5. Commencement of an Action and Service

In Quebec, an action is instituted by way of an Originating Motion. The Motion is served, on at least 30 days’ notice of the returnable date, before the Practice Division of either the Superior Court or the Court of Quebec. The defendant answers the Motion by filing an Appearance. The parties are then called upon to agree to a timetable in respect of all aspects of the prosecution of the case, which includes all procedural matters dealing with the presentation of preliminary motions, the scheduling of examinations out of court, the filing of expert reports, as well as the filing of all pleadings to bring the case to trial. Should the parties fail to agree upon a timetable, the judge will impose a timetable on the parties, dictating the time periods within which the various procedural steps will have to be completed by the parties to bring the action for hearing on the merits.

In all instances, the action must be inscribed on the merits within 180 days of the service of the Motion, failing which, the plaintiff is deemed to have discontinued the action. To inscribe the action, all procedural tasks must be completed and the plaintiff must file with the court an “Inscription for Proof and Hearing” and a Declaration with a list of the witnesses that the plaintiff intends to present at trial, the expected length of the hearing, a list of exhibits and an indication as to whether the transcripts of deposition out of court are filed for the purpose of trial.

At the time of setting down the date(s) for trial, the judge will conduct a pre-trial conference to determine whether a settlement is possible and/or whether admissions can be made and to determine how much time is required for trial. In a standard court action in Quebec, the parties will be heard approximately 12 to 15 months from the time that the Originating Motion was filed, and a judge in Quebec has a maximum of six months in most civil matters to render the judgment from the time that the trial ended. An unsuccessful party who wishes to appeal the judgment has 30 days to appeal the trial judge’s decision. There is no procedure for summary judgment in Quebec.

All Originating Documents (for example, the Originating Motion) are to be served personally or by an alternative to personal service. Personal service is normally effected by a process server and can take from one to several days to perform. All other court documents need not be served personally and can be served by mail or, in cases where a party has permitted its lawyer to accept service also by facsimile or by courier. Proof of service is proven by an Affidavit of Service sworn by the person serving the documents and is accepted in court proceedings as proof of service.

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