Note Concerning Jurisdiction
in Cross-Demand
L. Michael Blumenstein *
The problem of which court has jurisdiction to hear a cross de-
mand when the principal demand is within the jurisdiction of the
Magistrate’s Court and the cross demand falls within the jurisdic-
tion of the Superior Court has again arisen in the case of aignac V.
Inter Quebec Aluminium Ltd.’ Comeau, J. held that the principal
action should be heard in Magistrate’s Court and accordingly dis-
missed defendant cross plaintiff’s declinatory exception; as for the
cross demand, he referred it to the Superior Court.
With all due respect, it is submitted that a court, when con-
fronted with such a situation, should permit both the principal
demand and the cross demand to be heard by the same judge at
the same hearing. In order to justify this submission, an examina-
tion of the nature of the cross demand and a survey of the Quebec
doctrine and jurisprudence are necessary.
A cross demand may be defined as the proceeding whereby a
litigant exercises a right of action against another litigant when
both litigants are already before the Court in connection with a
previous action already instituted.
It lies, according to article 217 C.P., when defendant may make
a claim arising out of the same causes as the principal action but
which he cannot plead by defence. Defendant may also make a cross
demand for any claim for money arising out of other causes –
but such a cross demand is distinct from and cannot retard the
principal action. The most frequent situation in which a cross de-
mand is utilized is when a defendant asks the Court to liquidate
a claim for damages against plaintiff and declare that judicial com-
pensation takes place.2 Under our Code, legal compensation of a
liquidated sum may be pleaded in defence (art. 1138 C.C., art. 203
C.P.) but a debt which is not yet liquidated and therefore not exi-
gible must, in order to permit judicial compensation, be pleaded
by way of cross demand.
* Of the Senior Board of Editors, McGill Law Journal; third year law student.
‘ [19631 R.P. 354; [1963] C.S. 300.
2 See, for example, Jacobs v. Morris, (1923) 29 R.L. n.s. 210.
No. 1]
JURISDICTION IN CROSS-DEMAND
In the Gignac case, cross plaintiff asked for judicial compensa-
tion plus a condemnation in damages against plaintiff cross de-
fendant.
In deciding the issues, Comeau, J. relied upon two judgments
for support.
Firstly, he cited the following statement made by Roy, J. (then
in the case of Universal
chief judge of the Magistrate’s Court)
Auto Ltd. v. Turgeon:3
“J’h6siterais h d6clarer que ce tribunal a juridiction et a decider que les
mots toute rfclamation de l’article 217 ne sont pas conditionn6s par le
chiffre $99.99 de Particle 61 (maintenant $199.99 de l’article 54).”
Secondly, he accepted the view expressed in J. P. Martineau Enrg.
v. Pouliot 4 by Bilodeau, J. (then also chief judge of the Magis-
trate’s Court and by coincidence, the attorney for successful plain-
tiff Universal Auto,
judge
agreed that defendant could exercise by cross demand any claim
in his favour “mais A la condition que la reclamation que le d~fen-
deur entend exercer par demande reconventionnelle soit infdrieure
A deux cents dollars.” Following the above statements, Comeau, J.
at page 357, concluded that:
twenty years earlier.) The learned
“Quand l’article 217 est transport6 pour ainsi dire dans les rtgles de pro-
c6dures de la Cour de magistrat, il ne peut s’agir de demande reconven-
tionnelle qui ne soit pas de sa juridiction. Une partie ne doit pas en faire
une devant cette Cour lorsqu’elle n’est pas compltente.”
A closer examination of the earlier decisions will, however, re-
veal that the learned judge was unjustified in relying upon them
as a basis for his judgment. Undoubtedly, the statement of Roy, J.
in the Universal Auto case was an obiter dictum as, in fact, he held
that the Magistrate’s Court was competent to hear both the prin-
cipal demand and the cross demand. The case is moreover distin-
guishable from the Gignac case in that the former was concerned
with a lessor-lessee action arising out of the non-fulfillment of
obligations under the lease, whereas the latter nowhere mentions
any lease. The Martineau decision on the other hand, appears to
have been based very largely on French jurisprudence and doctrine
which can have no application in Quebec inasmuch as the Code of
Civil Procedure of France is not drafted in the same terms as that
of Quebec. 5
3(1931) 69 C.S. 155.
