Access to justice: Striving to do better.

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3 Access to justice: Striving to do better.

4 A WORD FROM THE CHIEF JUSTICE

5 I am pleased to present this activity report produced by the Superior Court of Québec, an institution that just celebrated its 160 th year of activity. Such a milestone causes us to focus on the ongoing evolution of the Court, the arrival of new judges, the creation of new divisions, and the challenges that lie ahead. The span of the Superior Court s jurisdiction and the variety of the issues its judges are called upon to decide are considerable. They encompass the determination of alimony, the weighing of complex constitutional issues, the adjudication of highly-important commercial litigation, and the presiding over long, highly-publicised criminal cases. The Superior Court defi nes its mission as follows: The Superior Court is an institution accessible to all citizens. Its judges are competent, empathetic, efficient, effective, in tune with today s realities and proud of the role they play on the Court. The Court must be accessible to all citizens, whether they live in large urban areas or in smaller regions. It must also dispense but one kind of justice. In 2003, the reform of civil procedure resulted in judges having to adapt to a new type of judicial culture based on the prevalence of good faith, better case management, judicial conciliation, and the application of the principle of proportionality between the cost and time required for proceedings, on the one hand and, on the other, the nature, purpose, and complexity of the case. The legislator reminds us that, although the parties to a case are masters of their own fi les, they are nevertheless required to act in such a way as to avoid unnecessarily affecting others adversely or in a manner that could be excessive or unreasonable. Judges are also called upon to ensure respect for proportionality. In recent years, settlement conferences have increased in number and have enjoyed remarkable success. As well, we continue to enhance our efforts with a view to improving general case management. Thus we strive to adapt to the new judicial reality, to simplify procedures and reduce costs, and, in general, to make justice more accessible. In this respect, the Superior Court is perceived as a forward-looking and innovative tribunal. I commissioned this report with the objective of demonstrating how the Superior Court is living up to its commitment to serve all citizens. I would like to thank all of my colleagues who helped in the preparation of this report, particularly those responsible for the Court s different divisions, as well as my executive assistant, Me Gilles Tremblay, those colleagues whose photographs appear within, Senior Associate Chief Justice Robert Pidgeon, and Associate Chief Justice André Wery. As well, I would be remiss if I failed to underline the exceptional contribution of my colleague, Judge Ginette Piché, who devoted much time and energy to its preparation and to whom I wish to express my sincere gratitude. Finally, I would like to thank the ministère de la Justice du Québec which, in keeping with its mandate to support the Court s activities, underwrote the production costs. I trust you will enjoy reading it. François Rolland, Chief Justice Superior Court of Québec A word from the Chief Justice P05

6 Civil Division Hélène Langlois Judge Superior Court of Québec

7 TO ACT WITH DILIGENCE EARLY IN THE FILE-PREPARATION PROCESS CONSTITUTES THE CORNERSTONE OF THE COURT S COMMITMENT TO ENSURE better ACCESS TO JUSTICE. The goal of early intervention in a case is to defi ne the issues in dispute clearly from the onset, thus limiting fi le-preparation costs and hearing time. As well, this approach raises awareness among the parties of the opportunity to resort to dialogue rather than to confrontation in order to settle their disputes, a process in which a judge can play a useful role. As is the case in other areas, the use of settlement conferences early on can be an important factor in terms of saving both time and money. Civil Division P07

