
from a foreign State to a person in Québec.

The pleading to be notified must be certified by an officer of a court of justice

of the place from which it originates. If it is not in French or English, it must
be accompanied by an authenticated translation, and the certificate of notification
must state that a translation is attached to the notified pleading.

The notifying party pays the notification costs in advance or undertakes to

reimburse them, unless otherwise provided by an international commitment
binding on Québec.

CHAPTER IV
CALLING OF WITNESSES

497.  A person resident in another province or in a territory of Canada may

be called to attend at court as a witness. The witness’s evidence is taken at a
distance unless it is established to the satisfaction of the court that attendance
in person is necessary or possible without any major inconvenience to the
witness. An advance on the witness indemnity and allowances must accompany
the subpoena.

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 However, such a witness may only be called on a special order of the court
endorsed on the subpoena, which must be notified in accordance with the law
of the witness’s place of residence.

A defaulting witness resident outside Québec, unless the person is in Québec

at the time of the default, may only be punished by the court of their residence,
on the face of the certificate of default issued by the court seized.

498.  The court confirms a subpoena issued by an authority in another

province or in a territory of Canada if it is endorsed with a special order and
accompanied by an advance on the witness indemnity and allowances.

CHAPTER V
ROGATORY COMMISSIONS

DIVISION I
ROGATORY COMMISSION ISSUED IN QUÉBEC

499.  If the parties cannot agree on the use of technological means to examine
a witness or to gather evidence, or if the use of such means is not practicable,
the court, on an application, may appoint a commissioner for that purpose.

If the application concerns a person who is domiciled or resident in a foreign

State, the court may issue a rogatory commission either to a competent authority
in that State or to Canadian diplomatic or consular authorities. If required by
the foreign State, the decision is accompanied by a translation, the cost of
which is borne by the party that wishes to conduct the examination.

A commission for the examination of a person in active service in the

Canadian Forces outside Québec is addressed to the Judge-Advocate General
to be executed by a person designated by the latter.

500.  A decision appointing a commissioner sets out the names of the persons
to be examined and the manner in which they are to be sworn, the instructions
needed to guide the commissioner in the execution of the commission, and the
time within which the commissioner’s report must be filed; it may also
determine an amount to cover the commissioner’s expenses and disbursements
and direct that it be filed with the court office by the party that applied for the
commission.

The party that applied for the commission, or if that party fails to act, the
party that joined in obtaining it, is required to see that it is delivered and
executed promptly.

501.  If a party wishes to be represented at the examination, it must advise

the commissioner in sufficient time and provide the name and address of its
representative; the commissioner is required to give the representative at least

130
five days’ notice of when and where the proceedings in execution of the
commission are to take place.

502.  A party may ask the court to attach written examinations and written
cross-examinations to the commission.

Whether or not any questions have been formulated in advance, the

commissioner may ask a witness any relevant question and allow any relevant
question to be asked. The commissioner reserves any objections to evidence,
the parties retaining the right to present them before the court.

503.  Within the time specified in the decision, the commissioner notifies
to the court clerk a report on the execution of the commission together with
the transcripts or recordings of the witness examinations, attested by the
commissioner, and the exhibits produced by the witnesses; the documents must
be in a sealed envelope bearing a list of its content and the case name.

An unjustified failure to file a commission report cannot prevent the court

from hearing the case.

DIVISION II
ROGATORY COMMISSION ISSUED IN FOREIGN STATE

504.  A foreign party or authority may apply to the court for execution of
a rogatory commission. The court may appoint a commissioner to examine a
witness or to gather evidence if no commissioner is designated in the
commission.

The same rules, with the necessary modifications, apply to an application

presented by a commission of inquiry established by the Governor General in
Council or a Lieutenant Governor in Council.

505.  The rogatory commission is executed in accordance with the rules of

this Code, unless the foreign authority has requested a different procedure. The
foreign authority must in any event give an undertaking to guarantee the
payment of costs.

The party that applied for execution of the commission informs the foreign
authority of when and where the proceedings are to take place.

506.  The documents attesting to the execution of the rogatory commission,

or the court decision refusing to allow its execution, are sent to the foreign
authority through the same channels as those used to send the application for
execution of the commission.

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CHAPTER VI
RECOGNITION AND ENFORCEMENT OF FOREIGN DECISIONS AND
FOREIGN PUBLIC DOCUMENTS

507.  The recognition and enforcement of a decision rendered outside

Québec is sought by means of an originating demand.

It may also be sought by means of an incidental application in the course of

a proceeding by any of the parties.

508.  A party seeking the recognition or the enforcement of a foreign decision

attaches the decision to the demand or application, together with a certificate
from a competent foreign public official stating that the decision is no longer
appealable in the State in which it was rendered or that is final or enforceable.

If the decision was rendered by default, certified documents showing that

the originating demand was properly notified to the defaulting party must also
be attached to the demand or application.

Documents in a language other than French or English must be accompanied

by a translation authenticated in Québec.

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BOOK VI
SPECIAL PROCEDURAL ROUTES

TITLE I
PROVISIONAL AND CONTROL MEASURES

CHAPTER I
INJUNCTION

509.  An injunction is an order of the Superior Court directing a person or,

in the case of a legal person, partnership or association, its officers or
representatives to refrain from or cease doing something or to perform a
specified act.

A judgment granting an injunction is served on the parties and the other

persons identified in the judgment.

510.  A party may ask for an interlocutory injunction in the course of a

proceeding or even before the filing of the originating demand if the latter
cannot be filed in a timely manner. An application for an interlocutory injunction
is notified to the other party with a notice of the date on which it is to be
presented.

In an urgent case, the court may grant a provisional injunction, even before
notification. A provisional injunction cannot be granted for a period exceeding
10 days without the parties’ consent.

511.  An interlocutory injunction may be granted if the applicant appears

to have a right to it and it is judged necessary to prevent serious or irreparable
prejudice to the applicant or to avoid creating a factual or legal situation that
would render the judgment on the merits ineffective. The court may grant an
interlocutory injunction subject to a suretyship being provided to cover the
costs and any resulting prejudice.

The court may suspend or renew an interlocutory injunction for the time and
subject to the conditions it determines.

512.  If an interlocutory injunction is granted, it is served on the other party

and the other persons identified.

If the originating demand has not yet been served, it is served with the
injunction; if the originating demand has not yet been filed, the injunction is
served without the originating demand, but the latter must be served within the
time set by the court.

513.  An injunction cannot be granted to restrain judicial proceedings or

the exercise of an office within a legal person established in the public interest

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or for a private interest, except in the cases described in article 329 of the Civil
Code.

514.  An injunction remains in force despite an appeal; an interlocutory

injunction remains in force despite a judgment on the merits dissolving the
injunction if the plaintiff initiates an appeal.

In either case, a judge of the Court of Appeal may provisionally stay the
injunction for a specified time.

515.  When imposing a contempt sanction for violation of an injunction,

the court may order the destruction or removal of anything realized contrary
to the injunction.

CHAPTER II
SEIZURE BEFORE JUDGMENT AND SEQUESTRATION

DIVISION I
SEIZURE BEFORE JUDGMENT

516.  The purpose of a seizure before judgment is to place property in the

hands of justice while a proceeding is pending. A seizure before judgment is
carried out in the same manner and according to the same rules as a seizure
after judgment, subject to the rules of this chapter.

A seizure before judgment may be carried out before the commencement or

in the course of a proceeding or while the case is under appeal, but in the latter
case with the authorization of the court of first instance.

A third person is given custody of the seized property, unless the seizor
authorizes the bailiff to leave the property in the custody of the person from
whom it is seized.

517.  A plaintiff, as of right, may seize the following before judgment:

(1)  movable property the plaintiff has the right to revendicate;

(2)  movable property for whose price the plaintiff is entitled to be collocated
by preference and which is being used in such a manner as to jeopardize the
realization of the plaintiff’s prior claim; and

(3)  movable property the plaintiff is permitted by law to seize in order to

secure the exercise of rights in the property.

However, the authorization of the court is necessary to seize a technological

medium or a document stored on such a medium.

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518.  With the authorization of the court, the plaintiff may seize the
defendant’s property before judgment if there is reason to fear that recovery
of the claim might be jeopardized without the seizure.

519.  In a proceeding for the annulment of a marriage or a civil union, for

separation from bed and board or as to property, for divorce or for the dissolution
of a civil union, or for payment of a compensatory allowance, each spouse, as
of right, may seize before judgment movable property belonging to that spouse
whether it is in the hands of the other spouse or a third person. With the
authorization of the court, each spouse may also seize property belonging to
the other spouse for the share the spouse would be entitled to on the dissolution
of the matrimonial or civil union regime.

520.  A seizure before judgment is carried out under a notice of execution

and according to the seizor’s instructions, supported by a sworn statement in
which the seizor affirms the existence of the claim and the facts justifying the
seizure, specifying, if applicable, the source of the information relied on. If
the authorization of the court is necessary, it must appear on the seizor’s sworn
statement.

The instructions direct the officiating bailiff to seize all the defendant’s
movable property or only certain specified movables or immovables. The bailiff
notifies the notice of execution to the defendant along with the seizor’s sworn
statement.

521.  If a seizure before judgment is carried out before notification of the

originating demand, the seizor files the originating demand with the court office
and notifies it to the defendant within five days after notification of the notice
of execution.

522.  Within five days after notification of the notice of execution, the
defendant may ask that the seizure be quashed on the grounds that the allegations
in the seizor’s sworn statement are insufficient or false. If this proves to be
true, the court quashes the seizure; if not, it confirms the seizure and may revise
its scope.

523.  The defendant may prevent the removal of property, be released from
the seizure or recover seized property by giving a sufficient guarantee to the
bailiff. If the bailiff refuses the guarantee offered, the defendant may ask the
court for a decision.

The deposit of a sum of money, of a guarantee issued by a financial institution

carrying on business in Québec or of an insurance policy guaranteeing the
performance of the defendant’s obligations constitutes a sufficient guarantee.
The amount of the guarantee is determined by the amount claimed or the value
of the seized property.

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DIVISION II
SEQUESTRATION

524.  The court, even on its own initiative, may order the sequestration of
disputed property if it considers it necessary to preserve the parties’ rights in
the property. When ordering sequestration, the court designates the sequestrator
or convenes the parties to appear before it on a specified date to choose the
sequestrator.

If an appeal has been initiated, the court of first instance may order
sequestration of the property.

525.  The sequestrator takes an oath before the court clerk to preserve the
property as its depositary, and is placed in possession of the property by a
bailiff. The bailiff draws up minutes describing the property, which are
authenticated by the bailiff and the sequestrator.

526.  The sequestrator is bound by all the obligations of conventional

sequestration, unless the court decides otherwise.

The costs and remuneration of the sequestrator are taxed by the court clerk
and are owed solidarily by the parties to the dispute, unless the court decides
otherwise.

CHAPTER III
AUTHORIZATION, APPROVAL AND HOMOLOGATION

527.  An application for authorization, approval or homologation is, when

there is a dispute, presented before the court on the date specified in the attached
notice of presentation. The presentation date cannot be less than five days after
notification of the application.

528.  Homologation is approval by a court of a juridical act in the nature of

a decision or of an agreement. It gives the homologated act the same force and
effect as a judgment of the court.

The homologating court only examines the legality of the act; it cannot rule
on its advisability or merits unless a specific provision empowers it to do so.

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CHAPTER IV
JUDICIAL REVIEW

DIVISION I
GENERAL RULES

529.  In a judicial review, the Superior Court may, depending on the subject
matter,

(1)  declare inapplicable, invalid or inoperative a provision of an Act of the

Parliament of Québec or the Parliament of Canada, a regulation made under
such a law, an order in council, a minister’s order or any other rule of law;

(2)  evoke, on a party’s application, a case pending before a court, or review

or quash a judgment rendered by a court or a decision made by a person or
body under the authority of the Parliament of Québec, if the court, body or
person acted without jurisdiction or in excess of jurisdiction, or if the procedure
followed was affected by some serious irregularity;

(3)  direct a person holding an office within a public body, a legal person, a
partnership or an association within the meaning of the Civil Code to perform
an act which they are by law required to perform, provided the act is not of a
purely private nature; or

(4)  dismiss a person who, without right, is occupying or exercising a public

office or an office within a public body, a legal person, a partnership or an
association within the meaning of the Civil Code.

Except in the case of lack or excess of jurisdiction, judicial review is available

only if the judgment or the decision cannot be appealed or contested.

An application for judicial review must be served within a reasonable time

after the act or the fact on which it is based.

530.  An application for judicial review is presented before the Superior

Court on the date specified in the attached notice of presentation, which cannot
be less than 15 days after service of the application. The judicial review is
conducted by preference.

Unless the court decides otherwise, the application does not stay proceedings
pending before another court or the execution of the judgment or decision under
review. If necessary, the court orders that the exhibits it specifies be sent without
delay to the court clerk.

A review judgment that rules in favour of the applicant is served on the

parties if it orders that something be done or stopped.

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531.  At any time after a notice of appeal has been filed, an appellate judge
may order a stay of any proceeding or of any decision whose execution is not
stayed by the appeal.

DIVISION II
SPECIAL RULES APPLICABLE TO USURPATION OF OFFICE

532.  On removing the defendant from office, the court, on an application,

may confer the office on another person if facts proving that person’s right to
the office are set out in the application for judicial review. The review judgment
may award punitive damages against the defendant.

533.  If the review judgment is based on the grounds that the defendant may
have committed an indictable offence, it is effective immediately despite an
appeal. Nevertheless, the office is only deemed vacant as of the day on which
the judgment becomes final, unless it is vacated at an earlier time for another
reason; in the meantime, the defendant is not entitled to the benefits attached
to the office.

If the office concerned is a seat on the council of a municipality that is subject

to Title I of the Act respecting elections and referendums in municipalities
(chapter E-2.2), the effects of provisional execution of the judgment are
specified by that Act.

534.  The person on whom the court confers the office may exercise it after
taking the required oath and providing the required suretyship, and may demand
that the defendant hand over the property incidental to the office. If the
defendant refuses, the court may direct a bailiff to take possession of the
property and hand it over to the rightful person.

535.  The election of a warden in accordance with section 210.29.2 of the

Act respecting municipal territorial organization (chapter O-9) or of a mayor
or a municipal councillor cannot be contested under this chapter, except for
lack of qualification.

TITLE II
RECOVERY OF SMALL CLAIMS

CHAPTER I
GENERAL PROVISIONS

536.  A demand for recovery of a claim not exceeding $15,000, excluding

interest, is instituted under the rules of this Title if the plaintiff is acting in their
own name and for their own account or is acting as administrator of the property
of others, tutor or curator or under a protection mandate. The same applies to
a demand seeking the resolution, resiliation or cancellation of a contract

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provided neither the value of the contract, nor the amount claimed, if any,
exceeds $15,000.

A legal person, a partnership or an association cannot act as plaintiff under

the rules of this Title unless a maximum of five persons bound to it by an
employment contract were under its direction or control at any time during the
12-month period preceding the demand.

537.  This Title does not apply to demands arising from the lease of a
dwelling, demands for support or demands alleging defamation.

Nor does it apply to demands brought by a person, partnership or association

on the basis of a claim assigned to them in return for payment.

538.  A plaintiff may voluntarily reduce the amount claimed to $15,000 or

less, but cannot divide a claim exceeding that amount into two or more claims
not exceeding that amount, under pain of dismissal of the demand.

However, a plaintiff is not deemed to have divided a claim if it arises from

a credit contract providing for repayment by instalments or from a contract
involving the sequential performance of obligations, such as a lease, an
employment contract, a disability insurance contract or other similar contract,
provided the amount claimed in the demand does not exceed $15,000.

539.  Two or more creditors may join their demands if they have the same
juridical basis or raise the same points of law and fact and none of them exceeds
$15,000. The court may separate the demands at any time.

540.  At any time in the course of the proceeding, the court, even on its own
initiative, may take the case management measures it sees fit and, if necessary,
convene a case management conference or hear a preliminary application and
issue any appropriate order.

If the court considers it necessary in order to assess facts relating to the

dispute, it may order a joint expert report, specifying the applicable terms; it
may also ask a bailiff to ascertain the state or condition of certain premises or
things.

If circumstances permit, the court may attempt to reconcile the parties during
the hearing or at a settlement conference. If no settlement is reached, the judge
seized may, with the parties’ consent, continue the trial.

541.  When the operability, constitutionality or validity of a provision of a

law, a regulation, an order in council, a minister’s order or any other rule of
law is challenged before the court, the court may order that the demand be
referred to the competent court or tried according to the procedure set out in
Book II.

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CHAPTER II
REPRESENTATION OF PARTIES

542.  Natural persons must self-represent; they may, however, give their
spouse, a relative, a person connected to them by marriage or civil union or a
friend a non-remunerated mandate to represent them. The mandate must be
recorded in a document identifying the mandatary and stating the reasons why
the mandator is unable to self-represent, and be signed by the mandator.

The State, legal persons, partnerships and associations can only be represented
by an officer or employee in their service.

Despite the Charter of human rights and freedoms, lawyers or collection

agents cannot act as mandataries except to recover professional fees owed to
the partnership to which they belong. By way of exception, if a case raises a
complex issue on a point of law, the court, on its own initiative or on a party’s
request, after obtaining the consent of the chief judge of the Court of Québec,
may authorize the parties to be represented by lawyers. In such a case, except
for parties who do not qualify as plaintiffs under this Title, the lawyers’
professional fees and costs are borne by the Minister of Justice but cannot
exceed those set in the tariff of fees established by the Government under the
Act respecting legal aid and the provision of certain other legal services (chapter
A-14).

Both natural persons and legal persons may consult a lawyer or a notary,
including for the purpose of preparing the presentation of their case.

CHAPTER III
PROCEDURE

DIVISION I
INSTITUTION OF DEMAND, AND DEFENCE

543.  The parties may inquire with the court office for information on the
conduct of the proceeding and the execution of the judgment and, more
specifically, on key procedural steps and the rules governing the venue for the
demand, the disclosure of exhibits, the production of evidence and the legal
costs. If necessary, the court clerk assists the parties in preparing pleadings or
completing the forms placed at their disposal, but cannot give them legal advice.

544.  The demand must set out the facts on which it is based, the nature of
the claim, the amount of the claim and interest and the conclusions sought, and
include a list of the exhibits in support of the demand. It must be supported by
a statement by the plaintiff, which is deemed to be a sworn statement, attesting
that the facts alleged are true and that the amount claimed is due. The demand
must also state the plaintiff’s name and domicile or residence and, if applicable,
those of the plaintiff’s mandatary, as well as the defendant’s name and last

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known place of residence. In addition, the demand must specify whether the
plaintiff might consider mediation.

If the plaintiff is a legal person, a partnership or an association, the plaintiff’s

statement must attest that a maximum of five persons bound to it by an
employment contract were under its direction or control at any time during the
12-month period preceding the demand.

The demand may be filed with the office of the court nearest to the plaintiff’s
domicile, residence or establishment. If applicable, the court clerk forwards it
to the office of the court having territorial jurisdiction designated by the plaintiff.

545.  The demand is presented to the court clerk, who determines whether
it is admissible. If the demand is admissible, the court record is opened. If the
demand is not admissible, the court clerk notifies a notice so informing the
plaintiff and specifying that the latter may, within 15 days after the notification,
ask for a review of the decision by the court, which decides the matter on the
face of the record.

If admissible, the demand is filed with the court office together with the
exhibits or copies of the exhibits. In all instances, if originals of the exhibits
are not filed with the demand, they may be produced on the day of the trial.

546.  The court clerk notifies the demand to the defendant together with a
notice setting out the options available to the defendant, and the list of exhibits.

The notice must be in keeping with the modal established by the Minister
of Justice; it states that if the defendant fails to indicate the option chosen to
the court clerk within 20 days after the notification, judgment may be rendered
against the defendant without further notice or extension.

547.  The options available to the defendant are the following:

(1)  to pay the amount claimed to the court office or pay it directly to the
plaintiff and send the proof of payment or acquittance obtained from the plaintiff
to the court office, or to reach a settlement with the plaintiff and send a document
recording the settlement agreement to the court office; or

(2)  to defend on the merits and so inform the court office, specifying the
grounds of defence, which may include prescription.

In addition, a defendant who chooses to defend the demand may

(1)  ask that the dispute be referred to mediation;

(2)  ask that the demand be dismissed, that the case be referred to another
judicial district or to the competent court or administrative tribunal, or that the
case be tried by the same court but under the rules of Book II, specifying the
reasons for the request;

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 (3)  ask that a third person be forced to intervene as a co-defendant or an
impleaded party, in order to assert a demand in warranty against that person
or allow full resolution of the dispute, in which case the defendant informs the
court clerk of the person’s name and last known address;

(4)  assert the defendant’s own claim against the plaintiff, provided it arises
from the same source as the demand or from a related source and the amount
claimed would make it admissible under this Title, or ask for the resolution,
resiliation or annulment of the contract on which the demand is founded; or

(5)  make a tender and deposit the amount tendered with the court office or
with a trust company.

548.  If the defendant has paid the plaintiff, the court clerk closes the record;
if the parties have reached a settlement and one of the parties so requests, the
court clerk homologates the settlement agreement as a judgment.

If the defendant has asked for a referral of the case, the court clerk so informs
the plaintiff, specifying that the plaintiff has 10 days after being so informed
to make representations in writing. On the expiry of that time, the court clerk
submits the request and any representations to the court, which decides the
matter on the face of the record. If the court considers the request to be well-
founded, the court clerk sends the record to the office of the court having
jurisdiction.

If the defendant has made a tender, the court clerk so informs the plaintiff.

549.  If the defendant chooses to defend on the merits, the defendant specifies
the grounds of defence and files the exhibits or copies of the exhibits in support
of the contentions of the defence with the court office. If originals of the exhibits
are not filed with the defence, they may be produced on the day of the trial.

The court clerk notifies the defence to the plaintiff along with a list of the
exhibits filed. If no grounds of defence are provided, the court clerk directs the
defendant to make such grounds known within 10 days, specifying that failure
to do so will result in the defendant being considered in default for failure to
defend.

