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9302-7654 Québec inc. (Team Productions) c. Bieber

2017 QCCS 1100

JD3065

 
SUPERIOR COURT

 

« Civil Division »

 

 

CANADA

 

PROVINCE OF QUEBEC

 

DISTRICT OF MONTREAL

 

 

 

N° :

500-17-093870-163

 

 

 

 

 

 

DATE :

March 24, 2017

 

______________________________________________________________________

 

 

 

PRESIDING:                         THE HONOURABLE DANIEL DUMAIS, s.c.j.

 

______________________________________________________________________

 

 

 

 

 

9302-7654 QUEBEC INC., carrying on business as «TEAM PRODUCTIONS»

 

 

            Plaintiff

 

 

-v-

 

 

 

JUSTIN BIEBER

 

 

Defendant

 

 

 

______________________________________________________________________

 

 

 

JUDGMENT

(on a motion to refer the parties to arbitration)

 

______________________________________________________________________

 

 

 

1.-     OVERVIEW

[1]       The defendant Justin Bieber is sued by Plaintiff for damages. The claim seeks a compensation of $650,000,00.

[2]       Defendant submits that this demand is subject to binding arbitration pursuant to an agreement entered by the parties on July 28, 2015. He therefore requires that the dispute be referred to such arbitration to be held in California.

[3]       Plaintiff does not agree. He answers that the contract was signed by Mr. Bieber’s agent, Mr. Smith Entertainment inc., and not by the former. Therefore, no arbitration clause should be effective between both parties. Plaintiff also adds that the subject matter of the lawsuit does not fall within the scope of the arbitration clause.

[4]       The Court must therefore decide if the matter must be referred to an arbitrator of if it should continue in the current judicial file.

2.-     THE CONTEXT

            A)        The parties

[5]       Plaintiff is an event promoter based in Montreal. It is a company carrying on business as Team Productions. His main shareholder and president is Benoit Dimuro[1].

[6]       Defendant is a well-known canadian born singer and songwriter. He is currently one of the best-selling artists and is very popular on Social Media.

[7]       Mr. Smith Entertainment inc. («Mr. Smith») is a booking agency based in Hollywood California, represented by Greg Laplant.

            B)        The contract

[8]       During the summer 2015, Team Productions organized and promoted a sizeable event at Beach Club in Montreal for the 18th birthday of Kylie Jenner.

[9]       Two weeks before, Team Productions entered into an agreement[2] to secure the presence of Justin Bieber at Beach Club on August 22nd 2015.

[10]    This contract is titled «Artist Engagement Agreement» and appears to be drafted on a model prepared by Mr. Smith.

[11]    The first paragraph reads as follows:

« Agreement made this 28th day of July 2015, between Mr. Smith Entertainment inc. (herein referred to as «Furnishor» and «Mr. Smith») a fully authorized booking agency on behalf of the artist Justin Bieber (herein referred to as «Artist») and Benoit Dimuro on behalf of Team Productions (herein referred to as «purchaser». »

[12]    The agreement states that the «purchaser engages» the artist to perform the engagement upon terms and conditions detailed under many headings.

[13]    The engagement consists in Mr. Bieber’s presence at Beach Club on Saturday August 22, 2015 for a duration of two hours. It includes appearance, red carpet photos and greeting crowd on microphone.

[14]    The fees amount to $425,075,00 USD payable in two installments. Both are payable to Mr. Smith. The first one, $250,075,00 USD, is immediately due and is considered as «a deposit». The balance, $175,000,00 USD, must be paid «no later than 5 days of prior to artist travel for the engagement».

[15]    Other provisions relate to incidental aspects such as transportation, hotel, dinner, security. There are also specific clauses that deal with promotion, advertising, photography, exclusivity, force majeure, etc.

[16]    One of these clauses reads:

3.          MR. SMITH as Agent for Artist: Purchaser and Artist understand and agree that MR. SMITH is acting solely as an agent for Artist under this Agreement. Neither MR. SMITH or any of MR. SMITH’S employees or agents shall be liable for Artist’s Appearance or non-appearance or any breach of any obligation by any party hereunder.

