Case management, proportionality and civil proof: the provisional state of the questions

« Gestion d’instance, proportionnalité et preuve civile : état provisoire des questions » / “Case management, proportionality and civil proof: the provisional state of the questions”, Yves-Marie Morissette (2009)

« Gestion d’instance, proportionnalité et preuve civile : état provisoire des questions », Yves-Marie Morissette
Les Cahiers de droit, vol. 50, n° 2, 2009, p. 381-413.
Pour citer cette note, utiliser l’information suivante : URL:

File: 043973ar.pdf


The English translation will be underway soon, bookmark and check back!


TO DO: This is a 34-page “Note” !
Put the tables in, OCR the French and put it in.
Translate to English au fur et à mesure.


A major reform of civil procedure was undertaken in 2002 in the wake of the Ferland report. This report was inspired by the Woolf report in England. The idea of proportionality holds a central place there but it has been codified in the Civil Procedure Rules in a much more energetic way than in Quebec, taking into account the implementation costs of civil justice. Moreover, the impact studies undertaken here are less convincing than those carried out in England. The assessments on both sides present several points of resemblance, however, and should convince the Quebec legislator to push the reform further by a marked distancing of the adversarial culture, which requires tighter control over the progress of the case, a better structuring of preliminary interrogatories and recourse as often as possible to single experts appointed by the parties or by the court. Seen from this angle, the 2002 reform in Quebec admits of an appreciable lag over the reform undertaken by the Woolf report.

/ 383

The subject I am going to deal with concerns access to justice, the reform–or the revision, if one prefers to use a euphemism–of civil procedure and, more precisely, the impact that this reform has been able to have, or risks having in the future, on civil proof.

1.  Three opening remarks to situate the debate

It has seemed to me that before venturing into the study of this subject, which is at once technical and quite controversial among local jurists, it would be appropriate to show my cards.

Also I will start with three series of opening remarks which are intended to be general, which only indirectly concern the subject that I will then broach, but which explain the pennant I am flying.

1.1  Une réforme aussi nécessaire qu’opportune

Firstly, I consider that the reform resulting from the Ferland report of 2001, a reform adopted in 2002 and entered into force on the 1st of January 2003, constituted an important step forward.

Before examining the impacts and questioning myself on what remains of the state of the construction site,

"Sed quis custodiet ipsos custodes?" — Juvénal, Satires, VI, 346.  En français : « Qui nous protègera contre ceux qui nous protègent ? »  In English: " Who will protect us from those who protect us? "

 — Mauro Cappelletti dans Louis Favoreu (dir.), Le pouvoir des juges, Paris, Economica, 1990, p. 115.
Le Spécialiste DOSSIER: Extreme Behavior
Yves-Marie Morissette's Poster Boy for 'Legalizing' Chemical Lobotomies: Valéry Fabrikant

Yves-Marie Morissette's Poster Boy for 'Legalizing' Chemical Lobotomies: Valéry Fabrikant

Judicial Madness Signature Video

Judicial Madness Signature Video & Sharing Buttons

Yves-Marie Morissette The Works The Mind
Judicial Declarations of Madness in Quebec Courts
On the “Rule of Law”
“In public regulation of this sort there is no such thing as absolute and untrammelled ‘discretion’, that is that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator; no legislative Act can, without express language, be taken to contemplate an unlimited arbitrary power exercisable for any purpose, however capricious or irrelevant, regardless of the nature or purpose of the statute. Fraud and cor­ruption in the Commission may not be mentioned in such statutes but they are always implied as exceptions. ‘Discretion’ necessarily implies good faith in discharging public duty; there is always a perspective within which a statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption.”

— Mr. Justice Ivan Cleveland Rand writing in the most memorable passage in Roncarelli v. Duplessis, [1959] S.C.R. 121 at the Supreme Court of Canada, page 140.
Random Quote

The social tyranny of extorting recantation, of ostracism and virtual outlawry as the new means of coercing the man out of line, is the negation of democracy.

— Justice Ivan Cleveland Rand of the Supreme Court of Canada, Canadian Bar Review (CBR)
Random Quote
Fears are mounting that the psychiatrist Anatoly Koryagin is near to death in the notorious jail of Christopol in central Russia. Letters that have reached the West from his wife and a friend indicate that he is so weak that unless he is given expert medical care he could die at any time. Dr. Koryagin has been in prison for the last four years for actively opposing the political abuse of psychiatry. The abuse takes the form of labeling dissidents as mad and forcibly treating them with drugs in mental hospitals.   ― Peter B. Reddaway, "The Case of Dr. Koryagin", October 10, 1985 issue of The New York Times Review of Books
"If we were lawyers, this would be billable time."
A Word on Caricature
“Humor is essential to a successful tactician, for the most potent weapons known to mankind are satire and ridicule.”

— “The Education of an Organizer”, p. 75, Rules for Radicals, A Practical Primer for Realistic Radicals by Saul Alinsky, Random House, New York, 1971.

I am no fan of Saul Alinsky's whose methods are antidemocratic and unparliamentary. But since we are fighting a silent war against the subversive Left, I say, if it works for them, it will work for us. Bring on the ridicule!  And in this case, it is richly deserved by the congeries of judicial forces wearing the Tweedle suits, and by those who are accurately conducting our befuddled usurpers towards the Red Dawn.

— Admin, Judicial Madness, 22 March 2016.
Contact Judicial Madness
Donate with PayPal
Donate Bitcoins
Flag Counter