14 January 2016
Montréal, January 14, 2016 – On February 21, 2014, Bill 28 An Act to establish the new Code of Civil Procedure, received royal assent. It would take nearly 2 years for the new Code of Civil Procedure, CQLR c C-25.01 (hereinafter referred to as the n.C.c.p.) to finally come into effect on Janurary 1, 2016. In its first, the n.C.c.p. section provides that “parties must consider private prevention and resolution processes before referring their dispute to the courts.” Many other n.C.c.p. provisions have the objective of encouraging parties to reach an out-of-court settlement of the dispute, at the very least, to preserve judicial ressources to obtain a judgment. This civil procedure reform appears to show a willingness of the State to force parties to assume an increased share of the costs associated with the settlements and provisions of civil litigation.
The Young Bar of Montreal (YBM) considers that the privatization of the pretrial process, bailiffs’ fees in particular, should be reimbursed by the State as part of the costs it assumes, which are associated with the enforcement of judgments. this measure is an acceptable economic and social compromise in the division of the costs associated with civil justice.
For parties who must go through the court system, the costs associated with enforcing civil judgment can be prohibitive. Section 680 of the n.C.c.p. provides that once a judgment is rendered, “A creditor who wishes to force execution of a judgment gives execution instruction to a bailiff. (…) The creditor sends to the bailiff, together with the instruction, the money necessary for the execution of the judgment.”
After a high-priced judgment, the idea of paying even more fees to compel a debtor to pay his debt is a justifiable source of irritation, and even discouragement. if a citizen is obliged to pay the high price of a court judgment, then the State has to assume the cost of the execution of that judgment, notwithstanding exceptional cases justified by an overriding public interest.
This situation is all the more aggravating for applicants who win a judgment in the Small Claims Court Division of the Court of Quebec. Litigants who represent themselves for claims of $15,000 or less are often misinformed, and do not expect to incur hundreds of dollars of additional costs to enforce their judgment, fess which sometimes surpass the amount of the claim.
By assuming the costs necessary to enforce judgments – which could be collected from debtors – the gouvernement would demonstrate a spirit of equity likely to restore publis confidence in our justice system.
The Young Bar of Montreal
Founded in 1998, the YBM represents the 4,600 lawyers registered in Montreal with ten years or less of call to the bar. these young lawyers work in all fields of law and aim to make their mark on the legal profession. they are the next generation at a national and international level. They are influential, involved in the community, and destined to be leaders in all sectors of society. The mission of the YBM is to be a principal player in public affairs and the dissemination of legislative news.
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Anne-Marie Lelièvre
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