Case management, proportionality and civil proof: the provisional state of the questions

« Gestion d’instance, proportionnalité et preuve civile : état provisoire des questions » / “Case management, proportionality and civil proof: the provisional state of the questions”, Yves-Marie Morissette (2009)

« Gestion d’instance, proportionnalité et preuve civile : état provisoire des questions », Yves-Marie Morissette
Les Cahiers de droit, vol. 50, n° 2, 2009, p. 381-413.
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TO DO: This is a 34-page “Note” !
Put the tables in, OCR the French and put it in.
Translate to English au fur et à mesure.


A major reform of civil procedure was undertaken in 2002 in the wake of the Ferland report. This report was inspired by the Woolf report in England. The idea of proportionality holds a central place there but it has been codified in the Civil Procedure Rules in a much more energetic way than in Quebec, taking into account the implementation costs of civil justice. Moreover, the impact studies undertaken here are less convincing than those carried out in England. The assessments on both sides present several points of resemblance, however, and should convince the Quebec legislator to push the reform further by a marked distancing of the adversarial culture, which requires tighter control over the progress of the case, a better structuring of preliminary interrogatories and recourse as often as possible to single experts appointed by the parties or by the court. Seen from this angle, the 2002 reform in Quebec admits of an appreciable lag over the reform undertaken by the Woolf report.

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The subject I am going to deal with concerns access to justice, the reform–or the revision, if one prefers to use a euphemism–of civil procedure and, more precisely, the impact that this reform has been able to have, or risks having in the future, on civil proof.

1.  Three opening remarks to situate the debate

It has seemed to me that before venturing into the study of this subject, which is at once technical and quite controversial among local jurists, it would be appropriate to show my cards.

Also I will start with three series of opening remarks which are intended to be general, which only indirectly concern the subject that I will then broach, but which explain the pennant I am flying.

1.1  Une réforme aussi nécessaire qu’opportune

Firstly, I consider that the reform resulting from the Ferland report of 2001, a reform adopted in 2002 and entered into force on the 1st of January 2003, constituted an important step forward.

Before examining the impacts and questioning myself on what remains of the state of the construction site,

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The social tyranny of extorting recantation, of ostracism and virtual outlawry as the new means of coercing the man out of line, is the negation of democracy.

— Justice Ivan Cleveland Rand of the Supreme Court of Canada, Canadian Bar Review (CBR)
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— Mr. Justice Ivan Cleveland Rand writing in the most memorable passage in Roncarelli v. Duplessis, [1959] S.C.R. 121 at the Supreme Court of Canada, page 140.
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I am no fan of Saul Alinsky's whose methods are antidemocratic and unparliamentary. But since we are fighting a silent war against the subversive Left, I say, if it works for them, it will work for us. Bring on the ridicule!  And in this case, it is richly deserved by the congeries of judicial forces wearing the Tweedle suits, and by those who are accurately conducting our befuddled usurpers towards the Red Dawn.

— Admin, Judicial Madness, 22 March 2016.
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