CCAC’s Application to Intervene as a Friend of Court in Private Dispute Rejected for No Additional Useful Perspective could Assist the Court  – #72

When a third person wishes to intervene as a friend of the court as per Art. 187 C.c.p. in a private dispute, the third person is required to convince the Court that it will offer an additional and useful perspective on the issues (particularly difficult and new) at stake that the parties are not able to submit themselves. In Mullen c. Nakisa inc., 2022 QCCS 1164, the Canadian Commercial Arbitration Center (“CCAC”)’s application to intervene as a friend of court is rejected by Mr. Justice Stéphane Lacoste, j.c.s. in or around April 2022 as in the Court’s view, CCAC’s observations on the international commercial arbitration rules and the operation of commercial arbitration in Québec could be the mere repetition of Nakisa’s positions in the hope of amplifying their importance.  

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The Québec Court of Appeal Emphasizes that Allowing Late-Raised Legal Argument during the Trial Does Not Conform with the Cooperation and Transparency Requirements Stipulated in Art. 99 C.C.P. – #68

This post aims to summarize part of the analysis of the Québec Court of Appeal’s recent decision on KPH 11 v. Richardson Wealth Limited (Richardson GMP Limited) 2022 QCCA 148.

Factual Background

The appellants are sophisticated investors. The Respondent is a securities firm. The individual appellants had different relationships with the Respondent. 

Robert Hirsch was a client of the Respondent, having opened a margin account to trade options in November 2011. 

Robert Hirsch is the father of the other individual appellants, Derek, Kenneth and Andrew Hirsch. 

KPH 11 L.P. is a limited partnership set up by the Hirsches family in July 2013. KPH 11 L.P. became a client of the Respondent in or around July 2013.

9155-8742 Québec inc. (“9155”) is a general partner of KPH 11 L.P.  Andrew Hirsch signed his name on the New Client Application Form on behalf of 9155. The Respondent believed that Andrew was a personal guarantor, and that 9155 was also a guarantor. Otherwise, he would not have accepted the Application. However, Appellants alleged that Andrew did not sign the New Client Application in his personal capacity and that 9155 was the only guarantor. 

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L’affaire Specter Aviation : L’article 3152 C.c.Q. ne vise pas exclure la procédure arbitrale et la reconnaissance de la compétence d’un tribunal doit être faite de façon claire et évidente — # 67

À la suite du jugement rendu par l’honorable Monsieur le juge Bachand qui a accordé la permission d’appeler (Specter Aviation c. Laprade2021 QCCA 183), en décembre 2021, la Cour d’appel du Québec a rendu le jugement accueillant l’appel (Specter Aviation c. Laprade, 2021 QCCA 1811). Cette décision de la Cour d’appel nous enseigne que (1) l’article 3152 C.c.Q. vise à définir les limites de la compétence internationale des autorités judiciaires du Québec, mais n’entend pas exclure le processus d’arbitrage; (2) la reconnaissance de la compétence en matière de conflit de juridictions doit être faite de façon claire et évidente, et chaque cas sera un cas d’espèce.

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Quebec Court of Appeal Confirms that Trial Judge is Right to Refer the Matter to Arbitration Because the Arbitration Clause Intended to Apply in Quebec Prevails and the Contra Proferentem Rule Does Not Apply Here – #64

While the contractual interpretation generally constitutes mixed questions of fact and law, the interpretation of a standard-form contract would be considered as a question of law when there is no meaningful factual matrix that is specific to the parties in dispute to assist the interpretation process and the interpretation would have presidential value (para. 24 of Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37). This article aims to summarize the Quebec Court of Appeal’s decision on a declamatory exception claim based on the ambiguous dispute resolution clauses in a standard-form insurance policy (9369-1426 Québec inc. (Restaurant Bâton Rouge) c. Allianz Global Risks US Insurance Company, 2021 QCCA 1594). Having studied the insurance policy in dispute and numerous Supreme Court of Canada and Quebec Court of Appeal decisions as well as doctrines on arbitration and contractual interpretation, the Quebec Court of Appeal confirms that the trial judge is right to refer the matter to arbitration and that the arbitration clause should be interpreted in a large and liberal manner (para. 13 of the Decision)

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The Arbitration Proceeding was Suspended with regard to the Non-signatories to the Arbitration Agreement Until Final Judgments on Judicial Review Applications are Rendered – #63

Some readers and friends write to me these days asking if I will continue sharing articles on the case laws. Indeed, in the past few days, although I have been reading court decisions on daily basis for work and leisure, I did not share my summary and analysis of the case laws here.

In the past few days, I moved from my previous apartment in downtown Montreal with serious construction issues (the construction noise sometimes starts at 7 a.m. since May this year) to a cozy condo with beautiful view and kind neighbours in Town of Mount Royal. In the past few days, I managed to facilitate the communications between my clients and the opposing parties in some family files so that they reach consent for the best interests of their children and move forward in their life with peace of mind; In the past few days, I managed to prepare legal proceedings for a Court of Appeal case on private international law, which I received the mandate two days before the deadline (big thanks to the teamwork); I also handled a few pre-trial examinations in French and some negotiations in English for some civil files; Besides, I have appeared in front of the Municipal Court to help the client to get his justice etc.

