OUR SERVICES

COMMERCIAL LITIGATION AND DISPUTE RESOLUTION

Sometimes preventable, sometimes unavoidable, disputes and litigation are an inevitable part of business and life in general. Handled incorrectly, a small misunderstanding can spiral into acrimonious and lengthy litigation at great financial and personal cost for those involved. The overburdening of the Quebec Court system and the ever increasing delays for trial dates are a testament to this reality and illustrate the necessity for efficient and timely dispute resolution.

An introduction to civil and commercial litigation and dispute resolution in Quebec


Sometimes preventable, sometimes unavoidable, disputes and litigation are an inevitable part of business and life in general. Handled incorrectly, a small misunderstanding can spiral into acrimonious and lengthy litigation at great financial and personal cost for those involved. The overburdening of the Quebec Court system and the ever increasing delays for trial dates are a testament to this reality and illustrate the necessity for efficient and timely dispute resolution.

Conversely, many opportunities for satisfactory and cost-effective dispute resolution may often be overlooked within the maelstrom of civil litigation. In order to provide a better understanding of the challenges and complexities of civil litigation, as well as the many paths parties may take towards settling their disputes, the following presents a general overview of the litigation and dispute resolution process in Quebec.

LAW IN QUEBEC

Certain fields of Canadian law fall under federal jurisdiction (banking law, copyrights and bankruptcy, for example) while others fall under provincial jurisdiction (contract law, labour law and estates, for example). In regard to matters of provincial jurisdiction, Quebec operates under a civil law system, as opposed to the rest of Canada which operates under a Common Law system.

Within Quebec, the Civil Code of Quebec is the principal piece of legislation regarding matters of provincial jurisdiction. The Civil Code of Quebec is also complemented by other laws relating to certain areas of law. For example, the Act Respecting Labour Standards sets labour standards throughout the province while the Consumer Protection Act details the law applicable to contracts between consumers and merchants.

The procedural rules to be followed in civil and commercial litigation before the Courts in Quebec are set out in the Code of Civil Procedure which incidentally went through a major overhaul leading to a new version enacted on January 1, 2016. Presently, it is commonly referred to as the “New Code of Civil Procedure”.

THE COURT SYSTEM

The Superior Court of Quebec is the Court of general jurisdiction in Quebec, which means that it hears most suits unless the law specifically assigns jurisdiction to another Court. For example, injunctions, family matters, and claims exceeding $85,000 are all heard by the Superior Court.

As for the Court of Quebec, it has exclusive jurisdiction over claims where the value of the subject matter in dispute does not exceed $85,000. The Court of Quebec also includes a small claims division, commonly referred to as “Small Claims Court”, which has exclusive jurisdiction over monetary claims not exceeding $15,000. The Court of Quebec can also sit in appeal of decisions rendered by certain administrative tribunals.

Indeed, litigation in Quebec may also occur before administrative tribunals which have exclusive jurisdiction over certain cases depending on the nature of the issue. The Régie du logement, for example, is the administrative tribunal designated specifically to hear disputes relating to residential leases.

At the top of the Quebec Court system’s hierarchy sits the Court of Appeal,
whose role is to examine judgments from lower Courts and determine whether these judgments must be maintained, reversed, or modified.

THE JUDICIAL PROCESS

The following is a step-by-step overview of the civil litigation process in Quebec and the main stages commonly gone through by the parties.

LETTER OF CLAIM

The letter of claim (also known as the “demand letter”) is generally the first document to be drafted by the Plaintiff when preparing to initiate a suit. The letter of claim gives formal notice to the Defendant that he is in default of performing his obligations and that if he does not remedy the situation within a certain time frame, then the Plaintiff will institute legal proceedings. It is generally preferable and in some cases legally required to send a letter of claim before filing a suit.

JUDICIAL APPLICATION ORIGINATING A PROCEEDING

After having received a negative or no response from the party put on notice, the Plaintiff will institute legal proceedings by filing a Judicial Application Originating a Proceeding (“Application”). This Application is the procedural foundation of the claim. It is a written proceeding which narrates the factual basis for the claim and asks the Court to grant the remedy sought. Before being filed into Court, the Application is served by bailiff upon the Defendant along with a Summons, which, as its name suggests, summons the Defendant to appear before the Court.

