PLAINTIFF

DEMAND

STEP 1: LETTER OF DEMAND

The first step is to send a letter of demand as quickly as possible to remind the person or enterprise that he is in default and to remedy his default. Failure to remedy his default can result in a legal proceeding and a judgment may be rendered against him.

STEP 2: LEGAL PROCEEDINGS

If the person or enterprise still doesn’t remedy his default, you will need to institute legal proceedings as soon as possible. It is crucial that the proceedings respect the model established by the Minister of Justice, which consists of the following possibilities:

1. Originating application and the summons

a) Originating application

You can sue an individual or an enterprise by filling an originating application for any of the following reasons:

  • Debt payment;
  • Unpaid or partially unpaid goods or services;
  • Goods or services undelivered or partially undelivered;
  • Interpretation and/or execution of rights and obligations emanating from contracts (contracts for sale/lease, distribution contracts, loan agreements, insurance contracts, residential and commercial leases, service contracts)
  • Breach of contracts;
  • Right of way, use or ownership;
  • Destruction of goods;
  • Conflict with your neighbour;
  • Conflict with your business partner;
  • Conflict with your landlord;
  • Conflict with your tenant

b) The summons

It is very important to attach to your originating application the summons. The summons will not only notify the defendant that the plaintiff has filed an originating application to the Court, but also mentions his obligation to answer this application within 15 days, as well as his duty to cooperate with the plaintiff to conduct the proceeding.

The summons also informs the defendant of his possibility to refer the originating application to the court having territorial jurisdiction by applying to the special clerk in the concerned district and by notifying the parties and the office of the court that is already seized of the case.

Finally, if the plaintiff is qualified under the rules governing the recovery of small claims, the summons informs the defendant that he can contact the clerk of the court to request a transfer of the originating application to the small claims division (the organisation must have less than 10 employees and the claim must not exceed $15,000[1]).

The defendant must answer the summons in writing, personally or through a lawyer, at the concerned courthouse district. The answer must be within 15 days of the present originating application.

If defendant fails to answer within the limit of 15 days, a default judgment may be rendered against him without further notice.

2) Case protocol and defense

a) Case protocol

The case protocol is used to regulate and supervise the legal proceeding. The parties must cooperate during such proceeding and this protocol, being to a certain extent a judicial contract concluded between the parties, emphasis the cooperation aspect. The case protocol will mention for example the principle allegations of the parties and the motives of the dispute, the type of defense, the different delays to respect to ready the case for trial, the estimated time and cost necessary for the trial, and more. It is mandatory and crucial in every dispute, and must be filled in concert by the demanding party and the defendant.

The case protocol must be filed with the court office in the concerned district within 45 days after service of this present summons. In family matters or if you have no domicile, residence or establishment in Quebec, within 3 months of the summons’ service.

Within 20 daysafter the case protocol, the court may contact you to a case management conference in order to ensure the orderly progress of the proceeding. The protocol is presumed accepted if you are not contacted.

b) Defense

The defendant must summarize his means of defense established in the case protocol. The party will be able to render a simple defense or a defense that includes a cross-application.

i. Simple defense

This type of defense allows the defendant to contest, partially or totally, the conclusions and allegations of the originating application. Generally, this type of defense is oral, but can exceptionally be made in writing if the case presents a high level of complexity or special circumstances[2].

ii. Defense that includes a cross-application

This defense allows the defendant to contest not only the allegations of the other party, but also to include a cross-application against the demanding party with the defense. Thus, because the cross-application is to be made in writing, the defendant will also be able to render his defense in this same writing. Contesting the cross-application may however be oral.

3) Readiness for trial

The readiness for trial is when the plaintiff must ready the case to obtain a trial date. The trial will then allow the parties to obtain a judgment that will determine the fate of the dispute.

To do so, the plaintiff will make a demand to set down for trial and judgment. This demand must be made within a six (6) months delay, or one year in family matters, after the date on which the protocol is presumed to be accepted. Failure on your part to ready the case within the time limit, the plaintiff will forfeit his right.

After the readiness for trial is completed, the parties must now wait to receive the trial date from the clerk.

STEP 3: THE RESULT (JUDGMENT)

Following the trial, the court must render a judgment to settle the dispute. This judgment is made in writing and must give reasons. The judgment can be made immediately after the trial in the presence of the parties, or after taking the case under advisement, in which case the delay to receive said judgment can be between one (1) to six (6) months.

In certain case, for example if you forget or omit to answer the summons in due time, a default judgment may be rendered against you. The delay to obtain such judgment can vary: between 60 days to 120 days depending on the urgency of the matter and the backlog of the court. It is possible to write a letter to the clerk of the court requesting an expedited judgment.

If you are not satisfied with the judgment and think that the judge erred in one or many aspects of the decision, it is your right, under certain conditions, to appeal the judgment.

Generally, a judgment where the value of the subject matter of the dispute exceeds $60,000 may be appealed without permission as a right. However, in some case, the Court of Appeal must permit the right to appeal, such as when the value of the subject matter of the dispute is inferior to $60,000.

Being so, if you want to use your right to appeal to the Court of Appeal, you must deposit an appeal declaration, and your permission to appeal if applicable, within 30 days of the date of the judgment notice. Failure on your part to do so, you will forfeit your right to appeal. This delay can even be reduced to ten (10) days regarding an interlocutory injunction.

STEP 4: EXECUTION OF THE JUDGMENT

Once you receive a judgment:

i. You may have to wait an additional delay of 30 days to ensure that the case was not appealed before the Court of Appeal.

ii. In case of a default payment, you can:

  • Seize bank accounts;
  • Seize the salary in the hands of an employer;
  • Seize movable or immovable property at the Land Registry office (if the judgment is greater than $10,000.00);
  • Expulse a tenant from its premises with an expulsion order.

This is a non-limited list of solutions to execute your judgment.

[1] Section 536 Code of civil procedure.

[2] Section 171 Code of civil procedure.

If you are looking for a law firm with reasonable rates, quick and efficient turnaround time for your files and who provides personalized and effective follow-ups, call Schneider Attorneys at (514) 439-1322 ext. 112 or email us at info@schneideravocat.com

The above noted text should not be construed as providing legal advice or a statement of your claim. The process highlighted above are merely parameters and barometers and do not constitute any warranties and guaranties with regards to your file at hand. We strongly recommend that you seek legal advice with a licensed attorney from the Barreau du Quebec or a notary at the Chambre des Notaires. Each case must be seen and analysed on its merits as the legal process may be complex and cumbersome.