Civil Code of Québec, C.c.Q.
| Citation: | Civil Code of Québec, C.c.Q. | |
| Information about this text: | Consolidation: updated to September 1, 2003 | |
| Enabled Regulations: | 13 Regulations | |
| URL: | http://www.canlii.org/qc/laws/sta/ccq/20030911/part7.html | |
| Version downloaded by CanLII on 2003-09-11 | ||
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CIVIL CODE OF QUÉBEC
S.Q., 1991, c. 64.
updated to September 1, 2003
last amendment: February 12, 2003
BOOK SEVEN
EVIDENCE
TITLE ONE
GENERAL RULES OF EVIDENCE
CHAPTER I
GENERAL PROVISIONS
2803.
A person wishing to assert a right shall prove the facts on which his claim is based.A person who alleges the nullity, modification or extinction of a right shall prove the facts on which he bases his allegation.
1991, c. 64, s. 2803.
2804.
Evidence is sufficient if it renders the existence of a fact more probable than its non-existence, unless the law requires more convincing proof.1991, c. 64, s. 2804.
2805.
Good faith is always presumed, unless the law expressly requires that it be proved.1991, c. 64, s. 2805.
CHAPTER II
JUDICIAL NOTICE
2806.
No proof is required of a matter of which judicial notice shall be taken.1991, c. 64, s. 2806.
2807.
Judicial notice shall be taken of the law in force in Québec.However, statutory instruments in force in Québec but not published in the Gazette officielle du Québec or in any other manner prescribed by law, international treaties and agreements applicable to Québec but not contained in a text of law, and customary international law, shall be pleaded.
1991, c. 64, s. 2807.
2808.
Judicial notice shall be taken of any fact that is so generally known that it cannot reasonably be questioned.1991, c. 64, s. 2808.
2809.
Judicial notice may be taken of the law of other provinces or territories of Canada and of that of a foreign state, provided it has been pleaded. The court may also require that proof be made of such law; this may be done, among other means, by expert testimony or by the production of a certificate drawn up by a jurisconsult.Where such law has not been pleaded or its content has not been established, the court applies the law in force in Québec.
1991, c. 64, s. 2809; 2002, c. 19, s. 15.
2810.
The court may, in any matter, take judicial notice of the facts in dispute in the presence of the parties or where the parties have been duly called. It may make any verifications it considers necessary and go to the scene, if need be.1991, c. 64, s. 2810.
TITLE TWO
PROOF
2811.
Proof of a fact or juridical act may be made by a writing, by testimony, by presumption, by admission or by the production of material things, according to the rules set forth in this Book and in the manner provided in the Code of Civil Procedure or in any other Act.1991, c. 64, s. 2811.
CHAPTER I
WRITINGS
SECTION I
COPIES OF STATUTES
2812.
Copies of statutes which have been or are in force in Canada, attested by a competent public officer or published by an authorized publisher, make proof of the existence and content of such statutes, and neither the signature or seal appended to such a copy nor the quality of the officer or publisher need be proved.1991, c. 64, s. 2812.
SECTION II
AUTHENTIC ACTS
2813.
An authentic act is one that has been received or attested by a competent public officer according to the laws of Québec or of Canada, with the formalities required by law.Every act whose material appearance satisfies such requirements is presumed to be authentic.
1991, c. 64, s. 2813.
2814.
The following documents in particular are authentic if they conform to the requirements of law:(1) official documents of the Parliament of Canada or the Parliament of Québec;
(2) official documents issued by the government of Canada or of Québec, such as letters patent, orders and proclamations;
(3) records of the courts of justice having jurisdiction in Québec;
(4) records of and official documents issued by municipalities and other legal persons established in the public interest by an Act of Québec;
(5) public records required by law to be kept by public officers;
(6) notarial acts;
(7) minutes of determination of boundaries.
1991, c. 64, s. 2814.
2815.
A copy of the original of an authentic act or, where the original is lost, a copy of an authentic copy of the act is authentic if it is attested by the public officer having custody of it.1991, c. 64, s. 2815.
