TITLE II CONTESTATION OF THE ACTION

CHAPTER I

DEMAND FOR SECURITY FOR COSTS

152. If article 65 applies to the plaintiff, the defendant may request, at the time of presentation of the motion to institute proceedings, that the plaintiff be required to give security, within the time determined by the court, for the costs that may be incurred in consequence of the action, on pain of dismissal of the action.

At the request of a party during the proceeding, the court may increase or reduce the amount of security if warranted by the development of the case or a change in the situation of the plaintiff.

1965 (1st sess.), c. 80, a. 152; 1992, c. 57, s. 420; 1999, c. 40, s. 56; 2002, c. 7, s. 20.

153. The defendant may request security for costs after the presentation of the motion to institute proceedings. In such a case, however, the court may award costs against the defendant in the amount it determines.

1965 (1st sess.), c. 80, a. 153; 1999, c. 40, s. 56; 2002, c. 7, s. 20.

154. (Replaced).

1965 (1st sess.), c. 80, a. 154; 1999, c. 40, s. 56; 2002, c. 7, s. 20.

CHAPTER II

Repealed, 1996, c. 5, s. 15.

155. (Repealed).

1965 (1st sess.), c. 80, a. 155; 1988, c. 21, s. 66; 1996, c. 5, s. 15.

156. (Repealed).

1965 (1st sess.), c. 80, a. 156; 1992, c. 57, s. 420; 1996, c. 5, s. 15.

157. (Repealed).

1965 (1st sess.), c. 80, a. 157; 1988, c. 21, s. 66; 1996, c. 5, s. 15.

158. (Repealed).

1965 (1st sess.), c.

CHAPTER III

PRELIMINARY EXCEPTIONS

SECTION I

GENERAL PROVISIONS

159. Unless otherwise agreed by the parties in accordance with article 151.1, preliminary exceptions and the conclusions sought must be disclosed in writing to the opposite party before the date of presentation of the action or application, failing which the court may refuse the presentation of preliminary exceptions.

1965 (1st sess.), c. 80, a. 159; 2002, c. 7, s. 21.

160. (Replaced).

1965 (1st sess.), c. 80, a. 160; 2002, c. 7, s. 21.

161. (Replaced).

1965 (1st sess.), c. 80, a. 161; 1969, c. 80, s. 4; 1996, c. 5, s. 16; 2002, c. 7, s. 21.

162. (Replaced).

1965 (1st sess.), c. 80, a. 162; 1969, c. 80, s. 5; 1996, c. 5, s. 17; 1999, c. 40, s. 56; 2002, c. 7, s. 21.

SECTION II

DECLINATORY EXCEPTIONS

163. A defendant, summoned before a court other than that before which the suit should have been instituted, may ask that the suit be referred to the competent court within the legislative authority of Quebec, or that the suit be dismissed if there is no such court.

1965 (1st sess.), c. 80, a. 163.

164. Lack of jurisdiction by reason of the subject matter may be raised at any stage of the case, and it may even be declared by the court of its own motion. The court adjudicates as to costs according to the circumstances.

1965 (1st sess.), c. 80, a. 164.

SECTION III

EXCEPTION TO DISMISS ACTION

165. The defendant may ask for the dismissal of the action if:

(1) There is lis pendens or res judicata;

(2) One of the parties is incapable or has not the necessary capacity;

(3) The plaintiff has clearly no interest in the suit;

(4) The suit is unfounded in law, even if the facts alleged are true.

1965 (1st sess.), c. 80, a. 165.

166. When it is possible to remedy the ground upon which the exception is based, the plaintiff may ask that he be granted a time to do so and that judgment be rendered upon the exception only upon the expiry of such time.

If the ground remains, the suit is dismissed; if it has been remedied, the exception is maintained for costs only.

1965 (1st sess.), c. 80, a. 166; 1999, c. 40, s. 56.

167. The dismissal of a suit for one of the grounds set forth in article 165 may be urged notwithstanding the failure to do so within the time limit; but if an exception made tardily results in the dismissal of the suit, the costs shall be the same as if the exception had been made within the time limit, unless the court otherwise orders.

1965 (1st sess.), c. 80, a. 167; 1999, c. 40, s. 56.

SECTION IV

DILATORY EXCEPTIONS

168. The defendant may ask that the suit be stayed for the time fixed by law or by the judgment granting his motion:

(1) when the time allowed him to deliberate and exercise an option in a succession matter has not expired;

(2) when he has the right to demand the discussion of the property of the principal or original debtor;

(3) when he has the right to demand the execution by the plaintiff of some precedent obligation;

(4) when he has the right to demand that the plaintiff declare his option between different recourses that he has joined, or that co-plaintiffs disjoin separate actions which they have joined;

(5) when he wishes to implead a third party whose presence is necessary to permit a complete solution of the question involved in the action, or against whom he claims to have a recourse in warranty;

(6) when the motion to institute proceedings is affected by some irregularity which he has an interest to have corrected;

(7) when he has the right to obtain, in respect of any vague or ambiguous allegations of the demand, particulars necessary for the preparation of his defence;

(8) when he has the right to require that an exhibit the plaintiff intends to refer to at the hearing be communicated to him by the plaintiff.

