Consensual Arbitration in Quebec
By Frédéric Bachand
Update of October 17, 2013
Hébert c Durand: The Court dismisses a motion seeking the annulment of an arbitral award invoking a breach of public order (Superior Court of Quebec, Roy J, 8 October 2013).
Update of September 19, 2013
Pelletier c. Brandt: The Court refers to arbitration an action seeking payment of a commission relating to a real estate transaction after having found that the dispute fell within the ambit of the provisions governing arbitration set out in the Conciliation and Arbitration Bylaw of the Fédération des chambres immobilières du Québec (Court of Appeal of Quebec, Morissette, Hilton and Léger JJA, 13 September, 2013).
EMS Technologies Canada Ltd c Advantech Satellite Networks Inc: While dismissing various arguments asserted to resist an application seeking the homologation of an arbitral award, the Court holds inter alia that a party who fails to seek the recusation of an arbitrator within the deadline set out in Art. 942.3 of the Code of Civil Procedure is estopped from subsequently resisting the homologation of an award on the basis of an alleged conflict of interests (Superior Court of Quebec, Lefebvre J, 5 September, 2013).
Update of July 25, 2013
Domtar Inc. c. Eacom Timber Corporation: The Court allows a declinatory exception and refers the parties to arbitration after having found that they had agreed to resort to arbitration rather than to obtain an expert opinion (Superior Court, Emery J, 18 July, 2013).
Update of July 10, 2013
Durand c Intradermal Distribution: The Court dismisses - for lack of subject-matter jurisdiction - an application seeking the annulment of an award issued by the Conseil d’arbitrage des comptes du Barreau du Québec after having held, firstly, that the interpretation and execution of a fee agreement related to class action certification proceedings do not fall within the exclusive jurisdiction of the Superior Cour and, secondly, that the Court of Quebec had jurisdiction over the matter given the amount in dispute (Superior Court of Quebec, Lebel J, 25 March, 2013)
Update of June 13, 2013
Endoceutics inc v Philippon: In a decision reiterating the importance of the principle of arbitral autonomy, the Court homologates an award containing orders directed at a third party to the arbitration agreement that the Court considers to be the alter ego of one of the signatories (Superior Court of Quebec, Blanchet J, 16 April, 2013).
Update of December 20, 2012
Seneviratne c. Mathieu: The Court refuses to homologate an arbitral award made in Quebec on the ground that the dispute had previously been resolved by an arbitral tribunal sitting in Dubai (Court of Quebec, Charron J., October 31, 2012).
Update of December 14, 2012
Gagnon c. Beaulieu: The Superior Court refuses to give effect to an ICC arbitration clause on the ground that it is not applicable to the plaintiff's action (Superior Court of Quebec, Tôth J., October 5, 2012).
Update of November 22, 2012
Bellemare c. Adlani: the Court i) dismisses a motion seeking the annulment of an interlocutory decision of the arbitrators after having concluded that said decision was not unreasonable, and ii) orders the applicant to pay damages after having found its motion to be abusive (Court of Quebec, Dortelus J., November 5, 2012).
Update of November 9, 2012
Turgeon c. Groupe Platinum Construction 2011 Inc.: In a judgment holding that a tribunal constituted pursuant to the Regulation Respecting the Guarantee Plan for New Residential Buildings is a consensual tribunal, the Court refuses to homologate an award on the ground that the tribunal had lost jurisdiction after the plaintiff had discontinued its claim (Superior Court of Quebec, Gosselin J., October 2, 2012).
Blanchet c. Lapierre: The Court repeats that it can neither review the merits on an arbitral award nor set it aside on the ground that it is unreasonable (Superior Court of Quebec, Godbout J., August 24, 2012).
Corporation Inno-Centre du Québec c. Média Opti Rythmix: a defendant may rely on a med-arb clause to seek the referral of an action to arbitration despite that no mediation has occurred between the parties (Court of Quebec, Hughes J., October 12, 2012).
Update of September 14, 2012
Blanchet c. Lapierre: the Court dismisses a motion seeking the annulment of an arbitral award after having reiterated that courts cannot review the merits of an award rendered by an arbitral tribunal (Superior Court of Quebec, Godbout J., August 24, 2012).
Société en commandite Aires de service Québec (9192-6402 Québec inc.) c. Québec (Procureur général) (Ministre des Transports): the Court dismisses a motion seeking the appointment of an arbitrator on the ground that the dispute falls outside the scope of the arbitration clause invoked by the applicant (Superior Court of Quebec, Samson J., August 16, 2012).
