Arrival of the Pre-Court Protocol in the Code of Civil Procedure

Explanatory notes

Arrival of the Pre-Court Protocol in the Code of Civil Procedure

The preliminary provision of the Code of Civil Procedure provides that the procedure applicable to private dispute prevention and resolution processes is governed by the Code of Civil Procedure, the Civil Code and with the Charter of Human Rights and Freedoms (c. C-12) and the general principles of law, unless otherwise determined by the parties.

The legislature specifically provided in Book VII, which governs private dispute prevention and resolution processes, specific provisions with respect to mediation (art. 605 to 619 NCCP) and to arbitration (art. 620 to 655 NCCP), two modes of private dispute resolution which are well established.

The public hearings of the Commission of Institutions demonstrated that there exists a multitude of private modes to resolve disputes. This explains why the legislature also permits the parties to choose by mutual agreement the private dispute prevention and resolution process that suits them, whether or not it is based on the negotiation, mediation or arbitration modes listed in art. 1 NCCP.

It will therefore be up to lawyers to determine with their clients the most appropriate approach for a dispute resolution process and to use their leadership and creativity to take advantage of this new opportunity.

Among the private dispute prevention and resolution processes, the pre-court protocol is the least restrictive model, one where the parties' lawyers will play a decisive role.

Clearly, the legislature’s intent is that the pre-court protocol mechanism will provide the parties with the flexibility they may require without burdensome restrictions.

Unlike certain private dispute resolution models that rely on a third party, the costs of which must be shared by the parties (e.g., arbitration or mediation), the pre-court protocol can provide that each party will pay its own costs.

The obligation to consider private modes of dispute resolution

The fact that the parties are obligated to consider private modes of dispute resolution should provide them incentive to resort to a pre-court protocol.

Some may believe that they need only say they have "considered" a private mode of dispute resolution in order to satisfy this obligation. However, since private modes of prevention and dispute resolution now form part of the fabric of civil justice, citizens resorting to the public justice system are accountable and must carefully consider the private modes of dispute resolution prior to choosing their model.

The obligation to consider a dispute resolution process does not automatically void any lawsuit that was not preceded by an attempt at settlement. However, the mandatory nature of that obligation will lead to a material change in the role and conduct of lawyers. They will now be bound to provide their clients a range of options to choose an appropriate conflict resolution model.

This change in behaviour is critical: if the dispute is brought before the courts, the parties will have to account for the consideration they have given to a private mode of settlement prior to instituting legal proceedings. Indeed, immediately after filing an application to start legal proceedings, the parties will be required to collaborate in the preparation of the case protocol where they must state what consideration and steps were taken to settle the dispute through the use of a private mode of dispute prevention and resolution (art. 148 NCCP).

A protocol developed to facilitate communication and collaboration

The pre-court protocol is a private mode of dispute resolution, drawn up by the parties themselves, which promotes the exchange of information and documents in a framework that facilitates collaboration.

The voluntary nature of the prevention and dispute resolution process involves a commitment of the parties to act in good faith, with transparency and in a spirit of cooperation.

Since the Code is interpreted in the civil law tradition, the pre-court protocol must take into account the duty of the parties to cooperate by informing each other, at all times, of all facts and elements likely to foster a fair debate and to ensure the preservation of relevant evidence (art. 20 NCCP).

The private dispute prevention and resolution process must not be used to delay settlement of the dispute or to obtain information which will be subsequently used against the other party.

In fact, the pre-court protocol should provide for a more informal and especially a more targeted approach to obtain or produce information that will, in any event, ultimately be required by the case protocol process if the dispute were to end up before the courts.

The duty of good faith is vital to the process; it allows the parties to be transparent when sharing information, to have confidence in the opposite party and to provide information, knowing that it will not be misused and that the other party will not destroy the elements that might serve as evidence.

The duty of good faith is also fundamental when solutions are proposed to bring the parties closer to a settlement. They must assess the solutions knowing it would be disadvantageous if one of them does not respect the good faith principle. The absence of good faith can pervert the quality of the process and make the prospects of settling the dispute illusory.

