C-25 - Code of Civil Procedure

Replaced on 1 January 2016

This document has official status.

chapter C-25

Code of Civil Procedure

Chapter C-25 is replaced by the Code of Civil Procedure (chapter C-25.01). (2014, c. 1, s. 833).

2014, c. 1, s. 833.

BOOK I GENERAL PROVISIONS

TITLE I INTRODUCTORY PROVISIONS

1. Notwithstanding any contrary provision of any general law or special Act, imprisonment in civil matters is abolished, except in cases of contempt of court.

1965 (1st sess.), c. 80, a. 1 (part); 1966, c. 21, s. 1.

2. The rules of procedure in this Code are intended to render effective the substantive law and to ensure that it is carried out; and failing a provision to the contrary, failure to observe the rules which are not of public order can only affect a proceeding if the defect has not been remedied when it was possible to do so. The provisions of this Code must be interpreted the one by the other, and, so far as possible, in such a way as to facilitate rather than to delay or to end prematurely the normal advancement of cases.

1965 (1st sess.), c. 80, a. 2.

3. In the case of a difference between the French and English texts of any provision of this Code, the text most consistent with the former law must prevail, unless the provision changes the former law, in which case the text most consistent with the intention of the article in accordance with the ordinary rules of legal interpretation shall prevail.

1965 (1st sess.), c. 80, a. 3.

4. In this Code,

(a)  “affidavit” means a written statement supported by the oath of the deponent, received and attested by any person authorized for that purpose by law;

(b)  “case ready for judgment” means a case in which the trial has been completed and which has been taken under advisement;

(c)  “office of the court” means a secretariat comprising the administrative services of one or more courts, whose main functions are the management of the issue of court orders and the preservation of court records;

(d)  “clerk” means a public servant of the Ministère de la Justice working in the office of a court and appointed for that purpose according to law, or any other person appointed to act in that capacity at the court to which the provision is applicable;

(e)  “special clerk” means the clerk or the assistant clerk appointed by order of the Minister of Justice, with the consent of the chief justice or chief judge of the court, to exercise in that court, in addition to his other functions, the attributions attached to such capacity;

(f)  “judge” means according to the context, a judge acting in chambers or presiding in a courtroom;

(g)  “trial judge” means the judge presiding at the hearing of a case;

(h)  “chief justice” or “chief judge” means the chief justice or judge, the senior associate chief justice or judge or the associate chief justice or judge;

(i)  “oath” means a solemn affirmation by a person of the accuracy of a fact or the veracity of his testimony;

(j)  “court” means one of the courts of justice enumerated in article 22 or a judge presiding in a courtroom.

Moreover, the meaning of the word “court” used in the Civil Code or in a special Act is determined by this Code or where the case arises, the Act itself where it contains its own definition thereof. It may designate, as the case may be, the competent jurisdiction in civil matters, a judge presiding in a courtroom or acting in chambers, or a clerk.

1965 (1st sess.), c. 80, a. 4; 1975, c. 83, s. 1; 1977, c. 73, s. 1; 1979, c. 37, s. 1; 1983, c. 54, s. 14; 1986, c. 95, s. 61; 1989, c. 54, s. 130; 1992, c. 57, s. 171; 1997, c. 42, s. 1.

4.1. Subject to the rules of procedure and the time limits prescribed by this Code, the parties to a proceeding have control of their case and must refrain from acting with the intent of causing prejudice to another person or behaving in an excessive or unreasonable manner, contrary to the requirements of good faith.

The court sees to the orderly progress of the proceeding and intervenes to ensure proper management of the case.

2002, c. 7, s. 1.

4.2. In any proceeding, the parties must ensure that the proceedings they choose are proportionate, in terms of the costs and time required, to the nature and ultimate purpose of the action or application and to the complexity of the dispute; the same applies to proceedings authorized or ordered by the judge.

2002, c. 7, s. 1.

4.3. The courts and judges may attempt to reconcile the parties, if they consent, in any matter except a matter relating to personal status or capacity or involving public policy issues. In family matters or matters involving small claims, it is the judge’s duty to attempt to reconcile the parties.

2002, c. 7, s. 1.

5. No judicial demand can be adjudicated upon unless the party against whom it is made has been heard or duly summoned.

1965 (1st sess.), c. 80, a. 5.

6. The following are non-juridical days:

(a)  Sundays;

(b)  1 and 2 January;

(c)  Good Friday;

(d)  Easter Monday;

(e)  24 June, the National Holiday;

(f)  1 July, the anniversary of Confederation, or 2 July when 1 July is a Sunday;

(g)  The first Monday of September, Labour Day;

(g.1)  The second Monday of October;

(h)  25 and 26 December;

(i)  The day fixed by proclamation of the Governor-General for the celebration of the birthday of the Sovereign;

(j)  Any other day fixed by proclamation or order of the Government as a public holiday or as a day of thanksgiving.

1965 (1st sess.), c. 80, a. 6; 1978, c. 5, s. 11; 1979, c. 37, s. 2; 1984, c. 46, s. 4.

7. If the date fixed for doing anything falls on a non-juridical day, such thing may validly be done on the next following juridical day.

1965 (1st sess.), c. 80, a. 7.

8. In computing any time limit fixed by this Code or any of its provisions, including the time limits for appeal:

(1)  the day which marks the start of the time limit is not counted, but the terminal day is counted;

(2)  non-juridical days are counted; but when the last day is a non-juridical day, the time limit is extended to the next following juridical day;

(3)  Saturday is considered a non-juridical day.

1965 (1st sess.), c. 80, a. 8; 1979, c. 37, s. 3; 1999, c. 40, s. 56.

9. A judge may, upon such conditions as he considers just, extend any time limit which is not peremptory or relieve a party from the consequences of his failure to respect such time limit.

In first instance, the parties may, in establishing the proceeding timetable, agree on time limits other than those prescribed by this Code, unless they are peremptory.

1965 (1st sess.), c. 80, a. 9; 1999, c. 40, s. 56; 2002, c. 7, s. 2.

10. The place, time and duration of the terms and sittings of the courts are determined in accordance with the provisions of the Courts of Justice Act (chapter T-16).

The court may shorten or extend a term or adjourn it to a later date.

In the absence of the judge who should preside over the court, the clerk may adjourn the court to another day of the term or to any later date indicated by the judge.

1965 (1st sess.), c. 80, a. 10; 1992, c. 57, s. 420.

11. The courts cannot sit on non-juridical days.

1965 (1st sess.), c. 80, a. 11.

12. The courts of first instance are not obliged to sit between 30 June and 1 September, or between 23 December and 7 January, except as regards the following matters:

(a)  actions arising from relations between lessor and lessee, and employer and employee;

(b)  the matters governed by Titles I, IV, V and VI of Book V;

(c)  applications relating to the integrity of the person;

(d)  writs of habeas corpus and demands provided for in article 846;

(e)  (paragraph repealed);

(f)  proceedings respecting the guardianship of property under seizure or the distribution of moneys following execution;

(g)  expropriation proceedings;

(h)  cases in which the defendant is in default to appear or to plead;

(i)  inscriptions for judgment upon acquiescence in a demand, upon discontinuance or by agreement between the parties;

(j)  incidental proceedings;

(k)  the matters governed by Book VI of this Code;

(l)  those which must be heard and decided by preference under a provision of law or a decision of the chief justice or a judge designated by him for such purpose.

1965 (1st sess.), c. 80, a. 12; 1966, c. 21, s. 2; 1982, c. 17, s. 1; 1992, c. 57, s. 172.

13. The sittings of the courts are public wherever they may be held, but the court may order that they be held in camera in the interests of good morals or public order.

However, in family matters, sittings in first instance are held in camera, unless the court, upon application, orders that, in the interests of justice, a sitting be public. Any journalist who proves his capacity is admitted to sittings held in camera, without further formality, unless the court considers his presence detrimental to a person whose interests may be affected by the proceedings. This paragraph applies notwithstanding section 23 of the Charter of human rights and freedoms (chapter C-12).

The rules of practice may determine the conditions and modalities relating to sittings in camera in respect of advocates and articled students within the meaning of the Act respecting the Barreau du Québec (chapter B-1).

1965 (1st sess.), c. 80, a. 13; 1975, c. 83, s. 2; 1982, c. 17, s. 2; 1984, c. 26, s. 1; 1993, c. 30, s. 1.

14. Persons present at sittings of the courts must maintain a respectful attitude, remain silent and refrain from showing their approval or disapproval of the proceedings.

This provision must be observed wherever the judge carries out his official functions.

1965 (1st sess.), c. 80, a. 14.

15. Any person who contravenes article 14, or who does not obey at once the orders of the judge or the officers under his authority, is guilty of contempt of court.

If the offender is an officer of justice, the court may suspend him from his functions.

1965 (1st sess.), c. 80, a. 15; 1975, c. 83, s. 3; 1995, c. 41, s. 17.

16. The judge may require an oath whenever it is deemed necessary.

1965 (1st sess.), c. 80, a. 16.

17. When an oath is required, it is taken before the judge, the clerk or any other person authorized by law to administer it.

1965 (1st sess.), c. 80, a. 17; 1992, c. 57, s. 420.

18. (Repealed).

1965 (1st sess.), c. 80, a. 18; 1986, c. 95, s. 62; 1992, c. 57, s. 173.

19. The court has the same powers as the judge in matters within the jurisdiction of the latter.

1965 (1st sess.), c. 80, a. 19.

20. Whenever this Code contains no provision for exercising any right, any proceeding may be adopted which is not inconsistent with this Code or with some other provision of law.

1965 (1st sess.), c. 80, a. 20.

20.1. Where a law or regulation provides for the use of the mails, the Government may, if postal services are interrupted, authorize the use of another means of communication, according to such terms and conditions as it may determine.

1979, c. 37, s. 4.

21. (Repealed).

1965 (1st sess.), c. 80, a. 21; 1992, c. 57, s. 174.

21.1. (Repealed).

1989, c. 62, s. 2; 1992, c. 57, s. 174.

TITLE II THE COURTS

CHAPTER I JURISDICTION OF THE COURTS

1992, c. 57, s. 175.

DIVISION I GENERAL PROVISIONS

22. The courts under the legislative authority of Québec which have jurisdiction in civil matters are:

(a)  the Court of Appeal;

(b)  the Superior Court;

(c)  the Court of Québec;

(d)  (paragraph replaced);

(e)  the municipal courts.

1965 (1st sess.), c. 80, a. 22; 1978, c. 19, s. 45; 1988, c. 21, s. 76.

23. The jurisdictions of the Court of Appeal, the Superior Court and the Court of Québec extend throughout Québec; the jurisdiction of a municipal court is limited to a designated territory.

1965 (1st sess.), c. 80, a. 23; 1978, c. 19, s. 46; 1980, c. 11, s. 46; 1988, c. 21, s. 77.

24. The courts under the legislative authority of the Parliament of Canada which have jurisdiction in civil matters in Québec are the Supreme Court of Canada and the Federal Court of Canada.

The jurisdiction of these courts and the procedure to be followed therein are set out in the laws of the Parliament of Canada.

1965 (1st sess.), c. 80, a. 24; 1979, c. 37, s. 5.

DIVISION II COURT OF APPEAL

25. The Court of Appeal is the general appeal tribunal for Québec; it hears appeals from any judgment from which an appeal lies, failing an express provision to the contrary.

1965 (1st sess.), c. 80, a. 25.

26. Unless otherwise provided, an appeal lies

(1)  from any final judgment of the Superior Court or the Court of Québec, except in a case where the value of the object of the dispute in appeal is less than $50,000;

(2)  from any final judgment of the Court of Québec in a case where such court has exclusive jurisdiction under any Act other than this Code;

(3)  from any final judgment rendered in matters of contempt of court for which there is no other recourse;

(4)  from any judgment or order rendered in matters of adoption;

(5)  from any final judgment rendered in matters concerning confinement in an institution or psychiatric assessment;

(6)  from any judgment or order rendered in the following matters:

(a)  changes made to the register of civil status;

(b)  tutorships to minors or absentees and declaratory judgments of death;

(c)  tutorship councils;

(d)  protective supervision of persons of full age and the homologation of a mandate given by a person in anticipation of his incapacity.

(7)  (paragraph replaced);

(8)  (paragraph replaced).

An appeal also lies, with leave of a judge of the Court of Appeal, when the matter at issue is one which ought to be submitted to the Court of Appeal, particularly where, in the opinion of the judge, the matter at issue is a question of principle, a new issue or a question of law that has given rise to conflicting judicial precedents,

(1)  from any judgment or order rendered under the provisions of Book VI of this Code;

(2)  from any judgment ruling on a motion to quash a seizure before judgment;

(3)  from any judgment or order rendered in matters concerning execution;

(4)  from any judgment rendered under article 846;

(4.1)  from any judgment that dismisses an action because of its improper nature;

(5)  from any other final judgment of the Superior Court or the Court of Québec.

1965 (1st sess.), c. 80, a. 26; 1969, c. 80, s. 1; 1979, c. 37, s. 6; 1982, c. 17, s. 3; 1982, c. 32, s. 31; 1984, c. 26, s. 2; 1988, c. 21, s. 66; 1992, c. 57, s. 176; 1993, c. 30, s. 2; 1993, c. 72, s. 1; 1995, c. 2, s. 1; 1997, c. 75, s. 34; 1999, c. 46, s. 1; 2002, c. 7, s. 3; 2009, c. 12, s. 1.

26.0.1. Where leave to appeal has already been given by a judge or an appeal has already been brought by a party to the proceeding under one of the provisions of this section, any other party may bring an appeal as of right.

2002, c. 7, s. 4.

26.1. A judgment awarding damages for bodily injury is a final judgment even if it reserves the right of the plaintiff to apply for additional damages.

In determining the value of the object of the dispute in appeal from the judgment ruling on an application for additional damages, account is taken only of the application for additional damages.

1992, c. 57, s. 177.

27. In determining the value of the object of the dispute in appeal for the purposes of article 26, account shall be taken of interest accrued on the date of the judgment in first instance and of the indemnity referred to in article 1619 of the Civil Code, but not of costs.

1965 (1st sess.), c. 80, a. 27; 1969, c. 80, s. 1; 1993, c. 30, s. 3.

28. (Repealed).

1965 (1st sess.), c. 80, a. 28; 1993, c. 30, s. 4.

29. An appeal also lies, in accordance with article 511, from an interlocutory judgment of the Superior Court or the Court of Québec but, as regards youth matters, only in a matter of adoption:

(1)  when it in part decides the issues;

(2)  when it orders the doing of anything which cannot be remedied by the final judgment; or

(3)  when it unnecessarily delays the trial of the suit.

However, an interlocutory judgment rendered during the trial cannot be appealed immediately and it cannot be put in question except on appeal from the final judgment, unless it disallows an objection to evidence based upon article 308 of this Code or on section 9 of the Charter of human rights and freedoms (chapter C-12), or unless it allows an objection to evidence.

Any judgment is interlocutory which is rendered during the suit before the final judgment.

1965 (1st sess.), c. 80, a. 29; 1969, c. 80, s. 2; 1969, c. 81, s. 1; 1975, c. 83, s. 4; 1979, c. 37, s. 7; 1982, c. 17, s. 5; 1982, c. 32, s. 32; 1988, c. 21, s. 78; 1992, c. 57, s. 178.

30. Appeals from judgments rendered in the districts of Beauharnois, Bedford, Drummond, Gatineau, Iberville, Joliette, Labelle, Laval, Longueuil, Mégantic, Montréal, Pontiac, Richelieu, Saint-François, Saint-Hyacinthe and Terrebonne are brought before the Court of Appeal sitting at Montréal; those from judgments rendered in the other districts, before the court sitting at Québec.

1965 (1st sess.), c. 80, a. 30; 1975, c. 10, s. 12; 1978, c. 19, s. 47; 1979, c. 15, s. 10; 1985, c. 29, s. 4; 2013, c. 29, s. 6.

DIVISION III SUPERIOR COURT

31. The Superior Court is the court of original general jurisdiction; it hears in first instance every suit not assigned exclusively to another court by a specific provision of law.

1965 (1st sess.), c. 80, a. 31.

32. (Repealed).

1965 (1st sess.), c. 80, a. 32; 1988, c. 21, s. 66; 1996, c. 5, s. 1.

33. Excepting the Court of Appeal, the courts within the jurisdiction of the Parliament of Québec, and bodies politic, legal persons established in the public interest or for a private interest within Québec are subject to the superintending and reforming power of the Superior Court in such manner and form as by law provided, save in matters declared by law to be of the exclusive competency of such courts or of any one of the latter, and save in cases where the jurisdiction resulting from this article is excluded by some provision of a general or special law.

1965 (1st sess.), c. 80, a. 33; 1992, c. 57, s. 179.

DIVISION IV THE COURT OF QUÉBEC

1988, c. 21, s. 66.

34. Except where a recourse is brought under Book IX, the Court of Québec has jurisdiction to the exclusion of the Superior Court in any suit:

(1)  wherein the sum claimed or the value of the thing demanded is less than $70,000, except suits for alimentary pension and those reserved for the Federal Court of Canada;

(2)  for specific performance, annulment, dissolution or rescission of a contract or for reduction of the obligations resulting from a contract, when the value of the plaintiff’s interest in the object of the dispute is less than $70,000;

(3)  to annul a lease when the amount claimed for rent and damages is less than $70,000.

When, in answer to an action before the Court of Québec, a defendant makes a claim which itself would be within the jurisdiction of the Superior Court, the latter court is alone competent to hear the entire case, and the record must be sent to it with the written consent of all the parties or, failing such consent, on an application presented to the judge or the clerk. The same applies when following an amendment to a claim before the Court of Québec, such claim becomes within the jurisdiction of the Superior Court.

Likewise, where, following an amendment to a claim before the Superior Court, the claim becomes within the jurisdiction of the Court of Québec, the latter court is alone competent to hear the entire case and the record must be sent to it with the written consent of all the parties or, failing such consent, on an application presented to the judge or the clerk unless, if it so happens, the defendant makes a claim which itself would be within the jurisdiction of the Superior Court.

This article does not apply to an application resulting from the lease of a dwelling or land contemplated in article 1892 of the Civil Code, except where the application consists in a contestation contemplated in article 645 or 656 of this Code.

1965 (1st sess.), c. 80, a. 34; 1969, c. 81, s. 2; 1970, c. 63, s. 1; 1972, c. 70, s. 1; 1978, c. 8, s. 1; 1979, c. 37, s. 8; 1979, c. 48, s. 118; 1982, c. 58, s. 19; 1984, c. 26, s. 3; 1987, c. 63, s. 1; 1988, c. 21, s. 66; 1992, c. 57, s. 180; 1995, c. 2, s. 2; 2002, c. 7, s. 5.

35. Subject to the jurisdiction assigned to the municipal courts, the Court of Québec also has jurisdiction, to the exclusion of the Superior Court, in all suits, whether personal or hypothecary:

(1)  for the recovery of a tax or other sum of money due to a municipality or school board under the Municipal Code (chapter C-27.1) or any general or special Act, or in virtue of any by-law made thereunder; or

(2)  (paragraph repealed);

(3)  to annul or set aside a valuation roll of immovables which are taxable for municipal or school purposes, whatever be the law governing the municipality or school board concerned.

1965 (1st sess.), c. 80, a. 35; 1981, c. 14, s. 10; 1988, c. 21, s. 66; 1988, c. 84, s. 701; 1992, c. 57, s. 181; 1996, c. 5, s. 2.

36. Notwithstanding any legislative provision inconsistent herewith, the Court of Québec has exclusive and ultimate jurisdiction in all suits or actions instituted in virtue of Chapter II of Title VI of Book V and relating to the usurpation, holding or unlawful exercise of an office in a municipality or school board, whatever the law governing the same.

The case is heard and decided by a judge of the Court of Québec when the only matter in dispute is the property qualification of the defendant.

In all other cases, it is heard by three judges of the Court of Québec designated by the chief judge of such Court whose administrative jurisdiction covers the district in which the action is instituted.

One of the said judges, also designated by such chief judge, presides over the court.

Judgment is rendered by the majority of such judges. It may be rendered in open court, in the absence of the other judges, by the judge who presided over the court, or deposited in the office of the court, under the signature of at least two of them; in the latter case, the clerk must immediately give notice of such deposit to all parties concerned.

In the case of the death, before judgment, of the judge who heard the case, or of his being incapable, on account of any circumstance, of taking part in the judgment when the others agree and are ready to adjudicate, the latter may render judgment.

1965 (1st sess.), c. 80, a. 36; 1988, c. 21, s. 66; 1988, c. 84, s. 701; 1992, c. 57, s. 182; 1999, c. 40, s. 56.

DIVISION IV.1

The heading of this section is repealed (1988, c. 21, s. 79).

1978, c. 19, s. 48; 1988, c. 21, s. 79.

36.1. The Court of Québec has jurisdiction, to the exclusion of the Superior Court, in matters respecting adoption.

In other matters respecting youth, the jurisdiction of the Court and the procedure to be followed before the Court are determined by special Acts.

1978, c. 19, s. 48; 1982, c. 17, s. 6; 1988, c. 21, s. 80.

36.2. Pursuant to articles 26 to 31 of the Civil Code, the Court of Québec is competent to hear, to the exclusion of the Superior Court, any application to obtain that a person refusing to undergo a psychiatric assessment be submitted to such assessment, or that the person be confined against his will in an institution referred to in the Act respecting the protection of persons whose mental state presents a danger to themselves or to others (chapter P-38.001).

In urgent cases, the application may also be made before a judge of the municipal courts of the cities of Montréal, Laval or Québec having jurisdiction in the locality where the person is.

1992, c. 57, s. 183; 1997, c. 75, s. 35.

DIVISION V MUNICIPAL COURTS

37. The jurisdiction of municipal courts and the powers of justices of the peace are set out in special laws.

1965 (1st sess.), c. 80, a. 37; 1989, c. 52, s. 123.

CHAPTER II JURISDICTION OF JUDGES AND CLERKS

1992, c. 57, s. 184.

38. The judge in chambers has jurisdiction over such matters as are assigned to him by law or by the rules of practice.

1965 (1st sess.), c. 80, a. 38.

39. Where in a district there is no judge or the judge is unable to act, the matters provided for in articles 485, 489, 733, 734.0.1, 734.1, 753 and 834.1 may be presented to a judge of another district by any means of communication available to the judge.

1965 (1st sess.), c. 80, a. 39; 1968, c. 84, s. 1; 1986, c. 55, s. 1; 1996, c. 5, s. 3; 2002, c. 54, s. 1.

40. The judge in chambers may refer to the court any matter submitted to him if he considers that the interests of justice so require.

1965 (1st sess.), c. 80, a. 40.

41. The clerk has the competence of a judge in chambers:

(1)  in cases where the law expressly so declares;

(2)  when the judge is absent or unable to act and delay might result in the loss of a right or cause serious harm.

In matters within his jurisdiction, the clerk has the same powers as the judge.

1965 (1st sess.), c. 80, a. 41; 1992, c. 57, s. 186, s. 420.

42. In the cases provided for by paragraph 2 of article 41 and by articles 583.1, 584, 644 and 659.5, the decision of the clerk may be revised by the judge or the court, upon a demand setting out the grounds relied on, served upon the adverse party and filed at the office of the court within 10 days from the date of the decision attacked.

If the decision is quashed, matters are restored to the state where they were before it was rendered.

1965 (1st sess.), c. 80, a. 42; 1977, c. 73, s. 2; 1980, c. 21, s. 1; 1987, c. 63, s. 2; 1992, c. 57, s. 420.

43. The clerk may also sign the minute of any judgment rendered upon a motion granted by consent.

1965 (1st sess.), c. 80, a. 43; 1992, c. 57, s. 420.

44. The assistant clerk may exercise the powers conferred on the clerk concurrently with the judge, if he has been chosen for that purpose by the clerk with the consent of the Minister of Justice or of a person designated by him.

The assistant clerk who is a special clerk may exercise such powers ex officio.

For carrying out his duties at the trial, taking down the depositions of witnesses, issuing copies of documents in his custody, and generally for all acts which do not require the exercise of judicial or discretionary power, the clerk may be replaced by such members of his staff as he designates.

1965 (1st sess.), c. 80, a. 44; 1977, c. 73, s. 3; 1992, c. 57, s. 420.

44.1. The special clerk rules, in particular:

(1)  on any motion, contested or not, for joinder of actions, security, summons of a witness under article 282, communication, filing or dismissal of exhibits, medical examination, particulars, amendment, modification of an agreement under article 151.2, substitution of attorney, appointment of a practitioner or relief from default, or to cease representing, and

(2)  on any other interlocutory or incidental proceeding, contested or not but, if contested, with the consent of the parties.

The special clerk may, in the case of applications relating to child custody or obligations of support, homologate any agreement effecting a complete settlement of the matter. Once homologated, such agreements have the same effect and binding force as a judgment of the Superior Court.

In all cases, the decision may be revised by the judge in accordance with the formalities provided in article 42.

1975, c. 83, s. 5; 1976, c. 9, s. 54; 1977, c. 73, s. 4; 1992, c. 57, s. 420; 1994, c. 28, s. 1; 1997, c. 42, s. 2; 2002, c. 7, s. 6.

45. The clerk or the assistant clerk may refer to the judge or to the court any matter submitted to him, if he considers that the interests of justice so require.

In the case of an application referred to in the second paragraph of article 44.1, the special clerk may refer the application to the judge or the court if he considers that the agreement between the parties does not provide sufficient protection for the interests of the children or that a party’s consent was obtained under duress. He may, to evaluate the agreement or the consent of the parties, summon and hear the parties, even separately, in the presence of their attorneys, if any.

1965 (1st sess.), c. 80, a. 45; 1975, c. 83, s. 6; 1992, c. 57, s. 420; 1997, c. 42, s. 3.

CHAPTER III POWERS OF COURTS AND JUDGES

DIVISION I GENERAL POWERS

46. The courts and judges have all the powers necessary for the exercise of their jurisdiction.

They may, at any time and in all matters, whether in first instance or in appeal, issue orders to safeguard the rights of the parties, for such time and on such conditions as they may determine. As well, they may, in the matters brought before them, even on their own initiative, issue injunctions or reprimands, suppress writings or declare them libellous, and make such orders as are appropriate to deal with cases for which no specific remedy is provided by law.

1965 (1st sess.), c. 80, a. 46; 2002, c. 7, s. 7.

47. The majority of the judges of each court, either at a meeting convened for the purpose by the chief justice, or by way of a consultation, held and certified by him, by mail, may make, for one or more judicial districts, the rules of practice judged necessary for the proper carrying out of this Code. The majority of the judges of the Superior Court appointed either for the district of Montréal or for the district of Québec may nevertheless replace, amend or complete such rules by special rules applicable in their respective districts only.

Similarly, the majority of the judges of each court may make tariffs of fees for commissioners and other officers appointed by the court, whose remuneration is not, by law, fixed by the Government; such tariffs must be promulgated in the manner prescribed for rules of practice.

This article does not apply to municipal judges appointed pursuant to the Act respecting municipal courts (chapter C-72.01).

1965 (1st sess.), c. 80, a. 47; 1969, c. 81, s. 3; 1972, c. 70, s. 2; 1975, c. 83, s. 7; 1988, c. 21, s. 81; 1989, c. 52, s. 124.

48. The rules of practice come into force 10 days after publication in the Gazette officielle du Québec.

Immediately after such publication they must be copied into the registers kept for the purpose by the clerks, and notice thereof must be posted in the office of the court in each of the districts where they apply.

1965 (1st sess.), c. 80, a. 48; 1992, c. 57, s. 420.

48.1. In the case of the Court of Québec, the rules of practice are made and come into force in accordance with the provisions of the Courts of Justice Act (chapter T-16).

1988, c. 21, s. 82.

DIVISION II POWER TO PUNISH FOR CONTEMPT OF COURT

49. The courts or judges may condemn any person who is guilty of contempt of court.

1965 (1st sess.), c. 80, a. 49.

50. Anyone is guilty of contempt of court who disobeys any process or order of the court or of a judge thereof, or who acts in such a way as to interfere with the orderly administration of justice, or to impair the authority or dignity of the court.

In particular, any officer of justice who fails to do his duty, and any sheriff or bailiff who does not execute a writ forthwith or does not make a return thereof or, in executing it, infringes any rule the violation whereof renders him liable to a penalty, is guilty of contempt of court.

1965 (1st sess.), c. 80, a. 50; 1966, c. 21, s. 3.

51. Except where otherwise provided, anyone who is guilty of contempt of court is liable to a fine not exceeding $5,000 or to imprisonment for a period not exceeding one year.

Imprisonment for refusal to obey any process or order may be repeatedly inflicted until the person condemned obeys.

1965 (1st sess.), c. 80, a. 51.

52. Anyone who is guilty of contempt of court in the presence of the judge in the exercise of his functions may be condemned at once, provided that he has been called upon to justify his behaviour.

1965 (1st sess.), c. 80, a. 52.

53. No one may be condemned for contempt of court committed out of the presence of the judge, unless he has been served with a special rule ordering him to appear before the court, on the day and at the hour fixed, to hear proof of the acts with which he is charged and to urge any grounds of defence that he may have.

The judge may issue the rule ex officio or on application. Service of this rule is not required; it may be presented before a judge of the district where the contempt was committed.

The rule must be served personally, unless for valid reasons another mode of service is authorized by the judge.

1965 (1st sess.), c. 80, a. 53; 1979, c. 37, s. 9.

53.1. The proof submitted to establish contempt of court must leave no possibility of reasonable doubt.

The respondent may not be compelled to testify.

1992, c. 57, s. 188.

54. Judgment is rendered after summary hearing; if it contains a condemnation it must state the punishment imposed and set forth the facts upon which it is based, and in such case it shall be executed in accordance with Chapter XIII of the Code of Penal Procedure (chapter C-25.1).

1965 (1st sess.), c. 80, a. 54; 1990, c. 4, s. 222.

DIVISION III POWER TO IMPOSE SANCTIONS FOR IMPROPER USE OF PROCEDURE

This Section is inserted by section 2 of chapter 12 of the Statutes of 2009 (An Act to amend the Code of Civil Procedure to prevent improper use of the courts and promote freedom of expression and citizen participation in public debate). The preamble to that Act reads as follows:

“AS it is important to promote freedom of expression affirmed in the Charter of human rights and freedoms;

“AS it is important to prevent improper use of the courts and discourage judicial proceedings designed to thwart the right of citizens to participate in public debate;

“AS it is important to promote access to justice for all citizens and to strike a fairer balance between the financial strength of the parties to a legal action;”.

2009, c. 12, s. 2.

54.1. A court may, at any time, on request or even on its own initiative after having heard the parties on the point, declare an action or other pleading improper and impose a sanction on the party concerned.

The procedural impropriety may consist in a claim or pleading that is clearly unfounded, frivolous or dilatory or in conduct that is vexatious or quarrelsome. It may also consist in bad faith, in a use of procedure that is excessive or unreasonable or causes prejudice to another person, or in an attempt to defeat the ends of justice, in particular if it restricts freedom of expression in public debate.

