TITLE IV INCIDENTAL PROCEEDINGS

CHAPTER I

AMENDMENTS

199. At any time before judgment, the parties may amend their pleadings without leave and as often as necessary provided the amendment is not useless or contrary to the ends of justice and does not result in an entirely new action or application having no connection with the original one.

An amendment may be made, for instance, to modify, correct or complete allegations or conclusions, to invoke new facts or to assert a right accrued since service of the motion to institute proceedings.

1965 (1st sess.), c. 80, a. 199; 1996, c. 5, s. 19; 2002, c. 7, s. 33.

200. A party who amends a pleading must notify the amended pleading to the other parties and file a copy at the office of the court. The other parties have 10 days to express their opposition in writing, notify it to the other parties and file a copy at the office of the court.

If no opposition is filed, the amended pleading is accepted; if an opposition is filed, the party who intends to amend the pleading applies to the court for a determination.

The time allowed for answering an amended pleading is agreed between the parties or, failing that, determined by the court, and runs either from the date of notification of the amended pleading or from the date of the judgment authorizing the amendment, as the case may be.

1965 (1st sess.), c. 80, a. 200; 2002, c. 7, s. 33; 2002, c. 54, s. 2.

201. (Replaced).

1965 (1st sess.), c. 80, a. 201; 1999, c. 40, s. 56; 2002, c. 7, s. 33.

202. (Replaced).

1965 (1st sess.), c. 80, a. 202; 2002, c. 7, s. 33.

203. (Replaced).

1965 (1st sess.), c. 80, a. 203; 2002, c. 7, s. 33.

204. The court may, of its own motion, at any time before judgment and on such conditions as it deems just, order the immediate correction of any error of form, expression, calculation or writing in any written pleading.

1965 (1st sess.), c. 80, a. 204.

205. The court may, during the trial and in the presence of the opposite party, authorize an amendment upon an oral request; the decision must be noted in the minutes of trial and the amended pleading must be filed in the record as soon as possible, without service being necessary.

1965 (1st sess.), c. 80, a. 205; 2002, c. 7, s. 34.

206. When, by an amendment, a new defendant is joined in an action, he must be served with a copy of the motion to institute proceedings in the ordinary manner.

1965 (1st sess.), c. 80, a. 206; 1996, c. 5, s. 20; 2002, c. 7, s. 35.

207. The judge may, on such conditions as he considers just, allow the plaintiff to serve anew the motion to institute proceedings when the first service is irregular.

1965 (1st sess.), c. 80, a. 207; 1996, c. 5, s. 21; 2002, c. 7, s. 36.

CHAPTER II

PARTICIPATION OF THIRD PARTIES IN THE ACTION

SECTION I

VOLUNTARY INTERVENTION

208. Any person interested in an action to which he is not a party, or whose presence is necessary to authorize, assist or represent a party who is incapable, may intervene therein at any time before judgment.

1965 (1st sess.), c. 80, a. 208.

209. Voluntary intervention is termed aggressive when the third party asks that he be acknowledged as having, against the parties or one of them, a right which is in dispute; it is termed conservatory when the third party only seeks to be substituted for one of the parties, in order to represent him, or to be joined with such party in order to assist him, either to aid his action or to support his pretensions.

1965 (1st sess.), c. 80, a. 209.

210. A third party who intends to intervene in a proceeding for conservatory or aggressive purposes must notify a declaration to all the parties, specifying the party\'s interest in the case and the conclusions sought and stating the facts justifying such conclusions, and file a copy of the declaration at the office of the court; in addition, the third party\'s declaration must propose an intervention procedure which must be consistent with any agreements between the parties and with the timetable agreed between them or determined by the court.

The parties have 10 days to express their opposition in writing, notify it to the parties and file a copy at the office of the court. If no opposition is filed, the third party\'s interest is presumed sufficient and the intervention procedure accepted. If an opposition is filed, the third party shall apply to the court for a determination; if it authorizes the intervention, the court determines the intervention procedure.

An intervening party becomes a party to the proceeding.

1965 (1st sess.), c. 80, a. 210; 2002, c. 7, s. 37.

211. A third party may ask to intervene in order to make representations during the trial. The third party must inform the parties in writing of the purpose of and the grounds for the intervention. After hearing the parties, the court may authorize the intervention if it deems it expedient, having regard to the questions at issue.

1965 (1st sess.), c. 80, a. 211; 2002, c. 7, s. 37.

212. (Replaced).

1965 (1st sess.), c. 80, a. 212; 2002, c. 7, s. 37.

213. (Replaced).