The defendant may also ask for the striking out of allegations which are immaterial, redundant or libellous.

1965 (1st sess.), c.

169. When the judgment granting a motion based upon one of the grounds set forth in article 168 orders the plaintiff to do something within the time fixed and the plaintiff fails to do so, the defendant may, as soon as the time has expired, obtain the dismissal of the demand or the striking out of the allegations involved.

1965 (1st sess.), c. 80, a. 169; 1999, c. 40, s. 56.

170. (Repealed).

1965 (1st sess.), c. 80, a. 170; 1999, c. 40, s. 56; 2002, c. 7, s. 23.

171. At any stage of the proceeding, the judge may authorize the impleading of a third party or oblige the plaintiff to choose between actions which cannot be joined, on such conditions as are determined by the judge.

1965 (1st sess.), c. 80, a. 171; 1999, c. 40, s. 56; 2002, c. 7, s. 24.

CHAPTER IV

CONTESTATION ON THE MERITS

172. The defendant may plead by defence any ground of law or fact which shows that the conclusions of the demand cannot be granted in whole or in part.

He may also in the same proceeding constitute himself cross-plaintiff in order to urge against the plaintiff any claim arising from the same source as the principal demand, or from a related source. The court remains seized of the cross demand notwithstanding discontinuance of the principal demand.

1965 (1st sess.), c. 80, a. 172; 1972, c. 70, s. 7.

173. (Repealed).

1965 (1st sess.), c. 80, a. 173; 1969, c. 81, s. 4; 1996, c. 5, s. 18; 2002, c. 7, s. 25.

174. (Repealed).

1965 (1st sess.), c. 80, a. 174; 1999, c. 40, s. 56; 2002, c. 7, s. 25.

175. The declaration by a party that he submits to justice is not equivalent to a contestation of the suit or to an acquiescence in the pretensions of the opposite party.

1965 (1st sess.), c. 80, a. 175.

175.1. The defence is filed in writing, or presented orally. It is presented orally where so prescribed by this Code; it is filed in writing in all other cases, subject to the provisions of article 175.3.

2002, c. 7, s. 26.

175.2. The defence is presented orally if the subject matter of the action or application is

(1) any of the following matters concerning natural persons:

(a) physical integrity;

(b) reputation and privacy, including suits for slander;

(c) respect for the body after death;

(2) any of the following matters concerning legal persons:

(a) retroactive conferral of juridical personality;

(b) the designation of a liquidator;

(c) a disqualification from serving as a director or the lifting of such a disqualification;

(d) an authorization to be obtained under article 341 of the Civil Code;

(3) any of the following family, successions or property law matters:

(a) any family matter except separation as to property, separation from bed and board, annulment of marriage, divorce, the determination of filiation and the surviving spouse\'s compensatory allowance;

(b) changes to a trust or to the property of a trust, termination of a trust, revocation or modification of a legacy or of a charge imposed on a donee;

(c) building against a common wall;

(d) the protection of the rights of a substitute;

(e) the determination of boundaries;

(f) divided co-ownership of an immovable;

(g) partition of a succession or partition or administration of property held in indivision;

(4) any of the following matters relating to obligations:

(a) a claim relating to the sale price of movable property that has been delivered or the price of a contract for services that have been provided, a leasing contract or a contract of carriage, a claim relating to a contract of employment, of deposit or of loan of money or a claim relating to the remuneration of a mandatary, a surety or an office holder;

(b) the price of a contract of enterprise, other than a contract pertaining to an immovable work, if the value of the subject matter of the dispute exceeds the jurisdictional limit of the Court of Quebec;

(c) rights and obligations under a lease;

(d) the determination of the term of an obligation, the contestation of the distribution statement for the sale of an enterprise, the sufficiency of the surety\'s property or of the security offered in a suretyship matter;

(e) the determination of the seizable portion of an annuity under article 2378 of the Civil Code;

(f) the awarding of additional damages for bodily injury;

(g) a bill of exchange, cheque, promissory note or acknowledgement of debt;

(5) any of the following matters relating to prior claims, hypothecs or the publication of rights:

(a) any matter governed by Book Six of the Civil Code, including the exercise of hypothecary rights, and any matter relating to hypothecated property where the owner\'s identity is unknown or uncertain;

(b) registration or the correction, reduction or cancellation of a registration in the land register or the register of personal and movable real rights;

(6) in private international law, the recognition and execution of a foreign judgment or of an arbitration award made outside Quebec;

(7) any of the following procedural matters:

(a) an application for a determination on a question of law;

(b) an application for a declaratory judgment;

(c) the exercise of an extraordinary recourse; or

(8) any of the following other matters:

(a) a tax, contribution or assessment imposed by or under any provision of a statute of Quebec;

(b) any other matter covered by legislation other than the Civil Code for which the law does not impose a defence in writing.

