2013 QCCQ 11586, 2013 QCCQ 11586

Hammerschmid c. Etcovitch 2013 QCCQ 11586 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-22-202941-137 DATE: September 18, 2013 ______________________________________________________________________ BY THE HONOURABLE SCOTT HUGHES, J.C.Q. ______________________________________________________________________ LINDA HAMMERSCHMID Plaintiff v.

DARRIN ETCOVITCH Defendant JUDGMENT ON A MOTION TO HOMOLOGATE AN ARBITRATION AWARD [ 1 ] Me Linda Hammerschmid seeks homologation of an Arbitration Award rendered on February 19, 2013, condemning Darrin Etcovitch to pay her unpaid fees in the amount of $359.79, plus interest and the additional indemnity. [ 2 ] The client, Darrin Etcovitch, contests alleging that there are errors in the Arbitration Award and that the Arbitrator was not sufficiently bilingual. [ 3 ] The Arbitration Award was rendered further to the regulation regarding the Conciliation and Arbitration Procedure for the Accounts of Advocates of the Barreau du Québec . [1] Homologation of an Arbitration Award [ 4 ]

Article 946.2 of the Code of Civil Procedure states: 946.2. The court examining a motion for homologation cannot enquire into the merits of the dispute. [ 5 ]

Article 946.4 of the Code of Civil Procedure provides the only reasons permitting this Court to refuse homologation of an Arbitration Award: 946.4.

The court cannot refuse homologation except on proof that (1) one of the parties was not qualified to enter into the arbitration agreement; (2) the arbitration agreement is invalid under the law elected by the parties or, failing any indication in that regard, under the laws of Québec; (3) the party against whom the award is invoked was not given proper notice of the appointment of an arbitrator or of the arbitration proceedings or was otherwise unable to present his case; (4) the award deals with a dispute not contemplated by or not falling within the terms of the arbitration agreement, or it contains decisions on matters beyond the scope of the agreement; or (5) the mode of appointment of arbitrators or the applicable arbitration procedure was not observed.

In the case of subparagraph 4 of the first paragraph, the only provision not homologated is the irregular provision described in that paragraph, if it can be dissociated from the rest. [ 6 ] These articles confirm that the Court's intervention must be limited in scope and construed restrictively. Did the Arbitration err?

[ 7 ] Mr. Etcovitch alleges first, that the Arbitration Award is deficient simply because his reasons to contest the bills were not retained by the Arbitrator. For instance, he continues to contest, at this stage, that the award and bill are flawed because he never signed a written mandate with Me Hammerschmid. Also, he states that the Arbitrator refers to divorce proceedings when in fact the mandate concerned a question of custody. [ 8 ] Such arguments were for the Arbitrator to decide and she did.

At any rate, even if these errors existed, they would not justify annulling the Arbitration Award. [ 9 ] This first argument is dismissed. Was the Arbitrator sufficiently bilingual? [ 10 ] Secondly, Mr. Etcovitch alleges that the Arbitrator's grasp of the English language was not satisfactory. He states that during the hearing some expressions used had to be translated for the benefit of the Arbitrator. [ 11 ] The evidence shows that the correspondence with the Syndic of the Quebec Bar was in English; the hearing was conducted in English; and the Award was rendered in English. Nonetheless, Mr.

Etcovitch argues that: Who's to say that the Award was even written by Me Trempe. [ 12 ] This argument is unfounded. [ 13 ] Mr. Etcovitch had the burden of proving his allegations. He has presented no facts: his arguments amount to innuendo. [ 14 ] Mr Etcovitch has not demonstrated by preponderance of evidence that he "was otherwise unable to present his case" (article 946.4 para. 3, CC.P.). In fact, the Arbitrator's Award contains a

summary of the testimony of each of the three (3) witnesses who appeared before her (the Defendant, the Advocate and Me Hammerschmid). None of this testimony is contested. Clearly, the Arbitrator, had to decide what evidence was preponderant. In paragraphs 32 to 43 of her decision, she explained why Mr. Ecovitch's view of the case was insufficient to justify his contestation of the bill.

Summary [ 15 ] Mr. Etcovitch's contestation amounts to an appeal and to "enquiring into the merits of the dispute" (article 946.2 C.C.P.). This is not the role of the Court.

FOR THESE REASONS, THE COURT: GRANTS Petitioner's Motion; HOMOLOGATES the Arbitration Award of Me Monik Trempe, Arbitrator signed on February 19, 2013 with regards to the amended statement of account of March 29, 2012 in the amount of $359.79 with interest at the legal rate together with the additional indemnity as and from April 12, 2012; DECLARES that the Arbitration Award is executory as if it were a judgment of this Court; THE WHOLE, with costs. __________________________________ SCOTT HUGHES, J.C.Q.

Me Samy Staltari Hammerschmid & associés For the Plaintiff Darrin Etcovitch Acting on his own behalf Date of hearing: June 28, 2013