Tag: Québec

In four (4) court files involving five (5) litigants, Mr. Justice Bernard Synnott in Transport Richard Meloche Inc. v. Constructions Innovo Inc., 2021 QCCS 605 dismissed court litigation between two (2) of the litigants G and C and referred them to arbitration.  Three (3) court files had already been joined for proof and hearing by an earlier court decision and G had successfully applied to intervene in and file an action in warranty in one (1) file and filed a cross-claim in another.  Synnott J. resisted G’s arguments that enforcing its agreement to arbitrate would not favour the fair administration of justice. [informal translation] ‘If arbitration clauses had to be put aside each time several disputes arose from the performance of a construction contract, mandatary arbitration clauses would rapidly become obsolete and superfluous’.  Synnott J. dismissed argument raising the potential for contradictory decisions and held G to its bargain. [informal translation] ‘In any event, the Court is of the opinion that it would be contrary to the interests of justice and its fair administration to deprive the parties of a process for dispute resolution, namely by way of arbitration, which they themselves chose and to which they freely agreed to submit by way of contract’.

Continue reading “Québec – fair administration of justice of complex construction dispute requires some litigants to arbitrate -#473”

In Perreault v. Groupe Jonathan Benoît, 2021 QCCS 1350, Mr. Justice Peter Kalichman dismissed an application to annul an award based on alleged breaches of public order. Kalichman J. held that [informal translation] ‘[t]o annul an award or to oppose its homologation on the ground that it is contrary to fundamental principles of public order, a party must do more than simply demonstrate that the arbitrator committed a mistake in the application of the rules of public order. It must demonstrate that the result itself is incompatible with public order’.  Kalichman J. relied on Desputeaux v. Éditions Chouette (1987) inc., 2003 SCC 17 (CanLII), [2003] 1 SCR 178 to underline that (i) the courts’ consideration of an alleged breach of public order focused on the outcome of the award and (ii) an error in interpreting a mandatory statutory provision would not provide a basis for annulling the award as a violation of public order, unless the outcome of the arbitration was in conflict with the relevant fundamental principles of public order.

Continue reading “Québec – breach of public order involves outcome of award, not mistake in application of rules of public order – #466”

In Mehmedov v. Balabanian, 2021 QCCS 733, Madam Justice Guylène Beaugé quashed a seizure in execution made by arbitral parties purporting to enforce an arbitrator’s interim measures order requiring the other arbitral party to advance funds for his share of arbitration fees.  Beaugé J. held that the seizure as irregular and premature.  Though the Superior Court had homologated the arbitrator’s interim measures, the arbitral parties lacked a juridical interest as judgment creditor sufficient to justify a seizure executing on that court decision. Beaugé J. acknowledged the seizing parties’ economic interest in having the arbitrator’s fees advanced but determined that their interest did not qualify as a juridical interest.  The arbitral parties were not judgment creditors and, having omitted to advance those fees on behalf of the other defaulting arbitral party, were not subrogated for the arbitrator. 

The background to the parties’ dispute and procedural history in their arbitration, including defined terms, appears in more detail in the preceding Arbitration Matters note “Québec – court homologates arbitrator’s provisional measures ordering respondent to pay share of arbitration costs – #456”. 

Continue reading “Québec – claimants lack juridical interest to execute on provisional measure ordering respondent to advance arbitration costs – #457”

In Mehmedov v. Balababian, 2020 QCCS 3254, Mr. Justice Jeffrey Edwards homologated three (3) provisional measures ordered by an arbitrator requiring an arbitral party to pay that party’s (i) 80% proportionate share of school and municipal taxes, (ii) 80% of financial audit related to the disputed administration of the building held in co-ownership by the parties and (iii) 50% share of the arbitration costs.  Based on the record presented to him, the arbitrator had determined that such measures were necessary in order to safeguard rights in issue and reserved the parties right to revisit them once the merits had been determined. 

For a related decision involving a successful application to quash a seizure executed by the other arbitral parties to enforce payment of the 50% arbitration costs, see the Arbitration Matters note “Québec – claimants lack juridical interest to execute on provisional measure ordering respondent to advance arbitration costs – #457” regarding Mehmedov v. Balabanian, 2021 QCCS 733.

Continue reading “Québec – court homologates arbitrator’s provisional measures ordering respondent to pay share of arbitration costs – #456”

In Syndicat des employés du CISSSMO, section locale 3247 v. Murray, 2021 QCCS 459, Madam Justice Suzanne Courchesne annulled an award rendered by a physician arbitrator appointed by a third party pursuant to a process set out in the parties’ agreement to arbitrate but who, despite demands to recuse himself, issued a decision on the merits of the dispute without addressing the demands for recusal. The parties’ agreement omitted any express mention of the physician arbitrator’s authority to recuse himself or any grant of such authority to another.  Courchesne J. observed that the physician arbitrator, performing a quasi-judicial function, was subject to the impartiality and independence obligation and rules of procedural fairness and had both the jurisdiction and obligation to decide first on the grounds of his recusal.  Courchesne J. held that the parties ought to have instructed the physician arbitrator on the rules governing a motion for recusal but did not. Despite that omission, by refusing to decide on the motion for recusal or by implicitly dismissing it without reasons, the physician arbitrator omitted to exercise his jurisdiction and breached the rules of procedural fairness.  Courchesne J. annulled the award and ordered the parties to resume the arbitration before another physician arbitrator.