550.  The defendant, regardless of the number of employees in the defendant’s

employ, may assert against the plaintiff the defendant’s own claim arising from
the same source as the demand or from a related source, provided the amount
claimed does not exceed $15,000, or request the resolution, resiliation or
annulment of the contract on which the demand is founded. The defendant files
the exhibits in support of the contentions of the defence with the court office.
If the defendant’s own claim is not admissible as a small claim, the court clerk
notifies a notice so informing the defendant and specifying that the defendant
may, within 15 days after the notification, ask for a review of the decision by
the court, which decides the matter on the face of the record.

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551.  If the defendant is requiring the intervention of a third person, the
defendant explains the grounds for the intervention to the court clerk and
submits the exhibits in support of the related contentions. The court clerk
informs the plaintiff and notifies the demand and the defence to the intervenor,
specifying that the intervenor’s attendance is required on the defendant’s
request. The court clerk also informs the intervenor, as if the latter were a
defendant, of the options available and the applicable time limits.

552.  If the defendant is in default for failure to defend, the special clerk
renders judgment on the face of the demand and the exhibits filed in the record
or, if the special clerk considers it necessary, after hearing the plaintiff’s
evidence.

553.  A defendant being sued under Book II may request that the case be
heard under this Title provided the defendant would qualify to act as plaintiff
under this Title. The same request may be made when the demand is based on
a claim assigned to a third person in return for payment provided the defendant
would qualify to act as plaintiff under this Title.

The request is presented to the clerk of the court seized of the matter, at any
time before the case is set down for trial and judgment. If the request is found
to be admissible, the court clerk notifies the decision to the plaintiff and the
latter may, within 15 days after the notification, ask for a review of the decision
by the court seized of the demand. The court clerk, at the same time, gives the
defendant notice to file a defence and the supporting exhibits. In the absence
of a review, the court clerk transfers the record so that the case may be continued
under this Title.

DIVISION II
NOTICE OF HEARING AND CALLING OF WITNESSES

554.  Once the case is ready, at least one month but not more than three
months before the scheduled hearing date, the court clerk notifies a notice of
the hearing to the plaintiff and to the other parties that have filed a defence.

The notice of hearing mentions that a party may, on request, examine the
exhibits and the documents filed with the court office by the other parties and
obtain copies of them. It also informs the parties that any other document not
yet filed must be filed at least 15 days before the scheduled hearing date, and
that any person mandated to represent the plaintiff must file the mandate with
the court office.

The notice of hearing reminds the parties that they must bring their witnesses
to the hearing, but that a witness’s testifying at court may be replaced by a
statement. It also informs the parties that they have 15 days after its receipt to
give the court clerk the names of any witnesses they wish to have called,
specifying the reason they are called as witnesses and the subject matter of
their testimony, and to file the statements of any witnesses who will not be

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attending at court. As well, it warns the parties that, if the judge considers that
a witness was needlessly called and required to attend at court, they may be
ordered to pay the related legal costs.

The court clerk notifies a subpoena to the witnesses named by the parties
and informs them that they will not be compensated, unless the court decides
otherwise. If the number of witnesses appears to be needlessly high, the court
clerk may request instructions from the court.

555.  If, within 15 days after notification of the notice of hearing, a party
files with the court office a deponent’s statement as factual evidence or as
evidence in lieu of an expert report, the court clerk notifies the statement to
the other party. If it considers it necessary, the other party may request the court
clerk to call the deponent to attend at court.

DIVISION III
MEDIATION

556.  The court clerk informs the parties at the earliest opportunity that they
may at no additional cost submit their dispute to mediation. If the parties consent
to mediation, they may request the court clerk to refer them to the mediation
service. In that case, the mediation session is presided over by a lawyer or a
notary, certified as a mediator by their professional order.

The mediator files a report with the court office giving an account of the
facts, the parties’ positions and the points of law raised.

If the parties reach a settlement, they file with the court office either a notice
that the case has been settled or the signed settlement agreement. A settlement
agreement confirmed by the court is equivalent to a judgment.

DIVISION IV
HEARING

557.  In all cases where a hearing is necessary, the court clerk, to the extent
possible, sets a date and time for the hearing that will allow the parties and
their witnesses to attend. The court may hold the hearing elsewhere than where
the demand was filed.

The court clerk may postpone a case on a party’s request if it is the first
request of the kind and it is made at least one month before the scheduled
hearing date. The court clerk informs the other party without delay of the
request and hears the other party’s representations. If the request is granted,
the court clerk rules on the costs incurred by the latter party; the decision on
costs may be revised by the court at the hearing on the merits. Any further
request for a postponement must be submitted to the court for a decision.

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558.  If the Superior Court or the Court of Québec is seized, pursuant to
Book II, of a demand that has the same juridical basis or raises the same issues
of law as a demand that is before the court under this Title, the court may stay
the hearing on a party’s request, provided this cannot result in serious prejudice
to the other party.

The stay is maintained until the judgment on the other demand has become
final, although the court may revise its stay decision if warranted by new
circumstances.

559.  If, at the time set for the hearing, a party or the parties are absent, the
court may either postpone the hearing or render a judgment on the basis of the
evidence offered.

560.  At the hearing, the court instructs the parties summarily as to the
applicable rules of evidence and the procedure it considers appropriate, and
explains any rules of prescription that are applicable. At the invitation of the
court, the parties state their contentions and produce their witnesses. The court
itself examines the parties and the witnesses, and provides fair and impartial
assistance to each of them so as to bring out the substantive law and ensure
that it is carried out.

The defendant or an intervenor may raise any grounds of defence and, if

appropriate, propose terms of payment.

The court may accept an expert’s oral evidence in lieu of an expert report;
it may also accept the filing of any document, even though the prescribed filing
time has expired.

At the end of the hearing, the court identifies the witnesses to whom
compensation is payable under the tariffs in force.

561.  If, after conciliation, the parties reach a settlement, the court clerk
draws up minutes in which the settlement agreement is recorded. Once signed
by the parties and homologated by the court, the settlement agreement is
equivalent to a judgment.

DIVISION V
JUDGMENT

562.  As soon as the judgment is signed, the court clerk notifies a copy to
each party, together with a notice to the debtor stating that since the judgment
has been rendered against that person, failure to settle the outstanding claim
within the time limits prescribed by this Code could result in the person’s
assets, including income and investments, being seized and, if necessary, sold
by judicial sale.

The court clerk may issue a certified true copy of the judgment on request.

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563.  The judgment has the authority of res judicata only with respect to
the parties to the dispute and for the amount claimed. It cannot be cited in a
demand between the same parties for the same cause before a different court.
Any demand or proof based on the judgment must be dismissed by the court
on its own initiative or on a party’s request.

564.  The judgment cannot be appealed.

A judgment or proceeding relating to a small claim is not open to judicial

review except on the grounds of lack or excess of jurisdiction.

565.  The court may order a different time limit for the execution of a
judgment than those prescribed by Book VIII and, for instance, authorize earlier
execution of the judgment if the creditor establishes, in a sworn statement, a
fact that justifies a seizure before judgment.

The court may also authorize the debtor to execute the judgment by means
of instalments to be paid to the creditor in accordance with terms specified by
the court. The debtor loses the benefit of the term on defaulting on an instalment
and failing to remedy the default within 10 days.

If the value of the property that is subject to execution proceedings exceeds

$15,000, the court may order that the matter be transferred to the court that is
competent to deal with claims in that amount, for continuation of the execution
procedings.

566.  The judgment creditor may themselves draw up the notice of execution
if the only execution measure is seizure of the debtor’s income in the hands of
a third person. The notice is signed and entered in the court register by the
court clerk then notified by the creditor to the debtor and the garnishee. It
directs the garnishee to notify a declaration to the creditor and the court clerk
and remit to the latter the seizable portion of what the garnishee owes to the
debtor. The creditor notifies the declaration to the debtor.

The ensuing administration of the seizable portion of the debtor’s income,

including its receipt and distribution, is entrusted to the court clerk.

If incidental applications are filed in relation to execution of the judgment,

the court clerk informs without delay the parties and, if applicable, the bailiff,
and calls the parties to a hearing on a specified date.

The court clerk may assist in the execution of the judgment if the creditor
is a natural person.

567.  The judgment execution costs that may be claimed from the debtor
are set out in the tariffs applicable under this Title.

568.  An application for revocation of the judgment must include a sworn

statement setting out the grounds on which the application is based and the

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revocation is sought, and be filed with the court office within 30 days after the
party becomes aware of the judgment, but not more than six months after the
date of the judgment. If, on the face of the record, the grounds appear sufficient,
the court may stay forced execution of the judgment; the court clerk then
summons the parties so that they may be heard on the application for revocation
and, if applicable, on the merits of the dispute.

CHAPTER IV
MISCELLANEOUS PROVISIONS

569.  Pleadings cannot be accepted by the court clerk unless the filing fee
prescribed under the applicable tariff of judicial fees is paid. However, a person
who provides proof of being a recipient under a social assistance or social
solidarity program established under the Individual and Family Assistance Act
is exempted from paying the filing fee.

If a pleading is refused, the amount paid to the court office is refunded.

570.  The Government, by regulation, may establish

(1)  a tariff of court costs and fees for the filing or presentation of demands
and pleadings under this Title and for the execution of judgments, as well as
a tariff of professional fees payable to bailiffs by debtors;

(2)  a tariff of professional fees payable to certified mediators by the

mediation service, and the maximum number of sessions for which a mediator
may be paid fees in relation to the same demand; and

(3)  special rules and obligations with which certified mediators must comply
in the exercise of their functions, as well as the sanctions applicable for non-
compliance.

TITLE III
SPECIAL RULES FOR CLASS ACTIONS

CHAPTER I
INTRODUCTORY PROVISIONS

571.  A class action is a procedural means enabling a person who is a member

of a class of persons to sue, without a mandate, on behalf of all the members
of the class and to represent the class.

A legal person established for a private interest, a partnership or an

association may, even without being a member of a class, ask to represent the
class if the director, partner or member it designates is a member of the class
on behalf of which it is seeking to institute a class action, and the designee’s

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interest is related to the purposes for which the legal person, partnership or
association was constituted.

572.  As soon as an application for authorization to institute a class action

is filed, the chief justice, unless the chief justice decides otherwise, assigns a
judge as special case management judge to manage the proceeding and hear
all procedural matters relating to the class action. The chief justice may assign
a judge despite there being grounds for the judge’s recusation, provided the
chief justice considers the situation, in the context of the case, does not
undermine the impartiality of the judiciary.

After considering the interests of the parties and of the class members, the
chief justice may determine the district in which the application for authorization
is to be heard or the class action instituted.

573.  A central registry of class actions is kept at the Superior Court under
the authority of the chief justice. Applications for authorization and the ensuing
pleadings and notices to class members, as well as any other documents
specified in the chief justice’s instructions, are registered in the registry.

CHAPTER II
AUTHORIZATION TO INSTITUTE CLASS ACTION

574.  Prior authorization of the court is required for a person to institute a

class action.

The application for authorization must state the facts on which it is based
and the nature of the class action, and describe the class on whose behalf the
person intends to act. It must be served on the person against whom the person
intends to institute the class action, with at least 30 days’ notice of the
presentation date.

An application for authorization may only be contested orally, and the court
may allow relevant evidence to be submitted.

575.  The court authorizes the class action and appoints the class member
it designates as representative plaintiff if it is of the opinion that

(1)  the claims of the members of the class raise identical, similar or related
issues of law or fact;

(2)  the facts alleged appear to justify the conclusions sought;

(3)  the composition of the class makes it difficult or impracticable to apply

the rules for mandates to sue on behalf of others or for consolidation of
proceedings; and

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 (4)  the class member appointed as representative plaintiff is in a position
to properly represent the class members.

576.  The judgment authorizing a class action describes the class whose
members will be bound by the class action judgment, appoints the representative
plaintiff and identifies the issues to be dealt with collectively and the conclusions
sought in relation to those issues. It describes any subclasses created and
determines the district in which the class action is to be instituted.

The judgment orders the publication of a notice to class members; it may

also order the representative plaintiff or a party to make information on the
class action available to the class members, including by setting up a website.

The judgment also determines the time limit for opting out of the class. The
opting-out period cannot be shorter than 30 days or longer than six months
after the date of the notice to class members. The time limit for opting out is
a strict time limit, although a class member, with leave of the court, may opt
out after its expiry on proving that it was impossible in fact for the class member
to act sooner.

577.  The court cannot refuse to authorize a class action on the sole grounds
that the class members are part of a multi-jurisdictional class action already
underway outside Québec.

However, if the court is convinced that the other court is in a better position
to decide the issues raised and that proper regard is being given to the rights
and interests of Québec residents, it may stay the examination of the application
for authorization, the time limit for filing the originating demand or the conduct
of the class action until a judgment is rendered by the other court or a transaction
is made or a settlement is reached.

If a multi-jurisdictional class action has been instituted outside Québec, the

court, in order to protect the interests of class members resident in Québec,
may disallow the discontinuance of an application for authorization, or authorize
another plaintiff or representative plaintiff to institute a class action involving
the same subject matter and the same class if it is convinced that the class
members’ interests would thus be better served.

578.  A judgment authorizing a class action cannot be appealed. A judgment

denying authorization may be appealed as of right by the applicant or, with
leave of a judge of the Court of Appeal, by a member of the class on whose
behalf the application for authorization was filed.

The appeal is heard and decided by preference.

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CHAPTER III
NOTICES

579.  When a class action is authorized, a notice is published or notified to

the class members

(1)  describing the class and any subclass;

(2)  setting out the principal issues to be dealt with collectively and the
conclusions sought in relation to those issues;

(3)  stating the representative plaintiff’s name, the contact information of

the representative plaintiff’s lawyer and the district in which the class action
is to proceed;

(4)  stating that class members have the right to seek intervenor status in the
class action;

(5)  stating that class members have the right to opt out of the class and
specifying the procedure and time limit for doing so;

(6)  stating that no class member other than the representative plaintiff or
an intervenor may be required to pay legal costs arising from the class action;
and

(7)  providing any additional information the court considers useful, including
the address of the website for the central registry of class actions.

The court determines the date, form and method of publication of the notice,
having regard to the nature of the class action, the composition of the class and
the geographical location of its members. The notice identifies, by name or a
description, any class members who are to receive individual notification. If
the court sees fit, it may authorize the publication of an abbreviated notice.

580.  A class member who wishes to opt out of the class or a subclass is
required to so inform the court clerk before the time limit for doing so has
expired. A person who has opted out is not bound by any judgment on the
representative plaintiff’s demand.

A class member who does not discontinue an originating demand having

the same subject matter as the class action before the time for opting out has
expired is deemed to have opted out.

581.  At any stage of a class action, the court may order a notice to be
published or notified to the class members if it considers it necessary for the
protection of their rights. The notice, which must describe the class and include
the parties’ names, their lawyers’ contact information and the representative
plaintiff’s name, must be clear and concise.

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582.  In cases where the sending of a notice of claim is required by the Cities
and Towns Act (chapter C-19), the Municipal Code of Québec (chapter C-27.1)
or a municipal charter as a prior condition to the institution of an action, a
notice of claim given by one class member is valid for all class members, and
insufficiency of the notice cannot be urged against the representative plaintiff.

CHAPTER IV
CONDUCT OF CLASS ACTION

583.  The originating demand in a class action must be filed with the court
office not later than three months after the class action is authorized, under
pain of the authorization lapsing.

If an application for a declaration of lapse is filed, notice of the application,

using the method of publication determined by the court, must be given to the
class members at least 15 days before the date on which the application is to
be presented. The representative plaintiff, or another class member asking to
be substituted as representative plaintiff, may prevent the authorization from
being declared lapsed by filing an originating demand with the court office.

584.  The defendant cannot urge a preliminary exception against the

representative plaintiff unless it concerns a substantial number of the class
members and pertains to an issue to be dealt with collectively. Nor may the
defendant request a splitting of the proceeding or institute a cross-demand.

585.  The representative plaintiff must have the authorization of the court
to amend a pleading, to discontinue the demand, to withdraw a pleading or to
renounce rights arising from a judgment. The court may impose any conditions
it considers necessary to protect the rights of the class members.

An admission by the representative plaintiff is binding on the class members

unless the court considers that the admission causes them prejudice.

586.  A class member cannot intervene voluntarily for the plaintiffs except
to assist the representative plaintiff or to support the representative plaintiff’s
demand or contentions. The court authorizes an intervention if it is of the
opinion that the intervention will be helpful to the class. The court may limit
an intervenor’s right to file a pleading or participate in the trial.

587.  A party cannot subject a class member other than the representative
plaintiff or an intervenor to a pre-trial examination or to a medical examination,
nor may a party examine a witness outside the presence of the court. The court
may make exceptions to these rules if it considers that doing so would be useful
for its determination of the issues of law or fact to be dealt with collectively.

588.  The court may at any time, on the application of a party, revise or
annul the authorization judgment if it considers that conditions relating to the
issues of law or fact or to the composition of the class are no longer satisfied.

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 If the court revises the authorization judgment, it may allow the representative
plaintiff to amend the conclusions sought. In addition, if circumstances so
require, the court may, even on its own initiative, modify or divide the class at
any time.

If the court annuls the authorization judgment, the proceeding continues

between the parties before the competent court according to the procedure set
out in Book II.

589.  The representative plaintiff is deemed to retain sufficient interest to

act even if that person’s personal claim is extinguished. The representative
plaintiff cannot waive the status of representative plaintiff without the
authorization of the court, which cannot be given unless the court is able to
appoint another class member as representative plaintiff.

If the representative plaintiff is no longer in a position to properly represent

the class members or if that person’s personal claim is extinguished, another
class member may ask the court to be substituted as representative plaintiff or
propose some other class member for that purpose.

A substitute representative plaintiff continues the proceeding from the stage

it has reached; with the authorization of the court, the substitute may refuse to
confirm any prior acts if they have caused irreparable prejudice to the class
members. The substitute is not liable for legal costs and other expenses in
relation to any act prior to the substitution that the substitute has not confirmed,
unless the court orders otherwise.

590.  A transaction, acceptance of a tender, or an acquiescence is valid only

if approved by the court. Such approval cannot be given unless notice has been
given to the class members.

In the case of a transaction, the notice must state that the transaction will be
submitted to the court for approval on the date and at the place indicated. It
must specify the nature of the transaction, the method of execution chosen and
the procedure to be followed by class members to prove their claim. The notice
must also inform class members that they may assert their contentions before
the court regarding the proposed transaction and the distribution of any
remaining balance. The judgment approving the transaction determines, if
necessary, the mechanics of its execution.

CHAPTER V
JUDGMENT AND EXECUTION MEASURES

DIVISION I
JUDGMENT, AND ITS EFFECTS AND PUBLICATION

591.  The judgment on a class action describes the class to which it applies,
and is binding on all class members who have not opted out.

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 Once the judgment has become final, the court of first instance orders the
publication of a notice stating the substance of the judgment and notification
of the notice to each known class member.

592.  If the judgment awards damages or a monetary reimbursement, it

specifies whether members’ claims are to be recovered collectively or
individually.

593.  The court may award the representative plaintiff an indemnity for
disbursements and an amount to cover legal costs and the lawyer’s professional
fee. Both are payable out of the amount recovered collectively or before payment
of individual claims.

In the interests of the class members, the court assesses whether the fee
charged by the representative plaintiff’s lawyer is reasonable; if the fee is not
reasonable, the court may determine it.

If the Class Action Assistance Fund provided assistance to the representative

plaintiff, the court hears the Fund before ruling on the legal costs and the fee.
The court disregards whether or not the Fund guaranteed payment of all or any
portion of the legal costs or the fee.

594.  When an application for the homologation of a transaction or the

recognition of a judgment in a foreign class action is made to the court, the
court makes sure that the rules of the Civil Code that apply to the recognition
and enforcement of foreign decisions have been complied with and that the
notices given in Québec in connection with the class action were sufficient.

As well, the court is required to make sure that the requirements that governed
the exercise of the rights of Québec residents are equivalent to those imposed
in class actions brought before a Québec court, that Québec residents may
exercise their rights in Québec in accordance with the rules applicable in Québec
and that, in the case of collective recovery of claims, the remittance of any
remaining balance to a third person will be decided by it insofar as the Québec
residents’ share is concerned.

DIVISION II
COLLECTIVE RECOVERY OF CLAIMS

595.  The court orders collective recovery of the class members’ claims if
the evidence allows a sufficiently precise determination of the total claim
amount. The total claim amount is determined without regard to the identity
of individual class members or the exact amount of their respective claims.

After determining the total claim amount, the court may order that it be
deposited in its entirety, or according to the terms it specifies, with a financial
institution carrying on business in Québec; the interest on the amount deposited
accrues to the class members. The court may reduce the total claim amount if

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it orders an additional form of reparation, or may order reparation appropriate
to the circumstances instead of a monetary award.

If execution measures prove necessary, instructions are given to the bailiff

by the representative plaintiff.

596.  A judgment that orders collective recovery makes provision for

individual liquidation of the class members’ claims or for distribution of an
amount to each class member. If, in the court’s opinion, such liquidation or
distribution is inappropriate or too costly, the court may order that the amount
recovered be remitted to a third person it designates.

Before deciding to remit the amount to a third person, the court hears the
representations of the parties, the Class Action Assistance Fund and any other
person whose opinion the court considers useful.

597.  If the judgment provides for individual liquidation of the class

members’ claims or for distribution of an amount to each class member, the
court designates a person to carry out the operation, gives them the necessary
instructions, including instructions as to proof and procedure, and determines
their remuneration.

The court disposes of any remaining balance in the same manner as when
remitting an amount to a third person, having regard, among other things, to
the members’ interests. If the judgment is against the State, the remaining
balance is paid into the Access to Justice Fund.

