Marcotte, Schrager Cournoyer

Appeal from a judgment of the Superior Court granting an application to dismiss an application for judicial review. Allowed. Application to dismiss. Dismissed.

The respondent’s advocate submitted a dispute with respect to his professional fees regarding an arbitration pursuant to the third paragraph of section 70 of the Agreement between the Minister of Justice and the Barreau du Québec respecting the tariff of fees and expenses of advocates rendering services in criminal and penal matters and the dispute settlement procedure (CQLR, c. A‑14, r. 5.2). The appellant brought an application for judicial review of the arbitration award, and the respondent presented an application to dismiss on the ground that it was not possible to conduct a judicial review of the arbitration award.

The trial judge accepted that the arbitration set out in the agreement was consensual, not statutory, because the arbitration was not mandatory, as the parties had the possibility of waiving it. Accordingly, the only recourse available to a party wanting to contest the arbitration award was an application for annulment, not an application for judicial review.

There are two non-judicial adjudication mechanisms: the process agreed to by the parties in an arbitration clause, as set out in article 2638 of the Civil Code of Québec (S.Q. 1991, c. 64), and those that are mandatory and imposed by law. If the mechanism is consensual, the resulting decision can be reviewed by a court of justice only in homologation proceedings under article 645 et seq. of the Code of Civil Procedure (CQLR, c. C-25.01), not through judicial review pursuant to article 529 et seq. As long as the arbitration is not mandatory as the only dispute resolution mechanism possible, it must be considered consensual, even if it is provided for by law.

In this case, even though the first paragraph of section 70 of the Agreement between the Minister of Justice and the Barreau du Québec respecting the tariff of fees and expenses of advocates rendering services in criminal and penal matters and the dispute settlement procedure provides that a dissatisfied advocate “may” submit a dispute to arbitration, it is in fact the only possible recourse in view of the first paragraph of section 73. This is what is referred to in legal commentary as an exclusive jurisdiction clause, and it is combined with a privative clause in the second paragraph. It is therefore established that the exclusive jurisdiction clause must be given its textual meaning: it excludes any other court and helps to promote simplified dispute resolution mechanisms and to channel any disagreements the parties may have into a single proceeding.

The fact that the agreement is the result of negotiations between the Minister of Justice and the Barreau du Québec, of which the respondent is a member, does not make the arbitration contractual or consensual. It is not an agreement between the appellant and the advocate who is dissatisfied with the professional fees payables, but rather a regulatory text, the terms of which are imposed on advocates dissatisfied with a decision of the appellant, a public administrative body. The Act respecting legal aid and the provision of certain other legal services (CQLR, c. A-14) provides that the agreement has force of law, and the provisions of the agreement do not allow the parties to opt out of the arbitration mechanism.

The judge therefore erred in law in his interpretation of the agreement. Moreover, because the source of the dispute was the decision of an administrative body, judicial review by the Superior Court was constitutionally available.

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