1965 (1st sess.), c. 80, a. 213; 1999, c. 40, s. 56; 2002, c. 7, s. 37.

214. (Replaced).

1965 (1st sess.), c. 80, a. 214; 1984, c. 26, s. 6; 1994, c. 28, s. 8; 2002, c. 7, s. 37.

215. When the principal action and the intervention are heard at the same time, a single judgment decides them both.

1965 (1st sess.), c. 80, a. 215.

SECTION II

FORCED INTERVENTION OR JOINDER OF PARTIES

216. Any party to a case may 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 exercise a recourse in warranty.

1965 (1st sess.), c. 80, a. 216.

217. Such forced intervention is effected by ordinary summons and the application must be filed with a copy of the motion to institute proceedings.

1965 (1st sess.), c. 80, a. 217; 1996, c. 5, s. 22; 2002, c. 7, s. 38.

218. (Repealed).

1965 (1st sess.), c. 80, a. 218; 1999, c. 40, s. 56; 2002, c. 7, s. 39.

219. A third party called in simple or personal warranty cannot take up the defence of the warrantee; he can merely contest the demand against the latter, if he thinks proper.

1965 (1st sess.), c. 80, a. 219.

220. A third party called in legal warranty may take up the defence of the warrantee, who may be relieved from the contestation if he so requires. Although relieved from the contestation, the warrantee may nevertheless act therein for the conservation of his rights.

Judgments rendered against the warrantor may, after being served on the warrantee, be executed against the latter.

1965 (1st sess.), c. 80, a. 220.

221. (Repealed).

1965 (1st sess.), c. 80, a. 221; 1999, c. 40, s. 56; 2002, c. 7, s. 40.

222. Unless the court decides otherwise, the principal action and the action in warranty must be heard jointly, and a single judgment decides them both.

The plaintiff in the principal action or any other party has an interest to make any useful application to ensure that the action in warranty does not cause undue delay in the principal action.

1965 (1st sess.), c. 80, a. 222; 1984, c. 26, s. 7; 1996, c. 5, s. 23.

CHAPTER III

IMPROBATION

223. A party may, during the suit, demand that an authentic writing that he or the opposite party intends to avail himself of at the hearing or that has already been filed in the record be declared a forgery or to have been falsified.

Such incidental improbation may be begun at any time before judgment; but, after the closing of the proof, it can only be allowed if the party shows that he did not earlier become aware of the forgery.

1965 (1st sess.), c. 80, a. 223; 1994, c. 28, s. 9.

223.1. A party who intends to improbate a document must, before proceeding, issue a notice requiring the opposite party to declare whether or not that party intends to use the contested document.

If the opposite party does not respond within five days of receipt of the notice, or declares that the party does not intend to use the document, the document may not be produced at the hearing on the principal action or, if it is already filed, the document is removed from the record.

If the opposite party declares that the party intends to use the document, the motion in improbation must be disposed of by the court.

2002, c. 7, s. 41.

224. The motion must set out the grounds of improbation and is served on all parties and on the public officer who is in possession of the original of the document. The motion must be accompanied by an affidavit and a notice of presentation indicating the date on which the court will be asked to rule on the motion.

The motion must also be accompanied by a certificate of the clerk that there has been deposited in the office of the court an amount considered sufficient to cover the costs of the opposite party if the motion is dismissed.

1965 (1st sess.), c. 80, a. 224; 1992, c. 57, s. 420; 2002, c. 7, s. 42.

225. (Repealed).

1965 (1st sess.), c. 80, a. 225; 2002, c. 7, s. 43.

226. (Repealed).

1965 (1st sess.), c. 80, a. 226; 2002, c. 7, s. 43.

227. (Repealed).

1965 (1st sess.), c. 80, a. 227; 1994, c. 28, s. 10; 2002, c. 7, s. 43.

228. When the original of the impugned document has not already been filed in the record, the judge, at the request of one of the parties, may order the person who has custody of the document to deposit it in the office of the court within the time fixed, under all legal penalties.

1965 (1st sess.), c. 80, a. 228; 1999, c. 40, s. 56; 2002, c. 7, s. 44.

229. (Repealed).

1965 (1st sess.), c. 80, a. 229; 2002, c. 7, s. 45.

230. The judgment which decides the improbation determines, if necessary, to whom the document shall be handed over.

1965 (1st sess.), c. 80, a. 230.

231. (Repealed).

1965 (1st sess.), c. 80, a. 231; 2002, c. 7, s. 46.