DEFENDANT’S ANSWER TO THE SUMMONS

Within 15 days of service of the Summons, the Defendant must serve and file an Answer to Summons, whereby he indicates whether he intends to negotiate a settlement or defend himself against the application. In practice, as a matter of positioning, the Defendant who answers the Summons will generally advise of his intention to defend, which does not mean that settlement discussions cannot take place. See below on this.

If the Defendant fails to file an Answer to Summons within 15 days of the service of the Application, the Plaintiff can move to obtain a judgment in his favour in the absence of the Defendant. Proceeding in this way allows the Plaintiff to obtain judgment from the Court expeditiously (within weeks or months). The Defendant who fails to file an Answer to Summons exposes himself to seizure in execution of a judgment rendered ex parte in his absence. Although it is possible in certain circumstances to obtain the revocation of a judgment rendered ex parte, the process is costly and highly uncertain. Therefore it is critical that a Defendant served with an Application diligently file an Answer to Summons with the Court, with or without the assistance of an attorney.

CASE PROTOCOL

If the Defendant chooses to defend himself against the Application, then the parties must agree upon a Case Protocol within 45 days of the service of the Summons. The Case Protocol outlines the steps and timeline of the proceedings to ensure the orderly progress of the case and that the strict time limit for trial readiness is respected. Within 20 days of the filing of the Case Protocol, a judge may call the parties to a case management conference to oversee the Case Protocol and modify it in certain regards.

EXAMINATIONS

Depending on the value of the suit, parties may examine one another on any fact or evidence relevant to the dispute. The details pertaining to these examinations are specified in the Case Protocol and certain limits apply as to their duration.

DEFENCE

Before the case is ready for trial, the Defendant must file a Defence. A Defence is generally “oral”, in the sense that the Defendant’s grounds of Defence are submitted orally before the Court and recorded in the minutes of the hearing. In practice, “oral” defences can also be drafted in a brief outline which is then attached to the minutes. In exceptional circumstances and when the case presents a high level of complexity, a Defence may be written. In this case, the Defence is contained in a written proceeding whose format resembles that of the Application. This is a reversal of the general rule prevailing under the previous Code of Civil procedure, which was that Defences be done in writing

READINESS FOR TRIAL AND SETTING DOWN FOR TRIAL AND JUDGMENT

Within 6 months of the Case Protocol being accepted or determined by a judge, the parties must file a request to have the case set down for trial and judgment. This request is done by means of a Joint Declaration, whereby the parties announce their witnesses, what exhibits they intend to use at trial and how much court time they will need. Given that circumstances outside the parties’ control sometimes arise, one or both parties may petition the Court to extend the deadline for filing the request. After the request has been filed, the Court will contact the parties to set a trial date. Depending on the length and complexity of the case, this date may very well be anywhere from several months to one or two years in the future.

THE TRIAL – EVIDENCE & ARGUMENTS

The trial begins with the presentation of evidence and ends with legal arguments. The Plaintiff presents his evidence first (testimonial, documentary, or material) and the Defendant may cross-examine Plaintiff’s witnesses and raise objections in regard to Plaintiff’s evidence. Once the Plaintiff has finished presenting his evidence, the Defendant then presents his evidence, subject to the Plaintiff’s cross-examination and objections. Once all the evidence has been presented, the parties plead their case and submit their legal arguments to the Court, commonly referred to as “oral arguments”. Once these have concluded, the judge often takes the case “under advisement”, which means he will consider the matter and render judgment at a later date.

THE JUDGMENT

Usually within six months of the case having been taken under advisement, the judge will render judgment and decide what damages must be paid or what orders be granted, if any. The judgment also determines which party must pay legal costs, as detailed hereunder.

LEGAL COSTS

“Legal costs” refers to Court costs and fees incurred during the litigation process. These include the indemnity provided to witnesses as well as bailiff, stenographer, and expert witness fees, amongst others. The successful party is generally awarded costs, which means the losing party will have to pay not only its own legal costs, but the other party’s costs as well. Depending on the case, this may amount to a considerable sum.