2009, c. 12, s. 2.

54.2. If a party summarily establishes that an action or pleading may be an improper use of procedure, the onus is on the initiator of the action or pleading to show that it is not excessive or unreasonable and is justified in law.

A motion to have an action in the first instance dismissed on the grounds of its improper nature is presented as a preliminary exception.

2009, c. 12, s. 2.

54.3. If the court notes an improper use of procedure, it may dismiss the action or other pleading, strike out a submission or require that it be amended, terminate or refuse to allow an examination, or annul a writ of summons served on a witness.

In such a case or where there appears to have been an improper use of procedure, the court may, if it considers it appropriate,

(1)  subject the furtherance of the action or the pleading to certain conditions;

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

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

(4)  recommend to the chief judge or chief justice that special case management be ordered; or

(5)  order the initiator of the action or pleading to pay to the other party, under pain of dismissal of the action or pleading, a provision for the costs of the proceeding, if justified by the circumstances and if the court notes that without such assistance the party’s financial situation would prevent it from effectively arguing its case.

2009, c. 12, s. 2.

54.4. On ruling on whether an action or pleading is improper, the court may order a provision for costs to be reimbursed, condemn a party to pay, in addition to costs, damages in reparation for the prejudice suffered by another party, including the fees and extrajudicial costs incurred by that party, and, if justified by the circumstances, award punitive damages.

If the amount of the damages is not admitted or may not be established easily at the time the action or pleading is declared improper, the court may summarily rule on the amount within the time and under the conditions determined by the court.

2009, c. 12, s. 2.

54.5. If the improper use of procedure results from a party’s quarrelsomeness, the court may, in addition, prohibit the party from instituting legal proceedings except with the authorization of and subject to the conditions determined by the chief judge or chief justice.

2009, c. 12, s. 2.

54.6. If a legal person or an administrator of the property of another resorts to an improper use of procedure, the directors and officers of the legal person who took part in the decision or the administrator may be ordered personally to pay damages.

2009, c. 12, s. 2.

TITLE III RULES APPLICABLE TO ALL ACTIONS

CHAPTER I ACTIONS, PARTIES TO ACTIONS AND ATTORNEYS

55. Whoever brings an action at law, whether for the enforcement of a right which is not recognized or is jeopardized or denied, or otherwise to obtain a pronouncement upon the existence of a legal situation, must have a sufficient interest therein.

1965 (1st sess.), c. 80, a. 55.

56. A person must be able to fully exercise his rights to be a party to an action in whatever form it may be, saving contrary provisions of law.

A person who is not able to fully exercise his rights must be represented, assisted or authorized, in the manner provided by the laws which govern his status and capacity or by this Code.

The 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 case, even in appeal.

1965 (1st sess.), c. 80, a. 56; 1982, c. 17, s. 7; 1992, c. 57, s. 189.

57. Any person or corporation domiciled outside Québec, who is authorized by the law of his domicile to appear in judicial proceedings, may do so before the courts of Québec.

1965 (1st sess.), c. 80, a. 57.

58. Any person who, under the law of a foreign country, is empowered to represent a person who died or made his will there and left property in Québec, may be a party in that capacity to proceedings before any court of Québec.

1965 (1st sess.), c. 80, a. 58.

59. A person cannot use the name of another to plead, except the State through authorized representatives.

Nevertheless, when several persons have a common interest in a dispute, any one of them may appear in judicial proceedings on behalf of them all, if he holds their mandate. The power of attorney must be filed in the office of the court with the first pleading; thereafter the mandate cannot be revoked except with leave of the court and is not affected by the death or change of status of the mandators. In such case, the mandators are jointly and severally liable with their mandatary for the costs.

Tutors, curators and others representing persons who are not able to fully exercise their rights, plead in their own name in their respective capacities. This also applies to an administrator of the property of others in respect of anything connected with his administration and to a mandatary in the performance of a mandate given by a person of full age in anticipation of his incapacity to take care of himself or administer his property.

1965 (1st sess.), c. 80, a. 59; 1992, c. 57, s. 190.

60. Where all or some of the directors of an association within the meaning of the Civil Code are party to legal proceedings in their capacity as directors, they may do so under their own name or under the name which the association has given itself or the name by which it is known.

However, an association of employees must, to institute legal proceedings, deposit at the office of the court, with the proceeding introductive of suit, a certificate of the Commission des relations du travail under the Labour Code (chapter C-27) attesting that it is an association of employees within the meaning of the Labour Code.

1965 (1st sess.), c. 80, a. 60; 1969, c. 48, s. 44; 1977, c. 41, s. 1; 1992, c. 57, s. 191; 2001, c. 26, s. 92.

61. No one is required to be represented by attorney before the courts, except:

(a)  legal persons;

(b)  the Public Curator;

(c)  trustees, guardians, liquidators, receivers and other representatives of collective interests, when they act in that capacity;

(d)  collection agents and purchasers of accounts, concerning the accounts which they are charged with recovering or which they have purchased;

(e)  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;

(f)  persons acting on behalf of others under article 59.

Nevertheless, the claim of a legal person, general or limited partnership or association within the meaning of the Civil Code, to participate in a distribution of funds derived from the sale of the property of a debtor or from the seizure or voluntary deposit of his salary, wages or earnings, may be made by any attorney under a general or special power.

1965 (1st sess.), c. 80, a. 61; 1966, c. 21, s. 4; 1992, c. 57, s. 192.

62. The right to act as attorney before the courts is reserved exclusively to advocates, except in the cases set forth in paragraph 7 of section 15 of the Notaries Act (chapter N-3).

1965 (1st sess.), c. 80, a. 62; 2000, c. 44, s. 99.

63. The party who has appeared by attorney but has since left Québec or has no known domicile, residence or business establishment therein, is deemed to have elected domicile at the office of his attorney, and any service which need not be made personally can be made upon him at the office of his attorney, provided that the bailiff certifies, that though he has searched he has been unable to find him and does not know if he has any domicile, residence or business establishment in Québec.

However, in the case of a motion to cease representing, service upon such party may be made at the office of the court of the district where the proceedings are held.

1965 (1st sess.), c. 80, a. 63; 1972, c. 70, s. 3; 1975, c. 83, s. 8; 1999, c. 40, s. 56.

64. Advocates must elect domicile within a radius of 5 km from the court house where they practise, and have such election registered at the office of the court, failing which they are deemed to have elected domicile at the office of the court, where all services upon them may be validly made.

1965 (1st sess.), c. 80, a. 64; 1984, c. 47, s. 213.

65. A plaintiff or plaintiff-appellant who does not reside in Québec must give security for the costs which may be incurred in consequence of his suit. The same applies to a person who acts on behalf of another under the second paragraph of article 59 if neither he nor any of his mandators resides in Québec.

1965 (1st sess.), c. 80, a. 65; 2002, c. 7, s. 8.

CHAPTER II JOINDER OF CAUSES OF ACTION AND OF PARTIES

66. Several causes of action may be joined in the same suit, provided that the recourses exercised are not incompatible or contradictory, that they seek condemnations of a like nature, that their joinder is not expressly prohibited and that they are susceptible of the same mode of trial.

A creditor cannot divide a debt that is due, for the purpose of suing for the several portions of it by different actions.

1965 (1st sess.), c. 80, a. 66.

67. Two or more persons, whose claims have the same juridical basis or raise the same points of law and fact, may join in the same suit. The suit must be instituted before the Court of Québec, if that court has jurisdiction in each of the claims; otherwise it must be instituted before the Superior Court.

At any time before the hearing, the court may order that claims joined in virtue of this article be disjoined, if it is of opinion that the interests of justice will thus be better served.

Unless the court orders otherwise, unsuccessful co-plaintiffs are jointly and severally liable for the costs.

1965 (1st sess.), c. 80, a. 67; 1988, c. 21, s. 66.

CHAPTER III PLACE OF INSTITUTING ACTIONS

68. Subject to the provisions of this Chapter and the provisions of Book X of the Civil Code, and notwithstanding any agreement to the contrary, a purely personal action may be instituted:

(1)  Before the court of the defendant’s real domicile or, in the cases contemplated by article 83 of the Civil Code, before that of his elected domicile.

If the defendant has no domicile in Québec but resides or possesses property therein, he may be sued before the court of his ordinary residence, before the court of the place where such property is situated, or before the court of the place where the action is personally served upon him;

(2)  Before the court of the place where the whole cause of action has arisen; or, in an action for libel published in a newspaper, before the court of the district where the plaintiff resides if the newspaper has circulated therein;

(3)  Before the court of the place where the contract which gives rise to the action was made.

A contract giving rise to an obligation to deliver, negotiated through a third party who was not the representative of the creditor of such obligation, is deemed to have been made at the place where the latter gave his consent.

1965 (1st sess.), c. 80, a. 68; 1992, c. 57, s. 193.

69. Notwithstanding any agreement to the contrary, an action based upon a contract of insurance and taken against the insurer may in all cases be instituted before the court of the domicile of the insured; in the case of insurance of property, it may also be instituted before the court of the place where the loss occurred.

1965 (1st sess.), c. 80, a. 69.

70. Applications in family cases are taken before the court of the common domicile of the parties or, failing such a domicile, the domicile of either of the parties.

However, oppositions to a marriage or a civil union and applications for authorization for a minor or a person of full age under tutorship or provided with an adviser to make matrimonial or civil union agreements are taken before the court of the place where the marriage or civil union is to be solemnized or of the domicile of the minor or the person of full age.

Lastly, applications in adoption cases are taken before the court of the domicile of the child or the plaintiff or, if the adopters consent, before the court where the director of youth protection who was the last to have charge of the child exercises his functions.

1965 (1st sess.), c. 80, a. 70; 1982, c. 17, s. 8; 1989, c. 54, s. 131; 1992, c. 57, s. 194; 2002, c. 6, s. 91.

70.1. In family cases, if the parties no longer live in the district where the judgment was rendered, applications for review of accessory measures may be brought before the court of the domicile of either of the parties.

1982, c. 17, s. 8.

70.2. Applications with respect to integrity, emancipation, tutorship to minors or protective supervision of persons of full age are taken before the court of the domicile or residence of the minor or of the person of full age.

Applications concerning the integrity of a person kept by an institution governed by the Acts respecting health services and social services may be taken before the court of the place in which that person is kept.

1989, c. 54, s. 132; 1992, c. 21, s. 126; 1992, c. 57, s. 195.

71. The incidental action in warranty must be taken before the court in which the principal action is pending.

1965 (1st sess.), c. 80, a. 71.

71.1. An application for additional damages for bodily injury that could not be determined at the time of the judgment forms part of the original record and must be presented in the district where the principal action was heard.

1992, c. 57, s. 196.

72. In personal matters, a plaintiff who has joined several causes of action which did not all arise in the same district may bring his action before any court which has jurisdiction over any one of them.

1965 (1st sess.), c. 80, a. 72.

73. A real action or a mixed action may be taken either before the court of the domicile of the defendant or before the court of the district where the property in dispute is situated in whole or in part.

1965 (1st sess.), c. 80, a. 73.

74. In matters of succession, action is instituted before the court of the place where the succession devolved if it opened in Québec; otherwise, before that of the place where the property is situated, or of the domicile of the defendant or any of the defendants.

Judicial proceedings in which the liquidator of a succession is interested may be instituted before the court of his domicile.

1965 (1st sess.), c. 80, a. 74; 1992, c. 57, s. 197.

75. An action against several defendants domiciled in different districts, if it is a personal or mixed action, may be instituted in the court before which any of them may be summoned; but if it is a real action, it must be instituted in the court of the place where the object of the dispute is situated.

1965 (1st sess.), c. 80, a. 75.

75.0.1. At any stage of a proceeding, the chief justice or chief judge or the judge designated by the chief justice or chief judge may, by way of exception, order, even on his or her own initiative after having heard the parties, that a case, a trial or an application relating to the execution of a judgment be transferred to another district in the interests of the parties or of the third persons concerned or if warranted on serious grounds.

2002, c. 7, s. 9; 2014, c. 10, s. 1.

CHAPTER III.1

Repealed, 2009, c. 12, s. 3.

1984, c. 26, s. 4; 2009, c. 12, s. 3.

75.1. (Repealed).

1984, c. 26, s. 4; 2009, c. 12, s. 3.

75.2. (Repealed).

1993, c. 72, s. 2; 2009, c. 12, s. 3.

CHAPTER IV GENERAL RULES CONCERNING WRITTEN PLEADINGS

76. In their written pleadings, the parties must state the facts that they intend to invoke and the conclusions that they seek.

Such statement must be frank, precise and brief; it shall be divided into paragraphs numbered consecutively, each paragraph referring so far as possible to one essential fact.

1965 (1st sess.), c. 80, a. 76.

77. Every fact of such a nature as to take the opposite party by surprise if not alleged, or to raise an issue not arising from the pleadings already filed, must be expressly pleaded.

1965 (1st sess.), c. 80, a. 77.

78. Failing provision to the contrary, any written proceeding of a party must be served upon the attorneys of the other parties, or upon the parties themselves if they have no attorney, otherwise it cannot be regularly filed; if it contains a demand which must be presented to a judge or to the court, it must be accompanied by a notice of the date of such presentation, and the service must have been made at least one clear juridical day before such date, except in a case of urgency when the judge may allow a shorter time.

Every party filing a written proceeding must mention his address therein.

1965 (1st sess.), c. 80, a. 78; 1972, c. 70, s. 4; 1999, c. 40, s. 56.

79. If the copy served of a written proceeding is not a true copy of the original, the party who served it may serve a new copy with or without the permission of the court, according to whether the adverse party has already replied or not.

1965 (1st sess.), c. 80, a. 79.

80. (Repealed).

1965 (1st sess.), c. 80, a. 80; 1994, c. 28, s. 2.

81. (Repealed).

1965 (1st sess.), c. 80, a. 81; 1994, c. 28, s. 2.

82. (Repealed).

1965 (1st sess.), c. 80, a. 82; 1994, c. 28, s. 2.

82.1. A party or his attorney may send a written proceeding, an exhibit or any other document to a bailiff, an advocate or a notary by fax machine. The correspondent chosen prepares copies of the facsimile of the document and an attestation of their authenticity; the copies are presumed to be originals for the purposes of notification, service, filing at the office of the court or evidence. The signature of the advocate, notary or court bailiff is sufficient to certify the authenticity of the document.

The attestation of authenticity must specify that the copies are true to the facsimile received by fax machine and must state the nature of the document, the number of the court, the name of the sender and the fax number of the transmitting fax machine as well as the place, date and time of transmission.

A party who sends a written proceeding, an exhibit or any other document by fax machine must let another party take cognizance of the original at any time after the receipt of a written request to that effect. If the sender refuses or neglects to do so, the other party may, by motion, apply to the judge or the court to order the sender to produce the original within a specified time.

1993, c. 72, s. 3; 2002, c. 7, s. 10.

83. Prior to the end of the proceedings, filed exhibits cannot be taken out of the record, except with the consent of the opposite party or the authorization of the clerk, and upon giving a receipt; the parties may, however, obtain copies from the clerk.

1965 (1st sess.), c. 80, a. 83; 1992, c. 57, s. 420; 1994, c. 28, s. 3.

84. A person who retains an exhibit notwithstanding an order of the judge is guilty of contempt of court.

1965 (1st sess.), c. 80, a. 84.

85. A party who replies in writing to a proceeding must admit the allegations thereof that he knows to be true; he cannot merely deny those which he does not admit but must allege affirmatively all the facts upon which he relies to oppose the conclusions taken against him.

1965 (1st sess.), c. 80, a. 85.

86. Except where otherwise provided, the silence of a party in respect of a fact alleged by the opposite party must not be interpreted as an admission of the truth of such fact.

1965 (1st sess.), c. 80, a. 86.

87. To repeat a fact already alleged, it is sufficient merely to refer to the paragraph where it is set forth.

1965 (1st sess.), c. 80, a. 87.

88. Unless expressly otherwise provided, any demand in a suit is made by motion to the court, or to a judge if the court is not sitting or in cases of urgency.

The motion must be supported by an affidavit attesting the truth of all facts the proof of which is not already in the record, and it can only be contested orally, unless the court allows written contestation within the time and on the conditions it determines.

During the hearing of the demand, any party may submit relevant evidence.

1965 (1st sess.), c. 80, a. 88; 1992, c. 57, s. 198.

89. The following must be expressly alleged and supported by affidavit:

(1)  the contestation of a signature or of a material part of any private writing, or of the fulfilment of the formalities required for the validity of a writing;

(2)  the pretension of the heirs or legal representatives of the signatory of a document contemplated in paragraph 1, that they do not know the handwriting or signature of the person whom they represent;

(3)  the contestation of a semi-authentic act;

(4)  the contestation of a technology-based document on the ground of a violation of integrity ; in such a case the affidavit must state precisely the facts and reasons suggesting a probable violation of the document’s integrity.

Failing such affidavit, the writings are held to be admitted or the formalities to have been fulfilled, as the case may be.

1965 (1st sess.), c. 80, a. 89; 1992, c. 57, s. 199; 2001, c. 32, s. 90.

90. If the document contested is a semi-authentic act, and a copy only has been filed in the record, the party wishing to make use thereof must prove its authenticity and, for that purpose, may obtain from the judge an order enjoining the person who has charge of the original to deliver it to the clerk, who must furnish him, at the expense of the contesting party, with a certified copy.

1965 (1st sess.), c. 80, a. 90; 1992, c. 57, s. 200, s. 420.

91. Every affidavit must be divided into paragraphs numbered consecutively, and be in the first person.

The names, occupation and exact address of the deponent must be inserted therein.

The date when and the place where it was sworn must be inserted in the jurat.

1965 (1st sess.), c. 80, a. 91.

92. Whenever, in virtue of some provision of this Code, an affidavit is required in support of any proceeding, it must be made by the party himself or by a representative or agent acquainted with the facts.

1965 (1st sess.), c. 80, a. 92.

93. When a party has filed an affidavit required by any provision of this Code or of the rules of practice, any other party may summon the deponent to be examined before the judge or the clerk upon the truth of the facts sworn to in the affidavit.

Failure to submit to such examination entails the dismissal of the affidavit and of the proceeding which it supported.

1965 (1st sess.), c. 80, a. 93; 1992, c. 57, s. 420.

93.1. Where a provision of this Code requires that the parties’ proof be adduced by means of affidavits sufficiently detailed to establish all the facts necessary to support their pretensions, such affidavits may contain only relevant evidence that the affiant may swear to and that has not already been alleged and sworn to in the motion and the accompanying affidavit.

1996, c. 5, s. 4.

CHAPTER V PROCEEDINGS CONCERNING THE STATE

1992, c. 57, s. 201.

94. Any person having a recourse to exercise against the government may exercise it in the same manner as if it were a recourse against a person of full age and capacity, subject only to the provisions of this chapter.

1965 (1st sess.), c. 80, a. 94; 1966, c. 21, s. 5; 1992, c. 57, s. 202.

94.1. No recourse which can be exercised against a State body or any other legal person established in the public interest may be exercised against the government.

1966, c. 21, s. 5; 1992, c. 57, s. 203.

94.2. No extraordinary recourse or provisional remedy lies against the government.

1966, c. 21, s. 5; 1992, c. 57, s. 204.

94.3. Proceedings against the government are directed against the Attorney General of Québec.

1966, c. 21, s. 5; 1992, c. 57, s. 205.

94.4. Service upon the Attorney General is made at the office of the Director General of the legal department at Montréal or at Québec, by speaking to any person in charge of that office.

The return of service must mention in particular the name of the person with whom the copy of the proceeding was left.

1966, c. 21, s. 5; 1975, c. 83, s. 9; 1977, c. 5, s. 14; 1985, c. 29, s. 5.

94.5. (Repealed).

1966, c. 21, s. 5; 1992, c. 57, s. 206; 1996, c. 5, s. 5; 2002, c. 7, s. 11.

94.6. No case may be inscribed for judgment by default against the Attorney General before the lapse of 30 days after the expiry of the time fixed to appear.

1966, c. 21, s. 5; 1992, c. 57, s. 207; 2002, c. 7, s. 12.

94.7. Notice of inscription for judgment or for proof and hearing must be given to the Attorney General, when in default to appear or to plead, at least 15 days prior to the date when such inscription is to be proceeded upon.

1966, c. 21, s. 5; 1992, c. 57, s. 208.

94.8. (Repealed).

1966, c. 21, s. 5; 1992, c. 57, s. 209; 2002, c. 7, s. 13.

94.9. Articles 543 to 553 and 568 to 732 shall not apply to judgments rendered against the Attorney General.

1966, c. 21, s. 5; 1992, c. 57, s. 210.

94.10. Whenever the Attorney General is condemned, by a judgment that has become definitive, to pay a sum of money, the Minister of Finance, after having received a certified copy of such judgment, shall pay the amount due out of the moneys at his disposal for such purpose or, failing such, out of the Consolidated Revenue Fund.

1966, c. 21, s. 5; 1992, c. 57, s. 211.

95. Unless the Attorney General has previously received a notice in accordance with this section, no provision of a statute of Québec or Canada, of a regulation made thereunder, of an order, of an order in council or of a proclamation of the Lieutenant-Governor, the Governor General, the Gouvernement du Québec or the Governor General in Council may be declared inapplicable constitutionally, invalid or inoperative or of no force or effect, including in respect of 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) or the Charter of human rights and freedoms (chapter C-12), by a court in Québec.

Such notice is also required when a person sues the State or the Public Administration for compensation for a violation or negation of the person’s fundamental rights and freedoms under the Charter of human rights and freedoms or the Canadian charter of rights and freedoms.

The notice shall set forth, in a precise manner, the nature of the pretensions and the grounds relied upon. It is to be accompanied with a copy of the proceedings and served by the person who intends to raise the question not later than 30 days before the date of the hearing. Only the Attorney General may waive such notice.

No application may be determined by the court unless the notice has been validly given, and the court shall adjudicate only upon the grounds set forth in the notice.

The notices referred to in this article are also served on the Attorney General of Canada when the provision concerned comes under federal jurisdiction. They are also served on the Director of Criminal and Penal Prosecutions when the provision relates to a criminal or penal matter.

1965 (1st sess.), c. 80, a. 95; 1985, c. 29, s. 6; 2005, c. 34, s. 43.

95.1. In criminal or penal matters, the notice referred to in the second paragraph of article 95 is not required when the compensation sought relates to the disclosure or exclusion of evidence or 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.

In all other cases, the notice must be served at least 10 days before the date the application for compensation is heard. Otherwise, the court orders the notice to be served and postpones the hearing, unless the Attorney General waives such notice or shortens the period of notice because the court judges it necessary to prevent irreparable harm to the person applying for compensation or a third party.

2005, c. 34, s. 44.

96. A party cannot raise the question of navigability or floatability of a lake or watercourse or the question of the right of ownership of its bed or banks, unless he has advised the Attorney General of his intention at least 10 days before the day fixed for proof, or, if no proof is required, before the day fixed for hearing.

The notice shall state the question and the grounds relied upon and must be accompanied by a copy of the proceedings filed in the record.

1965 (1st sess.), c. 80, a. 96.

97. A judge, ex officio or on application, may order any demand concerning the application of a provision of public order to be served on the Attorney General of Québec. The suit is thereupon suspended until the expiry of 10 days from the date of service.

A judge, ex officio, may also order any application questioning the integrity of a person of full age unable to consent to care who is not represented by a tutor, curator or mandatary to be served upon the Public Curator. In such case, the suit is suspended until the expiry of 5 days from the date of the service.

1965 (1st sess.), c. 80, a. 97; 1969, c. 79, s. 3; 1979, c. 37, s. 10; 1989, c. 54, s. 133; 1992, c. 57, s. 212.

98. After service of the notice provided for in article 95 or 96 or at any time in the case of a demand contemplated in article 97, the Attorney General may intervene in the case and file written conclusions upon which the court must adjudicate.

In the cases contemplated in articles 95 and 96, the clerk transmits a copy of the judgment to the Attorney General without delay. In the cases contemplated in article 97, he does so if the judge has ordered the proceeding which contains the demand served upon the Attorney General or if the latter has intervened in the case.

1965 (1st sess.), c. 80, a. 98; 1979, c. 37, s. 11; 1992, c. 57, s. 213, s. 420.

99. In any action relating to the application of a provision of public order, the Attorney General may ex officio and without notice take part in the proof and hearing as if he were a party thereto.

1965 (1st sess.), c. 80, a. 99.

100. No extraordinary recourse or provisional remedy lies against a minister of the government or any person acting upon his instructions to force him to act or to refrain from acting in a matter which relates to the carrying out of his duties or to the exercise of any authority conferred upon him by any law of Québec.

1965 (1st sess.), c. 80, a. 100; 1966, c. 21, s. 6; 1977, c. 5, s. 14; 1992, c. 57, s. 214; 1999, c. 40, s. 56.

101. (Repealed).

1965 (1st sess.), c. 80, a. 101; 1972, c. 14, s. 91.

102. (Repealed).

1965 (1st sess.), c. 80, a. 102; 1972, c. 14, s. 91.

103. (Repealed).

1965 (1st sess.), c. 80, a. 103; 1972, c. 14, s. 91.

104. (Repealed).

1965 (1st sess.), c. 80, a. 104; 1969, c. 80, s. 3; 1972, c. 14, s. 91.

105. (Repealed).

1965 (1st sess.), c. 80, a. 105; 1972, c. 14, s. 91.

106. (Repealed).

1965 (1st sess.), c. 80, a. 106; 1972, c. 14, s. 91.

107. (Repealed).

1965 (1st sess.), c. 80, a. 107; 1972, c. 14, s. 91.

108. (Repealed).

1965 (1st sess.), c. 80, a. 108; 1972, c. 14, s. 91.

109. (Repealed).

1965 (1st sess.), c. 80, a. 109; 1972, c. 14, s. 91.

BOOK II ORDINARY PROCEDURE IN COURTS OF FIRST INSTANCE

TITLE I INTRODUCTION OF ACTIONS AND APPLICATIONS, APPEARANCE AND CASE MANAGEMENT

2002, c. 7, s. 14.

CHAPTER I PRELIMINARY PROVISIONS

2002, c. 7, s. 14.

DIVISION I PROCEDURE APPLICABLE TO ACTIONS AND APPLICATIONS

1996, c. 5, s. 6; 2002, c. 7, s. 14.

110. Actions and applications are introduced by means of a motion. They are pursued according to the procedure set out in this Title, subject to special rules otherwise prescribed. However, actions and applications pertaining to contempt of court, habeas corpus, non-contentious matters and the recovery of small claims are governed by their own special rules.

1965 (1st sess.), c. 80, a. 110; 1996, c. 5, s. 6; 2002, c. 7, s. 14.

110.1. Actions and applications that are to be contested orally must be heard or scheduled for proof and hearing and, in the latter case, referred by order to the clerk for scheduling of the hearing, and those that are to be contested in writing inscribed for proof and hearing, within a peremptory time limit of 180 days after service of the motion. In family matters, however, the peremptory time limit is one year.

The court may extend the peremptory time limits, if warranted by the complexity of the matter or special circumstances, upon a request submitted at the time of presentation of the motion to institute proceedings. If, on the day the motion to institute proceedings is presented, the parties are unable to assess the time needed to allow the scheduling of the hearing or the inscription of the case, they may request an extension on the same grounds at any time before the expiry of the peremptory time limit.

The court may also relieve a party from the consequences of failure to act within the time limit upon proof that it was in fact impossible for the party to act within the time limit.

The decision must in all cases contain reasons.

2002, c. 7, s. 14; 2004, c. 14, s. 1.

CHAPTER I.1 SUMMONS

2002, c. 7, s. 14.

DIVISION I CONTENT AND FORM OF MOTION

2002, c. 7, s. 14.

111. A motion to institute proceedings is a concise written statement of the facts on which the action or application is based and the conclusions sought.

The motion is prepared and signed by the plaintiff or the attorney for the plaintiff.

Except where prohibited by law or by circumstances, a motion may be made jointly.

1965 (1st sess.), c. 80, a. 111; 1991, c. 20, s. 5; 1992, c. 57, s. 420; 1996, c. 5, s. 6; 2002, c. 7, s. 14.

111.1. The motion to institute proceedings indicates the court seized of the action or application and the district in which it is brought and states the name, domicile and place of residence of the plaintiff and the name and last known place of residence of the defendant. It also indicates in what capacity a party is named in the motion if not in the party’s personal capacity.

2002, c. 7, s. 14.

112. The plaintiff prepares an original and at least two copies of his motion to institute proceedings and notice. On request and after payment of the court costs, the original is numbered by the clerk; the copies are certified true by the plaintiff or his attorney, and one copy is filed in the office of the court, opening the court record.

The attorney must enter his name, address, telephone number and fax number, if any, on the original and on all the copies.

1965 (1st sess.), c. 80, a. 112; 1975, c. 83, s. 10; 1991, c. 20, s. 6; 1992, c. 57, s. 420; 1996, c. 5, s. 6; 2002, c. 7, s. 160.

113. In case of emergency, the original of the motion to institute proceedings may be filed with the clerk outside office hours even on a non-juridical day, provided that the court costs are paid forthwith to the clerk, or to the person designated by him under the third paragraph of article 44, who must as soon as possible affix the seal to the copy left with him for the court record, after having entered thereon the date of payment and amount of the costs.

1965 (1st sess.), c. 80, a. 113; 1992, c. 57, s. 420; 1996, c. 5, s. 6; 2002, c. 7, s. 160.

114. The clerk, upon proof that the original of a motion to institute proceedings has been lost or destroyed, may certify a copy to replace the original.

1965 (1st sess.), c. 80, a. 114; 1982, c. 17, s. 9; 1996, c. 5, s. 6; 2002, c. 7, s. 160.

115. A minister of the government, a clerk or registrar, a sheriff, the director of youth protection or the Public Curator, summoned in his capacity only, may be designated by his official title, if that designation is sufficient to identify him.

In actions upon bills of exchange or other private writings, negotiable or not, the defendant is sufficiently designated by his name or initials as they appear in the writing.

A defendant whose name is uncertain or unknown is sufficiently designated by a name that identifies him clearly, provided that the motion to institute proceedings is served on him in person.

A legal person must be designated by the name under which it is constituted or by which it identifies itself, with a mention of its head office; if it is a defendant, mention of the head office may be replaced by mention of its principal establishment. The syndicate of co-owners is designated by the name the co-owners as a body have given themselves or by the name by which they are generally known or by the address of the place where the immovable is located.

A general or limited partnership may be designated by the name it declares.

An association within the meaning of the Civil Code may be designated by the name it has adopted or by the name under which it is commonly known.

1965 (1st sess.), c. 80, a. 115; 1982, c. 17, s. 10; 1992, c. 57, s. 215; 1996, c. 5, s. 7; 2002, c. 7, s. 160.

