2010 QCCA 2242, 2010 QCCA 2242

Nearctic Nickel Mines Inc. c. Canadian Royalties Inc. 2010 QCCA 2242 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-021110-101 (500-17-049671-095, 500-17-045335-083 et 500-17-050435-091) MINUTES OF THE HEARING DATE: December 8, 2010 THE HONOURABLE YVES-MARIE MORISSETTE, J.A. PETITIONERS ATTORNEYS NEARCTIC NICKEL MINES INC. UNGAVA MINERALS EXPLORATION Me Patrick Girard Me Guillaume Boudreau-Simard STIKEMAN ELLIOTT RESPONDENT ATTORNEYS CANADIAN ROYALTIES INC. Me Dimitri Maniatis Me Stefan Chripounoff LANGLOIS KRONSTRÖM DESJARDINS MIS EN CAUSE ATTORNEY PROCUREUR GÉNÉRAL DU QUÉBEC CLAUDE-ARMAND SHEPPARD, ès qualité d’arbitre

MOTION FOR LEAVE TO APPEAL FROM A JUDGMENT RENDERED ON SEPTEMBER 22, 2010 BY THE HON. WILLIAM FRAIBERG FROM THE SUPERIOR COURT DISTRICT OF MONTREAL Clerk: Annick Nguyen Court Room: RC.18 HEARING 9:28 Continuation of December 7 th , 2010, hearing. 9:29 BY THE JUDGE. Judgment – See page 3.

Annick Nguyen Clerk JUDGMENT [ 1 ] Appealing from a judgment of the Superior Court [1] which ruled on a motion to homologate a final arbitration award and on opposing motions to annul the award and an interim award rendered by the same arbitrator, the petitioners before me, who were respondents on the motion to homologate in the court below, raise three grounds in their motion for leave to appeal. [ 2 ] These grounds may be summarized as follows: (

i) the arbitrator rewrote the contract and ignored some of its provisions, (ii) he failed to properly motivate his award in respect of one issue then before him, and (iii) he exceeded his jurisdiction by rendering conclusions of an injunctive nature. [ 3 ] The second ground, on its face, is without merit. [ 4 ] The first ground, involves an

interpretation of the award, and thus of the underlying contract, in light, mainly, of the judgment of this Court in the case of Coderre v. Coderre [2] . This important precedent pertains, first and foremost, to the status and powers of an amiable compositeur , an expression which currently, in the English version of

article 944.10 C.C.P. , appears in the French language, but which, tellingly enough, was translated as “mediator” in an earlier version of a corresponding codal provision [3] . [ 5 ] In essence, Coderre stands for the proposition that arbitrators and amiables compositeurs alike are bound by the last paragraph of

article 944.10 C.C.P. , and therefore by the stipulations of the contract they are called upon to interpret. Neither of them can

disregard the unambiguous language of the contract; neither of them can write on behalf of the parties, but without their consent, contractual terms which they, arbitrators or amiables compositeurs , would consider fairer or more equitable than those actually written in the contract by the parties. This precept was never in doubt in the case of arbitrators but apparently, until Coderre , it remained of uncertain application in respect of amiables compositeurs .

In other words, one can draw from Coderre the inference that the function of an amiable compositeur ought not to be analogised with, say, that of disputes arbitrators governed by sections 74 and following of the Labour Code [4] . [ 6 ] In my opinion, in this case, the trial judge’s reading and application of Coderre were generally correct: Coderre must not be understood as an invitation to reintroduce into the law of consensual arbitration the sort of insular and miscroscopic re-examination of arbitral determinations which once characterized the judicial approach to the homologation of arbitral awards.

The fact that, in the instant case, the proceedings in the Superior Court extended over ten days of hearing, strikes me as an indication that not everyone shares the same understanding of Coderre . [ 7 ] However, be that as it may, it appears to me that the instant case, as it is now framed, affords an opportunity to revisit in the context of proceedings before an arbitrator, as opposed to an amiable compositeur , the principles reviewed, very aptly if I may say so, in Coderre . [ 8 ] In coming to this conclusion, I am mindful of the fact that counsel for the petitioners conceded before me that it is not his intention to burden the record on appeal with transcripts or documentary evidence reflecting the twenty-five days of hearing before the arbitrator and ten days of hearing before the Superior Court.

He declared himself prepared to proceed on the basis of an outline of argument and of the five exhibits submitted in support of his motion for leave to appeal [5] , which will mercifully focus the issues.

Above all else, a process such as this one must never be allowed to become an appeal on the merits of an arbitral award. [ 9 ] Finally, despite the thorough and careful reasons delivered by the presiding judge in the Superior Court, I am also of the view that the third ground of appeal raises an issue which merits the consideration of a panel of this Court. [ 10 ] Since on those precise terms, the appeal can proceed expeditiously and by means of an outline of argument, I therefore grant the motion, costs to follow the outcome of the appeal, and I limit the grounds of appeal to the first and third grounds set forth in the petitioners’ motion. [ 11 ] Given that there should be case management of the appeal; [ 12 ] Given rules 48 and 49 of the Rules of the Court of Appeal in Civil Matters , which reads as follows: 48.

Abandonment. Where the appellant’s arguments and documents standing in lieu of the factum are not served and filed within the established time limit, the appeal shall be deemed to be abandoned and

article 503.1 of the Code of Civil Procedure shall apply, mutatis mutandis . 49. Foreclosure. Where the respondent’s argument and, if applicable, documents standing in lieu of the factum are not served and filed within the established time limit, the respondent shall be foreclosed from filing and

article 505 of the Code of Civil Procedure apply, mutatis mutandis.

THEREFORE, the undersigned: [ 13 ] GRANTS leave to appeal; [ 14 ] PLACES the case on the role of March 18, 2011 , for a 90 minutes hearing, at 9:30 am, in room Antonio-Lamer; [ 15 ] ORDERS the appellant, after having served a copy upon the respondent, to file in the office of the Court, no later than January 14, 2010 , four copies of a written argument not exceeding 30 pages , of the exhibits that would normally have made up schedules I, II and III of his/her/its/their factum and of his/her/its/their authorities; [ 16 ] ORDERS the respondent, after having served a copy upon the appellant, to file in the office of the Court, no later than February 11, 2010 , four copies of a written argument not exceeding 30 pages , of his/her/its/their supplementary documents and of his/her/its/their authorities; [ 17 ] ORDERS the parties to present their written arguments on 21.5 cm X 28 cm (8 ½ X 11 in.) paper, with line spacing of at least 1.5 lines (except in the case of quotations, which must be single-spaced and indented), and the computer-prepared text shall be in 12-point type, with no more than 12 characters per 2.5 cm; [ 18 ] THE WHOLE , cost to follow.

YVES-MARIE MORISSETTE, J.A.