The Quebec Superior Court, in a decision rendered in
Canadian Royalties Inc. v. Nearctic Nickel Mines
Inc.1 on September 22, 2010,
confirmed a consensual arbitrator's ability to order specific
performance of contracts.
Briefly, the two parties had entered into an option and joint
venture agreement for the commercial development of a mining
property in Northern Québec. Under the agreement, the
minority partner had an obligation to transfer 10% of its interest
in the property to the majority partner subject to obtaining a
bankable feasibility study that was to be financed by the majority
The majority partner financed the feasibility study, but the
minority partner refused to transfer 10% of its interest in the
property on the grounds that the feasibility study did not satisfy
the contractual condition for the transfer of the interest.
Pursuant to the joint venture agreement, the dispute went to
arbitration. The arbitrator found that the feasibility study did
satisfy the contractual condition and ordered the minority partner
to transfer 10% of its interest in the mining property to the
The case was brought before the Superior Court. While the
majority partner asked for the homologation of the final award, the
minority partner asked to have the award annulled on the grounds
that the transfer order issued by the arbitrator was injunctive in
nature and only the Superior Court could grant injunctions.
The Superior Court homologated the award and dismissed the
motion to annul it. Justice Fraiberg, while recognizing that
arbitrators did not have the power to grant injunctions,
distinguished between an injunction and specific performance of a
contract and concluded that arbitrators could give orders of
specific performance of contractual obligations.
According to Justice Fraiberg, the power to grant injunctions is
a discretionary power of the Court, while specific performance
falls within the terms of the contract. The Court added that what
made injunctions different from orders of specific performance was
that defaulters could be punished by imprisonment. Justice Fraiberg
ended by saying that:
 If Quebec arbitrators could not
give orders of specific performance of contracts not amounting to
injunctions, they would be lame ducks and arbitration would not be
taken seriously as an effective and complete means of resolving
commercial disputes. This surely was not the intent of the 1986
The decision of the Quebec Superior Court is being appealed. A
decision by the Quebec Court of Appeal on this important matter is
expected before the end of 2011 and will no doubt be the topic of
another information bulletin.
1 2010 QCCS 4600
About Ogilvy Renault
Ogilvy Renault LLP is a full-service law firm with close to 450
lawyers and patent and trade-mark agents practicing in the areas of
business, litigation, intellectual property, and employment and
labour. Ogilvy Renault has offices in Montréal, Ottawa,
Québec, Toronto, Calgary and London (England), and serves
some of the largest and most successful corporations in Canada and
in more than 120 countries worldwide. Find out more at
Ogilvy Renault joins Norton Rose Group on June 1,
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).