In November and December, I will participate in the 19th CIETAC CUP as an arbitrator again. And I am taking more trainings on arbitration organized by Barreau du Québec in the coming days. Apparently, thanks to the readers’ comments and support on my website, I would love to continue publishing more summary and analysis of the case laws here so that I could build up connections with experienced lawyers in Quebec and with jurists from different countries and jurisdictions.

This post aims to summarize the analysis of Mr. Justice Lukasz Granosik, j.c.s.  on Mullen c. Nakisa inc., 2021 QCCS 4388. It is worth to mention in the very beginning that this legal proceeding is governed by Art. 530 (2) C.C.P. i.e. an application for judicial review of a decision made by an arbitrator during a case management conference on July 30, 2021.

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The Arbitration Mechanism Created by the Regulation Aims to Ensure the Expedited Settlement of Disputes Related to Construction Defects Affecting the Newly Built Residential Buildings – #59

The arbitration mechanism created by the Regulation respecting the Guarantee Plan for new residential buildings, CQLR c B-1.1, r 8 (“Regulation”) is an administrative proceeding as it does not allow the parties renounce to it once the dispute arises. In Consortium MR Canada ltée c. Morissette, 2021 QCCS 2847, Mr. Justice Philippe Bélanger conducts the judicial review over the arbitral award from the arbitration proceeding organized according to the Regulation based on the reasonableness standard as indicated in the judgment rendered by the Supreme Court of Canada on Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. Mr. Justice Bélanger held that the Arbitrator did not commit an unreasonable error in concluding that Consortium MR Canada Ltd. (“MR”) breached its obligation of result to the buyers of the newly-built condominiums/the Beneficiaries of the Guarantee Plan.

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Quelles conditions d’ouverture à la passation de titre d’un bien immobilier par voie de déclaration judiciaire doivent être satisfaites lorsque l’initiative du recours est celle du vendeur? – #58

Dans l’arrêt De Chanteloup c. St-Laurent, 2021 QCCA 90, la Cour d’appel nous enseigne que si l’action de passation de titre est intentée par le vendeur d’un bien immobilier, ce dernier doit satisfaire, entre autres, les deux conditions d’égale importance pour la réussite du recours: 1) d’offrir un titre clair, c’est-à-dire sans charge hypothécaire et libre de toute autre charge d’ayant pas été dévoilée dans la promesse et de toute ambiguïté de titre; 2) d’obtenir l’assurance du versement du prix de vente, par exemple, le prix de vente est déjà en fiducie entre les mains du notaire. 

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The Preliminary Contract for the Sale of an Existing or Planned Residential Immovable can be Enforced by an Action for the Transfer of Title?– #57

The real estate market in Montreal and some other cities in Canada continues to power through the COVID-19 pandemic as sales in all property categories, especially houses, continue to increase. This post summarizes part of the analysis in the Quebec Court of Appeal’s decision on Ly c. Construction Sainte Gabrielle inc., 2018 QCCA 1438. It aims to analyze if or in what situations the buyer who signed a preliminary contract with the developer or builder of a residential property can request the Court to order the developer or builder to transfer the title of the property according to the preliminary contract.

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Lawyers who refer clients to other professionals or advisors should act competently, prudently and diligently in making such referrals. – #55

Factual Background

Before 2002, Mr. Thompson and his wife, Mrs. Thompson had been operating restaurant franchises in Ontario and Quebec. They have established four companies for the purpose of operating the restaurants (“Companies”). In 2002, they sold all of their restaurant franchises but one. With that one exception, the Companies remained owners of the real estate only.

In 2003, Mr. Thompson passed away. Mr. Thompson left two wills, in which he created three trusts for his grandchildren and one trust (“Trust”) for most of his assets, including his shares in the Companies. The wills named Mrs. Thompson as the income beneficiary of the Trust until her death. The wills also named Mrs. Thompson, Mr. Gemmill (Mr. Thompson’s lawyer in Ontario) and Mr. Miller (brother-in-law of Mr. Thompson) as the trustees and executors under the wills. The capital of the Trust was to be distributed to the children of the couple after Mrs. Thompson’s death. The purpose of this arrangement was to provide Mrs. Thompson with financial security while preserving the capital for the children.

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Leave to Appeal Refused When the Arbitral Tribunal Empowered by ICC Arbitration Rules Bars Late-Raised Legal Argument for Procedural Fairness – #53

This post aims to summarize part of the analysis in the Court of Queen’s Bench of Alberta’s decision on TR Canada Inc v Cahill Industrial Limited, 2021 ABQB 274.

Factual Background

In August 2014, TR Canada Inc. (“TR”) was awarded a contract to be the general contractor responsible for the construction of two gas turbine generators and two heat recovery steam generators, which are connecting to the Fort Hills electrical system.

TR subcontracted the physical work to Cahill Industrial Ltd. (“Cahill”). Cahill was required to perform the “balance of plant works”, which included the electro-mechanical erection works of the project. The terms of the subcontract between TR and Cahill referred the disputes between the parties to arbitration.

A number of disputes arose between TR and Cahill during the project. Those disputes related to coordination and sequencing of the various subcontractors and works, as well as changes and additions to the scope of work.

On December 4, 2018, the pleadings of the arbitration proceeding between TR and Cahill commenced.

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