In Bisaillon v. Bouvier, 2020 QCCA 115, the Québec Court of Appeal applied the exception to confidentiality of mediation, confirmed in Union Carbide Canada Inc. v. Bombardier Inc., 2014 SCC 35, [2014] 1 SCR 800, allowing disclosure of confidential exchanges necessary to prove (i) that an agreement resulted from mediation or (ii) the scope of the agreement which the parties acknowledged making. The parties could but did not tailor their mediation to eliminate that exception. Absent a clear, express statement of their intention to prevent subsequent disclosure, the exception applied to permit disclosure. The mediator’s summary of the agreement was only a simple writing, reflected his understanding of the agreement’s terms and did not bind the parties unless signed by them. Update: leave to appeal granted August 6, 2020 in Association de médiation familiale du Québec v. Isabelle Bisaillon, et al., 2020 CanLII 52976 (SCC).
Continue reading “Québec – post-mediation dispute over existence/terms of agreement permits disclosure of confidential exchanges – #329”Québec – crossclaim triggers arbitration though agreement to arbitrate silent in that regard – #327
Relying on the contracts and the parties’ respective claims, Mr. Justice Éric Dufour in Kolinar Real Estate Inc. v. Cadieux, 2019 QCCQ 7183 determined that Defendants’ crossclaim triggered the parties’ particular agreement to arbitrate unless the claim fell within the $15,000.00 level for Small Claims division’s jurisdiction. Defendants’ crossclaim exceeded that level and Dufour J. held it was not dilatory. Without express mention of Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34 (CanLII), [2007] 2 SCR 801, Dufour J. effectively determined jurisdiction first by “only superficial consideration of the documentary evidence in the record” and applied the approach, familiar in many court rules, which allows a crossclaim to impact jurisdiction set by amount of claim.
Continue reading “Québec – crossclaim triggers arbitration though agreement to arbitrate silent in that regard – #327”Québec – tardy litigation, due to attorneys’ failure to file post-award proceedings, resists dismissal – #325
Acknowledging Plaintiffs’ eventual challenges at trial with a lapsed prescription (limitation) period, Mr. Justice Martin Castonguay in Truong v. Brunelle, 2020 QCCS 55 refused to dismiss procedures stemming from a June 23, 2009 arbitral award. Filed June 25, 2019, Plaintiffs’ litigation sought both homologation and damages stemming from non-compliance with aspects of the award, but the motion to dismiss eventually focused on only the damage action. Castonguay J. held that Plaintiffs’ attorneys’ failure to finalize and file relevant pleadings justified exercising discretion to allow their case to proceed. His reasoning applies equally to late applications to homologate awards.
Continue reading “Québec – tardy litigation, due to attorneys’ failure to file post-award proceedings, resists dismissal – #325”Québec – attorney’s lack of knowledge of arbitration clause justifies late request for referral to arbitration – #319
In 9107-7719 Québec Inc. v. Constructions Hub Inc., 2020 QCCQ 1706, Madam Justice Johanne Gagnon readily extended defendant’s delay to apply for referral to arbitration. The forty-five (45) day delay was not a strict one and extending it was justified by explanations given by defendant’s attorney, including attempts to settle, an intervening holiday break and being unaware that the contract contained an agreement to arbitrate. Gagnon J. accepted defendant’s application filed 77 days after service of the action and, having considered it, granted it but declined to declare plaintiff’s action abusive.
Continue reading “Québec – attorney’s lack of knowledge of arbitration clause justifies late request for referral to arbitration – #319”Québec – agreement to arbitrate cannot exclude parties from court’s jurisdiction over breach of public order legislation – #318
In Bois Marsoui GDS Inc. v. Directeur des poursuites criminelles et pénales, 2020 QCCS 1327, Mr. Justice Carl Thibault held that an agreement to arbitrate contained in a contract signed with a government entity/agency did not allow merchants to exclude themselves from application of public order environmental legislation. Thibualt J. held that public order provisions aimed at protecting public well-being would lose their utility if parties could derogate from them by contract. Though not stated, the reasons would also support the conclusion that a government entity/agency lacks sufficient authority to contract out of the court’s jurisdiction to resolve disputes involving penal provisions related to laws of public order.
