In Landry v. Gagné, 2021 QCCA 128, Québec’s Court of Appeal upheld the dismissal of a lawyer’s action which pre-empted the client’s right to require conciliation and, if need be, arbitration of a dispute over an account by way of process set out by Regulation respecting the conciliation and arbitration procedure for the accounts of advocates, CQLR c B-1, r 17. While the process is asymmetrical in that only the client can opt not to engage in it, the Québec Court of Appeal in Conseil d’arbitrage des comptes des avocats du Barreau du Québec v. Marquis, 2011 QCCA 133 determined that the process qualified as a consensual arbitration and not a statutory and therefore exempt from judicial review.
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In authorizing a class action, Mr. Justice Sylvain Lussier in Société AGIL OBNL v. Bell Canada, 2021 QCCS 365 excluded from the group’s definition those members bound by standard form contracts containing an agreement to arbitrate. Representative plaintiff had not signed such a contract and evidence of the circumstances of signature would be speculative, adding that it ‘would be unfair to impose on [representative plaintiff] the burden of pleading a question which does not concern it’. Lussier J. also declined to remit the issue of the agreement to arbitrate to a subsequent declinatory motion as ‘one cannot refer a hypothetical file to a non-existent arbitrator’. Lussier J. gave the parties the opportunity to comment on Uber Technologies Inc. v. Heller, 2020 SCC 16 which issued after their hearing but distinguished it as having been decided on common law rather than civil law legislation and argued by a representative plaintiff bound by the actual disputed agreement to arbitrate. In comments preceding his consideration of Uber Technologies, Lussier J. declined to accept the invitation to adopt the dissent’s comments in TELUS Communications Inc. v. Wellman, 2019 SCC 19, [2019] 2 SCR 144 because ‘it is best to leave it to the Supreme Court to reverse or distinguish its own majority decisions’.
Continue reading “Québec – ‘best to leave it to the Supreme Court to reverse or distinguish its own majority decisions’ – #431”Québec – ‘state of the current case law’ justifies leave to appeal raising autonomy of agreement to arbitrate – #428
Referring to the ‘state of the current case law’, Mr. Justice Frédéric Bachand in Specter Aviation v. Laprade, 2021 QCCA 183 determined that the proposed appeal questions involving aspects of arbitral law merited the Court of Appeal’s attention. The questions included whether: (i) the judge disregarded the principle of the autonomy of the agreement to arbitrate when concluding that Applicants could not invoke both the agreement to arbitrate and the nullity of the liquidation contract containing it; (ii) Applicants had waived the agreements to arbitrate despite having reiterated their consent to arbitrate; and, (iii) the judge incorrectly assessed the impact of article 3152 of the Civil Code of Québec, CQLR c CCQ-1991 in a contract having extraneous elements. Though he did order the suspension of the Superior Court proceedings, Bachand J.A. declined to order the suspension of the arbitration undertaken before the Chambre Arbitrale Internationale de Paris. He determined that doing so would breach the autonomy of international arbitration and violate the limitations imposed on courts by article 622 of the Code of Civil Procedure, CQLR c C-25.01.
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In a proposed class action involving claims under an insurance policy for indemnification for business interruption due to COVID-19 measures, Mr. Justice Gary D.D. Morrison in 9369-1426 Québec inc. (Restaurant Bâton Rouge) v. Allianz Global Risks US Insurance Company, 2021 QCCS 47 referred the parties to mediation and arbitration and dismissed the application for authorization. While Québec law did not state that parties to an insurance contract can submit their disputes to arbitration, it also does not stipulate that they cannot. The Code of Civil Procedure, CQLR c C-25.01’s class action provisions are procedural and do not modify substantive law or create jurisdiction for the courts over disputes which parties have lawfully excluded. Having relied in part on proportionality to refer the parties, Morrison J. declined to comment on whether his order would “require each individual insured to proceed by way of the lengthy and costly dispute resolution process, which may discourage many from exercising their rights”. Morrison J. also held that competence-competence does not arise in referral to mediation “as there exists no legal principle in support of such an approach”.
Continue reading “Québec – no legal principle to support applying competence-competence for mediation – #415”Québec – sequential arbitrations without exclusion of courts renders clause invalid in real rights litigation – #413
Distinguishing between actions involving personal and real rights, Mr. Justice Martin Castonguay in Specter Aviation v. Laprade, 2020 QCCS 4392 held that article 3148 para. 2 of the Civil Code of Québec, CQLR c CCQ-1991 did not apply to deny the court’s jurisdiction when a party invoked an agreement to arbitrate. Rather, article 622 of Code of Civil Procedure, CQLR c C-25.01 governed when the dispute involved ownership of an aircraft and it required him to consider whether the parties had negotiated a binding, mandatory agreement to arbitrate. Castonguay J. determined that the parties’ agreement to arbitrate was ambiguous and invalid, including a mention of two (2) sequential arbitrations and lacking an express exclusion of the courts if the parties did undertake arbitration.
