• The Principle of Proportionality and its Impact on Disputes
  • April 28, 2011 | Author: Jean-François Michaud
  • Law Firm: Norton Rose Canada LLP - Montreal Office
  • The conditions of access to justice are a concern of both individuals and large companies. When the Quebec legislator passed a reform of the Code of Civil Procedure in 2002, it enshrined the principle of proportionality in Article 4.2 of the Code. Although our courts had already recognized this principle, few made use of it. By entrenching it in Article 4.2 of the Code, the legislator sent a clear message to parties and judges that proceedings must be proportionate to the ultimate purpose of the action or application and to the complexity of the dispute.

    Codifying this principle should have prompted a change in the way the legal profession handled litigation files. Despite its importance, the principle of proportionality has not had the expected effect. However, there are signs that change is afoot.

    The Supreme Court of Canada has confirmed that the principle of proportionality was not merely a simple principle of interpretation and has entrenched it as "a source of the courts' power to intervene in case management."[1] The Quebec Court of Appeal and the Quebec Superior Court are making increasing use of this principle. For example, they have used it to:

    refuse disproportionate undertakings[2]

    refuse the communication of tens of thousands of invoices to counter-check an allegation in defence[3]

    refuse the examination of a plaintiff's former representative after filing of the defence[4]

    establish security for costs, with the court determining that a joint expert report for the defendants would reduce costs[5]

    ask the trial judge to impose a reasonable limit on the submission of additional evidence[6]

    decide on the appropriateness of a medical examination and the conditions under which such an examination may be carried out[7]

    refuse to sever a counter-claim from a main action[8]

    refuse to sever an action in warranty from a main action[9]

    refuse an application for leave to appeal.[10]

    This trend is not unique to Quebec. It is also evident in Ontario,[11] British Columbia[12] and Alberta,[13] all of which adopted the principle of proportionality in 2010.

    The principle of proportionality is also a response to abuses observed in recent years in applications for electronic document discovery. The costs resulting from this fairly recent development are forcing parties to settle. The principle of proportionality curtails such abuses.

    Litigants, while reticent about this change, will not likely escape it. The current trend does not appear to be a flash in the pan, especially as judges are agreeing to take an increasingly active role in case management.

    [1]  Marcotte v. Longueuil City, 2009 SCC 43.

    [2]  Geysens c. Gonder, 2010 QCCA 2301.

    [3]  Aviva, compagnie d'assurances du Canada c. René Poisson inc., 2010 QCCA 246.

    [4]  Ali Excavation inc. c. Construction De Castel inc., 2011 QCCS 1093.

    [5]  Smith c. Bélanger, 2009 QCCS 4272.

    [6]  Wightman c. Widdrington (Succession de), 2007 QCCA 440.

    [7]  Compagnie d'assurance Standard Life du Canada c. Beaudry, 2009 QCCA 1174.

    [8]  Cosoltec inc. c. Structure Laferté inc., 2010 QCCA 1600.

    [9]  Préfontaine c. Lefebvre, 2011 QCCA 196.

    [10]  Société en commandite Les Bois de Pierrefonds c. Domaine de parc Cloverdale, 2007 QCCA 292.

    [11]  Rules of Civil Procedure (effective January 1, 2010), Rule 1.04 (1.1).

    [12]  Supreme Court Civil Rules (effective July 1, 2010), Rule 1-3.

    [13]  Alberta Rules of Court (effective November 1, 2010), Rule 1.2.