When a third person wishes to intervene as a friend of the court as per Art. 187 C.c.p. in a private dispute, the third person is required to convince the Court that it will offer an additional and useful perspective on the issues (particularly difficult and new) at stake that the parties are not able to submit themselves. In Mullen c. Nakisa inc., 2022 QCCS 1164, the Canadian Commercial Arbitration Center (“CCAC”)’s application to intervene as a friend of court is rejected by Mr. Justice Stéphane Lacoste, j.c.s. in or around April 2022 as in the Court’s view, CCAC’s observations on the international commercial arbitration rules and the operation of commercial arbitration in Québec could be the mere repetition of Nakisa’s positions in the hope of amplifying their importance.
Background
On January 24, 2017, Nakisa and Sierra reached a service contract which includes an arbitration agreement. During the period of their collaboration, some disputes raised between the two parties;
On March 22, 2019, by reaching a Memorandum of agreement, Nakisa and Sierra submitted their disputes to Centre canadien d’arbitrage commercial at Montreal according to the laws of Quebec. Sierra claims US $1,021,487.20 from Nakisa, while Nakisa filed a cross-application against Sierra to claim US $2,002,950 from Sierra as during the execution of their service contract, Kumar (the president of Sierra) and Mullen (the project manager of Sierra) have committed faults in the performance of their respective functions.
On February 12, 2020, Nakisa instituted a lawsuit against Mullen and Kumar before the Superior Court of Quebec to request compensation based on the same facts.
On August 12, 2020, Nakisa’s application was rejected by the Superior Court of Quebec on the grounds of lack of international jurisdiction according to Art. 3148 (3) C.c.Q (Nakisa inc. c. Kumar, 2020 QCCS 2487);
On December 18, 2020, the Court of Appeal confirmed this conclusion (Nakisa inc. c. Mullen, 2020 QCCA 1808).
Then, Nakisa amended its cross-application for the arbitration proceeding and added Kumar and Mullen as co-defendants in the arbitration proceeding against Sierra;
On July 14, 2021, the arbitrator granted this modification during a case management conference.
On July 30, 2021, the arbitrator ordered the parties, including Kumar and Mullen to respect the timeline agreed upon between Nakisa and Sierra. The timeline requires the parties to set down the case for an arbitration trial that would last 10 days starting in November 2021.
On August 13, 2021, Kumar and Mullen expressed their intention to contest the arbitral tribunal’s jurisdiction over them;
On September 14, 2021 and September 27, 2021, Mullen and Kumar filed applications separately for judicial review of the arbitrator’s decision and requested the suspension of the arbitration proceedings in their regard according to Article 530 (2) C.C.P. as they did not personally sign the arbitration agreement. CCAC filed an application to intervene as a friend of court for the purpose of enlightening the Court about the international commercial arbitration rules and the operation of commercial arbitration in Québec.
On October 20, 2021, Mr. Justice Lukasz Granosik, j.c.s. suspends the arbitration proceeding with regard to Kumar and Mullen until final judgment on judicial review application is rendered (Mullen c. Nakisa inc., 2021 QCCS 4388)
On April 8, 2022, Mr. Justice Stéphane Lacoste, j.c.s. rejected CCAC’s Application to Intervene as a friend of court (Mullen c. Nakisa inc., 2022 QCCS 1164).
Main Issue to Analyse
1. Is the Application to Intervene inadmissible as the supporting sworn statement is insufficient?
2. Is the Application to Intervene well founded?
Court’s Analysis
1. No. While the Court notices that the person who signed the sworn statement does not have personal knowledge of some facts stated in the supporting sworn statement of the Application to Intervene, in Court’s view, this does not lead to the rejection of the Application to Intervene, but rather means that the Court cannot consider those unattested facts when it makes judgment.
a. According to Art. 101 C.c.p., an application for intervention shall be supported by a sworn statement. Art. 105 (1) C.c.p., stipulates that the sworn statement must be sworn by a person who can attest to the truth of the facts alleged in the sworn statement.