Agreeing to a pre-court protocol establishes a spirit of cooperation even before any proceedings are ever commenced. This common goal, to circumscribe the debate in order to obtain a settlement, is very similar to the goal and content of the case protocol.

The principle of proportionality

Since the principle of proportionality applies to all legal proceedings (art. 18 NCCP), it follows logically that it must equally apply to dispute resolution steps required to be taken prior to any legal action, as provided in Article 2 NCCP.

There are many modes of participatory justice. When making their choice on what mode is most suitable, and in all their efforts, the parties and third parties who assist them must adapt their approach to the issues at stake. Lawyers must be creative when they propose to the parties the approach that is best suited to resolve the dispute.

A targeted approach in three steps

What is the best approach to establish a climate of collaboration between the parties to settle the dispute while avoiding simply reproducing the entire process of civil procedure?

A focused and targeted three-step approach is proposed:

1. Mutual exchange by the parties of the information and documents they hold;
2. The parties jointly define the issues to be resolved;
3. Meetings between the parties in order to explore solutions.

At the outset, the parties must exchange all relevant information and documents and briefly state their claims.

Then, the parties can agree to prepare a summary of the issues to be resolved in order to understand their respective issues. This exercise is essential: if one can identify the stumbling block, the crucial point that divides the parties, communication efforts will be better focused and will not be wasted on secondary aspects, which the parties can later agree on more easily.

During the meetings stage, it is important that the parties discuss matters in person to better understand and assess the needs, interests and positions of each; meetings are conducive to finding solutions that can lead to a mutually satisfactory agreement to settle the dispute. The parties may agree to invite to any meeting all those whose contribution could be useful to facilitate the process and assist in finding a solution to the dispute.

The timeline of the pre-court protocol

To optimize the efficiency of the pre-court protocol, the parties must agree on reasonable deadlines for each step of the process.

The exchange of relevant facts may proceed more or less quickly depending on the nature of the documents to be obtained or produced (obtaining records, reports, expert opinions, documents, interviews of witnesses, etc.). The search for the relevant facts is fundamental to the resolution of the dispute. While respecting the rule of proportionality, reasonable time must be allocated for this stage. The same comment applies to the other two stages: determination of the issues and meetings between the parties.

It is important to instill and maintain a dynamic process in the pre-court process. It will serve its purpose only if all parties collaborate fully and act diligently. If deadlines are not met, the parties may lose interest and the process could fail. Keep in mind that this private method of dispute settlement is voluntary and that a party may, at any time, in its sole discretion and without being required to disclose its reasons, withdraw from or terminate the pre-court process.

Confidentiality of the pre-court process

The entire pre-court process must remain confidential. Experience has shown that, as in mediation or negotiation of a settlement or when participating in a settlement conference, confidentiality is essential for the parties to propose solutions without compromising their rights.

The parties and participants to the pre-court process should not be compelled to disclose in any arbitration, administrative or judicial proceeding, whether or not related to the dispute, what they learned during the pre-court process, nor be compelled to produce a document prepared or obtained during the process, unless the law requires disclosure or if the parties agree to it. No information provided or statement made in the course of a pre-court process should be used as evidence.

The parties may also require that all other participants in the process sign a confidentiality agreement.

However, there may be circumstances where the parties may wish to agree that certain elements could be used in any subsequent court proceedings (e.g. a statement from a witness, an expert report or a document).

The parties must inform the court that they entered into a pre-court protocol and participated in the process, as required by the case protocol (art. 148 MCPC). However, they must not disclose any other information unless, by mutual agreement, the parties want to demonstrate to the court all the efforts deployed in the pre-court process.

Waiver of prescription and suspension of prescription

To encourage the use of private modes of dispute resolution, the legislator allows the parties to waive prescription already acquired and the benefit of elapsed time or to suspend prescription for the duration of the dispute resolution process, including the pre-court protocol process, provided that this suspension does not exceed six months. In the absence of this, the imminent arrival of the limitation period might force the parties to the dispute to institute legal action before the courts.

In the event that the role of the parties involved in the dispute is known but their respective liabilities are not, lawyers can use the pre-court protocol, including an agreement to suspend prescription, in order to assess their respective liabilities. This type of approach would allow the parties to avoid engaging in a legal process doomed to failure.