598.  The liquidation, distribution or remittance of the amount recovered

collectively is effected after payment, in the following order, of

(1)  the legal costs, including the cost of notices and the remuneration of the
person designated to carry out the liquidation or distribution;

(2)  the fee of the representative plaintiff’s lawyer, to the extent determined
by the court; and

(3)  the representative plaintiff’s disbursements, to the extent determined by

the court.

DIVISION III
INDIVIDUAL RECOVERY OF CLAIMS

599.  A judgment ordering individual recovery specifies what issues remain

to be decided in order to determine individual claims. It sets out the content
of the judgment notice to class members, which must include explanations as
to those issues and as to the information and documents to be provided in
support of an individual claim and any other information determined by the
court.

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 Within one year after the publication of the notice, class members must file
their claim with the office of the court in the district where the class action was
heard or in any other district the court specifies.

600.  The court determines the claim of each class member or orders the
court clerk to determine it according to the procedure it establishes. The court
may determine special methods of proof and procedure for such purpose.

601.  At the trial of an individual claim, the defendant may urge against a
claimant a preliminary exception that this Title did not earlier permit against
the representative plaintiff.

DIVISION IV
APPEAL

602.  The judgment on a class action may be appealed as of right.

If the representative plaintiff does not initiate an appeal or if the appeal is

dismissed on the grounds that it was not properly initiated, a class member
may, within two months after the publication or notification of the judgment
notice, apply to the Court of Appeal for permission to be substituted as
representative plaintiff in order to appeal the judgment.

The time limit in this article is a strict time limit.

603.  The appellant asks the court of first instance to determine the content
of the notice to be given to class members.

604.  If the Court of Appeal grants the representative plaintiff’s appeal, even
in part, it may order that the record be sent to the court of first instance for
collective recovery of claims or for determination of individual claims.

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BOOK VII
PRIVATE DISPUTE PREVENTION AND RESOLUTION PROCESSES

TITLE I
MEDIATION

CHAPTER I
ROLES AND DUTIES OF PARTIES AND MEDIATOR

605.  A mediator is chosen, directly or through a third person, by mutual

agreement of the parties.

The mediator assists the parties in defining the issues in dispute, identifying
their needs and interests, engaging in dialogue and exploring solutions in order
to reach a mutually satisfactory agreement. The parties may ask the mediator
to develop with them a proposal to prevent or resolve the dispute.

The mediator is required to disclose any conflict of interest or any situation

that may be seen to create a conflict of interest or that may cast doubt on the
mediator’s impartiality.

606.  The mediator and mediation participants cannot be compelled, in

arbitration, administrative or judicial proceedings, whether related or unrelated
to the dispute, to disclose anything they hear or learn in the course of the
mediation process. Nor can the mediator and mediation participants be
compelled to produce a document prepared or obtained in the course of the
mediation process, unless the law requires its disclosure, a person’s life, safety
or personal integrity is at stake or its disclosure is necessary for the mediator
to be able to defend against a claim of professional misconduct. No information
given or statement made in the course of the mediation process may be admitted
in evidence in such proceedings.

To claim the privilege of non-compellability, the mediator must be certified

by a body recognized by the Minister of Justice. In addition, the mediator must
be subject to rules of professional conduct and be required to take out civil
liability insurance or provide some other form of security to cover injury to
third persons.

607.  Despite the Act respecting Access to documents held by public bodies
and the Protection of personal information (chapter A-2.1) and the Act
respecting the protection of personal information in the private sector
(chapter P-39.1), no one has a right of access to a document contained in the
mediation record, or the right to object to the use of a document in the course
of a mediation process on the grounds that it may contain personal information.

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CHAPTER II
CONDUCT OF MEDIATION

608.  Mediation begins, without formality, on the day on which the parties
agree to enter into a mediation process by mutual agreement or at the initiative
of one of them. In the latter case, failure by the other party to respond constitutes
a refusal to participate in the mediation process.

609.  Before starting the mediation process, the mediator informs the parties
of a mediator’s role and duties, and determines with them the rules applicable
to and the length of the mediation process.

The parties must undertake to attend all meetings to which they are convened
by the mediator. They may, if all consent, even tacitly, bring persons whose
contribution may 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 or that they can be reached in sufficient time to give their consent.

610.  The mediator has a duty to treat the parties fairly, and must see that
each party has an opportunity to argue its case.

If the mediator finds that a serious inequality exists between the parties or
that a party is engaging in intimidation or manipulation, the mediator draws
the parties’ attention to that situation and, with the parties, determines measures
to remedy it. If the mediator considers that a proposed settlement agreement
is likely to lead to a dispute in the future or cause serious prejudice to one of
the parties, the mediator invites the parties to remedy the situation and, if
necessary, to seek advice from a third person.

The mediator may suspend the mediation process at any time, in the interests
of the parties.

611.  The mediator may communicate with each party separately, but in that
case is required to inform the parties.

No information relevant to the mediation received from a party may be

disclosed by the mediator, without that party’s consent, to the other party.

612.  If the parties enter into mediation while a judicial demand is already
in progress, they must agree to a stay of the proceeding, if possible and if the
law or the court seized permits it, until the end of the mediation process.

CHAPTER III
END OF MEDIATION

613.  A settlement agreement contains the undertakings of the parties and

terminates the dispute. The settlement agreement constitutes a transaction only

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if the subject matter and the circumstances permit and the parties’ wishes in
that respect are clear.

614.  A party may withdraw from or put an end to the mediation process at
any time at its own discretion and without being required to give reasons.

As well, the mediator, if convinced that the mediation process is doomed to

failure or is likely, if continued, to cause serious prejudice to one of the parties,
may put an end to it.

615.  As soon as the mediation process ends, the mediator renders an account
to the parties of the sums received and determines the costs, which are borne
equally by the parties, unless a different apportionment has been agreed, or
has been ordered by the court if the mediation process took place in the course
of a proceeding.

The costs include the mediator’s fee, travel expenses and other disbursements,
as well as any costs related to expert evidence or other interventions agreed by
the parties. All other expenses incurred by a party are borne by that party.

CHAPTER IV
SPECIAL PROVISIONS APPLICABLE TO FAMILY MEDIATION

616.  Mediation of a family dispute that is entered into on a purely private

basis or without a judicial demand being brought may only be conducted by a
family mediator certified in accordance with the regulations under article 619.
If a child’s interests are at stake, the mediator is required to inform the parties
that they must participate in a parenting and mediation information session as
provided in article 417.

If required by the circumstances, the mediator may, with the parties’ consent,
use any appropriate, readily available technological means.

617.  Mediation sessions take place in the presence of both parties and a
mediator or, if the parties so agree, two mediators. The sessions may also, if
all agree, take place in the presence of a single party, in the presence of the
child concerned or in the presence of other persons who are neither experts
nor advisers if their contribution may be helpful in resolving the dispute.

When the mediation process ends, the mediator files a dated and signed
report with the Family Mediation Service, and delivers a copy to the parties.
The report records the presence of the parties and the points, if any, on which
an agreement was reached. It contains no other information.

618.  If the mediator considers that a proposed settlement agreement is likely

to lead to a dispute in the future or cause prejudice to one of the parties or to
the children, the mediator is required to invite the parties to remedy the situation
and, if necessary, to seek advice from a third person. If convinced that the

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possibility of prejudice cannot be eliminated, the mediator may put an end to
the mediation process.

In family matters, a settlement agreement cannot be considered a transaction.

619.  The Government designates the persons, bodies or associations that

may certify family mediators and, by regulation, determines the standards with
which those persons, bodies or associations must comply.

The Government, by regulation, may define the conditions mediators must

satisfy to be certified and determine the standards with which certified mediators
must comply in the exercise of their functions, as well as the sanctions
applicable for non-compliance.

The Government, by regulation, may also determine what services are

payable by the Family Mediation Service, set the tariff of fees the Service may
pay certified family mediators and determine the time limit and procedure for
claiming such fees and the applicable terms of payment. In addition, it may
determine the tariff of fees the parties may be charged for services not covered
by the Family Mediation Service or for services provided by a mediator
designated by the Service or by more than one mediator.

The Minister of Justice, by order, determines the conditions subject to which

technological means may be used by the Family Mediation Service, and
specifies other services the Service may provide as well as the applicable
conditions.

TITLE II
ARBITRATION

CHAPTER I
GENERAL PROVISIONS

620.  Arbitration is the submission of a dispute to an arbitrator for a decision

in accordance with the rules of law and, if appropriate, for a determination of
damages. The arbitrator may act as amiable compositeur if the parties have so
agreed. In all instances, the arbitrator decides the dispute in accordance with
the stipulations of the contract between the parties and takes into account any
applicable usages.

The arbitrator’s mission also includes attempting to reconcile the parties, if

they so request and circumstances permit, and continuing the arbitration process,
with the parties’ express consent, if the conciliation attempt fails.

621.  Arbitrators cannot be prosecuted for an act performed in the course

of their arbitration mission, unless they acted in bad faith or committed an
intentional or gross fault.

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622.  Unless otherwise provided by law, the issues on which the parties have
an arbitration agreement cannot be brought before a court even though it would
have jurisdiction to decide the subject matter of the dispute.

A court seized of a dispute on such an issue is required, on a party’s

application, to refer the parties back to arbitration, unless the court finds the
arbitration agreement to be null. The application for referral to arbitration must
be presented in the same way as any other preliminary objection. Arbitration
proceedings may be commenced or continued and an award made for so long
as the court has not made its ruling.

623.  The court, on an application, may grant provisional measures or

safeguard orders before or during arbitration proceedings.

CHAPTER II
APPOINTMENT OF ARBITRATORS

624.  The parties appoint an arbitrator to decide their dispute. They do so

by mutual agreement, unless they ask a third person to make the appointment.

The parties may choose to appoint a panel of arbitrators, in which case each
party appoints one arbitrator, and the two so appointed appoint the third.

If an arbitrator must be replaced, the procedure for the appointment of an

arbitrator applies.

625.  If the appointment of an arbitrator proves difficult, the court, on a

party’s request, may take any necessary measure to see to the appointment.

For example, if a party fails to appoint an arbitrator within 30 days after

having been required by another party to do so, the court may make the
appointment. As well, the court may appoint an arbitrator if, 30 days after two
arbitrators are appointed, they cannot agree on the choice of the third arbitrator.

626.  An arbitrator may be recused if there is serious reason to question

their impartiality or if the arbitrator does not have the qualifications agreed by
the parties.

An arbitrator is required to declare to the parties any fact that could cast
doubt on the arbitrator’s impartiality and justify a recusation.

627.  A party may ask for an arbitrator’s recusation by notifying a document

stating its reasons to the other party, to the arbitrator concerned and, if
applicable, to the other arbitrators, within 15 days after becoming aware of the
appointment or appointments or of the cause for recusation.

A party may only ask for the recusation of an arbitrator it appointed for a
cause which arose or was discovered after the appointment was made.

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 The arbitrator or arbitrators are required to rule on the recusation request
without delay, unless the arbitrator concerned withdraws or, the other party
supporting the request, is compelled to withdraw.

If the recusation cannot be so obtained, a party may, within 30 days after

being advised of it, ask the court to rule on the recusation. The arbitrator
concerned and, if there are more than one, the other arbitrators, may nonetheless
continue the arbitration proceedings and make an award for so long as the court
has not made its ruling.

628.  A party may ask the court to revoke an arbitrator if it is impossible

for the arbitrator to carry out their mission or if the arbitrator does not discharge
their functions within a reasonable time.

629.  If the procedure provided for in the arbitration agreement for the
recusation or revocation of an arbitrator proves difficult to implement, the court
may, on a party’s request, rule on the matter.

630.  Decisions of the court on appointment, recusation or revocation cannot

be appealed.

CHAPTER III
CONDUCT OF ARBITRATION

631.  Arbitration proceedings commence on the date of notification of one

party to the other of a notice stating that it is submitting a dispute to arbitration
and specifying the subject matter of the dispute.

The notice, like any other document that is required to be notified, is notified
in accordance with this Code.

632.  Arbitrators conduct the arbitration according to the procedure they

determine; they are required, however, to see that the adversarial principle and
the principle of proportionality are observed.

Arbitrators have all the necessary powers to exercise their jurisdiction,

including the power to administer oaths, the power to appoint an expert and
the power to rule on their own jurisdiction.

If an arbitrator rules on the arbitrator’s own jurisdiction, a party, within

30 days after being advised of the decision, may ask the court to rule on the
matter. A decision of the court recognizing the jurisdiction of the arbitrator
cannot be appealed.

For so long as the court has not made its ruling, the arbitrator may continue
the arbitration proceedings and make an award.

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633.  Arbitration proceedings are conducted orally, at a hearing, unless the
parties agree on the matter being decided on the face of the record. In either
case, a party may state its case in writing.

The arbitrator may require each party to send the arbitrator, within a specified
time, a statement of its contentions and any exhibits mentioned, and to send
them to the other party, if not already done. Any expert reports and other
documents on which arbitrators may base their award must also be sent to the
parties.

The arbitrator advises the parties of the date of the hearing and, if applicable,
of the date on which the arbitrator will inspect the property or visit the premises.

Witnesses are heard and compensated according to the rules applicable to a

trial before a court.

634.  The arbitrator, or a party with leave of the arbitrator, may request the
assistance of the court to obtain evidence, including to compel a witness who
refuses, without valid reason, to attend, answer or produce real evidence in
their possession.

635.  If a party fails to state its contentions, attend at the hearing or present
evidence in support of its contentions, the arbitrator, after recording the default,
may continue the arbitration.

However, if the party that submitted the dispute to arbitration fails to state
its contentions, the arbitration is ended unless the other party objects.

636.  Decisions during arbitration proceedings are made immediately or, if

they cannot be made immediately, as soon as possible; if they are in writing,
they must be signed, as must the arbitration award.

If more than one arbitrator has been appointed, decisions are made by a
majority of the panel. However, an arbitrator may rule alone on a question of
procedure if so authorized by the parties or by all the other arbitrators.

637.  The parties, subject to their agreement or unless the arbitrator decides
otherwise, are equally liable for the arbitrator’s professional fee and expenses.

CHAPTER IV
EXCEPTIONAL MEASURES

638.  The arbitrator may, on a party’s request, take any provisional measure
or any measure to safeguard the parties’ rights for the time and subject to the
conditions the arbitrator determines and, if necessary, require that a suretyship
be provided to cover costs and the reparation of any prejudice that may result
from such a measure. Such a decision is binding on the parties but one of them

162
may, if necessary, ask the court to homologate the decision to give it the same
force and effect as a judgment of the court.

639.  In an urgent situation, even before a request for a provisional or

safeguard measure is notified to the other party, the arbitrator may issue a
provisional order for a period which may in no case exceed 20 days. The
arbitrator requires the party that requested the order to provide a suretyship
unless, in the arbitrator’s opinion, it is inappropriate or of no use.

The provisional order must be notified to the other party as soon as it is

issued, with all the evidence attached. It is binding on the parties and cannot
be homologated by the court.

640.  The parties must disclose to the arbitrator without delay any material
change in the circumstances based on which a provisional or safeguard measure
or a provisional order was requested or granted.

The arbitrator may amend, stay or revoke a provisional or safeguard measure

or a provisional order on request or, in exceptional circumstances, on the
arbitrator’s own initiative.

641.  If the arbitrator subsequently decides that a provisional or safeguard

measure or a provisional order should not have been granted, the party that
obtained the measure or order may be required to provide reparation for any
prejudice caused to another party by the measure or order and to reimburse the
costs incurred by that other party. The arbitrator may award such reparation
and costs at any time during the arbitration proceedings.

CHAPTER V
ARBITRATION AWARD

642.  The arbitration award is binding on the parties. It must be made in

writing and be signed by the arbitrator or arbitrators, and include reasons. It
must state its date and the place where it was made, these particulars being
indisputable. In arbitration proceedings with more than one arbitrator, it must
be made by a majority of the panel. If one of the arbitrators refuses or is unable
to sign the award, the others record that fact, and the award has the same effect
as if it were signed by all of them.

The arbitration award must be made within three months after the matter is
taken under advisement, but the parties may agree to extend the advisement
period. In the absence of an agreement, the court, on a party’s or the arbitrator’s
request, may extend the advisement period or set a new time limit. The decision
of the court cannot be appealed.

If the parties settle the dispute, the agreement is recorded in an arbitration

award.

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 The arbitration award is notified without delay to each party.

643.  The arbitrator, on their own initiative, may correct any error in writing
or calculation or any other clerical error in the arbitration award within 30 days
after the award date.

Within 30 days after receiving the award, a party may ask the arbitrator to
correct any clerical error or ask for an additional award on a part of the dispute
that was not dealt with in the award or, with the other party’s consent, for an
interpretation of a specific passage of the award, in which case the interpretation
forms an integral part of the award.

The decision correcting, supplementing or interpreting the arbitration award

must be made within two months after it is requested. The rules applicable to
the arbitration award apply to such a decision. If the decision is not rendered
before the expiry of the prescribed time, a party may ask the court to issue an
order to safeguard the parties’ rights. The decision of the court cannot be
appealed.

644.  The arbitrator is required to preserve the confidentiality of the

arbitration process and protect deliberative secrecy but violates neither by
stating conclusions and reasons in the award.

CHAPTER VI
HOMOLOGATION

645.  As soon as it is homologated, an arbitration award acquires the force

and effect of a judgment of the court.

The court seized of an application for the homologation of an arbitration

award may stay its decision if the arbitrator has been asked to correct,
supplement or interpret the award. In such a case, if the applicant so requires,
the court may order a party to provide a suretyship.

646.  The court cannot refuse to homologate an arbitration award or a

provisional or safeguard measure unless it is proved that

(1)  one of the parties did not have the capacity to enter into the arbitration
agreement;

(2)  the arbitration agreement is invalid under the law chosen by the parties
or, failing any indication in that regard, under Québec law;

(3)  the procedure for the appointment of an arbitrator or the applicable

arbitration procedure was not observed;

(4)  the party against which the award or measure is invoked was not given
proper notice of the appointment of an arbitrator or of the arbitration

164
proceedings, or it was for another reason impossible for that party to present
its case; or

(5)  the award pertains to a dispute not referred to in or covered by the

arbitration agreement, or contains a conclusion on matters beyond the scope
of the agreement, in which case only the irregular provision is not homologated
if it can be dissociated from the rest.

The court cannot refuse to homologate the arbitration award on its own
initiative unless it notes that the subject matter of the dispute is not one that
may be settled by arbitration in Québec or that the award or measure is contrary
to public order.

647.  The court seized of an application for the homologation of a provisional

or safeguard measure may deny the application if the arbitrator’s decision to
require a suretyship was not complied with.

The court may order the applicant to provide a suretyship if the arbitrator
has not already ruled on that subject or if such a decision is necessary to protect
the rights of third persons.

CHAPTER VII
ANNULMENT OF ARBITRATION AWARD

648.  An arbitration award may only be challenged by way of an application

for its annulment. Such an application is subject to the same rules as those
governing an application for homologation, with the necessary modifications.

The application must be presented within three months after receipt of the
arbitration award or of the decision on the request for a correction, an additional
award or an interpretation. This time limit is a strict time limit.

The court, on request, may stay the application for annulment for the time
it considers necessary to allow the arbitrator to take such action as will eliminate
the grounds for annulment, even if the time prescribed for correcting,
supplementing or interpreting the award has expired.

CHAPTER VIII
SPECIAL PROVISIONS APPLICABLE TO INTERNATIONAL
COMMERCIAL ARBITRATION

649.  If international trade interests, including interprovincial trade interests,

are involved in arbitration proceedings, consideration may be given, in
interpreting this Title, to the Model Law on International Commercial
Arbitration adopted by the United Nations Commission on International Trade
Law on 21 June 1985, and its amendments.

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 Recourse may also be had to documents related to that Model Law, including

(1)  the Report of the United Nations Commission on International Trade

Law on its eighteenth session held in Vienna from 3 to 21 June 1985; and

(2)  the Analytical Commentary on the draft text of a model law on

international commercial arbitration contained in the report of the Secretary-
General to the eighteenth session of the United Nations Commission on
International Trade Law.

650.  International trade interests are considered to be involved in arbitration

proceedings if, among other possibilities, the parties to the arbitration agreement
have, at the time of the conclusion of that agreement, their places of business
in different States or if the place where they choose to conduct the arbitration
is outside the State in which they have their places of business. Such interests
are also considered to be involved in arbitration proceedings if the place where
a substantial part of the obligations of the commercial relationship is to be
performed, or the place with which the subject matter of the dispute is most
closely connected, is outside the State in which they have their places of
business, or if the parties have expressly agreed that the subject matter of the
arbitration agreement relates to more than one State.

651.  The arbitrator decides the dispute in accordance with the rules of law
chosen by the parties or, failing any such designation, in accordance with the
rules of law the arbitrator considers appropriate.

CHAPTER IX
RECOGNITION AND ENFORCEMENT OF ARBITRATION AWARDS
MADE OUTSIDE QUÉBEC

652.  An arbitration award made outside Québec, whether or not confirmed

by a competent authority, may be recognized and declared to have the same
force and effect as a judgment of the court if the subject matter of the dispute
is one which could be submitted to arbitration in Québec and if recognition
and enforcement of the award are not contrary to public order. The same applies
for a provisional or safeguard measure.

The application for recognition and enforcement must be accompanied by

the arbitration award or measure concerned and the arbitration agreement and
by a translation authenticated in Québec of those documents if they are drawn
up in a language other than French or English.

Consideration may be given, in interpreting the rules in this matter, to the

Convention on the Recognition and Enforcement of Foreign Arbitral Awards
adopted by the United Nations Conference on International Commercial
Arbitration at New York on 10 June 1958.

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653.  The court examining an application for recognition and enforcement
of an arbitration award or a provisional or safeguard measure cannot review
the merits of the dispute.