b. In the present case, the Application to Intervene is supported by a sworn statement signed by the legal representative of CCAC in the present legal proceeding. On November 15, 2021, the lawyer was examined. It is clear from the transcript of this pre-trial examination that this lawyer does not know the answers to a certain number of questions in relation to his sworn statement. As a consequence, the Plaintiffs argue that the whole sworn statement is inadmissible and that the Application to Intervene should be rejected.
c. In Court’s view, the purpose of the pre-trial examination is to verify the seriousness of the application and not to appreciate the reliability of the facts, which should be done in the final trial (para. 24 of this Decision; para. 19 of Syndicat canadien des communications, de l’énergie et du papier (SCEP), section locale 175 c. Petro-Canada, 2009 QCCS 1141). Thus, the Court will not consider the facts that the lawyer does not have personal knowledge of when it renders judgement on CCAC’s Application to Intervene.
2. No. This Application to Intervene is not well founded.
a. According to Art. 187 (2) C.c.p., the Court may grant authorization to the third person to intervene if it is of the opinion that the intervention is expedient; the Court has large discretion in this matter; the Court will consider the importance of the issues in dispute, particularly in relation to the public interest, and the usefulness of the third person’s contribution to the debate. Mr. Justice Clément Gascon in his decision on Dunkin’ Brands Canada Ltd. c. Bertico inc., 2013 QCCA 867 teaches us that in private disputes, “the mere facts that the Court’s ruling may have an impact on other pending matters is not in itself sufficient to justify an intervention…in private matters…the judges of this Court have stressed the importance of the intervening party being able to show that the parties to the proceedings will not properly and thoroughly consider the issues at stake…That said, in determining whether an intervention is expedient or not, a judge enjoys a wide discretion…One of the key elements is to evaluate whether or not the intervening party can efficiently assist the court. A petitioner must thus convince the judge that it will indeed offer an additional and useful perspective on the issues at stake that is different from what the parties will likely submit themselves”.
b. Mr. Justice Fédéric Bachand, in his recent decision on Attorney General of Quebec c. Center for Gender Advocacy, 2021 QCCA 1300, commented on Art. 187 C.c.p. as the followings: “A number of additional propositions that can be gleaned from the case law are worth highlighting here. The first is that courts are generally more open to such interventions where — as in the present case — the issues in dispute concern public law, fundamental rights or constitutional matters. The second is that courts remain mindful of the proposed intervention’s impact on the proceeding, which may tip the balance against granting leave if it risks outweighing the applicant’s potential contribution. Thirdly, courts are generally reluctant to authorize interventions that could cause a substantial change in the nature or scope of the debate as previously framed by the parties. Lastly — and relatedly —, courts are even more reluctant to allow for interventions that would require the filing of additional evidence, and they generally frown upon attempts to present as authority documents asserting factual propositions that are not judicially noticeable.”
c. This present case concerns a private matter between two private companies. The appeals do not raise a particularly difficult or new issue which requires the intervention of the CCAC. The Plaintiffs and the Defendants have submitted their memorandums for their argumentations. The representations by CCAC would simply amplify one party’s positions. The memorandum by CCAC is not useful nor necessary for the trial judge to study in order to rule on the appeals by the parties.
For the above-mentioned reasons, Mr. Justice Stéphane Lacoste, j.c.s. rejected CCAC’s Application to Intervene in the present case.
Reflection
1. The author has published a blog post on the suspension decision rendered by Mr. Justice Lukasz Granosik, j.c.s. in October 2021. Please see “The Arbitration Proceeding was Suspended with regard to the Non-signatories to the Arbitration Agreement Until Final Judgments on Judicial Review Applications are Rendered – #63”.
2. In determining whether an intervention application should be granted or not according to Art. 187 C.c.p., a judge enjoys a wide discretion, especially in private dispute. The intervening party should be able to convince the judge that it will indeed offer an additional and useful perspective on the issues at stake that is different from what the parties will likely submit themselves and that its perspective will assist the Court to rule on the disputes.
(Reminder: The purpose of this article is to provide general legal information. It does not contain a full analysis of the law nor does it constitute a legal advice on the points of law discussed. To minimize the legal risk for your business, you must take specific legal advice from a lawyer on any particular matter which concerns you. Thanks for your attention.)