Also, although strictly speaking lawyer fees are not considered legal costs, the Code of Civil Procedure now explicitly allows judges to award “an amount that it considers fair and reasonable to cover the professional fees of the other party’s lawyer” to punish procedural misconduct. However, as a general rule, it is very difficult for a party to claim lawyer fees, which is an important consideration at any stage of civil litigation.

APPEAL

Judgments may be appealed before the Quebec Court of Appeal, which will have to decide whether to confirm, annul, or otherwise modify the judgment rendered by the trial Court. Some judgments are automatically appealable, while others require a judge of the Court of Appeal to grant a party leave (permission) to appeal. An appeal also generally prevents the winning party from executing the first judgment until the appeal is disposed of.

Finally, once judgment has been rendered by the Court of Appeal, a losing party’s final recourse would be to appeal to the Supreme Court of Canada, Canada’s final court of appeal. However, in all but exceptional cases leave must first be granted by the Supreme Court. Leave to appeal may be granted in cases where a question of public importance is involved or if it raises an important issue of law that warrants the Court’s consideration. If the Supreme Court refuses to grant leave, it generally does not give its reasons and the case comes to an end.

PRIVATE DISPUTE PREVENTION AND RESOLUTION PROCESSES

There are many reasons which might explain a party’s wish to settle out of Court: the risks and uncertainties inherent in trials and judgments, disclosure of sensitive information, costs, etc. No matter the reason, we firmly believe that alternative means to resolve or prevent disputes are almost always worth consideration at any time in the litigation process.

The philosophy underlying the Code of Civil Procedure revolves around promoting these alternative dispute resolution processes and encouraging parties to settle out of Court. The first article of the Code of Civil Procedure even compels parties to consider private modes of conflict resolution before petitioning the Courts. Described below are the principal alternative dispute resolution processes: mediation, arbitration and settlement conferences.

MEDIATION

Mediation involves the parties mutually agreeing to designate an impartial third- party mediator to help them engage in dialogue, define the issues in dispute, identify their needs and interests and explore possible solutions. The parties are free to define the mediator’s role as well as the rules and length of the mediation process. The discussions held in mediation are confidential.

ARBITRATION

Arbitration is the submission of a dispute to an arbitrator named by the parties or the Court. In accordance with the law, the arbitrator renders a binding decision regarding the dispute. Generally, resorting to arbitration precludes the parties from bringing their suit before Court, although the winning party may petition the Court to have the arbitrator’s decision “homologated” (sanctioned by the Court).

SETTLEMENT CONFERENCES

If judicial proceedings are already undertaken, the parties can request, at any stage before trial, to participate in a settlement conference during which a judge facilitates dialogue between the parties and helps them explore potential solutions which could lead to a mutually satisfactory settlement. The conference is held privately and in the presence of the parties and, if they so choose, in the presence of their lawyers as well. The statements made and documents produced during the conference also remain confidential.

Who we are ?


As described in these pages, there are many paths that may be taken towards dispute resolution and no matter the case, however complex or significant, opportunities for satisfactory and cost-effective solutions to disputes and litigation may be found. Be it by active negotiation, efficient litigation before the Courts or by any alternative dispute resolution process, these tools must be used strategically in order to individually tailor a solution to each problem.

Given this reality, we are proud to say that at Ravinsky Ryan Lemoine, our commercial litigation and dispute resolution group’s approach consists of bespoke, and not
“off-the-rack” service. Our lawyers of the civil and commercial litigation group at Ravinsky Ryan Lemoine have developed a particular expertise in helping our clients obtain the best results from litigation while protecting their personal and commercial interests. Our seasoned attorneys are accustomed to dealing with a broad array of legal issues and handling diverse cases, big or small, straightforward or complex, in most fields of civil and commercial litigation, namely:

  • Contractual disputes and commercial conflicts including injunctions,seizures before judgment and other emergency measures;

    Contracts play a far greater role than we realize in day-to-day life in our society. On a regular, if not a daily basis, individuals are called upon to assume contractual obligations of varying importance. Take the example of contracts of sale, of service or of employment, all of which are typically entered into by members of the public at one time or another. In the commercial sphere, to name but a few, we can mention franchise contracts, supply contracts and leases.

