2022 QCCQ 7185, 2022 QCCQ 7185

Teixeira c. Pantazopoulos 2022 QCCQ 7185 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL No: 500-22-273079-221 DATE: October 18, 2022 ______________________________________________________________________ BEFORE THE HONOURABLE ENRICO FORLINI, J.C.Q. ______________________________________________________________________ ARMENIA TEIXEIRA Applicant/Cross-Respondent v.

DIMITRA PANTAZOPOULOS Defendant/Cross-Applicant And ARBITRATION COUNCIL FOR THE ACCOUNTS OF ADVOCATES OF THE BARREAU DU QUÉBEC Impleaded party ______________________________________________________________________ JUDGMENT ______________________________________________________________________ Overview [ 1 ] The defendant retained the services of the applicant to represent her in divorce proceedings before the Superior Court as well before the Youth Division of the Court of Québec. [ 2 ] The applicant issued a number of invoices, yet the defendant failed to pay all of them, leaving an outstanding account of $78,186.22. [ 3 ] In May 2021, the defendant applied for conciliation of the applicant’s account before the Barreau du Québec .

The syndic of the Barreau du Québec was unable to conciliate the parties. [1] [ 4 ] On December 7, 2021, the defendant submitted an application for arbitration of the applicant’s account with the Arbitration Registry of the Barreau du Québec . [2] [ 5 ] A counsel of arbitration comprised of the three arbitrators and members of the Barreau du Québec was composed and an arbitration hearing was held on February 9, 2022. [ 6 ] On May 16, 2022, the Arbitration Council issued an arbitration award in which it upheld the applicant’s account in whole, dismissed the defendant’s request for reimbursement, and condemned the defendant to pay the applicant $78,186.22 with interest at the legal rate plus the additional indemnity (“ Arbitration Award ”). [3] [ 7 ] The applicant asks this Court to homologate the Arbitration Award. [ 8 ] The defendant counters this application with an application for the annulment of the Arbitration Award. [ 9 ] She argues that the Court should refuse to homologate the Arbitration Award and must annul it on the grounds that:

a) The applicable arbitration procedure was not observed;

b) She was not given proper notice of the appointment of an arbitrator or of the hearing date and it was impossible for her to present her case;

c) The Arbitration Award pertains to a dispute not referred to and not covered by the arbitration agreement and moreover contains a conclusion on matters beyond the scope of the arbitration agreement;

d) The Arbitration Award is contrary to public order. [4] [ 10 ] Both the applicant and the impleaded party, the Arbitration Council for the Accounts of Advocates of the Barreau du Québec , ask the Court to homologate the Arbitration Award. They argue that the applicable procedure under the rules of procedure of the Arbitration Council of the Barreau du Québec was followed, that the defendant was indeed given proper notice of the hearing and was given the opportunity to present her case, that the Arbitration Award falls squarely within the confounds of the arbitration agreement,

and finally that the Arbitration Award is not contrary to the public order. [ 11 ] They also argue that the defendant is not satisfied with the result of the Arbitration Award and that she is simply asking the Court of Québec to revisit the merits of the dispute, which they submit this Court is precluding from doing pursuant to

article 645 of the Code of Civil Procedure (CQLR, c. 25.01 (“ C.C.P. ”)). Issues in Dispute [ 12 ] The Court must decide whether the defendant has proven that grounds exist to annul the Arbitration Award. In turn, this question raises the following sub-issues: 12.1. Was the applicable arbitration procedure observed and was the defendant given proper notice of the appointment of an arbitrator or of the hearing date? 12.2. Was the defendant deprived of the right to be heard when the Arbitration Council denied her application to postpone the hearing date?

Was the defendant afforded the right to heard during the arbitration hearing? 12.3. Does the Arbitration Award pertain to a dispute referred to or covered by the arbitration agreement or does it contain a conclusion on matters beyond the scope of the agreement? 12.4. Is the Arbitration Award against public order? Analysis 1.

