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)

Continue reading “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”

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.

Continue reading “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”

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.

Continue reading “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”

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. 

Continue reading “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”

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.

Continue reading “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”

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.

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

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.

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

Law of Trusts in Ontario: The Creation of Joint Account Represents an Inter vivos Gift of the Right of Survivorship? – #52

This article intends to analyze how to determine the actual intention of the ageing parent who opens a joint bank account with his or her child in Ontario by summarizing the Supreme Court of Canada’s decision on Pecore v. Pecore, 2007 SCC 17. These types of joint accounts are used by many Canadians for a variety of purposes, including estate-planning and financial management. As joint bank accounts are widely used among the family members in Canada, the courts are often requested to determine the intention of the parent who opens the joint bank account in order to decide who has legal right for the balance remaining in the account at the date of death of the parent. The common question is whether the parent intended to make a gift of the beneficial interest in the accounts upon his or her death to the child who holds the joint account or whether the parent intended that this child holds the assets in the accounts in trust for the benefit of his or her estate to be distributed according to the will.

Continue reading “Law of Trusts in Ontario: The Creation of Joint Account Represents an Inter vivos Gift of the Right of Survivorship? – #52”

Family Patrimony and Trusts in Quebec: Whether Family Residence Acquired by Trust is Included in Family Patrimony – #50

This post aims at summarizing the Supreme Court of Canada’s majority reasoning on Yared c. Karam, 2019 CSC 62.

Factual Background

In October 2011, Mr. K established a trust to protect their family’s assets for the benefits of his wife, Mrs. Y and their four children. The trustees are Mr. K and his mother. The initial beneficiaries were Mrs. Y and their four children. The trust conferred extensive powers of “Appointer” on Mr. K: 1) the power to appoint new beneficiaries, including himself; 2) the power to destitute any beneficiaries; and 3) the power to decide to which beneficiaries and in what proportion the revenues and capital of the trust would be paid.

In June 2012, the trust acquired a residence with funds transferred by the spouses. Then the family moved in the new residence. Mr. K stated that the house would serve both as the family residence and as an investment protected under the trust for the benefit of his children.

Continue reading “Family Patrimony and Trusts in Quebec: Whether Family Residence Acquired by Trust is Included in Family Patrimony – #50”

L’évaluation de la perte de revenus futurs en matière de responsabilité civile : Le calcul au point d’incapacité est incompatible avec les méthodes approuvées par la jurisprudence à la suite de la trilogie de 1978 – #49

En matière de responsabilité civile, la victime a droit à des dommages-intérêts en réparation du préjudice futur lorsqu’il est certain et qu’il est susceptible d’être évalué (Art. 1607 et Art. 1611 C.c.Q.). Or, il est souvent difficile de quantifier la perte de revenus futurs subie par la victime. Il convient de rappeler que l’évaluation de la perte de revenus futurs doit être fonction de la preuve et non consister en un système basé sur une valeur définie par le pourcentage d’incapacité partielle permanente (Maison Simons inc. c. Lizotte2010 QCCA 2126). L’existence d’une incapacité partielle permanente ne se traduit pas nécessairement par une perte de capacité de gains futurs. Cet article vise à introduire brièvement l’évaluation de la perte de revenus futurs en matière de responsabilité civile. Il est important de noter que les faits suivants sont fictifs et ont été créés par l’auteur afin d’établir un contexte propice à l’analyse.

Continue reading “L’évaluation de la perte de revenus futurs en matière de responsabilité civile : Le calcul au point d’incapacité est incompatible avec les méthodes approuvées par la jurisprudence à la suite de la trilogie de 1978 – #49”