Update of September 6, 2012
Lehoussel c. Gagnon: the Court dismisses a motion seeking the referral of the action to arbitration on the ground that an arbitral tribunal has no power to issue injunctions (Superior Court of Quebec, Moreau J., February 13, 2012).
Immeubles régime VII inc. c. Sarbakan inc.: the Court grants a motion seeking the referral of the action to arbitration despite the respondent's argument claiming that there existed no genuine dispute between the parties (Superior Court of Quebec, Moreau J., February 10, 2012).
Update of August 23, 2012
Patti c. Hammerschmid: while reiterating, firstly, that the arbitration procedure provided for in Article 88 of the Professional Code is consensual in nature and, secondly, that courts cannot review the merits of awards made by consensual arbitral tribunals, the Court of Appeal finds that the Regulation respecting the conciliation and arbitration procedure for the accounts of advocates confers on arbitral tribunals the power to declare debtors to be solidarily liable (Court of Appeal of Quebec, Morin, Dalphond and Kasirer J.A., April 4, 2012).
Federal Corporation c. Triangle Tires Inc.: in the context of an international commercial dispute, the Court of Appeal finds that the action commenced by the plaintiff falls within the ambit of a forum selection clause inserted in a contract concluded by the parties rather than an arbitration clause inserted in another contract concluded by those same parties (Court of Appeal of Quebec, Forget, Thibault and Fournier J.A., March 7, 2012).
Brises de Lachine c. 9155-4501 Québec Inc.: the Court grants a referral motion after having found that the action commenced against the applicants related to disputes falling within the ambit of an arbitration agreement, that the fact that the applicants had taken several steps to defend the action had no impact on the motion’s admissibility, and that the motion could not be dismissed on the ground that the action was also directed at defendants who were not parties to the arbitration agreement (Superior Court of Quebec, Sansfaçon J., July 31, 2012).
Jefagro Technologies inc. c. Vetagro, s.p.a.: in a case relating to an international commercial dispute, the Court finds that it has no jurisdiction to issue a provisional injunction in support of an arbitration seated in a foreign jurisdiction (Superior Court of Quebec, Sansfaçon J., July 3, 2012).
Marquis c. Patel: the Court dismisses an application seeking the annulment of an arbitral award rendered by a council of arbitration of an account of the Barreau du Québec after having found that the latter had not exceeding its jurisdiction (Superior Court of Quebec, Grenier J., June 6, 2012).
Section locale 145 du Syndicat canadien des communications, de l’énergie et du papier, (SCEP) c. Sylvestre: the Court dismisses an application seeking the annulment of an arbitral award after having found that the arbitrator had neither exceeded his jurisdiction nor acted in a manner giving rise to a reasonable apprehension of bias (Superior Court of Quebec, Cullen J., April 10, 2012).
9101-0983 Québec inc. c. 9051-4076 Québec inc.: the Court homologates an award resolving a dispute between shareholders after having found, firstly, that it had no power to review either the merits or the reasonableness of the interpretation given by the arbitrators to the contractual provisions in dispute and, secondly, that the orders of specific performance issued by the arbitrators were not injunctive in nature (Superior Court of Quebec (Superior Court of Quebec, Gascon J., February 27, 2012).
McGill University c. Giroux: because it requires the ex-employee to bear half of the arbitration costs, the consensual arbitration process set out in McGill University’s Dispute Resolution Policy cannot prevail over the recourse to the Commission des normes du travail provided for in article 124 of An Act Respecting Labour Standards (Superior Court of Quebec, Mayer J., February 22, 2012).
Béton Dallaire ltée c. Gérard Perron et Fils inc.: the Court dismisses an application seeking the annulment of an arbitral award resolving a dispute arising out of a commercial lease after having recalled that courts do not have the power to review the merits of arbitral awards (Superior Court of Quebec, Caron J., February 20, 2012).
Turenne c. Carignan: a party who fails to seek the annulment of an arbitral award within the mandatory time limit of three months provided for in article 947.4 of the Code of Civil Procedure cannot subsequently invoke article 946.4 to resist the homologation of that same award (Court of Quebec, Landry J., March 28, 2012).