[17]    Another pertains to Social Media:

7.          Social Media: Artist agrees to use social media to promote the event. Purchaser will supply comments and language for approval by Artist. (1 Instagram, 1 Facebook, 1 Twitter pre event )* Instagram Linked to FB and Twitter.

[18]    The last page contains the signatures and includes stipulations regarding, among others, arbitration and choice of law:

THE SIGNATURES BELOW CONFIRM THAT THE PARTIES HAVE READ AND APPROVE EACH PROVISION SET FORTH ABOVE. BY SIGNING THIS CONTRACT, PURCHASER AGREES TO ALL THE TERMS CONTAINED HEREIN INCLUDING THAT MR. SMITH IS ACTING HEREUNDER SOLELY AS AN AGENT FOR ARTIST AND ASSUMES NO LIABILITY HEREUNDER.

MANDATORY VENUE THE PARTIES AGREE THAT THE SOLE AND EXCLUSIVE VENUE FOR ANY ARBITRATION, LITIGATION OR COURT PROCEEDINGS ARISING UNDER, CONCERNING, RELATING TO OR TOUCHING ON THIS AGREEMENT OR THE SUBJECT MATTER HEREOF SHALL BE THE COUNTY OF LOS ANGELES, CALIFORNIA AND THE PARTIES SUBMIT THEMSELVES TO THE JURISDICTION OF THE COURTS OR ARBITRATORS SITTING IN LOS ANGELES COUNTY TO THE EXCLUSION OF ALL OTHERS.

CHOICE OF LAW, THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO ITS CONFLICT OF LAWS RULES.

ARBITRATION, ALL DISPUTES ARISING UNDER, CONCERNING, RELATING TO OR TOUCHING ON THIS AGREEMENT WILL BE SUBMITTED TO BINDING ARBITRATION IN LOS ANGELES, CALIFORNIA BEFORE A SINGLE ARBITRATOR FOR PROMPT RESOLUTION. IT IS AGREED THAT THE ARBITRATOR WILL BE INSTRUCTED TO RESOLVE THE DISPUTE USING THE MOST COST EFFECTIVE, EFFICIENT RULES AS ARE REASONABLE. THE PARTIES AGREE TO BE BOUND BY THIS PROVISION AND THE RESULTS OF SUCH ARBITRATION. THE PARTIES UNDERSTAND THAT THIS PROVISION WILL ELIMINATE THE RIGHT TO A JURY TRIAL.

DISCLAIMER OF WARRANTIES, ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, ARE HEREBY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. NO SUCH WARRANTIES ARE MADE OR OFFERED.

PURCHASER

Benoit Di Muro

(s)

On behalf of Purchaser

Team Productions

Date: 28/07/2015

MR. SMITH ENTERTAINMENT, INC. ON BEHALF OF ARTIST

Greg LaPlant                  (s)

8491 Sunset Blvd

West Hollywood, CA 90069

Phone: 323.370.5880

Fax: 310.601.4499                       7.28.15

Initial ____

[19]    Three days later, a second agreement is reached between Mr. Smith and BT Touring LLC f/s/o Justin Bieber[3]. This additional contract includes many terms or conditions similar to the first one as far as the engagement is concerned.

[20]    It is however not identical. The parties are different. Mr. Smith engages the artist in exchange of a fee of $350,000,00 USD. Half is considered as a deposit and the other half is payable two business days prior to the event date.

[21]    This agreement is more explicit in relation with the artist conduct. Hence, it specifies that «Artist is not to make any disparaging remarks regarding event, purchaser or venue». It is more detailed on the promotion to be made and very specific on the interaction with the crowd.

[22]    The paragraphs on choice of law and arbitration are the same than the ones found in the first contract.

            C)        The event

[23]    In fact, there was no event, at least the way it was planned, on August 22, 2015.

[24]    Team Productions made the first payment as scheduled. However, it was concerned and believed that Mr. Bieber did not publicize the event as required. This brought discussions about the second payment. Team Productions asked for a discount on said payment due to defendant’s alleged failure to fulfill the publicity obligations.