8 HIGHLIGHTS OF THE PAST FIVE YEARS Several committees comprised of members of the Bar, of the ministère de la Justice and of the judiciary identifi ed a number of elements that needed to be reworked in order for cases to be heard more effi ciently, promptly, and economically. The primacy of this goal was underlined by the addition of new provision to the Code of Civil Procedure in 2003 by which the parties and the Court are provided a guideline to direct their actions. It reads: 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. MORE DIALOGUE (Article 4.2 of the Québec Code of Civil Procedure) Various concrete measures have been implemented in order to reach this objective, including an effort to control the use of the expert witnesses who are called upon to assist the Court in evaluating more technical matters. The need to simplify the process, notably by limiting the number of expert opinions and relying on a single expert, constitutes an important means of reducing costs and delays. Limiting out-of-court examinations, both as to number and to length, is another. As well, through the use of case-management notices, the parties can request the Court to assist them in promptly and without formality settling questions or confl icts regarding the preparation of a case. Technology is put to good use in this respect, since the hearing of such matters may take place over the telephone, by prearranged appointment. Finally, the Court regularly reminds parties that certain actions may and must be defended orally rather than in writing, a process that can greatly simplify preparation for trial. Files subject to this process are given priority. The Court s supervision is not limited to preparation for trial. It also bears on the trial itself, on the witnesses that are called to testify, on the subject and duration of their testimony, and on the use of experts - all this in order to ensure that cases are heard effi ciently. In concrete terms, fi les are processed in different ways according to their needs. In certain cases, pre-targeted because of their particular nature, their complexity or their expected duration, the lawyers or the parties are called before a judge as soon as the action is instituted in order to avoid any potential loss of control. Others are referred to a judge as a result of preliminary motions that identify problems that appear to be preventable. Some also become the object of a last-minute intervention where there appears to be a possibility of out-of-court settlement. Except for class actions, commercial fi les and actions that are the subject of a court order, the management of a case is not assigned to a single judge. As a general rule, case management is handled on a relay basis by a group of judges specifically charged with management tasks. Hence, the Court actively strives to provide the parties with the tools to facilitate the preparation and effi cient processing of their fi le. In that context and with the assistance of the ministère de la Justice, which is responsible for supplying its equipment, the Court takes advantage of new technologies, such as teleconferencing and videoconferencing, in order to reduce both costs and delays. In addition to its management role, the Court focuses its efforts on its main role, that of hearing and adjudicating on cases. In that respect, the workload carried by judges remains considerable. After a dramatic decline, the number of cases heard by the Civil Division has risen slightly over the past few years while, over the same period, the time required to hear individual trials has increased. The number of cases that require months of hearing, not to say years, is also on the increase, thereby monopolizing all of a judge s time and energies for that period. Among those cases: the actions in damages for violation of copyright in the Robinson affair, for the collapse of the Montréal Olympic Stadium roof in the Birdair trial, and for the cancellation of a contract to supply a waste-processing plant to the City of Montréal in the Foster Wheeler case. Given that its staffi ng remains unchanged, the Court faces major challenges as a result of protracted hearings such as those mentioned above. P08

9 LESS CONFRONTATION LESS CONFRONTATION LESS CONFRONTATION LESS CONFRONTATION LESS CONFRONTATION LESS CONFRONTATION LESS CONFRONTATION JURISDICTION The Civil Division constitutes the forum for the processing of civil cases. The Court hears trials involving amounts of $70,000 and over, particularly those dealing with civil and contractual liability, damages in cases of injury, dismissals, hidden defects, defamation, breach of contractual obligations, and more. Such cases may involve individuals as well as bodies corporate and companies. This division also adjudicates on claims for injunctions and other pre-trial motions. As well, it exercises superintending and reforming power over decisions rendered by provincial tribunals and other bodies, in particular, administrative tribunals, as well as over decisions that aim to compel a body politic to perform a duty or to remove an individual from his or her duties. MAIN PROCEDURAL STEPS The actions heard in this division begin with a motion to institute proceedings containing a concise statement of the facts on which the claim is based and of the conclusions sought. A copy of the motion must be served on the opposing party, which has ten days from service to appear in order to answer to the allegations contained in it. The action must be prepared and inscribed for proof and hearing within 180 days following its service, failing which the plaintiff is presumed to have discontinued it. Once a fi le is declared ready for hearing after verifi cation by a Court offi cer, the parties are summoned to set a date for trial. A judge then hears the case on the date reserved. A judgment must be rendered in the six months following the trial. CASE MANAGEMENT IS THE TOOL THAT MAKES TRUE ACCESS TO JUSTICE POSSIbLE. SOME FIGURES More than 18,000 fi les dealing with civil matters were opened in Québec between September 2008 and August 2009, an increase of 35% in comparison to the judicial year. The majority of all files originated in the larger urban centres. It is interesting to note that, in 1996, over 32,000 files were opened, while in 2005 that number dropped to a low of 15,700. Suzanne Ouellet Judge Superior Court of Québec Civil Division PO9

