Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m M a y 2 0 1 4 9 unfounded," says Boutin, "but the flip side is, if you give lawyers a new tool, they will not hesitate to use it, and it could generate a large amount of motions aimed at poking holes in the opponents' claims," thus creat- ing new costs. The other element of the reform Boutin questions is the repeal of the tariff of judi- cial fees of advocates. This tariff imposes on the losing party a fee of one per cent of the value in dispute when it is above $100,000. When that is gone, "it means that the parties will each assume their own costs," says Boutin. The government says this will favour individuals' access to justice by removing the threat of an increased financial risk. But on the other hand, it forces the plaintiff to think twice before launching a suit, or at least to tread carefully when establishing the amount of the claim, he explains. Not imposing costs on the losing party (except if that party commits an abuse of procedure) sets Quebec apart from the rest of the country, Boutin notes. "Other prov- inces have stringent regimes that often result in substantial costs against the losing party." Like his colleague, Geoffroy Guilbault, who does medical malpractice and hos- pital liability proceedings at Montreal's Spiegel Sohmer, generally welcomes the new code and its less adversarial approach to litigation. "Basically, the legislature is telling the parties: don't show up in court before you have really tried, in good faith, to resolve your dispute by yourselves," he says. "The first eight articles of the new code set the tone. It clearly favours alter- native methods of dispute resolution like conciliation, mediation, or arbitration." But Guilbault has concerns about the reform of expert evidence, especially the matter of using a single expert for both parties. Although he sees the obvious advantage of reduced costs resulting from the elimination of multiple experts con- tradicting each other, he underlines that in complicated medical malpractice cases, for example, a party needs to spend on an expert to build the case prior to the filing of the action. Moreover, in some par- ticularly sensitive and complicated cases, the report of this expert will have to be reviewed and validated by a second expert. To introduce an extra expert, common to both parties, would increase the already substantial cost of expertise. On the other hand, in more straightforward instances of actuarial or psychosocial evaluations, the use of a single expert could be an excellent measure, he explains. Quebec's legislature borrowed this concept from the United Kingdom, which introduced it at the end of the '90s amid vigorous debates, Guilbault adds. It has apparently rallied most of the doubt- ers over there, he admits, but he thinks flexibility is crucial in this matter. — PAsCAL ELIE pascalelie636@gmail.com Our delegated task team: Aaron Z. Makovka, Jean-Maxim Lebrun, Joël Brassard, Marie-Claude Jarry, Pascal Rochefort, Brian Howard, Christian Paré, Nina V. Fernandez, Mathieu Renaud and Marc-Alexandre Girard. QUEBEC LEGAL PARTNER Untitled-6 1 14-02-06 1:51 PM

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