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Out with the old, in with the new age: Tech matters more than ever in Quebec’s new Civil Code of Procedure

29 octobre 2014
Ce billet de blogue sera publié comme article pour l’édition décembre de l’Extrajudiciare.

It has long been recognised that the rapid innovations in technology in the last few decades could assist to decongest the court system. The drafters of the new Civil Code of Procedure (the “Code”) appear to have had this optimism in mind when they drafted provisions that encourage the use of technology to facilitate the administration of justice. The new Code takes a more inclusive approach to the use of new technologies, permitting the use of any technological means that is available to both parties that is “within the technological environment in place to support the administration of the courts”. Article 26 vests the court, even on its own initiative, to resort to or order the use of technological means in proceedings.

The Code’s enshrinement of a pro-technology principle extends to case management, thus giving confidence to the use and reliance on new technologies for document management and the e-discovery process.This endorsement of technology in case management resembles the approach taken in Ontario’s Rules of Civil Procedure which came into effect in 2010. However, unlike Ontario, the Quebec Code makes no explicit mention of the Sedona Canada Principles Addressing Electronic Discovery. These principles derive from the recognition that discovery of electronically stored information requires universal understanding by the Canadian bar and a common approach rooted in proportionality and reasonableness, with respect for variations in local rules and practices.

With openness towards new technologies, the court system can benefit from new technological innovations that are not currently mainstream but may increase in popular use. One example is Blockchain technology, the open source software and public ledger which broadcasts every single bitcoin or crypto-currency transaction. While crypto-currency remains at the margins of the economy, the underlying technology that is built on mathematics and cryptography has been vetted by experts, and it can be an extremely useful for evidence. Specifically, it is a promising tool that can prove the movement and possession of assets. Top banking executive Oliver Bussmann of Swiss bank UBS believes that the blockchain has the greatest potential to disrupt the blockchain. The Bank of England has also reported that this technology is a “significant innovation” that could have “far-reaching implications.” Smart contracts represent another technology in the very early development stages, that, once operational, will likely make waves in the courtroom and legal profession as a whole. Self-executing digital contracts can perform a range of services, including escrow services. Perhaps in the not too distant future, security for costs can be provided online via smart contract, whereby the funds can only be released with a digital signature of a judge or attorney.

Other relevant provisions in the new Code that expand the use of technology include:

Conferences and examinations by video-conference. Provided that the technological means allow the witness to be identified, heard and seen live, examinations at a distance are permissible when necessary (Article 279). The audio must be live and the identity of the witness must be verifiable live.

Documents, including pleadings, can be received in technological media. This new provision includes pleadings, if the court is able to receive the technological media and if the document is in the prescribed format (art. 99 par. 2; art. 107 par. 4). Depending on the corresponding court rules, this may include USB keys, external hard drives, emailing PDF documents, and possibly taking advantage of remote servers accessible via the cloud.

Service (henceforth, “notification”) by technological means. The new Code provides more options for modes of notification – it may be made by any appropriate method that provides the notifier with proof that the document was delivered, sent or published (art. 110). Notification of proceedings can be made via email without court authorisation if an email address is provided by the recipient party, or if their address is publicly known. The email address must be active at the time of sending and a party not represented by an attorney must consent to receive documents in this manner. Notification by technological means is proved by the “transmission slip”, or a sworn statement of the sender (art. 133, 134). One wonders whether the new option to serve attorneys by email might render the Barreau du Québec’s requirement for attorneys to be accessible by fax unnecessary. Under the old Code service of a written proceeding, an exhibit, or other document on an attorney could be made by fax (art. 140.1). Of course, this possibility remains. Other methods of service were also permissible under the old Code with authorisation of a judge or clerk (art. 138).

In some respects the new Code deserves accolades for responding to the role technology plays in our society, but in other ways, it falls short. The new Code articles on contesting evidence continue to belie confusion with the components of a technological document – namely the content, the support and the technology or system used. Though beyond the scope of this short piece, serious consideration is needed for the provisions regarding the new modalities of contestation of documents, specifically technological documents. The new Code appears to fail to provide much needed clarification as to the means of contesting the authenticity or integrity of a technological document and whether such rules of contestation are intended to contest the technology, support used, or the information contained in a document. For example, article 262 of the new Code provides that a party may contest the origin or integrity of the information contained in a document and the integrity of the document itself by sworn statement. It appears as though this procedure may also be used to contest the admission of a document where it is contended that the medium of a document or the processes, systems or technology used to communicate the document affect its integrity.

As new technologies become broadly adopted at an ever-rapid pace, and as the law by definition seeks to legislate human behaviour, the accompanying rules of procedure must be flexible enough to adapt accordingly. The latest overhaul of the Quebec Civil Code of Procedure is one such attempt.

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