2816.
Where the original of a document entered in a register kept as required by law, and retained by the officer in charge of the register, is lost or in the possession of the adverse party or of a third person without collusion on the part of the person invoking it, the copy of the document is also authentic if it is attested by the public officer having custody of it or, if it has been deposited or filed in the Archives nationales, by the Keeper of the Archives nationales du Québec.1991, c. 64, s. 2816.
2817.
An extract which textually reproduces part of an authentic act is itself authentic if it is certified by the person having lawful custody of the act, provided the extract bears its date of issue and indicates the date, nature and place of execution of the original act and, where such is the case, the names of the parties and of the public officer who drew it up.1991, c. 64, s. 2817.
2818.
The recital, in an authentic act, of the facts which the public officer had the task of observing or recording makes proof against all persons.1991, c. 64, s. 2818.
2819.
To be authentic, a notarial act shall be signed by all the parties; it then makes proof against all persons of the juridical act which it sets forth and of those declarations of the parties which directly relate to the act.Where the parties are unable to sign, their declaration or consent shall be given before a witness who signs. Minors, persons of full age who are unable to give consent and persons who have an interest in the act may not be witnesses.
1991, c. 64, s. 2819.
2820.
An authentic copy of a document makes proof against all persons of its conformity to the original and replaces it.An authentic extract makes proof of its conformity to the part of the document which it reproduces.
1991, c. 64, s. 2820.
2821.
Improbation is necessary only to contradict the recital in the authentic act of the facts which the public officer had the task of observing.Improbation is not required to contest the quality of the public officer or witnesses or the signature of the public officer.
1991, c. 64, s. 2821.
SECTION III
SEMI-AUTHENTIC ACTS
2822.
An act purporting to be issued by a competent foreign public officer makes proof of its content against all persons and neither the quality nor the signature of the officer need be proved.Similarly, a copy of a document in the custody of the foreign public officer makes proof of its conformity to the original against all persons, and replaces the original if it purports to be issued by the officer.
1991, c. 64, s. 2822.
2823.
A power of attorney under a private writing made outside Québec also makes proof against all persons where it is certified by a competent public officer who has verified the identity and signature of the mandator.1991, c. 64, s. 2823.
2824.
Acts, copies and powers of attorney mentioned in this section may be deposited with a notary, who may then issue copies of them.Such a copy makes proof of its conformity to the deposited document and replaces it.
1991, c. 64, s. 2824.
2825.
Where an act or copy issued by a foreign public officer or a power of attorney certified by a foreign public officer has been contested, the person invoking it has the burden of proving that it is authentic.1991, c. 64, s. 2825.
SECTION IV
PRIVATE WRITINGS
2826.
A private writing is a writing setting forth a juridical act and bearing the signature of the parties; it is not subject to any other formality.1991, c. 64, s. 2826.
2827.
A signature is the affixing by a person, to a writing, of his name or the distinctive mark which he regularly uses to signify his intention.1991, c. 64, s. 2827; 2001, c. 32, s. 77.
2828.
A person who invokes a private writing has the burden of proving it.Where a writing is set up against the person purporting to have signed it or his heirs, it is presumed to be admitted unless it is contested in the manner provided in the Code of Civil Procedure.
1991, c. 64, s. 2828.
2829.
A private writing makes proof, in respect of the persons against whom it is proved, of the juridical act which it sets forth and of the statements of the parties directly relating to the act.1991, c. 64, s. 2829.
2830.
A private writing does not make proof of its date against third persons but that date may be established against them in any manner.However, writings relating to acts carried out in the ordinary course of business of an enterprise are presumed to have been made on the date they bear.
1991, c. 64, s. 2830.
SECTION V
OTHER WRITINGS
2831.
An unsigned writing regularly used in the ordinary course of business of an enterprise to evidence a juridical act makes proof of its content.1991, c. 64, s. 2831.
2832.
