Gagnon, Marcotte, Moore

Appeal from a judgment of the Superior Court rendered in the course of a proceeding dismissing applications for forced intervention. Allowed in part.

When they were a couple, the impleaded parties Krister Svensson and Ziadi retained the services of the appellant, a fertility clinic, for in vitro fertilization treatments. Sperm samples were given to the appellant to be analyzed and frozen. Svensson claims that he stopped having sexual relations with Ziadi in April 2014. However, Ziadi gave birth to a daughter in May 2015, after visiting the respondent fertility clinic Genesis IVF Clinic, located in Cyprus, in September 2014. The child was born in Monaco and Svensson was registered as the father. Genesis’s services were rendered following the intervention of the respondent Elite IVF, a Geneva-based agency having a place of business in Montreal.

Svensson instituted proceedings against the appellant and Ziadi. He faults the fertility clinic for transferring his sperm samples without his consent. To protect itself against any condemnation, the appellant sought the intervention of the respondents, Elite and Genesis. Elite and Genesis opposed, raising arbitration clauses contained in two separate arbitration agreements: one between Elite and the appellant (E/O agreement) and the other between Elite, Svensson, and Ziadi (E/S/Z agreement).

The trial judge agreed with the respondents and dismissed the applications for intervention. He concluded that the arbitration agreement contained in the E/O agreement was complete and binding on the parties, despite the agreement ceasing to apply on July 26, 2013, and Ziadi’s treatments occurring after that date. He also considered that the arbitration clause in the E/S/Z agreement was complete and could be set up against the appellant due to the stipulation for another it contained for the benefit of Genesis.

Although the arbitration clause contained in the E/S/Z agreement is complete, it cannot be set up against the appellant because article 1440 of the Civil Code of Québec (S.Q. 1991, c. 64) limits the effect of contracts to the contracting parties. An arbitration clause cannot be set up against a third party who [translation] “never accepted to be [bound] by any agreement whatsoever” (Metso Minerals Canada Inc. c. BBA inc. (C.A., 2017-09-29), 2017 QCCA 1544, SOQUIJ AZ-51430512, 2017EXP-2939, at para. 14). There is no basis, therefore, to force the appellant to comply with an agreement to which it is not a party. Accordingly, the E/S/Z agreement cannot be used as a basis to grant Elite’s opposition to the appellant’s declaration of forced intervention. The E/S/Z agreement does not apply to Genesis either. The latter therefore cannot assert rights conferred only on the signatories of this agreement.

The appeal from the part of the judgment granting Genesis’s opposition is therefore allowed. Moreover, the Superior Court has jurisdiction to rule on the dispute between the appellant and Genesis because it is incidental to the principal action and there is a connexity between the two actions. The proceedings against that party can continue before that court.

Regarding the arbitration clause contained in the E/O agreement, the judge did not commit a reviewable error in concluding that it is complete and binding on the parties. He was correct to interpret it in a broad and liberal manner, by giving precedence to the will of the parties. The issue of whether this agreement was in force at the time of the events at the heart of the dispute is within the ambit of the arbitrator’s jurisdiction. It can be debated before the arbitration proceedings when the time comes.

The appeal from the part of the judgment granting Elite’s opposition is therefore dismissed.

Text of the decision: http://citoyens.soquij.qc.ca