Québec – request for conciliation under statutory dispute resolution process qualifies as demand for arbitration – #507

In Therrien Couture Joli-Coeur v. Chouinard, 2021 QCCQ 4944, Mr. Justice Enrico Forlini dismissed Client’s challenges against homologation of an award which issued in favour of the Law Firm, determining that Client’s request for conciliation had initiated arbitration of Law Firm’s accounts.  Though Client and Law Firm had no written agreement to arbitrate, the dispute resolution process set out in the Regulation respecting the conciliation and arbitration procedure for the accounts of advocates, CQLR c B-1, r 17 qualified as a consensual process and Client’s conciliation request effectively initiated the arbitration.  In regard to the alleged breach of natural justice by Law Firm’s delivery of documents the day of the hearing, Forlini J. held that Client could not object to a procedure which had been determined by the Council well in advance of the hearing and in regard to which Client did not object or request an adjournment of the hearing.

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Québec – addition of potential claim to existing court action deemed abusive when arbitration of claim not completed – #501

In Raymond Chabot Administrateur provisoire Inc. du plan le garantie La Garantie Abritat Inc. v. 7053428 Canada Inc., 2021 QCCS 1039, Madam Justice Dominique Poulin qualified as abusive an attempt by Plaintiff to add a second claim to its existing court proceeding despite that claim still being subject to a pending arbitration. Plaintiff argued that its approach favoured efficiency by merely adding a second claim which it argued was related to a first claim already confirmed by prior arbitration and the object of the existing court proceeding.  Poulin J. held that Plaintiff could not add a claim which remained uncertain and indeterminate and which Plaintiff had not yet paid, thereby lacking legal standing.  Poulin J. reminded Plaintiff that the notice of arbitration served to interrupt prescription (limitation).  Despite Defendants’ claim for damages for the abuse of procedure, Poulin J. ordered no damages, observing that Plaintiff’s approach stemmed from either a misunderstanding of its rights or a motivation to facilitate the process and not to abuse it.

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Québec – residence of arbitrator in same region as parties not a criteria for deciding neutrality – #499

In Madysta Constructions Ltée v. Maskicom Inc., 2021 QCCS 2101, Mr. Justice Jocelyn Geoffroy dismissed as unfounded and subjective the concern voiced by defendant that plaintiff’s proposed arbitrator resided in the same region of the province as the parties and the municipalities involved in the dispute.  [informal translation] ‘If such a criteria regarding the residence of an arbitrator or a judge was retained, virtually no arbitrator or judge could sit in a judicial district in which they lived because it is generally in that same district in which the parties they will hear also reside’.  Geoffroy J. also dismissed defendant’s concern that plaintiff’s counsel had alone contacted the arbitrator prior to proposing him.  Geoffroy J. reproduced the brief response from the arbitrator which confirmed his acceptance of the nomination and the absence of conflict.

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Québec – defendants must pay mediation fees when they refuse to participate in mediation court ordered at their request – #495

In Zen & Sens Inc. v. Entreprises Érick Boucher Inc., 2021 QCCQ 4224, Mr. Justice Pierre Cliche ordered Defendants to pay their and Plaintiff’s costs for a mediation in which Cliche J., upon application by Defendants, ordered the parties to engage but in which Defendants then refused to participate.  Though nominal, the mediator’s fees had been paid by Plaintiff due to Defendants’ refusal to participate and Plaintiff added those fees to its claims in its initial action which Cliche J. had suspended pending the mediation. Cliche J. did not homologate a costs award which had issued in an arbitration but ordered repayment as a distinct head of recovery in the litigation which he had suspended.

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Québec – court denies leave to challenge interim trial level decisions involving role of arbitration award in litigation – #488

In SNC-Lavalin inc. v. Arcelormittal Exploitation minière Canada, 2021 QCCA 849, Madam Justice Christine Baudouin dismissed two (2) applications for leave to appeal interim decisions involving the role an arbitration award played in court.  That award involved some, but not all, of the parties to litigation initiated by A. S and B as non-parties to that award between A and M argued that the judge had unduly limited the scope of the award. Baudouin J.A. disagreed, holding that the opposite prevailed. Subject to what the evidence might eventually establish and limiting her comments to her view of the record, Baudouin J.A. remarked that (i) S and B gave the award a scope which exceeded its conclusions and (ii) the issue addressed in the award was not A’s sole source of recourse against S and B.  Regarding M’s application as party to the award and involved in the court litigation by way of B’s recursory claim against M, Baudouin J.A. did not accept that B’s recursory action was a collateral attack on that award and noted that the inconveniences inherent in a trial do not qualify for leave under article 31 of Code of Civil Procedure, CQLR c C-25.01.

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Québec – liquidator of preferred shareholders’ succession granted leave to intervene in common shareholder’s motion to nominate a mediator – #484

Upon application by the liquidator of G’s succession, Madam Justice Aline U.K. Quach in Charron v. Charron, 2021 QCCS 2043 granted the liquidator leave to intervene in shareholder A’s motion to nominate a mediator regarding a dispute he had with shareholder C.  Though the dispute appeared to only involve A and C who held common shares, Quach J. held that their dispute might impact the value of G’s preferred shares administered by the liquidator. As such, Quach J. determined that the liquidator had a sufficient, probable, direct and personal interest in the matter in dispute.  The shareholders’ agreement contained a stepped dispute resolution process, involving mediation as a first step followed, if need be, by arbitration.

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