TITLE II PROCEDURE

CHAPTER I

INSTITUTION OF ACTION AND CONTESTATION

960. The clerk provides the parties who so request with any information they may need at any stage of the proceeding or the execution of the judgment, particularly as regards the essential elements of procedure and the rules governing the communication of exhibits and the presentation of evidence.

1971, c. 86, s. 1; 1984, c. 46, s. 11; 2002, c. 7, s. 148.

960.1. (Replaced).

1975, c. 83, s. 62; 1984, c. 46, s. 12; 1999, c. 40, s. 56; 2002, c. 7, s. 148.

961. The statement of claim must set out the facts on which the action is based, the nature and amount of the claim, the amount of the interest, and the conclusions sought. It must also state the name, domicile and place of residence of the plaintiff and the name and last known place of residence of the defendant.

If the plaintiff is a legal person, partnership or association, the statement of claim must also contain a declaration that not more than five persons bound to it by a contract of employment were under its direction or control at any time in the 12-month period preceding the institution of the action.

1971, c. 86, s. 1; 1975, c. 83, s. 63; 1997, c. 42, s. 18; 2002, c. 7, s. 148.

962. The plaintiff or the plaintiff\'s mandatary prepares the statement of claim, or explains the facts and the conclusions sought to the clerk and asks the clerk to prepare the statement of claim. The statement of claim must be signed by the plaintiff or the plaintiff\'s mandatary and be supported by the signatory\'s oath verifying the accuracy of the facts and the existence of the debt; the statement of claim must be presented together with any exhibits supporting the plaintiff\'s allegations.

1971, c. 86, s. 1; 1975, c. 83, s. 64; 2002, c. 7, s. 148.

963. If the action is admissible, the statement of claim is filed at the office of the court and a court record is thereby opened.

If the action is not admissible, the clerk informs the plaintiff, indicating that the decision may be reviewed by a judge at the plaintiff\'s request within 15 days of its notification.

1971, c. 86, s. 1; 1975, c. 83, s. 65; 2002, c. 7, s. 148.

964. The clerk notifies a copy of the statement of claim to the defendant, together with a list of the exhibits filed by the plaintiff and a notice setting out the options available to the defendant.

The notice must reproduce the text determined by the Minister of Justice and must state that if the defendant fails to indicate an option to the clerk within 20 days of the notification, judgment may be rendered against the defendant without further notice or extension.

1971, c. 86, s. 1; 2002, c. 7, s. 148.

965. The options available to the defendant are

(1) to pay the amount claimed and the plaintiff\'s disbursements, either to the clerk or to the plaintiff, in the latter case forwarding proof of payment or the acquittance obtained from the plaintiff to the clerk; or

(2) to make a settlement with the plaintiff, and send a copy of the agreement to the clerk;

(3) to contest the merits of the action, and so advise the clerk, specifying the grounds for the contestation.

In addition, a defendant who chooses to contest the action may

(1) request that the dispute be referred to mediation;

(2) apply for the referral of the case to another judicial district or to another court, specifying the grounds for the request;

(3) request that another person be impleaded to allow a complete resolution of the dispute, in which case the defendant informs the clerk of the person\'s name and last known address; and

(4) make a counter-claim against the plaintiff provided it arises out of the same source as the plaintiff\'s claim or from a related source and is admissible under this Book.

1971, c. 86, s. 1; 1975, c. 83, s. 66; 1996, c. 5, s. 58; 2002, c. 7, s. 148; 2002, c. 54, s. 6.

966. (Repealed).

1971, c. 86, s. 1; 1975, c. 83, s. 67; 2002, c. 7, s. 148; 2004, c. 17, s. 1.

967. If the defendant has paid the plaintiff, the clerk closes the record; if the parties have reached a settlement and one of the parties so requests, the clerk confirms the agreement as a judgment.

If the defendant has requested that the case be referred to another judicial district or to another court, the clerk so advises the plaintiff and submits the request to the judge. If the judge finds the request well-founded, the clerk refers the case to the clerk of the court of competent jurisdiction and it is continued before that court as though it had originally been brought before that court.

