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Covid-19 | Bulletin

The COVID-19 Pandemic and its Impact on the Quebec Courts

Fasken
Reading Time 7 minute read
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On Friday, March 13, 2020, the Ministry of Justice and Quebec courts announced various measures in response to the COVID-19 pandemic and the Government of Quebec’s declaration of a public health emergency.

The Superior Court of Quebec and Court of Quebec have, among other things, announced the suspension of the majority of their activities, whereas the Minister of Justice and Chief Justice of Quebec, Nicole Duval Hesler, issued a ministerial order to suspend limitation periods in light of the state of emergency.

This bulletin summarizes the principal measures adopted with respect to the administration of justice before trial courts in Quebec, as well as the consequences these measures may have on civil or commercial disputes. The situation continues to evolve and changes or updates to these measures could be adopted.

Suspension of Services

The Superior Court of Quebec and Court of Quebec are the two trial courts in the province. Following the announcement of March 13, 2020 (link available in French), the majority of their activities are suspended.

This means that ongoing trials or trials set to begin in the next few days will not take place and will have to be postponed. As a result of this exceptional measure brought about by circumstances that are just as exceptional, Quebec courts will not hold hearings on the merits of the civil, commercial and administrative disputes that are before them.

In addition, the courts and judges are normally called upon during the course of litigation to rule on incidental and interlocutory issues. For example, they may be called upon to rule on certain procedural rights of the parties (examinations, objections, expert opinions, etc.). In light of the announcements made by the Superior Court and Court of Quebec, it appears that these services are also suspended.

As for the Court of Appeal, and based on the latest information provided, its regular activities are to continue, except for the holding of settlement conferences.

Exceptions

The complete closure of the courts is difficult to imagine because some services are absolutely essential. In criminal matters, several constitutional provisions and protections require the maintenance of certain services. Moreover, the courts will have to continue to provide services for urgent applications for the provision of care, a psychiatric assessment, and to authorize institutional custody. Courts will also rule on habeas corpus applications.

For the time being, certain exceptions are also maintained for civil and commercial litigation for urgent matters. The courts will therefore continue to hear (i) applications for interim injunctions and safeguard orders, (ii) applications for seizures before judgment, (iii) applications for eviction orders, and (iv) orders for release from seizure, annulment of seizures before judgment, and contested eviction orders.

Applications for temporary injunctions and safeguard orders involve the issuance of court orders requiring a party to either do or refrain from doing something. These orders are issued during legal proceedings and on a temporary basis. They are intended to prevent serious and irreparable prejudice to a party during the course of the proceedings. In order to obtain the issuance of such an order, it is necessary to demonstrate the urgency of the situation and, therefore, the need for immediate intervention by the Court on the basis of an incomplete record. From this perspective, the handling of applications for temporary injunctions and safeguard orders is undoubtedly one of the most essential services that can be offered by the courts in civil and commercial matters.

With respect to seizures before judgment, these are intended to place property in the hands of justice while a proceeding is pending. For example, a creditor may seize before judgment movable property that it has the right to revendicate, movable property over which it is entitled to be collocated by preference and which is being used in such a manner as to jeopardize the realization of its prior claim, or movable property that it is permitted by law to seize in order to secure the exercise of rights in the property A plaintiff may also, with the authorization of the court, seize a defendant’s property before judgment if there is reason to fear that recovery of the claim might be jeopardized without the seizure. Seizures before judgment are intended to prevent the eventual enforcement of a final judgment from becoming meaningless. They are necessary to preserve the sound administration of justice in an urgent matter.

In real estate matters, a party may, in certain circumstances, request the issuance of an eviction order. This is especially the case in commercial leases, where a tenant neglects or refuses to vacate the premises in the event of non-payment of rent. Eviction orders may also be issued when a property is sold under judicial authority.

Seizures before judgment and eviction orders may affect the fundamental right of parties to the peaceful enjoyment and free disposition of their property provided in section 6 of the Charter of Human Rights and Freedoms. The courts will consequently continue to decide applications to order the release or annulment of seizures, as well as applications to contest eviction orders.

In addition to the specifically listed exceptions, the Court maintains its discretion to deal with matters that are deemed urgent.

Also, in some matters and on a case-by-case basis, measures may proceed by way of telephone conferences rather than in-person hearings. For example, the Commercial Division of the Superior Court announced that only urgent cases will be heard and that they will proceed by conference calls. 

The Suspension of Delays

Section 27 of the Code of Civil Procedure provides that:

27. In a state of emergency declared by the Government or in a situation where it is impossible in fact to comply with the rules of this Code or to use a means of communication, the Chief Justice of Québec and the Minister of Justice may jointly suspend or extend a prescription or procedural period for a specified time, or authorize the use of another means of communication in the manner they specify.

Their decision takes effect immediately, and must be published without delay in the Gazette officielle du Québec.

On Sunday, March 15, 2020, the Chief Justice of Quebec and the Minister of Justice issued ministerial order number 2020-4521 (link available here in French). This order provides for the suspension of all limitation periods, all periods of possible forfeiture of rights, and all time limits under the Civil Code of Procedure until the Government of Quebec announces the end of the current state of public health emergency. The order is for a duration of 10 days. In light of the current circumstances, it is susceptible to be renewed.

As such, this order provides for the suspension of procedural time limits, such as the time limit for a case that has already been brought before the courts to be ready for trial or for filing a particular civil proceeding. It also provides for the suspension of statutory time limits for asserting a right by commencing a civil action, such as limitation or forfeiture periods.

Hearings held in camera

With some exceptions, justice is normally accessible to the public. However, given the current state of health emergency, the Minister of Justice announced that hearings would be held in camera. Only those persons whose presence is deemed necessary by the decision-maker will be permitted.

This measure applies to the Quebec Court of Appeal, Superior Court, Court of Quebec, municipal courts and administrative tribunals in Quebec. 

Continuance of cases

A significant portion of the litigation process is carried out by the parties and without any active intervention by the courts. Contingent upon compliance with the recommendations and requirements issued by the various authorities, parties will be able to continue to notify the required court documents, exchange documents and work on the preparation of their case.

Certain stages of a case normally involve physical meetings between the parties and their lawyers, even if these meetings do not take place in court. For example, this is the case, with examinations for discovery. These steps will most likely be reviewed or adapted to comply with the health recommendations issued by the government.

Administrative Tribunals

In addition to the courts, administrative tribunals are also called upon to administer justice in Quebec. Several announcements have already been made and are expected to be made regarding the measures that they will adopt with respect to the COVID-19 pandemic.

Conclusion

For the moment, the duration of the suspension is unknown as well as any subsequent adjustments that will have to be made in terms of case management and hearing and trial dates. Significant consequences are to be expected. Such measures are part of the necessary sacrifices that society as a whole is currently being called upon to make.

In these circumstances, it is appropriate for any party involved in a judicial proceeding to remember the legal procedure guidelines, including demonstrating proportionality and cooperating with a view to promoting a fair debate.

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