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Here is the second installment of brief summaries relating to the new rules of civil procedure in Quebec as of January 1, 2016. Today’s feature is costs.

The cost regime in Quebec has always been favorable to the plaintiffs. The main difference with Common law jurisdictions is that in Quebec, legal fees are not included in the costs. There is jurisprudence that allows for a party to request the reimbursement of legal fees incurred but the proof of bad faith is required and it is very rarely granted. Therefore, costs in Quebec are comprised of disbursements, experts’ fees and a flat fee based on a Tariff (very minimal amounts for the latter). The absence of opposing counsel’s legal fees as part of the costs award is a notable difference of the Quebec procedure comparatively with other provinces.

The new rules of procedures bring along a new Tariff of fees that will have some impact on class actions. First, the rule that opposing counsel’s fees cannot be claimed is maintained (unless bad faith is proven). Second, the Quebec legislature has revoked the flat fee based on the old Tariff (which was minimal anyway). The new rules of civil procedure provide that disbursements and experts’ fees can still be claimed as they were previously to the reform.

The changes that will impact class actions are the following:

  • The fee to file a motion for authorization (i.e. certification) is now $1700 compared to $123 under the old Tariff;
  • There is now a fee per day for any hearing scheduled for more than 2 days: After the second day there is a fee of $255 per day (this will impact mostly trials since motions for certification in Quebec usually do not last more than two days. An exception to this are securities class actions where there is an authorization under the Civil rules and under the Securities Act).

Both these changes conflict with the spirit of the New Code of Civil Procedure which is based on access to justice. Imposing such a levy on the filing of a class action and charging court hearing fees will not allow more people to exercise their rights. The issue of graduated court hearing fees was dealt with by the SCC in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59. It will be interesting to see how the new Tariff is interpreted in relation to that decision.

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