116. Heirs, legatees by particular title and successors are summoned by service on the liquidator of the succession; however, where the liquidator is unknown or cannot be identified in due time, they may be summoned collectively, without mention of their names or places of residence.

The heirs are required to give written notice of the name and address of the liquidator to the opposite party; proceedings drawn up before service of the notice are valid, unless the court, on an application by the liquidator, decides otherwise; those drawn up afterwards are invalid, since the proceeding is suspended until it is continued by the liquidator in office.

The heirs and legatees by particular title of a person whose succession opens outside Québec who have not registered a declaration of transmission pursuant to article 2998 of the Civil Code may be summoned collectively in any immovable real action relating to the succession.

1965 (1st sess.), c. 80, a. 116; 1981, c. 14, s. 11; 1992, c. 57, s. 215.

117. (Repealed).

1965 (1st sess.), c. 80, a. 117; 1994, c. 28, s. 4; 1996, c. 5, s. 8; 2002, c. 7, s. 15.

118. If the object of the demand is certain and determinate property, it must be described in such a manner as clearly to establish its identity.

If the object of the demand is an immovable, it must be described as prescribed in the Book of the Civil Code on the Publication of rights.

1965 (1st sess.), c. 80, a. 118; 1992, c. 57, s. 216.

119. The motion to institute proceedings must be accompanied by a notice to the defendant to appear within the time limit indicated in order to file an answer to the action or application. The time limit is 10 days from service of the notice, except where otherwise prescribed by this Code.

In addition, the notice to the defendant must state

(1)  that the defendant is required to appear within the time limit indicated, failing which a judgment by default may be rendered against the defendant without further notice or extension;

(2)  that if the defendant appears, the action or application will be presented before the court on the date indicated unless a written agreement is made by the parties before that date to determine a timetable for the orderly progress of the proceeding;

(3)  that on the date indicated for presentation, the court may exercise such powers as are necessary to ensure the orderly progress of the proceeding;

(4)  that the exhibits in support of the motion are available on request; and

(5)  that the defendant may make a request to the clerk for the action to be disposed of pursuant to the rules of Book VIII if the defendant would be admissible as a plaintiff under that Book and the action would be admissible under that Book, and that if the defendant does not make such a request, the defendant could be liable for costs according to the rules applicable under the other Books of this Code.

The exhibits in support of the motion to institute proceedings must be disclosed in the notice to the defendant.

The notice must reproduce the text determined by the Minister of Justice.

1965 (1st sess.), c. 80, a. 119; 1996, c. 5, s. 9; 1999, c. 46, s. 2; 2002, c. 7, s. 16.

119.1. (Replaced).

1975, c. 83, s. 11; 1996, c. 5, s. 9.

DIVISION II SERVICE

119.2. Unless otherwise prescribed, acts, documents or notices the service of which is prescribed by law are served in accordance with the rules prescribed in this section.

1992, c. 57, s. 217.

§ 1 . — How service is made

120. Unless specifically otherwise provided, any sheriff or bailiff may make a service anywhere in Québec.

The taxable costs of service are the costs chargeable by a bailiff pursuant to the regulation made under section 13 of the Court Bailiffs Act (chapter H-4.1).

1965 (1st sess.), c. 80, a. 120; 1979, c. 37, s. 12; 1982, c. 32, s. 33; 1989, c. 6, s. 1; 1989, c. 57, s. 36; 1995, c. 41, s. 18.

121. A sheriff or bailiff cannot make service in matters in which he or she is interested, or in matters which concern his or her spouse or a relative by blood or by alliance, to the degree of cousin-german inclusively, under pain of suspension.

1965 (1st sess.), c. 80, a. 121; 2002, c. 6, s. 92.

122. In any place where, within a radius of 50 kilometres, there is neither sheriff nor bailiff able to act, service may be made by any person of legal age residing within that radius or by registered or certified mail; service made otherwise without sufficient reason gives no right to higher costs.

1965 (1st sess.), c. 80, a. 122; 1975, c. 83, s. 12; 1979, c. 37, s. 13.

123. Service of a motion to institute proceedings or of any other written proceeding is made by leaving a copy of the proceeding for the person for whom it is intended.

Personal service may be made by handing a copy of the proceeding to him in person, wherever he may be; domiciliary service may be made by leaving the copy at his domicile or residence, with a reasonable person residing therein.

Service may also be made at the domicile elected by the person for whom it is intended, or upon the person indicated by him.

If he has no known domicile or ordinary residence within Québec, service may be made by leaving a copy of the proceeding in a sealed envelope addressed to the person for whom it is intended at the person’s business establishment or place of work, speaking to a reasonable person in charge thereof.

If he is not represented by attorney, service of any written proceeding other than a proceeding to institute a suit may be made in accordance with article 140. If that person has no known domicile or ordinary residence within Québec, service may be made at the office of the court.

1965 (1st sess.), c. 80, a. 123; 1972, c. 70, s. 5; 1992, c. 57, s. 218; 1996, c. 5, s. 10; 1999, c. 40, s. 56; 1999, c. 46, s. 3; 2002, c. 7, s. 160.

124. The copy served must be certified by the party himself or his attorney or, where applicable, by one of the persons referred to in article 82.1, and the person making service must endorse thereon, over his signature, the date and hour of service.

1965 (1st sess.), c. 80, a. 124; 1993, c. 72, s. 4.

125. If the person concerned refuses to accept the copy of a proceeding, the person making service records the refusal on the original and personal service is deemed to have been made at the time of refusal.

The person making service must then leave the copy of the proceeding by any appropriate means.

1965 (1st sess.), c. 80, a. 125; 1975, c. 83, s. 13.

126. Service shall not be made in a place of public worship, or in court, or upon a member of the National Assembly upon the floor of the House.

1965 (1st sess.), c. 80, a. 126.

127. In all cases in which the parties reside together, any service for one upon the other must be personal, unless another mode of service is authorized under article 138.

1965 (1st sess.), c. 80, a. 127.

128. A proceeding addressed to several parties must be served upon each of them separately.

1965 (1st sess.), c. 80, a. 128.

129. Service upon a general or limited partnership may be made at its business establishment or, if it has none, upon one of the partners. Similarly, service upon an association within the meaning of the Civil Code may be made at its office or, if it has none, upon one of its directors.

1965 (1st sess.), c. 80, a. 129; 1992, c. 57, s. 219; 1999, c. 40, s. 56.

130. Service upon a legal person is made at its head office, at one of its establishments in Québec or at the establishment of its agent in the district where the cause of action has arisen, speaking to one of its senior officers or to a person in charge of the said establishment.

Failing such head office or establishment, service may be made upon one of its senior officers or upon any person mentioned as such in the register referred to in Chapter II of the Act respecting the legal publicity of enterprises (chapter P-44.1), or upon the attorney designated under that Act.

Service upon persons acting illegally as a legal person is made upon one of them, or at their principal business establishment.

1965 (1st sess.), c. 80, a. 130; 1975, c. 83, s. 14; 1981, c. 9, s. 24; 1982, c. 52, s. 114; 1992, c. 57, s. 220; 1993, c. 48, s. 216; 1999, c. 40, s. 56; 2010, c. 7, s. 195, s. 282.

131. (Repealed).

1965 (1st sess.), c. 80, a. 131; 1966, c. 21, s. 7.

132. Service upon a joint stock company, upon a legal person constituted otherwise than under the laws of Québec or of Canada, or upon the liquidator of the succession of a person who had property in Québec but was not domiciled therein, may be made at its or his office, speaking to a person employed therein, or anywhere upon its president or secretary or upon its or his agent.

1965 (1st sess.), c. 80, a. 132; 1992, c. 57, s. 221; 1999, c. 40, s. 56.

132.1. Service upon a trustee may be made at his domicile or residence, or at his business establishment by speaking to a person in charge.

1992, c. 57, s. 222; 1999, c. 40, s. 56.

133. Service upon the heirs and legatees by particular title summoned collectively in accordance with the first paragraph of article 116 is made at the last domicile of the deceased; if such domicile is not in Québec, or is closed or if no member of the deceased’s family is there, the service is made upon one of the heirs or legatees by particular title.

Service upon the heirs and legatees by particular title summoned collectively in accordance with the third paragraph of article 116 may, with the authorization of the judge or clerk, be made by public notice in the district in which the immovable in dispute is situated.

Service upon the liquidator of a succession is made at his domicile or residence, or at his business establishment, speaking to a person in charge of the office; if his domicile, residence and business establishment are unknown or located outside Québec, service is made upon one of the heirs.

1965 (1st sess.), c. 80, a. 133; 1992, c. 57, s. 223, s. 420; 1999, c. 40, s. 56.

134. Service upon a navigator or mariner, who has no known domicile or residence in Québec, may be made on board his ship, speaking to a member of the ship’s company.

1965 (1st sess.), c. 80, a. 134.

135. Persons imprisoned must be served personally.

1965 (1st sess.), c. 80, a. 135.

135.1. Any application relating to the integrity, status or capacity of a person 14 years of age or over must be served personally.

Where there is a risk that personal service may worsen the physical or psychological condition of the person concerned by the application, the judge may, on a motion and insofar as the initial application was served personally, authorize that service be effected by means of a sealed envelope, speaking to a reasonable person having custody of the person.

1992, c. 57, s. 224; 1998, c. 51, s. 1.

136. The Attorney General may, on request made to the Government through diplomatic channels, direct a bailiff to serve upon a person in Québec any proceeding issued by a tribunal foreign to Canada.

Such service is made by leaving for the party in the ordinary way a true copy of such proceeding, certified by an officer of the court by which such proceeding was issued. If such copy is not drawn in the French or English language, a certified translation thereof must be annexed thereto.

The return of service also is made in the ordinary way, but with mention where necessary of the fact that a translation was annexed to the copy served.

The capacity and signature of the serving officer must be attested by the clerk of the Superior Court of the district where he resides.

The Lieutenant-Governor may attest the signature of and the declaration by the clerk, and have the original proceeding with the return of service and the taxed bill of costs transmitted to the Secretary of State of Canada.

1965 (1st sess.), c. 80, a. 136; 1977, c. 5, s. 14; 1992, c. 57, s. 420.

137. Service upon a party domiciled or resident in another province of Canada may be made by any person of the age of majority, who must make a certificate of service.

1965 (1st sess.), c. 80, a. 137; 1983, c. 28, s. 1; 1992, c. 57, s. 225.

138. The judge or clerk may, on motion, if the circumstances so require, authorize a mode of service other than those provided by articles 120, 122, 123 and 130, particularly by public notice or by mail, unless such last mode is already authorized by the said articles.

The judge or clerk may also, upon inspecting the certificate of the person who has attempted to make the service, authorize him to serve the proceeding otherwise than in the manner provided in articles 123 and 130. The authorization must appear on the original of the certificate, which must then be filed in the office of the court. An entry of the authorization must be made on the copies of the written proceeding to be served. However, where the attempt to effect service was made by a bailiff or a sheriff and was recorded in his certificate, the bailiff or sheriff may, without authorization, serve the proceeding by leaving on the premises a copy of the written proceeding intended for the addressee.

Any authorization under this article may be obtained in the district of the place in which the written proceeding is served, if such district is not that in which the proceeding was issued.

1965 (1st sess.), c. 80, a. 138; 1966, c. 21, s. 8; 1975, c. 83, s. 15; 1983, c. 28, s. 2; 1992, c. 57, s. 420; 1997, c. 42, s. 4.

139. Service by public notice is made by publication of an order of the judge or clerk, calling upon the defendant to appear within 30 days or such other time as may be fixed, and informing him that a copy of the motion to institute proceedings has been left for him at the office of the court.

Unless the judge or the clerk decides otherwise, the order is published only once; the publication is made in a newspaper, designated by the judge or clerk, distributed in the locality of the last known address of the defendant or, if no newspaper is distributed in that locality, in the locality where he is required to appear.

If the circumstances so require, the judge may order the publication by any other appropriate means, in particular by letter, or by an advertisement on the radio or television; he shall then determine the mode of proof of publication.

The order is published in French but if the circumstances so require, the judge may order it published in English as well.

The same rules are followed, with any necessary modifications, for the service by public notice, when it is required, of any proceeding other than a motion to institute proceedings, and for the publication of the public notices of sale provided for in articles 594 and 670.

Service by one publication is complete and is deemed to have taken place on the date of such publication; in the other cases, service is complete only when all the prescribed publications have been made, but it is deemed to have been made on the date of the first publication.

1965 (1st sess.), c. 80, a. 139; 1977, c. 73, s. 5; 1992, c. 57, s. 226, s. 420; 1996, c. 5, s. 11; 1999, c. 40, s. 56; 2002, c. 7, s. 17.

140. Service by mail is made by mailing a copy of the proceeding by registered or certified mail to the party at the last known address of his residence or place of work.

Such service is deemed to have been made on the date when the acknowledgment of receipt presented by the postman at the time of delivery was signed by the party himself or by one of the persons mentioned in article 123.

1965 (1st sess.), c. 80, a. 140; 1975, c. 83, s. 16; 1999, c. 40, s. 56.

140.1. Service of a written proceeding, an exhibit or any other document on the attorney of a party may, without the authorization of the judge or clerk, be effected by transmitting to him a facsimile of the proceeding, exhibit or other document by fax machine.

1993, c. 72, s. 5.

§ 2 . — When Service may be made

141. No service may be made, under pain of penalty against the serving officer, before 7:00 a.m. or after 10:00 p.m., or on a non-juridical day, without the written authorization of the clerk obtained without formality and entered on the original and copies of the proceeding to be served.

Such authorization may be obtained in accordance with the third paragraph of article 138.

1965 (1st sess.), c. 80, a. 141; 1972, c. 70, s. 6; 1975, c. 83, s. 17; 1983, c. 28, s. 3; 1992, c. 57, s. 420.

142. Service upon the attorney of a party cannot be made on Saturday.

Service by fax machine upon the attorney of a party after 4:30 p.m. or on a Saturday is deemed to have been made on the following juridical day.

1965 (1st sess.), c. 80, a. 142; 1993, c. 72, s. 6.

143. The judge or clerk may order the plaintiff who delays having a motion to institute proceedings served to do so within the time fixed under pain of annulment of the motion to institute proceedings.

1965 (1st sess.), c. 80, a. 143; 1992, c. 57, s. 420; 1996, c. 5, s. 12; 2002, c. 7, s. 160.

§ 3 . — Proof of Service

144. The person who makes the service must draw up a certificate of service on the back of the original of the document served or on a separate paper attached thereto; in the latter case he must also write the number of the record and the names of the parties.

If he is not a sheriff or bailiff, his certificate must be sworn to.

1965 (1st sess.), c. 80, a. 144; 1983, c. 28, s. 4.

145. The certificate of a service made by a bailiff, sheriff, or other person authorized under article 122, must state:

(a)  His names, occupation and residence;

(b)  The place, day and hour of the service;

(c)  The person with whom a copy of the proceeding was left;

(d)  The distance from his residence to the place of service;

(e)  The amount of the costs of service.

1965 (1st sess.), c. 80, a. 145.

146. Service by public notice is proved by filing in the office of the court a copy of the page of the newspaper in which the notice has been published.

The return of service by mail is made by means of a sworn statement of the sender, attesting that he has fulfilled the formalities prescribed in article 140, to which is attached, for registered mail, the acknowledgment of receipt or, for certified mail, the notice of delivery.

1965 (1st sess.), c. 80, a. 146; 1975, c. 83, s. 18; 1977, c. 73, s. 6; 1983, c. 28, s. 5; 1992, c. 57, s. 227.

146.0.1. Service by fax machine may be proved by means of a transmission slip or, failing that, by means of an affidavit from the person who effected the service.

1993, c. 72, s. 7.

146.0.2. A written proceeding, exhibit or other document that is served by fax machine must be accompanied with a transmission slip setting out

(a)  the name, address and telephone number of the sender;

(b)  the name of the attorney to be served and the fax number of the receiving fax machine;

(c)  the date and time of transmission;

(d)  the total number of pages transmitted, including the transmission slip;

(e)  the fax number of the transmitting fax machine; and

(f)  the nature of the document.

1993, c. 72, s. 7.

DIVISION III NOTIFICATION

1992, c. 57, s. 228.

146.1. Notification may be made by delivering the original or a certified copy or abstract of the act, document or notice to the person to be notified and obtaining a receipt therefor.

1992, c. 57, s. 228.

146.2. Notification may also be made by sending the original, a certified copy or an abstract of the act, document or notice by registered or certified mail to the last known address of the residence or place of work of the person to be notified.

Notification is deemed to have been made on the date on which the acknowledgement of receipt presented by the postal employee at the time of delivery or, in the case of certified mail, the acknowledgement of delivery, is signed by the person to be notified or by one of the persons referred to in article 123.

1992, c. 57, s. 228; 1999, c. 40, s. 56.

146.3. Unless prescribed otherwise, notification of the original or of a copy or abstract of the act, document or notice may be made by regular mail or by any other means of communication where the context does not require the sender to obtain proof of sending.

1992, c. 57, s. 228.

CHAPTER II FILING OF MOTION TO INSTITUTE PROCEEDINGS

1994, c. 28, s. 5; 1996, c. 5, s. 13; 2002, c. 7, s. 160.

147. (Repealed).

1965 (1st sess.), c. 80, a. 147; 1994, c. 28, s. 6.

148. The original of the motion to institute proceedings and of the notice to the defendant and the return of service must be filed by the plaintiff at the office of the court at least 48 hours before the date fixed for presentation of the action or application or within the time limit prescribed by the rules of practice

Judgment cannot be rendered against a defendant who has not appeared or has not pleaded if the plaintiff has not filed in the office of the court the original of the motion to institute proceedings with proof of service.

1965 (1st sess.), c. 80, a. 148; 1992, c. 57, s. 229; 1996, c. 5, s. 14; 2002, c. 7, s. 18.

CHAPTER III APPEARANCE

149. The defendant must appear before the expiry of the time fixed, by filing in the office of the court a written appearance signed by him or his attorney.

1965 (1st sess.), c. 80, a. 149; 1983, c. 28, s. 6; 1985, c. 29, s. 7; 1992, c. 57, s. 230; 1999, c. 40, s. 56.

150. The defendant may appear even after expiry of the time fixed to appear if the inscription for judgment by the clerk or for proof and hearing before the court has not been filed in the record.

An inscription made prematurely or irregularly does not prevent the defendant from appearing and he is not required to apply for relief of his default.

1965 (1st sess.), c. 80, a. 150; 1992, c. 57, s. 231.

151. Notwithstanding the inscription, and failing the consent of the opposite party, the judge or the clerk may, at any time before judgment and on such conditions as he determines, give the defendant leave to appear.

1965 (1st sess.), c. 80, a. 151; 1992, c. 57, s. 232.

CHAPTER IV CASE MANAGEMENT

2002, c. 7, s. 19.

DIVISION I AGREEMENT BETWEEN PARTIES AS TO CONDUCT OF PROCEEDING

2002, c. 7, s. 19.

151.1. Before the date indicated in the notice to the defendant for presentation of the action or application, the parties, except impleaded parties, must negotiate an agreement as to the conduct of the proceeding, specifying the arrangements between them and the timetable with which they are to comply within the 180-day or, in family matters, the one-year peremptory time limit.

Any person impleaded in the motion to institute proceedings who wishes to take part in the negotiation of the agreement determining the proceeding timetable must notify the parties within five days of service of the motion. Otherwise, the person is presumed not to wish to do so.

The agreement must cover, among other things, the preliminary exceptions and safeguard measures, the procedure and time limit for the communication of exhibits, written statements in lieu of testimony and detailed affidavits, the number and length of and other conditions relating to examinations on discovery before the filing of the defence, expert appraisals, any planned or foreseeable incidental proceedings, the oral or written form of the defence and, in the case of a written defence, the time limit for its filing as well as the time limit for filing an answer, if one is to be filed. The agreement must be filed without delay at the office of the court, no later than the date fixed for presentation of the action or application.

2002, c. 7, s. 19; 2004, c. 14, s. 2.

151.2. The agreement is binding on the parties as to the conduct of the proceeding. The parties may modify the agreement, insofar as the modification does not contravene the 180-day or, in family matters, the one-year peremptory time limit. If there is a disagreement between the parties, the court may, on request, authorize any modification it considers appropriate.

2002, c. 7, s. 19; 2004, c. 14, s. 3.

151.3. The parties must comply with the timetable they have set under pain of the penalty prescribed by this Code or, in the absence thereof, of dismissal of the action or application, striking of the allegations involved or foreclosure, as appropriate. However, the judge may, on request, relieve a defaulting party from default if required in the interest of justice; the costs resulting from the default are borne by the party concerned, unless the judge decides otherwise.

2002, c. 7, s. 19.

DIVISION II PRESENTATION OF ACTION OR APPLICATION

2002, c. 7, s. 19.

151.4. The action or application is presented before the court on the date indicated in the notice to the defendant, unless an agreement was made by the parties before that date as to the conduct of the proceeding.

The date of presentation may not be less than 30 days from the date of service, except where mutually agreed by the parties or where otherwise prescribed by law or decided by the court in an urgent situation.

If the action or application is to be presented jointly, the date of presentation is set in agreement with the clerk.

2002, c. 7, s. 19.

151.5. Subject to article 159 and any agreement between the parties, all preliminary exceptions must be raised orally at the time of presentation of the action or application. The exceptions may only be contested orally, although the court may allow the parties to present the necessary evidence.

Moreover, the defendant must present an oral summary of the grounds of the defence.

2002, c. 7, s. 19.

151.6. At the time of presentation of the action or application, the court may, after examining the questions of law or fact at issue,

(1)  if the defence is to be oral and the parties are ready to proceed, hear the merits of the case, or otherwise determine the date of the hearing or order that the case be placed on the roll;

(2)  hear the contested preliminary exceptions, or defer the hearing of exceptions to a date determined by the court;

(3)  determine the number and length of and other conditions relating to examinations on discovery before the filing of the defence;

(4)  in the absence of an agreement filed by the parties at the office of the court, determine a timetable that will ensure the orderly progress of the proceeding;

(5)  determine how the conduct of the proceeding may be simplified or accelerated and the hearing shortened, by ruling among other things on the advisability of splitting the proceeding, better defining the questions at issue, amending the pleadings or admitting any fact or document, or invite the parties to a settlement conference or to recommend mediation;

(6)  authorize or order that the defence be made orally or in writing on the conditions determined by the court, where not permitted as of right;

(7)  dispose of specific requests made by the parties;

(8)  order service of the motion to institute proceedings on any person, identified by the court, whose rights may be affected by the judgment; and

(9)  authorize or order provisional measures.

2002, c. 7, s. 19.

151.7. The decisions made by the court are recorded in the minutes of the hearing and govern the parties as to the conduct of the proceeding and, where applicable, the hearing, unless the judge decides otherwise.

The parties must comply with the timetable determined by the court under pain of the penalty prescribed by this Code or, in the absence thereof, of dismissal of the action or application, striking of the allegations involved or foreclosure, as appropriate. However, the judge may, on request, relieve a defaulting party from default if required in the interest of justice; the costs resulting from the default are borne by the party concerned, unless the judge decides otherwise.

2002, c. 7, s. 19.

151.8. If the defendant does not attend the presentation of the action or application, the court records the default and hears the plaintiff, if the latter is ready to proceed; if not, the court fixes a new hearing date or orders that the case be placed on the roll and issues such orders as are necessary.

2002, c. 7, s. 19.

151.9. If the hearing is held on the same day, the parties prove their cases either by means of detailed affidavits, or by means of oral or documentary evidence, unless otherwise specified by law.

2002, c. 7, s. 19.

151.10. If, during the course of a proceeding, a transaction, a discontinuance of the action or a total acquiescence in the demand occurs, the parties must notify the clerk without delay.

2002, c. 7, s. 19.

DIVISION III SPECIAL CASE MANAGEMENT

2002, c. 7, s. 19.

151.11. Where required by the nature or complexity of the proceeding or in cases where the 180-day or, in family matters, the one-year peremptory time limit is extended, the chief judge or chief justice may, at any stage of the proceeding, on his or her own initiative or on request, order special case management. In that case, the chief judge or chief justice designates a judge to see to the orderly conduct of the proceeding.

2002, c. 7, s. 19; 2004, c. 14, s. 4.

151.12. The judge so designated convenes the parties and their attorneys to a case management conference so that they may negotiate an agreement as to the conduct of the proceeding, specifying the arrangements between them and determining the timetable with which they are to comply. If the parties fail to agree, the judge shall determine a timetable for the proceeding.

2002, c. 7, s. 19.

151.13. The judge disposes of all incidental proceedings and other applications during the course of the proceeding. The judge holds a pre-trial conference, where applicable, and issues any appropriate orders. The judge presides the hearing and renders judgment on the merits.

2002, c. 7, s. 19.

DIVISION IV SETTLEMENT CONFERENCE

2002, c. 7, s. 19.

151.14. A judge may preside a settlement conference. A judge enjoys judicial immunity while presiding such a conference.

2002, c. 7, s. 19.

151.15. At any stage of the proceeding, the chief justice or chief judge may, at the request of the parties, designate a judge to preside a settlement conference. In their request, the parties must present a summary of the questions at issue.

The chief justice or chief judge may, on his or her own initiative, recommend the holding of such a conference. If the parties consent, the chief justice or chief judge designates a judge to preside the conference.

2002, c. 7, s. 19.

151.16. The purpose of a settlement conference is to facilitate dialogue between the parties and help them to identify their interests, assess their positions, negotiate and explore mutually satisfactory solutions.

A settlement conference is held in private, at no cost to the parties and without formality.

2002, c. 7, s. 19.

151.17. A settlement conference is held in the presence of the parties, and, if the parties so wish, in the presence of their attorneys. With the consent of the parties, the presiding judge may meet with the parties separately. Other persons may also take part in the conference if the judge and the parties consider that their presence would be helpful in resolving the dispute.

2002, c. 7, s. 19.

151.18. In agreement with the parties, the judge defines the rules of the settlement conference and any measure to facilitate its conduct, and determines the schedule of meetings.

2002, c. 7, s. 19.

151.19. The settlement conference does not suspend the proceeding, but the judge presiding the conference may, if necessary, modify the timetable.

2002, c. 7, s. 19.

151.20. The parties must ensure that the persons who have authority to conclude an agreement are present at the settlement conference, or that they may be reached at all times to give their consent.

2002, c. 7, s. 19.

151.21. Anything said or written during a settlement conference is confidential.

2002, c. 7, s. 19.

151.22. If a settlement is reached, the judge homologates the transaction on request.

2002, c. 7, s. 19.

151.23. If no settlement is reached, the judge may not preside any subsequent hearing relating to the dispute.

With the consent of the parties, the judge may convert the settlement conference into a pre-trial conference.

2002, c. 7, s. 19.

TITLE II CONTESTATION OF THE ACTION

CHAPTER I DEMAND FOR SECURITY FOR COSTS

152. If article 65 applies to the plaintiff, the defendant may request, at the time of presentation of the motion to institute proceedings, that the plaintiff be required to give security, within the time determined by the court, for the costs that may be incurred in consequence of the action, on pain of dismissal of the action. The court determines the amount of the security on the basis of such factors as the nature and importance of the case and the costs associated with incidental proceedings, experts’ appraisals, the examination of witnesses out of court, the type of hearing and the length of the trial. Other factors to be considered are the value of the property held in Québec by, and the ability to pay of, the plaintiff or the mandator, if not a resident of Québec.

At the request of a party during the proceeding, the court may increase or reduce the amount of security if warranted by the development of the case or a change in the situation of the plaintiff.

1965 (1st sess.), c. 80, a. 152; 1992, c. 57, s. 420; 1999, c. 40, s. 56; 2002, c. 7, s. 20.

153. The defendant may request security for costs after the presentation of the motion to institute proceedings. In such a case, however, the court may award costs against the defendant in the amount it determines.

1965 (1st sess.), c. 80, a. 153; 1999, c. 40, s. 56; 2002, c. 7, s. 20.

154. (Replaced).

1965 (1st sess.), c. 80, a. 154; 1999, c. 40, s. 56; 2002, c. 7, s. 20.

CHAPTER II

Repealed, 1996, c. 5, s. 15.

1996, c. 5, s. 15.

155. (Repealed).

1965 (1st sess.), c. 80, a. 155; 1988, c. 21, s. 66; 1996, c. 5, s. 15.

156. (Repealed).

1965 (1st sess.), c. 80, a. 156; 1992, c. 57, s. 420; 1996, c. 5, s. 15.

157. (Repealed).

1965 (1st sess.), c. 80, a. 157; 1988, c. 21, s. 66; 1996, c. 5, s. 15.

158. (Repealed).

1965 (1st sess.), c. 80, a. 158; 1996, c. 5, s. 15.

CHAPTER III PRELIMINARY EXCEPTIONS

DIVISION I GENERAL PROVISIONS

159. Unless otherwise agreed by the parties in accordance with article 151.1, preliminary exceptions and the conclusions sought must be disclosed in writing to the opposite party before the date of presentation of the action or application, failing which the court may refuse the presentation of preliminary exceptions.

1965 (1st sess.), c. 80, a. 159; 2002, c. 7, s. 21.

160. (Replaced).

1965 (1st sess.), c. 80, a. 160; 2002, c. 7, s. 21.

161. (Replaced).

1965 (1st sess.), c. 80, a. 161; 1969, c. 80, s. 4; 1996, c. 5, s. 16; 2002, c. 7, s. 21.

162. (Replaced).

1965 (1st sess.), c. 80, a. 162; 1969, c. 80, s. 5; 1996, c. 5, s. 17; 1999, c. 40, s. 56; 2002, c. 7, s. 21.

DIVISION II DECLINATORY EXCEPTIONS

163. A defendant, summoned before a court other than that before which the suit should have been instituted, may ask that the suit be referred to the competent court within the legislative authority of Québec, or that the suit be dismissed if there is no such court.

1965 (1st sess.), c. 80, a. 163.

164. Lack of jurisdiction by reason of the subject matter may be raised at any stage of the case, and it may even be declared by the court of its own motion. The court adjudicates as to costs according to the circumstances.

1965 (1st sess.), c. 80, a. 164.

DIVISION III EXCEPTION TO DISMISS ACTION

165. The defendant may ask for the dismissal of the action if:

(1)  There is lis pendens or res judicata;

(2)  One of the parties is incapable or has not the necessary capacity;

(3)  The plaintiff has clearly no interest in the suit;

(4)  The suit is unfounded in law, even if the facts alleged are true.

1965 (1st sess.), c. 80, a. 165.

166. When it is possible to remedy the ground upon which the exception is based, the plaintiff may ask that he be granted a time to do so and that judgment be rendered upon the exception only upon the expiry of such time.

If the ground remains, the suit is dismissed; if it has been remedied, the exception is maintained for costs only.

1965 (1st sess.), c. 80, a. 166; 1999, c. 40, s. 56.