Update of March 7, 2012
Nearctic Nickel Mines Inc. c. Canadian Royalties Inc.: in an important decision which is favourable to considering transnational sources in order to interpret Title 1 of Book VII of the C.C.P. consistently with the Model Law, the Court of Appeal: i) clearly states that an arbitral tribunal may make orders of specific performance that do not amount to injunctions; ii) does not take a clear stance on whether arbitral tribunals may issue injunctions; iii) rules that an arbitral tribunal may grant provisional measures even where the parties’ agreement is silent on the issue; iv) suggests that an arbitral award may be annulled if the tribunal deliberately ignored the provisions of the contract, interpreted such provisions in an unreasonable manner or failed to follow the rules governing the interpretation of contracts (Court of Appeal of Quebec, Dufresne, Léger and Wagner J.A., February 29, 2012).
Update of February 21, 2012
Télus Mobilité c. Comtois: asked to refer an action to arbitration on the basis of an arbitration clause found in contracts of adhesion and containing a no-class action stipulation, the Court gives effect to the clause after having found: i) that a party is not required to file a notice of arbitration in order to be in a position to seek the referral of an action to arbitration; ii) that a court cannot refuse to refer the parties to arbitration by relying on the principle of proportionality set out in Art. 4.2 of the Code of Civil Procedure; and iii) that it will be for the arbitral tribunal to determine whether the arbitration clause is abusive (Court of Appeal of Quebec, Dalphond, Kasirer and Gagnon J.A., January 27, 2012).
Construction Réal Landry inc. c. Rae: an award rendered by a tribunal constituted pursuant to the Regulation Respecting the Guarantee Plan for New Residential Buildings may be set aside if it contains an unreasonable error within the meaning of the Dunsmuir case (Court of Appeal of Quebec, Morissette, Giroux and Gagnon J.A., October 7, 2011).
Elliott c. Forecam Golf Ltd.: arbitration agreements must be interpreted broadly, and in situations of ambiguity courts may refer to the general rules of contract interpretation; the Court also finds that the doctrine of forum non conveniens cannot be invoked to support an argument that the arbitration ought to take place in Quebec instead of Ontario (Court of Appeal of Quebec, Thibault, Rochette and Kasirer J.A.., June 2, 2011).
Service Bérubé ltée c. General Motors du Canada ltée: after having recalled, in an obiter dictum, that a consensual arbitral tribunal does not have the power to order injunctions and that all orders of specific performance are not necessarily injunctive in nature, the Court of Appeal finds that the parties ought to be referred to arbitration to allow an arbitral tribunal to rule on the plaintiff’s claim that the defendant breached the contract (Court of Appeal of Quebec, Pelletier, Rochon and Godbout J.A., March 25, 2011).
Aéroports de Montréal c. Groupe Axor inc.: relying notably on the Court of Appeal’s decision in the Air France case, the Court finds that by agreeing to the application of the Canadian Commercial Arbitration Centre’s arbitration rules, the parties had waived Article 943.1 of the Code of Civil Procedure (Court of Appeal of Quebec, Chamberland, Morissette and Kasirer J.A., January 10, 2011).
Université de Sherbrooke c. Patenaude: The Court refuses to order an interim injunction in relation to a dispute pending before an arbitral tribunal (Court of Appeal of Quebec, Doyon, Bich, Vezina J.A., December 16, 2010).
Logistec Stevedoring Inc. c. Valport Maritime Services Inc.: the Court grants an appeal from the Superior Court’s decision of July 8, 2010 on the ground that the fact that the arbitral tribunal may not have the power to order the liquidation of a company does not prevent it from ruling on purely contractual claims that arise before issues relating to the liquidation (Court of Appeal of Quebec, Rochon, Morissette and Giroux J.A., October 8, 2010).
Desrosiers c. Conseil d'arbitrage des comptes des avocats du Barreau du Québec: the Court finds that awards rendered by arbitral tribunals asked to review accounts of advocates can only be set aside for one of the reasons set out in Art. 946.4 of the Code of Civil Procedure; in this case, the Court finds that the tribunal had not improperly analysed the evidence and that it complied with the rules of natural justice (Superior Court of Quebec, Vadboncoeur J., January 13, 2012).
Fédération canadienne d'escrime c. Pound: the Court dismisses a motion seeking the annulment of an arbitration award after having found that a tribunal operating under the aegis of the Sport Dispute Resolution Centre of Canada is a consensual arbitral tribunal (Superior Court of Quebec, de Grandpré J., October 25, 2011).