A writing that is neither authentic nor semi-authentic which relates a fact is admissible as proof against the person who wrote it, subject to the rules of this Book, by way of testimony or admission.1991, c. 64, s. 2832.
2833.
A domestic paper stating that payment has been received or mentioning that it supplies the lack of a title in favour of the person for whose benefit it sets forth an obligation makes proof against the person who wrote it.1991, c. 64, s. 2833.
2834.
A release, although unsigned and undated, inscribed by a creditor on the title of his debt or on a copy thereof which has always remained in his possession makes proof against him.The release is not admissible in proof of payment, however, if it has the effect of withdrawing the debt from the rules governing prescription.
1991, c. 64, s. 2834.
2835.
A person who invokes an unsigned writing shall prove that it originates from the person whom he claims to be its author.1991, c. 64, s. 2835.
2836.
Writings contemplated in this section may be contested in any manner.1991, c. 64, s. 2836.
SECTION VI
MEDIA FOR WRITINGS AND TECHNOLOGICAL NEUTRALITY
2001, c. 32, s. 78.
2837.
A writing is a means of proof whatever the medium, unless the use of a specific medium or technology is required by law.Where a writing is in a medium that is based on information technology, the writing is referred to as a technology-based document within the meaning of the Act to establish a legal framework for information technology.
1991, c. 64, s. 2837; 2001, c. 32, s. 78.
2838.
In addition to meeting all other legal requirements, the integrity of a copy of a statute, an authentic writing, a semi-authentic writing or a private writing drawn up in a medium based on information technology must be ensured for it to be used to adduce proof in the same way as a writing of the same kind drawn up as a paper document.1991, c. 64, s. 2838; 2001, c. 32, s. 78.
2839.
The integrity of a document is ensured if it is possible to verify that the information it contains has not been altered and has been maintained in its entirety, and that the medium used provides stability and the required perennity to the information.Where the medium or technology used does not allow the integrity of the document to be confirmed or denied, the document may, depending on the circumstances, be admitted as testimonial evidence or real evidence and serve as commencement of proof.
1991, c. 64, s. 2839; 1992, c. 57, s. 716; 2001, c. 32, s. 78.
2840.
It is not necessary to prove that the medium of a document or that the processes, systems or technology used to communicate by means of a document ensure its integrity, unless the person contesting the admission of the document establishes, upon a preponderance of evidence, that the integrity of the document has been affected.1991, c. 64, s. 2840; 2001, c. 32, s. 78.
SECTION VII
COPIES AND DOCUMENTS RESULTING FROM A TRANSFER
2001, c. 32, s. 78.
2841.
A document may be reproduced either by generating a copy in the same medium or in a medium that is based on the same technology, or by transferring the information contained in the document to a medium based on different technology.Where it reproduces an original document or a technology-based document fulfilling the functions of an original as provided for in section 12 of the Act to establish a legal framework for information technology, a copy, provided it is certified, or a document resulting from the transfer of information, provided it is documented, may legally replace the reproduced document.
In the case of a document in the possession of the State, a legal person, a partnership or an association, certification is effected by a person in authority or the person responsible for document retention.
1991, c. 64, s. 2841; 2001, c. 32, s. 78.
2842.
A certified copy is supported, if necessary, by a statement establishing the circumstances and the date of the reproduction, attesting that the copy contains the same information as the reproduced document and indicating the means used to ensure the integrity of the copy. The statement is made by the person responsible for document reproduction or by the person who reproduced the document.A document resulting from the transfer of information is supported, if necessary, by the documentation referred to in section 17 of the Act to establish a legal framework for information technology.
1991, c. 64, s. 2842; 2001, c. 32, s. 78.
CHAPTER II
TESTIMONY
2843.
Testimony is a statement whereby a person relates facts of which he has personal knowledge or whereby an expert gives his opinion.To make proof, testimony shall be given by deposition in a judicial proceeding unless otherwise agreed by the parties or provided by law.
1991, c. 64, s. 2843.
2844.
