Quebec access to justice bill opens door for notaries to sit on provincial court bench

By Luis Millán

Law360 Canada (February 15, 2023, 12:55 PM EST) -- An access to justice bill that will make free mediation mandatory and arbitration automatic for cases under $5,000 took the Quebec legal community by surprise as it also unexpectedly opens the door for notaries to be appointed to the bench of provincial courts.

Bill 8, tabled by the Quebec government in February, aims to curb long delays afflicting small claims courts, implements a simplified and accelerated civil procedure for matters brought before the Court of Quebec with a value of between $15,000 and $75,000, and will compel the provincial Judicial Council to publish an annual report and be audited every five years by the auditor general, all of which are developments viewed positively by the Quebec bar.   

“We are pleased that several provisions of Bill 8 echo requests made by the Barreau to the justice minister on measures that could help facilitate access to justice,” said Catherine Claveau, the bâtonnière of the Barreau du Québec. “The provisions relating to mandatory mediation and arbitration are an excellent avenue to improve access to justice and a concrete way to promote alternative methods of dispute resolution.”

Catherine Claveau, Barreau du Québec

Catherine Claveau, Barreau du Québec

The Quebec bar is also pleased with a provision in Bill 8 that amends the provincial Code of Civil Procedure to grant the Court of Quebec exclusive jurisdiction to hear applications in which the amount claimed or the value of the dispute is less than $75,000. Bill 8, in part a response to a 2021 Supreme Court ruling in Reference re Code of Civil Procedure (Que.), art. 35, 2021 SCC 27 that held it was unconstitutional to raise the monetary value of cases that can be heard by the Court of Quebec, also gives the provincial court concurrent jurisdiction with the superior court where that amount or the value is equal to or exceeds $75,000 but less than $100,000. “This provision that changes the monetary threshold of the Court of Quebec (will lead) litigants to opt to go to the Court of Quebec because they will have the assurance that their case will proceed more quickly,” said Claveau.

The bill, introduced at a time when Quebec’s justice system is in crisis, sagging under the weight of underfinancing and dogged by an acute shortage of court personnel, is expected to curtail delays in small claims court. It now takes an average of 22 months in Quebec to get a small claims hearing, and in some jurisdictions the figure reaches nearly three years, compared to 223 days in 2018. “It takes far too long,” admitted Quebec Justice Minister Simon Jolin-Barrette in the National Assembly recently. “It is not an efficient way of working. We need to make the justice system more human, more accessible.”

Bill 8 proposes to follow in the footsteps of a successful pilot project and make free mediation mandatory under the auspices of a certified mediator for cases under $5,000. If mediation proves fruitless, the matter automatically is referred to arbitration, at no additional cost. Under the pilot project, which took place between May 2021 and November 2022, litigants were entitled to up to three hours with a mediator at the Small Claims Division and 60 per cent of cases were settled, affirmed Jolin-Barrette.

But at present there are too few accredited mediators and arbitrators coming from the Quebec bar or the Chambre des notaires to meet the demand and achieve the objective set out by the bill, warns Claveau, adding that the Barreau will “encourage lawyers to do this” and intends to update their mediation and arbitration courses “to really meet these needs.”

As of March 31, 2022, 1,114 lawyers out of a total of 29,424 members were accredited in civil, commercial and labour mediation, including 67 new accreditations, according to the 2021-2022 Quebec bar’s annual report. Further, there are only 631 bar members accredited in small claims mediation. The figures are just as inauspicious for notaries. Out of 3,864 Quebec notaries, 583 are certified mediators, 293 of which are accredited in small claims mediation, according to the 2021-2022 annual report of the Chambre des notaires. The key reason behind the disinterest of lawyers and notaries is the paltry remuneration offered by the Quebec government, assert legal observers. Mediators who work in small claims are paid an hourly rate of $114, a figure that barely covers fixed costs, they added.

