Judicial Institutions and Civil Procedure

9 January 2017
Changes within Civil Procedure
External forces

Exponential rise of self-represented litigants;

E-communications/discovery
Internal forces

Much more criticism within academic circles;

Outline

What is procedural law?

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Where do we find it?

What are differences between legal systems?

What are, or ought to be its goals or underlying values?

What are the problems with the civil justice system?
What are some of the solutions?
Judicial Institutions hardware
Civil procedure - Software

Dolowitz Procedural law is the handmaid and not the mistress. It is the
enabler. It is what provides the means for substantive law to be obtained.

Procedural law is not only the how, but it can also create rights. For
example, procedural rights e.g., requirement of notice. Art. 17 CPC. Court
cannot rule sua sponte unless a person is given notice to be able to respond
to accusation. Audi Alterem.
Art 25 CPC codification of handmaiden
Similar Rule 2 Ontario rules : Failure to comply with rules is an irregularity.
Rules in procedural code that remedy problems are problematic because it
creates uncertainty. If youre able to fix it no matter what, then you will keep
getting chances to get it right.
Judges rarely allow a case to be lost based on procedure.
Problem.
We always blame lawyers for the problems with access to justice. Zuckerman
said no one ever looks to the judges for the blame. He blames judges. If
judges cannot bear parties to lose purely on procedural grounds, then the
rules of procedure that have been enacted with a view to making the system
more accessible are not ever going to work. This is a mismanagement of a
public service by a judge.
Motion by default you win if defendant does not show up.

Case: best buys. Can get a judgment if a defendant gets notice, and they do
not show up they default their rights.
What happens if after the fact the defendant wants to contest? Trial judge
says too bad.
TJ: plaintiff wins by default. Too bad so sad.

Court of Appeal: Appeal allowed. Best buy had a defence to mount and they
need to be able to defend themselves (see art 25 CPC procedural rights can
be rectified).
Zuckerman says that unless judges use procedural system to stop allowing
the rectification of procedural wrongs, then there will be no reformation of
the system.
Previous reform in Quebec civil procedure moment you started and to trial
within 180 days. You can always ask extensions from judges. Judges are only
supposed to grant this when there are complex circumstances that justify
extensions.
But extensions now are given automatically. Zuckerman states that we need
to re-educate the judges to enforce procedural rules because legislators are
trying to give more access to justice but if the judges do not follow them
then nothing changes.
Brand new rules in discovery. Shortening of time limitations (art 229 CPC).
On the one hand, we do not want people to lose on nitpicky rules. On the
other hand if judges never enforce procedural rules then there will never be
reform.

New CPC has a preliminary provision. This is the first code that does. Para 3
of preliminary provision : must be interpreted and applied in the civil law
tradition.

What does this mean?

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Code is meant to be top of hierarchy.

Code needs to be interpreted holistically, rather than a statute.
Inquisitorial nature. Does it follow the traditional civil methodology?

But Judges themselves have great deal of authority to make procedural

law. For example, much of the Ontario rules even though they come
from legislature originate from committees from ground up (made up
of judges/litigating lawyers). But courts often make rules of practice
both in Quebec and Ontario where they are place-specific and not
legislative in nature. S96 courts are courts of inherent jurisdiction
means these courts have residual powers to decide anything that is not
regulated explicitly by the legislature.

Parsons / indienne case (inherent jurisdiction) : class action against

red cross in 3 provinces (Quebec, Ontario, BC). Technical issues
about class actions post-settlement. Judge in Ontario, pursuant to
application by a lawyer involved in case, made a ruling was that the
judges from each province could sit together in neutral destination
and that the applications would be made. So that there would be a
consistency between 3 provinces. This was appealed to SCC. The
SCC said it was ok. BCA / OCA came to different answers. But where
does it say that judges could do that? SCC says that its part of their
inherent jurisdiction.
We will see inherent jurisdiction especially issues with costs
(advanced costs entirely inherent jurisdiction), procedures (e.g.,
mireva injunction and anton piller order).