The legal framework: The Court’s limited grounds for refusing to homologate an arbitration award [ 13 ] Arbitration before the Arbitration Council for the accounts of advocates of the Barreau du Québec is a private and consensual dispute prevention and resolution process. [5] It is governed by the Professional Code (CQLR, c. C-26 ), the Regulation respecting the conciliation and arbitration procedure for the accounts of advocates (CQLR, c.

B-1, r.17 (the “ Regulation ”)) and the provisions set forth in Book VII, Title II of the Code of Civil Procedure . [ 14 ] Of particular relevance for the issues that the Court must adjudicate in the present proceedings are the provisions found in articles 645, 646 and 648 of the Code : 645. A party may apply to the court for the homologation of an arbitration award. As soon as it is homologated, the award acquires the force and effect of a judgment of the court. The court seized of an application for the homologation of an arbitration award cannot review the merits of the dispute.

It may stay its decision if the arbitrator has been asked to correct, supplement or interpret the award. In such a case, if the applicant so requires, the court may order a party to provide a suretyship. 646.

The court cannot refuse to homologate an arbitration award or a provisional or safeguard measure unless it is proved that (1) one of the parties did not have the capacity to enter into the arbitration agreement; (2) the arbitration agreement is invalid under the law chosen by the parties or, failing any indication in that regard, under Québec law; (3) the procedure for the appointment of an arbitrator or the applicable arbitration procedure was not observed ; (4) the party against which the award or measure is invoked was not given proper notice of the appointment of an arbitrator or of the arbitration proceedings, or it was for another reason impossible for that party to present its 645.

Une

partie peut demander au tribunal l’homologation de la sentence arbitrale. Cette sentence acquiert, dès qu’elle est homologuée, la force exécutoire se rattachant à un jugement du tribunal. Le tribunal saisi d’une demande en homologation ne peut examiner le fond du différend . Il peut surseoir à statuer s’il a été demandé à l’arbitre de rectifier, de compléter ou d’interpréter la sentence. Il peut alors ordonner à une

partie de fournir un cautionnement, si la

partie qui demande l’homologation le requiert. 646. Le tribunal ne peut refuser l’homologation d’une sentence arbitrale ou d’une mesure provisionnelle ou de sauvegarde que si l’un des cas suivants est établi: 1° une

partie n’avait pas la capacité pour conclure la convention d’arbitrage; 2° la convention d’arbitrage est invalide en vertu de la loi choisie par les parties ou, à défaut d’indication à cet égard, en vertu de la loi du Québec; 3° le mode de nomination d’un arbitre ou la procédure arbitrale applicable n’a pas été respecté; 4° la

partie contre laquelle la sentence ou la mesure est invoquée n’a pas été dûment informée de la désignation d’un arbitre ou de la procédure arbitrale , ou il lui a été impossible pour une autre raison de faire valoir ses moyens ;

case ; or (5) the award pertains to a dispute not referred to in or covered by the arbitration agreement, or contains a conclusion on matters beyond the scope of the agreement , in which case only the irregular provision is not homologated if it can be dissociated from the rest. The court cannot refuse to homologate the arbitration award on its own initiative unless it notes that the subject matter of the dispute is not one that may be settled by arbitration in Québec or that the award or measure is contrary to public order. … 648.

An arbitration award may only be challenged by way of an application for its annulment. Such an application is subject to the same rules as those governing an application for the homologation of an arbitration award, with the necessary modifications. Whether it constitutes an originating application or is presented to contest an application for homologation, the application for annulment must be presented within three months after receipt of the arbitration award or of the decision on the request for a correction, a supplemental award or an

interpretation. This is a strict time limit. The court, on request, may stay the application for annulment for the time it considers necessary to allow the arbitrator to take such action as will eliminate the grounds for annulment, even if the time prescribed for correcting, supplementing or interpreting the award has expired. 5° la sentence porte sur un différend qui n’était pas visé dans la convention d’arbitrage ou n’entrait pas dans ses prévisions, ou encore elle contient une conclusion qui en dépasse les termes , auquel cas, si celle-ci peut être dissociée des autres, elle seule n’est pas homologuée.