10 Commercial Division Clément Gascon Judge Superior Court of Québec

11 UNDERSTANDING THE PARTICULAR NEEDS OF THE business COMMUNITY IN ORDER TO ADDRESS THE NEEDS OF THE business COMMUNITY, THE SUPERIOR COURT ENSURES THAT PARTIES INVOLVED IN COMMERCIAL LITIGATION PROCEED before JUDGES WHOSE TRAINING AND EXPERIENCE MAKE THEM EXPERTS IN THE AREA. These judges are available at short notice to provide quick and practical solutions to commercial disputes. Through this initiative, the Court is following the trend towards a more modern approach to fi le management favoured in most of the important jurisdictions in North America. Given the constant and rapid evolution of this area of the law, these judges receive ongoing training year round. In spite of their particular expertise, the judges assigned to the Commercial Division do not work exclusively in that area. They also hear cases in administrative, civil, criminal, or family matters that are within the jurisdiction of the Superior Court. Commercial Division P11

12 HIGHLIGHTS OF THE PAST FIVE YEARS The examples that follow attest to the numerous achievements of the Court in commercial litigation over the past fi ve years: THE ARRANGEMENT REGARDING THE TAKEOVER OF BCE BY TEACHERS ( ) that resulted in a unanimous judgment of the Supreme Court of Canada upholding the ruling in first instance of the Commercial Division of the Superior Court of Québec; THE MERGER OF THE MOLSON AND COORS COMPANIES (2006) that resulted in the creation of one of the largest breweries in North America; THE RESTRUCTURING OF TQS ( ) in the television/ broadcasting industry; THE RESTRUCTURING OF ATTRACTIONS HIPPIQUES ( ) in the horse-racing industry; THE RESTRUCTURING OF QUÉBÉCOR WORLD INC. ( ), a case that required interaction and cooperation with the Bankruptcy Court of the State of New York; THE RESTRUCTURING OF MECACHROME ( ), in cooperation with the French courts; JURISDICTION The Commercial Division exercises its jurisdiction in the application of the Canadian Bankruptcy and Insolvency Act (CBIA), the Canadian Companies Creditors Arrangement Act (CCCA), the Canada Business Corporations Act (CBCA), the Loi sur les compagnies du Québec (LCQ), and other Canadian and Québec laws on liquidation and restructuring (LLR). Under the CBIA, for example, there is litigation related to bankruptcy orders against individuals and companies, proposals, preferential payments, and the distribution of bankrupts assets. With respect to arrangements under the CCCA, the Court decides on initial orders to allow companies to restructure as well as on questions related to the restructuring process itself, from the determination of priority charges and the sale of assets to the approval of the fi nal plan of arrangement. Finally, matters arising under the CBCA, the LCQ, and the LLR relate for the most part to issues between shareholders, trials for the correction of abuse, and proceedings related to the liquidation and dissolution of companies. In addition to matters arising under the specifi ed statutes, the general guidelines applicable to proceedings before the Commercial Division provide that any matter of a commercial nature may be assigned to the division at the discretion of the Chief Justice or the coordinating judge. THE RESTRUCTURING OF ABITIBIBOWATER ( ), one of the world s largest papermakers, a case that required constant coordination with the Bankruptcy Court of the State of Delaware; THE BANKRUPTCIES OF MOUNT REAL ( ) AND NORBOURG ( ),which required the recovery of assets in a number of jurisdictions; THE LIQUIDATION OF KANSA INSURANCE (2005 to 2009); THE RESTRUCTURING OF DAVIE SHIPBUILDING (2010); Some of these fi les had major repercussions across the country. In other cases, our judges had to interact with colleagues in other jurisdictions on a regular basis in order to coordinate successful restructurings. National and international realities figure at the forefront of the daily concerns of the Commercial Division, whose importance and leadership role are recognized across Canada. P12 Commercial Division