A party against which an award or a measure is invoked cannot oppose its

recognition and enforcement unless the party proves that

(1)  one of the parties did not have the capacity to enter into the arbitration
agreement;

(2)  the arbitration agreement is invalid under the law chosen by the parties
or, failing any indication in that regard, under the law of the place where the
award was made or the measure decided;

(3)  the procedure for the appointment of an arbitrator or the arbitration

procedure was not in accordance with the arbitration agreement or, failing such
an agreement, with the law of the place where the arbitration proceedings were
held;

(4)  the party against which the award or the measure is invoked was not
given proper notice of the appointment of an arbitrator or of the arbitration
proceedings, or it was for another reason impossible for that party to present
its case;

(5)  the award pertains to a dispute not referred to in or covered by the

arbitration agreement, or contains a conclusion on matters beyond the scope
of the agreement, in which case only the irregular provision is not recognized
and declared enforceable if it can be dissociated from the rest; or

(6)  the award or measure has not yet become binding on the parties or has
been annulled or stayed by a competent authority of the place where or under
whose law the arbitration award was made or the measure decided.

The court may also deny an application for recognition and enforcement of
a provisional or safeguard measure if the arbitrator’s decision to require a
suretyship was not complied with, if the measure was revoked or stayed by the
arbitrator or if the measure is incompatible with the powers conferred on the
court unless, in the latter case, the court decides to reformulate the provisional
measure to adapt it to its own powers and procedures without modifying its
substance.

654.  The court may stay its decision in respect of the recognition and
enforcement of an arbitration award if an application for the annulment or
suspension of the award is pending before the competent authority of the place
where or under whose law the arbitration award was made.

If the court stays its decision, it may, on the request of the party applying
for recognition and enforcement of the award, order the other party to provide
a suretyship.

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655.  The court may order the party applying for recognition and enforcement
of a provisional or safeguard measure to provide a suretyship if the arbitrator
has not already ruled on that subject or if such a decision is necessary to protect
the rights of third persons.

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BOOK VIII

EXECUTION OF JUDGMENTS

TITLE I
PRINCIPLES AND GENERAL RULES

CHAPTER I
GENERAL PROVISIONS

656.  Judgments, including decisions of an administrative tribunal or a public

body filed with the court office and juridical acts on which the law confers the
force and effect of a judgment, are executed voluntarily by the payment of
money, the surrender of property or the performance of what is ordered, either
before the expiry of the time limits prescribed by law or within the time limit
set out in the judgment or agreed between the parties.

Execution may be forced if the debtor refuses to comply voluntarily and the
judgment has become final. However, in the case of a judgment under Title II
of Book VI, execution may be forced only after the expiry of 30 days since it
was rendered or, in the case of a default judgment following failure to answer
the summons or defend on the merits, after the expiry of 10 days since it was
rendered.

A judgment that has yet to become final may be executed if provisional

execution is permitted by law or ordered by the court.

657.  After the judgment, the court may issue any order to facilitate
execution, whether forced or voluntary, in the manner that is most advantageous
for the parties and most consistent with their interests.

658.  Acts necessary for the purpose of executing a judgment are performed
by a court bailiff acting as court officer under the authority of the court.

659.  Any application, contestation or opposition with respect to execution

must be presented before the court that rendered the judgment as if it were an
application in the course of a proceeding. It must be heard and decided without
delay.

It may also be presented without formality if it is presented by a person who

would qualify as plaintiff under the rules of Title II of Book VI. In that case,
the rules of representation applicable under that Title also apply with respect
to execution.

When execution proceedings concern two or more judgments rendered in

two or more judicial districts or are to be carried out in two or more districts,
any application for authorization or other request by the bailiff is addressed to

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the court or the court clerk in the district where the execution proceedings
concerned are to be carried out.

CHAPTER II
PROVISIONAL EXECUTION

660.  A judgment is provisionally executed as of right, if the judgment

(1)  grants support payments or an alimentary allowance, determines

arrangements regarding the custody of children or adjudicates on parental
authority;

(2)  orders a child’s return under the Act respecting the civil aspects of
international and interprovincial child abduction (chapter A-23.01);

(3)  appoints, removes or replaces a tutor, curator or other administrator of

the property of others, or homologates or revokes a protection mandate;

(4)  orders, in the absence of a lease, urgent repairs or eviction;

(5)  orders an accounting, an inventory or any measure for the liquidation

of a succession;

(6)  adjudicates on the possession or sequestration of property or on an abuse

of procedure, or orders a provision for costs; or

(7)  rules on legal costs, but only with respect to the portion not exceeding
$15,000.

The judge may order the stay of provisional execution by a decision giving
reasons. A judge of the Court of Appeal may also do so, or may lift a stay
ordered by the judge of first instance.

661.  If bringing an appeal is likely to cause serious or irreparable prejudice

to one of the parties, the judge may, on an application, order provisional
execution, even for part only of the judgment. The judge may also make
provisional execution conditional on a surety being furnished.

If provisional execution is not ordered by the judgment itself, it cannot be

ordered subsequently except on appeal, with or without a surety. A judge of
the Court of Appeal may also stay or lift provisional execution if it has been
ordered, or order that a suretyship be provided by a party that was exempted
from doing so by the court of first instance.

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CHAPTER III
VOLUNTARY EXECUTION

DIVISION I
PAYMENT

§1. — General rule

662.  A judgment ordering a party to pay a sum of money is executed

voluntarily by payment of the sum within the time limit and in the manner
determined by the judgment or agreed between the parties.

§2. — Payment in instalments

663.  Payment in instalments is a manner of execution by which the debtor

gives an undertaking to the executing bailiff to make regular payments for the
benefit of the creditor in satisfaction of the judgment. The amounts, due dates
and other terms of payment are set out in an agreement, which must be approved
by the creditor.

The instalments cannot be spread over more than one year. The debtor may,
at any time, waive the benefit of paying in instalments by discharging the
balance.

The instalment payment agreement, whether made before or after the filing
of the notice of execution, is filed with the court office, in the record concerned,
as is any waiver of that method of payment or any notice stating that the debtor
has lost the benefit of the term. The agreement ends without notice as soon as
another creditor seeks execution of a judgment rendered in their favour.

§3. — Voluntary deposit

664.  Voluntary deposit is a manner of execution by which the debtor

undertakes by means of a declaration, which is deemed sworn, to make regular
payments to the court office, in an amount which cannot be less than the seizable
portion of their income, and to declare any change in their situation to the court
clerk.

The declaration is registered with the court office. In addition to the debtor’s
contact information and statement as to income, family responsibilities and
creditors, it contains a determination of the amount payable and the terms of
payment, and specifies the supporting documents the debtor must provide. It
also specifies the time within which any change must be declared to the court
clerk.

665.  A debtor is exempt from seizure so long as the voluntary deposit

undertaking is complied with, and creditors cannot seize the property and

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income covered by the undertaking. Creditors who sue the debtor bear all the
costs. Prescription of their right of action against the debtor is suspended.

In the event of failure to comply with the voluntary deposit undertaking, the
debtor has 30 days to remedy the situation counting from notification of a
notice from the court clerk directing the debtor to do so. If in default, the debtor
loses the benefit of voluntary deposit unless there is a serious reason for the
default, in which case the court clerk may grant them a maximum additional
extension of 30 days.

The debtor may, at any time, waive the benefit of voluntary deposit by means
of a notice notified to the court clerk, who informs the creditors and the bailiff,
if applicable.

666.  The court clerk notifies the debtor’s declaration to the creditors named
in it and invites them, for the purpose of participating in the distribution, to
make representations and file their claim with the court office. The court clerk
gives the list of declared creditors to any creditor who requests it. The court
clerk also notifies to the creditors any declaration of a change in the debtor’s
situation.

Creditors are required to file their claim within 30 days after the notification.
The claim must set out the nature, date and amount of the debt and be filed
with supporting documents. It is deemed to have been notified on the date of
the debtor’s initial or subsequent declaration.

A creditor who delays in notifying their claim or in filing supporting

documents is only entitled, until the delay is remedied, to the amount determined
according to the debtor’s declaration.

667.  A creditor or any other interested person may contest the debtor’s
declaration within 15 days after becoming aware of it. The contestation must
be notified to the debtor, the court clerk and the bailiff, if applicable.

668.  The court clerk distributes the sums collected according to the
provisions on distributing seized income. The court costs and fees are included
in the execution costs.

669.  A deduction at source or a seizure under the Act to facilitate the

payment of support remains effective even if the support debtor resorts to
voluntary deposit. In such a case, the amount deducted at source or seized
under that Act is subtracted from the amount to be deposited with the court
clerk.

670.  If a contracting party, an employer or another third person substantially

changes or ends a contractual relationship with the debtor, the onus is on them,
under pain of damages, to prove that they did not do so because the debtor
resorted to voluntary deposit.

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DIVISION II
SURRENDER

671.  A judgment ordering the delivery of movable or immovable property

is executed by the delivery of the movable property or the surrender of the
immovable property so that the party entitled to it may take possession of it.
However, the judgment may provide for another method of surrender.

DIVISION III
SURETYSHIP

672.  A judgment requiring a suretyship to be provided sets the amount of

the surety’s liability and the time within which the surety is to be presented.

673.  The judgment is executed by filing with the court office a notice
presenting the surety, or stating the intention of the person required to provide
a suretyship to instead provide other sufficient security and specifying the
nature of that security.

By undertaking to act as surety, the surety agrees to show solvency, to provide

information on guarantees and on property owned, and to produce the related
titles.

The surety or the other security may be contested for not meeting the
requirements prescribed by law or for insufficiency of the amount or guarantee
offered.

674.  If the surety is accepted, the suretyship agreement is filed with the
court office and subsists despite a revocation of judgment or an appeal.

DIVISION IV
ACCOUNTING

675.  A judgment ordering an accounting is executed by notifying the

account and supporting documents, within the time set by the judgment, to the
party that required the accounting. On such notification, the accounting party
and its agent may be examined on any fact relating to the account, or be required
to hand over any relevant document.

676.  The account is prepared according to generally accepted accounting

standards and the rules of the Civil Code dealing with the administration of
property of others. Receivables are considered as income, and the cost of
preparing and verifying the account, as expenditure. The legal costs are not
taken into consideration, unless the court so allows.

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677.  The account is deemed to have been accepted if the party that required
it has not contested it within 15 days after notification. Any remaining balance
is then due.

To contest the account, a party files its grounds and their justification. The
grounds are deemed valid if, within 10 days after notification, the party required
to account has not filed its grounds and their justification. After the filing of
grounds, the parties proceed to trial.

The judgment on the contestation must determine the precise balance of the
account.

678.  Failing voluntary execution, the party that required the accounting
may prepare the account and have it set down for judgment. In that case, the
party required to account cannot debate the account but may cross-examine
the witnesses.

CHAPTER IV
FORCED EXECUTION

DIVISION I
GENERAL RULES

679.  Forced execution is undertaken by the judgment creditor if the debtor

does not execute the judgment voluntarily.

680.  A creditor who wishes to force execution of a judgment gives execution

instructions to a bailiff.

The instructions direct the bailiff to seize the debtor’s property, including
the debtor’s income, and to dispose of it so as to satisfy the claim; they may
also direct the bailiff to place the seizing creditor in possession of an item of
property or to evict the person against whom the judgment has been rendered.
The instructions must contain the information the bailiff needs to execute the
judgment.

The creditor sends to the bailiff, together with the instructions, the money
necessary for the execution of the judgment.

681.  Execution begins by the filing of a notice of execution, in keeping

with the model established by the Minister of Justice, with the court office.

On receiving the creditor’s instructions, the bailiff completes the notice of

execution by identifying the judgment to be executed, including its date, by
writing in the name and contact information of the creditor, the debtor and the
bailiff, and the amount of the claim, indicating, if such is the case, that the
judgment has been partially executed, and by describing the execution measures

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to be taken. If the judgment is to be executed against an immovable, the
immovable is described in accordance with the rules of the Civil Code, and its
address is given.

The notice is served on the debtor and notified to the creditors.

682.  All execution measures are set out in a single notice of execution. The
notice may be amended, to complete execution, if the creditor gives new
instructions or if another creditor commences execution of another judgment
against the same debtor. In the latter case, the new creditor is required, as seizor,
to join in the execution proceedings already commenced in the district where
they were commenced. The new creditor gives instructions to the executing
bailiff.

The bailiff files with the court office, in each of the records concerned, an
amended notice identifying any creditor joining in the execution proceedings,
setting out the particulars of that creditor’s claim and describing any additional
execution measures considered expedient. The bailiff notifies the amended
notice to the debtor and to the creditors who gave the bailiff instructions.

DIVISION II
RIGHTS AND OBLIGATIONS OF PARTICIPANTS IN EXECUTION
PROCEEDINGS

§1. — General provisions

683.  On notification of a notice of execution, all participants in the execution

proceedings are required, in addition to acting in accordance with the
requirements of good faith, to co-operate in the proper execution of the judgment
and abstain from doing anything likely to hinder it.

684.  On being served with the notice of execution, the debtor is required
to provide the bailiff with their home and work contact information, and
information on their patrimonial situation, including a list of all their creditors.

On the bailiff’s request, the court may order a person to provide the bailiff
with any information they have concerning the debtor’s home and work contact
information.

The order is enforceable despite any provision to the contrary in a general

law or special Act providing for the confidentiality or non-disclosure of certain
information or documents, subject to compliance with professional secrecy.

§2. — Court bailiffs

685.  Bailiffs have a duty of impartiality toward all participants in execution

proceedings, as well as a general duty to provide information to them. Bailiffs
may perform any act necessary for the exercise of their mission.

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 Specifically, a bailiff is required to inform the debtor and any garnishees of
the content of the notice of execution and of their rights, and, on their request,
explain the execution proceedings to them and the rules for computing the
seizable portion of income. The bailiff is also required to carry out the creditors’
instructions in the manner that is most advantageous not only for them but for
all the parties. The bailiff informs the creditors named in the list provided by
the debtor that a notice of execution has been filed and invites them to inform
the bailiff of their claim.

In the exercise of their functions under this Book, bailiffs cannot be held
liable except for intentional or gross faults.

686.  If force must be used to enter a place for the purpose of seizing or
removing property or evicting a person, the bailiff, before entering, must obtain
the authorization of the court clerk of the district where the bailiff must carry
out the execution proceedings. This authorization gives the bailiff access to all
rooms, buildings and things on the premises.

The bailiff, if concerned about possible difficulties, may request the

assistance of a peace officer.

687.  The bailiff has, with respect to seized property, the powers of an
administrator of the property of others charged with simple administration.

All sums seized by the bailiff, paid to the bailiff under an instalment payment
agreement or derived from the disposition of property are deposited in a trust
account until distribution.

DIVISION III
POST-JUDGMENT EXAMINATION

688.  When a judgment has become enforceable, the judgment creditor or

the bailiff may examine the debtor as to their income, obligations and debts,
any sums owing to the debtor, any property the debtor owns or has owned since
incurring the obligation that is the basis for the judgment, and the property
affected by the judgment. During the examination, the debtor may be required
to produce a document.

The creditor or the bailiff may also examine any other person who is in a
position to provide information about the debtor’s patrimony or any rights
registered in the land register or the register of personal and movable real rights.
If the person does not consent to being examined, the creditor or the bailiff
must obtain the authorization of the court to conduct the examination.

689.  The creditor or the bailiff informs the person to be examined of the
nature of the examination and agrees with the person on its time and place. If
they cannot agree, the person is called to attend at court on the date specified
in a subpoena, which must be served at least five days before that date.

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 The person’s deposition is governed by the rules applicable to evidence given
at trial. It is sound-recorded, unless waived by the parties.

Any difficulty arising during the examination must be submitted to the court
as soon as possible for a decision.

DIVISION IV
RULES APPLICABLE IN EVENT OF DEATH OR IN CASE OF
INCAPACITY

690.  The death of the debtor or the creditor does not interrupt the execution
of the judgment.

If the debtor dies before a seizure is made, the judgment cannot be executed
against the property of the succession until 10 days after service of the judgment
on the liquidator, under pain of nullity of the seizure.

If the creditor dies, the judgment may be executed in the creditor’s name
unless it orders the performance of something that is purely personal to the
creditor.

691.  A judgment rendered against the tutor of a minor, or the tutor, curator
or mandatary of a person of full age, in that capacity, cannot be executed against
the minor or the person of full age, once they become capable of exercising
their rights, until 10 days after it has been served on them.

A judgment rendered in favour of a representative may be executed in the

representative’s name, even after that person ceases to be a representative.

DIVISION V
SPECIAL RULES APPLICABLE TO FORCED EXECUTION IN REAL
ACTIONS

692.  If the party ordered to deliver or surrender property fails to do so

within the time set by the judgment ordering the eviction of the debtor or the
removal of property or by a subsequent agreement between the parties, the
judgment creditor may be placed in possession of the property by the notice
of execution.

If it involves eviction, the notice must be served at least five days before it
is to be executed. It orders the debtor to remove all movable property within a
specified time limit or pay the costs incurred for its removal.

However, if the notice concerns the debtor’s family residence, it must be

served at least 30 days beforehand. On the debtor’s request, the court may
extend the notice period by not more than three months if eviction would cause

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the debtor serious prejudice. The notice period cannot be extended beyond the
term of a lease, however.

No eviction may be carried out between 20 December and 10 January.

693.  Any movable property left on the premises on eviction of the debtor
is deemed to have been abandoned by the debtor and the bailiff may sell it for
the benefit of the creditor, give it away to a charity if it is not likely to be sold
or otherwise dispose of it as the bailiff sees fit if it cannot be given away.

DIVISION VI
EXEMPTION FROM SEIZURE

694.  Movable property that furnishes or adorns a debtor’s main residence,

and personal objects the debtor chooses to keep, up to a market value of $7,000
as determined by the bailiff, may be exempted from seizure. Work instruments
needed for the personal exercise of the debtor’s professional activities may
also be exempted from seizure. Such property may nevertheless be seized and
sold for the amounts owed on their sale price, or seized and sold by a creditor
holding a hypothec on that property, as applicable.

The following are exempt from seizure in the hands of debtors:

(1)  the food, fuel, linens and clothing needed for their life and the life of
their family;

(2)  the things they need or a member of their family needs in order to
compensate for a handicap or treat an illness;

(3)  household pets;

(4)  family papers and portraits, medals and other decorations.

Any waiver of exemptions from seizure is null.

695.  A motor vehicle whose market value, in the context of a seizure, is

less than $10,000 cannot be seized if the vehicle is necessary in order to maintain
work income or an active job search. Nor can it be seized if it is necessary in
order to meet the basic needs of the debtor and the debtor’s dependants or
ensure that they receive the care required by their state of health or can pursue
their education. Nevertheless, such a motor vehicle may be seized if the bailiff
considers that the debtor can meet essential travel needs by using public transit
or another available vehicle.

If the motor vehicle has a market value equal to or greater than $10,000, the
debtor may ask the bailiff to remit enough money, up to $10,000, from the sale
price for the debtor to purchase another motor vehicle.

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 A motor vehicle’s exemption from seizure is ineffective against the seller
as regards the amounts owed on the sale price and against a hypothecary
creditor; it is also ineffective against a seizure in execution of a judgment
rendered under the Code of Penal Procedure.

696.  The following are exempt from seizure:

(1)  consecrated vessels and other things used for religious worship;

(2)  books of account, debt securities and other papers if in the possession
of a debtor who does not operate an enterprise, except bonds, promissory notes
and other instruments payable to order or to bearer;

(3)  contributions paid or to be paid into a supplemental pension plan to

which an employer contributes on behalf of employees, or into another pension
plan established by law;

(4)  the capital accumulated for the payment of an annuity or accumulated

in a retirement savings instrument if the capital has been alienated or is under
the control of a third person and satisfies the other prescriptions of law;

(5)  amounts reimbursed to the debtor for costs relating to an accident or

illness;

(6)  anything declared unseizable by law.

The following are also exempt from seizure:

(1)  lump sum amounts and compensation, other than income replacement
indemnities, paid in execution of a judgment or under a public compensation
plan covering costs and losses resulting from a person’s death or from bodily
or moral injury;

(2)  property declared by the donor or testator to be exempt from seizure, if

the stipulation is made in an act by gratuitous title and is temporary and justified
by a serious and legitimate interest. However, the property may be seized on
the request of creditors whose claims are subsequent to the gift or the opening
of the legacy, with leave of the court and to the extent it determines.

Nevertheless, the property described in the second paragraph may be seized

up to a limit of 50% to execute partition of a family patrimony, a claim for
support or a compensatory allowance, or a judgment ordering the payment of
damages for bodily injury caused by an intentional or gross fault.

697.  Works of art and other cultural or historical property brought into
Québec and placed or intended to be placed on public exhibit in Québec are
exempt from seizure if the Government declares them so by order, for the period
specified in the order. The order comes into force on its publication in the
Gazette officielle du Québec.

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 Such exemption from seizure does not prevent the execution of a judgment
against the property if it was originally designed, produced or created in Québec,
or the execution of a judgment enforcing a service contract relating to the
transportation, warehousing or exhibition of the property.

698.  The debtor’s income is exempt from seizure except the portion
determined by the formula (A − B) × C.

A is the debtor’s income, made up of

(1)  remuneration in money, kind or services, paid for services rendered in

the exercise of an office or under an employment contract, a service contract
or a contract of enterprise or mandate;

(2)  money paid as a retirement benefit, a pension, an income replacement

indemnity or judicially awarded support, this money, however, being exempt
from seizure in the hands of the payer; and

(3)  money paid as an employment-assistance or support allowance, a youth

allowance or last resort financial assistance, except that sums received under
the Individual and Family Assistance Act and declared by that Act to be exempt
from seizure in the hands of the recipient are so exempt from seizure.

The following are not included in the debtor’s income, however:

(1)  support declared by the donor or testator to be exempt from seizure,

except for the portion determined by the court;

(2)  judicially awarded support, if intended to provide for a minor child;

(3)  employer contributions to a retirement, insurance or social security fund;

(4)  the value of food and lodging provided or paid by the employer for
work-related travel.