Le tribunal ne peut refuser d’office l’homologation que s’il constate que l’objet du différend ne peut être réglé par arbitrage au Québec ou que la sentence ou la mesure est contraire à l’ordre public . … 648. La demande d’annulation de la sentence arbitrale est le seul moyen de se pourvoir contre celle-ci et elle obéit aux mêmes règles que celles prévues en matière d’homologation de la sentence arbitrale, avec les adaptations nécessaires.

Qu’elle soit faite dans une demande introductive d’instance ou lors de la contestation d’une demande d’homologation, la demande d’annulation doit être présentée dans un délai de trois mois de la réception de la sentence arbitrale ou de la décision sur une demande de rectification, de complément ou d’interprétation de cette sentence. Ce délai est de rigueur.

Le tribunal peut, sur demande, suspendre la demande d’annulation pendant le temps qu’il juge nécessaire pour permettre à l’arbitre de prendre toute mesure susceptible d’éliminer les motifs d’annulation; il peut le faire même si le délai prévu pour rectifier, compléter ou interpréter la sentence est expiré. [Underlining added] [ 15 ] The case law and legislation set out the following principles with respect to the homologation and challenging of an arbitral award. [ 16 ] The arbitration that is the subject of the applicant’s application for homologation and the defendant’s application for annulment is a consensual arbitration procedure which exists by virtue of

section 88 of the Professional Code and the Regulation . [ 17 ] An arbitration award issued by the Arbitration Council for the accounts of advocates of the Barreau du Québec is binding on the parties. [6] [ 18 ] While the award is binding, it is not susceptible to forced execution unless it is homologated in accordance with articles 645 to 647 C.C.P. [ 19 ] Once an award is homologated, the award acquires the force and effect of a judgement of the court and is thus susceptible to forced execution. [7] [ 20 ] According to

article 648 C.C.P. , the losing party may only challenge an arbitration award by way of an application for annulment. Such an application is subject to the same rules as those governing an application for the homologation, with the necessary modifications. [ 21 ] One of the fundamental principles applicable to an application to homologate or to annul an arbitration award is the need to recognize the autonomy of arbitration. This is why the legislature adopted the rule set forth in

article 645§2 C.C.P. : The court seized of an application for the homologation or the annulment of an arbitration award cannot review the merits of the dispute. [ 22 ] This cornerstone of the homologation or annulment process is also stated at

article 528 C.C.P. [ 23 ] This rule is clear and unambiguous as the Commentaires de la ministre de la Justice expressly state:

Il est à noter que l’interdiction faite au tribunal saisi d’une demande d’homologation d’examiner le fond du différent est déjà un énoncé au

chapitre portant sur l’homologation, à l’article 528 du Code. Elle a été reprise ici afin de dissiper toute ambiguïté. [8] [ 24 ] This principle has been reaffirmed by the Court of Appeal in a number of its decisions. [9] [ 25 ] The reasons for which a court may refuse to homologate or annul an arbitration award are exhaustively set out in

article 646 C.C.P. [10] [ 26 ] The homologating court cannot review the arbitral award as if it were sitting in judicial review of the award (art. 529 C.C.P. ) nor can it examine the award as if it were sitting in appeal of the decision. [11] There is no right to seek judicial review of an arbitral award and nor is there a right to appeal it [12] . [ 27 ] The only avenue for a losing party to challenge it is through an application for annulment pursuant to

article 648 C.C.P . [ 28 ] The role of a court hearing an application to homologate or annul an arbitration award was summarized by the Court of Appeal in Conseil d’arbitrage des comptes des avocats du Barreau du Québec v. Degrandpré Chait , citing Coderre v. Coderre : [17] Dans l’arrêt Coderre c.