Kevin Houle, Professional Association of Quebec Notaries

Kevin Houle, Professional Association of Quebec Notaries

“The rates provided by the governments is too little,” said Kevin Houle, president of the Professional Association of Quebec Notaries (APNQ). “It doesn’t even cover the cost of ‘coffee’. It’s a social cause. There are many notaries who say I’m not interested in the mediation the government pays for, because it does not pay. They have other cases and the demand is there. So that’s a factor that doesn’t help.”

But what has really caught the attention of the Quebec legal community is the provision that will modify the Quebec Courts of Justice Act to allow notaries with more than 10 years of experience to be appointed as a Court of Quebec judge. The Quebec bar is perplexed that such a proposal was included in a bill aimed at improving access to justice, said Claveau, who met with Jolin-Barrette two weeks before Bill 8 was tabled to discuss issues such as pre-budgetary demands and ways to improve access to justice.

Claveau said she was all the more surprised because the Barreau du Québec and the Chambre des notaires share “quite close relations,” and collaborate on a host of files. “We never, never saw this coming,” said Claveau. “The problem is not in the number of candidates who apply to be judges. The problem is that there are not enough who are appointed in certain regions. So we cannot see the direct correlation between better access to justice and allowing notaries to become judges.” The Quebec bar believes that it would be more appropriate to split the bill and postpone this provision, pointing out that while lawyers and notaries have the same university education, their backgrounds and the acts they can perform “differ greatly afterwards.”

Being granted access to the judiciary is a surprising but positive development that will bring about a “different legal DNA within the judiciary” as notaries have a “different way of seeing and practising law, because of our status and our functions,” said Houle. The APNQ, while aware that this was an issue that has percolated for years, did not lobby the provincial government, said Houle.

Law professor Jeffrey Talpis also views this as a positive move. The former head of the graduate program of notarial studies and the Notarial Chair at the Université de Montréal, Talpis dismisses arguments that notaries should not be appointed to the bench because they are not familiar with court proceedings. Besides pointing out that lawyers and notaries share the same legal education and training, Talpis notes that in many cases notaries already act as deciders as many notaries are arbitrators or appointed to administrative tribunals as adjudicators. Further, a number of lawyers or law professors have been appointed to the bench who never had experience with court proceedings, added Talpis.

“The objection that notaries have no practical knowledge of what’s going on in courts. I don’t think it’s a very serious objection,” and one that could easily be remedied by providing a brief but intense training, said Talpis. “A lot of the lawyers do not have practical court experience, and they get by because they’re bright. And notaries who don’t have it can learn it, can get it.”

Notaries already have the necessary and comprehensive skillset to be appointed to the bench, said Talpis. “From a broad perspective, notaries are public officers, they’re legal advisers, and they do a lot of preventing of disputes,” explained Talpis. “Increasingly judges also  encourage parties to resolve disputes as well.”

Bill 8, if it passes, will also compel the Conseil de la Magistrature (Quebec Judicial Council) to publish an annual report on the training and professional development activities for judges, judicial ethics and the processing of complaints. It will also be expected to provide its books and accounts to be audited at least once every five years by the auditor general.

“We too have always want transparency from reports and statistics by the Conseil de la magistrature,” said Claveau. “Before, it was published on the Internet, but it’s been less public for two or three years now. So more transparency in the data in the reports, to have access to the figures and the statistics. These are things we are asking for. So if there are provisions that go in that direction, so much the better.”

But André Albert Morin, a Liberal member of the National Assembly of Quebec, said during a hearing on Bill 8 held last week, said that while one cannot be against accountability, the bill should ensure the independence of the judiciary should be preserved. “In this bill, when we ask for the auditor general to audit certain aspects, we’ll have to be very careful that this does not encroach on the independence of the judiciary and the role of the Conseil de la magistrature,” said Albert Morin.

The Quebec Judicial Council declined to comment but said it will be publishing in the near future briefs over the development. The Chambre des notaires did not return requests for comment.

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