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14 MODUS OPERANDI Files dealing with arrangements, restructurings, and reorganisations are automatically subject to special case management by the team of judges of the Commercial Division. They oversee and supervise these fi les on an ongoing basis twelve months a year, as required. In that sense, the Commercial Division never recesses. The fact that restructuring and reorganisation fi les are subject to special case management means that the parties have access to what might be termed a judge by appointment, who is totally conversant with the particulars of the case. Finally, the Court embraces modern means of telecommunications. Indeed, the electronic fi ling and serving of procedures and documents, along with the use of to communicate with judges, have become commonplace. The use of standard orders in certain matters involving the CCCA, for example, facilitates the judge s work and, by the same token, increases the effi ciency of the Court. With a view to offering the legal community a competent, effi cient, and effective service, the division frequently meets with the Bar, generally through the liaison committee on commercial affairs. These meetings take place four or fi ve times a year. In the same spirit, judges from the Commercial Division participate as speakers or panellists at most national and international conferences on insolvency, reorganisation, and restructuring, whether the conferences are held in Canada or elsewhere in the world. OPERATIONS The coordinating judge manages the Commercial Division and assigns the cases to its judges. In addition, he or she is in regular contact with the lawyers and citizens that appear before the division. The division s judges are supported in their work by Bankruptcy Registrars who adjudicate on the various matters within the jurisdiction granted to them under the CBIA. This increases the effi ciency of the division, particularly in the areas of personal bankruptcy and discharge, which for the most part are referred to Registrars. The Commercial Division operates its own registry staffed by specially-trained and experienced personnel. As well, because of the inherent scope of modern commercial activity, the division regularly deals with foreign bankruptcy tribunals, including those of the States of New York and Delaware, in the context of cross-border restructurings. In each such case, judges from the jurisdictions involved implement and apply protocols to facilitate the communication and cooperation necessary to coordinate restructurings involving subsidiaries and assets located in both Canada and the United States. Such cross-border cooperation is a necessary adjunct to the jurisdiction of the Commercial Division. The resulting protocols explicitly recognize the sovereignty of each party over the issues that concern them and are, in fact, tools intended to resolve procedural issues, as opposed to matters of substantive law. Among other things, they allow for the holding of joint hearings through videoconferencing and for the simultaneous release of judgments on subjects requiring coordination. Although the use of such protocols is more easily accepted in common law jurisdictions, such as the United States, the Commercial Division has nevertheless managed cross-border restructurings with civil law jurisdictions, such as France (the Mecachrome fi le). In such cases, communications and coordination are established through court offi cers, such as monitors on the Canadian side and judicial liquidators on the French side. In this respect, Canadian legislation, such as the CBIA and the CBCA, contains specific provisions on matters of cross-border and international insolvency and restructuring inspired by the model law of the United Nations Committee on International Trade Law (UNCITRAL). P14

15 MAIN PROCEDURAL STEPS Commercial litigation may require the application of a number of different laws within the jurisdiction of the Commercial Division. Litigation arising from the CBIA, for example, may be linked to bankruptcy orders, to the distribution of a bankrupt s assets or to a proposal. Under the Canadian Companies Creditors Arrangement Act, cases range from issuing initial orders for the restructuring of a company to approving the restructuring process, the sale of assets, and the plan of arrangement. Given the complexity and peculiarities of these laws, it is particularly important for the parties to be represented by a trained legal professional, especially for the purpose of drafting the introductory motion setting out the relevant facts and the conclusions sought. In all cases, proceedings are treated as promptly as their urgency requires. CbIA Canadian Bankruptcy and Insolvency Act CCCA Canadian Companies Creditors Arrangement Act CbCA Canadian Business Corporations Act LCQ Loi sur les compagnies du Québec LLR Canadian and Québec laws on liquidations and restructurings FACED WITH EVER MORE COMPLEX SITUATIONS, THE COMMERCIAL DIVISION ADAPTS CONSTANTLY IN ORDER TO RESPOND TO THE PARTIES NEEDS Étienne Parent Judge Superior Court of Québec Commercial Division P15