1971, c. 86, s. 1; 1977, c. 73, s. 39; 1995, c. 39, s. 15; 2002, c. 7, s. 148; 2002, c. 54, s. 7.

968. If the defendant chooses to contest the merits of the action, the defendant so advises the clerk and sets out the grounds for contestation in a written contestation. The defendant files the exhibits supporting the defendant\'s allegations at the office of the court. The clerk notifies a copy of the contestation to the plaintiff, together with a list of the exhibits filed by the defendant.

If the defendant wishes to make a counter-claim against the plaintiff, arising out of the same source as the plaintiff\'s claim or from a related source and the counter-claim is admissible under this Book, the defendant may demand payment thereof in the contestation and file the exhibits supporting the related allegations.

1971, c. 86, s. 1; 1975, c. 83, s. 68; 2002, c. 7, s. 148.

969. If the defendant has requested that another person be impleaded, the defendant presents the grounds for the request to the clerk and files the exhibits supporting the related allegations. The clerk so notifies the plaintiff and serves copies of the statement of claim and the contestation on the impleaded party, together with a list of the exhibits in the clerk\'s possession.

1971, c. 86, s. 1; 2002, c. 7, s. 148.

970. If the defendant fails to file an answer, the judge or the special clerk, as the case may be, renders judgment after examining the exhibits in the record and, if necessary, after hearing the plaintiff\'s evidence.

In the case of an action to which article 194 applies, the clerk renders judgment on the face of the statement of claim and the exhibits in the record.

1971, c. 86, s. 1; 2002, c. 7, s. 148.

970.1. (Replaced).

1977, c. 73, s. 40; 1988, c. 21, s. 66; 2002, c. 7, s. 148.

971. A defendant sued pursuant to the other Books of this Code who would be admissible as a plaintiff under this Book may request that the case be heard pursuant to this Book.

Such a request may be made to the clerk of the court seized of the case, at any time before inscription for judgment by the clerk or inscription for proof and hearing before the court. If the request is found to be admissible, the clerk immediately notifies the plaintiff; the decision of the clerk may be reviewed by a judge, following a request in writing filed within 15 days of the notification. On the expiry of that time limit, the clerk transfers the case so that it may be continued pursuant to this Book.

1971, c. 86, s. 1; 1975, c. 83, s. 69; 2002, c. 7, s. 148; 2002, c. 54, s. 8.

CHAPTER II

SUMMONING OF PARTIES AND WITNESSES

972. When the case is ready, the clerk summons the parties to the hearing. The summons must indicate that a party may, on request, obtain a copy of the documents, statements and reports filed at the office of the court by the other parties; it must also indicate that any person representing a person, partnership or association must produce a written mandate.

In the summons, the clerk informs the parties that all documents, statements and reports must be filed at least 15 days before the date of the hearing.

The clerk summons the witnesses requested by the parties. A party who summons a witness may be ordered to pay the costs if the judge considers that the witness was summoned and required to attend unnecessarily.

1971, c. 86, s. 1; 1975, c. 83, s. 70; 2002, c. 7, s. 148.

CHAPTER III

MEDIATION

973. The clerk must inform the parties at the earliest opportunity that they may at no additional cost submit their dispute to mediation. If both parties consent, they may ask the clerk to refer them to the mediation service. The mediation session is presided by an advocate or a notary who is certified as a mediator by his or her professional order.

The mediator must file a report at the office of the court giving an account of the facts, the positions of the parties, the questions of law raised, the evidence the parties intend to file and the witnesses they propose to call at the hearing. However, no offers tendered or statements made by the parties in an effort to settle the dispute may be put in evidence at a hearing, except with the consent of the parties.

If the parties settle their dispute, they draft an agreement and sign it; they file a copy of the agreement, or a notice that the case has been settled, at the office of the court. If the agreement is filed, it is confirmed by the judge or the clerk and thereby becomes equivalent to a judgment.

1971, c. 86, s. 1; 2002, c. 7, s. 148.

CHAPTER IV

HEARING

974. In all cases where a hearing is necessary, the clerk, where reasonably practicable, fixes a time and place for the hearing which will allow the parties and their witnesses to attend. The judge may hold a hearing elsewhere than at the place where the action was instituted.