167. The dismissal of a suit for one of the grounds set forth in article 165 may be urged notwithstanding the failure to do so within the time limit; but if an exception made tardily results in the dismissal of the suit, the costs shall be the same as if the exception had been made within the time limit, unless the court otherwise orders.

1965 (1st sess.), c. 80, a. 167; 1999, c. 40, s. 56.

DIVISION IV DILATORY EXCEPTIONS

168. The defendant may ask that the suit be stayed for the time fixed by law or by the judgment granting his motion:

(1)  when the time allowed him to deliberate and exercise an option in a succession matter has not expired;

(2)  when he has the right to demand the discussion of the property of the principal or original debtor;

(3)  when he has the right to demand the execution by the plaintiff of some precedent obligation;

(4)  when he has the right to demand that the plaintiff declare his option between different recourses that he has joined, or that co-plaintiffs disjoin separate actions which they have joined;

(5)  when he wishes to implead a third party whose presence is necessary to permit a complete solution of the question involved in the action, or against whom he claims to have a recourse in warranty;

(6)  when the motion to institute proceedings is affected by some irregularity which he has an interest to have corrected;

(7)  when he has the right to obtain, in respect of any vague or ambiguous allegations of the demand, particulars necessary for the preparation of his defence;

(8)  when he has the right to require that an exhibit the plaintiff intends to refer to at the hearing be communicated to him by the plaintiff.

The defendant may also ask for the striking out of allegations which are immaterial, redundant or libellous.

1965 (1st sess.), c. 80, a. 168; 1992, c. 57, s. 233; 1994, c. 28, s. 7; 1999, c. 40, s. 56; 2002, c. 7, s. 22.

169. When the judgment granting a motion based upon one of the grounds set forth in article 168 orders the plaintiff to do something within the time fixed and the plaintiff fails to do so, the defendant may, as soon as the time has expired, obtain the dismissal of the demand or the striking out of the allegations involved.

1965 (1st sess.), c. 80, a. 169; 1999, c. 40, s. 56.

170. (Repealed).

1965 (1st sess.), c. 80, a. 170; 1999, c. 40, s. 56; 2002, c. 7, s. 23.

171. At any stage of the proceeding, the judge may authorize the impleading of a third party or oblige the plaintiff to choose between actions which cannot be joined, on such conditions as are determined by the judge.

1965 (1st sess.), c. 80, a. 171; 1999, c. 40, s. 56; 2002, c. 7, s. 24.

CHAPTER IV CONTESTATION ON THE MERITS

172. The defendant may plead by defence any ground of law or fact which shows that the conclusions of the demand cannot be granted in whole or in part.

He may also in the same proceeding constitute himself cross-plaintiff in order to urge against the plaintiff any claim arising from the same source as the principal demand, or from a related source. The court remains seized of the cross demand notwithstanding discontinuance of the principal demand.

1965 (1st sess.), c. 80, a. 172; 1972, c. 70, s. 7.

173. (Repealed).

1965 (1st sess.), c. 80, a. 173; 1969, c. 81, s. 4; 1996, c. 5, s. 18; 2002, c. 7, s. 25.

174. (Repealed).

1965 (1st sess.), c. 80, a. 174; 1999, c. 40, s. 56; 2002, c. 7, s. 25.

175. The declaration by a party that he submits to justice is not equivalent to a contestation of the suit or to an acquiescence in the pretensions of the opposite party.

1965 (1st sess.), c. 80, a. 175.

175.1. The defence is filed in writing, or presented orally. It is presented orally where so prescribed by this Code; it is filed in writing in all other cases, subject to the provisions of article 175.3.

2002, c. 7, s. 26.

175.2. The defence is presented orally if the subject matter of the action or application is

(1)  any of the following matters concerning natural persons:

(a)  physical integrity;

(b)  reputation and privacy, including suits for slander;

(c)  respect for the body after death;

(2)  any of the following matters concerning legal persons:

(a)  retroactive conferral of juridical personality;

(b)  the designation of a liquidator;

(c)  a disqualification from serving as a director or the lifting of such a disqualification;

(d)  an authorization to be obtained under article 341 of the Civil Code;

(3)  any of the following family, successions or property law matters:

(a)  any family matter except separation as to property, separation from bed and board, annulment of marriage, divorce, the determination of filiation and the surviving spouse’s compensatory allowance;

(b)  changes to a trust or to the property of a trust, termination of a trust, revocation or modification of a legacy or of a charge imposed on a donee;

(c)  building against a common wall;

(d)  the protection of the rights of a substitute;

(e)  the determination of boundaries;

(f)  divided co-ownership of an immovable;

(g)  partition of a succession or partition or administration of property held in indivision;

(4)  any of the following matters relating to obligations:

(a)  a claim relating to the sale price of movable property that has been delivered or the price of a contract for services that have been provided, a leasing contract or a contract of carriage, a claim relating to a contract of employment, of deposit or of loan of money or a claim relating to the remuneration of a mandatary, a surety or an office holder;

(b)  the price of a contract of enterprise, other than a contract pertaining to an immovable work, if the value of the subject matter of the dispute exceeds the jurisdictional limit of the Court of Québec;

(c)  rights and obligations under a lease;

(d)  the determination of the term of an obligation, the contestation of the distribution statement for the sale of an enterprise, the sufficiency of the surety’s property or of the security offered in a suretyship matter;

(e)  the determination of the seizable portion of an annuity under article 2378 of the Civil Code;

(f)  the awarding of additional damages for bodily injury;

(g)  a bill of exchange, cheque, promissory note or acknowledgement of debt;

(5)  any of the following matters relating to prior claims, hypothecs or the publication of rights:

(a)  any matter governed by Book Six of the Civil Code, including the exercise of hypothecary rights, and any matter relating to hypothecated property where the owner’s identity is unknown or uncertain;

(b)  registration or the correction, reduction or cancellation of a registration in the land register or the register of personal and movable real rights;

(6)  in private international law, the recognition and execution of a foreign judgment or of an arbitration award made outside Québec;

(7)  any of the following procedural matters:

(a)  an application for a determination on a question of law;

(b)  an application for a declaratory judgment;

(c)  the exercise of an extraordinary recourse; or

(8)  any of the following other matters:

(a)  a tax, contribution or assessment imposed by or under any provision of a statute of Québec;

(b)  any other matter covered by legislation other than the Civil Code for which the law does not impose a defence in writing.

2002, c. 7, s. 26.

175.3. Where a defence in writing is prescribed by law, the parties may by agreement opt for an oral defence or the court may authorize or order an oral defence if the court considers that this will not cause prejudice to the parties.

Where an oral defence is prescribed by law, the parties may by agreement opt for a defence in writing; in the absence of such an agreement, the court may authorize or order a defence in writing on such conditions as it determines if, in the opinion of the court, the absence of a writing may cause prejudice to a party.

2002, c. 7, s. 26.

176. (Repealed).

1965 (1st sess.), c. 80, a. 176; 1972, c. 70, s. 8; 1992, c. 57, s. 234; 2002, c. 7, s. 27.

177. (Repealed).

1965 (1st sess.), c. 80, a. 177; 1972, c. 70, s. 9; 1984, c. 26, s. 5.

178. (Repealed).

1965 (1st sess.), c. 80, a. 178; 1992, c. 57, s. 235.

179. (Repealed).

1965 (1st sess.), c. 80, a. 179; 1992, c. 57, s. 235.

180. (Repealed).

1965 (1st sess.), c. 80, a. 180; 1992, c. 57, s. 235.

180.1. (Repealed).

1989, c. 62, s. 3; 1992, c. 57, s. 235.

181. (Repealed).

1965 (1st sess.), c. 80, a. 181; 1992, c. 57, s. 235.

182. The plaintiff may file an answer within the time agreed or determined in the proceeding timetable.

1965 (1st sess.), c. 80, a. 182; 2002, c. 7, s. 28.

183. A party may allege in his defence or answer any material facts, even those which have arisen since the institution of the action, and may take any conclusions necessary to defeat a ground set up by the opposite party.

1965 (1st sess.), c. 80, a. 183.

184. A party may raise preliminary exceptions against a defence or an answer within the time agreed between the parties or, failing that, the time determined by the court, after having disclosed the exceptions in writing to the opposite party.

1965 (1st sess.), c. 80, a. 184; 2002, c. 7, s. 29.

185. After the expiry of the time allowed for filing a defence, the party against whom an inscription by default has been made can no longer do so, unless with the consent of the opposite party or the authorization of the judge in chambers or the clerk.

The same applies to a plaintiff who does not file his answer before the inscription for proof and hearing.

1965 (1st sess.), c. 80, a. 185; 1969, c. 81, s. 5; 1983, c. 28, s. 7; 1985, c. 29, s. 8; 1992, c. 57, s. 236.

186. The issues are joined:

(1)  by the demand, the defence and the answer;

(2)  (paragraph repealed);

(3)  by the demand and the defence, when the plaintiff has omitted to file an answer or has been foreclosed from so doing.

1965 (1st sess.), c. 80, a. 186; 2002, c. 7, s. 30.

CHAPTER V TENDER AND DEPOSIT

187. Tenders by a judicial declaration are made in the manner set out in the Civil Code.

1965 (1st sess.), c. 80, a. 187; 1992, c. 57, s. 237.

188. (Repealed).

1965 (1st sess.), c. 80, a. 188; 1992, c. 57, s. 238.

189. In an action, a party may make or renew a tender and demand record thereof, by a simple declaration in a pleading.

A tender of a sum of money or security must be completed by a deposit in the office of the court, unless the deposit has already been made in the general deposit office of Québec or with a trust company and the receipt therefor has been filed in the record.

1965 (1st sess.), c. 80, a. 189; 1992, c. 57, s. 239.

189.1. Where a tender of a sum of money or security is made to guarantee the performance of the obligation of the opposite party, the party making the tender may, instead of depositing the sum of money or security, entrust it to a trust company licensed under the Act respecting trust companies and savings companies (chapter S-29.01).

The trust company shall undertake to remit the sum of money or security to the opposite party upon proof of performance of the obligation. It shall also undertake to invest the sum by making deposits of money within the meaning of the Deposit Insurance Act (chapter A-26) and guaranteed under that Act, but not including term deposits not repayable at all times before maturity.

The receipt issued by the trust company and the writing attesting the undertakings made by the trust company under the second paragraph must be filed in the record of the court.

1987, c. 48, s. 1; 1987, c. 95, s. 402; 1992, c. 57, s. 240.

190. Unless the tender of money made in a suit is conditional, the opposite party is entitled to receive the sum of money or security deposited, without thereby prejudicing his claim to the remainder.

1965 (1st sess.), c. 80, a. 190; 1992, c. 57, s. 241.

191. The withdrawal of a sum of money or security deposited, and the expenses related to tender and deposit, are subject to the provisions of the Civil Code.

1965 (1st sess.), c. 80, a. 191; 1992, c. 57, s. 242.

TITLE III DEFAULT TO APPEAR AND DEFAULT TO PLEAD

192. If the defendant fails to appear within 10 days of service of the motion to institute proceedings, the plaintiff may inscribe the case for judgment by default or for proof and hearing before the court or the special clerk.

If the defendant fails to file a defence within the time limit agreed between the parties or determined by the court, the plaintiff may inscribe the case for judgment by the clerk or for proof and hearing before the court or the special clerk.

The court or the clerk may, of their own motion or on an application, order the cancellation of an inscription made prematurely or irregularly.

1965 (1st sess.), c. 80, a. 192; 1992, c. 57, s. 243; 2002, c. 7, s. 31.

193. At least two clear juridical days’ notice of the date on which the inscription will be presented must be given to the defendant foreclosed from pleading. No notice is necessary if the defendant has made default to appear.

1965 (1st sess.), c. 80, a. 193.

194. The only actions that may be inscribed for judgment before the clerk are those for a sum of money which are founded on:

(1)  an authentic deed or private writing;

(2)  a verbal agreement to pay a specific sum of money;

(3)  a detailed account pertaining to the sale price of a movable that has been delivered or the price of a contract for services that have been provided.

The inscription must be accompanied by an affidavit attesting that the amount claimed is owing by the defendant to the plaintiff.

The clerk renders judgment upon inspection of the affidavit and of the document upon which the action is based. The clerk may also validate any seizure before judgment made in the proceeding.

1965 (1st sess.), c. 80, a. 194; 1992, c. 57, s. 420; 2002, c. 7, s. 32.

195. An action not contemplated in article 194 is inscribed for proof and hearing before the court or, if it is not an application for separation from bed and board, marriage annulment or divorce or for the dissolution or annulment of a civil union or an application relating to filiation or parental authority, before the special clerk.

The proof and hearing are governed by the provisions of articles 280 to 331, except that a defendant foreclosed from pleading may not produce any witnesses.

1965 (1st sess.), c. 80, a. 195; 1972, c. 70, s. 10; 1977, c. 73, s. 7; 1982, c. 17, s. 11; 1992, c. 57, s. 244, s. 420; 2002, c. 6, s. 93.

196. When proof and hearing are necessary, and the defendant has made default to appear, the witnesses may be heard out of court; but if the defendant has appeared the witnesses can only be heard out of court with the permission of the court or the consent of the parties.

Notwithstanding the foregoing, the court cannot maintain an application for the annulment of a marriage or a civil union unless the plaintiff’s evidence has been given before the court.

The depositions must then by made by affidavits sufficiently detailed to establish all the necessary facts in support of the conclusions sought, or be taken by stenography or written down, before a person authorized to administer the oath, and be filed in the record, and shall have the same effect as if taken in open court.

1965 (1st sess.), c. 80, a. 196; 1982, c. 58, s. 20; 1986, c. 85, s. 1; 2002, c. 6, s. 94.

197. If there are several defendants and only one or some of them make default to appear or to plead, the plaintiff may proceed at once to judgment against those in default, by inscribing for judgment by the court, after giving notice to all who have appeared. However, if the court is of opinion that the case requires a uniform decision for all the defendants, whether by reason of the object of the demand or in order to avoid contradictory judgments, it shall not render judgment immediately but shall order that the action be decided by one judgment as regards all defendants.

1965 (1st sess.), c. 80, a. 197.

198. (Repealed).

1965 (1st sess.), c. 80, a. 198; 1983, c. 28, s. 8; 1992, c. 57, s. 245.

198.1. Where a proceeding introductive of suit was transmitted to a foreign state in order to be served in accordance with any mode of service acknowledged by the law of that state for the service of proceedings from abroad in its territory and it is proved that, despite reasonable efforts in applying to the proper authorities of that state to obtain a return of service, no such return was received within six months of the transmission of the application, the judge may render a judgment against a defendant who has not appeared or who has not pleaded.

1985, c. 29, s. 9.

TITLE IV INCIDENTAL PROCEEDINGS

CHAPTER I AMENDMENTS

199. At any time before judgment, the parties may amend their pleadings without leave and as often as necessary provided the amendment is not useless or contrary to the ends of justice and does not result in an entirely new action or application having no connection with the original one.

An amendment may be made, for instance, to modify, correct or complete allegations or conclusions, to invoke new facts or to assert a right accrued since service of the motion to institute proceedings.

1965 (1st sess.), c. 80, a. 199; 1996, c. 5, s. 19; 2002, c. 7, s. 33.

200. A party who amends a pleading must notify the amended pleading to the other parties and file a copy at the office of the court. The other parties have 10 days to express their opposition in writing, notify it to the other parties and file a copy at the office of the court.

If no opposition is filed, the amended pleading is accepted; if an opposition is filed, the party who intends to amend the pleading applies to the court for a determination.

The time allowed for answering an amended pleading is agreed between the parties or, failing that, determined by the court, and runs either from the date of notification of the amended pleading or from the date of the judgment authorizing the amendment, as the case may be.

1965 (1st sess.), c. 80, a. 200; 2002, c. 7, s. 33; 2002, c. 54, s. 2.

201. (Replaced).

1965 (1st sess.), c. 80, a. 201; 1999, c. 40, s. 56; 2002, c. 7, s. 33.

202. (Replaced).

1965 (1st sess.), c. 80, a. 202; 2002, c. 7, s. 33.

203. (Replaced).

1965 (1st sess.), c. 80, a. 203; 2002, c. 7, s. 33.

204. The court may, of its own motion, at any time before judgment and on such conditions as it deems just, order the immediate correction of any error of form, expression, calculation or writing in any written pleading.

1965 (1st sess.), c. 80, a. 204.

205. The court may, during the trial and in the presence of the opposite party, authorize an amendment upon an oral request; the decision must be noted in the minutes of trial and the amended pleading must be filed in the record as soon as possible, without service being necessary.

1965 (1st sess.), c. 80, a. 205; 2002, c. 7, s. 34.

206. When, by an amendment, a new defendant is joined in an action, he must be served with a copy of the motion to institute proceedings in the ordinary manner.

1965 (1st sess.), c. 80, a. 206; 1996, c. 5, s. 20; 2002, c. 7, s. 35.

207. The judge may, on such conditions as he considers just, allow the plaintiff to serve anew the motion to institute proceedings when the first service is irregular.

1965 (1st sess.), c. 80, a. 207; 1996, c. 5, s. 21; 2002, c. 7, s. 36.

CHAPTER II PARTICIPATION OF THIRD PARTIES IN THE ACTION

DIVISION I VOLUNTARY INTERVENTION

208. Any person interested in an action to which he is not a party, or whose presence is necessary to authorize, assist or represent a party who is incapable, may intervene therein at any time before judgment.

1965 (1st sess.), c. 80, a. 208.

209. Voluntary intervention is termed aggressive when the third party asks that he be acknowledged as having, against the parties or one of them, a right which is in dispute; it is termed conservatory when the third party only seeks to be substituted for one of the parties, in order to represent him, or to be joined with such party in order to assist him, either to aid his action or to support his pretensions.

1965 (1st sess.), c. 80, a. 209.

210. A third party who intends to intervene in a proceeding for conservatory or aggressive purposes must notify a declaration to all the parties, specifying the party’s interest in the case and the conclusions sought and stating the facts justifying such conclusions, and file a copy of the declaration at the office of the court; in addition, the third party’s declaration must propose an intervention procedure which must be consistent with any agreements between the parties and with the timetable agreed between them or determined by the court.

The parties have 10 days to express their opposition in writing, notify it to the parties and file a copy at the office of the court. If no opposition is filed, the third party’s interest is presumed sufficient and the intervention procedure accepted. If an opposition is filed, the third party shall apply to the court for a determination; if it authorizes the intervention, the court determines the intervention procedure.

An intervening party becomes a party to the proceeding.

1965 (1st sess.), c. 80, a. 210; 2002, c. 7, s. 37.

211. A third party may ask to intervene in order to make representations during the trial. The third party must inform the parties in writing of the purpose of and the grounds for the intervention. After hearing the parties, the court may authorize the intervention if it deems it expedient, having regard to the questions at issue.

1965 (1st sess.), c. 80, a. 211; 2002, c. 7, s. 37.

212. (Replaced).

1965 (1st sess.), c. 80, a. 212; 2002, c. 7, s. 37.

213. (Replaced).

1965 (1st sess.), c. 80, a. 213; 1999, c. 40, s. 56; 2002, c. 7, s. 37.

214. (Replaced).

1965 (1st sess.), c. 80, a. 214; 1984, c. 26, s. 6; 1994, c. 28, s. 8; 2002, c. 7, s. 37.

215. When the principal action and the intervention are heard at the same time, a single judgment decides them both.

1965 (1st sess.), c. 80, a. 215.

DIVISION II FORCED INTERVENTION OR JOINDER OF PARTIES

216. Any party to a case may implead a third party whose presence is necessary to permit a complete solution of the question involved in the action, or against whom he claims to exercise a recourse in warranty.

1965 (1st sess.), c. 80, a. 216.

217. Such forced intervention is effected by ordinary summons and the application must be filed with a copy of the motion to institute proceedings.

1965 (1st sess.), c. 80, a. 217; 1996, c. 5, s. 22; 2002, c. 7, s. 38.

218. (Repealed).

1965 (1st sess.), c. 80, a. 218; 1999, c. 40, s. 56; 2002, c. 7, s. 39.

219. A third party called in simple or personal warranty cannot take up the defence of the warrantee; he can merely contest the demand against the latter, if he thinks proper.

1965 (1st sess.), c. 80, a. 219.

220. A third party called in legal warranty may take up the defence of the warrantee, who may be relieved from the contestation if he so requires. Although relieved from the contestation, the warrantee may nevertheless act therein for the conservation of his rights.

Judgments rendered against the warrantor may, after being served on the warrantee, be executed against the latter.

1965 (1st sess.), c. 80, a. 220.

221. (Repealed).

1965 (1st sess.), c. 80, a. 221; 1999, c. 40, s. 56; 2002, c. 7, s. 40.

222. Unless the court decides otherwise, the principal action and the action in warranty must be heard jointly, and a single judgment decides them both.

The plaintiff in the principal action or any other party has an interest to make any useful application to ensure that the action in warranty does not cause undue delay in the principal action.

1965 (1st sess.), c. 80, a. 222; 1984, c. 26, s. 7; 1996, c. 5, s. 23.

CHAPTER III IMPROBATION

223. A party may, during the suit, demand that an authentic writing that he or the opposite party intends to avail himself of at the hearing or that has already been filed in the record be declared a forgery or to have been falsified.

Such incidental improbation may be begun at any time before judgment; but, after the closing of the proof, it can only be allowed if the party shows that he did not earlier become aware of the forgery.

1965 (1st sess.), c. 80, a. 223; 1994, c. 28, s. 9.

223.1. A party who intends to improbate a document must, before proceeding, issue a notice requiring the opposite party to declare whether or not that party intends to use the contested document.

If the opposite party does not respond within five days of receipt of the notice, or declares that the party does not intend to use the document, the document may not be produced at the hearing on the principal action or, if it is already filed, the document is removed from the record.

If the opposite party declares that the party intends to use the document, the motion in improbation must be disposed of by the court.

2002, c. 7, s. 41.

224. The motion must set out the grounds of improbation and is served on all parties and on the public officer who is in possession of the original of the document. The motion must be accompanied by an affidavit and a notice of presentation indicating the date on which the court will be asked to rule on the motion.

The motion must also be accompanied by a certificate of the clerk that there has been deposited in the office of the court an amount considered sufficient to cover the costs of the opposite party if the motion is dismissed.

1965 (1st sess.), c. 80, a. 224; 1992, c. 57, s. 420; 2002, c. 7, s. 42.

225. (Repealed).

1965 (1st sess.), c. 80, a. 225; 2002, c. 7, s. 43.

226. (Repealed).

1965 (1st sess.), c. 80, a. 226; 2002, c. 7, s. 43.

227. (Repealed).

1965 (1st sess.), c. 80, a. 227; 1994, c. 28, s. 10; 2002, c. 7, s. 43.

228. When the original of the impugned document has not already been filed in the record, the judge, at the request of one of the parties, may order the person who has custody of the document to deposit it in the office of the court within the time fixed, under all legal penalties.

1965 (1st sess.), c. 80, a. 228; 1999, c. 40, s. 56; 2002, c. 7, s. 44.

229. (Repealed).

1965 (1st sess.), c. 80, a. 229; 2002, c. 7, s. 45.

230. The judgment which decides the improbation determines, if necessary, to whom the document shall be handed over.

1965 (1st sess.), c. 80, a. 230.

231. (Repealed).

1965 (1st sess.), c. 80, a. 231; 2002, c. 7, s. 46.

CHAPTER IV CONTESTATION AND CORRECTION OF RETURNS

232. A party may ask that the return of a sheriff, bailiff or other court officer, or of any person authorized to make a return of service, be declared untrue or inaccurate.

1965 (1st sess.), c. 80, a. 232.

233. The court may grant leave to correct any error appearing in a return mentioned in article 232.

1965 (1st sess.), c. 80, a. 233.

CHAPTER V RECUSATION

234. A judge may be recused in particular:

(1)  If the judge is the spouse of or related or allied within the degree of cousin-german inclusively to one of the parties;

(2)  If the judge is himself or herself a party to an action involving a question similar to the one in dispute;

(3)  If the judge has given advice upon the matter in dispute, or has previously taken cognizance of it as an arbitrator, if the judge has acted as attorney for any of the parties, or if the judge has made known his or her opinion extra-judicially;

(4)  If the judge is directly interested in an action pending before a court in which any of the parties will be called to sit as judge;

(5)  If there is mortal enmity between him or her and any of the parties, or if the judge has made threats against any of the parties, since the institution of the action or within six months previous to the proposed recusation;

(6)  If the judge is the legal representative, the mandatary or the administrator of the property of a party to the suit, or if the judge is, in relation to one of the parties, a successor or a donee;

(7)  If the judge is a member of an association, partnership or legal person, or is manager or patron of some order or community which is a party to the suit;

(8)  If the judge has any interest in favouring any of the parties;

(9)  If the judge is the spouse of or is related or allied to the attorney or counsel or to the partner of any of them, either in the direct line, or in the collateral line in the second degree;

(10)  if there is reasonable cause to fear that the judge will not be impartial.

1965 (1st sess.), c. 80, a. 234; 1992, c. 57, s. 246; 2002, c. 6, s. 95; 2002, c. 7, s. 47.

235. A judge is disqualified if he or his spouse is interested in the action.

1965 (1st sess.), c. 80, a. 235; 1977, c. 73, s. 8; 2002, c. 6, s. 236.

236. A judge who is aware of a ground of recusation to which he or she is liable must, without waiting until it is invoked, declare it in a writing filed in the record and so inform the chief judge or chief justice. The latter designates another judge to continue the matter and informs the parties by means of a writing, which must also be filed in the record.

Likewise, a party who is aware of a ground of recusation against the judge must declare it without delay in a writing filed in the record and notify a copy to the judge and to the other parties.

1965 (1st sess.), c. 80, a. 236; 2002, c. 7, s. 48.

237. The recusation motion is proposed after notification by the clerk, to all the parties in the case, of a declaration made under article 236.

Failing such declaration, recusation may be proposed at any stage of the case, if the party shows that he has been diligent.

A recusation motion must be in writing if it is presented before the hearing, but may be presented orally during the course of the hearing, in which case the grounds for the motion are recorded in the minutes.

1965 (1st sess.), c. 80, a. 237; 1992, c. 57, s. 420; 2002, c. 7, s. 49.

238. A recusation motion is disposed of by the judge seized of the case. The judge’s decision is subject to appeal in accordance with the rules applicable to appeals from an interlocutory judgment.

1965 (1st sess.), c. 80, a. 238; 1999, c. 40, s. 56; 2002, c. 7, s. 50.

239. If recusation is proposed against the sole judge designated to preside over the court in the district where the case is pending, the clerk must forthwith inform the chief justice.

1965 (1st sess.), c. 80, a. 239; 1992, c. 57, s. 420.

240. The clerk must inform the chief judge or chief justice of any case the hearing of which is postponed because of the judge’s decision to recuse himself or herself.

1965 (1st sess.), c. 80, a. 240; 2002, c. 7, s. 51.

241. If the recusation is maintained, the recused judge must not be present during the proof and hearing of the case; if it is dismissed, the judge cannot refuse to sit.

1965 (1st sess.), c. 80, a. 241.

242. Except in the case mentioned in article 235, the parties may renounce in writing their right to recuse, but a judge who is subject to any ground of recusation may refuse to sit, even if recusation is not proposed.

1965 (1st sess.), c. 80, a. 242.

CHAPTER VI DISAVOWAL

243. A party may disavow an attorney who has exceeded his powers or who has acted for him without a mandate.

1965 (1st sess.), c. 80, a. 243.

244. A disavowal may be taken during the suit in accordance with the provisions of this chapter.

It may also be taken after judgment, by an ordinary action, which does not suspend the execution unless the judge so orders.

1965 (1st sess.), c. 80, a. 244.

245. A disavowal motion is served on the attorney disavowed and notified to all parties in the case.

1965 (1st sess.), c. 80, a. 245; 2002, c. 7, s. 52.

246. (Repealed).

1965 (1st sess.), c. 80, a. 246; 1992, c. 57, s. 247; 2002, c. 7, s. 53.

247. If the disavowal is maintained, the acts disavowed are annulled and the parties are placed in the same position as they were in when the acts were done.

1965 (1st sess.), c. 80, a. 247.

CHAPTER VII CHANGE OF ATTORNEYS

248. If, before the case is taken under advisement, the attorney of one of the parties dies, becomes unable to act or withdraws, no proceeding can be taken and no judgment rendered, under pain of nullity, before the party has appeared personally or appointed another attorney or, after being called upon to do so, has made default.

1965 (1st sess.), c. 80, a. 248.

249. An attorney who wishes to cease representing a party must, if the date of the hearing has yet to be determined, notify a declaration to the party concerned and to the opposite party and file a copy at the office of the court. The parties each have 10 days to express their opposition in writing, notify it to the other parties and file a copy at the office of the court.

If no opposition is filed, the declaration is accepted and the party is deemed from that moment to be no longer represented. If an opposition is filed, the attorney applies to the court.

If the date of the hearing has been determined, an attorney may not cease to represent a party without leave of the court.

1965 (1st sess.), c. 80, a. 249; 2002, c. 7, s. 54.

250. A party who is represented by an attorney is deemed to know of the suspension or death of the attorney of the opposite party, or of his appointment to a public office incompatible with the practice of his profession, without any notice being necessary.

1965 (1st sess.), c. 80, a. 250.

251. When one of the parties ceases to be represented before the case is taken under advisement, the opposite party must serve him with a notice to appoint another attorney or to file a written appearance on his own behalf.

If the party fails, within 10 days, to conform to the notice, the opposite party may, after inscription, proceed as in a case by default, if he is plaintiff, or ask for the dismissal of the action, saving the plaintiff’s recourse, if he is defendant.

1965 (1st sess.), c. 80, a. 251; 1992, c. 57, s. 248.

252. A party may not revoke the powers of his attorney unless he pays him his fees and disbursements, taxed after notice given.

A party who revokes the powers of his attorney must, without being notified to do so by the opposite party, immediately appoint another attorney or file a written appearance on his own behalf; in default of his so doing the case is proceeded with as provided in article 251.

1965 (1st sess.), c. 80, a. 252.

253. The substitution of one attorney for another must be authorized by the judge or clerk, if a party expresses his or her opposition in writing, notifies it to the other parties and files a copy at the office of the court.

1965 (1st sess.), c. 80, a. 253; 1969, c. 81, s. 6; 1992, c. 57, s. 420; 2002, c. 7, s. 55.

253.1. Where the parties bring an action by way of a joint suit and are represented by the same attorney, the court may adjourn the hearing of the action until each party has appeared in person or appointed a new attorney, if it considers that the action raises genuine problems and that, owing to the mode of representation, it will not be possible for justice to be done.

1982, c. 17, s. 12.

CHAPTER VIII CONTINUANCE OF SUIT

254. A case which has been taken under advisement cannot be retarded by the change of civil status of any of the parties, by the cessation of the functions within which he was acting, or by his death.