CHAPTER IV

CONTESTATION AND CORRECTION OF RETURNS

232. A party may ask that the return of a sheriff, bailiff or other court officer, or of any person authorized to make a return of service, be declared untrue or inaccurate.

1965 (1st sess.), c. 80, a. 232.

233. The court may grant leave to correct any error appearing in a return mentioned in article 232.

1965 (1st sess.), c. 80, a. 233.

CHAPTER V

RECUSATION

234. A judge may be recused in particular:

(1) If the judge is the spouse of or related or allied within the degree of cousin-german inclusively to one of the parties;

(2) If the judge is himself or herself a party to an action involving a question similar to the one in dispute;

(3) If the judge has given advice upon the matter in dispute, or has previously taken cognizance of it as an arbitrator, if the judge has acted as attorney for any of the parties, or if the judge has made known his or her opinion extra-judicially;

(4) If the judge is directly interested in an action pending before a court in which any of the parties will be called to sit as judge;

(5) If there is mortal enmity between him or her and any of the parties, or if the judge has made threats against any of the parties, since the institution of the action or within six months previous to the proposed recusation;

(6) If the judge is the legal representative, the mandatary or the administrator of the property of a party to the suit, or if the judge is, in relation to one of the parties, a successor or a donee;

(7) If the judge is a member of an association, partnership or legal person, or is manager or patron of some order or community which is a party to the suit;

(8) If the judge has any interest in favouring any of the parties;

(9) If the judge is the spouse of or is related or allied to the attorney or counsel or to the partner of any of them, either in the direct line, or in the collateral line in the second degree;

(10) if there is reasonable cause to fear that the judge will not be impartial.

1965 (1st sess.), c. 80, a. 234; 1992, c. 57, s. 246; 2002, c. 6, s. 95; 2002, c. 7, s. 47.

235. A judge is disqualified if he or his spouse is interested in the action.

1965 (1st sess.), c. 80, a. 235; 1977, c. 73, s. 8; 2002, c. 6, s. 236.

236. A judge who is aware of a ground of recusation to which he or she is liable must, without waiting until it is invoked, declare it in a writing filed in the record and so inform the chief judge or chief justice. The latter designates another judge to continue the matter and informs the parties by means of a writing, which must also be filed in the record.

Likewise, a party who is aware of a ground of recusation against the judge must declare it without delay in a writing filed in the record and notify a copy to the judge and to the other parties.

1965 (1st sess.), c. 80, a. 236; 2002, c. 7, s. 48.

237. The recusation motion is proposed after notification by the clerk, to all the parties in the case, of a declaration made under article 236.

Failing such declaration, recusation may be proposed at any stage of the case, if the party shows that he has been diligent.

A recusation motion must be in writing if it is presented before the hearing, but may be presented orally during the course of the hearing, in which case the grounds for the motion are recorded in the minutes.

1965 (1st sess.), c. 80, a. 237; 1992, c. 57, s. 420; 2002, c. 7, s. 49.

238. A recusation motion is disposed of by the judge seized of the case. The judge\'s decision is subject to appeal in accordance with the rules applicable to appeals from an interlocutory judgment.

1965 (1st sess.), c. 80, a. 238; 1999, c. 40, s. 56; 2002, c. 7, s. 50.

239. If recusation is proposed against the sole judge designated to preside over the court in the district where the case is pending, the clerk must forthwith inform the chief justice.

1965 (1st sess.), c. 80, a. 239; 1992, c. 57, s. 420.

240. The clerk must inform the chief judge or chief justice of any case the hearing of which is postponed because of the judge\'s decision to recuse himself or herself.

1965 (1st sess.), c. 80, a. 240; 2002, c. 7, s. 51.

241. If the recusation is maintained, the recused judge must not be present during the proof and hearing of the case; if it is dismissed, the judge cannot refuse to sit.

1965 (1st sess.), c. 80, a. 241.

242. Except in the case mentioned in article 235, the parties may renounce in writing their right to recuse, but a judge who is subject to any ground of recusation may refuse to sit, even if recusation is not proposed.

1965 (1st sess.), c. 80, a. 242.

CHAPTER VI

DISAVOWAL

243. A party may disavow an attorney who has exceeded his powers or who has acted for him without a mandate.

1965 (1st sess.), c. 80, a. 243.

244. A disavowal may be taken during the suit in accordance with the provisions of this chapter.

It may also be taken after judgment, by an ordinary action, which does not suspend the execution unless the judge so orders.

1965 (1st sess.), c. 80, a. 244.

245. A disavowal motion is served on the attorney disavowed and notified to all parties in the case.

1965 (1st sess.), c. 80, a. 245; 2002, c. 7, s. 52.