On the day fixed for the hearing, the clerk, in the absence of the judge, may postpone a case at the request of a party if the clerk considers that the ends of justice will be better served; in such a case, the clerk must notify the other party without delay and rule on that party\'s costs; the clerk\'s decision as to costs may be revised by the judge during the hearing on the merits.

1971, c. 86, s. 1; 2002, c. 7, s. 148.

975. If an action having the same juridical basis or raising the same questions of law as an action brought pursuant to this Book is before the Superior Court or the Court of Quebec, the judge suspends the hearing of the case, if one of the parties so requests, until the judgment on the other action has become definitive, provided no serious prejudice may be caused to the opposite party. Such decision may be revised by a judge at the request of one of the parties, if warranted by new circumstances.

1971, c. 86, s. 1; 2002, c. 7, s. 148.

976. At the time fixed for the hearing, the clerk calls the case and ascertains whether the parties are present and the judge presiding judges the case according to the evidence presented.

At any time before the hearing on the merits, a judge may hear any preliminary application and issue any order as appropriate.

1971, c. 86, s. 1; 1975, c. 83, s. 71; 1992, c. 63, s. 5; 2002, c. 7, s. 148.

977. The judge instructs the parties summarily as to the applicable rules of evidence and the procedure that appears appropriate. On the invitation of the judge, the parties state their allegations and call their witnesses.

The judge examines the parties and the witnesses and gives them equitable and impartial assistance so as to render effective the substantive law and ensure that it is carried out.

1971, c. 86, s. 1; 2002, c. 7, s. 148.

977.1. (Replaced).

1984, c. 26, s. 26; 1988, c. 21, s. 66; 2002, c. 7, s. 148.

978. Whenever possible, the judge attempts to reconcile the parties.

If a settlement is reached, the judge instructs the clerk to record the agreement; the agreement, signed by the parties and countersigned by the judge, is equivalent to a judgment.

1971, c. 86, s. 1; 1999, c. 40, s. 56; 2002, c. 7, s. 148.

979. At the hearing, the defendant or any impleaded party may present any grounds of contestation or propose terms and conditions of payment.

1971, c. 86, s. 1; 1975, c. 83, s. 72; 1995, c. 39, s. 16; 2002, c. 7, s. 148.

980. A party may produce a written statement as testimony provided it was filed at the office of the court at least 15 days before the hearing and the opposite party was notified by the clerk that the statement was available for examination and reproduction. The opposite party may request that the clerk summon the deponent to the hearing. The judge may award costs against a party having requested a deponent to be summoned if the judge believes the written statement was sufficient and the deponent\'s attendance unnecessary.

1971, c. 86, s. 1; 2002, c. 7, s. 148; 2002, c. 54, s. 9.

981. The judge may accept the filing of a document, statement or report after the expiry of the prescribed time if the judge considers that no prejudice is caused to the opposite party or that the ends of justice will be better served.

1971, c. 86, s. 1; 1975, c. 83, s. 73; 2002, c. 7, s. 148.

982. The judge may, on his or her own initiative, if it is the judge\'s opinion that the ends of justice will be better served, visit the premises or order an expert\'s appraisal of the facts related to the case or a certified report by a competent person designated by the judge.

The procedure applicable to the appraisal or report is determined by the judge.

The judge rules on the costs relating to the appraisal or report and determines whether they are to be borne by one of the parties or by both or, if the judge considers it appropriate and that the ends of justice will be better served, by the Minister of Justice.

1971, c. 86, s. 1; 1975, c. 83, s. 74; 1995, c. 39, s. 17; 2002, c. 7, s. 148.

CHAPTER V

JUDGMENT

983. The judgment, including a summary of the reasons for the decision, is recorded in writing and signed by the judge, special clerk or clerk who rendered it. The judgment in a contested action must be rendered within four months of the hearing; any other judgment must be rendered within 30 days after the record is complete.

Unless the judgment is rendered at the hearing in the presence of the parties, the clerk sends a certified copy of the judgment to each party as soon as it is rendered.

