Executive Summary: Key Legal and Evidentiary Issues

• Divergent arbitral rulings on document production, rejecting Tisseur’s claims of litigation and settlement privilege while upholding Enixum’s objections
• Challenge to the arbitral procedure based on alleged breach of audi alteram partem due to ex parte voir-dire format and absence of subsequent adversarial exchanges
• Argument that a non-party (STM) held concurrent privileges over documents and should have been heard before the arbitrator ruled on disclosure
• Limits on Superior Court intervention in consensual arbitration, emphasizing the absence of appellate jurisdiction and narrow grounds for annulment or judicial assistance
• Management of confidential and potentially privileged documents, including strict confidentiality measures and a sealing order over court-filed exhibits
• Short procedural stay granted and then lifted, with only a modest extension of time for Tisseur to comply with the arbitrator’s production order and costs awarded to Enixum

Facts of the case

Tisseur inc. acted as general contractor and Services électriques Enixum inc. as electrical subcontractor on a project for the Société de transport de Montréal (STM). Their relationship was governed by a subcontract that included a “clause compromissoire parfaite,” under which the parties agreed to submit all real or anticipated disputes to arbitration rather than to the ordinary courts. In the arbitral proceedings, Enixum claimed payment of sums it alleged were owed under the subcontract. An arbitrator, Me Olivier Després, was appointed to hear the dispute and manage pre-hearing steps, including document production.

During disclosure, each side served document requests on the other. Both parties raised objections to producing certain requested documents. Tisseur invoked litigation privilege and settlement privilege to resist disclosure of 18 documents. Enixum also objected to production of some documents requested from its side. These objections led to two interlocutory decisions from the arbitrator dated 21 January 2025: Decision no. 2, dismissing Tisseur’s privilege objections and ordering disclosure of the disputed documents by 31 January 2025 at 16:00, and Decision no. 3, upholding Enixum’s objections and relieving it from producing its contested documents.

Arbitration background and interlocutory decisions

The hearing on the objections took place on 10 January 2025 according to an arbitration timetable signed by the parties in early December 2024. Under that schedule, a voir dire on Tisseur’s objections was fixed at 9:00 and a separate voir dire on Enixum’s objections was fixed at 14:00. The procedure followed that plan. In the morning, Tisseur’s lawyers presented their position to the arbitrator ex parte, in the absence of Enixum, while the arbitrator reviewed the 18 challenged documents. In the afternoon, Enixum’s lawyers made their submissions, also in the absence of Tisseur, using the same TEAMS virtual platform. Eleven days later, the arbitrator issued Decisions no. 2 and no. 3 on the parties’ competing objections.

After receiving these decisions—unfavourable to Tisseur on its own privilege objections and favourable to Enixum on its objections—Tisseur turned to the Superior Court. It filed an application to annul the two interlocutory awards and requested a stay of the arbitrator’s Decision no. 2, as well as ancillary orders. The key urgency arose because Tisseur’s deadline to produce the privileged documents under Decision no. 2 expired at 16:00 on 31 January 2025. That same afternoon, the Superior Court heard the stay motion on a contested, expedited basis. The arbitrator advised the Court he would not attend. Faced with a hearing that would extend past 16:00 and the impossibility of rendering a final judgment that day, the judge temporarily stayed Decision no. 2 until he could deliver reasons.

Grounds invoked by Tisseur before the Superior Court

Tisseur advanced three main grounds in support of its application. First, it alleged a breach of audi alteram partem, arguing that after the ex parte voir dire format, the arbitrator ought to have reconvened both parties together for three additional steps before deciding: a summary explanation of his analysis of the contested documents, Enixum’s oral argument contesting Tisseur’s objections, and Tisseur’s reply to Enixum’s submissions. It submitted that this type of two-stage, adversarial process was required by procedural fairness and drew on prior case law to support that view.

Second, Tisseur argued that STM, as the project owner, also held rights to assert litigation privilege and settlement privilege over some of the documents. In its view, the arbitrator could not lawfully dispose of those privileges without first ensuring STM had an opportunity to be heard, and it was the arbitrator’s responsibility to secure STM’s participation if necessary.

Third, Tisseur attacked the merits of the arbitrator’s legal reasoning on privilege. It contended that the arbitrator erred in law in his application of the governing rules on litigation privilege and settlement privilege, both in rejecting Tisseur’s privilege claims and in sustaining Enixum’s own objections.

