With article 342 of the Code of civil procedure [CCP], a Court can now remedy “substantial breaches” in the conduct of a proceeding by ordering the faulty party to pay to its opponent a fair and reasonable amount as compensation for its lawyer’s fees.
In the recent decision Hotel Ruby Foo’s inc. c. 9149-0417 Québec inc. (2017 QCCQ 658, <https://canlii.ca/t/gxk7q>), the Court went so far as to order the defendant to refund all the lawyers’ fees incurred by the plaintiff after the defendant had dragged the proceedings without having any true defence to raise.
A lessor was suing its tenant for two months of unpaid rent under a commercial lease. The tenant was alleging that a flood justified withholding the payment. The day before the trial, the defendant admitted, through its lawyer, that it had no defence to raise; accordingly, it did not show up at the hearing.
This belated admission was the latest in a series of dilatory tactics that the Court strongly condemned:
| […] these schemes and this conduct are detrimental to the proper administration of justice and are contrary to the basic principles of the Code of civil procedure that focus on the prompt, fair, simple, balanced and economic application of procedural rules and the exercise of the parties’ rights in a spirit of cooperation. [Our translation] |
As the judge summed up, these schemes and conduct of the defendant and its counsel included:
- Notifying plaintiff’s counsel with a response that was not filed in the court’s record and for which filing fees had not been paid;
- Failure to cooperate to prepare the case management protocol;
- Failure to attend the case management conference without a valid reason, despite having been properly summoned;
- A belated and dubious application “to prolong delays [sic] to produce defense [sic]” while, surprisingly, failing to request to be excused for the failure to respond and to take part in the case management conference;
- The belated filing of a response, after having been declared in default, and without having asked the Court to be relieved from the default;
- Alleging facts in support of a defence without any material evidence and in support of which defendant’s counsel, on the eve of the trial, admitted he had nothing to offer;
- Admitting, again on the eve of the trial, that it had no defence to raise;
- Failure to show up for the trial despite having been properly summoned.
One important fact to note: the lease provided that the tenant was liable for “reasonable” legal fees incurred by the lessor to assert its rights. That provision, in addition to article 342 CCP, was used by the judge to condemn the defendant to pay all the legal costs and lawyers’ fees paid by the plaintiff.
To conclude, this provision of the Code of civil procedure is an effective tool that the parties to a lawsuit should not hesitate to use to deter obsolete strategies attempting to bog down legal proceedings.
The author was representing the plaintiff in this case.