4 [1951] R.P. 415 at p. 419.
5 See Sampson, R. G., Jurisdiction in Cross Demand, (1953) R. du B. 275 at
p. 278 for references.
McGILL LAW JOURNAL
[Vol. 11
The heart of the controversy is the interpretation of paragraph
one of article 217 C.P. which reads:
The defendant may set up by cross demand any claim arising out of the
same causes as the principal demand, and which he cannot plead by
defence.
The Quebec doctrine is split over the construction to be placed upon
the words “any claim”. On the one hand, there is the argument that:
“Rien n’autorise A penser que l’article 217 envisage une reconven-
tion qui ne tombe pas sous la juridiction de la cour dont il parle”.0
This leads to the conclusion that a lower court cannot be deprived
of jurisdiction by a cross demand which is outside its jurisdiction
rationae materiae. The counter-argument is that the word “any” is
not restricted to a particular amount 7 and thus, if defendant
claimed by way of cross demand a sum exceeding the jurisdiction
rationae materiae of the Magistrate’s Court, he would be entitled
to the transfer of the record to the Superior Court before which
both demands could be heard at the same time.
Comeau, J. in the Gignac case subscribes to the first opinion
(that any claim must be restricted as to its amount by the juris-
diction of the court in which the principal action was taken). In
support of his view, he quotes art. 1131 C.P. (added to the Code
in 1959)8 which stipulates that:
In any case resulting from an accident in which a motor vehicle is involved,
the defendant may set up, in his defence, any claim accruing to him from
the same accident, provided that it does not exceed the jurisdiction of the
court.
The court then adjudicates upon both claims at the same time and, if it
maintains both, declares then to be compensated up to the amount of the
lesser of the two condemnations.
Articles 217, 218 and 219 do not apply to cases provided for by this
article.
The learned judge comments (at page 356) that although the arti-
cle is limited to accidents involving motor vehicles, it is indicative
of the intention of the legislature that the defendant should not
be permitted to advance a claim exceeding the jurisdiction of the
Magistrate’s Court (inasmuch as art. 1131 is found in the section
“Proceedings in the Magistrate Court”). He then applies this argu-
6 Bergeron, T. L., Traitg de Procddure Civil, [1960] R.L. 293 at p. 296 – Part
of a study prepared for submission to the Revising Commission.
7 Sampson, toc cit., at p. 276. Note also his comments concerning “objectionable”
legislation by interpretation –
-viz. limiting any claim to “any claim up to the
amount of $199.99” as was done in both the Universal Auto and Martineau judg-
ments.
8 7-8 Eliz. II, S.Q., c. 42, s. 3. Italics added.
No. 1]
JURISDICTION IN CROSS-DEMAND
ment by analogy to article 217 C.P. in order to refute the argu-
ment that the word “any” is unrestricted.
It seems, however, that the purpose of the legislature was to
preclude the operation of art. 217 as regards the new provisions of
art. 1131 –
this can be seen from the third paragraph of art. 1131.
Art. 1131 may thus be viewed as an exception to the general rule
expressed in art. 217; as an exception, it must be strictly construed
and not extended by analogy. Obviously, had the legislature wished
to restrict the application of the words “any claim” in art. 217 it
would have passed an amendment to that article similar to the
limitative clause in the first paragraph of art. 1131. Thus in the
absence of legislative action indicating the contrary, one must con-
clude that the reasoning of the “unrestricted claim” theory is the
more convincing of the two arguments.
How have the courts interpreted article 217 C.P. ? Fairly con-
sistent jurisprudence indicates that if an action is properly taken
before the Superior Court, a cross demand arising out of the same
causes but claiming a sum less than two hundred dollars (formerly
one hundred dollars)
is within the jurisdiction of the Superior
Court.9 A principal demand for a non-appealable sum can be ap-
pealed by a cross plaintiff if the plaintiff is given judgment and
the cross demand for an appealable sum is dismissed.10 The unre-
solved problem is that which arises when an action is taken before
the Magistrate’s Court and a cross demand is filed which falls outside
the jurisdiction rationae materiae of the lower court and within
the jurisdiction of the Superior Court.