B is the total of the exemptions to which the debtor is entitled for basic needs
and those of dependants. Those exemptions are determined on the basis of the
monthly amount granted as a social solidarity allowance to single persons under
the Individual and Family Assistance Act, which amount is annualized then
calculated on a weekly basis by the Minister of Justice, that is, (insert the
amount so determined); for the debtor, the exemption is 125% of the latter
amount, that is, (insert the amount so determined), for the first dependant, 50%,
that is, (insert the amount so determined), and for any other dependant, 25%,
that is, (insert the amount so determined); these figures are updated by the
Minister on 1 April each year.

C is the seizure percentage, that is, 30%. However, in the case of the execution
of partition of a family patrimony, of a claim for support or a compensatory
allowance or of a judgment ordering the payment of damages for bodily injury
caused by an intentional or gross fault, the percentage is 50%.

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699.  A debtor whose income consists in earnings as a self-employed worker
or is received from an employer not resident in Québec must, to benefit from
exemption from seizure for a portion of that income, enter into an instalment
payment agreement with the bailiff or a voluntary deposit agreement with the
court clerk. The debtor benefits from the exemption from seizure so long as
the undertakings of the agreement are complied with. The debtor may, to
determine that income, subtract any expenses incurred to earn it that are eligible
expenses for fiscal purposes.

700.  The immovable serving as the debtor’s main residence may be seized
to execute a claim for support or to execute another claim of $20,000 or more,
not including legal costs.

It may also be seized to execute a claim of any amount secured by a prior

claim or a hypothec. In the case of a legal hypothec arising out of a judgment,
however, the amount of the claim must be at least $20,000; otherwise, the
registration of such a hypothec is valid only for conservatory purposes.

701.  A decision made by the bailiff under the exemption from seizure rules
may, on an application, be reviewed by the court.

TITLE II
SEIZURE OF PROPERTY

CHAPTER I
GENERAL PROVISIONS

702.  A judgment creditor may exercise different means of execution at the

same time.

A judgment creditor may seize any of the debtor’s movable property that is
in the debtor’s possession or that is held by the creditor or a third person. The
judgment creditor may also seize any immovables possessed by the debtor.

The effect of seizure is to place the property belonging to the debtor under
judicial control.

703.  Movable property is seized by the bailiff on the premises where it is

located. Income or money is seized in the hands of the third persons who owe
it, through notification of the notice of execution to them.

Fruits and other products of the soil that are seized are considered movable
property even if they are not separated or extracted from the land.

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CHAPTER II
SEIZURE OF MOVABLE AND IMMOVABLE PROPERTY IN
EXECUTION

704.  The seizure of movable property may be effected between 7 a.m. and
9 p.m. on any day except a holiday by serving the notice of execution on the
debtor and the garnishee. It may be effected outside those hours with the
permission of the court clerk obtained informally and recorded on the notice
of execution, and even on a holiday if the property is misappropriated, conveyed
or abandoned.

A seizure not completed at 9 p.m. may be continued without formality past

that time if the bailiff considers it necessary in the parties’ interests; otherwise,
it is continued as soon as possible in the following working days, after taking
the necessary security measures.

705.  The seizure of an immovable is effected by registering the notice of

execution in the land register and serving the notice on the debtor. The notice
may be served at the domicile elected by the debtor in the deed of sale or
hypothec if the debtor is absent or not easily traceable.

The registrar registers the seizure on receiving notification of the notice with
proof of service on the debtor.

706.  Movables permanently and physically attached or joined to an

immovable that are immovables under article 903 of the Civil Code may only
be seized with the immovable to which they are attached or joined; however,
they may be seized separately by a prior or hypothecary creditor, or by another
creditor if they do not belong to the owner of the immovable.

707.  A seizure is recorded in minutes prepared by the bailiff. The minutes

must mention whether or not the debtor was present at the time of the seizure,
and contain

(1)  mention of the title under which the seizure is made;

(2)  the date of the notice of execution and the name of the seizing creditor;

(3)  the date and time and the nature of the seizure;

(4)  a description of the property seized; and

(5)  the name of the custodian, if any.

In the case of a seizure of movable property, the minutes must also contain
a list and the market value of the movable property left to the debtor if the
value of the property seized is insufficient to pay the claim of the seizing
creditor.

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 The minutes are notified to the debtor and the seizing creditor, as well as to
all creditors having rights in the seized property and to any third person
appointed as custodian.

708.  When seizing movable property of an enterprise, a road vehicle, other

movable property which, according to the regulation under article 2683 of the
Civil Code, may be hypothecated or a group of such items of property, the
bailiff checks in the register of personal and movable real rights whether rights
in the property have been granted.

709.  The debtor has 20 days from the seizure in the case of movable property,
and 60 days in the case of immovable property, to sell the seized property,
unless it is hypothecated. If the debtor waives this right or does not exercise it
within the prescribed time, the bailiff may sell the seized property.

A sale by the debtor is subject to the approval of the bailiff, who determines
whether the sale price is commercially reasonable. If that is the case, the bailiff
notifies a notice of sale to the seizing creditor, all creditors having rights in the
seized property and the garnishee, who have 10 days to oppose the sale.

If no opposition is filed, the sale may be concluded on the expiry of that

time limit. The sale price obtained must be deposited in the hands of the bailiff.

710.  At any time before the sale of seized property, the debtor may obtain
release of seizure by paying the judgment amount, including execution costs.
If the seizure of certain property causes prejudice to the debtor and if the bailiff
authorizes it, the debtor may also replace the seized property, unless it is
hypothecated, by property whose sale will allow full satisfaction of the
judgment.

If the debtor obtains release of seizure before the sale of the property, the
bailiff attests to the release of seizure on the request of any interested person
and, if necessary, records it in the sales register.

CHAPTER III
SEIZURE IN THE HANDS OF THIRD PERSONS

DIVISION I
GENERAL RULES

711.  The notice of execution notified to the garnishee directs that person
to declare to the bailiff, within 10 days, the amount, cause and terms of their
current or potential indebtedness to the debtor at the time the declaration is
made. The garnishee must provide with the declaration a detailed statement of
the debtor’s property that is in the garnishee’s possession, specifying under
what title the property is held. The garnishee must also disclose any seizures
made in the garnishee’s hands.

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 The bailiff files the garnishee’s declaration with the court office and notifies
it to the seizing creditor and the debtor, who have 10 days to contest it.

712.  Seizure makes the garnishee the custodian of the property seized.

On the bailiff’s request or on the court clerk’s order, the garnishee is required
to deliver the debtor’s property that is in the garnishee’s possession to the
bailiff. The garnishee is also required to give the bailiff, on request, all relevant
documents relating to the garnishee’s debt toward the debtor. In addition, on
the seizing creditor’s or the bailiff’s express request, the garnishee is required
to submit to an examination to complete the garnishee’s declaration, as if it
were a post-judgment examination.

713.  If income of the debtor is seized, the garnishee is required, within

10 days after notification of the notice of execution, to remit to the bailiff the
seizable portion of what the garnishee owes to the debtor.

If the debtor has multiple sources of income, the bailiff, after determining
the seizable portion of the income, determines the portion that each garnishee
must withhold and remit to the bailiff. If the debtor’s sources of income are
not easily identifiable or are non-recurring, the bailiff determines, subject to
an instalment payment agreement, the amount the debtor must pay to the bailiff.

If the garnishee substantially changes or ends the contractual relationship

with the debtor, the garnishee is required to declare as much to the bailiff
without delay. If a dispute arises between the garnishee and the debtor, the
onus is on the garnishee, under pain of damages, to prove that the contractual
relationship was not changed or ended because of the seizure of income.

The seizure remains binding for so long as the debtor’s sources of income
are maintained and all claims filed by the creditors have not been paid.

714.  If the garnishee declares that the debtor works for the garnishee without
being paid or for remuneration that is clearly less than the value of the services
rendered, the bailiff or a creditor may ask the court to assess the value of the
services rendered and determine a fair remuneration. The remuneration
determined by the court is deemed to be the debtor’s remuneration from the
date of the application until it is shown that the amount should be changed.
The application is notified to the debtor and the garnishee at least five days
before it is to be presented before the court; the decision of the court cannot
be appealed.

715.  If the garnishee’s debt is payable at a future time, the garnishee must,
at maturity, pay to the bailiff what the garnishee owes to the debtor. If it is
subject to a condition or to the performance of an obligation by the debtor, the
seizure is binding until the condition is fulfilled or the obligation performed.

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716.  If the garnishee declares not being indebted to the debtor and cannot
be proved to be so, the garnishee or the debtor may obtain a release of seizure
from the bailiff, with execution costs to be borne by the seizing creditor.

717.  If the garnishee is in default for failure to declare, withhold or deposit

a sum of money or makes a declaration that proves to be false, the garnishee
may be ordered to pay the sum owing to the seizing creditor as if the garnishee
were the debtor.

The garnishee may, however, obtain the authorization to declare or deposit

at any time, even after judgment, on payment of the sums the garnishee should
have withheld and deposited since notification of the notice of execution. In
such a case, the garnishee is required to pay all costs resulting from the default.

718.  If, while a seizure is binding or its execution is stayed, a judgment

ordering partition of a family patrimony, awarding support or a compensatory
allowance or awarding damages for bodily injury caused by an intentional or
gross fault operates to change the amount that the garnishee must pay, the
bailiff, on being informed of the judgment, so advises the garnishee, the debtor
and the other parties.

DIVISION II
SPECIAL RULES IN SUPPORT MATTERS

719.  If a seizure of income is effected under a judgment awarding support,

it applies to payments to become due as well as to arrears, as indexed if
applicable; it remains binding until release is given. The same applies if the
seizure is effected under the Family Orders and Agreements Execution
Assistance Act (Revised Statutes of Canada, 1985, chapter 4, 2nd Supplement).

Release may be given on the expiry of one year after the payment of all
arrears, if there is no other claim in the record and execution has not been
stayed; release cannot be given, however, if the Minister of Revenue is acting
in the capacity of claimant or seizing creditor under the Act to facilitate the
payment of support.

720.  If a judgment awarding support has been executed by the creditor by

a seizure of income and there is no other claim in the record, the bailiff, on the
debtor’s request, may, once the arrears are paid, stay the execution of the seizure
provided the debtor undertakes to make the support payments, as they become
due, directly to the bailiff and provides sufficient guarantees to secure
compliance with that undertaking.

Such a stay may be granted for not less than six months nor more than one
year; the bailiff advises the support creditor and the other creditors, as well as
the garnishee, who then ceases to make deposits. During that period, the bailiff
pays the sums received from the debtor to the support creditor at least monthly.

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721.  The bailiff grants release of seizure if the seizure does not become
enforceable again at the end of the stay.

The seizure becomes enforceable again if the debtor fails to make a payment
when it becomes due, or if a claim is filed in the debtor’s record by a third
person. The bailiff advises the support creditor, the other creditors as well as
the garnishee, who must, within 10 days after being advised, remit the seizable
portion of the debtor’s income to the bailiff.

CHAPTER IV
SPECIAL RULES APPLICABLE TO CERTAIN SEIZURES

DIVISION I
SEIZURE ON DEBTOR’S PERSON

722.  If the bailiff is convinced that there is property of value on the debtor’s
person, the bailiff may apply to the court for authorization to seize the property
on the debtor’s person and to obtain the assistance of a peace officer if necessary.
The application need not be notified to the debtor.

Before making the seizure so authorized, the bailiff must ask the debtor to
hand over the property. If the debtor refuses, the bailiff may search the debtor,
with the assistance of a peace officer if necessary. The search and seizure is
carried out in such a manner as to limit violations of personal rights and
freedoms.

DIVISION II
SEIZURE OF SECURITIES OR SECURITY ENTITLEMENTS TO
FINANCIAL ASSETS

723.  Certificated securities are seized by seizing certificates, through service

of the notice of execution on the person holding the certificates and on the
issuer or the issuer’s transfer agent in Québec.

Uncertificated securities or security entitlements to financial assets are seized

by serving the notice of execution on the issuer or on the securities intermediary
that maintains the debtor’s securities account, as applicable.

724.  Securities, whether certificated or uncertificated, or security entitlements

to financial assets may be seized by serving the notice of execution on a secured
creditor if

(1)  the certificates representing the securities are in the secured creditor’s
possession;

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 (2)  the uncertificated securities are registered in the secured creditor’s name
in the issuer’s records; or

(3)  the security entitlements to financial assets are held in the secured
creditor’s name in a securities account maintained for the debtor by a securities
intermediary.

725.  The seizure of securities or security entitlements to financial assets

entails the seizure of the interest, dividends, distributions and other rights
attached.

726.  When certificated securities are seized, the issuer must declare to the
bailiff the number of securities held by the debtor, the extent to which the
securities are paid up and the interest, dividends or other distributions declared
but not yet paid.

DIVISION III
SEIZURE OF TECHNOLOGICAL MEDIA

727.  On seizing a technological medium, the bailiff is required to inform

the debtor or the garnishee of their right to transfer any documents they wish
to preserve from the seized medium to another medium.

If custody of the seized medium has been entrusted to a third person, the
debtor or the garnishee is required to advise the bailiff, within 15 days after
the seizure, of their intention to transfer documents.

The costs of the transfer are borne by the debtor or the garnishee.

728.  If there is no opposition to the seizure or the opposition has been

dismissed, the bailiff destroys all documents on the medium before the sale.

If the bailiff considers it necessary, a specialist may be called on to assist

with the destruction of the documents. If any of the documents are covered by
the professional secrecy imposed on the debtor or the garnishee, the bailiff
must be assisted by a representative designated by the professional order of
the debtor or the garnishee.

DIVISION IV
SEIZURE OF PROPERTY IN SAFE OR SAFETY DEPOSIT BOX

729.  Property in a safe or a safety deposit box is seized through the opening
of the safe or box and the drawing up of minutes of seizure by the bailiff. The
minutes of seizure, which must state the names of the persons present and
describe the content of the safe or box and the property seized, are notified to
the creditor and the debtor and, if applicable, to the lessor in the lessor’s capacity
as custodian.

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 If the bailiff cannot obtain the debtor’s co-operation in opening the safe or
safety deposit box, the court, on an application, may authorize the opening of
the safe or box in the manner it determines. The application is notified to the
debtor and, if applicable, to the lessor and any other lessees of the safe or box.
As of the notification, the lessor is prohibited from giving access to the safe
or box in the bailiff’s absence.

DIVISION V
SEIZURE OF REGISTERED ROAD VEHICLES

730.  A registered road vehicle may be seized through notification of the

notice of execution to the Société de l’assurance automobile du Québec. The
notice of execution contains the number appearing on the registration plate of
the seized vehicle and the identification number, model and year of the vehicle.

No transfer of registration may be made after notification of the notice of

execution unless the Société is informed by the bailiff that a release of seizure
has been granted.

CHAPTER V
CUSTODY OF SEIZED PROPERTY

731.  The bailiff gives custody of the seized property to the debtor, who is
required to accept it. If the debtor is a legal person, the bailiff gives custody
of the property to its officers or to one of its officers.

With the authorization of the court, the bailiff may entrust the seized property
to a custodian other than the debtor. Custody of the property cannot be given
to an insolvent person or to a person who may be placed in a conflict of interest
situation as a result, and the custody costs must be reasonable under the
circumstances.

The seizing creditor, the creditor’s attorney, their spouses and persons related
to them by blood or connected to them by marriage or civil union up to the
fourth degree cannot act as custodian, except if they are already in possession
of the property and consent to the seizure.

The custodian of seized property is required to disclose to the bailiff any

situation which may result in the loss of the property.

732.  If the seizure is against an immovable, the bailiff may ask the court
to appoint a sequestrator.

The sequestrator so appointed, after advising the interested persons, collects

the fruits and revenues of the immovable, which, after deducting expenses, are
immobilized to be distributed in the same manner as the proceeds of the sale.

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733.  The custodian of seized property may move the property, with the
bailiff’s consent. The custodian is required to produce the property on the
bailiff’s request and, on doing so, is entitled to a discharge or receipt for the
property delivered.

If the custodian removes the property without the bailiff’s consent, fails to
produce it, damages it or fails to disclose a situation that results in its loss, the
custodian is required to provide reparation for any resulting prejudice and is
liable for contempt of court.

734.  The bailiff may replace a custodian, other than the debtor, who has
become insolvent or wishes to be discharged, for any cause considered
sufficient.

Before entrusting the property to a new custodian, the bailiff draws up a

report ascertaining the state or condition of the property.

CHAPTER VI
OPPOSITION TO SEIZURE AND SALE

DIVISION I
GENERAL PROVISIONS

735.  A person may oppose the seizure or proposed sale of property and ask
for the annulment in whole or in part of the seizure or sale proceedings if

(1)  the property is exempt from seizure;

(2)  the debt is extinguished;

(3)  the proposed sale price is not commercially reasonable;

(4)  the proceedings are affected by an irregularity resulting in serious

prejudice, subject to the power of the court to authorize the bailiff or the seizing
creditor to remedy the irregularity; or

(5)  a right may be exercised to revendicate the seized property or any part
of it.

The debtor’s creditors may only oppose the proposed sale and may do so
only on the grounds that the proposed sale price is not commercially reasonable
or that the sale may be affected by serious irregularities.

A third person in whose favour an encumbrance exists against the property

may also oppose the sale if the property is advertised without any mention of
the encumbrance and the encumbrance will be discharged by the sale.

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 As well, any person whose interests are adversely affected by reason of the
seized property being advertised as being subject to an encumbrance may
oppose the property being sold subject to the encumbrance, unless sufficient
security is given to guarantee that the property will be sold for a price that will
ensure payment of the person’s claim.

736.  The opposition must, within 15 days after notification of the minutes
of seizure or the notice of sale, be served on the bailiff, the debtor, the seizing
creditor and the garnishee, and notified to the other creditors and the persons
whose rights in the property are registered in the land register or the register
of personal and movable real rights.

DIVISION II
EFFECTS OF OPPOSITION

737.  Notification of an opposition stays execution.

If, however, the opposition is made solely to obtain a reduction of the amount
claimed or a withdrawal from seizure of part of the seized property, it does not
stay execution; the bailiff proceeds with execution to satisfy the uncontested
part of the claim or to realize the property against which the opposition is not
directed, unless the court orders a stay of all proceedings.

An opposition made after the prescribed time that is notified before the sale
cannot stop the sale, except if the court so orders on the opposer showing
sufficient cause.

738.  An opposition to a seizure of income stays only the distribution of the

sums seized. However, if a judgment awarding support is being executed, the
distribution of the income already seized is not stayed unless the court orders
it stayed for exceptional reasons.

739.  If the bailiff has received execution instructions or claims from two
or more creditors, and an opposition relates to the instructions given by one of
them only, the bailiff, to the extent possible and after having advised the opposer,
continues to execute in order to satisfy the instructions and claims of the other
creditors.

740.  An opposer whose opposition is dismissed is liable toward the

creditors, the debtor and the garnishee for the interest on the amount due to
the creditors and for the cost of safekeeping the property for the time during
which execution was stayed.

741.  An opposition by a person whose earlier opposition was dismissed

does not stay execution unless it is based on facts that occurred after the earlier
opposition was made and the stay is ordered by the court. The application for

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stay, which may be made without formality, must be preceded by two days’
notice to the seizing creditor, unless the court dispenses with such notice.

TITLE III
SALE UNDER JUDICIAL AUTHORITY

CHAPTER I
CONDUCT OF SALE

742.  A sale under judicial authority is conducted to sell property seized to

execute a judgment or property whose surrender is ordered on the exercise of
hypothecary rights.

In the former case, the sale is under the responsibility of a court bailiff and
governed by the rules of this Title. In the latter case, the sale is under the
responsibility of the person designated under article 2791 of the Civil Code
and governed first by the rules of that Code and subsidiarily by the rules of
this Title.

743.  The court bailiff in charge of the sale is responsible for the conduct
of all related operations. The court bailiff is required to inform the interested
persons and, at the time of the sale, the purchaser, of the capacity in which the
bailiff is acting.

The bailiff is duty-bound to keep the creditor, the debtor and any other
interested person who so requests informed of any steps taken, and to keep
records that are sufficiently detailed for the rendering of an account to the court
and to the interested persons.

The bailiff, if they consider it necessary, may ask the court for any instruction
or order to facilitate the performance of their duties and ensure the most
advantageous sale.

744.  The bailiff has the option, depending on the nature of the property, of
selling by agreement, through a call for tenders or by auction; the bailiff sets
the terms of the sale.

The sale must be made in the best interests of the debtor and the creditors,
at a commercially reasonable price and using the most appropriate method of
realization in the circumstances.

745.  The bailiff may sell, without delay or formality, movable property that
is perishable, likely to depreciate rapidly or expensive to preserve.

746.  If several items of property have been seized, only those whose sale
is necessary to pay the claims, including principal, interest and costs, may be

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sold, unless the debtor consents to the sale of all the seized property. The debtor
has the right to determine the order in which the seized property is to be sold.

CHAPTER II
METHOD OF REALIZATION

747.  The bailiff may fix a reserve price for property offered for sale. The
bailiff may seek an expert appraisal if the nature or value of the property justifies
doing so.

748.  Whether the sale is by agreement, through a call for tenders or by

auction, it must be preceded by the publication of a notice setting out the nature
of the property, the method of sale used and the charges and terms and conditions
of the sale. The notice of sale is published in the sales register kept by the
Minister of Justice, as well as in the land register if the property is an immovable.

In order to achieve a better realization of the property, the bailiff may also,
on the request and at the expense of the debtor or a creditor, publicize the sale
beyond what is prescribed by law.

The Minister may, by regulation, establish standards concerning the

presentation, form and content of notices, the storage medium for and the
manner of keeping the register, consultation procedures, the storage medium
and schedule for preserving the notices, as well as any other rules needed to
set up and run the register.

749.  The notice of sale must be so published at least 20 days before the
scheduled sale date.

The bailiff notifies the notice to the debtor, the garnishees and any creditors
having advised the bailiff of their claim or registered their right in the register
of personal and movable real rights, and the registrar notifies it to the holders
of rights registered in the land register.

If the sale does not take place, the bailiff records as much in the sales register
and, if applicable, informs the land registrar so that the notice of sale may be
struck from the land register.