Auger c. Auger Groupe conseil inc.: invoking the separability of an arbitration clause from the contract in which it is inserted, the Court finds that the party requesting the referral of the action to arbitration had not waived the clause; the Court also finds that arbitration agreements must be interpreted broadly (Superior Court of Quebec, Legris J., October 3, 2011).
Superior Energy Management, a Division of Superior Plus Inc. c. Manson Insulation Inc.: in a thoroughly reasoned decision that is very favourable to the autonomy of arbitration, the Court dismisses a motion seeking the annulment of an arbitration award after having found: i) that a court seized of such a motion cannot examine the merits of the dispute; ii) that the grounds of annulment set out in Art. 946.4 of the Code of Civil Procedure must be interpreted strictly; iii) that the burden is on the party seeking the annulment of the awards; iv) that administrative law cases relating to natural justice are not necessarily applicable in consensual arbitration cases; v) that an arbitral tribunal is not required to address in its award each item of evidence; vi) that an arbitral tribunal is not required to address in its award all arguments made by the parties; and vii) that an arbitral tribunal—being in full control of legal issues—may decide the case on the basis of a different legal reasoning than those invoked by the parties, provided that such reasoning finds support in the evidence in the record (Superior Cour of Quebec, Schrager J., September 15, 2011).
Halperin c. Transit Publishing Inc.: the Court homologates an arbitration award after having recalled that it does not have the power to review the merits of the dispute and that an arbitration award is presumed to be valid (Superior Court of Quebec, Mayrand J., September 8, 2011).
Transport Henri Dion inc. c. Corporation McKesson Canada: the Court homologates an arbitral award after having, firstly, dismissed an argument to the effect that the tribunal had exceeded its jurisdiction and, secondly, recalled that arbitration agreements must be interpreted broadly (Superior Court of Quebec, Castonguay J., September 1, 2011).
Triangle Tires Inc. c. Federal Corporation: the Court refuses to refer the action to arbitration on the ground that the dispute does not fall within the ambit of the arbitration agreement at issue (Superior Court of Quebec, Dugré J., August 12, 2011).
Italsav, s.r.l. c. Dynafund Ltd.: asked to enjoin a party to an international commercial arbitration from pursuing foreign court proceedings seeking a seizure before judgment, the Court finds that the fact that the parties agreed that the seat of arbitration would be Montreal did not prevent them from seeking provisional or conservatory measures in a foreign jurisdiction (Superior Court of Quebec, Payette J., July 20, 2011).
Canadian National Railway Company c. Software AG, Inc. (Software AG Americas Inc.): in a decision dismissing a motion seeking the referral of the action to arbitration, the Court finds that whether such motion ought to be granted is a question governed by Quebec law despite that the contract contains an Ontario choice-of-law clause and states that the arbitration is to be governed by Ontario law; furthermore, the Court elects to dispose in a final manner of some objections to arbitral jurisdiction but decides that other objections ought to be handled in the first instance by the arbitral tribunal (Superior Court of Quebec, Lacoursière J., July 12, 2011).
Miron c. 9195-6722 Québec inc.: seized of motion in evocation (Art. 846 of the Code of Civil Procedure) seeking the annulment of an award rendered by a consensual arbitral tribunal—a motion deemed improper by the respondent on the ground that judicial intervention relating to such awards is governed by Title 1 of Book VII of the Code of Civil Procedure—, the Court agrees to review the award on the basis of both Articles 846 and 947 of the Code, and in the end dismisses the motion (Superior Court of Québec, Hébert J., June 9, 2011).
Corporation de services des ingénieurs du Québec c. Compagnie d'assurance vie Manufacturers: the Court refuses to refer the parties to arbitration on the ground that the arbitration agreement invoked by the petitioner is not applicable to the dispute, and also because some of the defendants to the action are not parties to the arbitration agreement (Superior Court of Quebec, Grenier J., May 24, 2011).
Petrifond Fondation Compagnie ltée c. Groupe Aecon Québec ltée: the Court dismisses a motion seeking the appointment of an arbitrator after having concluded that the arbitration clause invoked by the plaintiff was superseded by another contractual provision granting courts jurisdiction over the dispute (Superior Court of Quebec, Auclair J., May 24, 2011).
ESI Canada inc. c. SSQ Société d'assurance-vie inc.: relying on the Court of Appeal’s decision in Bombardier Transportation c. SMC Pneumatiques (Uk) Ltd., the Court refers the parties to arbitration after having found that it is for the arbitral tribunal to decide whether the dispute, which relates to a contract containing an arbitration clause, was settled amicably as alleged by one party (Superior Court of Quebec, Parent J., April 8, 2011).