Beyond these grounds aimed at annulment on the merits, Tisseur also sought, at the safeguard stage, specific procedural orders directed at the arbitrator. It asked that he be compelled to provide the portion of the hearing recording containing Enixum’s afternoon submissions on Tisseur’s objections, as well as to prepare a formal procès-verbal of the 10 January 2025 hearing.

Assessment of procedural fairness and third-party interests

On the alleged breach of audi alteram partem, the Court stressed the importance of the parties’ own agreed arbitration timetable. The scheduling document signed in early December 2024 expressly contemplated that the voir dire on Tisseur’s objections would be held in the morning and that on Enixum’s objections in the afternoon, both on 10 January 2025. The ex parte format was thus foreseen and implemented without contemporaneous objection from either party. The judge noted that if Tisseur had genuinely expected to be reconvened for additional adversarial exchanges later that day, it should have raised the issue when no such reconvocation occurred. Raising this procedural concern only after receiving unfavourable decisions gave the argument an opportunistic character in the Court’s view. The Court held that the particular multi-step process Tisseur described did not have any absolute or mandatory status and therefore rejected the first ground.

On the second ground, concerning STM’s putative rights, the Court concluded that Tisseur’s position misconceived where any obligation lay. Assuming STM had concurrent rights to assert privilege, it was for Tisseur—not the arbitrator—to take steps to involve STM or secure its input before the objections hearing. Tisseur had done nothing in that regard prior to the debate on the objections. The Court also emphasized that a third party’s rights of this nature are not absolute. The arbitrator had in fact invited the parties to agree on strict confidentiality measures to protect the documents in question, failing which he would issue a confidentiality order himself. In these circumstances, the Court rejected the second ground as well.

Judicial deference to consensual arbitration and limits on court intervention

On the third ground, attacking the substance of the arbitrator’s privilege analysis, the Court reaffirmed the high level of deference owed to consensual arbitration. It underlined that judicial courts are not to intervene as appellate tribunals in arbitral proceedings; they must instead give effect to arbitration clauses freely negotiated by the parties. The Superior Court has no appellate jurisdiction over consensual arbitration awards and its inherent supervisory power does not operate as a general review jurisdiction over arbitration. The Court stressed that judicial powers with respect to arbitral tribunals fall into two narrow categories: (1) recognition, homologation, and annulment of arbitral awards based on specific, tightly framed grounds, and (2) assistance and support to facilitate the arbitral process in defined situations. Against that backdrop, a disagreement with the arbitrator’s interpretation or application of privilege rules is not a proper basis for judicial intervention. The third ground was therefore dismissed.

In addition, the Court refused Tisseur’s request to compel the arbitrator to produce the recording of Enixum’s afternoon submissions and a procès-verbal of the 10 January 2025 hearing. Granting such relief, especially coupled with a further stay of Decision no. 2 pending an annulment decision, would involve a judicial court in the internal procedural mechanics of a consensual arbitration. The Court regarded such an intrusion as incompatible with the limited, supportive role assigned to courts under the arbitration framework.

Confidentiality, sealing order, and procedural outcome

At the hearing, the judge had ordered that exhibits A-1 to A-15 filed in the Superior Court record be sealed. In his written reasons, he confirmed that sealing order, reflecting the sensitivity and confidentiality of the documents at issue in the privilege dispute. At the same time, subject to that confidentiality protection, the Court declined to disturb the arbitral decisions or to interfere with the progression of the arbitration beyond the minimum necessary.

Substantively, the Court rejected Tisseur’s application for a stay and related orders, except to the extent of the sealing measure. It confirmed that the earlier, temporary stay of Decision no. 2—pronounced only to bridge the gap between the 31 January 2025 hearing and the present judgment—expired with the issuance of this judgment. To avoid prejudicing the orderly conduct of the arbitration, however, the Court modestly extended the deadline originally set in Decision no. 2. The time for Tisseur to comply with the arbitral order to produce the contested documents was extended to 7 February 2025 at 16:00, subject always to any different order the arbitrator might make.

In terms of costs, the Court ordered Tisseur’s motion dismissed, with legal costs in favour of Services électriques Enixum inc., thereby making Enixum the successful party in this Superior Court proceeding. The judgment does not specify the quantum of those costs, nor does it award any particular damages or quantified monetary sum beyond the general award of costs. As a result, while Enixum is clearly the successful party, the exact total monetary amount of costs or other sums ordered in its favour cannot be determined from this decision.