    Disputes stemming from the performance of contracts, whether in a personal or a commercial context, can arise for a wide variety of reasons: disagreement between the parties as to the content or the interpretation of the contract, total or partial failure to fulfil contractual obligations on the part of a contracting party, purported cancellation of the contract, etc. Nowadays, the increasing complexity of contracts as well as the enactment of new laws and regulations governing contractual matters can make it difficult to find one’s way.

    When a contractual dispute or commercial conflict arises or can be seen on the
    horizon, it is imperative to seek legal advice from an expert. Indeed, misunderstandings between the parties can often be resolved, to the mutual advantage of all concerned, by reasoned negotiation conducted by one of our experienced attorneys. Thus, it is better to act rapidly to protect one’s rights than to act once a court action is already under way.

    Nonetheless, when it is necessary to have recourse to the judicial process, the lawyers of our commercial litigation and dispute resolution group possess the knowledge and experience needed to judiciously use, from the outset of a judicial proceeding, measures such as injunctive relief, seizures before judgement and the other recourses provided by law. In this way, our clients put themselves in a position of strength from the outset of the judicial proceeding, and our lawyers strive to keep them in that position at all times. Given their mastery of these measures and their understanding of the different strategies available according to each individual case, our lawyers are also well placed to vigorously defend our clients if they should find themselves the object of an aggressive lawsuit.

  • Disputes between shareholders, associates or partners;

    Disagreements between shareholders can have an extremely disruptive effect on the operations of a company, to the point where it is sometimes necessary to put an end to the association of the warring parties. Such disagreements can lead to some of the most bitter disputes, resembling at times veritable divorces. The commercial litigation and dispute resolution group at Ravinsky Ryan Lemoine possesses vast experience in representing the interests of shareholders who find themselves at loggerheads with the other shareholders of a company. Our lawyers master the tools available to negotiate, or else to obtain from a court, a remedy appropriate to the circumstances and favourable to the interests of our clients.

    For example, our lawyers have :

    – Defended one of the two shareholders of a company operating in the field of industrial laboratory testing, against an action taken by the other shareholder seeking the liquidation of the company. In this case we obtained an order requiring the sale to our client of the shares of the
    opposing party, as well as certain other ancillary orders (e.g. non-competition).

    – Negotiated the purchase by the opposing party of the shares of our client in a company specialised in the placement of musicians on cruise ships. In this case, as in many others, the tax planning expertise of our corporate and commercial law group greatly facilitated the reaching of a solution in which each party found his interests well served.

    – Obtained a judgement condemning a company operating in the field of medical software development to pay damages for abuse of process to our client, in circumstances where the company, controlled by its majority shareholder, unjustly sued our client, a minority shareholder. In this case we also obtained an order that the company obtain, at its own cost, the evaluation of the fair market value of our client’s shares and purchase them at that price.

  • Real estate law/Landlord-Tenant disputes;

    Leases of an immovable can lead to many types of disputes which parties should take seriously as soon as they arise. Indeed, not only do damages, losses and other costs accumulate throughout a leasing dispute, but the parties (landlords, tenants, sublessees, neighbours, suppliers, etc.) have an interest in avoiding the deterioration of an ongoing relationship.

    We frequently act on behalf of the various actors in all types of leasing disputes that can arise: interpretation of a lease, including short term leasing and renewal options, carrying out of work, peaceful enjoyment of the leased property, use of accessories and common areas, etc.

    We are also accustomed to counseling and representing our clients in matters
    pertaining to residential leasing.

    The problems that can arise during a real estate transaction are often quite
    different than those relating to leasing. Since the economic stakes of a real estate transaction are often critical for the company or the individual, it is necessary to act with diplomacy, firmness and creativity. We have developed a specialized expertise, particularly in actions to pass title, in which the parties may not have understood certain key elements of an agreement the same way or when one party seeks purely and simply to renege on its promises.

    We have often represented brokerage firms and their clients in different types of real estate matters, including issues pertaining to remuneration and intermediaries’ liability.

    In this field of law, perhaps even more than in other fields, we are always ready to negotiate before or after proceedings are undertaken, which has allowed our clients to avoid taking their disputes to trial and instead to find satisfactory settlements out of Court.

    Here are a few decisions in which our lawyers have acted :

  • Administrative litigation (government, municipalities);

    Administrative law is one of the branches of what is called “public law”, that is to say the law governing relations between individuals and the State. In a society as highly regulated as Quebec, it is important to ensure that the contents of the numerous pieces of legislation enacted by the legislature (laws, regulations, decrees, etc.) respect the constitution and that this legislation is applied in a just and equitable manner for all, whether individuals or companies.

