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September 2009




 Who pays for a trial?

There is a general belief that the party that succeeds before a civil court of justice is entitled to full reimbursement of its lawyer’s fees. This will depend on various elements. The issue was recently put in focus by the decision of Claude Auclair, Superior Court Justice, in the matter of Claude Robinson -vs- Les Films Cinar Inc., 500-05-021498-967.

In Quebec, the general principle is that each party supports its own lawyer’s fees and disbursements. Only a small portion of fees as set in the "Tarif des honoraires judiciaires des avocats" can be obtained from the losing party, and only if awarded by the judge; these are called the judicial fees. However, judicial fees represent only a small part of the extra-judicial fees engaged by a party to prepare and argue a case.The general rule is that extra-judicial fees are supported by each party. This principle is subject to one exception: when the parameters defined in the matter of Viel (Viel -vs- Entreprises Immobilières du Terroir Ltée, 2002, RJQ 1262 CA) are met. In that case, the Court of Appeal stated that the reimbursement of extra-judicial fees should only be ordered when the losing party acted in bad faith in the pursuance of proceedings or abused of its right to act in justice. In such a case, no consideration is given to the bad faith or abusive behavior of a party before the institution of the action or on the merits. What is aimed at is the abusive behavior once the proceedings have commenced.

Since this decision in 2002, the number of matters where reimbursement of extra-judicial fees has been awarded is minimal.

In the recent Robinson case, Justice Auclair awarded $1,500,000.00 plus applicable taxes to cover extra-judicial fees. What was the ground for such an award? This very case was based on the Copyright Act, a federal act, even though the case was presented before the Superior court of Quebec (of provincial jurisdiction). The Copyright Act provides at article 34(3) that the judge has discretion to award costs.

Justice Auclair, in order to determine the appropriate amount of extra-judicial fees, made an important analysis of the behavior of the defendants. Stressing the cheating, lies and contradictory versions of the defendants, the judge acknowledged that the lawyers for plaintiff had an extra burden of work to bring this matter to trial and judgment. He says:

"Not to allow the claim of plaintiff for solicitor/client fees would acknowledge the fact that cheaters and liars may continue their immoral conduct and illegal maneuvers in all impunity, as no single individual could afford, alone, such an expense and disbursements.

The Copyright Act aims at protecting the authors but only if they can reach the level of final judgment. Here, the balance of economic force is unequal: on one side, the giants Cinar and France Animation supported by their insurers; on the other side, the plaintiff without substantial financial resources." (Translation is ours)

As of today, the principles of the Viel case still apply. It is always possible that the situation may change in the future with the evolution of jurisprudence but for the time being, the principles of the Viel case apply.

Noteworthy of mention is the recent enactment of dispositions of the Quebec Code of Civil Procedure concerning the abuse of proceedings. Those provisions allow the court to declare that a demand or procedural act is abusive. A consequence of such a declaration may be the imposition of a provision for costs. The Court can even, in certain cases, order the payment of extra-judicial fees and disbursements and punitive damages (articles 54.1 and following C.c.p.). This meets the findings of the Viel case.

September 2009