Proof by testimony may be adduced by a single witness.A child who, in the opinion of the judge, does not understand the nature of an oath, may be permitted to testify without that formality, if the judge is of the opinion that he is sufficiently mature to be able to report the facts of which he had knowledge, and that he understands the duty to tell the truth. However, a judgment may not be based upon such testimony alone.
1991, c. 64, s. 2844.
2845.
The probative force of testimony is left to the appraisal of the court.1991, c. 64, s. 2845.
CHAPTER III
PRESUMPTIONS
2846.
A presumption is an inference established by law or the court from a known fact to an unknown fact.1991, c. 64, s. 2846.
2847.
A legal presumption is one that is specially attached by law to certain facts; it exempts the person in whose favour it exists from making any other proof.A presumption concerning presumed facts is simple and may be rebutted by proof to the contrary; a presumption concerning deemed facts is absolute and irrebuttable.
1991, c. 64, s. 2847.
2848.
The authority of a final judgment (res judicata) is an absolute presumption; it applies only to the object of the judgment when the demand is based on the same cause and is between the same parties acting in the same qualities and the thing applied for is the same.However, a judgment deciding a class action has the authority of a final judgment in respect of the parties and the members of the group who have not excluded themselves therefrom.
1991, c. 64, s. 2848.
2849.
Presumptions which are not established by law are left to the discretion of the court which shall take only serious, precise and concordant presumptions into consideration.1991, c. 64, s. 2849.
CHAPTER IV
ADMISSIONS
2850.
An admission is the acknowledgment of a fact which may produce legal consequences against the person who makes it.1991, c. 64, s. 2850.
2851.
An admission may be express or implied.An admission may not be inferred from mere silence, however, except in the cases provided by law.
1991, c. 64, s. 2851.
2852.
An admission made by a party to a dispute or by an authorized mandatary makes proof against him if it is made in the proceeding in which it is invoked. It may not be revoked, unless it is proved to have been made through an error of fact.The probative force of any other admission is left to the appraisal of the court.
1991, c. 64, s. 2852.
2853.
An admission may not be divided except where it contains facts which are foreign to the issue, or where the part of the admission objected to is improbable or contradicted by indications of bad faith or by contrary evidence, or where the facts contained in the admission are unrelated to each other.1991, c. 64, s. 2853.
CHAPTER V
PRODUCTION OF MATERIAL THINGS
2854.
The production of material things is a means of proof which allows the judge to make his own findings. Such a material thing may consist of an object, as well as the sense impression of an object, fact or place.1991, c. 64, s. 2854.
2855.
The production of material things does not have probative force until their authenticity has been established by separate proof. However, where the material thing produced is a technology-based document within the meaning of the Act to establish a legal framework for information technology, authenticity need only be established in cases to which the third paragraph of section 5 of that Act applies.1991, c. 64, s. 2855; 2001, c. 32, s. 79.
2856.
The court may draw any inference it considers reasonable from the production of a material thing.1991, c. 64, s. 2856.
TITLE THREE
ADMISSIBILITY OF EVIDENCE AND PROOF
CHAPTER I
EVIDENCE
2857.
All evidence of any fact relevant to a dispute is admissible and may be presented by any means.1991, c. 64, s. 2857.
2858.
The court shall, even of its own motion, reject any evidence obtained under such circumstances that fundamental rights and freedoms are breached and that its use would tend to bring the administration of justice into disrepute.The latter criterion is not taken into account in the case of violation of the right of professional privilege.
1991, c. 64, s. 2858.
CHAPTER II
PROOF
2859.
The court may not of its own motion invoke grounds of inadmissibility under this chapter which a party who is present or represented has failed to invoke.1991, c. 64, s. 2859.
2860.
A juridical act set forth in a writing or the content of a writing shall be proved by the production of the original or a copy which legally replaces it.However, where a party acting in good faith and with dispatch is unable to produce the original of a writing or a copy which legally replaces it, proof may be made by any other means.
In the case of technology-based documents, the functions of the original are fulfilled by a document meeting the requirements of section 12 of the Act to establish a legal framework for information technology and the functions of the copy replacing the original are fulfilled by a certified copy of the document meeting the requirements of section 16 of that Act.
