L'ADAPTATION DE LA JUSTICE QUEBECOISE AU JUGEMENT DECLATOIRE

Abstract

The introduction of the declaratory judgment in the Quebec legal system has been the cause of a, great jurisprudential controversy. At a time when no express legislative provision sanctioned, this institution, the Quebec Court of Appeal and the Supreme Court of Canada expressed divergent opinions as to its existence. When revising the Code of Civil Procedure the Quebec legislature for reasons that are difficult to rationalize, adopted a speedy and exclusive procedure for some declaratory requests. This legislative intervention has caused a new judicial controversy. The Court of Appeal basing itself on the equivocal declaration of the drafters ofthe new provisions and intent upon avoiding an abuse of this exceptional procedure, acted with great caution by refusing to grant a declaratory judgment to anyone who was involved in a controversy that could be solved by an executory judgment. On the other hand, the Supreme Court of Canada has refuted the stand taken by the Court of Appeal and supported the acceptance of the declaratory recourse in a way that is more in keeping with the intention of the drafters of the new legislation. It is with reticence that Quebec courts have followed this approach. The mechanism of this exceptional procedure has been and still is the principal source of malaise. Its elimination would be beneficial.