1965 (1st sess.), c. 80, a. 254.

255. An attorney who learns of the change of civil status or of the death of the party whom he is representing, or of the cessation of the functions within which such party was acting, is bound to notify the opposite party in writing.

1965 (1st sess.), c. 80, a. 255.

256. All proceedings taken before the service of the notice mentioned in article 255 are valid; those taken afterwards are null, and the suit is suspended until it is continued by those interested or until they have been called in to continue it.

1965 (1st sess.), c. 80, a. 256.

257. A suit may be continued:

(1)  by the heirs or representatives of a deceased party or the liquidator of the succession, or by the person who has acquired the right which is the subject of the suit;

(2)  by a person who, as a result of a change of status or capacity of one of the parties or of his loss of capacity, has acquired the capacity and the necessary interest to do so;

(3)  (paragraph repealed);

(4)  by the person who replaces a party whose functions have ceased.

1965 (1st sess.), c. 80, a. 257; 1972, c. 70, s. 11; 1982, c. 17, s. 13; 1992, c. 57, s. 249.

258. Continuance of suit is effected by filing in the office of the court and serving on all the parties in the case an appearance and an affidavit setting forth the facts which give rise to the continuance.

The right to continue the suit may, within 10 days of such appearance, be contested in the ordinary way; in default of such contestation, the continuance is held to be admitted.

1965 (1st sess.), c. 80, a. 258; 1992, c. 57, s. 250.

259. If the interested parties fail to continue the suit, the party remaining gives them formal notice to do so. If continuance of suit is not effected within 10 days of notification, the plaintiff may proceed by default or the defendant may request the dismissal of the action, unless an interested party is relieved from default by the court.

1965 (1st sess.), c. 80, a. 259; 2002, c. 7, s. 56.

260. (Replaced).

1965 (1st sess.), c. 80, a. 260; 2002, c. 7, s. 56.

261. (Replaced).

1965 (1st sess.), c. 80, a. 261; 2002, c. 7, s. 56.

CHAPTER IX DISCONTINUANCE

262. A party may at any time discontinue his suit or proceeding.

1965 (1st sess.), c. 80, a. 262.

263. Discontinuance is effected by a simple declaration signed by the party or his attorney, and presented at the trial or filed in the office of the court.

Unless made at the trial in the presence of the opposite party, the discontinuance has no effect against him until it has been served upon him.

1965 (1st sess.), c. 80, a. 263.

264. Discontinuance replaces matters in the state in which they would have been had the suit to which it applies not been commenced.

It involves the obligation to pay the costs occasioned by the suit, which costs are adjudged to the opposite party by the clerk, upon inscription.

1965 (1st sess.), c. 80, a. 264; 1992, c. 57, s. 420.

264.1. If one of the parties discontinues a joint suit, either of the parties may continue the suit alone. In that case, the motion to institute proceedings is amended and served on the opposite party and the suit is continued pursuant to the rules applicable to any suit.

2002, c. 7, s. 57.

CHAPTER X

Repealed, 2002, c. 7, s. 58.

2002, c. 7, s. 58.

265. (Repealed).

1965 (1st sess.), c. 80, a. 265; 1996, c. 5, s. 24; 2002, c. 7, s. 58.

266. (Repealed).

1965 (1st sess.), c. 80, a. 266; 2002, c. 7, s. 58.

267. (Repealed).

1965 (1st sess.), c. 80, a. 267; 1992, c. 57, s. 251; 2002, c. 7, s. 58.

268. (Repealed).

1965 (1st sess.), c. 80, a. 268; 2002, c. 7, s. 58.

269. (Repealed).

1965 (1st sess.), c. 80, a. 269; 1996, c. 5, s. 25; 2002, c. 7, s. 58.

CHAPTER XI JOINDER OF ACTIONS

270. Even where the claims do not originate from the same source or from related sources, two or more actions between the same parties, brought before the same jurisdiction, may be joined by order of the court, if it appears expedient to the court to hear them together and if it causes no undue delay for any of the actions or serious injury to any third person interested in any of the actions.

1965 (1st sess.), c. 80, a. 270; 1984, c. 26, s. 8; 1992, c. 57, s. 252; 1994, c. 28, s. 11; 2002, c. 7, s. 59.

271. The court may also order that several actions brought before it, whether or not involving the same parties, be tried at the same time and decided on the same evidence; it may also order that the evidence in one be used in another or that one be tried and decided first and the others meanwhile stayed.

1965 (1st sess.), c. 80, a. 271; 1984, c. 26, s. 9; 1994, c. 28, s. 12; 2002, c. 7, s. 60.

272. An order under article 270 or 271 may be issued at any stage of a proceeding, but it may be revoked by the trial judge if he is of opinion that it is in the interest of justice to do so. No appeal lies from such order or from the order revoking it.

1965 (1st sess.), c. 80, a. 272; 2002, c. 7, s. 61.

273. When the Superior Court and the Court of Québec are seized of actions having the same juridical basis or raising the same questions of law and fact, the Court of Québec must, if one of the parties so requests and no serious prejudice can result to the opposite party, suspend the hearing of the case before it until the judgment in the case before the Superior Court has become definitive.

An order by the Court of Québec suspending the hearing may be revoked if warranted by new circumstances.

1965 (1st sess.), c. 80, a. 273; 1988, c. 21, s. 66; 2002, c. 7, s. 62.

CHAPTER XII SPLITTING OF ACTION

1996, c. 5, s. 26; 2002, c. 7, s. 63.

273.1. The court may, on an application, split an action in any matter at any stage of the proceeding.

The resulting trials are held before the same judge, unless the chief judge or chief justice decides otherwise.

1996, c. 5, s. 26; 2002, c. 7, s. 63.

273.2. No appeal lies from the judgment on the application for the splitting of an action; the right to appeal judgments on the merits only arises upon the issue of the judgment terminating the proceedings.

1996, c. 5, s. 26; 2002, c. 7, s. 63.

TITLE V PROOF AND HEARING

CHAPTER I TRIAL BEFORE THE COURT

DIVISION I INSCRIPTION

274. If the defence is in writing, either party may, as soon as the issue is joined, inscribe the case for proof and hearing.

1965 (1st sess.), c. 80, a. 274; 1999, c. 46, s. 4; 2002, c. 7, s. 64.

274.1. The inscription form is filed together with a declaration containing the following information:

(1)  the names and addresses of the parties and, if they are represented by counsel, the names and addresses of their attorneys;

(2)  a list of the exhibits communicated to the other parties;

(3)  the expected length of the hearing; and

(4)  a list of witnesses, except where there is reasonable cause not to disclose their names.

2002, c. 7, s. 64.

274.2. The inscription and the declaration must be notified to the other parties.

Within 30 days of inscription, each of the other parties must file a declaration containing the same information and notify it to the other parties.

2002, c. 7, s. 64.

274.3. The inscription form must be filed at the office of the court within a peremptory time limit of 180 days or, in family matters, one year from service of the motion to institute proceedings, unless the court extends the time limit in accordance with article 110.1, in which case the inscription form must be filed before the expiry of the extended time limit, and make a reference to the extension order. A plaintiff who fails to inscribe within the time limit is deemed to have discontinued the action or application.

A cross-plaintiff is not required to inscribe the case. However, if the plaintiff in the principal action fails to inscribe the case within the time limit, the cross-plaintiff may do so within 30 days after the expiry of the time limit.

The clerk must refuse any inscription after expiry of the time limit.

2002, c. 7, s. 64; 2004, c. 14, s. 5.

275. The clerk keeps such rolls as are determined by the rules of practice of the court.

1965 (1st sess.), c. 80, a. 275; 1982, c. 17, s. 14; 1992, c. 57, s. 253; 2002, c. 7, s. 65.

275.1. (Repealed).

1994, c. 28, s. 13; 1999, c. 46, s. 5.

276. (Repealed).

1965 (1st sess.), c. 80, a. 276; 1972, c. 70, s. 12; 1984, c. 26, s. 10; 1994, c. 28, s. 14; 2002, c. 7, s. 66.

277. (Repealed).

1965 (1st sess.), c. 80, a. 277; 1994, c. 28, s. 15.

278. Subject to the rules of practice, the clerk sends to the parties and their attorneys a notice of the date fixed for proof and hearing at least 30 days and not more than 60 days before proof and hearing, unless the parties agree to a shorter period of time. Such notice is sent by mail or, if the circumstances require it, by any other means authorized by the Government.

The clerk files in the record a note of the sending of the notice to the parties, which establishes as presumption of its receipt by the party.

If a copy of the roll has been sent to the attorneys in accordance with the rules of practice, failure to receive the notice by the parties cannot stay proceedings.

1965 (1st sess.), c. 80, a. 278; 1972, c. 70, s. 13; 1975, c. 83, s. 19; 1983, c. 28, s. 9; 1992, c. 57, s. 420; 1999, c. 40, s. 56.

DIVISION II PRE-TRIAL

279. After a case has been inscribed or scheduled for proof and hearing, the judge assigned to hear it, or any other judge designated by the chief justice, if he believes it useful or if he is so requested, invites the attorneys to discuss appropriate means to simplify the suit and to shorten the hearing, including the advisability of amendments to the pleadings, of defining the questions of law and fact really in controversy, of admitting some fact or document and of providing the list of authorities they intend to submit. During the conference, the parties must provide access to the original of the exhibits that they have communicated and that they intend to refer to at the hearing.

The conference may also be called and presided over by a person designated by the chief justice who is a retired judge or an advocate with at least 10 years of practice. Years in which a person acquired relevant legal experience may be considered by the chief justice to be years of practice.

The agreements and decisions made at such conference are recorded in minutes signed by the attorneys and countersigned by the person who presided over the pre-trial and, as far as they go, govern the hearing before the trial judge, unless he permits a derogation therefrom to prevent an injustice.

1965 (1st sess.), c. 80, a. 279; 1984, c. 26, s. 11; 1994, c. 28, s. 16; 2002, c. 7, s. 67.

DIVISION III SUMMONING WITNESSES

280. The party who wishes a witness to testify may summon him by a writ of subpoena issued by a judge, clerk or advocate of the district where the case is to be heard or any other district and served at least 10 days before the appearance.

However, in cases of urgency, the judge or clerk may, by special order entered on the writ of subpoena, allow a shorter time for service, but it cannot be made less than 24 hours before the time fixed for appearance.

1965 (1st sess.), c. 80, a. 280; 1977, c. 5, s. 14; 1977, c. 73, s. 9; 1984, c. 46, s. 5; 1992, c. 57, s. 420; 1999, c. 40, s. 56; 2002, c. 7, s. 68.

281. A witness may be summoned to declare what he knows, to produce some document, or to do both.

The summons must specify the nature of the case, and invite the witness to contact the attorney whose coordinates appear on the summons.

A notary or a land surveyor may not be summoned for the sole purpose of depositing an authentic copy of an act executed en minute, except in the case of an improbation.

1965 (1st sess.), c. 80, a. 281; 2002, c. 7, s. 69.

281.1. A party who summons a witness must advance to the witness, for the first day of attendance at court, the loss of time indemnity and the travel, meal and overnight accommodation allowances prescribed by government regulation; the summons must contain clear information in this regard.

2002, c. 7, s. 70.

282. A person residing in the Province of Ontario may be compelled to appear as a witness, if the judge or the clerk is satisfied that his presence is necessary and if there is not another action between the same parties and for the same cause pending in the Province of Ontario.

Such summons, however, can only be made upon a special order of the judge or the clerk written on the writ of subpoena which must be served in conformity with the law of Ontario, by a person of full age, who must make a return thereof under oath.

1965 (1st sess), c. 80, a. 282; 1975, c. 83, s. 20; 1977, c. 73, s. 10; 1992, c. 57, s. 420.

283. A person in prison can only be summoned on an order from the judge or clerk commanding the director or gaoler, as the case may be, to bring him before the court to give evidence.

1965 (1st sess.), c. 80, a. 283; 1992, c. 57, s. 420; 2002, c. 24, s. 209.

284. When a person who has been duly summoned and to whom travelling expenses and, if applicable, a loss of time indemnity and meal and overnight accommodation allowances have been advanced fails to appear, the judge, if he is of the opinion that his evidence may be useful, may issue a warrant for his arrest and order that he be imprisoned until he has given evidence, or that he be released on giving good and sufficient security that he will remain at the disposition of the court. The warrant for his arrest issued under this article may be executed by a bailiff.

Examination of a witness detained in custody must begin without undue delay.

The judge may, in addition, condemn the person so arrested to pay, in whole or in part, the costs caused by his default.

A defaulting witness who resides in the Province of Ontario can only be punished by the court within whose jurisdiction he resides, upon a certificate of the court attesting his default.

1965 (1st sess.), c. 80, a. 284; 1972, c. 70, s. 14; 1977, c. 73, s. 11; 1990, c. 4, s. 223; 2002, c. 7, s. 71.

DIVISION IV ORDER OF TRIAL AND ADJOURNMENT

285. On the day of the trial, if a party does not produce any witnesses and does not justify the absence of those that he wished to have heard, his proof may be declared closed.

1965 (1st sess.), c. 80, a. 285.

286. If a party shows that he has been diligent and makes oath that the absent witness is necessary and that his absence is not due to any contrivance on his part, the case may be adjourned.

However, the opposite party may require him to declare under oath the facts that the defaulting witness would have stated, and may avoid the adjournment by admitting either the truth of such facts or merely that the witness would have so stated.

1965 (1st sess.), c. 80, a. 286.

287. When it is established that a witness, by reason of illness or infirmity, has not been able to attend the trial, the court may order that his evidence be taken by the clerk, if all parties are present or have been duly summoned.

1965 (1st sess.), c. 80, a. 287; 1992, c. 57, s. 420.

288. The court may always grant an adjournment of the case, on such conditions as it determines.

1965 (1st sess.), c. 80, a. 288.

289. The party upon whom the burden of proof lies must proceed first to the examination of his witnesses.

The opposite party then presents his evidence, after which the other party may adduce evidence in rebuttal.

The court may, in its discretion, allow the examination of other witnesses.

1965 (1st sess.), c. 80, a. 289.

290. The judge may, during the trial, order that the court go to the scene in order to make any observation which may assist in the determination of the case; and, for this purpose, he may make such orders as he considers necessary.

1965 (1st sess.), c. 80, a. 290.

291. At the conclusion of the evidence, the party upon whom the burden of proof lies addresses the court first; the opposite party follows; the other party replies, and if he raises a new point of law, his opponent may answer.

No other address can be made, unless with the permissions of the court.

1965 (1st sess.), c. 80, a. 291.

292. At any time before judgment, the presiding judge may draw the attention of the parties to any gap in the proof or in the proceedings and permit them to fill it, on such conditions as he may determine.

1965 (1st sess.), c. 80, a. 292.

DIVISION V EXAMINATION OF WITNESSES

293. (Repealed).

1965 (1st sess.), c. 80, a. 293; 1992, c. 57, s. 254.

294. Except where otherwise provided, in any contested case the witnesses are examined in open court, the opposite party being present or duly notified.

Any party may demand that the witnesses testify outside each other’s presence.

1965 (1st sess.), c. 80, a. 294.

294.1. The court may accept a written statement as testimony, provided the statement is communicated and filed in the record in accordance with the rules contained in this Title concerning the communication and filing of exhibits.

A party may demand that the party having communicated the statement summon the witness to the hearing, but costs in the amount determined by the court may be awarded against that party if, in the opinion of the court, the production of the written statement would have been sufficient.

1968, c. 84, s. 2; 1975, c. 83, s. 21; 1977, c. 73, s. 12; 1979, c. 45, s. 159; 1984, c. 26, s. 12; 1992, c. 57, s. 255; 1994, c. 28, s. 17; 1999, c. 46, s. 6; 2000, c. 12, s. 315; 2002, c. 7, s. 72.

295. All persons are competent to testify except those who, because of their physical or mental condition, are not in a fit state to report the facts of which they had knowledge, and any person competent to testify may be compelled to do so.

A spousal or family relationship, connection by marriage or a civil union and interest are objections only to the credibility of a witness.

1965 (1st sess.), c. 80, a. 295; 2002, c. 6, s. 96.

296. A person afflicted with an infirmity which renders him unable to speak, or to hear and speak, may take the oath and testify, either by writing under his hand, or by signs with the aid of an interpreter.

1965 (1st sess.), c. 80, a. 296; 1992, c. 57, s. 256.

297. The bailiff who served the summons cannot testify to any facts or admissions which came to his knowledge after his being charged with service of the summons, except in relation to the service itself.

1965 (1st sess.), c. 80, a. 297; 1996, c. 5, s. 27.

298. Before testifying, the witness must declare his name, age and residence.

1965 (1st sess.), c. 80, a. 298; 1986, c. 95, s. 63.

299. No person may testify, under the penalty of the nullity of his deposition, unless he swears that he will tell the truth.

In all cases, the court must see to it that the form of the oath, which consists in making the solemn affirmation to tell the truth, the whole truth and nothing but the truth, is read to the witness in such a way as to be well understood by him.

1965 (1st sess.), c. 80, a. 299; 1986, c. 95, s. 64; 1992, c. 57, s. 257.

300. (Repealed).

1965 (1st sess.), c. 80, a. 300; 1992, c. 57, s. 258.

301. (Repealed).

1965 (1st sess.), c. 80, a. 301; 1992, c. 57, s. 259.

302. Any person present at the trial may be required to testify and is bound to answer as if he had been regularly summoned.

1965 (1st sess.), c. 80, a. 302.

303. A witness who is present cannot refuse to testify under pretext that his travelling expenses have not been advanced to him.

1965 (1st sess.), c. 80, a. 303.

304. A refusal to take an oath constitutes a refusal to testify.

1965 (1st sess.), c. 80, a. 304; 1992, c. 57, s. 260.

305. To facilitate the examination of a witness, the judge may retain the services of an interpreter, whose remuneration forms part of the costs of the case.

However, the Minister of Justice assumes that remuneration in the judicial districts of Abitibi and Roberval, if one of the parties benefits by the agreement contemplated in the Act approving the Agreement concerning James Bay and Northern Québec (chapter C-67), and in the judicial district of Mingan, if one of the parties benefits by the agreement contemplated in the Act approving the Northeastern Québec Agreement (chapter C-67.1).

1965 (1st sess.), c. 80, a. 305; 1977, c. 73, s. 13; 1979, c. 37, s. 14; 1981, c. 14, s. 12.

306. The witness is examined by the party producing him or by his counsel. The questions must deal with the facts in issue only; they must not be put in such a way as to suggest the desired answer, unless the witness evidently attempts to elude a question or to favour another party, or unless, being himself a party to the suit, he has interests opposed to the party who is questioning him.

1965 (1st sess.), c. 80, a. 306.

307. A witness cannot be compelled to divulge any communication made to him or her by his or her spouse during their life together.

1965 (1st sess.), c. 80, a. 307; 2002, c. 6, s. 97.

308. Similarly, Government officials cannot be obliged to divulge what has been revealed to them in the exercise of their functions provided that the judge is of the opinion, for reasons set out in the affidavit of the Minister or deputy minister to whom the witness is answerable, that the disclosure would be contrary to public order.

1965 (1st sess.), c. 80, a. 308; 1975, c. 6, s. 96.

309. A witness cannot refuse to answer for the reason that his reply might tend to incriminate him or to expose him to a legal proceeding of any kind; but if he objects on that ground, his reply cannot be used against him in any penal proceedings instituted under any law of Québec.

1965 (1st sess.), c. 80, a. 309.

310. A party cannot impeach the credit of a witness produced by himself, but he may prove by others the contrary of what such witness has stated, or, by leave of the court, he may prove that at another time he has made statements inconsistent with his present testimony, provided, in the latter case, that the witness be first questioned upon the subject.

1965 (1st sess.), c. 80, a. 310.

311. A witness who has in his possession any document touching the matter in issue is bound to produce it on demand. Except in the case of an authentic writing, he must allow copies, extracts or reproductions to be made which, when certified by the clerk, have the same probative effect as the original.

1965 (1st sess.), c. 80, a. 311; 1992, c. 57, s. 420.

312. The court may order a party to exhibit before the court, or at any other convenient place and time, any real evidence in his possession which witnesses are called upon to identify; if the party fails to obey the order, the identity of the real evidence is deemed to be established against him, unless the court relieves him from his default before judgment is rendered.

A judge may also order a witness in possession of any real evidence connected with the litigation to produce it.

1965 (1st sess.), c. 80, a. 312; 1992, c. 57, s. 261; 1994, c. 28, s. 18.

313. A witness who, without valid reason, refuses to answer, is guilty of contempt of court, as is he who, having in his possession some real evidence connected with the litigation, refuses to produce it.

1965 (1st sess.), c. 80, a. 313; 1994, c. 28, s. 19.

314. When a party has ceased examining a witness he has produced, any other party with opposing interests may cross-examine such witness on all the facts in issue and may also establish in any manner whatever grounds he may have for objecting to such witness.

1965 (1st sess.), c. 80, a. 314.

315. A witness may be heard again by the party who produced him, either to be examined on new facts elicited by the cross-examination or to explain his answers to the questions put by another party.

1965 (1st sess.), c. 80, a. 315.

316. If the examination of a witness cannot be completed on the day he appears, he is bound to attend on the next following juridical day, or on such other day as is indicated to him by the court and entered in the minutes of trial. His default renders him liable to the same penalties as for refusing to attend upon the subpoena.

1965 (1st sess.), c. 80, a. 316.

317. A witness who withdraws without the permission of the court is subject to the same penalties as he who refuses to attend upon the subpoena.

1965 (1st sess.), c. 80, a. 317.

318. The judge may ask the witness any question he deems useful according to the rules of evidence.

1965 (1st sess.), c. 80, a. 318.

319. (Repealed).

1965 (1st sess.), c. 80, a. 319; 1992, c. 57, s. 262.

320. (Repealed).

1965 (1st sess.), c. 80, a. 320; 1992, c. 57, s. 262.

321. A writ of subpoena must indicate, in easily legible type, the right of the witness to require taxation for his costs and expenses according to the tariff fixed by the Government.

1965 (1st sess.), c. 80, a. 321; 1968, c. 84, s. 3; 1983, c. 28, s. 10.

322. A witness in favour of whom taxation has been made may execute for it, as under a judgment, against the party who summoned him.

1965 (1st sess.), c. 80, a. 322.

323. A party cannot recover the costs of more than five witnesses heard upon the same fact, unless the judge orders otherwise.

1965 (1st sess.), c. 80, a. 323.

DIVISION VI TAKING DEPOSITIONS OF WITNESSES

324. In any case susceptible of appeal pleno jure, the depositions are taken by stenography or recorded in such other manner as may be authorized by the Government.

In any other case susceptible of appeal, the judge may order that such depositions be taken by stenography or so recorded.

1965 (1st sess.), c. 80, a. 324; 1969, c. 80, s. 6.

325. The court may order that the stenographer’s notes be read to the witness and, if necessary, that they be corrected in open court.

The stenographer must read out his notes whenever the judge so requires.

1965 (1st sess.), c. 80, a. 325.

326. The stenographer’s notes are transcribed only when the judge so orders or in case of appeal; the cost of such transcription forms part of the costs of the case. In the first case, each party advances the cost of transcribing the depositions of his own witnesses; in the second case, all the costs of transcription are advanced by the appellant.

1965 (1st sess.), c. 80, a. 326.

327. The stenographer certifies under his oath of office the correctness of his notes and of their transcription.

At the commencement of each deposition, he must mention the name of the judge presiding at the trial, the designation of the parties, the names, age, occupation and residence of the witness, and the fact of his having been sworn.

1965 (1st sess.), c. 80, a. 327; 1999, c. 40, s. 56.

328. The stenographer must observe the rules of practice enacted to ensure the preservation of his notes.

1965 (1st sess.), c. 80, a. 328.

329. The judge may, with the consent of the parties, permit a deposition to be taken down in writing, either word for word or in summary; the deposition thus taken is read to the witness, who signs it if he acknowledges it to be correct.

1965 (1st sess.), c. 80, a. 329.

330. The person who takes down the depositions must note the objections of the parties, as well as the decisions thereon.

1965 (1st sess.), c. 80, a. 330.

331. The admissions made orally by the parties must be noted by the judge or clerk. Such notes, signed by the person who has taken them, are proof of their contents as if they had been signed by the parties themselves.

1965 (1st sess.), c. 80, a. 331; 1992, c. 57, s. 420; 1999, c. 40, s. 56.

CHAPTER I.1 EXHIBITS

1994, c. 28, s. 20.

DIVISION I COMMUNICATION OF EXHIBITS

1994, c. 28, s. 20.

331.1. A party who intends to refer at the hearing to an exhibit in his possession, whether the exhibit be real evidence or a document, including the whole or an abstract of testimony, an expert’s report or any other document referred to in articles 294.1, 398.1, 398.2, 399.2 and 402.1, must communicate it to any other party to the proceedings, in accordance with the provisions of this Section.

1994, c. 28, s. 20.

§ 1 . — General provisions

1994, c. 28, s. 20; 1996, c. 5, s. 28; 2002, c. 7, s. 73.

331.2. In proceedings introduced pursuant to article 110, exhibits must be disclosed to the other parties by means of a notice of disclosure.

Disclosure is not required if a copy of the exhibits is provided to the parties upon service of a pleading.

In the case of an exhibit in support of a pleading, the notice or the copy of the exhibit must be attached to the pleading being served.

1994, c. 28, s. 20; 1996, c. 5, s. 29; 2002, c. 7, s. 73.

331.3. The procedure and the time limit for communicating exhibits may be agreed between the parties in the proceeding timetable or determined by the court.

If the proceeding timetable does not set out the procedure or the time limit for communicating exhibits, a party having received a notice of disclosure may, in writing, request a copy of the exhibits. If the request is not complied with within 10 days after it is received, the party may apply to the court for satisfaction.

1994, c. 28, s. 20; 2002, c. 7, s. 73.

331.4. Except where otherwise provided in the proceeding timetable, upon inscribing a case for proof and hearing, a party who intends to refer at the hearing to an exhibit in his or her possession other than an exhibit in support of a pleading must communicate the exhibit to all other parties. The other parties must do likewise within 30 days after the inscription, failing which any exhibit they may wish to refer to may be filed only with the authorization of the court.

In the case of an oral defence and where the hearing is not held at the time of presentation of the motion to institute proceedings, any exhibit to which the first paragraph applies must be communicated within the time limit set forth in the proceeding timetable or determined by the court, failing which the exhibit may be filed only with the authorization of the court.

1994, c. 28, s. 20; 2002, c. 7, s. 73.

331.5. If, owing to the circumstances, a copy of an exhibit cannot reasonably be provided to a party having requested such a copy, the party in possession of the exhibit must give access thereto by other means. If the parties cannot agree, a judge may be requested to determine a communication procedure and, if appropriate, a time limit.

1994, c. 28, s. 20; 2002, c. 7, s. 73.

331.6. A party that intends to use real evidence at the hearing must give the other parties access to the evidence in accordance with the provisions of this Section, with the necessary modifications.

1994, c. 28, s. 20; 2002, c. 7, s. 73.

DIVISION II

Heading replaced, 2002, c. 7, s. 73.

1994, c. 28, s. 20; 2002, c. 7, s. 73.

331.7. If the defence is to be in writing, the parties must file their exhibits at the latest 15 days before the date of the proof and hearing.

If the defence is to be oral, the parties must file their exhibits at the latest three days before the date of the hearing.

In cases where the defendant is in default for failure to appear or to plead, the exhibits are filed upon inscription or, if there is no inscription, at the hearing.

1994, c. 28, s. 20; 2002, c. 7, s. 73.

§ 2 . — Special provisions applicable to certain proceedings and to applications presented during proceedings

2002, c. 7, s. 73.

331.8. In proceedings other than those introduced pursuant to article 110 and in the case of applications presented during the proceedings, the exhibits used by the plaintiff or applicant must be attached to the motion or application and those used by any other party must be filed as soon as possible before the presentation of the motion or application, failing which exhibits may be filed only with the authorization of the court.

In the case of real evidence, communication is effected by making the evidence accessible as soon as possible before the presentation of the motion or application.

Exhibits so communicated are filed at the hearing.

1994, c. 28, s. 20; 1996, c. 5, s. 30; 2002, c. 7, s. 73.

DIVISION III RETRIEVAL AND DESTRUCTION OF EXHIBITS

1994, c. 28, s. 20.

331.9. Once proceedings are terminated, the parties must retrieve the exhibits they have filed, failing which the exhibits are destroyed by the clerk one year after the date of the judgment or of the proceeding terminating the proceedings, unless the chief justice or chief judge decides otherwise.

Where a party, on whatever grounds, seeks a remedy against a judgment, the exhibits that have not been retrieved by the parties are destroyed by the clerk one year after the date of the final judgment or of the proceeding terminating the proceedings, unless the chief justice or chief judge decides otherwise.

The child support determination forms attached to the judgment under article 825.13 are excepted from the above rules.

1994, c. 28, s. 20; 2004, c. 5, s. 4; 2012, c. 20, s. 46.

332. (Repealed).

1965 (1st sess.), c. 80, a. 332; 1976, c. 9, s. 56.

333. (Repealed).

1965 (1st sess.), c. 80, a. 333; 1976, c. 9, s. 56.

334. (Repealed).

1965 (1st sess.), c. 80, a. 334; 1976, c. 9, s. 56.

335. (Repealed).

1965 (1st sess.), c. 80, a. 335; 1976, c. 9, s. 56.

336. (Repealed).

1965 (1st sess.), c. 80, a. 336; 1976, c. 9, s. 56.

337. (Repealed).

1965 (1st sess.), c. 80, a. 337; 1976, c. 9, s. 56.

338. (Repealed).

1965 (1st sess.), c. 80, a. 338; 1976, c. 9, s. 56.

339. (Repealed).

1965 (1st sess.), c. 80, a. 339; 1976, c. 9, s. 56.

340. (Repealed).

1965 (1st sess.), c. 80, a. 340; 1976, c. 9, s. 56.

341. (Repealed).

1965 (1st sess.), c. 80, a. 341; 1976, c. 9, s. 56.

342. (Repealed).

1965 (1st sess.), c. 80, a. 342; 1976, c. 9, s. 56.

343. (Repealed).

1965 (1st sess.), c. 80, a. 343; 1976, c. 9, s. 56.

344. (Repealed).

1965 (1st sess.), c. 80, a. 344; 1976, c. 9, s. 56.

345. (Repealed).

1965 (1st sess.), c. 80, a. 345; 1976, c. 9, s. 56.

346. (Repealed).

1965 (1st sess.), c. 80, a. 346; 1976, c. 9, s. 56.

347. (Repealed).

1965 (1st sess.), c. 80, a. 347; 1976, c. 9, s. 56.

348. (Repealed).

1965 (1st sess.), c. 80, a. 348; 1976, c. 9, s. 56.

349. (Repealed).

1965 (1st sess.), c. 80, a. 349; 1976, c. 9, s. 56.