[25]    Negotiations took place and «Unfortunately, the parties were unable to resolve their standstill and the defendant Justin Bieber unilaterally cancelled his appearance»[4].

            D)        The tweet

[26]    On the morning of August 22, 2015, day set for the engagement, defendant sent out the following tweet to his estimated 80 000 000 + followers:

« Montreal due to the promoter of today’s event breaking his contract and lying I will not be able to attend today’s event. I’m sorry »[5]

[27]    According to the proceedings, this tweet was widely publicized. It was retweeted by more than 37 000 twitter users within an hour and liked by more than 46 500 others.

            E)        The lawsuit

[28]    Team Productions considers that this message is false and defamatory.

[29]    She claims damages of $650,000,00 divided as follows:

·                    $500,000,00 in lost earnings potential;

·                    $100,000,00 for damage to reputation;

·                    $50,000,00 in punitive damages.

[30]    The lawsuit does not indicate what happened with the payments after the cancellation.

3.-     POSITION OF THE PARTIES

            a)         The Defendant

[31]    According to the Defendant, the issues in dispute are subject to the arbitration clause included in the Artist Engagement Agreement. Both parties are bound by this contract. Mr. Bieber was represented by his agent who signed on his behalf.

[32]    If the Court considers that Defendant did not agree personally, it must consider that he signed the second agreement and these two deals form a group of inter-related contracts linking the plaintiff and the Defendant. In other words, parties both agreed to arbitration for the same matter through two indivisible contracts but in view of one commercial transaction.

[33]    The arbitration clause must receive a broad and liberal interpretation. It reflects the intention to have the dispute resolved by arbitration. If the matter is not clear, the debate on the competence of the arbitrator must take place in front of him. He should be the one to rule first on his jurisdiction unless there is a question of law to be decided by the Court.

            b)         The Plaintiff

[34]    Team Productions contests these submissions. First, she argues that there is no contract between the parties. The first agreement is between the promoter and Mr. Smith. The second involves Mr. Smith and BT Touring LLC for the services of Justin Bieber. In addition, the so-called theory of the group of contracts does not apply as the promoter did not participate in the second contract and never received a copy of it before the lawsuit was initiated.

[35]    In the Plaintiff’s opinion, even if it were to be concluded that there exists a privity of contract between Team Productions and Mr. Bieber, the result would the same as the lawsuit goes well beyond the scope of contractual arbitration. It is a motion based on defamation and subject to section 1457 of the Quebec Civil Code. This is not a contractual recourse; it rests on torts law.

[36]    Therefore, the Superior Court has full jurisdiction to hear the matter and there is no need to refer the case to arbitration, either on the competence or on the merit.

            c)         The questions

[37]    In light of the foregoing, this debate raises the following questions:

A.           Generally, what is the standard of review to be applied by the Court when a party requires that the dispute be referred to arbitration?

B.           Specifically, are both parties bound by the arbitration clause?

C.           Does the lawsuit fall within the scope of the arbitration clause?

 

 

4.-     ANALYSIS

A.        Legal principles pertaining to a motion to refer the parties to arbitration.

[38]    Arbitration is an alternative dispute resolution mechanism developed over the recent years. The new Code of Civil Procedure, at its first article, expressly acknowledges the importance of this form of process:

1.          To prevent a potential dispute or resolve an existing one, the parties concerned, by mutual agreement, may opt for a private dispute prevention and resolution process.

The main private dispute prevention and resolution processes are negotiation between the parties, and mediation and arbitration, in which the parties call on a third person to assist them. The parties may also resort to any other process that suits them and that they consider appropriate, whether or not it borrows from negotiation, mediation or arbitration.

Parties must consider private prevention and resolution processes before referring their dispute to the courts.

[39]    Arbitration is volunteer. It rests on the parties decision to submit, or not, a potential dispute to a third party, the arbitrator, instead of going before the Courts. It is the expression of the contractual autonomy of the parties who may decide to do so for whatever reasons suit them.

