In 2025, Québec courts have grappled with the exceptions to the competence-competence principle. It requires that any challenge to the arbitrator’s jurisdiction must be resolved first by the arbitrator. Competence-competence has long been enshrined in the Model Law and New York Convention and is codified in Québec at art. 632 C.p.c. Its exceptions have been established by case law, but the practical application of what constitutes a “superficial analysis of the evidence on the record” allowing a court to rule directly on a mixed question or law and fact rather than referring the matter to the arbitrator has resulted in different outcomes in 2025. As set out below, courts often apply the competence-competence principle, or one if its exceptions, by stating that either a superficial analysis is sufficient – or not – to resolve the matter, but without explaining their reasoning as to how this conclusion is reached.
The general principle – The competence-competence principle was clearly set out in Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34. The Supreme Court of Canada established the following general rule: “in any case involving an arbitration clause, a challenge to the arbitrator’s jurisdiction must be resolved first by the arbitrator. A court should depart from the rule of systematic referral to arbitration only if the challenge to the arbitrator’s jurisdiction is based solely on a question of law” (para. 84).
The Court held that, when mixed questions of fact and law are present, the case must be referred to arbitration “unless the questions of fact require only superficial consideration of the documentary evidence in the record.” (para. 85).
More recently, the Court explained what constitutes a superficial analysis of the documentary evidence in the record in Uber Technologies Inc. v. Heller, 2020 SCC 16 : “The essential question, in our view, is whether the necessary legal conclusions can be drawn from facts that are either evident on the face of the record or undisputed by the parties” (para. 36).
As discussed below, courts continue to grapple with what constitutes a “superficial review”. In 2025, Québec courts have come to different results on this issue in various cases without explaining how a superficial review was sufficient or not, including two cases involving arguments challenging the validity of the arbitration agreement and mixed questions of fact and law.
Application by the Québec courts in 2025: In my review of Québec arbitration case law in 2025, I identified six cases involving the courts’ consideration of competence-competence.
In the following three cases, the courts ruled directly on jurisdictional matters by applying exceptions to the competence-competence principle:
- In 13647846 Canada inc. c. 9328-9569 Québec inc., 2025 QCCS 1533, the plaintiffs first initiated judicial proceedings (despite an arbitration agreement), to which the defendants did not object, and which resulted in a judicial decision. The unsuccessful plaintiffs then started an arbitration for the same relief and asked the Superior Court to appoint an arbitrator. The Court refused to do so on the basis that the plaintiffs had recognized the jurisdiction of the Superior Court and waived arbitration. In resolving the matter directly, the Court found an exception to the competence-competence principle by concluding that the issue of whether the plaintiffs had waived their recourse to arbitration was either a question of law or a question of mixed fact and law which could be decided based on a superficial examination of the evidence. The Court was however silent as to why or how a superficial analysis was sufficient in this case.
- In Hydro-Québec c. Terrassement St-Louis inc., 2025 QCCA 900 (“HQ v. TSL”), covered in a previous Arbitration Matters case note (Québec – Arbitration clause in contract of adhesion abusive and null – #916), the Court was faced with an argument that the arbitration clause in Hydro-Québec’s standard terms was abusive because the systematic recourse to a three-person arbitral panel was disproportionate in a case where the amounts at stake were small. The Superior Court judge found that the clause was indeed abusive and therefore null. The Court applied the “superficial analysis” exception to competence-competence, finding that whether the arbitration clause was abusive was a question of mixed law and fact, which it could decide based on a superficial analysis of the evidence on the record. Again, the Court did not explain why a superficial analysis was sufficient. The Québec Court of Appeal agreed with the result.
- In Medicell Pharmaceutical (S) Pte Ltd. c. Pharmascience Inc., 2025 QCCS 1325 (CanLII), covered in a previous Arbitration Matters case note (Québec – Court annuls award for failure to respect appointment procedure in arbitration clause. – #912https://arbitrationmatters.com/quebec-court-annuls-award-for-failure-to-respect-appointment-procedure-in-arbitration-clause-912/), the plaintiff succeeded in having an award annulled because of an irregularity in the appointment procedure. The appointment of the arbitrator did not comply with the requirements of the arbitration clause. At the annulment stage, the defendant invoked the competence-competence principle to argue that the arbitrator had the power to decide on its own competence and proceed with the arbitration. The Court rejected this argument, finding that the arbitrator had not in fact ruled on his own competence, as the arbitral award did not address this issue. This was an unusual use of the competence-competence principle, wherein the principle was argued retroactively, at the annulment stage, for the proposition that the arbitrator must have ruled on his own jurisdiction even if the award was silent on this point.
By contrast, in three other 2025 cases, courts applied the competence – competence principle and referred the matter to arbitration.
- In 16074804 Canada inc. c. 12311321 Canada inc., 2025 QCCS 3464 (“16074804”), the Court applied the competence-competence principle and referred the parties to mediation and arbitration because of a mediation and arbitration clause in their contract. The plaintiffs sought to terminate a franchise agreement containing the arbitration clause and raised issues of consent in relation to the franchise agreement. The Superior Court judge found that the matter should be remitted to arbitration, as these issues could not be resolved based on a superficial consideration of the documentary evidence on the record, notably because there was no evidence on the issue of the plaintiff’s consent to enter into the franchise agreement. It found that “the validity of the agreement will be one of the main factual elements which will be debated between the parties and which will require a complete review of all of the relevant facts”.
- In 9296-0186 Québec inc. c. Groupe Prime Drink Corp., 2025 QCCS 875, the Superior court seized with an oppression action referred the matter to arbitration pursuant to the arbitration clause in the share purchase agreement. It found that no exception to the competence-competence principle applied given the need to analyze contradictory factual evidence which went beyond a superficial analysis of the record.
- In Ottavi c. Tardif, 2025 QCCS 275, the Court also referred a shareholder dispute to arbitration based on the arbitration agreement in the shareholder agreement, in application of the competence-competence principle due to factual arguments relating to consent.
In summary, jurisdictional decisions have led to different outcomes in Québec in 2025. The contrast between HQ v. TSL and 16074804 is interesting as both cases involved the determination of the validity of an arbitration agreement and mixed questions of fact and law.
- In HQ v. TSL, the Québec courts ruled on the validity of the arbitration clause directly despite the fact that it required findings of fact on the evidence, such as the characteristics of the parties (a small, regional company vs. HQ), the amounts at stake, and the likely effect of the arbitral procedure mandated by the arbitration clause on the arbitral process. The courts ultimately found that consideration of those factual elements fell within the scope of a “superficial review”.
- By contrast, in 16074804, the Superior Court judge referred the matter to arbitration on the basis that the determination of the validity of the arbitration agreement required a full determination of all the relevant facts.
The different result in these two cases, which focused on the validity of the arbitration agreement, can be explained by the fact that HQ v. TSL turned on mostly legal considerations (i.e. whether the arbitral procedure would pose an obstacle to access to justice given the basic characteristics of the parties), whereas a fuller factual inquiry was required in16074804 to determine whether one of the parties had in fact consented to arbitration.
However, we are left to speculate because the reasoning is not fully set out in the judgments. A general observation is that courts often apply the competence-competence principle or one if its exceptions by stating that either a superficial analysis is sufficient or not to resolve the matter, but without explaining how. More guidance on this point would be helpful. For instance, it would be useful to know why the consideration of various specific facts sometimes within a “superficial review” and sometimes not.