Opinion: A step forward for access to justice in Quebec

Bill 8 will undoubtedly facilitate the task of self-represented litigants for cases where what is at stake has a monetary value of less than $75,000.

“I want to get my money back, but it’s just not worth the legal fees.” Such a statement is all too common. Many are those who forgo their rights rather than take a case to trial for upwards of $20,000 in legal fees. All the more so when legal fees are not awarded to the winner in Quebec.

But this kind of statement may well become a thing of the past, if Bill 8 gets adopted in its present form.

Introduced last week at the National Assembly by Justice Minister Justice Simon Jolin-Barrette, “An Act to improve justice efficiency and accessibility, in particular by promoting mediation and arbitration and by simplifying civil procedure in the Court of Québec” has so far received little attention even though it promises to upend the Quebec legal world.

While the bill contains many reforms, perhaps most interesting is the streamlining of procedural steps for cases worth less than $75,000. Whereas the civil court system in Quebec is about as non-navigable as it gets for self-represented litigants, this reform promises to change this and perhaps change the practice of law in the process.

How so?

Put simply, a self-represented litigant must currently navigate a system designed to put the burden of litigation on the parties. Contrary to popular belief, one does not just get heard by a judge if one has a problem. Unfortunately, your favourite courtroom TV show may not be such an accurate portrayal of reality …

One only has the right to be heard by a trial judge once one has met all of the court’s procedural requirements. Too often, lawyers are hired not so much to help elucidate a complicated legal question as to navigate rules of procedure. Someone unable to pay legal fees will often give up before ever being heard by a judge.

With the adoption of Bill 8, cases where what is at stake is worth $75,000 or less (and above the threshold of Small Claims, which stands at $15,000) will benefit from a streamlined procedure. Henceforth, each step between filing an application and being heard by a trial judge will be predetermined. Most significant, between four to five months after the filing and serving of the application, all parties will meet with a judge, who will attempt to help them settle the case. If that effort fails, the court will set the case down for trial.

Should the National Assembly adopt Bill 8 and the government implement it using clear and accessible language, it is likely that many people will be able to get by in court without being represented by a lawyer. Henceforth, one may very well consider hiring the services of a lawyer in a contested file simply to assist in building a case and in offering strategic recommendations, rather than to appear in court and see the case through to its conclusion. One should expect to see an increase in à la carte legal services offered to middle-class litigants unable and unwilling to pay tens of thousands in legal fees.

All in all, Bill 8 will undoubtedly facilitate the task of self-represented litigants for cases where what is at stake has a monetary value of less than $75,000, making it more likely they will eventually be heard by a judge. Although one might well argue that life is better spent outside of the courts, the ability to be heard in court is fundamental to the rule of law and must be championed.

One can only hope that such an approach will be applied to other (more key) areas of the law, specifically family, persons and estates law, where countless self-represented litigants are frustrated by and give up on the court system altogether, to the detriment of the health and well-being of many children, vulnerable adults and families.

In a time of general moroseness, Bill 8 is something to celebrate and to build upon.

David Searle is a Montreal lawyer and course lecturer at UQÀM.

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