16 Family Division Marie-Christine Laberge Judge Superior Court of Québec

17 The particular dynamics of family confl icts are such that the typical adversarial structure of court hearings is often inappropriate in this context. Conscious of that reality, and recognizing the strong social and psychological aspects of these fi les, the Court has made great efforts in recent years to tailor its approach to the needs of this special area of the law. Thus, from the onset of a case, the parties are invited to attend mediation sessions. As well, in a further effort to resolve their dispute, they may request to participate in a settlement conference presided by a judge, a process that is quick and free of charge. Those conferences are the subject of further discussion later in this document. On the administrative side, through its increased involvement in managing fi les the Court attempts to control the cost of proceedings and to facilitate their effective routing through the judicial system. The goal is to ensure that those who rely on the tribunal benefi t from service that is up to their expectations and needs. FIVE FILES OUT OF TEN ARE FAMILY MATTERS The Family Division, which mainly hears divorce and separation cases, accounts for a large part of the Superior Court s activities. In fact, on average, fi ve out of every ten fi les opened deal with family matters. The proportion is even higher in the outlying districts. As for all other fi les, the Court remains vigilant to ensure that proceedings advance swiftly through the system and that costs are proportionate to the issues. Judges are also called upon to take part in awareness-building sessions dealing with such realities as the poverty that often results from separation, problems related to child custody, access to the other parent, and the sharing of the resources available to support two family groups. Judges must also understand and react to the particular diffi culties faced by immigrants, whether in relation to problems with their work, their social isolation, or their misunderstanding of their new environment. Family Division P17

18 JURISDICTION The family-law files that are brought before the Court deal mainly with separation from bed and board and divorce, as well as the annulment and dissolution of marriages, and the dissolution of consensual civil unions. They may also deal with the use of the family home, the custody of children and visiting rights, alimentary pensions for children and spouses and the partition of the family patrimony and other patrimonial rights. As well, the Court rules on questions of filiation and hears motions to deprive a parent of parental authority. Judges also adjudicate on requests by a custodial parent to move out of the jurisdiction and the effect that can have on the visiting rights of the other parent, as well as motions to authorize a parent to travel alone with the child or to transfer a child from one school to another, and on questions relative to parental authority. WE MUST ALWAYS KEEP IN MIND THAT, IN FAMILY MATTERS, IT IS FIRST AND FOREMOST THE INTEREST OF THE CHILD AND THE RESPECT OF HIS OR HER RIGHTS THAT TAKE PRECEDENCE The Court adjudicates on every application brought before it, whether or not the parties have agreed to a settlement, sometimes in the absence of one of the parties, if necessary, or after a hearing in contested cases. OPERATIONS File preparation strives for the efficient processing of claims and much of the information required to deal with the financial aspects of a case alimony, daycare costs, and partition of the family patrimony must be presented to the Court on standardized forms. In the same vein, since child support is determined in accordance with tables published by the government, parties have a clear idea of the amounts that a Court is likely to grant should they elect to proceed to a hearing. At trial, the judge may hear testimony from the children where their interest is at stake and their age and capacity to understand are adequate. In some cases, the Court may even appoint a lawyer to represent them in order to ensure that their rights are clearly and fully taken into consideration. Shortly after the institution of proceedings, the parties are required to attend an information session on mediation and will be excused from that obligation only where serious grounds warrant it. Mediation is a form of conflict resolution that relies upon the intervention of qualified and impartial professionals: mediators. Their role is to assist the spouses or partners in negotiating an equitable and viable agreement responding to the needs of family members and reflecting free and enlightened consent on their part. Parties may attend up to six mediation sessions, assisted by their lawyers if they so wish, in order to discuss, and hopefully resolve, contentious issues related to child custody. The cost is underwritten by the Québec government. As well, the Court may at any time order mediation in the course of a hearing on a contested case involving children. The process is confidential and nothing that is said or written there may be used as proof in Court. The results obtained are quite positive: some 80% of parents who have relied on mediation have settled their differences. EDIATION: ETTLEMENT N 80% OF ASES P18

