Philippe Boisvert, Author at Arbitration Matters

March 1, 2024February 23, 2024

Québec – Arbitral award with declaratory relief no bar to homologation – #819

In Société des établissements de plein-air du Québec c. Station Mont-Ste-Anne inc., 2024 QCCS 2 (“SÉPAQ v. SMSA”), the Québec Superior Court granted homologation of an arbitral award and rejected its partial annulment, dismissing the argument that the award should not be homologated because it was merely declaratory. Also, the decision referred to parts of the award and arbitral record throughout its reasoning despite some concerns by one of the parties about maintaining the confidentiality of the arbitral record.

December 18, 2023December 18, 2023

Prince Edward Island – Plaintiffs’ Proposal to Arbitrate Years into Court Proceedings Factor in Excusing Delay – #799

In Elbaz v. Government of P.E.I., 2023 PESC 52 (CanLII), in the context of a motion by the defendants to dismiss an action for delay, the Court considered (among many other factors) the fact that the plaintiffs had, after their counsel had died after 15 years on the case, suggested to defendants that the case be moved to arbitration rather than remaining before the court. Considering this and other factors, the Court declined to dismiss the case for delay, finding that the delay was inordinate, but that it was not intentional or contumelious. Further, both sides were responsible for the delay. The explanations for the delays were “reasonable and cogent” or “sensible and persuasive”.

October 26, 2023October 20, 2023

Québec –Waiver of arbitration after court proceedings, despite letter proposing arbitration– #786

The Superior Court of Québec in 13647846 Canada inc. c. Phase III Wellington Griffintown inc., 2023 QCCS 3589 dismissed an application for a stay of proceedings in favor of arbitration on the grounds that: (i) it was made too late without justification, and (ii) the plaintiffs had waived their recourse to arbitration by submitting their dispute to the Superior Court first. Here, the plaintiffs brought legal proceedings with respect to a matter that was subject to an arbitration agreement. They then proposed arbitration by letter, which the defendants rejected. When the plaintiffs sought a stay of part of their own proceedings in favour of arbitration pursuant to Article 622 of the Québec Code of Civil Procedure (“CCP”), the Court found that they were out of time. The 45-day time period for the stay motion started when the court proceedings were commenced, and the stay application was not made within this period. It was irrelevant that their letter was sent within the 45-day period. The Court also found that plaintiffs had waived their right to arbitrate.

August 30, 2023September 5, 2023

Québec – Arbitrator wrong to extend arbitration agreement to include third-party employees – #769

The Superior Court of Québec in Mullen c. Nakisa inc., 2023 QCCS 2678 held that employees not party to an arbitration agreement should not be added as parties to an ongoing arbitration. There is no support for the proposition that all third parties that are in some way related to the signatory parties of an arbitration agreement should be bound by it. This decision on the merits follows the stay granted by the Superior Court in October 2021 (Mullen c. Nakisa inc., 2021 QCCS 4388), covered in Case Note Québec – Stay of arbitrator’s decision to add third parties, force them to meet timetable, and refusal to hear them without payment – #553.

July 7, 2023July 10, 2023

Québec – Arbitrator has jurisdiction to decide derivative action without court authorization – #753

In Tidan inc. c. Trria Design inc., 2023 QCCS 1746, the Superior Court of Québec dismissed an application by the Respondent to an arbitration, Tidan inc., under article 632 of the Québec Code of Civil Procedure, C-25.01 (CCP) to find that the arbitrator had erred in concluding that he had jurisdiction to hear all the claims submitted to arbitration by the Claimant, Trria Design inc. The Respondent argued that some of the claims were unarbitrable as they were derivative claims, which must be authorized by the Superior Court pursuant to Article 445 of the Québec Business Corporations Act (BCA). The Court found that the parties’ arbitration agreement was broadly drafted and gave the arbitrator the jurisdiction over, “any dispute which might arise as to the interpretation or the application of this agreement”, which included oppression remedy and derivative claims.

May 10, 2023May 26, 2023

New Brunswick – When is an appeal not an appeal? – #736

In New Brunswick Highway Corporation v. MRDC Operations Corporation, 2023 NBCA 19, the Court of Appeal of New Brunswick (the “Court”) dismissed the appeal of a decision denying an appeal against an arbitral award. The Court found that the arbitration agreement did not grant the parties an automatic right of appeal, and denied leave to appeal pursuant to section 45 of the Arbitration Act, RSNB 2014, as no extricable questions of law were present. The Court cautioned against finding extricable errors of law in a case such as this involving contractual interpretation of the arbitration agreement. The decision turned on the interpretation of the arbitration agreement, which provided both for an appeal and for no appeal.

March 30, 2023March 27, 2023

Québec – Interpretation of two shareholder agreements requires more than a superficial analysis – #725

In Gifran inc. c. 9225-2071 Québec inc., 2023 QCCA 311, the Québec Court of Appeal (the “Court”) recalled the principles governing an exception to the compétence-compétence principle and ordered a stay in favor of arbitration, overturning the Superior Court Judge’s decision. The Court commented on the scope of the exception relating to questions of mixed fact and law that require only superficial consideration of the evidence in the record, in the context of a shareholder dispute. It noted that the Superior Court Judge had not provided reasons as to why the exception applied in this case and found that the exception did not in fact apply, because an in-depth analysis of the respective scopes of two separate shareholder agreements (one with an arbitration clause and one without) was required. The Court also held that the mere presence of related third parties in the dispute was not sufficient to deny the stay application.