750.  The bailiff may take into consideration any representations made by
the debtor, a creditor or a third person pursuing an interest in the property on
the method of sale chosen, the terms of sale or the reserve price.

Within 10 days before the sale of the property, anyone who is not satisfied
with the bailiff’s response may go before the court to make representations or
to oppose the sale. However, the sale is stayed only if the court orders that it
be stayed.

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751.  If the sale is stayed, either because a demand or an application is
pending, the court has ordered it or the debtor and the creditors have consented
to it, notice of the stay is entered in the sales register by the bailiff.

752.  In the case of a sale by agreement, the bailiff is deemed to represent

the owner of the property for the conclusion of the contract of sale, which the
bailiff has power to sign in the owner’s name. The purchaser is required to pay
the price to the bailiff.

753.  In the case of a call for tenders, the bailiff has the option of issuing a
public or a limited one. Sufficient information must be included in the call for
tenders to allow bidders to tender in sufficient time.

The bailiff is required to accept the highest tender unless the conditions
attached to it render it less advantageous than another lower tender, or unless
the price tendered is not commercially reasonable.

754.  In the case of a sale by auction, the bailiff sets out in the notice of sale
the nature of the property, the reserve price, if any, and sufficient information
to allow bids to be made. Also to be included is the bailiff’s name and contact
information and those of the auctioneer selected, if any.

If bids may be entered by way of information technology, the notice must

state how and when bids will be received and must specify the closing date.

At the sale, the bailiff or the auctioneer, as applicable, may, in the interests
of the creditors or the debtor, refuse a bid, withdraw the property and put it up
for sale again, with or without a reserve price, or end the sale.

755.  The bailiff is bound by the conditions and restrictions governing the
transfer of a legal person’s shares, unless the resulting constraints hinder the
realization of the sale.

The purchaser of the shares is subject to the conditions and restrictions set
out in the legal person’s constituting act and by-laws and any unanimous
shareholder agreement. The purchaser must be informed of any restrictions
attached to the shares purchased.

756.  If property cannot be sold, the bailiff returns it to its owner. If the
owner refuses the property, the bailiff may give it away to a charity or, if it
cannot be given away, dispose of it as the bailiff sees fit.

CHAPTER III
SALE AND EFFECTS OF SALE

757.  As soon as the sale is made, the bailiff publishes in the sales register
a notice stating the price and the terms of the sale. The notice is also filed with
the court office.

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758.  If the purchaser refuses to sign the deed of sale, to pay the sale price,
or to take possession of the property, the bailiff, on the expiry of 10 days after
the sale, may obtain an order from the court having the same force and effect
as a deed of sale or an order for forced surrender, for eviction from the
immovable or for forced removal of the movable property.

759.  The sale discharges all real rights not included in the terms of sale. It
does not discharge

(1)  servitudes;

(2)  emphyteusis, the rights needed to exercise superficies, and substitutions

not yet open, except when a prior or preferred claim is mentioned in the court
record; or

(3)  the administrative encumbrance affecting a low-rental housing complex.

The sale does not terminate leases in progress, whether or not they are
registered in the register of personal and movable real rights or the land register.

Nor does the sale affect the legal hypothec securing the rights of legal persons
established in the public interest in respect of special municipal or school taxes
that are not yet due and the payment of which is spread over a number of years;
such taxes do not become due by reason of the sale of the immovable and are
not collocated, but remain payable in accordance with the terms of their
imposition.

760.  The sale may be annulled on the application of the purchaser if the
latter is liable to eviction by reason of some real right not discharged by the
sale, or if the immovable differs so much from the description given in the
notice of sale or the minutes of seizure that it is to be presumed that the
purchaser would not have bought it had the purchaser been aware of the true
description. The sale may also be annulled on the application of the debtor or
a creditor if the property is sold for a price that is not commercially reasonable.

The application for the annulment of a sale must be notified within 20 days
after the sale in the case of movable property, or within 60 days after the sale
in the case of immovable property. These time limits are strict time limits.

761.  The sale of property is considered to have been made at a commercially

reasonable price if, in light of the specific circumstances of the sale, the sale
price corresponds, to the extent possible, to the market value of the property.

In the case of an immovable, the sale price may in no case be lower than
50% of its assessed value as entered on the municipal assessment roll, multiplied
by the factor determined for that roll by the minister responsible for municipal
affairs under the Act respecting municipal taxation (chapter F-2.1), unless the
court is convinced that the immovable cannot be sold within an acceptable time
for such a price.

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TITLE IV
DISTRIBUTION OF PROCEEDS OF EXECUTION

CHAPTER I
GENERAL PROVISIONS

762.  A bailiff who sells property following a judicial authorization or a

seizure or who seizes sums of money is responsible for distributing the proceeds
of the sale or the sums seized to the creditors. A bailiff or a court clerk who
periodically collects income of a debtor is responsible for distributing the sums
collected to the creditors.

If the bailiff considers it necessary, the bailiff may retain the services of a
lawyer or a notary to assist in preparing the collocation scheme, or ask the
court for any order to facilitate the distribution of the proceeds of the sale or
the sums seized.

CHAPTER II
DISTRIBUTION OF PROCEEDS OF SALE OR MONEY SEIZED

DIVISION I
BAILIFF’S REPORT

763.  The bailiff files a report with the court office within 15 days after the
sale or after the seizure of sums of money, attaching all supporting documents,
including any appraisal obtained beforehand, the confirmation given by the
dealer in charge of the sale of securities or security entitlements listed and
traded on a stock exchange, or the statement certified by the registrar.

The report states the names and contact information of the debtor, of the
seizing creditor, and, if a sale has occurred, of the purchaser, and the terms and
conditions of the sale. It refers to the minutes of seizure and the publications
made, mentions any opposition filed, and specifies all sums obtained. If two
or more persons are entitled to the proceeds of the sale or the sums seized, it
must also include a collocation scheme.

764.  For the preparation of the report, the bailiff may call a creditor to
appear before the bailiff in order to be examined on facts relating to an
encumbrance mentioned in the statement certified by the registrar or a claim
filed in the record.

An admission by the creditor has full effect against the creditor without any
further proceeding or formality.

765.  The bailiff’s report is notified to the debtor, to the creditors entitled
to the proceeds of the sale or the sums seized, to the creditors whose rights are
registered in the land register or the register of personal and movable real rights,

195
and, in the case of an immovable, to the municipality and the school board in
whose territory the immovable is located.

DIVISION II
COLLOCATION SCHEME

766.  The collocation scheme states the names and contact information of
the creditors, the nature of their claim, the date of the title and of its registration,
if applicable, and the amount to which each creditor is entitled. It specifies,
for each creditor, whether the claim pertains to the whole amount to be
distributed or only to the proceeds of the sale of a particular item of property
or of part of an item of property.

The scheme determines the order of collocation according to the rank of the
creditors, as follows:

(1)  execution costs, in the following order:

— the cost of the bailiff’s report;

— the cost of the sale;

— the cost of the seizure, including the cost of any post-judgment examination,
and costs relating to the transportation and safekeeping of the property;

— the professional fee and other expenses of the bailiff;

— the cost of incidental proceedings subsequent to the judgment; and

— the legal costs, if any, of the seizing creditor;

(2)  the seizing creditor’s claim for an amount equal to 10% of the sums to
be distributed to the creditors of claims described in subparagraphs 3 to 5;

(3)  prior claims against the property sold;

(4)  hypothecary claims against the property sold;

(5)  unsecured claims.

If an opposition to the seizure was made tardily by a person revendicating

the property or holding a real right in the property, and the opposition was
allowed after the sale, the bailiff enters the person’s claim in the collocation
scheme, according to the person’s rank.

767.  If there are indeterminate or unliquidated claims, the bailiff must

reserve a sum sufficient to cover them out of the available moneys; the sum is

196
deposited in a trust account until the claims are determined or liquidated, unless
a judge orders otherwise.

If there are conditional claims, the creditors concerned are collocated

according to their rank, but the amount of their claims is paid to subsequent
creditors whose claims are payable, provided they give security, within the
month following notification of the bailiff’s report and the collocation scheme,
for the return of the money when the condition is fulfilled. If the subsequent
creditors fail to give security, or if there are no subsequent creditors, the amount
is paid to the debtor, on condition of security being given, or, if the debtor fails
to give security, to the conditional creditors, on condition of security being
given for the return of the money in the event that the condition fails or becomes
impossible, and paying interest to the bailiff, who distributes the interest to the
creditors or remits it to the debtor after satisfying the creditors.

768.  If two or more items of property separately charged with different

claims are sold for an aggregate price or if a creditor has a claim against part
only of an item of property, the bailiff prorates the amount to be distributed if
it is insufficient, and obtains an expert opinion if the record does not contain
sufficient information. The share to be given to each creditor is calculated by
determining the value of each item or part of property in relation to the value
of the whole.

769.  The bailiff, on their own initiative or on the request of an interested

person, may revise the collocation scheme if it contains an error, in which case
the bailiff is required to notify the collocation anew.

770.  Within 10 days after notification of the bailiff’s report or the revised
collocation scheme, any interested person may contest the scheme and ask the
court for a determination of the persons to whom the proceeds of the sale and
the sums seized are to be distributed.

The application is notified to the bailiff and to all those who received the
bailiff’s report. On such notification, the bailiff stays the distribution proceedings
either entirely or only for the contested claim and subsequent claims.

771.  If there is no contestation or as soon as a judgment is rendered

dismissing the contestation, the bailiff distributes the proceeds of the sale and
the sums seized without delay, as provided in the bailiff’s report.

CHAPTER III
DISTRIBUTION OF SEIZED INCOME

772.  Periodically seized or collected income must be distributed to the

creditors by the bailiff or, as applicable, by the court clerk at least quarterly,
but in the case of a support creditor, at least monthly.

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773.  While a seizure of income remains binding, not only the seizing creditor
but all creditors may participate in the distribution of the income; they must
however have notified their claim, setting out the nature, date and amount of
the debt, to the bailiff or the court clerk and to all interested persons, and have
provided supporting documents.

In the absence of supporting documents, the claim is not admissible, unless

it is established to the satisfaction of the court that it is impossible for the
creditor to produce such documents.

774.  A claim bears interest from the date it was notified to the bailiff or the
court clerk, at the lesser of the legal rate and the rate agreed between the parties;
no claim relating to the difference between the interest rate agreed between
the parties and the legal rate, for any period during which the legal rate is
applicable, may be accepted.

775.  Any interested party may, within 15 days after receiving notification
of a creditor’s claim, contest the claim by notifying the contestation to the
bailiff or the court clerk, the debtor and the creditor. The bailiff or the court
clerk retains the sums the creditor would have been entitled to until a decision
is rendered on the contestation.

776.  The bailiff or the court clerk distributes seized income according to
the following order of collocation:

(1)  execution costs, including the cost of administering an instalment

payment agreement, if applicable;

(2)  claims for support and claims resulting from a judgment ordering the
payment of damages for bodily injury caused by an intentional or gross fault,
but only with respect to the difference between the portion of the income seized
by reason of the particular nature of the claim and the portion of income that
is ordinarily seizable, in proportion to the amount of the claims;

(3)  the seizing creditor’s claim for an amount equal to 10% of the sums to
be distributed the creditors of claims described in subparagraphs 4 to 6;

(4)  prior claims;

(5)  hypothecary claims; and

(6)  unsecured claims.

In all cases, the bailiff or the court clerk pays to a support creditor, out of
the portion of income that is ordinarily seizable, the amount required to make
the total amount distributed to that creditor equal to at least one-half of the
sums distributed every month, up to the amount of support due.

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 However, a spouse’s claim based on a marriage or civil union contract cannot
be paid until all other claims have been discharged.

When the full amount of a claim has been paid to the creditor, the bailiff or
the court clerk notifies a notice of payment to the debtor and the creditor. If
the notice is not contested by the creditor within 15 days after the notification,
the bailiff or the court clerk may, on request, give an acquittance by certifying
on the debtor’s copy of the notice of payment that it has not been contested.

777.  The Minister of Justice may, by order, determine the cases and
circumstances in which a court clerk may, in the bailiff’s place, administer and
distribute seized income, and determine the applicable conditions.

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AMENDING AND FINAL PROVISIONS

GENERAL AMENDING PROVISIONS

778.  In any Act or statutory instrument, the following terminological

changes are made, with the necessary modifications:

(1)  “recours collectif” in the French text, and “recours” in the French text
when it means “recours collectif”, are replaced by “action collective” and
“action”, respectively;

(2)  “distress warrant”, “writ”, “writ of execution”, “writ of seizure”, “writ

of seizure in execution”, “writ of seizure in execution of an immovable”, “writ
of seizure in execution of movable property”, “writ of seizure of immovables”,
“writ of seizure of movable property”, “writ of seizure of movable property in
execution”, and “writ of seizure of property” are replaced by “notice”, “notice
of execution” or “order”, depending on the context, if a substitution is necessary,
and if not, they are struck out;

(3)  “juridiction” in the French text, when referring to the jurisdiction of a

court of justice or an administrative tribunal, is replaced by “compétence”;

(4)  “extrajudicial costs”, “extrajudicial fees”, “extra-judicial professional

fees”, are replaced by “professional fees”, and “judicial fees” is struck out;

(5)  “juridical day” is replaced by “working day” and “non-juridical day” is

replaced by “holiday”;

(6)  “mandate given in the anticipation of the mandator’s incapacity” or the

equivalent is replaced by “protection mandate”;

(7)  “writ of seizure by garnishment” and “writ of attachment” are replaced

by “order to seize property in the hands of a third person”;

(8)  “writ of possession” and “writ in an action of ejectment” are replaced

by “eviction order”;

(9)  “writ of habeas corpus” is replaced by “habeas corpus order”;

(10)  “certified mail”, “certified or registered mail”, “registered or certified

mail”, “registered or certified post”, “registered letter”, “registered or certified
letter”, “registered mail”, “certified or registered letter” and “recommended or
certified mail” are replaced by “registered mail”;

(11)  any text, whether or not it contains an express reference to the Code
of Civil Procedure, that mentions an action or a recourse under article 33 of
the Code of Civil Procedure, an extraordinary recourse or remedy provided for
or within the meaning of the Code of Civil Procedure or an extraordinary
recourse contemplated, provided or provided for in or provided by articles 834

200
to 850 of the Code of Civil Procedure is replaced by “application for judicial
review under the Code of Civil Procedure”;

(12)  “rules of practice” is replaced by “court regulations” or “tribunal

regulations” as appropriate;

(13)  “sale by judicial authority” and “judicial sale” are replaced by “sale
under judicial authority”.

779.  Sections 358 of the Act respecting insurance (chapter A-32), 86 of the
Code of ethics and conduct of the Members of the National Assembly
(chapter  C-23.1), 16.1 of the Act respecting the Société de l’assurance
automobile du Québec (chapter S-11.011), and 244 of the Act respecting trust
companies and savings companies (chapter S-29.01), “extraordinary recourse”
is replaced by “application for judicial review”. In articles 265, 291 and 367
of the Code of Penal Procedure (chapter C-25.1), “an extraordinary remedy”
and “extraordinary remedies”, as applicable, are replaced by “judicial review”.
In sections 194 of the Professional Code (chapter C-26), 74.4 of the Act to
secure handicapped persons in the exercise of their rights with a view to
achieving social, school and workplace integration (chapter E-20.1) and 28 of
the Act respecting the Québec Pension Plan (chapter R-9), “extraordinary
recourse” is replaced by “application for judicial review” and “exercised” is
replaced by “made”.

780.  In sections 14.1, 468.45.8, 568, 569 and 573.3.4 of the Cities and
Towns Act (chapter C-19), articles 19, 614.8, 938.4, 1082 and 1094 of the
Municipal Code of Québec (chapter C-27.1), sections  118.2 of the Act
respecting the Communauté métropolitaine de Montréal (chapter C-37.01),
111.2 of the Act respecting the Communauté métropolitaine de Québec
(chapter  C-37.02), 108.2 of the Act respecting public transit authorities
(chapter S-30.01), 6 of the Municipal Works Act (chapter T-14) and 204 and
358 of the Act respecting Northern villages and the Kativik Regional Government
(chapter V-6.1), “articles 838 to 843 of the Code of Civil Procedure” is replaced
by “subparagraph 4 of the first paragraph of article 529 and articles 532 to 535
of the Code of Civil Procedure”.

781.   In the second paragraph of sections 146 of the Building Act

(chapter B-1.1), 37 and 657 of the Act respecting elections and referendums
in municipalities (chapter E-2.2), 573 of the Election Act (chapter E-3.3), 114
of the Public Service Act (chapter F-3.1.1), 18 of the Act respecting the Régie
du logement (chapter R-8.1), 86 of the Transport Act (chapter T-12) and 53 of
the Auditor General Act (chapter V-5.01), “any writ” is replaced by “any
decision”.

In the third paragraph of section 41 of the Tax Administration Act

(chapter A-6.002), “any writ” is replaced by “any decision”.

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782.  In any Act or statutory instrument, a reference to a provision of the
former Code is replaced by a reference to the corresponding provision of the
new Code.

783.  Before updating the Compilation of Québec Laws and Regulations to

enter the changes made necessary by the replacement of concepts predating
the new Code of Civil Procedure, the Minister of Justice publishes, on the
website of the Québec Official Publisher, at least six months before the planned
update, a consultation document explaining the nature and scope of the updating
operations the Minister plans to carry out. The Minister tables the consultation
document in the National Assembly. The Minister subsequently receives any
comments submitted and publishes an information note prior to the publication
of the update of the compilation, as required by section 4 of the Act respecting
the Compilation of Québec Laws and Regulations (chapter R-2.2.0.0.2).

SPECIFIC AMENDING PROVISIONS

CIVIL CODE OF QUÉBEC

784.  Article 237 of the Civil Code of Québec is amended by adding the
following paragraphs at the end:

“When an application for the review of a council decision is notified to the

council secretary, the latter sends the minutes and the record relating to the
decision to the office of the court without delay.

Any document to be notified to the council is notified to the council secretary.”

785.  Article 239 of the Code is amended by adding the following paragraph
at the end:

“As soon as it is established and whenever there is a change in its composition,

the council informs the person under tutorship, if 14 years of age or older, and
that person’s representative, providing the names and contact information of
its members and its secretary. The council also informs the Public Curator.”

786.  Articles 568 and 574 of the Code are amended by replacing “requête”
in the French text by “demande”.

787.  Article 596.1 of the Code is amended by replacing “the professional

fees and extrajudicial costs incurred” in the second paragraph by “the
professional fees of an advocate and any disbursements incurred”.

788.  Article 978 of the Code is amended by replacing the third paragraph
by the following paragraph:

“The boundary determination report and the minutes of the boundary marking
operations shall be registered in the land register.”

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789.  Article 1529 of the Code is amended by replacing “Proceedings
instituted against one of the solidary debtors do not” by “An action instituted
against one of the solidary debtors does not”.

790.  Article 1605 of the Code is amended by replacing “proceedings” by

“action”.

791.  Article 1641 of the Code is amended by replacing the second paragraph
by the following paragraph:

“If the debtor cannot be found in Québec, the assignment may be set up
against the debtor and third persons upon the publication of a notice in
accordance with the rules of the Code of Civil Procedure for notification by
public notice.”

792.  Article 1644 of the Code is amended by replacing “appearance” by

“answering the summons”.

793.  Article 1758 of the Code is replaced by the following article:

“1758.  An auction sale is either voluntary or forced; an auction sale

under judicial authority by the court bailiff is conducted in accordance with
the rules of the Code of Civil Procedure and this subheading and, so far as they
are consistent, the particulars specified in the notice of sale published by the
bailiff.”

794.  The heading of Section IV of Chapter IX of Title II of Book V of the

Code, before article 2166, is replaced by the following heading:

“SPECIAL RULES GOVERNING PROTECTION MANDATES”.

795.  Article 2166 of the Code is amended by replacing “A mandate” and

“his property is made” in the first paragraph by “A protection mandate is a
mandate” and “his property; it is made”, respectively.

796.  Article 2387 of the Code is amended by replacing “forced sale” in the
first paragraph by “sale under judicial authority”.

797.  Article 2648 of the Code is replaced by the following article:

“2648.  Property which, under the Code of Civil Procedure, may be

exempted or is exempt from seizure and falls within the limits specified by that
Code cannot be seized.”

798.  Article 2718 of the Code is amended by replacing the first paragraph
by the following paragraph:

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 “2718.  A floating hypothec on more than one claim has effect in respect
of the debtors of hypothecated claims as soon as the notice of crystallization
is registered, provided the notice is published in accordance with the rules of
the Code of Civil Procedure for notification by public notice.”

799.  Article 2759 of the Code is amended by replacing “a sale of property

seized” at the end of the second paragraph by “a sale under judicial authority”.

800.  Article 2787 of the Code is amended by replacing “through the

newspapers or by invitation” in the first paragraph by “by invitation or by a
public call for tenders”.

801.  Article 2791 of the Code is amended by adding the following paragraph
at the end:

“The person in charge of selling the property must be independent from any
interested persons.”

802.  Article 2793 of the Code is amended by replacing the first paragraph
by the following paragraph:

“2793.  The person in charge of selling the property is required to inform

the interested persons, on their request, of any steps taken and to comply with
the rules of the Code of Civil Procedure on sales under judicial authority and
the distribution of the proceeds of execution, adapted as required.”

803.  Article 2794 of the Code is amended by striking out “in respect of the
effect of the order to sell”.

804.  Article 2892 of the Code is amended by replacing “served” in the

second paragraph by “notified”.

805.  Article 2908 of the Code is amended

(1)  by replacing “A motion” and “the motion” in the first paragraph by “An
application” and “the application”, respectively;

(2)  by replacing all occurrences of “motion” in the second paragraph by

“application for leave”.

806.  Article 2958 of the Code is amended by inserting “the notice of

execution” after “registration of” and by replacing “judicial sale” by “sale
under judicial authority”.