19 Since December 2009, the ministère de la Justice offers a new type of seminar on parenting after a breakup. The seminar is given in Montréal twice a month and is also available through videoconferencing to parents in Québec City. A psychologist and a lawyer preside the sessions, which are free of charge. Since February 2010, and this in conjunction with the parenting seminar, the Superior Court s Psychosocial Evaluation and Mediation Service offers a voluntary workshop on parental communication. The workshop focuses on the problems arising from separation and their possible solutions. It also deals with issues affecting reconstituted families, the relationships among their members and, in general, with the importance of effective communications among the parents involved. In addition to mediation by lawyers, parties may request a settlement conference presided by a judge, a process described in more detail elsewhere in this document. Should negotiations fail, the case will be brought for hearing, but with a difference: family law cases are held in camera, meaning that the public is not admitted into the courtroom. Finally, following a family break-up some parents are unable to agree on the manner of meeting their parental responsibilities. In such cases, and with the consent of both parties, the judge may order a psychosocial evaluation by an expert to evaluate the resources and capacities of each parent. The psychosocial evaluation may bear on parental authority, custody, or access rights. The expert interviews the children, the parents and any other person judged to be important in the child s life, and prepares a report putting forth recommendations. The report may be used as a negotiating tool by the parents themselves or by their lawyers, always knowing that, should a hearing ensue, the judge is free to accept or reject the expert s recommendations. The terms of the judgment are his/her exclusive domain. In Montréal, fifty percent of the cases where a psychosocial evaluation is ordered are either settled or the motion is discontinued. When that happens, there is no need to proceed to a hearing before the Court. These services are available though the Youth Centres. MAIN PROCEDURAL STEPS Applications are brought to the Court by means of a motion to institute proceedings requesting the dissolution of the matrimonial regime, the sharing of the family patrimony, if need be, and an order for alimony, custody, and access rights. In urgent cases where the circumstances require it, the parties may request a temporary order with a view to determining each one s rights. Generally, the judge will not hear the parties at this stage and will render a decision on the basis of their sworn declarations. Of course, the parties may be called upon to testify later in the judicial process. Such orders are valid only for a limited time and, where necessary, are renewed on motion to the Court. In situations that are not urgent, the parties may present a motion for provisional measures, which will apply up to the hearing on the merits. Such motions are heard by the Court on short notice and the parties can be called to testify. All the issues discussed above may be settled amicably between the parties. At some point, such settlements must be submitted to a judge who will determine whether or not their terms are in the best interest of the children involved. In practical terms, parties have access to a judge at all times, if need be, in order to manage the file and ensure its progress through the system. Any issues that arise may be submitted to the judge in an expeditious manner in order to obtain the appropriate orders. SOME FIGURES Approximately 30,000 files dealing with family matters were opened in the Superior Court during the past year. The vast majority were settled, with judges having to intervene simply to ratify the agreement negotiated between the parties. As in other divisions, but even more so here, demography plays an important role in the regional breakdown of applications filed, with the great majority being concentrated in larger urban areas. The number of files opened each year has dropped consistently since 1995, when it reached approximately 39,000. Family Division P19

20 Criminal Division André Vincent Judge Superior Court of Québec

21 Exceedingly long trials involving numerous accused, demanding equally numerous and long hours of hearings: that is the phenomenon that has been taking root over the past few years. It is also the reality that challenges the Court to strive for maximum effi ciency in the management of its fi les. Despite the resulting problems, the delays for a hearing before the Criminal Division of the Superior Court of Québec remain among the lowest in Canada and stand as a model of accessibility to justice for the rest of the country. In spite of increasingly complex criminal trials, numerous precedent-setting decisions of the Supreme Court of Canada, modifi cations to the Criminal Code, and mega-trials resulting from police investigations of organized crime, the Criminal Division continues to live up to the public s expectations in a professional manner and to inspire faith in the judicial system. On television and radio, in newspapers and over the Internet, we hear of the activities of the Criminal Division on a near-daily basis. The media s interest in criminal trials seems to know no bounds, to the point where the presence of crime reporters has become commonplace in most court houses in Québec. Jury trials have always sparked the public s curiosity. They are a citizen s most familiar reference to the justice system and it is only before the Superior Court that such trials take place. WAITING TIMES AMONG THE LOWEST IN CANADA: A MODEL OF ACCESSIbILITY TO JUSTICE. Criminal Division P21