350. (Repealed).

1965 (1st sess.), c. 80, a. 350; 1976, c. 9, s. 56.

351. (Repealed).

1965 (1st sess.), c. 80, a. 351; 1976, c. 9, s. 56.

352. (Repealed).

1965 (1st sess.), c. 80, a. 352; 1976, c. 9, s. 56.

353. (Repealed).

1965 (1st sess.), c. 80, a. 353; 1976, c. 9, s. 56.

354. (Repealed).

1965 (1st sess.), c. 80, a. 354; 1976, c. 9, s. 56.

355. (Repealed).

1965 (1st sess.), c. 80, a. 355; 1976, c. 9, s. 56.

356. (Repealed).

1965 (1st sess.), c. 80, a. 356; 1976, c. 9, s. 56.

357. (Repealed).

1965 (1st sess.), c. 80, a. 357; 1976, c. 9, s. 56.

358. (Repealed).

1965 (1st sess.), c. 80, a. 358; 1976, c. 9, s. 56.

359. (Repealed).

1965 (1st sess.), c. 80, a. 359; 1976, c. 9, s. 56.

360. (Repealed).

1965 (1st sess.), c. 80, a. 360; 1976, c. 9, s. 56.

361. (Repealed).

1965 (1st sess.), c. 80, a. 361; 1976, c. 9, s. 56.

362. (Repealed).

1965 (1st sess.), c. 80, a. 362; 1976, c. 9, s. 56.

363. (Repealed).

1965 (1st sess.), c. 80, a. 363; 1976, c. 9, s. 56.

364. (Repealed).

1965 (1st sess.), c. 80, a. 364; 1976, c. 9, s. 56.

365. (Repealed).

1965 (1st sess.), c. 80, a. 365; 1976, c. 9, s. 56.

366. (Repealed).

1965 (1st sess.), c. 80, a. 366; 1976, c. 9, s. 56.

367. (Repealed).

1965 (1st sess.), c. 80, a. 367; 1976, c. 9, s. 56.

368. (Repealed).

1965 (1st sess.), c. 80, a. 368; 1976, c. 9, s. 56.

369. (Repealed).

1965 (1st sess.), c. 80, a. 369; 1976, c. 9, s. 56.

370. (Repealed).

1965 (1st sess.), c. 80, a. 370; 1976, c. 9, s. 56.

371. (Repealed).

1965 (1st sess.), c. 80, a. 371; 1976, c. 9, s. 56.

372. (Repealed).

1965 (1st sess.), c. 80, a. 372; 1976, c. 9, s. 56.

373. (Repealed).

1965 (1st sess.), c. 80, a. 373; 1976, c. 9, s. 56.

374. (Repealed).

1965 (1st sess.), c. 80, a. 374; 1976, c. 9, s. 56.

375. (Repealed).

1965 (1st sess.), c. 80, a. 375; 1976, c. 9, s. 56.

376. (Repealed).

1965 (1st sess.), c. 80, a. 376; 1976, c. 9, s. 56.

377. (Repealed).

1965 (1st sess.), c. 80, a. 377; 1976, c. 9, s. 56.

378. (Repealed).

1965 (1st sess.), c. 80, a. 378; 1976, c. 9, s. 56.

379. (Repealed).

1965 (1st sess.), c. 80, a. 379; 1976, c. 9, s. 56.

380. (Repealed).

1965 (1st sess.), c. 80, a. 380; 1976, c. 9, s. 56.

381. (Repealed).

1965 (1st sess.), c. 80, a. 381; 1976, c. 9, s. 56.

CHAPTER II ARBITRATION BY ADVOCATES

382. The court may, at the request of the parties, refer a case to the decision of one or more arbitrators selected by them, who must be practising advocates or retired judges.

The demand for an arbitration must be signed by the parties themselves and must contain the names of the arbitrators, their consent to act and the amount of the remuneration that the parties undertake jointly and severally to pay to them.

1965 (1st sess.), c. 80, a. 382.

383. After having sworn faithfully to carry out their duties, the arbitrators must notify the parties of the day and hour when and the place where the case will be heard. Such notice must be given in writing between the fifteenth and the tenth day before that fixed for the hearing, unless the parties have otherwise agreed.

1965 (1st sess.), c. 80, a. 383.

384. The arbitrators may appoint someone to act as their clerk.

1965 (1st sess.), c. 80, a. 384.

385. The provisions of Sections III, IV, V, and VI of Chapter I of Title V of Book II, as to the summoning and examination of witnesses, the taking down of their evidence and the order of trial, apply to the trial before the arbitrators.

1965 (1st sess.), c. 80, a. 385.

386. The arbitrators must make their award in writing, in the form of a judgment of the court; if they are not unanimous, those who dissent must give their reasons for so doing.

1965 (1st sess.), c. 80, a. 386.

387. The award must, within 30 days of the judgment referring the case to arbitrators, be filed in the office of the court with all documents produced during the hearing, unless the judge has, for valid reason, granted an extension.

1965 (1st sess.), c. 80, a. 387; 1999, c. 40, s. 56.

388. The award has no effect unless homologated by the court, on motion of one of the parties.

The court, seized of such motion, cannot inquire into the merits of the case, but only into the grounds of nullity which may affect the award. If it finds that any formality which has been omitted may be remedied without injustice to the parties, it may make such order as it considers necessary under the circumstances.

1965 (1st sess.), c. 80, a. 388.

389. The award and the judgment of homologation are recorded by the clerk in the ordinary way.

1965 (1st sess.), c. 80, a. 389; 1992, c. 57, s. 420.

390. If the arbitrators delay in hearing the case or do not file their award within the time fixed, the court may either dismiss them and order that the case proceed in the ordinary way, but taking into account any evidence already heard, or make such other order as it considers appropriate; in either case the court adjudicates as to costs according to the circumstances.

1965 (1st sess.), c. 80, a. 390; 1999, c. 40, s. 56.

391. If for any reason which the court considers sufficient an arbitrator has ceased acting before the award is filed, the court may allot him a part of the agreed remuneration.

1965 (1st sess.), c. 80, a. 391.

392. The arbitrators must, in their award, adjudicate as to the costs, including their remuneration, taking into account the provisions of Chapter III of Title VII of Book II.

1965 (1st sess.), c. 80, a. 392.

393. The award, when homologated, may be appealed like any judgment of the Superior Court.

1965 (1st sess.), c. 80, a. 393.

394. The provisions of this chapter do not apply when the parties do not have the power to transact or when some matter of public interest is involved; nor do they apply to applications relating to filiation or to parental authority, to applications for separation from bed and board, marriage annulment or divorce or for the dissolution or annulment of a civil union, for dissolution of legal persons or to annul letters patent.

1965 (1st sess.), c. 80, a. 394; 1982, c. 17, s. 15; 1992, c. 57, s. 263; 1999, c. 40, s. 56; 2002, c. 6, s. 98.

CHAPTER II.1 REPRESENTATION AND HEARING OF A MINOR OR AN INCAPABLE PERSON OF FULL AGE

1992, c. 57, s. 264.

394.1. Where, in a proceeding, the court ascertains that the interest of a minor or of a person of full age it considers incapable is at stake and that it is necessary for the safeguard of his interest that the minor or incapable person of full age be represented, it may, even of its own motion, adjourn the hearing of the application until an attorney is appointed to represent him.

The court may also make any order necessary to ensure such representation, in particular, rule on the fees payable to the attorney and determine who will be responsible for their payment.

1992, c. 57, s. 264.

394.2. To ensure proper representation of a minor or incapable person of full age, the court must, even of its own motion, in all cases where the interest of the minor or incapable person of full age is opposed to the interest of his legal representative, appoint a tutor or curator ad hoc.

1992, c. 57, s. 264.

394.3. Where the court hears a minor or a person of full age it considers incapable, he may be accompanied by a person capable of assisting or reassuring him.

1992, c. 57, s. 264.

394.4. Where the interest of a minor or incapable person of full age requires it, the court may, after advising the parties, examine him out of the presence of the parties.

The deposition is taken down in stenography or recorded, unless waived by the parties. The minutes of the deposition, a transcript of the stenographer’s notes or a copy of the recording is sent to the parties on request.

1992, c. 57, s. 264.

394.5. Where the interest of a minor or of a person of full age it considers incapable requires it, the court may, after so advising all the parties, hear him where he resides or is confined, or in any other place the court considers appropriate.

1992, c. 57, s. 264.

CHAPTER III SPECIAL PROCEEDINGS RELATING TO PRODUCTION OF EVIDENCE

DIVISION I GENERAL PROVISIONS

395. The provisions of Sections III, V and VI of Chapter I and the provisions of Chapter II.1 of this Title govern, in so far as applicable, the cases covered in this chapter.

The provisions of this chapter also apply, with the necessary modifications, to cases in which the defence is presented orally.

If any dispute arises during an examination of a witness not before a judge, it must be submitted as soon as possible to a judge for his decision, unless the parties agree to continue the examination under reserve of the objection, which is later decided by the trial judge.

1965 (1st sess.), c. 80, a. 395; 1992, c. 57, s. 265; 2002, c. 7, s. 74.

396. Subject to article 398.1, the depositions taken by virtue of this chapter form part of the record.

If the witness is in Québec and can be produced at the trial, he may be examined again, if any party so requires.

1965 (1st sess.), c. 80, a. 396; 1983, c. 28, s. 11.

DIVISION II EXAMINATION ON DISCOVERY, MEDICAL EXAMINATION AND PRODUCTION OF DOCUMENTS

§ 1 . — Examination on Discovery

396.1. No examination on discovery is permitted where the amount claimed or the value of the property claimed is less than $25,000.

2002, c. 7, s. 75.

396.2. Examinations on discovery, whether before or after the filing of the defence, may only be held in accordance with the terms provided in the agreement between the parties or determined by the court, particularly as far as their number and length are concerned.

2002, c. 7, s. 75.

396.3. Before an examination on discovery is held, the parties may, by mutual consent, submit any foreseeable objection to the judge for a determination.

2002, c. 7, s. 75.

396.4. The court may, on an application, terminate an examination that it considers excessive, vexatious or useless, and rule on the costs.

2002, c. 7, s. 75.

397. The defendant may, before the filing of the defence and after two days’ notice to the attorneys of the other parties, summon to be examined before the judge or clerk upon all facts relating to the issues between the parties or to give communication and allow copy to be made of any document relating to the issues:

(1)  the plaintiff, or his representative, agent or employee;

(2)  in any civil liability action, the victim, and any person involved in the commission of the act which caused the injury;

(3)  the person for whom the plaintiff claims as tutor or curator, or for whom he acts as prête-nom, or whose rights he has acquired by transfer, subrogation or other similar title;

(4)  with the permission of the court and on such conditions as it may determine, any other person.

1965 (1st sess.), c. 80, a. 397; 1966, c. 21, s. 9; 1969, c. 81, s. 7; 1983, c. 28, s. 12; 1984, c. 26, s. 13; 1992, c. 57, s. 420; 1999, c. 40, s. 56; 2002, c. 7, s. 76.

398. After defence filed, any party may, after two days’ notice to the attorneys of the other parties, summon to be examined before the judge or clerk upon all facts relating to the issues between the parties or to give communication and allow copy to be made of any document relating to the issue:

(1)  any other party, or his representative, agent or employee;

(2)  any person mentioned in paragraphs 2 and 3 of article 397;

(3)  with the permission of the court and on such conditions as it may determine, any other person.

The defendant cannot, however, without permission of the judge or, in the case referred to in subparagraph 3 of the first paragraph, the court, examine under this article any person whom he has already examined under article 397.

1965 (1st sess.), c. 80, a. 398; 1983, c. 28, s. 13; 1984, c. 26, s. 14; 1992, c. 57, s. 420; 1999, c. 40, s. 56; 2002, c. 7, s. 77.

398.1. A party having examined witnesses under article 397 or 398 may introduce as evidence the whole or abstracts only of the depositions taken, provided they have been communicated and filed in the record in accordance with the provisions of Section I of Chapter I.1 of this Title.

However, on the motion of any other party, the court may order any abstract of the deposition which, in its opinion, cannot be dissociated from the abstracts already filed, to be added to the record.

1983, c. 28, s. 14; 1984, c. 26, s. 15; 1994, c. 28, s. 21; 2002, c. 7, s. 78.

398.2. Article 398.1 applies also in the case of an examination made under article 93, except an examination concerning a detailed affidavit filed in a family matter. However, in the case of a motion other than a motion to institute proceedings, the whole or the abstracts of the depositions that one of the parties intends to file must be served on the other parties at least 10 days before the date of the hearing unless the court decides otherwise.

1984, c. 26, s. 16; 1994, c. 28, s. 22; 1999, c. 46, s. 7.

§ 2 . — Medical Examination

399. In any case susceptible of appeal, when there is in issue the physical or mental condition of any party or of the person who suffered the injury which has given rise to the action, a party may summon at his expense such person by writ of subpoena to have a medical examination. Such writ must indicate the place where, and the day and hour when the person summoned must attend and the names of the experts entrusted with making the examination; it must be served at least 10 days before the date fixed for the examination, with a notice to the attorney of the person summoned.

If the person examined so wishes, experts chosen by him may attend such examination.

The judge may however, on motion, for reasons considered valid, quash a writ issued under this article or amend its content.

1965 (1st sess.), c. 80, a. 399; 1969, c. 81, s. 8; 1972, c. 70, s. 15; 1992, c. 57, s. 266.

399.1. When a person has a medical examination in accordance with article 399, the judge may, on motion, order such person to have another medical examination by one or more experts designated by the applicant, at his expense.

The examination is held on the date, at the place and under the conditions determined in the judgment which orders it, and, if the person examined so wishes, in the presence of experts chosen by him.

1972, c. 70, s. 15.

399.2. Notwithstanding the provisions contained in Section I of Chapter I.1 of this Title that pertain to the communication of exhibits, in the case of a motion other than a motion to institute proceedings, a copy of the reports must be served on the parties at least 10 days before the date of the hearing, unless the court decides otherwise.

1984, c. 26, s. 17; 1994, c. 28, s. 23.

400. The court may order an establishment governed by the Acts respecting health services and social services to allow a party to examine and make a copy of the medical record of the person examined or a person whose death has given rise to an action in civil liability.

1965 (1st sess.), c. 80, a. 400; 1972, c. 70, s. 16; 1992, c. 57, s. 267.

§ 3 . — Production of Documents

401. (Repealed).

1965 (1st sess.), c. 80, a. 401; 1983, c. 28, s. 15.

402. If, after defence filed, it appears from the record that a document relating to the issues between the parties is in the possession of a third party, he may, upon summons authorized by the court, be ordered to give communication of it to the parties, unless he shows cause why he should not do so.

The court may also, at any time after defence filed, order a party or a third person having in his possession any real evidence relating to the issues between the parties to exhibit it, preserve it or submit it to an expert’s appraisal on such conditions, at such time and place and in such manner as it deems expedient.

1965 (1st sess.), c. 80, a. 402; 1992, c. 57, s. 268; 1994, c. 28, s. 24.

402.1. Except with leave of the court, no expert witness may be heard unless his written report has been communicated and filed in the record in accordance with the provisions of Sections I and II of Chapter I.1 of this Title. However, in the case of a motion other than a motion to institute proceedings, a copy of the report must be served on the parties at least 10 days before the date of the hearing, unless the court decides otherwise.

The filing in the record of the whole or abstracts only of the out of court testimony of an expert witness may stand in lieu of his written report.

1972, c. 70, s. 17; 1975, c. 83, s. 22; 1984, c. 26, s. 18; 1994, c. 28, s. 25.

403. After the filing of the defence, a party may, by notice in writing, call upon the opposite party to admit the genuineness or correctness of an exhibit. A copy of the exhibit must be attached to the notice, except where the exhibit has already been communicated or in the case of real evidence; in the case of real evidence, the exhibit shall be put at the disposal of the opposite party.

The genuineness or correctness of the exhibit is deemed admitted unless, within 10 days or such time as the judge may fix, the party called upon to admit its genuineness or correctness serves on the other party a sworn statement denying that the exhibit is genuine or correct, or specifying the reasons why he cannot so admit. However, if the ends of justice so require, the court may, before judgment is rendered, relieve the party of his default.

The unjustified refusal to admit the genuineness or correctness of an exhibit may result in a condemnation to the costs resulting therefrom.

1965 (1st sess.), c. 80, a. 403; 1992, c. 57, s. 269; 1994, c. 28, s. 26.

DIVISION III EXAMINATION OF WITNESSES OUT OF COURT

404. At any stage of the case, the parties may agree, or the court, if it sees fit to do so, may permit that a witness be heard out of court, provided that all the parties are present or duly summoned.

Depositions must in that case be made by way of affidavits sufficiently detailed to establish all the facts necessary to support the conclusions sought or be taken down by stenography or in handwriting before a person authorized to administer oaths and be filed in the record to have the same force and effect as if they had been taken at the hearing.

Notwithstanding the foregoing, the court cannot maintain an application for the annulment of a marriage or a civil union nor, where the defendant has filed a defence, an application for separation from bed and board or divorce or for the dissolution of a civil union unless the evidence of the plaintiff has been given before the court.

1965 (1st sess.), c. 80, a. 404; 1968, c. 84, s. 4; 1982, c. 17, s. 16; 1986, c. 85, s. 2; 1988, c. 17, s. 3; 2002, c. 6, s. 99.

DIVISION IV INTERROGATORIES UPON ARTICULATED FACTS

405. After the filing of the defence or the filing of the inscription in the case of default to appear or to plead, the parties may be examined upon all articulated facts.

1965 (1st sess.), c. 80, a. 405; 1992, c. 57, s. 271.

406. Parties are summoned to answer the interrogatories upon articulated facts by means of an order of the clerk, obtained upon oral request, which requires the party to appear in person before the court, the judge or the clerk, to answer under oath the interrogatories which are annexed to the order.

1965 (1st sess.), c. 80, a. 406; 1992, c. 57, s. 420; 1996, c. 5, s. 31.

407. The order to appear and the interrogatories shall be served upon the party personally or at his residence and copies of both are left with his attorney.

1965 (1st sess.), c. 80, a. 407.

408. If the party cannot be served or does not reside within the jurisdiction of the court, the order may be served upon him at the office of his attorney or, if he has no attorney, in the manner determined by the judge.

The attorney who is thus served may apply to have time granted to the party to appear; he may also, if he declares the place where the party is, ask that he be examined before the clerk of the district where he is, or under a rogatory commission.

1965 (1st sess.), c. 80, a. 408; 1992, c. 57, s. 420; 1996, c. 5, s. 32; 1999, c. 40, s. 56.

409. When the order and interrogatories are served upon a legal person, general or limited partnership or an association within the meaning of the Civil Code, the answers may be either given by any person who holds a general or special authorization for that purpose, or determined by a special resolution and filed in the record by a person authorized.

1965 (1st sess.), c. 80, a. 409; 1992, c. 57, s. 273.

410. The interrogatories must be clear and precise, so that the absence of an answer can be taken as an admission of the facts mentioned therein.

1965 (1st sess.), c. 80, a. 410.

411. The default of the party to appear or to answer the interrogatories put to him is recorded against him, and the facts covered by the interrogatories are then held to be proved.

The court may nevertheless require additional evidence. It may also, for cause shown and upon such conditions as it thinks fit, relieve the party of his default and allow him to answer the interrogatories.

1965 (1st sess.), c. 80, a. 411; 1983, c. 28, s. 16.

412. The answers to the interrogatories are taken down in writing and signed by the party; they must be direct, categorical and precise, failing which they may be rejected and the facts covered by the interrogatories held to be proved.

1965 (1st sess.), c. 80, a. 412.

413. The judge, or the person before whom the party is summoned to appear, may put any other interrogatories he may deem necessary and pertinent, which the party must answer, failing which the facts covered by such interrogatories are also held to be proved.

This article does not apply when the party summoned is a legal person and its answers have been determined by a special resolution.

1965 (1st sess.), c. 80, a. 413; 1992, c. 57, s. 274.

DIVISION V PROOF BEFORE EXPERTS AND REFERENCES TO AUDITORS AND PRACTITIONERS

§ 1 . — General Provisions

413.1. Where the parties have each communicated an expert’s report and the reports are contradictory, the court may, at any stage of the proceeding, even on its own initiative, order the experts concerned to meet, in the presence of the parties and attorneys who wish to attend, and reconcile their opinions, identify the points which divide them and report to the court and to the parties within the time determined by the court.

2002, c. 7, s. 79.

414. After issue joined, the court, if it is of opinion that the ends of justice will be better attained, may, even of its own motion:

(1)  order that any fact relating to the case be investigated, verified and determined by an expert whom it designates;

(2)  refer to an accountant or practitioner the establishing or auditing of accounts or figures in any matter where accounts have to be rendered or settled and which require calculations to be made, or involve a partition of property.

1965 (1st sess.), c. 80, a. 414.

415. The court may, exceptionally, if in its opinion the difficulty and importance of the case so require, appoint three experts, or three accountants or practitioners, rather than only one.

1965 (1st sess.), c. 80, a. 415.

§ 2 . — Experts

416. The judgment appointing an expert must state clearly the duties of the person appointed and the time within which he must file his report.

The clerk must, without delay, send to the person appointed a copy of the judgment.

1965 (1st sess.), c. 80, a. 416; 1992, c. 57, s. 420; 1999, c. 40, s. 56.

417. The grounds for recusing an expert are the same as those provided for judges in article 234.

Recusation is urged by motion, and if it is held to be well founded the court replaces the person recused.

1965 (1st sess.), c. 80, a. 417.

418. The expert, before entering upon his functions, must be sworn in writing before the judge or clerk to perform his duties faithfully and impartially. If he refuses or neglects to be sworn or to carry out his duties, any of the parties may request the court to replace him.

1965 (1st sess.), c. 80, a. 418; 1992, c. 57, s. 420.

419. The expert must give the parties at least five days’ notice of the time and place at which he will begin to carry out his instructions.

1965 (1st sess.), c. 80, a. 419.

420. The expert may examine any thing or visit any place which he considers useful for the carrying out of his duties.

He may summon witnesses by means of subpoenas issued by the clerk, administer the oath to them and hear their depositions which are taken down in writing and signed by the witness and countersigned by the expert, unless they have been taken down by a stenographer duly sworn. Mention must be made in the minutes of the relationship of the witnesses with the parties, and of the interest of each in the suit.

1965 (1st sess.), c. 80, a. 420; 1992, c. 57, s. 420.

421. The expert must, before the expiry of the time fixed by the court, file in the office of the court a signed report of his proceedings and conclusions, to which is annexed evidence of his having been sworn and the documents and testimony which he has taken.

The report must be sufficiently reasoned and detailed to enable the court to appreciate the facts.

If there are several experts and they are unanimous, they may make one and the same report.

1965 (1st sess.), c. 80, a. 421; 1999, c. 40, s. 56.

422. The expert may demand that the amount of his remuneration, costs and disbursements be deposited in court before the opening of his report.

If such deposit is not demanded, the expert has a joint and several recourse against all the parties to the suit for what is due him.

1965 (1st sess.), c. 80, a. 422.

423. A party may request that the expert’s report be rejected on the ground of irregularity or nullity. Unless the report is so questioned and rejected it forms, with the depositions and documents attached, part of the evidence in the case.

The court is, however, not bound to adopt the opinion of the expert.

1965 (1st sess.), c. 80, a. 423.

424. An expert who refuses or unduly delays to file his report, is guilty of contempt of court.

1965 (1st sess.), c. 80, a. 424.

§ 3 . — Reference to Auditors and practitioners

425. Auditors and practitioners have the powers and are subject to the rules prescribed concerning experts, so far as applicable; they are bound to follow the directions of the court.

1965 (1st sess.), c. 80, a. 425.

DIVISION VI COMMISSION FOR THE EXAMINATION OF WITNESSES

426. The court may, on application, appoint a commissioner to receive the testimony of any person who resides outside Québec or in a place too far distant from the place where the case is pending.

1965 (1st sess.), c. 80, a. 426.

427. The motion for a rogatory commission must be served on all the parties and, except under particular circumstances left to the discretion of the court, must be presented within 15 days after issue joined. It must contain the names of the proposed commissioner and of the persons to be examined.

1965 (1st sess.), c. 80, a. 427.

428. Any party may join in the application and submit the name of a commissioner and that of any other witness whom he wishes to have examined.

1965 (1st sess.), c. 80, a. 428.

429. The judgment which appoints a commissioner determines the witnesses to be examined and the manner in which they will be sworn, gives the instructions necessary to guide the commissioner in the carrying out of his duties and fixes the time within which the commission is to be returned. It may also fix an amount to cover the costs and disbursements of the commissioner, and order the applicant to deposit it with the clerk.

1965 (1st sess.), c. 80, a. 429; 1992, c. 57, s. 420; 1999, c. 40, s. 56.

430. The commission for the examination of a person on active service in Her Majesty’s armed forces outside Québec shall be addressed to the Judge-Advocate General to be executed by a person designated by him.

1965 (1st sess.), c. 80, a. 430.

431. The party who applies for a commission, and any parties who have joined in obtaining it, must see that it is transmitted and executed promptly.

1965 (1st sess.), c. 80, a. 431.

432. Any party wishing to be represented at the examination shall so advise the commissioner in good time and give him the name and address of a person who will represent him. The commissioner shall then give such person at least five days’ notice of the time and place of such examination.

1965 (1st sess.), c. 80, a. 432.

433. Any party, if he sees fit to do so, may, after notice to the other parties, have interrogatories and cross-interrogatories admitted by the court and attached to the commission.

In any event, whether or not there are interrogations formulated beforehand, the commissioner may put, and must allow the parties to put, any questions relevant to the case; he shall reserve any objections made by the parties to the evidence, but the parties have always the right not to raise such objections except before the court.

1965 (1st sess.), c. 80, a. 433.

434. The depositions are recorded in writing and signed by the witness and the commissioner, unless they are taken by a stenographer duly sworn.

1965 (1st sess.), c. 80, a. 434.

435. The commissioner is authorized to make a copy of any document exhibited by a witness who refuses to part with it.

1965 (1st sess.), c. 80, a. 435.

436. Within the time fixed in the judgment, the commissioner shall return to the clerk by registered or certified mail a certificate indorsed upon the commission attesting that he has carried out his duties as set forth in the minutes which he attaches and to which are attached the written depositions of the witnesses and the exhibits they have produced. Such return must be sealed and be indorsed with an indication of its contents and the title of the case.

1965 (1st sess.), c. 80, a. 436; 1975, c. 83, s. 23; 1992, c. 57, s. 420; 1999, c. 40, s. 56.

437. Unjustified failure to return the commission cannot prevent the court from proceeding with the trial.

1965 (1st sess.), c. 80, a. 437.

DIVISION VII

Repealed, 2002, c. 7, s. 80.

2002, c. 7, s. 80.

437.1. (Repealed).

1969, c. 80, s. 7; 1992, c. 57, s. 420; 1996, c. 5, s. 33; 2002, c. 7, s. 80.

CHAPTER IV PERPETUATION OF EVIDENCE

438. Anyone who, expecting to be a party to a legal proceeding, has reason to fear that some evidence that he will need may become lost or more difficult to present may, by motion, ask:

(a)  that the witnesses whose absence or incapacity he fears be heard before the hearing;

(b)  that anything movable or immovable, the condition of which may affect the outcome of the expected legal proceeding, be examined by a person of his choice.

1965 (1st sess.), c. 80, a. 438.

439. The motion must, in addition to the designation of the applicant and of his eventual opponent, contain:

(a)  a statement of the facts which make a legal proceeding seem likely, and its nature;

(b)  the reasons for which the applicant fears that the evidence may be lost or become more difficult to present;

(c)  the names and addresses of the witnesses to be heard, the facts upon which they will be questioned, the description and location of the thing to be examined, the purpose of the examination, and the names and address of the person who is to make it.

1965 (1st sess.), c. 80, a. 439.

440. Any person who carries out on an immovable work which may damage a neighbouring immovable may ask for the examination of the latter without fulfilling the conditions of article 438. In such case, the information required by subparagraphs a and b of article 439 is not necessary.

1965 (1st sess.), c. 80, a. 440.

441. The motion is addressed to the court before which the legal proceeding foreseen by the applicant may be brought, and must be served upon the eventual opponent and upon the person in possession of the thing to be examined, at least five days before the date fixed for its presentation.

1965 (1st sess.), c. 80, a. 441.

442. If the motion is granted, the hearing of the witnesses and the examination provided for by article 438 take place at the time and place fixed in the judgment or agreed upon by the parties, who must be present or duly called.

The hearing of the witnesses, which takes place before the clerk unless the court otherwise orders, is governed by the provisions of Chapter I and Chapter II.1 of this Title so far as they are applicable.

1965 (1st sess.), c. 80, a. 442; 1992, c. 57, s. 275, s. 420.

443. Anyone who interferes with an examination authorized under this chapter is liable to the same penalties as a person who refuses to obey an order of the court.

1965 (1st sess.), c. 80, a. 443.

444. The depositions are retained by the clerk, for use in the expected legal proceeding for which they have been taken. When such proceeding is instituted, any party may ask that the depositions be filed in the record; but if the witnesses so heard can then be produced any party may ask that they be examined anew.

1965 (1st sess.), c. 80, a. 444; 1992, c. 57, s. 420.

445. The hearing of the witnesses in virtue of the provisions of this chapter does not affect any ground of objection that any party may later raise against the admissibility of the evidence so taken.

1965 (1st sess.), c. 80, a. 445.

446. The costs incurred by the application of the provisions of this chapter are paid by the applicant. However, if the legal proceeding for which a deposition has been taken is instituted, the cost of the deposition will form part of the costs of the case if it is filed in the record because of the absence of the deponent or at the demand of a party other than the one who had the deposition taken.

1965 (1st sess.), c. 80, a. 446.

447. No appeal lies from any judgment rendered under this chapter.

1965 (1st sess.), c. 80, a. 447.

TITLE VI DECISION UPON A QUESTION OF LAW: DECLARATORY JUDGMENT ON MOTION

CHAPTER I DECISION UPON A QUESTION OF LAW

448. Persons who are at variance upon a question of law which may give rise to an action between them, but who are in agreement as to the facts, may submit the dispute to the court for decision. The parties must file a joint motion to institute proceedings at the office of the court, stating the question at issue and the facts which give rise to it, and their respective conclusions. The parties must file a draft timetable agreement with the motion.

1965 (1st sess.), c. 80, a. 448; 1982, c. 17, s. 17; 1992, c. 57, s. 276; 1996, c. 5, s. 36; 2002, c. 7, s. 81.

449. (Repealed).

1965 (1st sess.), c. 80, a. 449; 1996, c. 5, s. 37; 2002, c. 7, s. 82.

450. (Repealed).

1965 (1st sess.), c. 80, a. 450; 1996, c. 5, s. 38; 2002, c. 7, s. 83.

