LES MODES DE PRÉVENTION ET DE RÈGLEMENT DES DIFFÉRENDS ET L’ÉTAT

ESPACE NORMATIF ET RÈGLEMENTS

Abstract

This article analyzes the application of Section 75 of Quebec's new Code of Civil Procedure (Cpc), in force since 2016, which aims to establish a cultural shift by promoting methods of Dispute Prevention and Resolution (DPR). This reform is a response to a crisis of legitimacy and inaccessibility within the traditional justice system, frequently criticized for its slowness and costs. DPR, in contrast to the adversarial system, is characterized by its consensual nature, flexibility, and its role in restoring dialogue between parties.

Section 1 of the Cpc creates an obligation on private parties to consider DPR. Section 75, however, establishes a notwithstanding regime for the State and its agencies, conferring the State discretionary power (if they consider it advisable). This recourse is constrained by three elements: government regulations on the subject, public interest, and the legal standards set out by law.

The analysis reveals a regulatory void: formal regulations governing DPR are scarce, although they do exist for certain public contracts. The "legal standards," however, encompass public order laws as well as specific agreements, such as those entered with Indigenous communities. Entities under limited State control, such as school boards and municipalities, fall outside the ambit of this notwithstanding regime and are subject to the general obligation of Section 1 of the Cpc. The Quebec Ministry of Justice has not yet implemented a general DPR policy for the Governmental Administration, unlike its federal counterpart.