Tag: Québec

In Construction Larivière Ltée v. Pomerleau Inc., 2019 QCCS 5410, Madam Justice Dominique Goulet held that the word French word “peut” (“may” in English), when read in context with the word “exiger” (“require” in English), justified qualifying the agreement to arbitrate as mandatory rather than a possibility.  The French word “exiger” does not appear in the English equivalent of the same standard form contract.  Goulet J. also held that the ten (10) day delay in which to initiate arbitration was a strict one.  Though the undertaking was mandatory, the arbitral party willing to proceed was too late in doing so and she denied the application to refer the parties to arbitration.

Continue reading “Québec – word inserted only in French version of standard form construction contract makes arbitration mandatory – #249”

In Lakah v. UBS, 2019 QCCA 1869, the Québec Court of Appeal denied leave to appeal a Superior Court decision ordering an arbitral party, resisting recognition and enforcement in Canada of an award made in the U.S., to post $1 million as suretyship in Canada pending U.S. annulment proceedings.  The Superior Court acknowledged that a stay should be granted only exceptionally “because it impedes one of the key goals of arbitration, which is to avoid protracted litigation”. In the circumstances, the grounds alleged in the U.S. annulment proceedings “appeared serious” on their face and merited a stay of the Canadian recognition and enforcement proceedings but, in light of the $150 million ordered in the challenged arbitral award, a suretyship of $1 million was “relatively modest”.

Continue reading “Québec – $1 million suretyship ordered for stay of Canadian enforcement pending U.S. annulment – #244”

Relying on his inherent powers and without reference to the provisions applicable to arbitration, Mr. Justice Jocelyn Geoffroy in 9338-3941 Québec inc. v. 9356-2379 Québec inc., 2019 QCCS 4226 ordered the parties (i) to appoint an arbitrator from a list of five (5) sent earlier by Plaintiff rather than appoint one himself and (ii) to complete their arbitration by year’s end.  Geoffroy J. also issued a safeguard order for payment of commercial rent owing going forward but refrained from dealing with past months, stating that retroactive payments were within the arbitrator’s jurisdiction.

Continue reading “Québec – court orders parties to agree on arbitrator from plaintiff’s list rather than appoint one itself – #233”

In Gestion Michel Gagné inc. v. Gaston Gagné inc., 2019 QCCS 3260, Mr. Justice Simon Hébert declined to hear a motion for leave to institute a derivative action if doing so would encroach on an arbitrator’s jurisdiction to consider that same motion.  The corporate legislation which permitted the proposed derivative action stipulated that an application for leave be submitted to the Superior Court.  Since the proposed derivative action also included claims subject to arbitration, Hébert J. determined that the motion for leave was best heard at the same time as the motion to refer the parties to arbitration.

Continue reading “Québec – arbitrator may have default jurisdiction to grant leave to institute derivative action despite legislation assigning it to court – #229”

In Capital JPEG Inc. v. Corporation Zone B4 Ltée, 2019 QCCS 2986, Mr. Justice Babak Barin enforced the express terms of the shareholders’ agreement to mediate before they arbitrated, staying the court litigation pending the result of the mediation.  The court litigation sought dissolution of a corporation and, despite considering that dissolution could be arbitrated, Barin J. refrained from referring the parties to arbitration as that stage had not yet been reached or requested.  He held that parties could agree to mediate topics which could not also be arbitrated.

Continue reading “Québec – parties ordered to mediate according to express, imperative agreement even if dispute not arbitrable – #222”

In Boisvert v. Selvaggi, 2019 QCCS 1673, Mr. Justice Kirkland Casgrain dismissed an attempt at judicial review of an award issuing from arbitration imposed by statute.  Relying on the reasoning and result in Conseil d’arbitrage des comptes des avocats du Barreau du Québec v. Marquis, 2011 QCCA 133, Casgrain J. held that such arbitrations remain consensual if the legislation allows opportunity to renounce to its application.  Being consensual, such arbitrations were subject not to judicial review but to annulment proceedings based on limited grounds familiar to practitioners practising international commercial arbitration.

Continue reading “Québec – arbitration imposed by statute remains consensual if opportunity available to renounce – #204”

In Najah v. Desatrais, 2019 QCCQ 3143, Mr. Justice François Lebel held that an individual who contracts with the goal of becoming merchant is, at that time, a consumer within the meaning of Québec’s Québec’s Consumer Protection Act, CQLR c P-40.1 (“CPA”). As a result, the arbitration clause in the first-time franchisee’s contract did not apply because it restricted his right to go to court.

Continue reading “Québec – inexperienced, first-time franchisee remains consumer when contracting, arbitration clause inapplicable – #203”

In Constructions 3P Inc. v. Construction Demathieu & Bard (CDB) Inc., 2019 QCCS 2070, Mr. Justice Thomas M. Davis refused to stay litigation in favour of arbitration despite his willingness to consider evidence pre- and post-contract of an agreement to arbitrate.  Despite claims that the parties had agreed to arbitrate and attempts to demonstrate that agreement, Davis J. determined that (i) the existing agreement to arbitrate had not been followed and (ii) no new agreement post-dispute had been made despite contractual undertakings to explore dispute resolution options.

Continue reading “Québec – stay application refused despite court’s and contract’s flexibility to identify agreement to arbitrate – #199”