1991, c. 64, s. 2860; 2001, c. 32, s. 80.
2861.
Where a party has been unable, for a valid reason, to produce written proof of a juridical act, such an act may be proved by any other means.1991, c. 64, s. 2861.
2862.
Proof of a juridical act may not be made, between the parties, by testimony where the value in dispute exceeds $1 500.However, failing proof in writing and regardless of the value in dispute, proof may be made by testimony of any juridical act where there is a commencement of proof; proof may also be made by testimony, against a person, of a juridical act carried out by him in the ordinary course of business of an enterprise.
1991, c. 64, s. 2862.
2863.
The parties to a juridical act set forth in a writing may not contradict or vary the terms of the writing by testimony unless there is a commencement of proof.1991, c. 64, s. 2863.
2864.
Proof by testimony is admissible to interpret a writing, to complete a clearly incomplete writing or to impugn the validity of the juridical act which the writing sets forth.1991, c. 64, s. 2864.
2865.
A commencement of proof may arise where an admission or writing of the adverse party, his testimony or the production of a material thing gives an indication that the alleged fact may have occurred.1991, c. 64, s. 2865.
2866.
No proof is admitted to rebut a legal presumption where, on the ground of such presumption, the law annuls certain acts or disallows an action, unless the law has reserved the right to make proof to the contrary.However, the presumption, if not of public order, may be rebutted by an admission made during the proceeding in which the presumption is invoked.
1991, c. 64, s. 2866.
2867.
An admission made outside the proceeding in which it is invoked is proved by the means admissible as proof of the fact which is its object.1991, c. 64, s. 2867.
2868.
Proof by the production of a material thing is admissible in accordance with the relevant rules on admissibility as proof of the object, the fact or the place represented by it.1991, c. 64, s. 2868.
CHAPTER III
CERTAIN STATEMENTS
2869.
A statement made by a person who does not testify in a judicial proceeding or by a witness prior to a judicial proceeding is admissible as testimony if the parties consent thereto; a statement that meets the requirements of this chapter or of the law is also admissible as testimony.1991, c. 64, s. 2869.
2870.
A statement made by a person who does not appear as a witness, concerning facts to which he could legally testify, is admissible as testimony on application and after notice is given to the adverse party, provided the court authorizes it.The court shall, however, ascertain that it is impossible for the declarant to appear as a witness, or that it is unreasonable to require him to do so, and that the reliability of the statement is sufficiently guaranteed by the circumstances in which it is made.
The reliability of documents drawn up in the ordinary course of business of an enterprise, of documents entered in a register kept as required by law and of spontaneous and contemporaneous statements concerning the occurrence of facts is, in particular, presumed to be sufficiently guaranteed.
1991, c. 64, s. 2870.
2871.
Previous statements by a person who appears as a witness, concerning facts to which he may legally testify, are admissible as testimony if their reliability is sufficiently guaranteed.1991, c. 64, s. 2871.
2872.
Statements thus made shall be proved by producing the writing.No other statement may be proved except by the testimony of the declarant or of the persons having had personal knowledge of it, unless otherwise provided in articles 2873 and 2874.
1991, c. 64, s. 2872.
2873.
A statement recorded in writing by a person other than the declarant may be proved by producing the writing if the declarant has acknowledged that the writing faithfully reproduces his statement.The same rule applies where the writing was drawn up at the request of the declarant or by a person acting in the performance of his duties, if there is reason to presume, having regard to the circumstances, that the writing accurately reproduces the statement.
1991, c. 64, s. 2873.
2874.
A statement recorded on magnetic tape or by any other reliable recording technique may be proved by such means, provided its authenticity is separately proved. However, where the recording is a technology-based document within the meaning of the Act to establish a legal framework for information technology, authenticity need only be established in cases to which the third paragraph of section 5 of that Act applies.1991, c. 64, s. 2874; 2001, c. 32, s. 81.