451. A judgment rendered under this chapter has the same effects and is subject to the same remedies as any other final judgment.

1965 (1st sess.), c. 80, a. 451; 1996, c. 5, s. 39.

452. The parties to an action may, at any stage of the case, submit for the decision of the court any question of law resulting from the action, by means of a joint motion pursuant to article 88.

1965 (1st sess.), c. 80, a. 452; 2002, c. 7, s. 84.

CHAPTER II DECLARATORY JUDGMENT ON MOTION

453. Any person who has an interest in having determined, for the resolution of a genuine problem, either his or her status or any right, power or obligation the person may have under a contract, a will or any other written instrument, a statute, an order in council, or a by-law or resolution of a municipality, may, by way of a motion to institute proceedings, ask for a declaratory judgment in that regard.

1965 (1st sess.), c. 80, a. 453; 1992, c. 57, s. 277; 2002, c. 7, s. 85.

454. The motion must state the matter in dispute and be served on the other parties and on all interested persons.

1965 (1st sess.), c. 80, a. 454; 2002, c. 7, s. 86.

455. (Repealed).

1965 (1st sess.), c. 80, a. 455; 2002, c. 7, s. 87.

456. A declaratory judgment rendered in accordance with this chapter has the same effect and is subject to the same recourses as any other final judgment.

1965 (1st sess.), c. 80, a. 456; 1969, c. 80, s. 8.

TITLE VII JUDGMENT

CHAPTER I ACQUIESCENCE IN A DEMAND

1982, c. 17, s. 18.

457. Except in actions for separation from bed and board, marriage annulment or divorce or for the dissolution or annulment of a civil union or actions relating to filiation, the defendant may, at any stage of the proceedings, file in the office of the court an acquiescence in the whole or any part of the demand.

1965 (1st sess.), c. 80, a. 457; 1982, c. 17, s. 19; 2002, c. 6, s. 100.

458. Acquiescence must be in writing and signed by the defendant or by his attorney, who must annex thereto the special power of attorney he holds for that purpose.

If the defendant appears at the office of the court to have his acquiescence taken down in writing, and is unknown to the clerk, the latter must require him to produce a copy of the summons, the counter-signature of his attorney, or some other satisfactory proof of his identity.

1965 (1st sess.), c. 80, a. 458; 1982, c. 17, s. 20; 1992, c. 57, s. 420.

459. If acquiescence is unconditional in the whole of the demand, the clerk renders judgment immediately on inscription by one of the parties.

1965 (1st sess.), c. 80, a. 459; 1982, c. 17, s. 21; 1992, c. 57, s. 420.

460. If acquiescence is not unconditional in the whole of the demand, the plaintiff must, within 15 days after the service of the acquiescence upon him, give notice to the defendant of his acceptance or refusal.

In case of acceptance, the clerk, upon inscription, renders judgment in conformity with the acquiescence.

In case of refusal, the case is proceeded with in the ordinary manner. However, the plaintiff, without waiting for the result of the trial, may obtain judgment for the amount mentioned in the acquiescence; the action is then proceeded with only for the balance. In all cases, if the court decides that the refusal was unjustified, it cannot award the plaintiff more costs than in case of acceptance.

A plaintiff who has not given notice either of acceptance or of refusal is deemed to have accepted; however, the court may relieve him of the consequences of his default, so long as judgment has not been rendered on the acquiescence.

1965 (1st sess.), c. 80, a. 460; 1982, c. 17, s. 22; 1992, c. 57, s. 420.

461. If there are several defendants, and one or some only file an acquiescence, the court may render judgment in conformity therewith, upon inscription served on all the parties; but if it is of opinion that the case requires a uniform decision for all the defendants, whether by reason of the object of the demand, or in order to avoid contradictory judgments, it does not render judgment immediately but orders that the action be decided by one judgment as against all the defendants.

1965 (1st sess.), c. 80, a. 461; 1982, c. 17, s. 23.

CHAPTER II GENERAL RULES AS TO JUDGMENT

462. No action will be dismissed merely because it is intended to obtain a declaratory judgment; but the court may, if it is of opinion that the interest of the plaintiff is insufficient, or that a judgment will not put an end to the uncertainty or controversy which gave rise to the action, refuse to render judgment.

1965 (1st sess.), c. 80, a. 462.

463. A judge who has taken a case under advisement may, even of his own motion, by a judgment giving reasons, order the reopening of the hearing, for such purposes and upon such conditions as he may determine. The clerk must forthwith communicate such judgment to the chief justice and to the attorneys of the parties.

Any other order preventing judgment from being rendered must also give the reasons therefor and be communicated to the same persons.

1965 (1st sess.), c. 80, a. 463; 1992, c. 57, s. 420.

464. When a judge ceases to hold office, retires, becomes ill or unable to act, or dies, the chief justice may order that any case of which such judge was seized be continued and terminated by another judge or replaced on the roll to be heard again.

If the case was taken under advisement it is entrusted to another judge or replaced on the roll in accordance with the first paragraph, unless, where the judge seized of the case has retired or ceased to hold office, the chief justice requests the latter judge to render judgment within 90 days. Upon the expiry of that time, the chief justice proceeds in accordance with the first paragraph.

However, if a judge ceases to hold office because of an appointment to another court, the judge may, with the agreement of the chief judges or chief justices of the courts concerned, continue and terminate any case of which the judge was seized at the time of the appointment. Failing that, the procedure set out in the first two paragraphs is followed.

1965 (1st sess.), c. 80, a. 464; 1969, c. 81, s. 9; 1972, c. 70, s. 18; 1975, c. 83, s. 24; 1999, c. 40, s. 56; 2005, c. 26, s. 1.

465. A judgment on the merits must be rendered within six months after the case is taken under advisement, or within four months after the case is taken under advisement in a small claims matter. An interlocutory judgment, a judgment on the merits in an adoption matter or a judgment ruling on the custody of a child or the support to be paid for the benefit of a child must be rendered within two months after the case is taken under advisement and a judgment by default must be rendered within 30 days after the record is complete.

Where the judge seized of a case or matter fails to render a judgment within the time limit prescribed by the first paragraph, the chief justice or judge may, on his own initiative or on a motion by one of the parties, remove the case or matter from the judge and order that it be assigned to another judge or re-entered on the roll.

Before granting an extension or removing a case or matter from the judge who failed to render a judgment within the time prescribed, the chief justice or judge shall take account of the circumstances and of the interests of the parties.

The chief justice or judge or, at his request, the senior associate chief justice or judge shall exercise, personally, the powers and duties conferred on the chief justice or judge by this article.

In the first week of each month, the clerk must give to the chief justice or judge a list of the cases or matters in his district, of whatever nature they may be, which have been under advisement for five months or more and, in a small claims matter, for three months or more.

1965 (1st sess.), c. 80, a. 465; 1993, c. 30, s. 5; 1992, c. 57, s. 420; 2002, c. 7, s. 88.

466. The judge called upon to continue a case or matter assigned to him or to hear a case or matter re-entered on the roll pursuant to articles 464 and 465 may, with the consent of the parties, limit the proof to the transcription of the stenographic notes, provided that, where he considers the notes to be insufficient, he recalls a witness or requires any other proof.

He shall rule on the costs, including those relating to the original inquiry and hearing, according to circumstances, and may, in addition, take any other measure he considers fair and appropriate. Where, for the purposes of the first paragraph, the stenographic notes must be transcribed, the transcription costs shall be paid by the Government unless the judge orders otherwise, in particular, when the recourse is manifestly unfounded or frivolous and excessive or dilatory.

1965 (1st sess.), c. 80, a. 466; 1993, c. 30, s. 5; 1993, c. 72, s. 8.

467. The death of the parties or of their attorneys cannot delay judgment in a case which is under advisement.

1965 (1st sess.), c. 80, a. 467; 1975, c. 83, s. 25.

468. The court cannot adjudicate beyond the conclusions; however, it may correct incorrect terminology in the conclusions, in order to give to them their true designation in the light of the facts alleged.

1965 (1st sess.), c. 80, a. 468.

469. Every judgment involving a condemnation must be susceptible of execution. Every judgment for damages must contain a liquidation thereof; if it contains a joint and several condemnation against the persons responsible for the injury, it shall, if the evidence permits, determine as between such persons only, the share of each in the condemnation.

1965 (1st sess.), c. 80, a. 469; 1992, c. 57, s. 278.

469.1. Where a judgment awarding damages for bodily injury reserves the right of the plaintiff to claim additional damages, the judgment specifies the matter to which the claim may pertain and the time within which the application may be made.

The judgment is executory, notwithstanding appeal, where the appeal pertains exclusively to the decision of the court to reserve the right of the plaintiff to claim additional damages or to the time allowed for the exercise of the remedy.

An appeal from the judgment on the original application for damages does not exempt the plaintiff from the obligation to file an application for additional damages, within the period of time fixed in the judgment.

1992, c. 57, s. 279.

470. A judgment in respect of movable or immovable real rights must contain a description of the property involved so as to permit the publication of the rights in the property, where applicable.

A judgment condemning a party to the restitution of fruits and revenues must order their liquidation, by experts if necessary; the party condemned is bound to produce all supporting documents.

1965 (1st sess.), c. 80, a. 470; 1992, c. 57, s. 280.

471. A judgment must be signed by the person who rendered it. However, in family cases, the clerk may sign the judgment rendered by a judge.

In contested suits where judgment is rendered after taking the case under advisement, it contains, in addition to the conclusions, a concise statement of the reasons on which the decision is based.

When a judge dies, is absent, is unable to act or retires after he has rendered judgment in open court and before he has signed such judgment, the chief justice of such court or a judge designated by him may sign such judgment.

1965 (1st sess.), c. 80, a. 471; 1972, c. 70, s. 19; 1977, c. 73, s. 15; 1982, c. 17, s. 24; 1989, c. 6, s. 2; 1992, c. 57, s. 420.

472. Judgments are rendered by being read out in open court, or by depositing the judgment in the office of the court on the date which it bears.

The conclusions of a judgment rendered in open court cannot be changed by the judgment deposited later.

1965 (1st sess.), c. 80, a. 472.

473. A judgment, unless it is in recognition of a hypothec against a defendant residing in Québec, must be served on the losing party only if the judge who rendered it so orders, or if some provision of law so requires.

However, as soon as the original of the judgment in a contested matter which has been taken under advisement has been deposited in the office of the court, the clerk must, unless the rules of practice otherwise provide, notify the parties and their attorneys.

1965 (1st sess.), c. 80, a. 473; 1975, c. 83, s. 26; 1992, c. 57, s. 281, s. 420; 1995, c. 39, s. 1.

474. Every judgment must be entered without delay in the register of the court; the clerk retains the judgment and issues copies on demand.

In cases of difference between the judgment and the entry thereof in the register, the judgment is to be followed; and the court may, without any formality, order the necessary corrections.

1965 (1st sess.), c. 80, a. 474; 1992, c. 57, s. 420.

475. A judgment in which there is an error in writing or calculation or any other clerical error may be corrected by the judge or clerk who rendered it. A judgment which, by obvious inadvertence, has granted more than was demanded or has omitted to adjudicate upon part of the demand may also be so corrected.

Such correction may be made of the judge’s or clerk’s own motion so long as the execution has not been commenced; it may be made on motion of one of the parties at any time, unless the judgment has been appealed.

If the judge or clerk who rendered the judgment is no longer in office or is absent or unable to act, the motion must be made to the court.

The time limits for appeal from and for execution of a corrected judgment only run from the date of the correction, if it affects the conclusions.

1965 (1st sess.), c. 80, a. 475; 1983, c. 28, s. 17; 1984, c. 26, s. 19; 1992, c. 57, s. 420; 1999, c. 40, s. 56.

476. A party may renounce rights arising from a judgment rendered in his favour, by filing in the office of the court a total or partial renunciation signed by him or by his special attorney. A total renunciation accepted by the opposite party places the case in the position it was in immediately before the judgment.

1965 (1st sess.), c. 80, a. 476.

CHAPTER III COSTS

477. The losing party must pay all costs, including the costs of the stenographer, unless by decision giving reasons the court reduces or compensates them, or orders otherwise.

As well, the court may, by a decision giving reasons, reduce the costs relating to experts’ appraisals requested by the parties, particularly if, in the opinion of the court, there was no need for the appraisal, the costs are unreasonable or a single expert’s appraisal would have been sufficient.

In a personal action, and subject to article 988, the amount of the costs of suit, except costs of execution, that the defendant who loses may be required to pay shall not exceed the amount of the condemnation, if that is not greater than the amount contemplated in paragraph a of article 953, unless the court, by judgment giving reasons, orders otherwise.

1965 (1st sess.), c. 80, a. 477; 1975, c. 83, s. 27; 1977, c. 73, s. 16; 1983, c. 28, s. 18; 1995, c. 39, s. 2; 2002, c. 7, s. 89.

478. Any person administering the property of another, who abuses his powers by carrying on proceedings which are clearly unfounded, may be condemned personally to costs, without being entitled to reimbursement.

1965 (1st sess.), c. 80, a. 478.

478.1. The costs of joint actions are shared equally by the parties, unless they have agreed to the contrary or the court, by judgment giving reasons, orders otherwise.

Similarly, costs resulting from the decision of the court to allow a child to be represented by an attorney in family proceedings are shared equally by the parties, unless the court, by judgment giving reasons, orders otherwise.

In any proceedings other than family proceedings, the costs relating to the representation by an attorney of a minor, or a person of full age it considers incapable are awarded by the court according to the circumstances.

1982, c. 17, s. 25; 1992, c. 57, s. 283.

479. Every condemnation to costs involves, by operation of law, distraction in favour of the attorney of the party to whom they are awarded. Nevertheless the party himself may execute for the costs if the consent of his attorney appears on the writ of execution.

1965 (1st sess.), c. 80, a. 479; 1981, c. 14, s. 13.

480. The party entitled to costs prepares a bill thereof in accordance with the tariffs in force, and has it served upon the party who owes the costs, if the latter has appeared, with a notice of at least five days of the date when it will be presented for taxation to the clerk; the latter may require proof to be made by affidavit or by witnesses.

The taxation may be revised by the judge within 30 days, upon motion served on the opposite party. The judgment thus rendered is final and subject to appeal in accordance with the rules provided in article 26.

However, saving the debtor’s contingent right to recover, the motion for revision or the appeal from the judgment on that motion does not suspend execution unless the amount of the factum as taxed or as revised exceeds $10,000, in which case the execution is suspended in respect of the excess.

1965 (1st sess.), c. 80, a. 480; 1982, c. 32, s. 34; 1992, c. 57, s. 420.

481. Costs bear interest from the date of the judgment granting them.

1965 (1st sess.), c. 80, a. 481.

TITLE VIII

Repealed, 2002, c. 7, s. 90.

1996, c. 5, s. 40; 2002, c. 7, s. 90.

481.1. (Repealed).

1996, c. 5, s. 40; 1999, c. 46, s. 8; 2002, c. 7, s. 90.

481.2. (Repealed).

1996, c. 5, s. 40; 2002, c. 7, s. 90.

481.3. (Repealed).

1996, c. 5, s. 40; 2002, c. 7, s. 90.

481.4. (Repealed).

1996, c. 5, s. 40; 2002, c. 7, s. 90.

481.5. (Repealed).

1996, c. 5, s. 40; 2002, c. 7, s. 90.

481.6. (Repealed).

1996, c. 5, s. 40; 2002, c. 7, s. 90.

481.7. (Repealed).

1996, c. 5, s. 40; 2002, c. 7, s. 90.

481.8. (Repealed).

1996, c. 5, s. 40; 2002, c. 7, s. 90.

481.9. (Repealed).

1996, c. 5, s. 40; 2002, c. 7, s. 90.

481.10. (Repealed).

1996, c. 5, s. 40; 2002, c. 7, s. 90.

481.11. (Repealed).

1996, c. 5, s. 40; 2002, c. 7, s. 90.

481.12. (Repealed).

1996, c. 5, s. 40; 2002, c. 7, s. 90.

481.13. (Repealed).

1996, c. 5, s. 40; 2002, c. 7, s. 90.

481.14. (Repealed).

1996, c. 5, s. 40; 2002, c. 7, s. 90.

481.15. (Repealed).

1996, c. 5, s. 40; 2002, c. 7, s. 90.

481.16. (Repealed).

1996, c. 5, s. 40; 2002, c. 7, s. 90.

481.17. (Repealed).

1996, c. 5, s. 40; 2002, c. 7, s. 90.

BOOK III REMEDIES AGAINST JUDGMENTS

TITLE I REVOCATION OF JUDGMENT

CHAPTER I REVOCATION OF JUDGMENT AT THE REQUEST OF ONE OF THE PARTIES

482. A party condemned by default to appear or to plead may, if he was prevented from filing his defence by surprise, by fraud or by any other reason considered sufficient, request that the judgment be revoked and that the action be dismissed.

The motion, addressed to the court which rendered the judgment, must contain not only the grounds for revocation of judgment, but also the grounds of defence to the action.

1965 (1st sess.), c. 80, a. 482.

483. Likewise, where there is no other useful recourse against a judgment, the court which rendered it may revoke it at the request of one of the parties, in the following cases:

(1)  When the procedure prescribed has not been followed and the resulting nullity has not been covered;

(2)  When the judgment has decided beyond the conclusions, or when it has failed to rule on one of the essential grounds of the suit;

(3)  When, in the case of a minor or person of full age under tutorship or curatorship, no valid defence has been produced;

(4)  When judgment has been rendered upon an unauthorized consent or tender subsequently disavowed;

(5)  When judgment has been rendered upon documents whose falsity has only been discovered afterwards, or following fraud of the adverse party;

(6)  When, since the judgment, decisive documents have been discovered whose production had been prevented by a circumstance of irresistible force or because of the act of the adverse party;

(7)  When, since the judgment, new evidence has been discovered and it appears that:

(a)  if it had been brought forward in time, the decision would probably have been different;

(b)  it was known neither to the party nor to his attorney or agent and

(c)  it could not, with all reasonable diligence, have been discovered in time.

1965 (1st sess.), c. 80, a. 483; 1989, c. 54, s. 134.

484. The motion in revocation, served on all the parties in the record with notice of the day when it will be presented to a judge for reception, must be filed within 15 days counting, according to the circumstances, from the day when the party acquired knowledge of the judgment, when the cause preventing production of the defence was removed, when he acquired knowledge of the new evidence, of the falsity of the document or of the fraud of the opposite party, when the conclusive document was discovered, or when the judgment was rendered disavowing the unauthorized act.

In the case of a minor, contemplated in paragraph 3 of article 483, the time limit runs from the day of service of the judgment effected since he attained majority.

The time limit of 15 days is peremptory; nevertheless the court may, on motion and provided that not more than six months have elapsed since judgment, relieve from the consequences of his default the party who shows that, in fact, it was impossible for him to act sooner.

1965 (1st sess.), c. 80, a. 484; 1999, c. 40, s. 56.

484.1. In the case provided for in article 198.1, the judgment cannot be revoked, on the motion of the party condemned by default to appear or to plead made within one year from the date of judgment, unless that party proves that, by no fault of his own, he did not acquire knowledge of the proceedings in time to file a defence or to exercise a recourse against the decision and unless the grounds of his defence do not appear unfounded.

1985, c. 29, s. 10.

485. The motion in revocation does not suspend the execution until it has been received, unless a judge gives a special order which, in case of urgency, may be given without prior notice.

1965 (1st sess.), c. 80, a. 485.

486. The officer charged with executing the judgment, and on whom has been served a copy of the motion in revocation and of the certificate attesting that it has been received, is required to suspend, and to return to the office of the court without delay, the writ of execution and the motion which was served on him.

1965 (1st sess.), c. 80, a. 486.

487. The motion made in virtue of article 482 forms part of the proceedings in the original suit and is subject to the same rules. The party who produced it is liable for all the costs resulting from his default, whatever judgment is rendered.

1965 (1st sess.), c. 80, a. 487.

488. If the grounds invoked in support of a motion made in virtue of article 483 are judged to be sufficient, the parties are placed in the position where they were previously, and the procedure follows the rules of the original instance. The court may also, if it sees fit, pronounce at the same time upon the motion in revocation and on the original demand. In all cases it adjudicates as to costs in accordance with the circumstances.

1965 (1st sess.), c. 80, a. 488.

CHAPTER II REVOCATION OF JUDGMENT AT THE REQUEST OF A THIRD PARTY, OR OPPOSITION BY A THIRD PARTY

489. Every person whose interests are affected by a judgment rendered in a suit in which neither he nor his representatives were summoned, may, by motion to the court which rendered it, demand that it be revoked so far as it prejudices his rights.

The motion must be served on all the parties in the suit or, if it is made less than a year after the judgment, upon the attorneys who represented them in the suit; it does not suspend execution unless a judge so orders.

1965 (1st sess.), c. 80, a. 489.

490. The motion is proceeded upon in accordance with the rules applicable to the original suit.

1965 (1st sess.), c. 80, a. 490.

TITLE II APPEAL

491. Saving contrary provisions of the law in respect of certain matters, appeal to the Court of Appeal is subject to the following rules.

1965 (1st sess.), c. 80, a. 491.

492. Any person who was a party to an action in the court of first instance, personally and for his own account, or as a representative and for the account of others, or through a legal representative, has the capacity to appeal.

The Attorney General may, ex officio, appeal from a final judgment rendered in an action raising a ground of public order, as if he were a party to the action.

When several persons have together lost an action in the pursuit of a common interest, each has the capacity to appeal and to prosecute the appeal, in spite of the inaction of the others or of their decease.

1965 (1st sess.), c. 80, a. 492.

493. When a party dies or becomes incapable, his right of appeal is exercised by his legal representatives.

If an appeal is to be brought by the liquidators of a succession and they or some of them are deceased or have been replaced, the appeal is brought by the liquidators then in office.

1965 (1st sess.), c. 80, a. 493; 1992, c. 57, s. 284.

494. An application for leave to appeal in the cases contemplated in the second paragraph of article 26 and in article 511 must be presented by motion accompanied by a copy of the judgment and of the documents of the contestation, if they are not reproduced in the judgment. It must indicate the duration of the proof and hearing in first instance, the conclusions sought by the appellant and a detailed statement of the grounds which the appellant intends to set up.

The detailed statement of the grounds must refer to the documentary evidence or the testimonies in respect of which the appellant claims that the judge in first instance committed a manifest error. It must also state in what way the errors of law or fact found are significant to the point of invalidating the judgment in first instance. Upon presentation of the application, the judge may, where so justified by serious reasons, authorize the filing of an additional statement within the time he determines.

The motion must be served on the adverse party and filed with the office of the court within 30 days of the date of judgment or, in the case of an application for leave to appeal from a judgment ruling on a motion to quash a seizure before judgment, within 10 days of the date of judgment; it must be presented to a judge of the Court of Appeal as soon as possible.

If the application is granted, the judgment authorizing the appeal shall stand for the inscription in appeal. The clerk of appeals shall transmit a copy of the judgment without delay to the judge whose judgment is appealed from and to the office of the court in first instance; he shall also transmit a copy, without delay, to the parties or their attorneys.

Every other appeal must be brought within 30 days of the date of judgment unless in the case of subparagraph 2 of the first paragraph of article 26 a shorter time is prescribed in another Act.

Such time limits are peremptory and their expiry extinguishes the right of appeal.

However, if a party dies before the expiry of such time without having appealed, the time limit for appeal runs against his legal representatives only from the day when the judgment is served upon them, which may be done in accordance with the provisions of article 133.

The time limit for appeal runs against a party condemned by default only from the expiry of the time within which he could demand the revocation of the judgment.

1965 (1st sess.), c. 80, a. 494; 1969, c. 80, s. 9; 1982, c. 32, s. 35; 1983, c. 28, s. 19; 1989, c. 41, s. 1; 1992, c. 57, s. 285; 1993, c. 30, s. 6; 1995, c. 2, s. 3; 1995, c. 39, s. 3; 1999, c. 40, s. 56; 2002, c. 7, s. 91.

495. The appeal is brought by depositing at the office of the court of first instance, within the time limit provided by article 494, a duplicate and two copies of an inscription which has been served upon the adverse party or his attorney.

If the adverse party is not represented by attorney, and impossibility of service is established in conformity with article 123, a judge of the court of first instance may prescribe a different mode of service and, if necessary, permit that it be effected even after the expiry of the time limit for appeal.

1965 (1st sess.), c. 80, a. 495; 1979, c. 37, s. 16; 1999, c. 40, s. 56.

495.1. Without prejudice to the right to appeal in the manner and within the time prescribed by articles 494, 495 and 495.2, any appeal from a judgment in an action in warranty or in a recursory action must be brought, in the manner prescribed by articles 494, 495 and 495.2, within 10 days from the filing, at the office of the court of first instance, of the judgment authorizing the appeal from the judgment in the initial action or of the inscription in appeal from the judgment in the initial action.

1993, c. 30, s. 7.

495.2. If the appellant or his attorney intends to use a deposition in support of the appeal, the appeal is regularly brought only if the appellant or his attorney causes to be served on the adverse party or his attorney and files at the office of the court, within 45 days after the judgment appealed from or, in the case of an appeal with leave, within 15 days after the judgment authorizing the appeal, a written statement in which he or his attorney certifies that he has directed a stenographer to transcribe the stenographic notes. The second paragraph of article 495 applies to the service of the statement.

1993, c. 30, s. 7; 2002, c. 7, s. 92.

496. The inscription in appeal must contain the description of the parties, the name of the court that rendered the judgment, the date of judgment, the duration of the proof and hearing in first instance, the conclusions sought by the appellant and a detailed statement of the grounds he intends to set up.

The detailed statement of the grounds must refer to the documentary evidence or the testimonies in respect of which the appellant claims that the judge in first instance committed a manifest error. It must also state in what way the errors of law or fact found are significant to the point of invalidating the judgment in first instance.

Where the appellant is unable to state in detail all the grounds he intends to set up within the time prescribed in article 494, a judge of the Court of Appeal may, on a motion, where so justified by serious reasons, authorize the filing of an additional statement within such time as he determines.

1965 (1st sess.), c. 80, a. 496; 1979, c. 37, s. 17; 1993, c. 30, s. 8.

496.1. Unless otherwise provided, every application presented in court must be accompanied with a notice of the date of presentation and must have been served at least five clear juridical days before that date, except in case of urgency, where a judge of the court may reduce that period.

1993, c. 30, s. 9.

497. Saving the cases where provisional execution is ordered and where so provided by law, an appeal regularly brought suspends the execution of judgment.

However, a judge of the Court of Appeal may, on a motion, for a special reason other than those set out in subparagraphs 4.1 and 5 of the first paragraph of article 501, order the appellant to furnish, within the time fixed in the order, security in a specified amount to guarantee in whole or in part the payment of the costs of appeal and the amount of the condemnation, if the judgment is upheld.

If the appellant does not furnish security within the fixed time, a judge of the Court of Appeal may, upon motion, dismiss the appeal.

1965 (1st sess.), c. 80, a. 497; 1979, c. 37, s. 18; 1982, c. 32, s. 36; 1993, c. 30, s. 10; 1999, c. 40, s. 56; 2002, c. 7, s. 93.

498. As soon as the inscription in appeal is filed, the clerk must transmit the original of the inscription and a certified copy of the plumitif to the Appeal Office at Québec or Montréal, as the case may be, and a copy of the inscription to the judge whose judgment is appealed from.

The clerk must, at the request of a judge of the Court of Appeal, transmit without delay the record of the case to the Appeal Office together with a list of the documents therein and a copy of the entries made in the registers.

1965 (1st sess.), c. 80, a. 498; 1979, c. 37, s. 19; 1992, c. 57, s. 420; 1995, c. 39, s. 4.

499. Within 10 days following receipt at the Appeals Office of the inscription or, as the case may be, within 10 days following receipt by the respondent of the copy of the judgment authorizing the appeal, the respondent must file a written appearance with the Appeals Office.

Before such appearance, the proceedings intended for the respondent may be served upon the attorney who represented the respondent in the court of first instance, failing a provision of law which requires service on the party himself.

1965 (1st sess.), c. 80, a. 499; 1982, c. 32, s. 37; 1989, c. 41, s. 2.

500. Without prejudice to his right to bring an appeal himself in the manner and within the time limit prescribed by articles 494, 495 and 495.2, the respondent may make an incidental appeal, without formality other than a declaration, served on the adverse party and filed at the same time as his written appearance, that he will demand the reversal, in his favour, of the judgment appealed from. Such declaration must set out the conclusions sought by the respondent and a detailed statement of the means he intends to set up.

1965 (1st sess.), c. 80, a. 500; 1979, c. 37, s. 20; 1993, c. 30, s. 11.

501. Within 10 days following the expiration of the time fixed for appearance, the respondent may by motion ask for the dismissal of the appeal by reason of:

(1)  an irregularity in the bringing of the appeal, when it causes him a prejudice;

(2)  the non-existence or forfeiture of the right of appeal;

(3)  acquiescence in the judgment appealed from;

(4)  renunciation of the judgment;

(4.1)  the fact that the appeal has no reasonable chance of success;

(5)  its improper or dilatory nature.

Instead of dismissing the appeal for a reason set out in subparagraph 4.1 or 5 of the first paragraph, the Court may subject the appeal to such conditions as it may determine, particularly that the appellant furnish security pursuant to article 497.

The Court may dismiss a motion for a reason set out in subparagraph 4.1 or 5 of the first paragraph without hearing the parties.

Service of a motion requesting the dismissal of the appeal suspends the 45-day period prescribed by article 495.2 for the provision of a statement certifying that a stenographer has been directed to transcribe the notes, until the decision on the motion.

The irregularity of the appeal for any of the grounds provided in subparagraphs 2, 3, 4, 4.1 and 5 of the first paragraph is not covered by the mere failure to invoke it within the time fixed; but if an appeal is dismissed on a motion made beyond such time, the costs shall be the same as if it had been made within the time fixed, unless the court otherwise decides.

1965 (1st sess.), c. 80, a. 501; 1982, c. 32, s. 38; 1995, c. 2, s. 4; 1999, c. 40, s. 56; 2002, c. 7, s. 94; 2002, c. 54, s. 3.

502. At any stage of the case, the court or, between sessions, one of its judges, may permit the correction, within such time and under such conditions as it or he may determine, of any irregularity whatever in the procedure of appeal, provided, however, that the inscription in appeal has been duly served and filed.

1965 (1st sess.), c. 80, a. 502; 1999, c. 40, s. 56.

503. Within 120 days of the filing of the inscription or of the judgment rendered on a demand made under article 501, the appellant must file seven copies of his factum in the office of the court and serve two copies of it on the respondent.

1965 (1st sess.), c. 80, a. 503; 1979, c. 37, s. 21; 1982, c. 32, s. 39; 1993, c. 30, s. 12.

503.1. Where the factum is not served and filed within the time prescribed by article 503, the appeal is deemed abandoned unless an application for an extension is served and filed at the office of the court by the appellant before the expiry of the prescribed time. The extension may be granted, on a motion, by a judge of the Court of Appeal for a period which, barring exceptional circumstances owing to the nature of the case, may not exceed 30 days.

