Balabanyan v. Paradis, 2022 QCCA 877 is, hopefully, the last stage of this arbitration saga, which has come before the Court many times before. In a previous Case Note, Québec – Annulment – No review of the merits, even if award wrong #603, I reviewed how the Court dismissed each and every reason the Appellant raised against the arbitral award made against him. In her decision, Québec Superior Court Justice Harvie reaffirmed that courts have no jurisdiction to revisit the merits of an arbitral award or the arbitrator’s reasons and assessment of the evidence when a party is seeking homologation or annulment of an arbitral award. She also confirmed the strict scope of analysis of homologation/annulment grounds according to sections 645 and 646 CCP. In an ultimate attempt to annul the award made against him, the Appellant sought leave to appeal Justice Harvie’s decision. Firstly, the Court of Appeal took notice of Justice Harvie’s assessment that the Appellant acted in bad faith in the conduct of his proceedings: by seeking to “wear the opponent out of steam by a maze of procedures and ill-founded arguments”. This increased Appellant’s burden significantly and even more considering the fact that the Appellant’s application was out of time. The Court of Appeal dismissed the leave application because the Plaintiff did not demonstrate any reason to justify his demand.
The Court of Appeal reviewed the applicable leave to appeal criteria listed at section 30 al. 2 (8) CCP. It reads as follows:
“30. Judgments of the Superior Court and the Court of Québec that terminate a proceeding, and judgments or orders that pertain to personal integrity, status or capacity, the special rights of the State or contempt of court, may be appealed as of right.
The following, however, may be appealed only with leave:
(8) judgments ruling on execution matters.
Leave to appeal is granted by a judge of the Court of Appeal if that judge considers that the matter at issue is one that should be submitted to that Court, for example because it involves a question of principle, a new issue or an issue of law that has given rise to conflicting judicial decisions.”
The Court of Appeal found that the Appellant brought no new ground but raised only same arguments previously dismissed by Justice Harvie in a thorough decision. The Court of Appeal’s purpose is not to remake first instance decisions, but to review them if an error can be proven. Therefore, the Court of Appeal dismissed Appellant’s demand for leave to appeal.
Justice Harvie’s first instance decision was broadly supported by well-established consistent case law supporting her strict review of the grounds for annulment exhaustively listed at section 646 CCP. See previous Case Note Québec – Annulment – No review of the merits, even if award wrong #603.
The Court of Appeal’s dismissal of this leave to appeal application is important because it supports the arbitration principle in Québec, which strictly forbids appeals against arbitral awards. No circumstances can justify the review of the merits of an arbitral award by the Courts. See also previous Case Note Québec – parties can give court role to examine merits of settlement but not to examine merits of identical consent award – #358, which reviewed Gestion S. Cantin inc. v. Emblème Canneberge inc., 2020 QCCS 2259. In that case, the Québec Superior Court protected an arbitral award from review even if it merely registered in writing a settlement agreement between the parties. There would have been no such protection had the settlement agreement been reduced to writing, but not contained in a consent award. It shows arbitration’s independence and protection from the Court review in Québec.