246. (Repealed).

1965 (1st sess.), c. 80, a. 246; 1992, c. 57, s. 247; 2002, c. 7, s. 53.

247. If the disavowal is maintained, the acts disavowed are annulled and the parties are placed in the same position as they were in when the acts were done.

1965 (1st sess.), c. 80, a. 247.

CHAPTER VII

CHANGE OF ATTORNEYS

248. If, before the case is taken under advisement, the attorney of one of the parties dies, becomes unable to act or withdraws, no proceeding can be taken and no judgment rendered, under pain of nullity, before the party has appeared personally or appointed another attorney or, after being called upon to do so, has made default.

1965 (1st sess.), c. 80, a. 248.

249. An attorney who wishes to cease representing a party must, if the date of the hearing has yet to be determined, notify a declaration to the party concerned and to the opposite party and file a copy at the office of the court. The parties each have 10 days to express their opposition in writing, notify it to the other parties and file a copy at the office of the court.

If no opposition is filed, the declaration is accepted and the party is deemed from that moment to be no longer represented. If an opposition is filed, the attorney applies to the court.

If the date of the hearing has been determined, an attorney may not cease to represent a party without leave of the court.

1965 (1st sess.), c. 80, a. 249; 2002, c. 7, s. 54.

250. A party who is represented by an attorney is deemed to know of the suspension or death of the attorney of the opposite party, or of his appointment to a public office incompatible with the practice of his profession, without any notice being necessary.

1965 (1st sess.), c. 80, a. 250.

251. When one of the parties ceases to be represented before the case is taken under advisement, the opposite party must serve him with a notice to appoint another attorney or to file a written appearance on his own behalf.

If the party fails, within 10 days, to conform to the notice, the opposite party may, after inscription, proceed as in a case by default, if he is plaintiff, or ask for the dismissal of the action, saving the plaintiff\'s recourse, if he is defendant.

1965 (1st sess.), c. 80, a. 251; 1992, c. 57, s. 248.

252. A party may not revoke the powers of his attorney unless he pays him his fees and disbursements, taxed after notice given.

A party who revokes the powers of his attorney must, without being notified to do so by the opposite party, immediately appoint another attorney or file a written appearance on his own behalf; in default of his so doing the case is proceeded with as provided in article 251.

1965 (1st sess.), c. 80, a. 252.

253. The substitution of one attorney for another must be authorized by the judge or clerk, if a party expresses his or her opposition in writing, notifies it to the other parties and files a copy at the office of the court.

1965 (1st sess.), c. 80, a. 253; 1969, c. 81, s. 6; 1992, c. 57, s. 420; 2002, c. 7, s. 55.

253.1. Where the parties bring an action by way of a joint suit and are represented by the same attorney, the court may adjourn the hearing of the action until each party has appeared in person or appointed a new attorney, if it considers that the action raises genuine problems and that, owing to the mode of representation, it will not be possible for justice to be done.

1982, c. 17, s. 12.

CHAPTER VIII

CONTINUANCE OF SUIT

254. A case which has been taken under advisement cannot be retarded by the change of civil status of any of the parties, by the cessation of the functions within which he was acting, or by his death.

1965 (1st sess.), c. 80, a. 254.

255. An attorney who learns of the change of civil status or of the death of the party whom he is representing, or of the cessation of the functions within which such party was acting, is bound to notify the opposite party in writing.

1965 (1st sess.), c. 80, a. 255.

256. All proceedings taken before the service of the notice mentioned in article 255 are valid; those taken afterwards are null, and the suit is suspended until it is continued by those interested or until they have been called in to continue it.

1965 (1st sess.), c. 80, a. 256.

257. A suit may be continued:

(1) by the heirs or representatives of a deceased party or the liquidator of the succession, or by the person who has acquired the right which is the subject of the suit;

(2) by a person who, as a result of a change of status or capacity of one of the parties or of his loss of capacity, has acquired the capacity and the necessary interest to do so;

(3) (paragraph repealed);

(4) by the person who replaces a party whose functions have ceased.

1965 (1st sess.), c. 80, a. 257; 1972, c. 70, s. 11; 1982, c. 17, s. 13; 1992, c. 57, s. 249.

258. Continuance of suit is effected by filing in the office of the court and serving on all the parties in the case an appearance and an affidavit setting forth the facts which give rise to the continuance.

The right to continue the suit may, within 10 days of such appearance, be contested in the ordinary way; in default of such contestation, the continuance is held to be admitted.