« [80]    L'arbitrage est un droit fondamental des citoyens et une forme d'expression de leur liberté contractuelle. Il ne devrait pas être considéré comme une atteinte au monopole de la justice étatique. L'arbitrage devrait plutôt être perçu comme un mode alternatif de règlement des litiges qui répond, selon les circonstances, à certains objectifs - rapidité, jugement par des pairs, économie, etc. - recherchés par les parties. »[6]

[40]    The Civil Code and the Code of Civil Procedure recognize that courts lack jurisdiction if a matter is subject to arbitration, as decided by the parties.

          Civil Code of Quebec, section 3148, paragraph 2:

However, Québec authorities have no jurisdiction where the parties have chosen by agreement to submit the present or future disputes between themselves relating to a specific legal relationship to a foreign authority or to an arbitrator, unless the defendant submits to the jurisdiction of the Québec authorities.

          Code of Civil Procedure, section 622 :

Unless otherwise provided by law, the issues on which the parties have an arbitration agreement cannot be brought before a court even though it would have jurisdiction to decide the subject matter of the dispute.

A court seized of a dispute on such an issue is required, on a party’s application, to refer the parties back to arbitration, unless the court finds the arbitration agreement to be null. (…)

[41]    When a dispute arises and the parties agree on the forum (court or arbitration), there is no conflict and the chosen venue is competent. But what happens when there is no such agreement on this question? Who decides and on what basis?

[42]    The approach to take was established by the Supreme Court of Canada in Dell Computer v. Union des consommateurs[7]:

« First of all, I would lay down a general rule that in any case involving an arbitration clause, a challenge to the arbitrator’s jurisdiction must be resolved first by the arbitrator. A Court should depart from the rule of systematic referral to arbitration only if the challenge to the arbitrator’s jurisdiction is based solely on a question of law. (…)

If the challenge requires the production and review of factual evidence, the court should normally refer the case to arbitration, as arbitrators have, for this purpose, the same resources and expertise as courts. Where questions of mixed law and fact are concerned, the court hearing the referral application must refer the case to arbitration unless the questions of fact require only superficial consideration of the documentary evidence in the record »

(pages 848-849)

[43]    Three judges (all from Quebec) were dissident in this case. However, their position was based on the existence of a consumer contract in which case the Quebec authority keeps jurisdiction[8]. Nobody pretends that we have a consumer contract in the present file.

[44]    This rule has been reiterated by the Supreme Court in Rogers Sans-Fil inc. c. Muroff[9]:

« In Dell, the Court was unanimous in finding that under art. 940.1 C.C.P., arbitrators have jurisdiction to rule on their own jurisdiction (the «competence-competence principle»). The majority of the Court ruled that, when an arbitration clause exists, any challenges to the jurisdiction of the arbitrator must first be referred to the arbitrator. Courts should derogate from this general rule and decide the question first only where the challenge to the arbittrator’s jurisdiction concerns a question of law alone. Where a question concerning jurisdiction of an arbitrator requires the admission and examination of factual proof, normally courts must refer such questions to arbitration. For questions of mixed law and fact, courts must also favor referral to arbitration, and the only exception occurs where answering questions of fact entails a superficial examination of the documentary proof in the record and where the court is convinced that the challenge is not a delaying tactic or will not prejudice the recourse to arbitration. »

[45]    In this decision, it was determined that the mixed question of fact and law (is the clause abusive?) required a detailed factual inquiry. Consequently, according to the so-called competence-competence principle, the arbitrator had jurisdiction to rule on its own jurisdiction.

[46]    To sum up, the Court has no discretion and must refer the dispute to the arbitration process if the validity of the agreement and the applicability of the clause are not contested. There is no choice to make.

[47]    If there is such a contestation and it requires review of evidence, then, again, the matter should be sent to the arbitration. It is the arbitrator who will rule on his jurisdiction. Finally, there is an exception if the contestation concerns only a question of law or if a factual question can be answered by a superficial examination of the documents. This exception allows to avoid a possibility of a double debate (i.e. the losing party before the arbitrator, on the question of competence, asks the Court to review the decision)[10]. It is more efficient and observe the principle of proportionality[11].