This writer submits that both the principal action and the cross
demand should be referred to the Superior Court and that both the
principal and cross demand be heard at the same enquite. It is fur-
ther submitted that the jurisprudence supporting this contention
is sound both from a procedural and equitable point of view.
A decision of the Superior Court in the case of Vaillancourt ‘V.
Tetrault 11 dealt with the following facts: Plaintiff initiated action
in Recorder’s Court. Defendant filed a cross demand for a sum ex-
9 Butt v. Black, (1935) 38 P.R. 105; Champagny v. Latraverse, (1927) 29 R.P.
401; see also Ferland, P., Traitg Sommaire et Formulaire de Procidure Civile,
v. 1, p. 246, fn. #11.
10 Chalifoux v. Precision Tool, [1948] B.R. 458; Trudeau v. Keenan, (1935) 58
B.R. 515; Ouellette v. Cie. Levesque, (1923) 35 B.R. 261; McIntyre Vv. Patterson,
[1924] B.R. 499; Dame Catellier v. Dame Belanger, [1924] S.C.R. 436; contra:
Bourassa v. Marchand, [1946] R.L. 79 (B.R.).
11 (1922) 60 C.S. 210.
McGILL LAW JOURNAL
[Vol. 11
ceeding the jurisdiction of that court and the cross demand was
dismissed “par d6faut de juridiction”. On a writ of certiorari, the
Superior Court decided that it was the court competent to hear both
the principal action and the cross demand.12
In Gootman V. Salonin,13 an action was taken in the Superior
Court and a cross demand was filed claiming a sum within the
jurisdiction of the Superior Court. Defendant cross plaintiff filed
a declinatory exception on the ground that the principal action
concerned a lease and was within the jurisdiction of the Circuit
Court (a lower court). This exception was granted and both the
principal and cross demand were referred to the Circuit Court. This
court, however, decided that it was incompetent to hear the cross
demand and returned the record to Superior Court. Plaintiff then
made a motion to have both demands referred to Circuit Court for
trial on the merits. This motion was dismissed, the ratio decidendi
being:
“Consid~rant que le demandeur reconventionnel a droit h un seul proems
pour ces deux demandes, et que c’est la Cour sup6rieure seule qui est com-
p~tente A entendre et juger ledit procbs.” (at p. 436).
This judgment was applied in the case of Desroches v. Desro-
ches.14 The learned judge (Cadotte, J. of the Magistrate’s Court),
applying the principle expressed in Gootman v. Salonin mutatis mu-
tandis (in order to widen the scope of the principle beyond the
matter of a lease which was at issue in the Salonin case), advanced
a most interesting, cogent, and persuasive argument as the basis
of his decision, viz.:
“La juridiction rationae wateriae… se trouvant modifi6e et
d~termin6e de novo par la demande reconventionnelle” and conse-
quently the Superior Court becomes the court competent to deal
with ” toute la contestation”. 15
The judgment in Parizeau v. Lafond 16 fully endorses the rea-
soning of the Desroches case thus supporting the view that the
nature and/or extent (i.e., the amount) of the cross demand can
redefine the issues and result in a lack of jurisdiction rationae ma-
teriae of the Magistrate’s Court. For as Mr. Justice Lesage in his
12 “Consid~rant que la Cour du recorder, incomp6tent sur la demande recon-
ventionnelle, 6tait aussi incomp~tente sur la demande principale, pour les raisons
ci-dessus et, notamment, parce que les deux demandes 6taient indivisibles…”
(at p. 218).
13 (1927) 29 R.P. 436.
14 [1949] C.S. 131.
15 Ibid., at p. 133.
16 [1962] C.S. 538.
No. 1]
JURISDICTION IN CROSS-DEMAND
well-reasoned and fully-documented judgment observed that to de-
cide otherwise would render the recourse of the cross demand not
only illusory but non-existent.
What then is the proper procedure for the principal defendant
to follow when he wishes to file a cross demand for an amount ex-
ceeding that within the competence of the court seized with the
principal action in order that he may force the record to be trans-
ferred to the competent court ? There are two possible ways in
which he may procede –
by evocation or by declinatory exception.
