Sunday Breakfast, or How I Learned to Stop Worrying and Love Procedure.

Sunday, December 9, 2018 might have seemed like any other ordinary day, but it wasn’t. It was the day the delay to inscribe the case of Bentivoglio et al. v. Léger was set to expire.

The attorney for the plaintiffs had a problem. He hadn’t communicated with opposing counsel to finalize the joint declaration of readiness for trial. So, on Monday, December 10, he put together what he could and filed the inscription before the end of the day.

He did not notify it to opposing counsel.

Before he realized his error, the adverse party had already inscribed for judgment based on presumed discontinuance under art. 177 C.C.P.

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One of the more anxiety-reducing trends of recent decades has been the laxening of formerly harsh procedural rules. Courts have generally embraced a substantive sense of justice based on fairness, rather than a strict reading of procedural rules and delays. Procedure is the servant and substance the master, as the saying goes.

The plaintiffs Bentivoglio et al. benefited from this 21^st century approach to procedure in Syndic de Léger, 2019 QCCA 1911. The Court of Appeal, faced with the Superior Court’s dismissal of the plaintiffs’ action, decided to let them live to fight another day.

First, it held that the plaintiffs’ delay had not really expired on Sunday, as the first instance judge suggested. The delay was pushed to Monday from the weekend pursuant to art. 83 C.C.P.

Second, it held that the duty to collaborate and complete a common declaration is a responsibility that falls on both parties; it does not fall uniquely on the plaintiff.

Third, it held that the delay to inscribe at art. 173 C.C.P. referred to production, not notification. Lack of notification meant that the inscription could be irregular, but not that it was null.

Finally, the Court refused to strike the inscription for being irregular. Given that the inscription was ultimately notified, the Court held that there was no prejudice to the parties and no institutional prejudice to just moving the case along.

So overall, a clean victory for fairness over the rigidness of procedure. Right?

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Framed this way, there isn’t much room for argument. Who is going to say unfairness should win out because procedural rules were not followed? The problem is, deferring to substantive fairness usually means letting everything sort itself out at trial. And there’s a lengthy, costly wait for litigants to get there.

So what often happens is that you’ll have rules that look procedural in nature, but really aren’t. Premised on procedural lapses, they provide moments of substantive scrutiny on that long road to trial. These rules are the muffins of the legal world. People may tell you they’re part of breakfast, but we all know they’re just misshapen cake for pre-noon dessert.

The muffin rules use procedural excuses to expedite inquiries into substantive fairness. And the pinnacle of these rules – the double-chocolate chip muffin – is the rule about missing your delay to inscribe.

The procedural rule that you need to respect your deadline to inscribe, in practice, often becomes a proxy for an examination into what’s really happening in a file. When the deadline is missed, the standard referred to in the Code is whether it was “impossible” for the plaintiff to act in time; but the Court of Appeal (Heaslip v. McDonald, 2017 QCCA 1273) has also instructed that there is a discretionary element involved, which takes into account (among other things) the seriousness of the plaintiff’s case and its behaviour during the proceedings. Missing the delay to inscribe therefore invites a substantive check-in from the Court.

The first instance judgment in Syndic de Léger, referred to as Bentivoglio v. Léger, 2019 QCCS 1284, shows signs that the Court was trying to do just this.

The judgment begins with the observation that the plaintiffs are suing the defendants for some $3.3 million. The Court then notes that the plaintiffs’ attorney never contacted the defendants’ attorney to work on the joint declaration (at least according to the latter), and that no proof was entered into evidence to demonstrate the plaintiffs’ diligence.

The Court then observes that this was the fourth time the plaintiffs had asked to be relieved of their default to inscribe the file in time. The Court concludes that the file thus reveals “une absence d’implication des demandeurs quant au suivi de leurs procédures, surtout quand pour la quatrième fois, une telle demande est soumise au Tribunal”.

It may be misguided, therefore, to view the Court of Appeal decision overturning the Superior Court decision as a triumph of substance over procedure. The Superior Court may well have been using a procedural rule to reach a substantive outcome that it considered fair—even if it never purported to exercise its discretion pursuant to Heaslip.

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Getting substantive justice at the pre-trial stage is tricky. Instead of being able to focus extensively and uniquely on the fairness of the result, the Court must deal simultaneously with a concern for efficiency. At what point do the scales of the cost-benefit ratio tilt such that it is no longer worth giving the plaintiff its day in court?

There is no right answer in the abstract. What is clear, however, is that the question is usually at the forefront of the minds of the judges of both the Superior Court and the Court of Appeal. Their answers may differ, but the philosophy is the same. We’re not dealing with pure procedure here. It’s Sunday, there’s a deadline to inscribe to deal with, and we’re all eating cake for breakfast.