In Caron v. 7834101 Canada inc. (Triviom à Charlemagne), 2020 QCCS 2859, Mr. Justice Stéphane Lacoste severed a portion of an agreement to arbitrate which violated the rule against placing one party in a privileged position with respect to the designation of the arbitrator. Rather than declare null the entire agreement to arbitrate, as had an earlier court when faced with the same agreement, Lacoste J. struck the provision, likening the relief to the “blue-pencil” severance explained and applied in Shafron v. KRG Insurance Brokers (Western) Inc., 2009 SCC 6 (CanLII), [2009] 1 SCR 157. To do so, Lacoste J. combined articles 2641 and 1438 of the Civil Code of Québec, CQLR c CCQ-1991 and, having done so, referred the parties to arbitration.
Continue reading “Québec – agreement giving one party privileged position to designate arbitrator subject to “blue-pencil” severance – #383”Québec – court relies on post-trial arbitration award to determine value under dispute at trial – #375
In Langlois v. Langlois, 2020 QCCS 2959, Mr. Justice Éric Hardy endorsed the court’s reliance on an arbitration award, which issued after a trial decision, to determine the amount of the value under dispute in court at trial. Hardy J. accepted that the court could use the award to calculate court costs according to a court tariff. The court trial had ordered a buyback of Plaintiffs’ shares due to oppression but also ordered the parties to engage in arbitration to determine the narrower issue of share valuation, as agreed to in their shareholders agreement.
Continue reading “Québec – court relies on post-trial arbitration award to determine value under dispute at trial – #375”Québec – court suspends own process, requires parties take arbitration-related steps prior to decision on stay – #365
In Syndicat de la copropriété Clark et Fleury v. Généreux, 2020 QCCS 1835, Mr. Justice Mark Phillips issued a sequence of orders regarding the parties’ to exhaust the steps related to each of their competing dispute resolution procedural approaches. Without pre-determining either party’s rights either to pursue freshly-filed litigation or to obtain referral to arbitration, Phillips J. suspended his own involvement in a referral application and, during that suspension, imposed steps to complete procedural arguments for/against arbitration in two (2) court files. His orders included ‘recommending’ the parties exercise certain rights in their agreement to arbitrate prior to a later but near-in-time date at which he would resume involvement. Phillips J. limited his involvement to ensuring completion of all steps necessary to (i) the agreement to arbitrate and (ii) contesting the court’s jurisdiction, under reserve of any upcoming decision that the agreement to arbitrate applied to the disputes.
Continue reading “Québec – court suspends own process, requires parties take arbitration-related steps prior to decision on stay – #365”Québec – lacking jurisdiction over Plaintiff’s claim, court declines to address whether claim subject to arbitration – #361
In Consultants en environnement Eutrotech Inc. v. Bacon, 2020 QCCQ 1727, Mr. Justice Daniel Lévesque dismissed a claim made Plaintiff for monies allegedly owing from an arbitration award which recorded Defendant’s consent to render an accounting. Lévesque J. stated that jurisdiction was a matter of public order and, in dismissing the claim, declined also to rule on Defendant’s challenge that the claim was subject to arbitration. The authorities referred to also note that parties cannot by consent give jurisdiction to a court because jurisdiction is a matter of public order.
Continue reading “Québec – lacking jurisdiction over Plaintiff’s claim, court declines to address whether claim subject to arbitration – #361”Québec – parties can give court role to examine merits of settlement but not to examine merits of identical consent award – #358
In Gestion S. Cantin Inc. v. Emblème Canneberge Inc., 2020 QCCS 2259, Mr. Justice Daniel Dumais distinguished the leeway available to arbitral parties to agree, subsequent to a settlement arrived at during arbitration, if/how to grant the court jurisdiction to examine the merits of the resolution of their dispute. On a transaction (settlement agreement), arbitral parties can give the court jurisdiction to examine the merits. On a consent award recording that same settlement, parties cannot give the courts jurisdiction to examine the merits. The arbitral parties had negotiated a settlement agreement and obtained a consent award recording it but, disputing performance post-settlement, were allowed to dispute only the merits of the agreement but not the award, despite being identical in terms.