Coderre , la Cour résume comme suit son rôle, tout comme celui de la Cour supérieure, lorsque saisie d’une demande en annulation : [45] […] l’intervention de la Cour, comme celle de la Cour supérieure, s’inscrit dans le cadre de l’application des articles 946.4 et 947.2 C.p.c. et diffère de celle que l’on adopte dans le cadre d’une procédure de révision judiciaire .

Il ne s’agit donc pas ici de se demander si les motifs ou les dispositifs des sentences litigieuses sont appropriés, opportuns, corrects, justes, équitables ou raisonnables, l’article 946.2 C.p.c. interdisant au tribunal de l’homologation ou de l’annulation d’examiner le fond du différend. Il s’agit uniquement de s’assurer que ces sentences ou le processus qui y a mené ne comportent pas l’un ou l’autre des vices indiqués à l’article 946.4 C.p.c.

En l’occurrence, comme on le verra, sont en jeu les paragraphes 3 (violation des règles de justice naturelle) et 4 (dépassement des termes de la convention d’arbitrage) du premier alinéa de cette disposition .

Dans le premier cas, il faudra pour statuer s’intéresser au seul processus arbitral; dans le second, il faudra « faire abstraction de l’interprétation qui a mené au résultat pour se concentrer sur celui-ci » . [Footnotes omitted- underlining in the original] [ 29 ] As the Supreme Court stated in Desputeaux : [69]… It recognizes that the remedies that may be sought against arbitration awards are limited to the cases set out in arts. 946 et seq.

C.C.P. [art. 645 and ff . new C.C.P.] and that judicial review may not be used to challenge an arbitration decision or, most importantly, to review its merits…Review of the correctness of arbitration decisions jeopardizes the autonomy intended by the legislature, which cannot accommodate judicial review of a type that is equivalent in practice to a virtually full appeal on the law. [13] [ 30 ] As former justice of the Québec Court of Appeal Pierre J.

Dalphond writes in Le grand collectif – Code de procedure civile : commentaires et annotations , Volume II : [14] La jurisprudence avait d’ailleurs reconnu que l’homologation est un processus fort restreint, qui n’autorise nullement un examen du fond du dossier ou du raisonnement du tribunal arbitral (contrairement à la révision judiciaire des décisions des décideurs administratifs qui permet une vérification du caractère raisonnable de la décision attaquée et, parfois, même de son caractère exact (« correctness »)). Les seuls cas d’intervention possible sont précisés de façon exhaustive à l’article 646.

Les parties ne peuvent, par la convention d’arbitrage, attribuer au tribunal étatique la compétence de se prononcer sur le fond du différent (l'article 645 est plus restrictif que l'article 528 , ce qui est logique au vu de la Loi type et de l'article 622 al. 3). [ 31 ] To put it succinctly, a homologating court can only refuse to homologate an arbitral award on limited and narrow grounds. [ 32 ] Moreover, the evidence that parties can adduce during a hearing to homologate or annul an arbitral award is strictly limited. [ 33 ] As a general rule, a party may not adduce testimonial evidence in support of its application to annul an arbitration award and/or to challenge a motion to homologate an arbitration award. [15] [ 34 ] Likewise, other than the written evidence entered into during the arbitration proceedings and the transcript of the hearing before the arbitration panel, a court called upon to assess whether the conditions giving rise to the annulment of an arbitration award cannot as a general rule allow evidence beyond that evidence which was already adduced before the arbitration panel. [16] [ 35 ] In a nutshell, an application to annul an arbitral award or to challenge its homologation is decided on the file as it was constituted before the arbitral panel. [ 36 ] The grounds of annulment raised by the defendant will thus be analyzed and assessed in light of the aforementioned law. 2.