Article 49 CPC acknowledges inherent jurisdiction. But where is the

primacy of the legislation/code??
Inherent jurisdiction only applies to certain courts (s96 courts). Rule
is that Inherent jurisdiction is supposedly only to create procedure.

But when we look at what has been created where is the line
between procedure creation and substantive law creation?
ALI (American law institute) - unidroit principles of transnational
procedure. Soft law instrument. It is not made by one legislature
therefore it is not applicable, but can be influential to courts.
In July 2016, QCA came down with the decision in churchhill falls
case. QCA cites a big chunk of unidroit principles in this decision.
Not as legal provision but as an indication of what the law is or what
the law ought to be. Parties can adopt unidroit principles. For
example in international arbitration.

Ali-unidroit principle is a harmonization. Attempts to give a harmonized set of

civil procedure principle. But how can this be if we have two different legal
traditions (civil and common law)?

What are the tradition based differences in procedure?

Jukier believes there is a civil and common law tradition to civil procedure.
The most important difference is the role of the judge. In a common law
system, the judge is a silent, passive adjudicator basing him or herself on
what the parties give. Judges are impartial they must be convinced. A civilian
judge is more activist, plays much more a director role in the case. The
civilian judge controls the case (evidentiary process); sifts the questions,
builds the file. Historically relates to the process called the enquete.

Enquete parties and witnesses come in give evidence. Judge takes notes.
There is no oral examination or cross examination. The judge gets the
information from the parties/witnesses.
By contrast, adversarial parties take charge and develop their own case and
produce the evidence they want at trial.
Article 19 CPC states that the parties control the course of the case.
Common law judge is not concerned with truth per se, theyre more
concerned with procedural fairness. Whereas Civilian judges are
supposed to find the truth. In France, the judge hires experts in a
case. In an adversarial system, its simply a battle of experts. In
france, the judge would hire one expert who would rule on medical
questions.

Quebec has recently changed his expert rule. In Quebec you must now have
to explain why you need a separate expert and why cant there be a joint
expert. Reminiscent to Zuckerman will judges change?

The main difference between the systems : Who has power in this case?
What is the judge trying to get at?

Even though only 4 5 % of cases actually get to trial, 95% of cases goes
into pre-trial process. In Europe theres no such thing between the two.
Historically goes back to concept of jury trials in adversarial system. Because
of jury they needed to make a trial period because they couldnt make juries
come in and out. Civil law does not have jury trials. Civilian systems dont
have the concept of discovery.

Different conception of appellate review. For Cour de Cassation, 30,000 a

year. So many cases go there because they dont have the same conception
of finality. In a civilian system, there is a less deference to the lower system
(fact and law are reviewed).

In quebec, civil procedure seems more common law. Quebec is civil law as
far as private law.
Tension between Codified civilian procedure and yet it is being applied in
common law way. Applying adversarial procedures to substantive civilian law.

Values of a civil justice system

Fair/just
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Equal (opportunity to access, outcome)

Trustworthy
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Impartial, accountable, open, transparent

Efficient
Accessibility

Problems with the civil justice system

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Cost
Delay
Complexity

Needed reforms
Speed up civil justice (more efficient)
Render it more financially accessible
Simplify civil procedure (process and language)
Promote swift settlement
Make it more proportionate

Implementation of Solutions
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Case management by judges

Encourage settlements.
o Carrots : Make judges mediators.
o Sticks: if you refuse settlement you will have to pay for it later
if you appeal.
Proportionality: Judges have ability to make orders in Quebec and
Ontario the procedural means by the parties more proportionate. In
addition, Ontario has special things. For example, in Ontario, if its
less than 100k simplified track, much quicker. Deemed

Jan 11 2016
Values of a civil justice system
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Explanatory notes to new CCP

o Accessible,
o Quality
o Prompt
o Fair
o Simple
o Proportionate
o Spirit of cooperation