Continue reading “Québec – parties can give court role to examine merits of settlement but not to examine merits of identical consent award – #358”Québec – choice of law does not determine choice of forum – #355
In Corner Brook Pulp and Paper Limited v. Valmet Ltd., 2020 QCCS 2136, Mr. Justice Gregory Moore dismissed a defendant’s argument that choice of Ontario law in its contracts with another entity required application of Ontario’s Arbitration Act, 1991, SO 1991, c 17. Moore J. held that choice of governing law did not determine choice of forum and that Québec’s Civil Code of Québec, CQLR c CCQ-1991 provides that the law of the court seized of the matter governs procedure. Defendant’s procedural decision to force intervention of its contracting party as defendant-in-warranty to the principal claim yielded to the choice of forum clause indicating a clear intention to remove jurisdiction.
Continue reading “Québec – choice of law does not determine choice of forum – #355”Québec – parties renounce referral to arbitration but court later confirms issues not public order, still arbitrable – #347
In Gestion George Kyritsis Inc. v. Balabanian, 2020 QCCS 1806, Madam Justice Claude Dallaire asserted public order limits to the arbitrability of certain disputes but, on the facts, held that the dispute did not pass those limits. Dallaire J. held that where a declaration of improbation (annulment) is required to annul an authentic act received before a notary and registered in the land registry office, only a Superior Court could issue that declaration. Challenge to the validity of a notarial act alleging a notary’s non-compliance with the mission given by legislation is a matter involving public order. In the circumstances, because the nullity of the act could issue on grounds which did not require improbation, an arbitrator could have decided the matter.
Continue reading “Québec – parties renounce referral to arbitration but court later confirms issues not public order, still arbitrable – #347”Québec – trial judge on own initiative quashes subpoena issued to mediator – #339
Without need for application by either the opposing party or the proposed witness, Madam Justice Céline Gervais in PC Avocats inc. (Perras Couillard Avocats) v. Perreault, 2020 QCCQ 1972 quashed a subpoena sent to the attorney who served as mediator in court-supported mediation. In quashing it proprio motu, Gervais J. explained to the self-represented litigant that the mediator was not compellable and all that transpired during the mediation was confidential. Gervais J. also commented on the role/liability of lawyers in a client’s own decision to engage in mediation and negotiate a settlement.
Continue reading “Québec – trial judge on own initiative quashes subpoena issued to mediator – #339”Québec – forum selection clause does not eliminate courts’ jurisdiction to issue provisional measures – #338
In Associated Foreign Exchange Inc. v. 9189-0921 Québec Inc. (MBM Trading), 2020 QCCS 1823, Mr. Justice Michel A. Pinsonnault determined that the courts of Québec had jurisdiction to issue a Mareva injunction over assets located in Québec despite the parties’ prior, uncontested agreement that the courts of Ontario had exclusive jurisdiction over the merits of their dispute. Pinsonnault J. found support for that determination based on the clearer result, set out expressly in Québec’s substantive and procedural codes, confirming the Québec courts’ jurisdiction to issue provisional measures despite a final and binding agreement to arbitrate binding the parties and excluding the courts.
Continue reading “Québec – forum selection clause does not eliminate courts’ jurisdiction to issue provisional measures – #338”Québec – use of confidential mediation exchanges permitted to prove fraud vitiating settlement consent – #330
In Viconte inc. v. Transcontinental inc., 2020 QCCQ 1475, Madam Justice Céline Gervais recognized that that the exception to settlement privilege applies to permit a party to adduce confidential exchanges made in a mediation to prove the existence or scope of a transaction but she saw no principle under which that exception did not also apply if a party challenged the validity of a transaction and not its existence or scope. The party resisting homologation of a settlement sought to prove that the other party had given false information or allowed it to be retained, thereby vitiating consent and justifying annulment of the settlement. Gervais J. cautioned that her decision was only a preliminary one and did not consider the difficulty a party may have at trial to prove its allegations.
Continue reading “Québec – use of confidential mediation exchanges permitted to prove fraud vitiating settlement consent – #330”