The parties retain control of their case

The principle that the parties retain control over the presentation of their case, an essential component of our adversarial legal system, still applies to private modes of dispute resolution, provided that the principles, objectives and rules of procedure and time limits established by the Code are respected (art. 19 MCPC).

The pre-court process must be conducted to comply with the obligation of the parties to cooperate to limit the case to what is necessary to resolve their dispute. Although the parties retain control of their case, the legislator has emphasized the social responsibility of the parties to attempt to resolve the dispute prior to taking legal action.

Once proceedings are brought before the court, it is the mission of the court to ensure proper case management. In the pre-court phase the parties alone are responsible for the promptness and fairness of the process.

The legislator has even provided that the court may stay legal proceedings for the period it deems appropriate if it is demonstrated that the legal recourse is of a conservatory nature, that the case could be settled amicably and that efforts to prepare the case for trial would then be unnecessary or disproportionate in the circumstances, if the court is also convinced of the seriousness of the steps taken to attempt settlement (art. 156 MCPC). This provision is another incentive to consider private modes of dispute resolution even after taking legal action.

The link between the pre-court phase and the legal proceedings

The pre-court process should not result in a doubling down of the judicial process and adding expenses; it should avoid any additional costs, as required by the principle of proportionality.

The pre-court process can be effectively linked to conventional legal proceedings. In the words of a Judge of the Court of Appeal, the Honourable Guy Gagnon (then Chief Justice of the Court of Québec):

"If taking legal proceedings before the Courts becomes inevitable, fulfilling the pre-court protocol process requirements would allow the parties to benefit from a case ready for trial, rather than a case that will need to be completed piecemeal complying with the procedural requirements inherent in the civil procedure related to the case. It is therefore not necessary to run on at length to demonstrate the great benefits that arise from a case that is virtually complete when the legal proceedings are filed before the court."

Self-represented litigants

Litigants who represent themselves present a challenge for the dispute resolution process. This is a new reality to which the legal system must adapt.

Litigants who act for themselves without being represented by a lawyer must comply with the rules of procedure established by the Code of Civil Procedure. This includes the guiding principles of procedure, the principle of proportionality and the obligation of the parties to cooperate by informing each other at all time of the facts and elements likely to foster fair debate. Just as when the parties are represented by counsel, litigants representing themselves must notify the other party of the facts on which they base their claims and the evidence they intend to produce.

The obligation of confidentiality inherent in a pre-court process agreed to by an individual who is representing himself might not be relied upon with the same assurance as when the parties are represented by lawyers who must comply with their code of ethics.

Importantly, since it is always open to any party to withdraw from the pre-court process without justification, the risks of the process should not overshadow the benefits, even where a litigant represents himself and who, as much as a party represented by counsel, is required to consider a private mode of settlement before taking legal proceedings before the court.

Hearing by preference

Should the Code of Civil Procedure have provided that parties involved in a private mode of dispute resolution would benefit from a preferential date of hearing or a fast-track for their case? Are those who resort to the private settlement process disadvantaged because they incur expenses and undergo delays before taking proceedings before the court?

Clearly, the legislature has chosen to establish an obligation to consider private modes of dispute resolution as an incentive, in the belief this will lead to a change in the culture of the legal system.

To the extent that the steps taken in the pre-court process are useful to identify key issues and collect relevant information, the parties will find that their expenses and the associated delays would have been incurred anyway in the judicial process. One hopes that the parties will benefit from this more informal environment, which permits them to decide for themselves how their case can be made without having to do so under court supervised case management.

Conclusion

Used wisely, the pre-court protocol will not only help to reduce the costs, but also the number of actions brought before the civil courts, while fostering a culture of exchange of information and the exploration of alternative solutions rather than judicial resolution of the dispute.

This is a first step towards a new culture in our legal system. Lawyers will have a significant role to play in the promotion and application of this new, more collaborative approach.

The legislature has decided not to define precisely the terms of a pre-court protocol. Rather, it calls upon the parties to get involved in choosing the most appropriate approach to the issues in dispute that concern them.

Finally, even if the court protocol does not lead to resolution of the dispute, the parties may consider other private modes of dispute resolution. (mediation or arbitration).