SNC-Lavalin International Inc. c. Royal Bank of Canada: the Court dismisses a motion seeking a provisional injunction in relation to a pending international commercial arbitration (Superior Court of Québec, Lacoursière J., March 29, 2011).
Basque c. Basque: in a decision dismissing a motion seeking the annulment of an arbitral award, the Court recalls that a consensual arbitral tribunal is not subject to the Superior Court’s superintending and reforming power (Superior Court of Quebec, Lachance J., March 11, 2011).
Société en commandite Gazmont (Proposition de): the Court dismisses a motion seeking an interlocutory injunction after having recalled that the provisional measures alluded to in Art. 940.4 of the Code of Civil Procedure are those set out in Title 1 of Book V of that same Code (Superior Court of Québec, Gascon J., February 10, 2011).
Tremblay (Succession de) c. Sitec, s.e.c.: the Court refers the action to arbitration after having found that a dispute arising out of a contract relating to the acquisition of mining claims is arbitrable (Superior Court of Québec, Émond J., January 18, 2011).
9056-1457 Québec inc. c. Chartier: tribunals constituted pursuant to the Regulation Respecting the Guarantee Plan for New Residential Buildings are subject to the Superior Court’s superintending and reforming power, and their awards can thus only be set aside on the basis of an unreasonable error (Superior Court of Quebec, Lebel J., October 4, 2010).
Kouzminski c. Smirnova: the Court dismisses a motion seeking the annulment of an arbitration award rendered by a tribunal constituted pursuant to the rules of the Greater Montreal Real Estate Board (Court of Quebec, Comeau J., February 2, 2012).
Paradis, Montpetit, Beauchamp, s.e.n.c. c. Brayley: asked to homologate an arbitral award, the Court finds that the arbitral tribunal did not exceed its jurisdiction by ordering one of the parties to reimburse to the other party legal costs it incurred in the context of a dispute regarding arbitral jurisdiction (Court of Québec, Sheehan J., May 24, 2011).
TIG Assembly Inc. c. Multi-assemblage inc.: relying on the Court of Appeal’s decision in Bombardier Transportation c. SMC Pneumatiques (Uk) Ltd., the Court refers the parties to arbitration after having found that it is for the arbitral tribunal to decide whether the dispute, which relates to a contract containing an arbitration clause, was settled amicably as alleged by one party (Court of Quebec, Breault J., March 21, 2011).
Update of February 11, 2011
Joli-Coeur c. Joli-Coeur Lacasse Avocats, s.e.n.c.r.l.: while agreeing to issue an interim injunction in support of an ongoing arbitration, the Court of Appeal holds that the provisional measures alluded to in article 940.4 of the Code of Civil Procedure include not only the measures provided for in Title 1 of Book V (judicial sequestration, seizures before judgment, injunctions), but also safeguard orders that can be ordered pursuant to article 46 (Court of Appeal of Québec, Dalphond, Duval Hesler and Gagnon JJ., February 4, 2011).
9103-5410 Québec inc. c. 9016-3700 Québec inc.: relying notably on the Court of Appeal's decision in the Concordia Project Management Ltd. c. Décarel Inc. [.pdf] case while holding that an arbitration agreement may--depending on the circumstances--apply to third parties, the Court finds that defendants who are not parties to an arbitration clause, but who are related to a co-defendant who is, may also obtain the referral to arbitration of the actions commenced against them (Court of Québec, Marchand J., November 29, 2010).
Update of February 3, 2011
Conseil d'arbitrage des comptes des avocats du Barreau du Québec c. Marquis: in an important decision on the notion of arbitration, the Court of Appeal rules that the arbitration of accounts provided for in article 88 of the Professional Code is a consenual arbitration, not a statutory arbitration (Court of Appeal of Quebec, Pelletier, Dalphond and Morissette JJ., January 27, 2011).
PNR Coyle inc. c. Jean Fournier inc.: in relation to a multi-party dispute, the Court rules refuses to give effect to an arbitration agreement invoked by the third party against the defendant, on the grounds that the agreement was not binding on the plaintiff and that the third party's presence was necessary within the meaning of article 216 of the Code of Civil Procedure (Superior Court of Quebec, Goodwin J., June 21, 2010).
© Frédéric Bachand