Continue reading “Québec – arbitrator has jurisdiction/obligation to decide recusal even absent express grant of authority to do so – #451”

In Bouchard v. Gouin, 2021 QCCS 781, Mr. Justice Jocelyn Pilote dismissed a defendant’s jurisdictional challenge to the Superior Court’s authority to issue injunctive relief in light of a valid agreement to arbitrate.  Acknowledging that neither party challenged the validity of the agreement to arbitrate and mindful of the deference owed by courts to the jurisdiction given to an arbitrator by parties, Pilote J. held that defendant’s interpretation of article 623 Code of Civil Procedure, CQLR c C-25.01, which confirmed a court’s authority to issue provisional measures before or during arbitration, would remove all substance from that article.  In the dispute before him, the parties had not yet named an arbitrator and respondent’s delay in which to propose an arbitrator had not yet expired.

Continue reading “Québec – challenge rejected to court’s authority to issue injunctive relief before arbitrator appointed – #449”

In litigation instituted by A against S/B, with M forced to intervene by B, Mr. Justice Jean-François Michaud in ArcelorMittal Exploitation minière Canada v. SNC-Lavalin Inc., 2021 QCCS 202 refused to grant S/B’s and M’s applications to dismiss which invoked abuse of procedure based on a prior arbitral award between A and M.  A chose not to involve M in the litigation but B had forced M’s intervention as part of B’s defense against A. Michaud J. held that (i) S/B were not parties in the arbitration and the arbitration did not address their liability and (ii) M could not object to the expense of defending in a second, separate instance in which B had forced M’s intervention. Recognizing that M had spent millions to successfully contest similar claims by A in the arbitration, Michaud J. concluded that M’s additional expense stemmed from the arbitration clause it had accepted.  Despite a successful result for M in the arbitration with A, Michaud J. observed that the trial judge might draw conclusions similar to or different from the arbitration and eliminating the risks of contradictory judgments was impossible. 

Continue reading “Québec – no abuse of procedure if losing arbitral party obliges non-parties to litigate their liability for similar claims – #440”

Despite the brevity of her decision, Madam Justice Carole Therrien in Dupont v. Langlois, 2021 QCCS 136 underscored a key distinction between the court’s oversight triggered by parties litigating before the court despite a binding agreements to arbitrate.  Though Plaintiff voluntarily discontinued his action following Defendant’s application to decline jurisdiction, Therrien J. held that Defendant’s claim for abuse of procedure pursuant to articles 51-56 of the Code of Civil Procedure, CQLR c C-25.0 was made before Plaintiff’s discontinuance and in the context of management of the litigation.  Acknowledging that the action stemmed from a dispute involving the contract, Therrien J. determined that the alleged procedural abuse by Plaintiff took place in the context of a judicial procedure before the Superior Court and it is the court which had the authority to sanction abuse, if need be.

Continue reading “Québec – alleged abuse of procedure in court prior to referral to arbitration is subject to court sanction not arbitration – #438”

In brief reasons, Mr. Justice Éric Couture in Diamond Diamond Real Estate Inc. v. Londono Realty Group Inc., 2021 QCCQ 176 dismissed an action for payment of commissions, holding that the litigants’ membership in a real estate association included bylaws submitting their dispute to mandatory arbitration.  The dispute resolution bylaw also stipulated that disputes subject to arbitration under the membership bylaw must be submitted within one (1) year from the date of the transaction.  As the action concerned an October 2016 transaction, Couture J. dismissed the action rather than stay it or refer the parties to arbitration. The facts serve as a sample situation in which parties are bound to arbitrate (i) by virtue of their membership in an association rather than having negotiated a contract and included an agreement to arbitrate and (ii) within a time frame shorter than applicable prescription/limitation periods.

Continue reading “Québec – litigants’ membership in professional association binds them to arbitrate disputes – #436”

In Bergeron v. 2528-1023 Québec inc., 2021 QCCS 539, Mr. Justice Babak Barin underlined (i) the importance of alternative dispute resolution and (ii) the principles applicable to submission/attornment to the court’s jurisdiction.  Barin J. first drew attention to the primacy given by Code of Civil Procedure, CQLR c C-25.01 to alternative dispute resolution and then commented on the general principles and particular factual elements related to parties attorning to a court’s jurisdiction. Barin J. reconsidered earlier case law which issued before recent court rules updates which now oblige litigants, at the onset of the litigation, to identify their intention to raise declinatory exceptions. His comments suggest that earlier case law must be re-read in light of newer rules requiring parties to commit earlier and clearly to their procedural decisions and to abide by their “judicial contract”. Barin J.’s comments on attornment may assist litigants to determine whether a party has or has not waived the benefit of their agreement to arbitrate. 

Continue reading “Québec – precedents on attornment re-read in light of newer rules requiring compliance to judicial contract – #434”