Where the appellant has not, within the allotted time, filed and served his factum and no application for an extension, or motion under article 505.1, is pending, the clerk of the Court of Appeal shall record the default and issue a certificate stating that the appeal is abandoned with costs.

1979, c. 37, s. 21; 1982, c. 32, s. 40; 1993, c. 30, s. 13; 1995, c. 2, s. 5.

503.2. (Replaced).

1979, c. 37, s. 21; 1982, c. 32, s. 40; 1993, c. 30, s. 13; 1995, c. 2, s. 5.

503.3. (Replaced).

1979, c. 37, s. 21; 1982, c. 32, s. 40; 1993, c. 30, s. 13; 1995, c. 2, s. 5.

504. When more than one party has appealed from the same judgment, all appeals are joined.

1965 (1st sess.), c. 80, a. 504; 1979, c. 37, s. 22; 1982, c. 32, s. 41.

504.1. Within 90 days of the filing in the office of the court of his factum by the appellant, the respondent must file seven copies of his factum and serve two copies thereof on the appellant.

1982, c. 32, s. 42; 1995, c. 2, s. 6.

505. Where the respondent does not file his factum within the time prescribed by article 504.1, he is foreclosed from filing it unless an application for an extension is served and filed at the office of the court by him before the expiry of the prescribed time. The extension may be granted, on a motion, by a judge of the Court of Appeal for a period which, barring exceptional circumstances owing to the nature of the case, may not exceed 30 days.

Where the respondent fails to file his factum within the allotted time, the Court may refuse to hear him. If the respondent makes an incidental appeal but does not act within the time allotted for the filing of his factum, the incidental appeal is deemed abandoned.

1965 (1st sess.), c. 80, a. 505; 1975, c. 83, s. 28; 1979, c. 37, s. 23; 1982, c. 32, s. 43; 1993, c. 30, s. 14; 1995, c. 2, s. 7.

505.1. A judge of the Court of Appeal may, on a motion filed before the expiry of the time prescribed by article 503 and with the consent of the appellant and the respondent, fix another time for the filing of their factums.

1995, c. 2, s. 7.

506. When, notwithstanding his diligence and for a reason not imputable to him, the appellant cannot obtain within a reasonable time the transcript of the stenographer’s notes, the Court of Appeal may order that the case be restored to the same state as before the trial.

1965 (1st sess.), c. 80, a. 506; 1999, c. 40, s. 56.

507. The parties set out in their factum the subject at issue, their pretensions and conclusions. Each party must attach to his factum a copy of the documents and extracts from the evidence that are necessary to determine the questions at issue.

The appellant must also attach to his factum copy of the proceedings of the joined issue, the judgment appealed from and, where that is the case, the notes filed by the judge or, if they were given orally, the transcription or the translation of the reasons of the judgment.

The factums must be prepared in the manner provided by the rules of practice. They may be prepared and filed in computerized form in whole or in part provided it is agreed by all parties and authorized by a judge of the Court of Appeal.

1965 (1st sess.), c. 80, a. 507; 1975, c. 83, s. 29; 1979, c. 37, s. 24; 1982, c. 32, s. 44; 1999, c. 46, s. 9.

507.0.1. In family matters, written arguments, instead of factums, are filed by the parties together with the other documents relevant to the appeal, according to the procedure prescribed by the Rules of practice of the Court of Appeal in civil matters. The date and time of the appeal hearing are determined by the judge or the clerk, and a schedule for the filing of the arguments and other documents is determined with the parties by the judge or the clerk.

However, a judge of the Court of Appeal may order that the appeal be conducted according to the ordinary rules if, in the judge’s opinion, it is warranted by the complexity of the case or by special circumstances.

1999, c. 46, s. 10.

507.1. The clerk of appeals must place an appeal on the court roll as soon as it is ready to be so placed.

1979, c. 37, s. 25.

507.2. If the appeal is not ready to be placed on the court roll in the year following the filing of the inscription in appeal, the clerk of appeals gives the attorneys or the party who does not have an attorney a notice of not less than 60 days to the effect that the case has been placed on a special roll.

If the appeal is still not ready to be placed on the court roll on the date fixed in the notice, the chief justice or any other judge he may designate, after giving the parties the opportunity to be heard, declares the appeal abandoned, unless one of the parties submits a valid excuse, in which case he makes such order as he deems appropriate.

1979, c. 37, s. 25; 1982, c. 32, s. 45; 1995, c. 39, s. 5.

508. (Repealed).

1965 (1st sess.), c. 80, a. 508; 1979, c. 37, s. 26.

508.1. A judge may at any time preside a settlement conference to assist the parties in resolving their dispute. The judge enjoys judicial immunity while presiding such a conference. The conference is held in private, at no cost to the parties and without formality.

A settlement conference may only be held at the written joint request of the parties. The filing of such a request suspends the running of the time limits prescribed by this Title.

A settlement conference is confidential and is governed by the rules defined by the judge and the parties. The judge who presides the conference cannot take part in any hearing relating to the matter.

Any transaction resolving the matter is sent by the clerk to a panel of the court so that it may be homologated and rendered enforceable.

2002, c. 7, s. 95.

508.2. At any stage of a proceeding, a judge may, on his or her own initiative or at the request of a party, convene the parties to confer with them on the possibility of better defining the matters really at issue and on possible ways of simplifying proceedings and shortening the hearing.

After giving the parties the opportunity to make representations, the judge may, as appropriate, limit the pleadings and other documents to be filed, shorten or extend the time limits prescribed by this Code, determine time limits, including those for the filing of pleadings and other documents, lift the requirement to file a factum and allow the parties to proceed on the basis of an argumentation plan, and determine a hearing date.

2002, c. 7, s. 95.

508.3. The judge may, on his or her own initiative or at the request of a party, use any appropriate means of communication to hold a settlement conference, provided all parties consent.

2002, c. 7, s. 95.

508.4. A settlement conference is held without formality and requires no prior written documents.

2002, c. 7, s. 95.

508.5. At any time during the proceeding, a party may apply to the chief justice, or to a judge designated by the chief justice, for directions in relation to the appeal.

2002, c. 7, s. 95.

509. In appeal, a judge hears all incidental proceedings provided for in Title IV of Book II to the extent that they are applicable.

In exceptional circumstances, the Court may, if the interests of justice so require, allow a party to adduce, in such manner as the Court directs, indispensable new evidence.

Applications under this article are presented by motion, and the procedure is the same as in first instance, in the absence of rules of practice to the contrary.

During the hearing of such an application, any party may submit relevant evidence, and the judge or the Court, as the case may be, may return the case to the court of first instance so that further proof relating to the application may be made.

If, in the judge’s opinion, the interests of justice so require, the judge may refer an application to the Court.

1965 (1st sess.), c. 80, a. 509; 1982, c. 32, s. 46; 1999, c. 46, s. 11.

509.1. The clerk of the Court of Appeal may hear motions to cease representing a party and attorney substitution motions as well as motions provided for in articles 496, 503.1 and 505.

If, in the clerk’s opinion, the interests of justice so require, the clerk may refer a motion to a judge.

A decision rendered by the clerk may be revised by a judge, upon an application setting out the grounds relied on, served upon the adverse party and filed at the office of the court within ten days from the date of the decision. If the decision is quashed, matters are restored to the state in which they were before it was rendered.

1999, c. 46, s. 11.

510. Appeal from a final judgment of the Court of Québec is subject to the same rules as appeal from a final judgment of the Superior Court.

1965 (1st sess.), c. 80, a. 510; 1988, c. 21, s. 66.

510.1. Where the judgment appealed from reserved the right of the plaintiff to claim additional damages for bodily injury, a judge of the Court of Appeal may, on application and if it is imperative to do so, order the suspension of the hearing of the appeal from the initial judgment for the period and on the conditions he determines, so that the appeal from that judgment and the appeal from the judgment ruling on the application for additional damages be heard jointly.

1992, c. 57, s. 286.

511. An appeal lies from an interlocutory judgment only on leave granted by a judge of the Court of Appeal if he is of opinion that the case is one that is contemplated in article 29 and that the pursuit of justice requires that leave be granted; the judge must then order the continuation or suspension of the proceedings in first instance.

However, an appeal from an interlocutory judgment dismissing an objection to evidence based on article 308 of this Code or on section 9 of the Charter of human rights and freedoms (chapter C-12) is not subject to a leave. Furthermore, the appeal does not suspend the proceedings but the judge of first instance cannot render final judgment or hear the evidence contemplated by the objection until appeal from the interlocutory judgment is decided.

Appeal from an interlocutory judgment is subject to the rules applicable to a final judgment; however, the parties are not required to file a factum, unless a judge decides otherwise. The appeal is heard on the date determined by the judge in cases where leave is required and on the date determined by the clerk in other cases.

1965 (1st sess.), c. 80, a. 511; 1979, c. 37, s. 27; 1982, c. 32, s. 47; 1983, c. 28, s. 20; 1986, c. 55, s. 2; 2002, c. 7, s. 96.

512. A judge of the Court of Appeal, at the request of any party, or the clerk of appeals, with the consent of all the parties, may at any time strike a matter from the court roll and refer the hearing thereof to a later sitting.

1965 (1st sess.), c. 80, a. 512.

513. The court sits with three judges, but the chief justice may increase this number when he deems it proper. Nevertheless, fewer than three judges may open and adjourn the sittings of the court, call the parties, record appearances and defaults and do any acts which do not require the exercise of judicial discretion.

The chief justice may, whenever the dispatch of business so requires, order that the court sit in several divisions at one time, at Québec or at Montréal.

1965 (1st sess.), c. 80, a. 513.

514. To ensure the proper dispatch of business of the Court of Appeal, the Chief Justice or, in his absence, the senior puisne judge may ask in writing the Chief Justice of the Superior Court to designate one or more judges of that court to sit in the Court of Appeal as judges ad hoc. A judge ad hoc shall have all the powers and duties of a puisne judge of the Court of Appeal.

1965 (1st sess.), c. 80, a. 514; 1987, c. 48, s. 2.

515. A judge cannot hear in appeal a matter that he has judged in first instance.

1965 (1st sess.), c. 80, a. 515.

516. A judgment cannot be rendered unless the majority of the judges who heard the case concur therein.

It may be rendered in open court by the judge who presided over the court at the hearing, even in the absence of the other judges; it may also be deposited at the office of the court, under the signature of at least the majority of the judges who heard the appeal. In all cases, the clerk must without delay give to all the parties notice that judgment has been rendered.

1965 (1st sess.), c. 80, a. 516.

517. If a judge who heard the case is appointed to another court, if he has obtained leave of absence or is absent by reason of sickness or some other circumstance, he may nevertheless participate in the judgment.

The impossibility for any of the judges to make his decision known does not prevent the others from rendering judgment, if they are sufficient in number.

1965 (1st sess.), c. 80, a. 517.

518. When by reason of the absence, disqualification or incapacity of a judge, or for any other reason, a new hearing is required, it may be ordered by the other judges or by any of them.

1965 (1st sess.), c. 80, a. 518.

519. Every judgment must contain, apart from the conclusions, the names of the judges who heard the case, with mention of those who did not share the opinion of the majority, and must adjudicate upon the costs; it must moreover set out reasons for judgment, unless it refers to written opinions that the judges have filed in the record.

1965 (1st sess.), c. 80, a. 519.

520. A judgment in which there is an error in writing or calculation, or any other clerical error, may be corrected by the court, as may likewise be corrected a judgment which, by obvious inadvertence, has granted more than was demanded, or has omitted to adjudicate upon part of the demand.

1965 (1st sess.), c. 80, a. 520.

521. Costs are taxed by the clerk of appeals; the taxation may nevertheless be revised, within 30 days, by a judge of the Court of Appeal, upon motion of which notice must be given to the adverse party. Such revision neither halts nor suspends execution of the judgment.

1965 (1st sess.), c. 80, a. 521.

522. Judgment is executed, for both principal and costs, by the court of first instance, unless there is an appeal to the Supreme Court of Canada.

A copy of the judgment of the Court of Appeal, and the record of the case if the latter was transmitted to the Appeal Office, must be transmitted to the office of the court in which the judgment appealed from was rendered.

1965 (1st sess.), c. 80, a. 522; 1995, c. 39, s. 6.

522.1. The Court of Appeal or one of its judges may, subject to the conditions the Court or the judge deems appropriate, order suspension of the execution of a judgment of the Court, on a motion of a party who establishes his intention to apply for leave to appeal to the Supreme Court of Canada.

1995, c. 2, s. 8.

523. The Court of Appeal may, notwithstanding the expiry of the time allowed by article 494, but provided that more than six months have not elapsed since the judgment, grant special leave to appeal to a party who shows that in fact it was impossible for him to act sooner. However such leave cannot be granted in respect of a judgment rendered in the circumstances contemplated in article 198.1.

1965 (1st sess.), c. 80, a. 523; 1985, c. 29, s. 11; 1999, c. 40, s. 56; 1999, c.46, s. 12; 2002, c. 7, s. 97.

523.1. Where the sole object of an appeal is to obtain an increase in the amount awarded by the judgment or a reduction of the amount of the condemnation, a judge of the Court of Appeal may, on application, order the condemned party to execute the judgment up to the amount that is not under appeal.

1992, c. 57, s. 287.

524. The Court may, ex officio or on motion of a party, declare dilatory or abusive an appeal that it dismisses or declares abandoned.

It may condemn the appellant to pay the damages caused by the appeal if their amount appears in the record or is accepted by the parties.

In other cases, the respondent may, within 60 days of the date of the judgment of the Court of Appeal, claim damages from the appellant, by motion addressed to the Superior Court or the Court of Québec, according to the amount claimed. Upon receipt of a copy of the motion, the clerk of appeals transmits the record to the office of the court to which the motion is addressed.

1965 (1st sess.), c. 80, a. 524; 1979, c. 37, s. 28; 1988, c. 21, s. 66.

BOOK IV EXECUTION OF JUDGMENTS

TITLE I VOLUNTARY EXECUTION

CHAPTER I PUTTING IN SECURITY

525. Every judgment ordering security must fix the amount up to which the surety must be liable and the time within which it shall be offered.

1965 (1st sess.), c. 80, a. 525; 1999, c. 40, s. 56.

526. A notice mentioning the names, residence and occupation of the surety, and the date and hour when he will be offered at the office of the court, must be served on the opposite party.

1965 (1st sess.), c. 80, a. 526.

527. A surety may be objected to if he has not the qualifications required by law, or if he is insufficient.

1965 (1st sess.), c. 80, a. 527.

528. Whether objected to or not, the surety may be required to justify his sufficiency under oath and, except where the law requires only personal justification, he may, if objected to, be required to declare his real property and produce his titles thereto.

1965 (1st sess.), c. 80, a. 528.

529. The contestation takes place without written pleadings; it is decided summarily by the clerk upon documents and affidavits.

1965 (1st sess.), c. 80, a. 529; 1992, c. 57, s. 420.

530. If the surety is accepted, the bond is drawn up and executed in conformity with the judgment, notwithstanding opposition or appeal, and without prejudice thereto.

1965 (1st sess.), c. 80, a. 530.

531. The rules of this chapter apply with the necessary modifications when the person bound to furnish a surety avails himself of his right to offer any other sufficient security instead.

1965 (1st sess.), c. 80, a. 531; 1992, c. 57, s. 288.

CHAPTER II ACCOUNTING

532. Every judgment ordering an account must fix a time limit for rendering it.

1965 (1st sess.), c. 80, a. 532; 1999, c. 40, s. 56.

533. The account must be filed in court within the time fixed; it must be supported by the affidavit of the accounting party and accompanied with supporting vouchers; a copy must be served on the opposite party.

1965 (1st sess.), c. 80, a. 533; 1999, c. 40, s. 56.

534. The account must be divided into two parts, one for revenue, the other for expenditure, and must close with a recapitulation establishing the balance between revenue and expenditure.

The account is prepared according to generally recognized accounting principles and those provided in the Civil Code in Title VII of the Book on Property, dealing with the Administration of property of others. Receivables are entered under revenue and the cost of preparing and verifying the account and required copies is entered under expenditure, but not so the costs of the judgment ordering the accounting, except with the permission of the court.

1965 (1st sess.), c. 80, a. 534; 1992, c. 57, s. 289.

535. At any time after the filing of an account, the party to whom it is rendered may summon the accounting party, or his bookkeeper, authorized representative or manager, to appear before the judge or the clerk to be examined as a witness on any fact relating to the account.

1965 (1st sess.), c. 80, a. 535; 1992, c. 57, s. 420.

536. If the account shows an excess of revenue over expenditure, the party to whom it is rendered may obtain and execute judgment for the balance, saving his right to contest the remainder of the account.

1965 (1st sess.), c. 80, a. 536; 1992, c. 57, s. 290.

537. The account is held to be admitted if the party accounted to has not contested it within 15 days of the date of filing, and the contestation is held to be well founded if the accounting party has not filed his answers within 15 days of the service upon him of the contestation. The court may, however, for a valid reason relieve a party from the consequences of his default.

After issue is joined by the filing of the answers, the parties proceed to trial in the ordinary way.

1965 (1st sess.), c. 80, a. 537.

538. The judgment upon the account must contain a computation of the revenue and expenditure, and establish the balance, if any.

1965 (1st sess.), c. 80, a. 538; 1992, c. 57, s. 291.

539. If the account is not filed within the time fixed, the plaintiff may prepare it himself, in accordance with the provisions of article 534, and attest its correctness by his affidavit; he may then inscribe for judgment, and the defendant may not contest the account.

1965 (1st sess.), c. 80, a. 539; 1999, c. 40, s. 56.

CHAPTER III SURRENDER

540. The voluntary execution of any judgment ordering the delivery of a movable or an immovable is effected by delivering the movable or surrendering the immovable, in such a manner that the party entitled thereto may become seized or take possession of it, unless the judgment otherwise provides.

1965 (1st sess.), c. 80, a. 540; 1992, c. 57, s. 292.

541. Subject to the rules relating to the exercise of hypothecary rights, a person who wishes to execute voluntarily a judgment ordering him to surrender an immovable subject to a hypothec must file in the office of the court a declaration to that effect and must relinquish possession of the immovable to the Minister of Revenue to whom he must give notice; upon the service of the notice the Minister of Revenue becomes a party to the case.

1965 (1st sess.), c. 80, a. 541; 1992, c. 57, s. 293; 2005, c. 44, s. 54.

542. The Minister of Revenue collects the fruits and revenues due and accrued from the time of the surrender, and may grant leases of the immovable if the sale is delayed for any considerable time.

All the fruits and revenues are immobilized and distributed in the same manner as the sale price of the immovable.

1965 (1st sess.), c. 80, a. 542; 2005, c. 44, s. 54.

TITLE II COMPULSORY EXECUTION

CHAPTER I PRELIMINARY PROVISIONS

DIVISION I EXAMINATION OF DEBTOR AFTER JUDGMENT

543. When a judgment has become executory, the creditor may summon the debtor to appear before the judge or the clerk, either of the district where the judgment was rendered or of the district where the debtor has his residence, to be examined as to all the property that he possesses or has possessed since the incurring of the obligation which was the basis of the judgment, and as to his sources of revenue.

When the debtor is a legal person, the summons must be given to one of its senior officers; when the debtor is a foreign partnership or legal person doing business in Québec, it must be given to its agent.

1965 (1st sess.), c. 80, a. 543; 1992, c. 57, s. 294, s. 420; 1999, c. 40, s. 56.

544. The judge may, at the instance of the creditor, order the debtor to produce any book or document relating to the matters which may be the subject of the examination and permit the examination before the clerk of any person capable of giving information about such matters.

1965 (1st sess.), c. 80, a. 544; 1992, c. 57, s. 420.

545. The provisions of articles 280 to 284 and 293 to 331 apply, so far as may be, to the cases mentioned in articles 543, 544 and 546.1.

Any dispute arising during the examination of the witness must be submitted as soon as possible for decision to the judge in chambers.

1965 (1st sess.), c. 80, a. 545; 1980, c. 21, s. 2.

546. The costs of an examination under this section form part of the costs of execution, unless the judge orders otherwise.

1965 (1st sess.), c. 80, a. 546.

546.1. Where a judgment awarding support has become executory, a judge or, if the matter has not been referred to a judge, the clerk may, on the motion of the person entitled to support and if circumstances justify it, order a person to furnish the person entitled to support with the information he has on the residence and place of work of the debtor in default and, if need be, allow him to be interrogated to that effect before the clerk.

This article applies notwithstanding any inconsistent provision of a general law or special Act providing for the confidentiality or non-disclosure of certain information or documents. It does not, however, apply to a person who has received the information in the practice of his profession and who is bound to the debtor by professional secrecy.

1980, c. 21, s. 3; 1983, c. 28, s. 21; 1992, c. 57, s. 420.

DIVISION II PROVISIONAL EXECUTION

547. Notwithstanding appeal, provisional execution applies in respect of all the following matters unless, by a decision giving reasons, execution is suspended by the court:

(a)  possessory actions;

(b)  liquidation of a succession, or making an inventory;

(c)  urgent repairs;

(d)  ejectment, when there is no lease or the lease has expired or has been cancelled or annulled;

(e)  appointment, removal or replacement of tutors, curators or other administrators of the property of others, or revocation of the mandate given to a mandatary in anticipation of the mandator’s incapacity;

(f)  accounting;

(g)  alimentary pension or allowance or custody of children;

(h)  judgments of sequestration;

(i)  (subparagraph repealed);

(j)  judgments with regard to an improper use of procedure.

In addition, the court may, upon application, order provisional execution in case of exceptional urgency or for any other reason deemed sufficient in particular where the fact of bringing the case to appeal is likely to cause serious or irreparable injury, for the whole or for part only of a judgment.

In the cases provided for in this article, the court may, upon application, make provisional execution conditional upon the furnishing of security.

1965 (1st sess.), c. 80, a. 547; 1992, c. 57, s. 295; 1993, c. 30, s. 15; 1994, c. 28, s. 27; 1995, c. 2, s. 9; 2002, c. 7, s. 98; 2009, c. 12, s. 5.

548. Provisional execution cannot be ordered for costs, even when they are awarded in lieu of damages.

1965 (1st sess.), c. 80, a. 548.

549. If provisional execution has not been ordered by the judgment itself, it cannot thereafter be allowed except on appeal as provided in article 550.

1965 (1st sess.), c. 80, a. 549.

550. A judge of the Court of Appeal may on motion order provisional execution, with or without security, when it has not been ordered or has been dismissed in the judgment appealed from, or cancel or suspend provisional execution, when it has been ordered or when provided by law, or order that security be given by any party who was exempted from doing so by the court of first instance.

The judge to whom the motion is presented may refer it to the court if it is then in session.

1965 (1st sess.), c. 80, a. 550; 1993, c. 30, s. 16.

551. Provisional execution cannot take place until after the service upon the opposite party of the judgment which orders it.

1965 (1st sess.), c. 80, a. 551.

DIVISION III EXEMPTIONS FROM SEIZURE

552. The debtor must be permitted to select from among his property and withdraw from seizure:

(1)  The movable property which furnishes his main residence, used by and necessary for the life of the household, up to a market value of $6,000 established by the seizing officer;

(2)  The food, fuel, linens and clothing necessary for the life of the household;

(3)  The instruments of work needed for the personal exercise of his professional activity.

Nevertheless, with the exception of the property mentioned in subparagraph 2 of the first paragraph, the property referred to in the first paragraph may be seized and sold for the amounts owed on the price of the property or by a creditor holding a hypothec thereon, as the case may be. However, if the debtor is a fisherman, his fishing boats and equipment cannot be seized or sold between 1 May and 1 November.

The valuation of the seizing officer may be revised by the court; if the court is of the opinion that the value of the property left to the debtor is below the value permitted, it may allow the debtor to choose and take from among the seized property that which is required to make up the difference.

Any renunciation of the exemptions from seizure resulting from this article is null.

1965 (1st sess.), c. 80, a. 552; 1969, c. 80, s. 10; 1972, c. 70, s. 20; 1977, c. 73, s. 17; 1986, c. 55, s. 3; 1992, c. 57, s. 296.

553. The following are exempt from seizure:

(1)  Consecrated vessels and things used for religious worship;

(2)  Family papers and portraits, medals and other decorations;

(3)  Property declared by a donor or testator to be exempt from seizure, which may however be seized by creditors posterior to the gift or to the opening of the legacy, with the permission of the judge and to the extent that he determines;

(4)  Judicially awarded support and sums given or bequeathed as support, even if not declared to be exempt from seizure by the instrument evidencing the gift or bequest;

(5)  Books of account, titles of debt and other papers in the possession of the debtor, saving the things mentioned in article 570;

(6)  Contingent emoluments and fees due to ecclesiastics and ministers of religion by reason of their current services, and the income of their clerical endowment;

(7)  Benefits payable under a supplemental pension plan to which an employer contributes on behalf of his employees or under a voluntary retirement savings plan governed by the Voluntary Retirement Savings Plans Act (chapter R-17.0.1), other amounts declared unseizable by an Act governing such plans and contributions paid or to be paid into such plans;

(8)  Periodic disability benefits under a contract of accident and sickness insurance;

(9)  Reimbursement of expenses incurred under a contract of accident and sickness insurance;

(9.1)  Property of a person that he requires to compensate for a handicap;

(10)  (Subparagraph repealed);

(11)  All gross salaries and wages to the extent of 70% of the excess over the following unseizable portion:

(a)  $180 per week, plus $30 per week for each dependant in excess of two, if the debtor is supporting his or her spouse, has a dependent child, or is the main support of a relative; or

(b)  $120 per week in all other cases.

The person of the opposite or the same sex with whom the debtor has been cohabiting for three years or for one year if a child has issued from their union is considered to be the de facto spouse of the debtor, provided the debtor is neither married nor in a civil union.

In calculating salaries and wages account must be taken of any remuneration in money, kind or services, paid for services rendered under a contract of employment, of enterprise, for services or of mandate, excepting:

(a) the contributions of the employer to pension, insurance or social welfare funds;

(b) the value of the food and lodging supplied or paid for by the employer on the occasion of travelling while carrying out work;

(c) passes given by a transportation undertaking to its employees;

(11.1)  50% of sums payable under the Family Orders and Agreements Enforcement Assistance Act (Revised Statutes of Canada, 1985, chapter 4, 2nd Supplement);

(12)  Anything declared unseizable by law.

However, notwithstanding any contrary provision of a general law or special Act, any income referred to in paragraph 4, 6, 8 or 11, as well as any amount mentioned in paragraph 7, is unseizable, in the case of effecting partition of a family patrimony or of a debt for support or a compensatory allowance between married or civil union spouses, to the extent of 50%.

1965 (1st sess.), c. 80, a. 553; 1974, c. 70, s. 469; 1977, c. 73, s. 18; 1979, c. 37, s. 29; 1980, c. 21, s. 4; 1982, c. 17, s. 26; 1982, c. 58, s. 21; 1986, c. 55, s. 4; 1988, c. 17, s. 4; 1989, c. 55, s. 30; 1992, c. 57, s. 297; 1999, c. 14, s. 9; 2002, c. 6, s. 101; 2013, c. 26, s. 131.

553.1. Works of art or historical property brought into Québec and placed or intended to be placed on public exhibit in Québec are also exempt from seizure, if the Government declares them so, and for such time as it determines. Such works or property must not have been originally conceived, produced or created in Québec.

The order in council passed in virtue of the first paragraph comes into force on its publication in the Gazette officielle du Québec.

Exemption from seizure as prescribed in this article does not prevent the execution of judgments rendered to give effect to service contracts relating to the transportation, warehousing and exhibition of the works and property referred to in the first paragraph.

1976, c. 48, s. 1.

553.2. An immovable serving as the principal residence of the debtor is also exempt from seizure where the amount of the claim is less than $10,000, except where

(1)  the claim is secured by a prior claim or legal or conventional hypothec on the immovable other than a legal hypothec securing a claim arising out of a judgment;

(2)  the claim is a claim for support;

(3)  the immovable is already validly under seizure.

For the purposes of this article, the amount of the claim is that of the judgment under which the immovable could be seized, including interest accrued from the date of the judgment, but not including costs.

1986, c. 55, s. 5; 1989, c. 55, s. 31; 1992, c. 57, s. 298; 1996, c. 5, s. 41.

DIVISION IV

Repealed, 1995, c. 18, s. 80.

1988, c. 56, s. 1; 1995, c. 18, s. 80.

553.3. (Repealed).

1988, c. 56, s. 1; 1995, c. 18, s. 80.

553.4. (Repealed).

1988, c. 56, s. 1; 1995, c. 18, s. 80.

553.5. (Repealed).

1988, c. 56, s. 1; 1995, c. 18, s. 80.

553.6. (Repealed).

1988, c. 56, s. 1; 1993, c. 72, s. 20; 1995, c. 18, s. 80.

553.7. (Repealed).

1988, c. 56, s. 1; 1995, c. 18, s. 80.

553.7.1. (Repealed).

1993, c. 72, s. 20; 1995, c. 18, s. 80.

553.8. (Repealed).

1988, c. 56, s. 1; 1995, c. 18, s. 80.

553.9. (Repealed).

1988, c. 56, s. 1; 1988, c. 51, s. 108; 1992, c. 44, s. 81; 1994, c. 12, s. 67; 1995, c. 18, s. 80.

553.10. (Repealed).

1988, c. 56, s. 1; 1995, c. 18, s. 80.

CHAPTER II GENERAL RULES AS TO COMPULSORY EXECUTION

554. Judgments containing a condemnation cannot be executed except by a bailiff, sheriff or a sheriff’s officer in virtue of a writ in the name of the Sovereign.

Unless specifically otherwise provided, any sheriff or bailiff may execute a writ anywhere in Québec.

The taxable costs of execution are the costs chargeable by a bailiff pursuant to the regulation made under section 13 of the Court Bailiffs Act (chapter H-4.1).

1965 (1st sess.), c. 80, a. 554; 1966, c. 21, s. 10; 1979, c. 37, s. 30; 1982, c. 32, s. 48; 1989, c. 6, s. 3; 1989, c. 57, s. 37; 1995, c. 41, s. 19.

555. The writ must mention the date of the judgment to be executed and the amount of the condemnation; it is prepared by the seizing creditor, and signed and issued by the clerk of the district where the judgment was rendered.

1965 (1st sess.), c. 80, a. 555; 1979, c. 37, s. 31; 1992, c. 57, s. 420.

556. On proof that a writ of execution has been lost or destroyed, the clerk may issue a new one or, if a seizure has already been made, a writ commanding the competent officer to sell the property seized.

The clerk may also issue the last-named writ where the seizure was made before the judgment to be executed was rendered.

1965 (1st sess.), c. 80, a. 556; 1987, c. 48, s. 3; 1992, c. 57, s. 420.