[48]    Here, the Court considers that the parties arguments to support their position on competence are either questions of law or mixed questions that can be answered by the analysis of written evidence, namely the contracts and the judicial demand. There is no needs of testimony or further evidence to decide the matter of competence. Hence, the Court intends to rule on the question of competence.

B.        Are both parties bound by the arbitrator clause?

[49]    For the Plaintiff, no legal connexion exists between him and the Defendant. The first contract intervened with Mr. Smith and Mr. Bieber is not a party. The other contract concerns Mr. Bieber’s company and his agent. Consequently, no agreement links the parties. They cannot be subject to the arbitration clause.

[50]    No doubt that Mr. Bieber did not sign personally the first agreement. But, the analysis does not stop there. Did Mr. Smith act as his mandatary?

[51]    The Court concludes that there is a mandate that applies and binds Mr. Bieber towards Team Productions. Here is why.

[52]    First, the wording expressly enunciates that Mr. Smith Entertainment inc., a booking agency, acts on behalf of the artist Justin Bieber. If Mr. Smith acted for himself, there was be no reason to add this mention. Furthermore, section 3 specifically states that Mr. Smith is acting solely as an agent for artist under this agreement. This is clear.

[53]    Second, the purpose of the contract is to engage the artist. It therefore makes full sense that the artist binds himself through his agent.

[54]    Third, Mr. Smith or its employees cannot be held liable if the artist does not make appearance or breaches any obligation under the contract. Section 3 reads:

« Neither Mr. Smith nor any of Mr. Smith’s employees or agents shall be liable for artist’s appearance or non-appearance or any breach if any obligations by any party thereafter. »

            At the last page, one of the clauses says:

« THE SIGNATURES BELOW CONFIRM THAT THE PARTIES HAVE READ AND APPROVE EACH PROVISION SET FORTH ABOVE. BY SIGNING THIS CONTRACT, PURCHASER AGREES TO ALL THE TERMS CONTAINED HEREIN INCLUDING THAT MR. SMITH IS ACTING HEREUNDER SOLELY AS AN AGENT FOR ARTIST AND ASSUMES NO LIABILITY HEREUNDER. »

[55]    If Mr. Smith cannot be held liable in relation with the main obligation and the object of the agreement, it makes no sense for Team Productions that Bieber is not party to the deal. Otherwise, Team Productions has no guarantee that the artist will come and has no recourse against anybody, if it happens. This appears illogical, especially with the deposit that is required.

[56]    Fourth, all obligations under the contract refer to the artist, not to Mr. Smith. One of the allegation of the demand says that Plaintiff complained that Mr. Bieber, not Mr. Smith, had not fulfilled its commitments to promote the event. Also, the artist himself has the right to cancel the contract or the performance if certain conditions exist (see section 9 and 11).

[57]    Fifth, Mr. Bieber certainly acknowledged that Mr. Smith was authorized to represent him by signing the second agreement. He reiterated this mandate through the position taken by its Quebec lawyers.

[58]    During his presentation, Plaintiff pleaded that the second contract was not necessary if Mr. Bieber is party to the first one. He refers to the fact that it is Mr. Smith who engages the artist according to the JB-2 contract. The Court does not agree. The JB-2 contract is useful for at least two reasons. On one hand, it confirms that Mr. Smith was mandated to represent Mr. Bieber. On the other hand, it establishes the compensation to be paid to the agent and its modalities.

[59]    Moreover, Plaintiff admits that he did not get a copy of the second contract[12]. This confirms that the second contract is not necessary to the interpretation of the first one.

[60]    The Court questioned Plaintiff’s lawyer to explain its understanding of the mention «on behalf of» in the artist agreement. Mr. Renno answered that Mr. Smith acts as a booking agent. It may be the case. But, it does not mean that the artist is not bound. It may very well be that both, Mr. Smith and Mr. Bieber, have obligations under the agreement.