1965 (1st sess.), c. 80, a. 258; 1992, c. 57, s. 250.

259. If the interested parties fail to continue the suit, the party remaining gives them formal notice to do so. If continuance of suit is not effected within 10 days of notification, the plaintiff may proceed by default or the defendant may request the dismissal of the action, unless an interested party is relieved from default by the court.

1965 (1st sess.), c. 80, a. 259; 2002, c. 7, s. 56.

260. (Replaced).

1965 (1st sess.), c. 80, a. 260; 2002, c. 7, s. 56.

261. (Replaced).

1965 (1st sess.), c. 80, a. 261; 2002, c. 7, s. 56.

CHAPTER IX

DISCONTINUANCE

262. A party may at any time discontinue his suit or proceeding.

1965 (1st sess.), c. 80, a. 262.

263. Discontinuance is effected by a simple declaration signed by the party or his attorney, and presented at the trial or filed in the office of the court.

Unless made at the trial in the presence of the opposite party, the discontinuance has no effect against him until it has been served upon him.

1965 (1st sess.), c. 80, a. 263.

264. Discontinuance replaces matters in the state in which they would have been had the suit to which it applies not been commenced.

It involves the obligation to pay the costs occasioned by the suit, which costs are adjudged to the opposite party by the clerk, upon inscription.

1965 (1st sess.), c. 80, a. 264; 1992, c. 57, s. 420.

264.1. If one of the parties discontinues a joint suit, either of the parties may continue the suit alone. In that case, the motion to institute proceedings is amended and served on the opposite party and the suit is continued pursuant to the rules applicable to any suit.

2002, c. 7, s. 57.

CHAPTER X

Repealed, 2002, c. 7, s. 58.

265. (Repealed).

1965 (1st sess.), c. 80, a. 265; 1996, c. 5, s. 24; 2002, c. 7, s. 58.

266. (Repealed).

1965 (1st sess.), c. 80, a. 266; 2002, c. 7, s. 58.

267. (Repealed).

1965 (1st sess.), c. 80, a. 267; 1992, c. 57, s. 251; 2002, c. 7, s. 58.

268. (Repealed).

1965 (1st sess.), c. 80, a. 268; 2002, c. 7, s. 58.

269. (Repealed).

1965 (1st sess.), c. 80, a. 269; 1996, c. 5, s. 25; 2002, c. 7, s. 58.

CHAPTER XI

JOINDER OF ACTIONS

270. Even where the claims do not originate from the same source or from related sources, two or more actions between the same parties, brought before the same jurisdiction, may be joined by order of the court, if it appears expedient to the court to hear them together and if it causes no undue delay for any of the actions or serious injury to any third person interested in any of the actions.

1965 (1st sess.), c. 80, a. 270; 1984, c. 26, s. 8; 1992, c. 57, s. 252; 1994, c. 28, s. 11; 2002, c. 7, s. 59.

271. The court may also order that several actions brought before it, whether or not involving the same parties, be tried at the same time and decided on the same evidence; it may also order that the evidence in one be used in another or that one be tried and decided first and the others meanwhile stayed.

1965 (1st sess.), c. 80, a. 271; 1984, c. 26, s. 9; 1994, c. 28, s. 12; 2002, c. 7, s. 60.

272. An order under article 270 or 271 may be issued at any stage of a proceeding, but it may be revoked by the trial judge if he is of opinion that it is in the interest of justice to do so. No appeal lies from such order or from the order revoking it.

1965 (1st sess.), c. 80, a. 272; 2002, c. 7, s. 61.

273. When the Superior Court and the Court of Quebec are seized of actions having the same juridical basis or raising the same questions of law and fact, the Court of Quebec must, if one of the parties so requests and no serious prejudice can result to the opposite party, suspend the hearing of the case before it until the judgment in the case before the Superior Court has become definitive.

An order by the Court of Quebec suspending the hearing may be revoked if warranted by new circumstances.

1965 (1st sess.), c. 80, a. 273; 1988, c. 21, s. 66; 2002, c. 7, s. 62.

CHAPTER XII

SPLITTING OF ACTION

273.1. The court may, on an application, split an action in any matter at any stage of the proceeding.

The resulting trials are held before the same judge, unless the chief judge or chief justice decides otherwise.

1996, c. 5, s. 26; 2002, c. 7, s. 63.

273.2. No appeal lies from the judgment on the application for the splitting of an action; the right to appeal judgments on the merits only arises upon the issue of the judgment terminating the proceedings.

1996, c. 5, s. 26; 2002, c. 7, s. 63.