807.  Article 2996 of the Code is amended

(1)  by replacing the first paragraph by the following paragraph:

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 “2996.  The boundary determination report and the minutes of the
boundary marking operations are presented with the related plan and, if
applicable, with the application for registration of the judgment homologating
the report. The application must include an express statement that the boundaries
between the properties coincide with the boundaries between the corresponding
lots on the cadastre.”;

(2)  by replacing “If the minutes do not state that the boundaries coincide,
registration of the minutes” in the second paragraph by “In the absence of such
a statement, registration”.

808.  Article 3000 of the Code is amended by inserting “, including sales

under judicial authority,” after “forced sales” in the first paragraph.

809.  Article 3017 of the Code is amended by replacing the second sentence
of the first paragraph by the following sentence: “The registrar is also bound
to notify such persons when a notice requires the abandonment of a taking in
payment or, in the case of an immovable, when the property is to be sold under
judicial authority, has been adjudicated for non-payment of immovable taxes,
or is under seizure; the registrar indicates the place and date of any sale.”

810.  Article 3069 of the Code is amended

(1)  by replacing “forced sale” in the first sentence of the first paragraph by
“sale under judicial authority”;

(2)  by inserting “notices of execution” after “registrations of” in the second

sentence of the first paragraph;

(3)  by replacing “prior notices of sale” in the same sentence by “notices

and prior notices of sale”;

(4)  by inserting “notices of execution” after “registration of” in the second

paragraph.

Act respecting legal aid and the provision of certain

other legal services

811.  Section 4.6 of the Act respecting legal aid and the provision of certain
other legal services (chapter A-14) is amended

(1)  by inserting “the filing of an application for judicial review or” after “or
for” in the introductory clause;

(2)  by inserting “, the application for judicial review made” after “filed” in
paragraphs 1 and 2;

(3)  by inserting “, the application for judicial review” after “if the appeal”
in paragraph 2.

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ACT RESPECTING THE BARREAU DU QUÉBEC

812.  Section 1 of the Act respecting the Barreau du Québec (chapter B-1)
is amended by striking out paragraphs m and n.

813.  The heading of Division XII of the Act is replaced by the following
heading:

“FEES AND COSTS”.

814.  Section 125 of the Act is amended

(1)  by replacing subsections 1 and 2 by the following subsection:

“125.  (1)  If an advocate carries on his professional activities within a

joint-stock company in accordance with the by-law adopted by the General
Council under paragraph p of section 94 of the Professional Code (chapter C-26),
the company is entitled, unless otherwise agreed, to the fees and costs owing
to the advocate.”;

(2)  by striking out “, fixed by the tariff,” in subsection 3.

815.  Section 126 of the Act is amended by replacing “extrajudicial costs”

in subsection 3 by “fees and costs”.

816.  Section 127.1 of the Act is amended by replacing “judicial and extra-
judicial costs” by “fees and costs”.

CODE OF PENAL PROCEDURE

817.  Article 330 of the Code of Penal Procedure (chapter C-25.1) is replaced
by the following article:

“330.  Seizures are effected according to the rules for the execution of
judgments set out in Book VIII of the Code of Civil Procedure, subject to the
special rules of this Code, including the following rules:

(1)  the collector for the place where the order to pay has been given is
responsible for the collection of the sums due and acts as seizor; the collector
prepares the notice of execution and files it with the court office; the notice is
valid only for the execution of a judgment effected under this chapter and does
not preclude the filing of another notice for the execution of a judgment under
the Code of Civil Procedure;

(2)  the collector proceeds with a seizure in the hands of a third person in
the same manner as a bailiff, but entrusts the administration of subsequent
steps, including the receipt and distribution of sums of money, to a court clerk
designated by the collector; the collector serves the notice of execution on the

206
defendant and the garnishee in accordance with article 20, but is not required
to inform the defendant’s creditors or to deal with their claims;

(3)  the collector may, if necessary, hire the services of a bailiff to seize
movable or immovable property, give the bailiff instructions and amend the
notice of execution accordingly; in such a case, if a notice for the execution of
a judgment was filed by a bailiff in another case prior to the collector’s request,
the bailiff hired by the collector joins in the seizure already underway.

The collector is not required to pay an advance to cover the safekeeping

costs or other execution-related disbursements.”

818.  Article 331 of the Code is replaced by the following article:

“331.  The Superior Court or the Court of Québec, according to the amount
involved, or if the order for payment is made by a municipal court, the municipal
court, is the court that has jurisdiction to decide all seizure-related matters.”

COURT BAILIFFS ACT

819.  Section 13 of the Court Bailiffs Act (chapter H-4.1) is amended by

inserting “including for the administration of seized income or property,” after
“section 8,”.

SPECIAL PROCEDURE ACT

820.  The Special Procedure Act (chapter P-27) is repealed.

YOUTH PROTECTION ACT

821.  Section 85 of the Youth Protection Act (chapter P-34.1) is replaced by

the following section:

“85.  The Code of Civil Procedure (chapter C-25) applies on a suppletive

basis to the extent that its rules are consistent with this Act.”

ACT RESPECTING THE CLASS ACTION

822.  The title of the Act respecting the class action (chapter R-2.1) is
replaced by the following title:

“Act respecting the Fonds d’aide aux actions collectives”.

823.  Section 20 of the Act is amended by adding the following paragraph

at the end:

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 “However, no legal person established for a private interest, partnership or
association other than a legal person governed by Part III of the Companies
Act (chapter C-38), a cooperative governed by the Cooperatives Act
(chapter  C-67.2) or an association of employees within the meaning of the
Labour Code (chapter C-27) may obtain financial assistance from the Fonds
to institute a class action.”

COURTS OF JUSTICE ACT

824.  Section 12 of the Courts of Justice Act (chapter T-16) is amended by

adding the following paragraph at the end:

“To ensure the proper management of the business of the Court of Appeal,
the Chief Justice or, in his absence, the senior judge, may ask the Chief Justice
of the Superior Court, in writing, to designate one or more judges of that court
to sit as judges in the Court of Appeal when needed. Such a judge shall have
all the powers and perform all the duties of a judge of the Court of Appeal.”

825.  Section 146 of the Act is amended

(1)  by replacing “by certified or registered mail” in the first and second
paragraphs by “by registered mail”;

(2)  by replacing “rules of practice” in the first paragraph by “regulations”;

(3)  by replacing “such rules by special rules applicable in their respective

district only” in the second paragraph by “the provisions of such regulations
by special provisions applicable in their district only”;

(4)  by adding the following paragraph at the end:

“However, the regulations applicable in the Civil Division of the Court are
made in accordance with the Code of Civil Procedure.”

826.  Section 147 of the Act is amended

(1)  by replacing “rules of practice shall be submitted” in the first paragraph

by “regulations shall be submitted”;

(2)  by replacing the second paragraph by the following paragraph:

“They must also be published so as to be easily accessible to the public,

including through posting on the court’s website.”

TARIFF OF JUDICIAL FEES OF ADVOCATES

827.  The Tariff of Judicial Fees of Advocates (chapter B-1, r. 22) is repealed.

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FINAL PROVISIONS

828.  The new Code of Civil Procedure replaces the former Code of Civil
Procedure (chapter C-25).

The new Code applies as soon as it comes into force. However,

(1)  in first instance, originating demands that have already been filed may
continue to be governed by the former Code solely as regards agreements
concerning the conduct of the proceeding and the presentation of the demand
before the court and time limits;

(2)  cases that would be under the jurisdiction of a different court continue
before the court already seized of the matter;

(3)  in appeal, the time limits for preparing the appeal record continue to
apply to cases already in appeal;

(4)  if already underway, the execution of a judgment, of a decision or of a

juridical act that has the same force and effect as a judgment continues in
accordance with the former Code;

(5)  for the purposes of Book VIII, until an order of the Minister of Justice
is published in the Gazette officielle du Québec indicating that the sales register
is operational, the publication of notices in the sales register is to be as follows:

(a)  the notice preceding the sale, required by article 748, is to be published
in accordance with the rules established by the new Code for notification by
public notice;

(b)  the notice indicating that the sale will not take place or is suspended, if
such is the case, is to be notified to the persons to whom the notice of sale was
notified;

(c)  the notice following the sale, required by article 757, is to be filed at the
office of the court where the notice of execution is filed.

829.  In any Act or statutory instrument, summoning a person by a summons,

subpoena or writ or by any other means is equivalent to calling a person to
attend at court by a subpoena and a pleading cannot be invalidated for the sole
reason that it is identified by any of these other terms rather than as a subpoena
or, conversely, as a subpoena rather than by any of these other terms.

In addition, in any Act or statutory instrument, except where the law requires
that service be made by bailiff, the service of a pleading is equivalent to its
notification and, subject to the same exception, the notification of a pleading
cannot be invalidated for the sole reason that it is referred to as service nor can
the service of a pleading be invalidated for the sole reason that it is referred to
as notification.

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830.  The provisions of this Act come into force on the date or dates to be
set by the Government, except article 28, which comes into force on the date
of assent to this Act, in particular to allow the establishment of a pilot project
on mandatory mediation for the recovery of small claims arising out of consumer
contracts.

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Schedule
(Article 494)

CONVENTION ON THE SERVICE ABROAD OF

JUDICIAL AND EXTRAJUDICIAL DOCUMENTS
IN CIVIL OR COMMERCIAL MATTERS

(Concluded 15 November 1965)

The States signatory to the present Convention,

Desiring to create appropriate means to ensure that judicial and extrajudicial documents to be served
abroad shall be brought to the notice of the addressee in sufficient time,
Desiring to improve the organisation of mutual judicial assistance for that purpose by simplifying and
expediting the procedure,
Have resolved to conclude a Convention to this effect and have agreed upon the following provisions:

Article 1

The present Convention shall apply in all cases, in civil or commercial matters, where there is occasion
to transmit a judicial or extrajudicial document for service abroad.
This Convention shall not apply where the address of the person to be served with the document is not
known.

CHAPTER I - JUDICIAL DOCUMENTS

Article 2

Each Contracting State shall designate a Central Authority which will undertake to receive requests for
service coming from other Contracting States and to proceed in conformity with the provisions of
Articles 3 to 6.
Each State shall organise the Central Authority in conformity with its own law.

Article 3

The authority or judicial officer competent under the law of the State in which the documents originate
shall forward to the Central Authority of the State addressed a request conforming to the model
annexed to the present Convention, without any requirement of legalisation or other equivalent
formality.
The document to be served or a copy thereof shall be annexed to the request. The request and the
document shall both be furnished in duplicate.

Article 4

If the Central Authority considers that the request does not comply with the provisions of the present
Convention it shall promptly inform the applicant and specify its objections to the request.

211
 Article 5

The Central Authority of the State addressed shall itself serve the document or shall arrange to have it
served by an appropriate agency, either -
a) by a method prescribed by its internal law for the service of documents in domestic actions upon
persons who are within its territory, or
b) by a particular method requested by the applicant, unless such a method is incompatible with the
law of the State addressed.

Subject to sub-paragraph (b) of the first paragraph of this Article, the document may always be served
by delivery to an addressee who accepts it voluntarily.
If the document is to be served under the first paragraph above, the Central Authority may require the
document to be written in, or translated into, the official language or one of the official languages of the
State addressed.
That part of the request, in the form attached to the present Convention, which contains a summary of
the document to be served, shall be served with the document.

Article 6

The Central Authority of the State addressed or any authority which it may have designated for that
purpose, shall complete a certificate in the form of the model annexed to the present Convention.
The certificate shall state that the document has been served and shall include the method, the place
and the date of service and the person to whom the document was delivered. If the document has not
been served, the certificate shall set out the reasons which have prevented service.
The applicant may require that a certificate not completed by a Central Authority or by a judicial
authority shall be countersigned by one of these authorities.
The certificate shall be forwarded directly to the applicant.

Article 7

The standard terms in the model annexed to the present Convention shall in all cases be written either
in French or in English. They may also be written in the official language, or in one of the official
languages, of the State in which he documents originate.
The corresponding blanks shall be completed either in the language of the State addressed or in
French or in English.

Article 8

Each Contracting State shall be free to effect service of judicial documents upon persons abroad,
without application of any compulsion, directly through its diplomatic or consular agents.
Any State may declare that it is opposed to such service within its territory, unless the document is to
be served upon a national of the State in which the documents originate.

Article 9

Each Contracting State shall be free, in addition, to use consular channels to forward documents, for
the purpose of service, to those authorities of another Contracting State which are designated by the
latter for this purpose.
Each Contracting State may, if exceptional circumstances so require, use diplomatic channels for the
same purpose.

Article 10

Provided the State of destination does not object, the present Convention shall not interfere with -
a) the freedom to send judicial documents, by postal channels, directly to persons abroad,

212
b) the freedom of judicial officers, officials or other competent persons of the State of origin to effect
service of judicial documents directly through the judicial officers, officials or other competent
persons of the State of destination,
c) the freedom of any person interested in a judicial proceeding to effect service of judicial
documents directly through the judicial officers, officials or other competent persons of the State
of destination.

Article 11

The present Convention shall not prevent two or more Contracting States from agreeing to permit, for
the purpose of service of judicial documents, channels of transmission other than those provided for in
the preceding Articles and, in particular, direct communication between their respective authorities.

Article 12

The service of judicial documents coming from a Contracting State shall not give rise to any payment or
reimbursement of taxes or costs for the services rendered by the State addressed.
The applicant shall pay or reimburse the costs occasioned by -
a) the employment of a judicial officer or of a person competent under the law of the State of
destination,
b) the use of a particular method of service.

Article 13

Where a request for service complies with the terms of the present Convention, the State addressed
may refuse to comply therewith only if it deems that compliance would infringe its sovereignty or
security.
It may not refuse to comply solely on the ground that, under its internal law, it claims exclusive
jurisdiction over the subject-matter of the action or that its internal law would not permit the action upon
which the application is based.
The Central Authority shall, in case of refusal, promptly inform the applicant and state the reasons for
the refusal.

Article 14

Difficulties which may arise in connection with the transmission of judicial documents for service shall
be settled through diplomatic channels.

Article 15

Where a writ of summons or an equivalent document had to be transmitted abroad for the purpose of
service, under the provisions of the present Convention, and the defendant has not appeared,
judgment shall not be given until it is established that -
a) the document was served by a method prescribed by the internal law of the State addressed for
the service of documents in domestic actions upon persons who are within its territory, or
b) the document was actually delivered to the defendant or to his residence by another method
provided for by this Convention,
and that in either of these cases the service or the delivery was effected in sufficient time to
enable the defendant to defend.

Each Contracting State shall be free to declare that the judge, notwithstanding the provisions of the first
paragraph of this Article, may give judgment even if no certificate of service or delivery has been
received, if all the following conditions are fulfilled -
a) the document was transmitted by one of the methods provided for in this Convention,
b) a period of time of not less than six months, considered adequate by the judge in the particular
case, has elapsed since the date of the transmission of the document,
c) no certificate of any kind has been received, even though every reasonable effort has been
made to obtain it through the competent authorities of the State addressed.

213
Notwithstanding the provisions of the preceding paragraphs the judge may order, in case of urgency,
any provisional or protective measures.

Article 16

When a writ of summons or an equivalent document had to be transmitted abroad for the purpose of
service, under the provisions of the present Convention, and a judgment has been entered against a
defendant who has not appeared, the judge shall have the power to relieve the defendant from the
effects of the expiration of the time for appeal from the judgment if the following conditions are fulfilled
-
a) the defendant, without any fault on his part, did not have knowledge of the document in sufficient
time to defend, or knowledge of the judgment in sufficient time to appeal, and
b) the defendant has disclosed a prima facie defence to the action on the merits.

An application for relief may be filed only within a reasonable time after the defendant has knowledge of
the judgment.
Each Contracting State may declare that the application will not be entertained if it is filed after the
expiration of a time to be stated in the declaration, but which shall in no case be less than one year
following the date of the judgment.
This Article shall not apply to judgments concerning status or capacity of persons.

CHAPTER II - EXTRAJUDICIAL DOCUMENTS

Article 17

Extrajudicial documents emanating from authorities and judicial officers of a Contracting State may be
transmitted for the purpose of service in another Contracting State by the methods and under the
provisions of the present Convention.

CHAPTER III - GENERAL CLAUSES

Article 18

Each Contracting State may designate other authorities in addition to the Central Authority and shall
determine the extent of their competence.
The applicant shall, however, in all cases, have the right to address a request directly to the Central
Authority.
Federal States shall be free to designate more than one Central Authority.

Article 19

To the extent that the internal law of a Contracting State permits methods of transmission, other than
those provided for in the preceding Articles, of documents coming from abroad, for service within its
territory, the present Convention shall not affect such provisions.

Article 20

The present Convention shall not prevent an agreement between any two or more Contracting States
to dispense with -
a) the necessity for duplicate copies of transmitted documents as required by the second paragraph
of Article 3,
b) the language requirements of the third paragraph of Article 5 and Article 7,
c) the provisions of the fourth paragraph of Article 5,
d) the provisions of the second paragraph of Article 12.

214
 Article 21

Each Contracting State shall, at the time of the deposit of its instrument of ratification or accession, or
at a later date, inform the Ministry of Foreign Affairs of the Netherlands of the following -
a) the designation of authorities, pursuant to Articles 2 and 18,
b) the designation of the authority competent to complete the certificate pursuant to Article 6,
c) the designation of the authority competent to receive documents transmitted by consular
channels, pursuant to Article 9.

Each Contracting State shall similarly inform the Ministry, where appropriate, of -
a) opposition to the use of methods of transmission pursuant to Articles 8 and 10,
b) declarations pursuant to the second paragraph of Article 15 and the third paragraph of Article 16,
c) all modifications of the above designations, oppositions and declarations.

Article 22

Where Parties to the present Convention are also Parties to one or both of the Conventions on civil
procedure signed at The Hague on 17th July 1905, and on 1st March 1954, this Convention shall
replace as between them Articles 1 to 7 of the earlier Conventions.

Article 23

The present Convention shall not affect the application of Article 23 of the Convention on civil
procedure signed at The Hague on 17th July 1905, or of Article 24 of the Convention on civil procedure
signed at The Hague on 1st March 1954.
These Articles shall, however, apply only if methods of communication, identical to those provided for in
these Conventions, are used.

Article 24

Supplementary agreements between Parties to the Conventions of 1905 and 1954 shall be considered
as equally applicable to the present Convention, unless the Parties have otherwise agreed.

Article 25

Without prejudice to the provisions of Articles 22 and 24, the present Convention shall not derogate
from Conventions containing provisions on the matters governed by this Convention to which the
Contracting States are, or shall become, Parties.

Article 26

The present Convention shall be open for signature by the States represented at the Tenth Session of
the Hague Conference on Private International Law.
It shall be ratified, and the instruments of ratification shall be deposited with the Ministry of Foreign
Affairs of the Netherlands.

Article 27

The present Convention shall enter into force on the sixtieth day after the deposit of the third instrument
of ratification referred to in the second paragraph of Article 26.
The Convention shall enter into force for each signatory State which ratifies subsequently on the
sixtieth day after the deposit of its instrument of ratification.

215
 Article 28

Any State not represented at the Tenth Session of the Hague Conference on Private International Law
may accede to the present Convention after it has entered into force in accordance with the first
paragraph of Article 27. The instrument of accession shall be deposited with the Ministry of Foreign
Affairs of the Netherlands.
The Convention shall enter into force for such a State in the absence of any objection from a State,
which has ratified the Convention before such deposit, notified to the Ministry of Foreign Affairs of the
Netherlands within a period of six months after the date on which the said Ministry has notified it of
such accession.
In the absence of any such objection, the Convention shall enter into force for the acceding State on
the first day of the month following the expiration of the last of the periods referred to in the preceding
paragraph.

Article 29

Any State may, at the time of signature, ratification or accession, declare that the present Convention
shall extend to all the territories for the international relations of which it is responsible, or to one or
more of them. Such a declaration shall take effect on the date of entry into force of the Convention for
the State concerned.
At any time thereafter, such extensions shall be notified to the Ministry of Foreign Affairs of the
Netherlands.
The Convention shall enter into force for the territories mentioned in such an extension on the sixtieth
day after the notification referred to in the preceding paragraph.

Article 30

The present Convention shall remain in force for five years from the date of its entry into force in
accordance with the first paragraph of Article 27, even for States which have ratified it or acceded to it
subsequently.
If there has been no denunciation, it shall be renewed tacitly every five years.
Any denunciation shall be notified to the Ministry of Foreign Affairs of the Netherlands at least six
months before the end of the five year period.
It may be limited to certain of the territories to which the Convention applies.
The denunciation shall have effect only as regards the State which has notified it. The Convention shall
remain in force for the other Contracting States.

Article 31

The Ministry of Foreign Affairs of the Netherlands shall give notice to the States referred to in Article 26,
and to the States which have acceded in accordance with Article 28, of the following -
a) the signatures and ratifications referred to in Article 26;
b) the date on which the present Convention enters into force in accordance with the first paragraph
of Article 27;
c) the accessions referred to in Article 28 and the dates on which they take effect;
d) the extensions referred to in Article 29 and the dates on which they take effect;
e) the designations, oppositions and declarations referred to in Article 21;
f) the denunciations referred to in the third paragraph of Article 30.

In witness whereof the undersigned, being duly authorised thereto, have signed the present
Convention.

Done at The Hague, on the 15th day of November, 1965, in the English and French languages, both
texts being equally authentic, in a single copy which shall be deposited in the archives of the
Government of the Netherlands, and of which a certified copy shall be sent, through the diplomatic
channel, to each of the States represented at the Tenth Session of the Hague Conference on Private
International Law.