Was the applicable arbitration procedure observed and was the defendant given proper notice of the appointment of an arbitration or of the hearing date? [ 37 ] The defendant alleges in her application for annulment that the applicable arbitration procedure was not observed. [17] She also

alleges that she was not given proper notice of the appointment of an arbitrator or of the arbitration proceedings. [18] [ 38 ] The defendant did not elaborate on these grounds of annulment during her oral submissions. [ 39 ] The arbitration procedure before the Arbitration Council for the accounts of advocates of the Barreau du Québec is intended to be streamlined, simple and expeditious. [ 40 ]

Section 16 of the Regulation provides that the secretary or the executive director of the Barreau du Québec shall give the parties or their advocates a written notice of at least 10 days of the date, time and place of the hearing. [ 41 ]

Section 22 of the Regulation also provides that the Council of Arbitration shall, as soon as possible, hear the parties, receive their evidence or record any failure of their part; it shall observe the rules of evidence and adopt procedure it believes to be the most appropriate. [ 42 ] The arbitration hearing was held by videoconference on February 9, 2022. [ 43 ] The defendant admits that on January 18, 2022 she received a notice of hearing informing her that the arbitration hearing was set for February 9, 2022 and that all documents and exhibits had to be submitted 7 days prior to this hearing. [19] [ 44 ] Her claim that she had insufficient time to prepare for the hearing when she received the notice of hearing is also unfounded.

The Regulation calls for a written notice of hearing of at least 10 days and that the arbitration hearing be held as soon as possible. [20] [ 45 ] This procedure was followed by the Arbitration Council. In fact, the defendant was given a 19 day advance notice of the hearing.

Moreover, as it will be explained further below, the defendant filed 30 exhibits at the arbitration hearing and cross-examined opposing witnesses. [ 46 ] She had sufficient time to prepare for the hearing under the rules governing the arbitration proceedings. [ 47 ] The defendant fails to convince the Court that the applicable arbitration procedure was not observed in the present case, or that she was not given proper notice of the appointment of an arbitrator or of the date of the arbitration hearing.

The rules of procedure of the Arbitration Council were strictly followed. [ 48 ] This grounds of annulment fails. 3. Was the defendant deprived of the right to be heard when the Arbitration Council denied her application to postpone the hearing date? Was the defendant afforded the right to heard during the arbitration hearing? [ 49 ] The defendant argues that she was deprived of the right to fully prepare for the hearing and thus present all her arguments and evidence because the Arbitration Council denied her application to postpone.

She further argues that she was deprived of the opportunity to be heard because she was not given the opportunity to cross-examine all of the witnesses. [ 50 ] These two grounds call into play

article 646§1(4) C.C.P. Refusal to grant a postponement [ 51 ] The record before the Arbitration Council shows that on or before January 23, 2022, the defendant asked the Arbitration Council to postpone the February 9 hearing.

The exact grounds which she raised to justify her application to postpone are unknown. [21] [ 52 ] On January 23, 2022, the applicant refused to consent to the postponement on the grounds that her account was long overdue, that the defendant’s reason for not paying is because she had no financial means to do so, and that she had had enough time to prepare for the hearing. [22] [ 53 ] On January 27, 2022, Mtre Jeannette Gibara writes to the Arbitration Council as amicus curiae to implore the Arbitration Council to grant the defendant’s request for a postponement.

She states in her email that she has been asked by the defendant to represent her in the divorce proceedings and that the defendant needs to postpone the February 9 hearing for two reasons. Firstly, because she has recently discovered that the applicant failed to file a plea and cross-demand on the defendant’s behalf in the divorce proceedings.

Secondly, the postponement is warranted because a hearing is scheduled for February 28, 2022 in the divorce proceedings. [23] [ 54 ] On January 28, 2022, the Arbitration Council refused to grant the postponement. [24] [ 55 ] To determine whether the refusal to grant a postponement falls within art. 646§1(4) C.C.P. , the Court of Appeal states that the homologating court must solely focus on the arbitration process [25] . [ 56 ] The Arbitration Council’s decision to refuse the defendant’s request for a postponement was reached in accordance with its rules of procedure and is consistent with its mandate to insure simple and expeditious arbitration proceedings.

