Executive Summary: Key Legal and Evidentiary Issues

• Scope and mandatory nature of the APCIQ arbitration regulation for commission and fee disputes between member real estate agencies and brokers
• Characterization of the dispute as one over the perception and sharing of brokerage remuneration arising from a real estate transaction
• Effect of the commission-sharing agreement (Entente de partage de commission) and whether it constitutes a “transaction” under art. 2631 C.c.Q. that could bypass arbitration
• Determination of who has primary jurisdiction to rule on arbitrability and competence: the APCIQ arbitration council versus the civil courts
• Application of the Dell/Severe Vaillant line of authority on court referral to arbitration where mixed questions of fact and law are involved
• Alleged procedural abuse by the defendants in seeking referral to arbitration and the court’s inability to address that issue once it declines jurisdiction

Facts of the case

CBRE Limited is an incorporated real estate brokerage firm operating in Québec. For a period of time, Daniel Garant acted as a real estate broker for CBRE, but he left the firm in September 2024. After his departure, Garant continued his brokerage activities through another real estate agency, RSMI Inc., of which he is president and director. All of the parties involved in the dispute—CBRE, Garant, and RSMI—are members of the Association professionnelle des courtiers immobiliers du Québec (APCIQ). This membership is important because it subjects them to the APCIQ’s internal arbitration and conciliation regime for certain disputes.

In August 2023, while still employed by CBRE as a broker, Garant signed an exclusive service contract for the sale of an immovable owned by Société de gestion Doucet inc. CBRE acted as the agency, and Garant as the broker on the file. In September 2024, Garant resigned from CBRE and began operating through RSMI. At Doucet’s request, Garant remained the broker responsible for selling the property, and the sale closed on 4 December 2024. For that transaction, a commission of $124,000 became payable to Garant.

Given the considerable brokerage work Garant had performed while at CBRE, including work on the Doucet transaction, CBRE and Garant entered into a written “Entente de partage de commission” (commission-sharing agreement) in December 2024. Under this agreement, CBRE claims it is entitled to $72,850 plus taxes, for a total claimed amount of $83,356.88, from Garant and RSMI. CBRE asserts that this written agreement clearly establishes its right to that portion of the commission and was intended to avoid future litigation between the parties.

CBRE characterizes this agreement as a “transaction” within the meaning of article 2631 of the Civil Code of Québec, that is, a contract by which the parties prevent or put an end to a dispute by making mutual concessions. On CBRE’s theory, the lawsuit it has filed is essentially an action to have this transaction recognized and then homologated (approved and enforced) by the court. CBRE alleges that Garant has refused to respect the terms of the agreement and accuses him of bad faith in doing so.

Arbitration regulation and policy-type terms

All parties are members of APCIQ, which means they have bound themselves to the APCIQ “Règlement du bureau d’arbitrage et conciliation”. This Regulation functions much like a specialized policy or internal code that governs how certain disputes must be resolved. It provides, among other things, that all members agree to be bound by its provisions and to comply with it. It further states that the Regulation applies mandatorily to all “Différends” (disputes) involving members in specific configurations: between real estate agencies; between agencies and brokers acting on their own account; between brokers within the same agency; and between brokers acting on their own account, provided that the brokers involved were members at the time of the brokerage transaction at issue.

Crucially, the Regulation defines a “Différend” as any non-disciplinary dispute between members concerning the perception or sharing of remuneration that has become due to a member and that results from a brokerage transaction within the meaning of the Loi sur le courtage immobilier. Under the Regulation, the Conseil d’arbitrage (Arbitration Council) is stated to be the only tribunal authorized to hear such disputes. The Regulation also provides a competence-competence clause: the Arbitration Council can rule on its own jurisdiction, and its decision is final, without appeal, binding on members, and enforceable through judicial homologation under the Code of Civil Procedure.

These provisions effectively operate like contractual policy terms or a pacte compromissoire (arbitration agreement) embedded in membership in APCIQ: members agree ahead of time that disputes over commissions and fee sharing, if they meet the definitional criteria, must be submitted to the Arbitration Council rather than the ordinary courts.

Procedural history and parties’ positions

In this context, CBRE filed an amended originating application in damages and for homologation of a transaction, seeking to have the court recognize the commission-sharing agreement and order payment of the claimed sums. The defendants, Garant and RSMI, responded by invoking the APCIQ arbitration framework and applying for an order referring the parties to arbitration under article 622 of the Code of Civil Procedure. They argued that the lawsuit concerns precisely what the Regulation defines as a “Différend”: a dispute between APCIQ members over the perception or sharing of remuneration due, arising out of a brokerage transaction. As such, they contended, the case falls squarely within the exclusive jurisdiction of the APCIQ Arbitration Council.

