In BMLEX Avocats inc. v. Sahabdool, 2019 QCCQ 3552, Mr. Justice Luc Huppé agreed to homologate (recognize and enforce) an arbitral award but declined to modify the terms of the interest owing on the amount because the arbitral award did not mention it. In the same decision, Huppé J. also ordered a third party to be solidarily liable for payment of the award amount. Unlike a similar result in GGL Avocat v. Dumont, 2020 QCCQ 597, Huppé J. made no mention of the special vocation of the small claims court to favour access to justice and debt recovery.
Plaintiff, a law firm, applied to homologate a January 17, 2019 arbitration award (“Award”) which had issued in its favour against the defendant H and, at the same time, for an order against defendant, R for the same amount based on a written retainer signed by R.
The Award resulted from the process set out in the Regulation respecting the conciliation and arbitration procedure for the accounts of advocates, CQLR c B-1, r 17 (“Regulation”). That Regulation issued under the Act respecting the Barreau du Québec, CQLR c B-1 which, itself, issued pursuant to the Professional Code, CQLR c C-26.
Neither H nor R participated in the litigation in Court of Québec and Plaintiff proceeded by default.
Plaintiff’s application in Court of Québec included the Award plus evidence that the March 15, 2016 retainer signed by both H and R stipulated that they would be solidary liable. The retainer stipulated that the 12% per annum be calculated daily.
Huppé J. held that Plaintiff’s claims were well-founded except its claim for interest at 12% per annum calculated daily. He readily acknowledged that the retainer stipulated that percentage rate but noted that the Award did not mention interest calculated daily.
“Même si la demande d’homologation demande que les intérêts soient composés quotidiennement, le tribunal ne peut modifier la conclusion prononcée par le Conseil d’arbitrage des comptes des avocats du Barreau du Québec.”
“[informal translation] Even if the application for homologation requests that interest be calculated daily, the court cannot modify the conclusion issued by the arbitral tribunal.”
Huppé J. therefore (a) homologated the Award and (b) ordered H and R be solidarily liable for the sum claimed in the Award.
urbitral note – First, the decision demonstrates the willingness the courts to recognize and enforce awards but also the limits of that willingness. Despite clear evidence of the rate of interest and the manner in which it was calculated by agreement of the parties, Huppé J. declined to top up the interest as he was constrained by the conclusions of the Award which had issued.
Second, for a similar factual matrix, see GGL Avocat v. Dumont, 2020 QCCQ 597 and the related Arbitration Matters note “Award enforced against arbitral party and non-party held solidarily liable for award amount”. Unlike that decision, Huppé J. did not specify, when homologating the Award, that homologation be limited to H, the arbitral party.
Third, for more on the term “solidary” under civil law, see “Award enforced against arbitral party and non-party held solidarily liable for award amount” and articles 1523-1544 of the Civil Code of Québec, CQLR c CCQ-1991.