There is no breach of art. 646§1(4) C.C.P. [ 57 ] In addition and more importantly, this Court is not sitting in judicial review or in appeal of the Arbitration Council’s decision to refuse the defendant’s request for a postponement.

Unless the party challenging an application for homologation of an arbitral award proves that the arbitration process was not followed, the Court has no jurisdiction to determine whether the Arbitration Council’s decision to refuse the postponement is correct or reasonable. [26] [ 58 ] In any event, even if this court were to analyse the Arbitration Council’s decision to refuse the postponement as if it were sitting in appeal of the decision, it is a well-established principle of law that a judge’s decision to grant or to refuse an application for a postponement is an exercise of discretion and of case management. [27]

[ 59 ] Arbitrators and trial judges enjoy a high degree of discretion in deciding whether or not to grant a postponement, and a court sitting in judicial review or on appeal must give great deference to such decisions. [28] [ 60 ] The defendant does not convince this Court that the Arbitration Council’s discretion to refuse the postponement was exercised in a clearly and proper manner. [29] Impossible for the defendant to present her case [ 61 ] The minutes of the arbitration hearing show that the defendant filed 30 exhibits and testified at length. [30] [ 62 ] While she alleges in her motion for annulment that she was not able to cross-examine the applicant or other witnesses, this statement is not credible and is not borne out by the evidence.

During her oral submissions, she admitted that she was afforded the right to cross-examine the opposing witnesses.

This is also confirmed by the minutes of the February 9, 2022 arbitration hearing. [ 63 ] Finally, during the February 9, 2022 arbitration hearing, the defendant asked the Arbitration Council to have more time to adduce additional exhibits and to present additional arguments in writing. [31] [ 64 ] In a procedural order issued by the Arbitration Council on February 9, 2022, it allowed the defendant to file additional exhibits after the hearing and to submit arguments in writing. [32] The defendant availed herself of this opportunity. [ 65 ] Based on the forgoing, this Court concludes that the defendant was not deprived of her right to present her case.

The applicable arbitration procedure was observed. She has not proved that this Court should refuse to homologate the Arbitration Award based on a breach of 646§1(4) C.C.P. 4.

Does the Arbitration Award pertain to a dispute referred to or covered by the arbitration agreement or contain a conclusion on matters beyond the scope of the agreement? [ 66 ] In her motion for annulment, the defendant alleges that the Arbitration Award pertains to a dispute not referred to or covered by the arbitration agreement and contains a conclusion on matters beyond the scope of the agreement. [ 67 ] During oral submissions, she did not elaborate on this argument. [ 68 ] It is enough to note that the parties were bound by a contract for services through which the applicant agreed to represent the defendant in divorce proceedings before the Superior Court and proceedings before the Youth Division of the Court of Québec. [ 69 ] At some point in early 2021, the applicant ceased representing the defendant in her legal proceedings. [ 70 ] On April 13, 2021, the applicant sent the defendant an account for unpaid fees indicating that $78,571 was owed for legal services rendered to the defendant. [33] [ 71 ] In her application for arbitration of the applicant’s account, the defendant indicates that she refuses to pay the account and requests the reimbursement of $11,413 for the following reasons: [34] • The applicant did not have the adequate experience to represent her; • She failed to meet her obligations as an attorney in that she did not file a contestation and cross-demand to her husband’s divorce application; • She refused to file into evidence documents that were essential to her case. [35] [ 72 ] In a nutshell, she alleges no fees are due to the applicant because she failed to carry out her obligations in conformity with the contract entered into between the parties. [ 73 ] According to the Arbitration Award, the issues to be decided are as follows: is the applicant’s account excessive and unjustified in light of the services rendered and are the applicant’s fees fair and reasonable given the mandate and the work done on behalf of the defendant. [36] [ 74 ] Following a one day hearing in which 3 witnesses were heard, more than 42 exhibits totaling hundreds of pages were filed, and the defendant was allowed to file additional exhibits and written arguments after the hearing date, the Arbitration Council issued the Arbitration Award on May 16, 2022 in which it upholds the applicant’s account and condemns the defendant to pay to the applicant $78,186.22 with interest. [37] [ 75 ] In its reasons, the Arbitration Council addresses and ultimately disagrees with the arguments raised by the defendant, finding in essence that no evidence was presented to prove that the applicant did not carry out her responsibilities.