CBRE resisted the referral to arbitration on several grounds. It maintained that its claim was not simply a commission-sharing dispute but an action to have a transaction (the Entente de partage de commission) recognized and homologated by the court. From that perspective, CBRE argued that the court remained the proper forum, and that arbitration was inapplicable. CBRE further asserted that the defendants’ request for a referral to arbitration was abusive within the meaning of articles 51 and 342 C.p.c., framing the arbitration application as a dilatory tactic. For that alleged abuse, CBRE asked for the dismissal of the defendants’ application and claimed $2,500 in compensation for the costs it said it incurred to contest the referral to arbitration.

Court’s analysis of arbitrability and jurisdiction

At the preliminary stage, the Court of Québec had to determine first whether the application to refer the dispute to the APCIQ Arbitration Council was justified. Only if the court concluded that it retained jurisdiction would it then decide whether the defendants’ application was abusive and should be dismissed with costs.

The court began by examining the APCIQ Regulation and confirmed that all parties, as members, were contractually bound by its terms. The Regulation clearly mandates that any dispute between members concerning the perception or sharing of remuneration due, arising from a brokerage transaction, must be submitted to the Arbitration Council. The court thus recognized that the parties’ APCIQ membership creates a pacte compromissoire—an arbitration agreement—obliging them to arbitrate qualifying disputes over commission sharing.

The court then considered whether the present dispute fell within this mandatory arbitration regime. On the facts, the conflict arises out of brokerage activities performed for Doucet’s property, which culminated in a sale generating a $124,000 commission. CBRE and Garant later entered into a commission-sharing agreement governing the distribution of that commission and, more broadly, work Garant had done while at CBRE. CBRE’s lawsuit seeks to enforce its claimed share of this commission and associated sums. The court accepted the defendants’ position that, despite CBRE’s characterization of its claim as an action to homologate a transaction, the essential nature of the dispute is a disagreement over the sharing of remuneration resulting from a brokerage transaction. This is precisely the category of dispute the APCIQ Regulation classifies as a “Différend” subject exclusively to arbitration.

In assessing whether it should itself rule on arbitrability or defer to the arbitrator, the court relied on the approach articulated by the Québec Court of Appeal in Severe Vaillant and earlier by the Supreme Court of Canada in Dell Computer. Where there is an arbitration clause and a challenge to the arbitrator’s competence, the starting point is that it is for the arbitrator, not the court, to decide jurisdiction, unless the challenge raises only a pure question of law, or a question of mixed fact and law that can be resolved on a superficial review of the record. Here, the court accepted the defendants’ submission that the issues—particularly the legal characterization and effect of the Entente de partage de commission and whether it qualifies as a transaction under art. 2631 C.c.Q.—involved mixed questions of fact and law requiring more than a cursory evidentiary review. Because of this, the court concluded it could not step into the arbitrator’s role and decide the merits of arbitrability itself.

Outcome and financial consequences

Having found that the dispute falls within the scope of the APCIQ arbitration scheme and that the issues raised are mixed questions of fact and law to be debated before the arbitrator, the Court of Québec held that the application to refer the parties to arbitration was justified. As a result, the court declined jurisdiction over the underlying commission-sharing dispute and ordered that the matter be referred to the APCIQ Arbitration Council in accordance with the Regulation. In light of this finding, it was unnecessary—and indeed impermissible—for the court to rule on CBRE’s allegation of abusive procedure or on its request for $2,500 in compensation for alleged abuse, since the court no longer had jurisdiction once it chose to refer the case to arbitration.

The judgment therefore grants the defendants’ application for referral to arbitration, formally declines the court’s jurisdiction to hear the merits, and orders that the parties proceed before the APCIQ Arbitration Council, with costs awarded “with judicial costs” in favour of the successful defendants. The decision does not adjudicate the merits of CBRE’s monetary claim for $72,850 plus taxes (total $83,356.88), nor does it fix the specific quantum of legal costs payable. Accordingly, while Daniel Garant and RSMI are the successful parties at this jurisdictional stage, no precise amount of damages, commission, or costs can be determined from the text of the judgment itself.