It has been held by our courts that a declaration of evocation
under art. 43, paragraph two of the Code of Procedure is not the
correct proceeding to be filed. 17
In the Gignac case, the learned judge holds that the cross plain-
tiff cannot file a declinatory exception under art. 170 C.P. for being
plaintiff in the cross demand, he is not the party “summoned before
a court” specified in the article. The jurisprudence and doctrine
have, however, adopted the opposite stand as expressed so succintly
by Mr. Justice Quimet in the case of Berk v. Beauchamp :1s
“Considdrant que la procedure r~guli~re pour transfdrer une cause d’un
tribunal A un autre, lorsque le premier est incompitent rationae materiae,
est la motion [exception] ddclinatoire…”
For if one accepts the de novo argument advanced in the Desro-
ches and Parizeau cases, the inescapable conclusion is that, inasmuch
as the jurisdiction has been redefined so as to place the issues out-
side the competence of the Magistrate’s Court, the principal plain-
tiff has (in effect) taken his action before the wrong court and
the defendant cross plaintiff is thus permitted to file a declinatory
exception in order to have both demands transferred to the Supe-
rior Court.
The learned judge in the Gignac case refused to permit both
the principal action and the cross demand to be heard together in
the Magistrate’s Court but rather referred the cross demand (pro-
prio motu) to the Superior Court. It has been shown above that
the courts consider this course of action as one to be avoided –
the reason being that it could lead to undesirable consequences. For
1 7 Beauchesne v. Thibault, (1896) 10 C.S. 423 (Cour de Revision); Berk v.
Beauchamp, [1958] R.P. 289; contra: Lany v. Roy, [1959] B.R. 444. The report
is not clear as to whether the Appeal Court impliedly accepted evocation as the
correct procedure or whether it considered the judgment permitting evocation to
be final inasmuch as the case was heard by the Superior Court. The judgment
in evocation does not seem to have been in appeal.
Is [1958] R.P. 289. See also Desroches v. Desroches; Parizeau v. Lafond at
p. 542 (both cited above). See also Sampson, loc. cit., at p. 217.
McGILL LAW JOURNAL
[Vol. 11
example (to use the one mentioned frequently in the doctrine) an
insolvent plaintiff receives payment from the defendant in virtue
of an ex parte judgment, dissipates the money, and cannot pay the
cross plaintiff who gets judgment against him in the Superior Court.
Another hazard is the risk of possible contradictory judgments.
It is extremely unlikely that the date of the enquite of the principal
action in the Magistrate’s Court will coincide with that of the cross
demand in the Superior Court (to which it has been referred). Most
certainly, two different judges will hear the issues. Understandably,
confusion may be the result and as a consequence, “]a dignit6 de ]a
justice et la foi… seraient atteintes. ‘”‘1 The social policy of the
law cannot permit contradictory judgments. It is desirable, there-
fore, that the same judge have before him all the relevant facts
relating to the issues –
indeed, the litigants should have a right
to such a hearing.
Conclusion
It is submitted that there is clear authority under our Code for
the transfer of both the principal action and cross demand from
the lower court (Magistrate’s) to the higher court (Superior) when
the amount claimed in the cross demand exceeds the sphere of com-
petence of the lower court and arises out of the same causes as the
principal demand. It is further submitted that the proper procedure
is by way of declinatory exception under art. 170 C.P.
It should be noted that the new Draft Code of Procedure (Bill
$20) eliminates the cross demand in favour of allowing defendant
to include a claim (liquidated or unliquidated) in his plea (proposed
art. 172) .20 Should a jurisdictional conflict appear in proceedings
under the Draft Code, proposed Article 36 states that the Superior
Court alone is competent to hear the entire case and that “the re-
cord must be sent to it at the diligence of the parties.” By what
procedure this transfer is to be effected is not, however, specified.
It is submitted that the procedure should be by way of motion made
by defendant cross plaintiff in the Practice Division of Magistrate’s
Court which would result in an automatic judicial order to transfer
the record to the Superior Court. The procedure would thereby come
under some measure of judicial control while at the same time elimi-
nating undue holdups.
19 Bergeron, loc. cit., p. 299.
20 The right given to the defendant is limited to any claim arising from the
same source as the principal demand, or from a related source.