The Council also finds that that the applicant had the requisite experience to work on the defendant’s file, that the applicant should not be penalized for choices made by the defendant’s previous attorneys, and finally, that contrary to what was argued by the defendant, a plea and a cross-demand was not required since there was a signed protocol between the parties to the divorce proceedings. [38]

[ 76 ] In interpreting the scope of an arbitration agreement for the purposes of deciding whether the exception at art. 646 §1(5) applies, the courts must focus on the result of the arbitral award and evaluate whether there is connexity between the issue decided by the arbitrator and the dispute submitted to arbitration, keeping in mind that the notion of “connexity” must be interpreted broadly. [39] [ 77 ] In the instant case, there is a direct and strong connexity between the Arbitration Award and the dispute submitted to the Arbitration Council. [ 78 ] Moreover, none of the conclusions of the Arbitration Award are beyond the scope of the Arbitration Agreement.

To the contrary, the Award is consistent with

section 30 of the Regulation . [ 79 ] The defendant’s claim that it should be annulled on the basis of

article 646§1(5) is unfounded. [40] 5. Is the Arbitration Award against public order? [ 80 ] Finally, the defendant argues that the Arbitration Award should not be homologated because it is contrary to public order in that: 1) Because she filed a complaint against the applicant before the Office of the Syndic alleging breach of her obligations under the Code of Professional Conduct of Lawyers (CQLR, c. B-1, r. 3.1 ) and since no decision has been rendered on this complaint, it was premature for the Arbitration Council to issue the Arbitration Award.

In other words, she argues that an arbitration award issued in favor of an advocate while a complaint pertaining to the violation of his/her Code of Professional Conduct is pending is de facto contrary to public order; [41] 2) The Arbitration Award does not address some of the arguments she made before the Arbitration Council, including whether the applicant breached the Code of Professional Conduct or her contractual obligations. [ 81 ] Under

article 646§2 C.C.P. , a court cannot refuse to homologate an arbitration award unless it notes that the award is contrary to public order. [ 82 ] In Desputeaux , the Supreme Court held that in interpreting and applying the concept of public order in the context of

article 646§2 C.C.P. , courts must have regard to the legislative policy that accepts consensual arbitration as a form of dispute resolution and even seeks to promote its expansion [42] .

For that reason, in order to preserve decision-making autonomy within the arbitration system, the Supreme Court further held that it is important that courts avoid extensive application of the concept of public order. [43] [ 83 ] The Court will analyze the defendant’s claims that the award is contrary to public order in light of these teachings. [ 84 ] The defendant’s first argument with respect to public order pertains to the alleged complaint filed against the applicant with the Office of the Syndic. [ 85 ] In support of her application for annulment, the defendant filed an email dated June 29, 2022 addressed to her by the assistant syndic of the Barreau du Québec . [44] In essence, this email is an acknowledgement of receipt of her complaint filed with the Office of the Syndic against the applicant, informs her that an investigation will be carried out by the assistant syndic, and contains a

summary of the complaint. [ 86 ] Other than this email, the complaint itself filed by the defendant with the Office of the Syndic was not filed in support of the application for annulment. [ 87 ] The applicant and the Arbitration Council objected to the admissibility of this email on the grounds that it is confidential, is not relevant and postdates the Arbitration Award. [ 88 ] The Court took this objection under advisement and informed the parties that it would rule upon it in the present judgment. [ 89 ] The objection is well founded and the June 29, 2022 email (exhibit D-1) is ruled inadmissible for the following reasons. [ 90 ] Firstly, as stated in paragraphs 30 to 33 above, as a general rule an application to homologate or for annulment of an arbitral award is decided based on the record as it was before the arbitration panel.

