Despite the brevity of her decision, Madam Justice Carole Therrien in Dupont v. Langlois, 2021 QCCS 136 underscored a key distinction between the court’s oversight triggered by parties litigating before the court despite a binding agreements to arbitrate. Though Plaintiff voluntarily discontinued his action following Defendant’s application to decline jurisdiction, Therrien J. held that Defendant’s claim for abuse of procedure pursuant to articles 51-56 of the Code of Civil Procedure, CQLR c C-25.0 was made before Plaintiff’s discontinuance and in the context of management of the litigation. Acknowledging that the action stemmed from a dispute involving the contract, Therrien J. determined that the alleged procedural abuse by Plaintiff took place in the context of a judicial procedure before the Superior Court and it is the court which had the authority to sanction abuse, if need be.
Parties to a September 2019 mortgage (“hypothec”), Plaintiff and Defendant disputed performance and, pursuant to a notice of taking in payment issued in March 2020, Plaintiff initiated an action for forced surrender and taking in payment (“délaissement forcé et prise en paiement”) pursuant to articles 2778-2783 of the (“C.C.Q.”).
“Article 2781 Where the default has not been remedied or the payment has not been made in the time allotted for surrender, the creditor takes the property in payment by the effect of the judgment of surrender, or by an act voluntarily made by the person against whom the hypothecary right is exercised, and accepted by the creditor, if neither the later ranking creditors nor the debtor required him to proceed with the sale.
The judgment of surrender or the act voluntarily made and accepted constitutes the creditor’s title of ownership”.
In addition to the conclusion seeking surrender and taking in payment, Plaintiff also sought a safeguard order enjoining Defendant from collecting rent. Defendant invoked the agreement to arbitrate contained in the mortgage. At first, Plaintiff resisted but agreed to discontinue his action.
Before Plaintiff’s discontinuance, Defendant had filed an application seeking (i) dismissal of the action, (ii) retraction of the order which issued on the safeguard application and (ii) damages based on alleged abuse of procedure.
Articles 51-56 of the Code of Civil Procedure, CQLR c C-25.0 (“C.C.P.”) govern applications for abuse of procedure in the courts.
“Article 51 C.C.P. The courts may, at any time, on an application and even on their own initiative, declare that a judicial application or a pleading is abusive.
Regardless of intent, the abuse of procedure may consist in a judicial application or pleading that is clearly unfounded, frivolous or intended to delay or in conduct that is vexatious or quarrelsome. It may also consist in a use of procedure that is excessive or unreasonable or that causes prejudice to another person, or attempts to defeat the ends of justice, particularly if it operates to restrict another person’s freedom of expression in public debate”.
See the urbitral notes for the text of articles 53 and 54 C.C.P.
Therrien J. observed that, following the discontinuance, Defendant’s claim for retraction and dismissal were before another judge of the Superior Court. The claim for damages was not.
Plaintiff requested that the demand for damages be referred either to the Court of Québec, given that the amount claimed fell within its jurisdiction, or that the claim be referred to the arbitrator. Defendant resisted, arguing that the demand for damages was not within the agreement to arbitrate entered into between the parties.
Therrien J. cited the description of dispute as defined in the agreement to arbitrate which read as follows:
[informal translation] ‘All disagreement or dispute which may arise, namely and without limitation, from the interpretation or application of the present document, its execution, its validity or its resolution, must be submitted … ’
Therrien J. then examined Defendant’s claim for abuse of procedure, listing certain acts allegedly committed by Plaintiff and seeking reimbursement of extrajudicial legal fees: obtaining Defendant’s contact information; threats to evict Defendant and his minor child demonstrating an incorrect use of the safeguard procedure; and, intimidation and defamation regarding tenants.
Therrien J. concluded that the allegations in Defendant’s claim for damages did not fall within the agreement of the parties to arbitrate disputes under the mortgage.
[informal translation] ‘These reproaches are made in the context of management of litigation before the Superior Court. Despite that the action stems from a dispute related to the contract, the acts alleged are made in the context of a judicial procedure before the Superior Court. It is the court which has the authority to sanction abuse, if need be’.
Therrien J. dismissed Plaintiff’s request to have the abuse of procedure issue referred to the arbitrator and referred the parties to the other judge already seized with Defendant’s application to retract the safeguard order and the dismissal.
urbitral notes – First, articles 53 and 54 C.C.P. outline measures available to the court if it determines that an abuse of procedure has occurred. The first concerns corrective measures to govern the balance of the action if it continues and the second concerns indemnification to the party which experienced the abuse.
“Article 53 C.C.P. If there has been an abuse of procedure, the court may dismiss the judicial application or reject a pleading, strike out a conclusion or require that it be amended, terminate or refuse to allow an examination, or cancel a subpoena.
If there has been or if there appears to have been an abuse of procedure, the court, if it considers it appropriate, may do one or more of the following:
(1) impose conditions on any further steps in the judicial application or on the pleading;
(2) require undertakings from the party concerned with respect to the orderly conduct of the proceeding;
(3) stay the proceeding for the period it determines;
(4) recommend that the chief justice or chief judge order special case management; or
(5) order the party that initiated the judicial application or presented the pleading to pay the other party, under pain of dismissal of the application or rejection of the pleading, a provision for costs, if the circumstances so warrant and if the court notes that, without such assistance, that other party’s financial situation would likely prevent it from effectively conducting its case.
Article 54 C.C.P. On ruling on whether a judicial application or pleading, including one presented under this division, is abusive, the court may order a provision for costs to be reimbursed, order a party to pay, in addition to legal costs, damages for any injury suffered by another party, including to cover the professional fees and disbursements incurred by that other party, or award punitive damages if warranted by the circumstances.
If the amount of the damages is not admitted or cannot be easily calculated at the time the application or pleading is declared abusive, the court may summarily determine the amount within the time and subject to the conditions it specifies or, in the case of the Court of Appeal, refer the matter back to the court of first instance for a decision”.
Second, it is unclear what Defendant’s application for dismissal involves and whether the application limits itself to issues not addressed in the arbitration.