The clerk sends a notice to the debtor, with the copy of the judgment, stating that a judgment has been rendered against the debtor and that upon the failure to pay the debt due, the debtor\'s property may be seized and, if necessary, sold by judicial sale.

1971, c. 86, s. 1; 1975, c. 83, s. 75; 1977, c. 73, s. 41; 1982, c. 32, s. 55; 1984, c. 26, s. 27; 1992, c. 63, s. 6; 1996, c. 5, s. 59; 2002, c. 7, s. 148.

984. The judgment is final and without appeal.

Actions involving small claims are not subject to the superintending and reforming power of the Superior Court, except where there is want or excess of jurisdiction.

1971, c. 86, s. 1; 1975, c. 83, s. 76; 1992, c. 63, s. 7; 1992, c. 57, s. 416; 2002, c. 7, s. 148.

984.1. (Replaced).

1992, c. 63, s. 8; 1996, c. 5, s. 60; 2002, c. 7, s. 148.

985. The judgment has the authority of res judicata only as to the parties to the action and the amount claimed.

The judgment cannot be invoked in an action based on the same cause and instituted before another court; the court, on its own initiative or at the request of a party, must dismiss any action or proof based on the judgment.

1971, c. 86, s. 1; 1992, c. 63, s. 9; 2002, c. 7, s. 148.

986. The judgment may be executed on the expiry of 30 days from the day it is rendered, unless the judge has ordered otherwise. A judgment by default may be executed on the expiry of 10 days from the day it is rendered. However, if the creditor establishes, in a writing under oath, a fact permitting a seizure before judgment, the creditor may be authorized by the judge to execute the judgment before the expiry of the prescribed time.

If the judgment orders payment of the debt by instalments or confirms a settlement between the creditor and the debtor and the latter fails to pay an instalment when due, the creditor may demand payment of the amount due in writing. If the debtor fails to pay the instalment within 10 days of the demand, the entire amount of the debt becomes due and execution is proceeded with.

1971, c. 86, s. 1; 1975, c. 83, s. 77; 2002, c. 7, s. 148.

987. The judgment determines costs, including the allowances payable to witnesses, but only as regards those it specifies, according to the tariffs in force. In the case of a transfer from another court, the judgment also determines the costs incurred before the transmission of the record so that it may be continued pursuant to this Book.

1971, c. 86, s. 1; 1996, c. 5, s. 61; 1999, c. 46, s. 16; 2002, c. 7, s. 148.

988. In any action involving a claim admissible as a small claim which was not instituted pursuant to this Book, a defendant against whom a judgment by default is rendered for failure to appear or contest and who did not exercise the right to have the case transferred is liable for the plaintiff\'s costs according to the rules applicable under the other Books of this Code.

1971, c. 86, s. 1; 1999, c. 46, s. 17; 2002, c. 7, s. 148.

CHAPTER VI

REVOCATION OF JUDGMENT

989. If a party against whom a judgment by default is rendered was unable to contest the action or attend the hearing owing to surprise, fraud or any other sufficient cause, the party may apply for the revocation of the judgment.

A party may also apply for the revocation of the judgment in any case described in article 483 that is not inconsistent with the provisions of this Book.

1971, c. 86, s. 1; 1982, c. 32, s. 56; 1984, c. 46, s. 13; 1986, c. 58, s. 19; 1988, c. 51, s. 109; 1992, c. 63, s. 11; 2002, c. 7, s. 148.

989.1. (Replaced).

1992, c. 63, s. 12; 2002, c. 7, s. 148.

989.2. (Replaced).

1992, c. 63, s. 12; 1998, c. 36, s. 178; 2002, c. 7, s. 148.

990. The application for revocation must be in writing and supported by an affidavit. It must be filed at the office of the court within 15 days of knowledge of the judgment.

The judge or the clerk examines the application and determines whether it is admissible; if it is found to be admissible, compulsory execution is suspended. The clerk notifies the parties and summons them to a new hearing on the appointed date to dispose of both the application for revocation and the main issue of the case.

1971, c. 86, s. 1; 1975, c. 83, s. 78; 2002, c. 7, s. 148.