216
 Table of Contents

articles

PRELIMINARY PROVISION

BOOK I GENERAL FRAMEWORK OF CIVIL

PROCEDURE 1-140

BOOK II CONTENTIOUS PROCEEDINGS 141-301

BOOK III NON-CONTENTIOUS PROCEEDINGS 302-320

BOOK IV JUDGMENT, APPLICATION FOR

REVOCATION AND APPEAL 321-390

BOOK V RULES APPLICABLE TO CERTAIN

CIVIL MATTERS 391-508

BOOK VI SPECIAL PROCEDURAL ROUTES 509-604

BOOK VII PRIVATE DISPUTE PREVENTION

AND RESOLUTION PROCESSES 605-655

BOOK VIII EXECUTION OF JUDGMENTS 656-777

AMENDING AND FINAL PROVISIONS 778-830

Schedule I

Convention on the service abroad of judicial and extrajudicial documents in

civil or commercial matters

217
 articles

PRELIMINARY PROVISION

BOOK I GENERAL FRAMEWORK OF CIVIL

PROCEDURE 1-140

TITLE I PRINCIPLES OF PROCEDURE

APPLICABLE TO PRIVATE DISPUTE
PREVENTION AND RESOLUTION
PROCESSES 1-7

TITLE II PRINCIPLES OF PROCEDURE

APPLICABLE BEFORE THE COURTS 8-28

CHAPTER I MISSION OF THE COURTS 9-10

CHAPTER II PUBLIC NATURE OF PROCEDURE

BEFORE THE COURTS 11-16

CHAPTER III GUIDING PRINCIPLES OF PROCEDURE 17-24

CHAPTER IV RULES OF INTERPRETATION AND

APPLICATION OF THIS CODE 25-28

TITLE III JURISDICTION OF COURTS 29-74

CHAPTER I SUBJECT-MATTER JURISDICTION

OF COURTS 29-39
DIVISION I JURISDICTION OF COURT OF APPEAL 29-32
DIVISION II JURISDICTION OF SUPERIOR COURT 33-34
DIVISION III JURISDICTION OF COURT OF QUÉBEC 35-39

CHAPTER II TERRITORIAL JURISDICTION OF COURTS 40-48

DIVISION I TERRITORIAL JURISDICTION––APPEAL 40
DIVISION II TERRITORIAL JURISDICTION
––FIRST INSTANCE 41-48

CHAPTER III POWERS OF COURTS 49-65

DIVISION I GENERAL POWERS 49-50
DIVISION II POWER TO IMPOSE SANCTIONS
FOR ABUSE OF PROCEDURE 51-56
DIVISION III POWER TO PUNISH FOR CONTEMPT
OF COURT 57-62
DIVISION IV COURT REGULATIONS 63-65

CHAPTER IV COURT OFFICES 66-67

218
 CHAPTER V POWERS OF COURTS, JUDGES
AND COURT CLERKS 68-74

TITLE IV SPECIAL RIGHTS OF STATE 75-81

TITLE V PROCEDURE APPLICABLE TO ALL

JUDICIAL DEMANDS 82-140

CHAPTER I SITTINGS OF COURTS AND TIME

LIMITS 82-84

CHAPTER II INTEREST REQUIRED TO BRING

PROCEEDINGS 85

CHAPTER III REPRESENTATION BEFORE COURTS

AND CAPACITY TO ACT 86-92

CHAPTER IV DESIGNATION OF PARTIES 93-98

CHAPTER V PLEADINGS 99-108

DIVISION I FORM AND CONTENT OF PLEADINGS 99-104
DIVISION II SWORN PLEADINGS 105-106
DIVISION III FILING OF PLEADINGS AND
DOCUMENTS 107-108

CHAPTER VI NOTIFICATION OF PLEADINGS AND

DOCUMENTS 109-140
DIVISION I GENERAL RULES 109-115
DIVISION II SERVICE OR NOTIFICATION BY
BAILIFF 116-129
§1. — General provisions 116-120
§2. — Personal notification 121-123
§3. — Notification through intermediary 124-128
§4. — Notice of visit 129
DIVISION III OTHER METHODS OF NOTIFICATION 130-138
§1. — Notification by mail 130-131
§2. — Notification by delivery of document 132
§3. — Notification by technological means 133-134
§4. —  Notification by public notice 135-138
DIVISION IV NOTIFICATION OF CERTAIN
PLEADINGS 139-140

BOOK II CONTENTIOUS PROCEEDINGS 141-301

TITLE I INITIAL STAGES OF PROCEEDING 141-183

CHAPTER I JUDICIAL DEMAND 141-144

CHAPTER II SUMMONS AND DEFENDANT’S

ANSWER 145-147

219
 CHAPTER III CASE MANAGEMENT 148-160
DIVISION I CASE PROTOCOL 148-153
DIVISION II CASE MANAGEMENT CONFERENCE 154-157
DIVISION III SPECIAL CASE MANAGEMENT 158
DIVISION IV CASE MANAGEMENT MEASURES 159-160

CHAPTER IV SETTLEMENT CONFERENCE 161-165

CHAPTER V DEFENCE 166-172

DIVISION I PRELIMINARY EXCEPTIONS 166-169
§1. — General provisions 166
§2. — Declinatory exception 167
§3. — Exception to dismiss 168
§4. — Other exceptions 169
DIVISION II DEFENCE ON MERITS 170-172

CHAPTER VI READINESS FOR TRIAL AND

SETTING DOWN FOR TRIAL
AND JUDGMENT 173-178

CHAPTER VII PRE-TRIAL CONFERENCE 179

CHAPTER VIII PROCESSING OF CASE SET DOWN

FOLLOWING DEFENDANT’S DEFAULT 180-183

TITLE II INCIDENTAL PROCEEDINGS 184-220

CHAPTER I INTERVENTION OF THIRD PERSONS IN

PROCEEDING 184-190
DIVISION I GENERAL PROVISIONS 184
DIVISION II VOLUNTARY INTERVENTION 185-187
DIVISION III FORCED INTERVENTION 188-190

CHAPTER II INCIDENTAL PROCEEDINGS

RELATING TO PARTIES’ LAWYERS 191-195

CHAPTER III CONTINUANCE OF PROCEEDING 196-200

CHAPTER IV RECUSATION 201-205

CHAPTER V INCIDENTAL PROCEEDINGS RELATING

TO PLEADINGS 206-212
DIVISION I withdrawal or amendment of
pleading 206-208
DIVISION II DETERMINATION OF ISSUE OF LAW 209
DIVISION III CONSOLIDATION AND SEPARATION
OF PROCEEDINGS 210
DIVISION IV SPLITTING OF PROCEEDING 211
DIVISION V STAY OF PROCEEDING 212

220
 CHAPTER VI INCIDENTAL PROCEEDINGS THAT
TERMINATE PROCEEDING 213-220
DIVISION I DISCONTINUANCE 213-214
DIVISION II TENDER AND DEPOSIT 215-216
DIVISION III ACQUIESCENCE IN DEMAND 217-219
DIVISION IV SETTLEMENT 220

TITLE III PRE-TRIAL DISCOVERY AND

DISCLOSURE 221-264

CHAPTER I PRE-TRIAL EXAMINATION 221-230

DIVISION I GENERAL PROVISIONS 221-222
DIVISION II WRITTEN EXAMINATION 223-225
DIVISION III ORAL EXAMINATION 226-230

CHAPTER II EXPERT EVIDENCE 231-245

DIVISION I WHEN EXPERT EVIDENCE MAY
BE USED 231-234
DIVISION II EXPERTS’ DUTIES AND POWERS 235-237
DIVISION III EXPERT REPORT 238-241
DIVISION IV SPECIAL RULES APPLICABLE
TO PHYSICAL, MENTAL OR
PSYCHOSOCIAL EXAMINATION 242-245

CHAPTER III DISCLOSURE AND FILING OF

EXHIBITS AND OTHER EVIDENCE 246-252
DIVISION I GENERAL PROVISIONS 246
DIVISION II TIME LIMITS FOR DISCLOSURE AND
FILING 247-250
DIVISION III DOCUMENT OR REAL EVIDENCE IN
POSSESSION OF PARTY
OR THIRD PERSON 251
DIVISION IV APPLICATIONS IN COURSE OF
PROCEEDING 252

CHAPTER IV PRE-TRIAL DISCOVERY 253-257

DIVISION I APPLICATIONS PRIOR TO PROCEEDING 253-256
DIVISION II PRE-TRIAL APPLICATIONS 257

CHAPTER V CONTESTATION OF EVIDENCE 258-263

DIVISION I CONTESTATION OF AUTHENTIC ACT 258-260
DIVISION II CONTESTATION OF CERTIFICATE 261
DIVISION III CONTESTATION OF OTHER DOCUMENT 262-263

CHAPTER VI ADMISSION OF AUTHENTICITY OF

EVIDENCE 264

TITLE IV TRIAL 265-301

CHAPTER I CONDUCT OF TRIAL 265-268

221
 CHAPTER II EVIDENCE STAGE OF TRIAL 269-301
DIVISION I CALLING OF WITNESSES 269-272
DIVISION II COMPENSATION OF WITNESSES 273-275
DIVISION III HEARING OF WITNESSES 276-289
DIVISION IV HEARING OF MINOR OR INCAPABLE
PERSON OF FULL AGE 290-291
DIVISION V EVIDENCE GIVEN IN A STATEMENT 292
DIVISION VI EXPERT EVIDENCE 293-294
DIVISION VII EVIDENCE GIVEN OUTSIDE
PRESENCE OF COURT 295-297
DIVISION VIII INTERPRETATION SERVICES 298-299
DIVISION IX PRESERVATION OF ORAL EVIDENCE 300-301

BOOK III NON-CONTENTIOUS PROCEEDINGS 302-320

TITLE I GENERAL PROVISIONS 302-305

TITLE II RULES APPLICABLE BEFORE COURT 306-311

CHAPTER I DEMAND 306-307

CHAPTER II PRESENTATION 308-311

TITLE III RULES APPLICABLE BEFORE NOTARY 312-320

CHAPTER I JURISDICTION OF NOTARY 312

CHAPTER II APPLICATION 313

CHAPTER III OPERATIONS AND CONCLUSIONS 314-320

BOOK IV JUDGMENT, APPLICATION FOR

REVOCATION AND APPEAL 321-390

TITLE I JUDGMENT 321-338

CHAPTER I GENERAL PROVISIONS 321-322

CHAPTER II ADVISEMENT 323-325

CHAPTER III REPLACEMENT OF JUDGE 326-327

CHAPTER IV RULES APPLICABLE TO JUDGMENT 328-333

CHAPTER V FORMAL JUDGMENT 334-338

TITLE II LEGAL COSTS 339-344

TITLE III REVOCATION OF JUDGMENT 345-350

222
 CHAPTER I REVOCATION ON APPLICATION BY
PARTY 345-348

CHAPTER II REVOCATION ON APPLICATION BY

THIRD PERSON 349

CHAPTER III EFFECT OF APPLICATION FOR

REVOCATION 350

TITLE IV APPEAL 351-390

CHAPTER I COMMENCEMENT OF APPEAL

PROCEEDING 351-366
DIVISION I INITIATION OF APPEAL 351-359
DIVISION II APPEAL TIME LIMITS 360-363
DIVISION III CONDITIONS IMPOSED ON APPEAL
OR DISMISSAL OF APPEAL 364-366

CHAPTER II APPEAL MANAGEMENT 367-369

CHAPTER III APPEAL RECORD 370-376

CHAPTER IV CONDUCT OF APPEAL 377-386

DIVISION I APPLICATIONS IN COURSE OF
PROCEEDING AND INCIDENTAL
APPLICATIONS 377-380
DIVISION II SETTLEMENT CONFERENCE 381-382
DIVISION III SETTING DOWN FOR HEARING 383-384
DIVISION IV HEARING 385-386

CHAPTER V DECISION 387-390

BOOK V RULES APPLICABLE TO CERTAIN

CIVIL MATTERS 391-508

TITLE I APPLICATIONS IN MATTERS

GOVERNED BY LAW OF PERSONS 391-408

CHAPTER I GENERAL PROVISIONS 391-394

CHAPTER II APPLICATIONS RELATING TO

PERSONAL INTEGRITY 395-402
DIVISION I CARE AND CONFINEMENT IN
INSTITUTION 395-397
DIVISION II HABEAS CORPUS 398-402

CHAPTER III APPLICATIONS RELATING TO

PERSONAL STATUS AND CAPACITY 403-406

CHAPTER IV LEGAL PERSONS 407-408

223
TITLE II DEMANDS AND APPLICATIONS IN
FAMILY MATTERS 409-458

CHAPTER I RULES GOVERNING DEMAND AND

PROCEEDING 409-416

CHAPTER II MEDIATION IN COURSE OF

PROCEEDING 417-424
DIVISION I PARENTING AND MEDIATION
INFORMATION SESSION 417-419
DIVISION II MEDIATION 420-424

CHAPTER III ASSESSMENT BY PSYCHOSOCIAL

ASSESSMENT SERVICE 425-429

CHAPTER IV JOINT DEMAND FOR SEPARATION

FROM BED AND BOARD, DIVORCE
OR DISSOLUTION OF CIVIL UNION
ON BASIS OF DRAFT AGREEMENT 430-431

CHAPTER V APPLICATIONS RELATING TO

ADOPTION 432-442

CHAPTER VI APPLICATIONS RELATING TO

SUPPORT OBLIGATIONS 443-450

CHAPTER VII APPLICATIONS RELATING TO

PARENTAL AUTHORITY 451-452

CHAPTER VIII JUDGMENT 453-457

CHAPTER IX OPPOSITION TO MARRIAGE OR

CIVIL UNION 458

TITLE III APPLICATIONS RELATING TO

SUCCESSIONS, PROPERTY,
SECURITY AND EVIDENCE 459-488

CHAPTER I PROBATE OF WILLS AND LETTERS

PROBATE 459-466
DIVISION I PROBATE OF WILLS 459-462
DIVISION II LETTERS PROBATE 463-466

CHAPTER II APPLICATIONS RELATING TO

PUBLICATION OF RIGHTS 467-468

CHAPTER III BOUNDARY DETERMINATION 469-475

CHAPTER IV CO-OWNERSHIP AND PARTITION 476-477

224
 CHAPTER V SAFETY DEPOSIT BOXES 478-479

CHAPTER VI APPLICATIONS RELATING TO

SECURITY 480-483

CHAPTER VII COPIES OF OR EXTRACTS FROM

NOTARIAL DEEDS 484-485

CHAPTER VIII RECONSTITUTION OF CERTAIN

DOCUMENTS 486-488

TITLE IV DEMANDS AND APPLICATIONS

INVOLVING PRIVATE INTERNATIONAL
LAW 489-508

CHAPTER I GENERAL PROVISIONS 489-490

CHAPTER II PRELIMINARY EXCEPTIONS AND

SURETYSHIP 491-493

CHAPTER III INTERNATIONAL NOTIFICATION 494-496

CHAPTER IV CALLING OF WITNESSES 497-498

CHAPTER V ROGATORY COMMISSIONS 499-506

DIVISION I ROGATORY COMMISSION ISSUED
IN QUÉBEC 499-503
DIVISION II ROGATORY COMMISSION ISSUED
IN FOREIGN STATE 504-506

CHAPTER VI RECOGNITION AND ENFORCEMENT

OF FOREIGN DECISIONS AND
FOREIGN PUBLIC DOCUMENTS 507-508

BOOK VI SPECIAL PROCEDURAL ROUTES 509-604

TITLE I PROVISIONAL AND CONTROL

MEASURES 509-535

CHAPTER I INJUNCTION 509-515

CHAPTER II SEIZURE BEFORE JUDGMENT

AND SEQUESTRATION 516-526
DIVISION I SEIZURE BEFORE JUDGMENT 516-523
DIVISION II SEQUESTRATION 524-526

CHAPTER III AUTHORIZATION, APPROVAL AND

HOMOLOGATION 527-528

225
 CHAPTER IV JUDICIAL REVIEW 529-535
DIVISION I GENERAL RULES 529-531
DIVISION II SPECIAL RULES APPLICABLE TO
USURPATION OF OFFICE 532-535

TITLE II RECOVERY OF SMALL CLAIMS 536-570

CHAPTER I GENERAL PROVISIONS 536-541

CHAPTER II REPRESENTATION OF PARTIES 542

CHAPTER III PROCEDURE 543-568

DIVISION I INSTITUTION OF DEMAND, AND
DEFENCE 543-553
DIVISION II NOTICE OF HEARING AND CALLING
OF WITNESSES 554-555
DIVISION III MEDIATION 556
DIVISION IV HEARING 557-561
DIVISION V JUDGMENT 562-568

CHAPTER IV MISCELLANEOUS PROVISIONS 569-570

TITLE III SPECIAL RULES FOR CLASS ACTIONS 571-604

CHAPTER I INTRODUCTORY PROVISIONS 571-573

CHAPTER II AUTHORIZATION TO INSTITUTE

CLASS ACTION 574-578

CHAPTER III NOTICES 579-582

CHAPTER IV CONDUCT OF CLASS ACTION 583-590

CHAPTER V JUDGMENT AND EXECUTION

MEASURES 591-604
DIVISION I JUDGMENT, AND ITS EFFECTS AND
PUBLICATION 591-594
DIVISION II COLLECTIVE RECOVERY OF CLAIMS 595-598
DIVISION III INDIVIDUAL RECOVERY OF CLAIMS 599-601
DIVISION IV APPEAL 602-604

BOOK VII PRIVATE DISPUTE PREVENTION

AND RESOLUTION PROCESSES 605-655

TITLE I MEDIATION 605-619

CHAPTER I ROLES AND DUTIES OF PARTIES

AND MEDIATOR 605-607

CHAPTER II CONDUCT OF MEDIATION 608-612

226
 CHAPTER III END OF MEDIATION 613-615

CHAPTER IV SPECIAL PROVISIONS APPLICABLE

TO FAMILY MEDIATION 616-619

TITLE II ARBITRATION 620-655

CHAPTER I GENERAL PROVISIONS 620-623

CHAPTER II APPOINTMENT OF ARBITRATORS 624-630

CHAPTER III CONDUCT OF ARBITRATION 631-637

CHAPTER IV EXCEPTIONAL MEASURES 638-641

CHAPTER V ARBITRATION AWARD 642-644

CHAPTER VI HOMOLOGATION 645-647

CHAPTER VII ANNULMENT OF ARBITRATION

AWARD 648

CHAPTER VIII SPECIAL PROVISIONS APPLICABLE

TO INTERNATIONAL commercial
arbitration 649-651

CHAPTER IX RECOGNITION AND ENFORCEMENT

OF ARBITRATION AWARDS MADE
OUTSIDE QUÉBEC 652-655

BOOK VIII EXECUTION OF JUDGMENTS 656-777

TITLE I PRINCIPLES AND GENERAL RULES 656-701

CHAPTER I GENERAL PROVISIONS 656-659

CHAPTER II PROVISIONAL EXECUTION 660-661

CHAPTER III VOLUNTARY EXECUTION 662-678

DIVISION I PAYMENT 662-670
§1. — General rule 662
§2. — Payment in instalments 663
§3. — Voluntary deposit 664-670
DIVISION II SURRENDER 671
DIVISION III SURETYSHIP 672-674
DIVISION IV ACCOUNTING 675-678

CHAPTER IV FORCED EXECUTION 679-701

DIVISION I GENERAL RULES 679-682

227
 DIVISION II RIGHTS AND OBLIGATIONS OF
PARTICIPANTS IN EXECUTION
PROCEEDINGS 683-687
§1. — General provisions 683-684
§2. — Court bailiffs 685-687
DIVISION III POST-JUDGMENT EXAMINATION 688-689
DIVISION IV RULES APPLICABLE IN EVENT OF
DEATH OR IN CASE OF INCAPACITY 690-691
DIVISION V SPECIAL RULES APPLICABLE TO
FORCED EXECUTION IN REAL
ACTIONS 692-693
DIVISION VI EXEMPTION FROM SEIZURE 694-701

TITLE II SEIZURE OF PROPERTY 702-741

CHAPTER I GENERAL PROVISIONS 702-703

CHAPTER II SEIZURE OF MOVABLE AND

IMMOVABLE PROPERTY IN
EXECUTION 704-710

CHAPTER III SEIZURE IN THE HANDS OF

THIRD PERSONS 711-721
DIVISION I GENERAL RULES 711-718
DIVISION II SPECIAL RULES IN SUPPORT MATTERS 719-721

CHAPTER IV SPECIAL RULES APPLICABLE TO

CERTAIN SEIZURES 722-730
DIVISION I SEIZURE ON DEBTOR’S PERSON 722
DIVISION II SEIZURE OF SECURITIES OR
SECURITY ENTITLEMENTS TO
FINANCIAL ASSETS 723-726
DIVISION III SEIZURE OF TECHNOLOGICAL MEDIA 727-728
DIVISION IV SEIZURE OF PROPERTY IN SAFE OR
SAFETY DEPOSIT BOX 729
DIVISION V SEIZURE OF REGISTERED ROAD
VEHICLES 730

CHAPTER V CUSTODY OF SEIZED PROPERTY 731-734

CHAPTER VI OPPOSITION TO SEIZURE AND SALE 735-741

DIVISION I GENERAL PROVISIONS 735-736
DIVISION II EFFECTS OF OPPOSITION 737-741

TITLE III SALE UNDER JUDICIAL AUTHORITY 742-761

CHAPTER I CONDUCT OF SALE 742-746

CHAPTER II METHOD OF REALIZATION 747-756

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 CHAPTER III SALE AND EFFECTS OF SALE 757-761

TITLE IV DISTRIBUTION OF PROCEEDS OF

EXECUTION 762-777

CHAPTER I GENERAL PROVISIONS 762

CHAPTER II DISTRIBUTION OF PROCEEDS OF

SALE OR MONEY SEIZED 763-771
DIVISION I BAILIFF’S REPORT 763-765
DIVISION II COLLOCATION SCHEME 766-771

CHAPTER III DISTRIBUTION OF SEIZED INCOME 772-777

AMENDING AND FINAL PROVISIONS 778-830

GENERAL AMENDING PROVISIONS 778-783

SPECIFIC AMENDING PROVISIONS 784-827

FINAL PROVISIONS 828-830

Schedule I

Convention on the service abroad of judicial and extrajudicial documents in

civil or commercial matters

229