Extrinsic evidence or evidence that postdates the arbitral award is generally not admissible at the stage of the application to homologate or to annul the award. [ 91 ] In the instant case, neither the email filed as exhibit D-1 nor the complaint allegedly filed by the defendant with the Office of the Syndic were entered into evidence before the Arbitration Council.

For this reason alone, the objection is maintained and the June 29, 2022 email (exhibit D-1) is not admissible. [ 92 ] Secondly, it is well established that disciplinary proceedings are independent and distinct from a consensual arbitration governed by

section 88 of the Professional Code and the Regulation . The object of the former is fundamentally different from the object and purpose of the latter.

The fact that the defendant filed a complaint against the applicant before the Office of the Syndic was wholly irrelevant for the purposes of the arbitration. [45] This is another reason why the June 29, 2022 email (exhibit D-1) is ruled inadmissible. [ 93 ] Finally, the email is also inadmissible because it contains allegations that are not proven and moreover, constitutes a confidential communication under the Professional Code . [46] [ 94 ] Since exhibit D-1 is not admissible as evidence, there is no evidence to substantiate the defendant’s claim that the Arbitration Award is contrary to public order because of a pending disciplinary complaint filed against the applicant. [ 95 ] Even if this Court took into account the fact that the defendant filed a complaint against the applicant, the Award itself, in its disposition of the case, does not violate statutory provisions or principles that are matters of public order [47] .

As stated above, any

allegations of breach of the Code of Professional Conduct were unproven when the arbitration panel issued the Award and moreover irrelevant for the purposes of deciding the issue that was before the panel. [ 96 ] Secondly, under the guise of the “public order” argument, the defendant submits that the Arbitration Award should be annulled because the Arbitration Council failed to consider her evidence or her arguments, notably that the applicant did not fulfill her contractual obligations. [ 97 ] In reality, what the defendant is asking this Court to do is to revisit the merits of the dispute between the parties.

As stated above, this Court is precluded from doing so given the rule set forth in articles 528 and 645 C.C.P. [ 98 ] The defendant spent the bulk of her oral submissions inviting the Court to review the evidence submitted to the Arbitration Council, including the testimonial evidence. [48] [ 99 ] Yet, the Code of Civil Procedure is explicit; the Court seized of an application for homologation or for annulment of an arbitration award cannot review the merits of the dispute, much less sit in appeal of an arbitral award or apply the rules applicable to an application for judicial review. [ 100 ] The defendant has failed to show that the Arbitration Award should be annulled because it is contrary to public order. 6.

Conclusion [ 101 ] The defendant has failed to prove any of the grounds which may justify a refusal to homologate the Arbitration Award. Given the terms of articles 645 and 646 C.C.P. , the court must homologate the Award. FOR THESE REASONS, THE COURT: [ 102 ] GRANTS the Motion for the homologation of an arbitration award; [ 103 ] HOMOLOGATES the arbitration award of the Arbitration Council for the Accounts of Advocates of the Barreau du Québec dated May 16, 2022 in file No.

ARB-002592246 as rectified by the Arbitration Council’s June 15, 2022 Decision on the request for rectification of Arbitration Award; [ 104 ] ORDERS the defendant to comply with its conclusions; [ 105 ] WITH LEGAL COSTS in favour of the Applicant; [ 106 ] DISMISSES the Motion for the annulment of an arbitration award; [ 107 ] WITH LEGAL COSTS in favour of the Applicant. __________________________________ ENRICO FORLINI, J.C.Q. Me Alexandra Madalina Gaina Arruda Teixeira inc. Applicant/Cross-Respondent’s lawyer Mrs.

Dimitra Pantazopoulos, Defendant/Cross-Applicant Unrepresented Me André-Philippe Mallette Barreau du Québec Conseil d’arbitrage de comptes des avocats du Barreau du Québec’s lawyer Date of hearing: October 3, 2022