Quebec’s civil law system isn’t as dependent on precedent as the rest of Canada, but it does share some other commonalities with the rest of the provinces, including court delays. To avoid dragging matters out, Éric Préfontaine, a litigation partner at Osler, Hoskin & Harcourt LLP in Montreal, says he and his colleagues “do as much as possible to suggest settlements.”
He admits that getting clients to think about settling is hard, especially at the beginning when they are less open to the idea because emotions are running high. However, he points out that the time it takes for a case to go through the courts tends to negate the benefits of a possible win. He explains to them: “It’s a process that is going to take time. It will cost you a fortune to be told by a judge that you were right – and there’s no guarantee of that … and there is nothing in Quebec that you can reasonably expect to be compensated for because in Quebec [awarded] costs are very, very minimal compared to Ontario.”
One advantage Quebec does have is the settlement conference process. Run by current, retired, and supernumerary judges, they work almost like free mediation services, and as long as both parties agree to participate, Préfontaine says they are efficient, function well, and divert cases that don’t need to be heard in open court away from backlogged courts.
Nova Scotia’s court system is a bit better, at least comparatively. While there are backlogs, they aren’t as acute as in provinces like Ontario or Quebec. Ryan Baxter, a professional regulation partner at McInnes Cooper in Halifax, says that may be due, in part, to the province’s smaller size, the resources it has put into the court system, or actions such as the Nova Scotia Supreme Court adopting default positions on the format of the proceedings this year.
However, Nova Scotia’s court took a step back despite its step forward. Although electronic document filing was permitted while COVID-19 was raging, the system has reverted to paper filings, says Baxter. “The bar in Nova Scotia is optimistic and is hopeful that our judiciary will continue to explore and implement different ways of doing business that will be more efficient for the users of the judicial system.”
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