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Paul Crampton

Federal courts to launch procedural bijuralism pilot project

Monday, September 16, 2019 @ 12:22 PM | By Luis Millan

Last Updated: Monday, September 16, 2019 @ 1:45 PM


An ambitious pilot project to be implemented this fall by the federal courts that will allow for the application of the Quebec Code of Civil Procedure is being lauded by Quebec practitioners as a welcome initiative that may prompt more of them to avail themselves of the federal judicial bodies.

A joint undertaking by the Federal Court of Appeal and the Federal Court, the endeavour is designed to make the federal courts more accessible to Quebec jurists who are largely side-stepping them because they are unfamiliar with the common law-based federal courts’ rules of procedure, Chief Justice of the Federal Court of Appeal Marc Noël and Chief Justice of the Federal Court Paul Crampton told The Lawyer’s Daily.

“Our project is not revolutionary in the sense that we are responding to Quebec lawyers in a language that is theirs, that is, by allowing them to use before the federal courts rules of procedure that they know,” said Justice Noël, who recounted an anecdote that illustrates the diffidence civil law practitioners experience when going before the federal courts. About three years ago, Quebec Superior Court Chief Justice Jacques Fournier explained to Justice Noël that when he was a private practitioner and had a mandate to appear before the federal courts, he would check his professional insurance to make sure it was paid up to date. “All he was telling me was that he was not at ease with our rules, owing to the fact that he was not someone who appeared readily before our court,” explained Justice Noël. “That reaches a lot of individuals.”

Paul Crampton

Chief Justice of the Federal Court Paul Crampton

The federal courts do not have any hard figures to back up the anecdotal evidence both chief justices have heard over the years from Quebec jurists, said Justice Crampton. But “it occurred to us that the substantive parity that you have across the country on our bijural jurisdiction wasn’t really being paralleled on the procedural side in part because the federal court rules to a large extent are inspired by the rules of the common law provinces, in particular perhaps Ontario,” explained Justice Crampton. “And so they’re less familiar and less intuitively appealing to practitioners from the Quebec bar who don’t come to our court a lot.”

The pilot project also represents an important step toward improving access to justice and sends a strong message about co-operative federalism, Justice Fournier told The Lawyer’s Daily. “It’s another option that will be available to litigants and the public who are seeking access to a more specialized tribunal,” noted Justice Fournier. “But it’s also important for lawyers with a civil law background to appear before the federal courts. It sends a strong message about federalism. That what’s partners are. It’s not just a question of numbers but equality.”

Though details of the procedural bijuralism project are skimpy and are expected to be revealed over the coming weeks, along with a direction to the profession, Justice Crampton pointed out the use of the Code of Civil Procedure will be adapted, used in specified judicial proceedings and be available to members of the Quebec bar. It cannot be used, he added, in a case that opposes a member of the Barreau du Québec with a member of another bar outside of Quebec. Nor can it be used by self-represented litigants, he said.

“If they file a certain protocol in accordance with the Quebec rules with a case management judge of our court, then that case management judge, a prothonotary who’s knowledgeable with the Code of Civil Procedure, can work with the parties to allow them to avail themselves of processes with which they’re more familiar to the extent reasonably possible because adjustments are going to be made along the way,” said Justice Crampton. “But the instruction to everybody is to try and ensure that the spirit of this pilot project is fully pursued.”

Justice Noël acknowledges that the procedural bijuralism project will add a measure of “complexity” and will create additional demands to sitting judges and registry personnel who will have to deal with the “specific rules” of the Code of Civil Procedure. But he adds that five out of the 12 judges sitting at the Federal Court of Appeal must have a civil law background, a figure that stands at 10 for the Federal Court. “So I don’t anticipate difficulties as far as they are concerned but it is above all registry officers who will obviously have to broaden their knowledge on the Quebec civil procedures,” said Justice Noël.