    When the rights of citizens, whether individuals or corporate, are violated by
    administrative authorities – whether by the enactment of unreasonable legislative measures or by arbitrary decisions taken by bureaucrats – the lawyers of our commercial litigation and conflict resolution group can use their skills to correct the situation. Over the years, our lawyers have developed solid experience in this area by acting for clients involved in several administrative litigation cases. Amongst other things, out lawyers have:

    • represented an industrial enterprise against a South Shore municipality in
    the region of Montreal, in order to have a by-law declared void for vagueness;

    • successfully represented a group of university students in order to establish, against the claims of a rival faction, the legitimate representatives of a federation of a student’s unions;

    • represented an Orthodox Jewish school in the context of a dispute with the
    provincial government regarding the content of its educational program;

    • represented a group of aboriginal people in order to contest the legitimacy
    of the election of the band’s chief and council.

  • Unfair competition;

    It happens that a business operating in a tough competitive environment will see a number of key employees leave “en masse” and turn up working for another company, aggressively approaching those whom they consider to be “their” clients. At other times, a company which has developed a novel business or invention (with or without patent protection) may notice a competitor using the
    very same tools and methods. Upon investigation, it may be discovered that the competitor in question has accessed confidential information by illegitimate means, and has used such confidential information as a “springboard” toachieving a competitive advantage.

    These are instances where the concept of unfair competition may be raised as
    the basis for legal action, and where a variety of remedies, including injunctive relief, seizure or a claim in damages, may be sought.

    We have developed significant expertise in this difficult field of practise where experience, resolve and rapid execution are key.

    We refer you to two articles published by Mtre Jean Lemoine in this field, as well as an article on a related subject by Mtre Francis P. Donovan:

    Le préjudice du créancier de l’obligation de non-concurrence : remèdes et quantification; in Développements récents en droit de la non-concurrence, volume 338

    La théorie du tremplin : quand la concurrence plonge en eaux troubles; in Développements récents en droit de la non-concurrence, volume 313

    Restrictive Covenants in Employment Contracts : What’s new? In Développements récents en droit de la propriété intellectuelle, volume 389

  • Estate related litigation

    The firm regularly represents executors of estates, heirs and other interested parties in the context of complex and often intergenerational estate related litigation. This may typically include actions for rendering of accounts or contestations of wills, but these examples alone barely scratch the surface of this field of practice, which can involve almost any imaginable scenario. Files handled by the firm often entail complex, multi-party negotiations between various conflicting interests as well as situations at the intersection between successions law and family law.

    The firm is also able to economically handle non contentious matters including probate of wills, homologation of mandates given in anticipation of inaptitude (living wills) or the establishment and modification of regimes of protection (tutorship and curatorship).

We also possess a deep understanding and significant experience in matters relating to the dismissal of high to mid level employees, construction litigation and bankruptcy and insolvency litigation.

What we do


We seek to develop a negotiated and reasoned approach to solving conflicts. To this end, we know from experience that it is by adopting a solid position and establishing the credibility that comes with good preparation and a thorough understanding of the file that we can ensure that negotiations will result in positive outcomes for our clients. We pride ourselves on consistently striving to provide our clients with costs-effective and practical solutions.

We invite you to refer to our Legal Postings section for information on selected topics and our Judgments of Interest section for some of the results obtained by our team.

Consult our legal posting or our judgments of interest.

Our lawyers specialized in commercial litigation and dispute resolution

Jean Lemoine

Jean Lemoine

Commercial litigation and dispute resolution

(514) 866-3514, poste 203
jlemoine@ravinskyryan.com

Francis P.Donovan

Francis P. Donovan

Commercial litigation and dispute resolution

(514) 866-3514, ext.220
fdonovan@ravinskyryan.com

Victor Qian

Victor Qian

Commercial litigation and dispute resolution

(514) 866-3514, poste 205
vqian@ravinskyryan.com

Stefan Sasura

Stefan Sasura

Commercial litigation and dispute resolution

(514) 866-3514, poste 244
ssasura@ravinskyryan.com