[61]    Furthermore, the fact that the payment is made to Mr. Smith does not negate the existence of a mandate. It is often the case, for instance, when an attorney collects money for his client. He asks that payment be directed to his firm, on behalf of his client.

[62]    In conclusion, the Court considers that the agreement R-3, including the arbitration clause, binds Plaintiff and Defendant. The second argument, based on the existence of a related group of contracts, does not require analysis in view of this conclusion.

C.        Does the lawsuit fall within the scope of the arbitration clause?

[63]    Plaintiff is categorical. His lawsuit does not involve the contract. It is based on a defamatory and false statement from Mr. Bieber. It should not be governed by the agreement and its arbitration clause. Any reference to the contract in the judicial demand is contextual and serves to understand the situation.

[64]    Defendant submits that the matter of the dispute comes within the scope «ratione materiea» of the arbitration clause.

[65]    In the present instance, the parties to this commercial agreement used very large terms to describe the kind of dispute covered by arbitration. It concerns: «all disputes arising under, concerning, relating to or touching on this agreement».

[66]    It is difficult to find a description wider than that in reference to the contract.

[67]    In Desputeaux c. Éditions Chouette[13], the Supreme Court decided that the scope of arbitration, thus the arbitrator’s competence, must receive a liberal interpretation:

« The primary source of an arbitrator’s competence is the content of the arbitration agreement (art 2643 C.c.Q.) »

(page 198)

(…)

« The arbitrator’s mandate must not be interpreted restrictively by limiting it to what is expressly set out in the arbitration agreement. The mandate also includes everything that is closely connected with that agreement, or, in other words, questions that have [TRANSLATION] «a connection with the question to be disposed of by the arbitrators with the dispute submitted to them.» (…) Since the 1986 arbitration reforms, the scope of arbitration agreements has been interpreted liberally. »

(page 204)

[68]    Our colleague Justice Daniel Payette ruled in the same way in Citec Administration inc. c. Corporation du Parc d’affaires La Rolland[14]:

[67]       Il ne faut pas interpréter le mandat de l’arbitre de façon restrictive en le limitant à ce qui est expressément énoncé à la convention d’arbitrage. Le mandat s’étend aussi à tout ce qui entretient des rapports étroits avec cette dernière, ou en d’autres mots, aux questions qui entretiennent un «lien de connexité de la question tranchée par les arbitres avec le litige qui leur est soumis. »

[69]    Do we have here such a connection between the content of the arbitration clause and the nature of the lawsuit?

[70]    The Court believes so. It is true that the essence of the claim rests on defamation. But the circumstances and the source of the attacked statement originate from the contract.

[71]    The tweet itself links the alleged defamation (being a liar) to the breach of contract. Furthermore, it was written the morning of the event. It is aimed at explaining why the Defendant will not appear as scheduled.

[72]    It might be different if the alleged defamation took place on another date without reference to the contract. Then, the connection might very well be missing. But here, a liberal interpretation of this broad clause conducts to the existence of a link between the contract and what is written in the tweet.

[73]    In addition, Plaintiff invokes, at paragraph 21, that Defendant had not fulfilled its obligation to publicize as he was supposed to do:

« 19.     In counterpart, the Defendant Justin Bieber was not only to make an appearance at the event, but was also to publicize it on Twitter, Instagram and Facebook.

(…)

21.        As the date for the event neared, Team Productions expressed concern with the fact that the Defendant Justin Bieber was not publicizing the event as required, although he was actively publicizing other events, such as a party to be held in New York City on the day after the event in Montreal. »

[74]    The lawsuit may be extracontractual[15], but it is not stranger to the contract. The hearing will certainly bring evidence as to what was written, why, its veracity or not, the motivation for such statement, etc. It is related, to a certain extent, to the obligations of the parties. Not only does it touch it, but it flows from the contract.

[75]    One may believe that this goes too far and deprives the Court of its usual jurisdiction. However, it simply recognizes the expressed intention of the parties to refer to arbitration if a dispute takes place and has a connection with the contract.