Besides bridging the gap for Quebec jurists, the pilot project represents a golden opportunity to the corpus of bijuralism. The federal courts apply federal law, and substantive law that must be applied by the federal court is the law of the province in which the litigation arises, said Justice Noël. So as it stands, when dealing with substantive law, the federal courts already apply the Civil Code of Quebec in the same way that the common law of the province is applied in the common law provinces. “Bijuralism does not only exist only for substantive law but can and must also exist for procedural law,” said Justice Noël.

The Quebec legal community, though brimming with questions over the details of the project, nevertheless wholeheartedly applaud the initiative. “It is a welcome sign of openness to allow the Quebec Code of Civil Procedure, one that will make life easier for Quebec lawyers,” remarked Université Laval law professor Patrick Taillon.

Pierre Giroux

Pierre Giroux, Tremblay Bois Avocats

Pierre Giroux, a Quebec City lawyer with Tremblay Bois Avocats who has written about the Code of Civil Procedure, underscored that the project may end up alleviating the heavy workload faced by Quebec superior courts. “There are good reasons to go before the federal courts, one of which is that the delays in the proceedings do not appear to be as lengthy as those faced by Quebec Superior Court,” said Giroux. But echoing observations made by many, Giroux noted that many Quebec practitioners do not even consider going to the federal courts because they feel more comfortable pleading on familiar turf. “I don’t know of many lawyers who when they have the choice go before the federal courts, perhaps because its rules of procedures are not easy, especially when you don’t go often,” said Giroux.

The federal courts deserve credit for undertaking a bold venture, according to Claude Marseille, a Montreal litigator with Blake, Cassels & Graydon LLP. But he points out that the federal courts will have to in some ways accept being subservient to the National Assembly of Quebec. In Quebec, the Code of Civil Procedure, which underwent a complete revamp in 2016, is drawn up by the National Assembly, pointed out Marseille. “Under the civilist law tradition in Quebec the procedural rules are not rules by the courts, but instead the civil procedure is a law enacted by the National Assembly,” said Marseille. “It is notable that the federal courts of its own volition will be subject to a procedural law issued by the National Assembly.”

Marseille also wonders how two distinct bodies of procedural rules, each with its own rich and replete jurisprudence, will live side-by-side. “Up until now, we have had two distinct case law, and now there will be judges of the federal courts who will be called upon to apply at times the Code of Civil Procedure and other times the rules of the court. That is a first, and thus is an important challenge,” said Marseille.

But both chief justices firmly believe the judicial bodies that they head are up to the challenge.

“We will adapt as the world unfolds,” said Justice Crampton. “Our hope is that if there are issues that are causing the pilot project to have less take-up than we hope that we’ll be able to address them and make the pilot project as attractive as we hope to Quebec practitioners.”

Justice Fournier is hoping that the issue of language will also be addressed. He believes that it is one of the key elements that contributes toward a richer body of jurisprudence and a more efficient bijural system. “In a country that says is bijural, and not one-tenth bijural, language should not be a barrier that [impedes] one legal system from influencing the other,” said Justice Fournier. “Here in Quebec, it’s as if there was a wall but a wall that can only be penetrated by one side because our jurists, especially those from Montreal, are bilingual for the most part but the fruits of their labour are not exportable because if it’s in French then it’s not taught in universities. The reverse is true. We are largely influenced by common law insofar as federal law is concerned.”
 
The timely translation of court decisions is a “high” priority, said Justice Crampton. According to the 2017-18 annual report of the Courts Administration Service, its translation budget remains “inadequate” to fully address the large volume of decisions issued by the federal courts. “How can people access justice if they don’t know what our decisions say in one of the two official languages,” rhetorically asked Justice Crampton. “Ideally all of our decisions would go out in both languages simultaneously. Obviously that would cost a lot of money but for an important national institution I think that’s entirely appropriate.”

Photo of Chief Justice of the Federal Court Paul Crampton by Andrew Balfour Photography