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In Rivain v. La Capitale assureur de l’administration publique Inc. (La Capitale, assurances et services financiers), 2020 QCCS 3936, Mr. Justice Christian Immer declined to order parties to re-arbitrate an issue determined by a physician arbitrator under an insurance policy. That policy submitted medical disputes to arbitration before a physician and subjected awards to the typical three (3) post-award options available to arbitral parties: compliance, homologation, annulment. Immer J. did determine that the policy anticipated a 4th option, namely a subsequent arbitration before another medical specialist if the 1st arbitrator determined that the medical dispute fell within that other medical speciality. Immer J. also noted that, despite the complexity of the facts, a court was better placed to determine the jurisdictional issue, rather than defer to a first determination by the arbitrator, as the request to refer the parties to arbitration raised principally a question of law.
Continue reading “Québec – no second opinion on issue determined by award issued by physician arbitrator – #408”Québec – resourceful solution to confirm court-mediated settlement negotiated over videoconference – #404
In Claveau v. Distribution Jacques Cartier Inc., 2020 QCCQ 8376, Mr. Justice Pierre Simard confirmed a settlement arrived at through a court-assisted mediation conducted the day of trial despite Defendants participating by videoconferencing platform. Though the legislated process for confirming a court-mediated settlement requires litigants to sign and file in court either (i) a document confirming the settlement or (ii) the settlement agreement itself, Defendants were not present in court and unable to sign as required by legislation. In his brief judgment, Simard J. (i) recorded hearing from the mediator who reported the details of the settlement, (ii) confirmed the parties’ agreement to be bound to the settlement and (iii) issued orders reflecting the terms of the settlement. In doing so, Simard J. permitted the parties to resolve their dispute without a trial, without attending in person and without breaching applicable legislation.
Continue reading “Québec – resourceful solution to confirm court-mediated settlement negotiated over videoconference – #404”Québec – party autonomy to design arbitration includes right to risk loss of statutory construction lien rights – #401
In 9221-2323 Québec inc. v. Excavation L. Martel inc., 2020 QCCS 4363, Mr. Justice Martin F. Sheehan enforced the parties’ agreement to arbitrate contractor’s claims for additional sums even if doing so might result in loss of the contractor’s right to publish (register) its legal hypothec (lien) within the statutory delay. Sheehan J. recognized that the arbitration award might issue only after the end of the construction work and, by mere lapse of time, extinguish the contractor’s right to publish its legal hypothec. Party autonomy included the ability to require arbitration as a condition precedent to exercising statutory rights to protect claims and thereby give notice to third parties of that claim. Sheehan J. determined that the contractor had agreed that its legal hypothec could be published only after arbitration, knowing that the award might issue too late.
Continue reading “Québec – party autonomy to design arbitration includes right to risk loss of statutory construction lien rights – #401”Québec – court refers parties to arbitration but grants adjournment permitting parties to agree on arbitrator – #396
In Proservin Inc. v. Investissements Toro Inc., 2020 QCCS 3561, Mr. Justice Stéphane Lacoste demonstrated the Québec courts’ ready support of arbitration and their practical approach to assisting parties to appoint their own arbitrators. Citing the applicable legislative provisions in Code of Civil Procedure, CQLR c C-25.01 and principles issuing from key cases, Lacoste J. readily dismissed objections to the court referring the parties to arbitration. Having granted the application to nominate, Lacoste J. nonetheless granted the parties an adjournment to a specific date prior to which they were ordered to exchange on the nomination and informed that, failing agreement, he would resume the hearing and nominate an arbitrator from the competing choices.
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In Ville de Saint-Colomban v. Commission municipale du Québec, 2020 QCCS 3396, Mr. Justice Michel Yergeau dismissed judicial review of an administrative body’s decision to decline jurisdiction to conduct statutory arbitration where both parties had not expressly consented to arbitration as required by the statute. Despite the availability of arbitration before the administrative body and both parties using the term ‘arbitration’ to refer to the administrative proceeding, the term did not change the nature of the proceeding. Applying judicial review standards of review refreshed by Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 Yergeau J. determined that the decision was reasonable and intervention was unwarranted.
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