[76]    In his submissions, Team Productions refers to the recent decision of the Court of Appeal in Beausoleil c. CSSS Walle-Teasdale[16] and writes: «La Cour d’appel a d’ailleurs très récemment indiqué qu’un recours en diffamation ne pouvait être considéré comme découlant d’une relation contractuelle»[17].

[77]    In this case, the Court concluded that there was no link («lien») between the alleged defamation and the collective bargaining agreement:

« [7]      En l’espèce, le recours en diffamation exercé par l’appelant constitue un tel cas particulier. Bien qu’il oppose l’employé à son employeur (quoiqu’il ne soit pas acquis qu’au moment où les propos diffamatoires ont été tenus, une telle relation existait toujours), ce différend ne résulte ni expressément ni implicitement de la convention collective. Du moins, l’intimé n’est pas en mesure d’identifier un lien avec celle-ci, ne serait-ce qu’implicitement. »

[78]    In C.C.I.C. Consulted International c. Silverman[18], the Court went in the same direction after having concluded that: «Cette atteinte (diffamation), si elle existe, découle plutôt de comportements des appelantes, parfaitement étrangers au contrat de vente d’actions»[19].

[79]    These contexts differ from the one in the present case.

[80]    The fact that the Plaintiff does not make a specific claim for reimbursement of what he has paid does not mean that the arbitration clause is automatically unapplicable.

[81]    Finally if one questions the intention of the parties, and why they drafted this clause, it requires further evidence that must be presented to the arbitrator, not to the Court, as explained before[20].

FOR ALL OF THESE REASONS, THE COURT:

REFERS the parties to arbitration in accordance with the arbitration agreement contained in exhibit R-3 executed on July 28, 2015.

WITHOUT COSTS.

 

 

__________________________________

                  DANIEL DUMAIS, j.c.s.

 

Me Karim Renno

Me David Plotkin

Renno Vathilakis inc.

1621 Sherbrooke Street West

Montreal (Quebec)  H3H 1E2

 

 

Attorneys for Plaintiff

 

Me Bogdan-Alexandru Dobrota

Woods LLP

2000 avenue McGill College
Bureau 1700
Montréal (Quebec)  H3A 3H3

 

Attorneys for Defendant

 

Hearing date :            March 2, 2017

 



[1]     Exhibit R-1.

[2]     Exhibit R-3.

[3]     Exhibit JB-2.

[4]     Paragraph 25 of The Judicial Demand Originating a Proceeding in damages for defamation.

[5]     Exhibit R-4.

[6]     La Laurentienne-vie, compagnie d’assurance inc. c. L’Empire, compagnie d’assurance-vie, 2000 CanLII 9001 (QCCA), p. 18.

[7]     [2007] 2 S.C.R. 801.

[8]     Section 3149 C.c.Q.

[9]     [2007] 2 S.C.R. 921, 925, 926. See also : Groupon Canada inc. c. 9178-2243 Québec inc. 2015 QCCA 645; Storex Industries Corp c. Dr. Byte L.L.L., 2008 QCCA 100.

[10]    Ferreira c. Tavares, 2015 QCCA 844, par. 24-26.

[11]    Article 18 C.c.p.

[12]    Par. 44 and 50 of the Plan of Arguments and allegation 12 of the judicial demand.

[13]    [2003] 1 S.C.R. 178. See also : Zodiak International c. Polish People’s Republic [1983] 1 S.C.R. 529.

[14]    2010 QCCS 1059.

[15]    Although, at least in Quebec, it is not so clear that it cannot be based on the contract.

[16]    2016 QCCA 25.

[17]    Argumentation de la demanderesse, par. 28.

[18]    1991 CanLII 2868 (QC CA).

[19]    Id., par. 21.

[20]    Guns n’Roses Missouri Storm inc. c. Productions Musicales Donald K. Donald inc. [1994] R.J.Q. 1183.

AVIS :
Le lecteur doit s'assurer que les décisions consultées sont finales et sans appel; la consultation du plumitif s'avère une précaution utile.

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