2002, c.

175.3. Where a defence in writing is prescribed by law, the parties may by agreement opt for an oral defence or the court may authorize or order an oral defence if the court considers that this will not cause prejudice to the parties.

Where an oral defence is prescribed by law, the parties may by agreement opt for a defence in writing; in the absence of such an agreement, the court may authorize or order a defence in writing on such conditions as it determines if, in the opinion of the court, the absence of a writing may cause prejudice to a party.

2002, c. 7, s. 26.

176. (Repealed).

1965 (1st sess.), c. 80, a. 176; 1972, c. 70, s. 8; 1992, c. 57, s. 234; 2002, c. 7, s. 27.

177. (Repealed).

1965 (1st sess.), c. 80, a. 177; 1972, c. 70, s. 9; 1984, c. 26, s. 5.

178. (Repealed).

1965 (1st sess.), c. 80, a. 178; 1992, c. 57, s. 235.

179. (Repealed).

1965 (1st sess.), c. 80, a. 179; 1992, c. 57, s. 235.

180. (Repealed).

1965 (1st sess.), c. 80, a. 180; 1992, c. 57, s. 235.

180.1. (Repealed).

1989, c. 62, s. 3; 1992, c. 57, s. 235.

181. (Repealed).

1965 (1st sess.), c. 80, a. 181; 1992, c. 57, s. 235.

182. The plaintiff may file an answer within the time agreed or determined in the proceeding timetable.

1965 (1st sess.), c. 80, a. 182; 2002, c. 7, s. 28.

183. A party may allege in his defence or answer any material facts, even those which have arisen since the institution of the action, and may take any conclusions necessary to defeat a ground set up by the opposite party.

1965 (1st sess.), c. 80, a. 183.

184. A party may raise preliminary exceptions against a defence or an answer within the time agreed between the parties or, failing that, the time determined by the court, after having disclosed the exceptions in writing to the opposite party.

1965 (1st sess.), c. 80, a. 184; 2002, c. 7, s. 29.

185. After the expiry of the time allowed for filing a defence, the party against whom an inscription by default has been made can no longer do so, unless with the consent of the opposite party or the authorization of the judge in chambers or the clerk.

The same applies to a plaintiff who does not file his answer before the inscription for proof and hearing.

1965 (1st sess.), c. 80, a. 185; 1969, c. 81, s. 5; 1983, c. 28, s. 7; 1985, c. 29, s. 8; 1992, c. 57, s. 236.

186. The issues are joined:

(1) by the demand, the defence and the answer;

(2) (paragraph repealed);

(3) by the demand and the defence, when the plaintiff has omitted to file an answer or has been foreclosed from so doing.

1965 (1st sess.), c. 80, a. 186; 2002, c. 7, s. 30.

CHAPTER V

TENDER AND DEPOSIT

187. Tenders by a judicial declaration are made in the manner set out in the Civil Code.

1965 (1st sess.), c. 80, a. 187; 1992, c. 57, s. 237.

188. (Repealed).

1965 (1st sess.), c. 80, a. 188; 1992, c. 57, s. 238.

189. In an action, a party may make or renew a tender and demand record thereof, by a simple declaration in a pleading.

A tender of a sum of money or security must be completed by a deposit in the office of the court, unless the deposit has already been made in the general deposit office of Quebec or with a trust company and the receipt therefor has been filed in the record.

1965 (1st sess.), c. 80, a. 189; 1992, c. 57, s. 239.

189.1. Where a tender of a sum of money or security is made to guarantee the performance of the obligation of the opposite party, the party making the tender may, instead of depositing the sum of money or security, entrust it to a trust company licensed under the Act respecting trust companies and savings companies (chapter S-29.01).

The trust company shall undertake to remit the sum of money or security to the opposite party upon proof of performance of the obligation. It shall also undertake to invest the sum by making deposits of money within the meaning of the Deposit Insurance Act (chapter A-26) and guaranteed under that Act, but not including term deposits not repayable at all times before maturity.

The receipt issued by the trust company and the writing attesting the undertakings made by the trust company under the second paragraph must be filed in the record of the court.

1987, c. 48, s. 1; 1987, c. 95, s. 402; 1992, c. 57, s. 240.

190. Unless the tender of money made in a suit is conditional, the opposite party is entitled to receive the sum of money or security deposited, without thereby prejudicing his claim to the remainder.

1965 (1st sess.), c. 80, a. 190; 1992, c. 57, s. 241.

191. The withdrawal of a sum of money or security deposited, and the expenses related to tender and deposit, are subject to the provisions of the Civil Code.

1965 (1st sess.), c. 80, a. 191; 1992, c. 57, s. 242.