Continue reading “Québec – agreement to arbitrate cannot exclude parties from court’s jurisdiction over breach of public order legislation – #318”Québec – default is all disputes subject to broadly-worded arbitration agreement unless expressly excluded – #309
In Groupe Dimension Multi Vétérinaire Inc. v. Vaillancourt, 2020 QCCS 1134, Mr. Justice Frédéric Bachand dismissed attempts to limit an arbitral tribunal’s jurisdiction by way of presumption that statutory recourses were excluded unless expressly included. He held that the reverse approach was supported by a liberal interpretation which must be given to such agreements to arbitrate and legislative policy favouring development of consensual arbitration. Bachand J. concluded that an arbitral tribunal’s jurisdiction extends to all disputes relating directly or indirectly to the contract in which the agreement to arbitrate is inserted unless the terms of that agreement or relevant contextual elements indicate a real intention of the parties to limit its scope.
Continue reading “Québec – default is all disputes subject to broadly-worded arbitration agreement unless expressly excluded – #309”Québec – recognition granted for international award with which respondent had already complied – #307
In Metso Minerals Canada Inc. v. Arcelormittal exploitation minière Canada, 2020 QCCS 1103, Madam Justice Marie-Anne Paquette issued an order recognizing an international commercial arbitration award despite prior compliance with the payment obligations in the award. She underlined that recognition and enforcement were distinct aspects: although an award will not be enforced if it is not recognized, it can be recognized without being enforced. She further noted that the award once recognized could serve other purposes between the same parties, including their other ongoing arbitrations regarding the same grinding mill.
Continue reading “Québec – recognition granted for international award with which respondent had already complied – #307”Québec – judicial protection of parties’ confidentiality promotes public interest in arbitration – #305
In homologating an award issuing from a consensual, administered arbitration, Madam Justice Marie-Anne Paquette in 79411 USA Inc. v. Mondofix Inc., 2020 QCCS 1104 ordered that the award be kept confidential because (i) doing so encourages the use of arbitration as a dispute resolution mechanism and (ii) the public interest favors confidentiality orders to promote arbitrations and protect the expectations of the parties to the arbitration. Paquette J. also held that the burden rests on the party seeking the disclosure of otherwise confidential information to demonstrate that the good effects of disclosure outweigh the bad effects of infringing on the confidentiality expectations of parties to an arbitration. Her approach emphasizes the public interest in arbitration and does not rely merely on the private interests peculiar to the parties.
Continue reading “Québec – judicial protection of parties’ confidentiality promotes public interest in arbitration – #305”Québec – narrow definition of ‘dispute’ in agreement to arbitrate justifies refusal to nominate arbitrator – #303
In Municipalité de Caplan v. Arpo Groupe-Conseil Inc., 2020 QCCS 885, Madam Justice Michèle Lacroix refused to nominate an arbitrator due to the limited scope the parties gave to the definition of dispute in the agreement to arbitrate. She held that when an agreement to arbitrate uses imprecise terms, access to the courts must be favoured over enforcement of such clauses.
Continue reading “Québec – narrow definition of ‘dispute’ in agreement to arbitrate justifies refusal to nominate arbitrator – #303”Québec – parties prompted to consider consent award, not litigate whether settlement occurred – #297
In Syndicat de la copropriété Marché St-Jacques v. 9257-3302 Québec inc., 2020 QCCS 975, Mr. Justice Sylvain Lussier refused to homologate a transaction (settlement agreement) and reminded the parties that their contract contained an agreement to arbitrate further to which they could obtain a consent award recording their settlement. Lussier J. reviewed the purported settlement and determined that it lacked most of the essentials to qualify as a transaction such as a mention of the exact disputes, the parties’ respective claims made leading up to the settlement, any judicial/arbitral proceeding settled, a release or payment.
Continue reading “Québec – parties prompted to consider consent award, not litigate whether settlement occurred – #297”