Executive Summary: Key Legal and Evidentiary Issues

• Girard Wellness inc. sued to annul its contract with 9497-2056 Québec inc. for error induced by fraud, claiming unjust enrichment in the alternative.
   
• 9497 brought a declinatory exception asking the Court of Québec to refer the dispute to arbitration under articles 535.5 and 622 C.C.P.
   
• Two clauses in the contract competed: one sent interpretation and application disputes to the Montréal courts, and the other sent all disputes to arbitration to the exclusion of the courts.
   
• Relying on the forum clause's placement before the arbitration clause, Girard argued that arbitration had become optional and invoked the contra proferentem rule as an adhering party.
   
• Applying the Uniprix framework, the court found only an apparent ambiguity and treated the arbitration clause as a specific carve-out from the general forum clause.
   
• Contra proferentem was held unnecessary as a rule of last resort, and the court added that arbitration would not work against the adhering party in any event.
   

Facts of the case

Girard Wellness inc. filed a claim in the Court of Québec, Civil Chamber, district of Montréal, against 9497-2056 Québec inc. It sought annulment of the parties' Services Agreement – Sterling Program, filed as Exhibit P-7. Girard alleged that its consent was vitiated by an error induced by 9497's fraudulent manoeuvres. In the alternative, it pleaded unjust enrichment. 9497 filed a declinatory exception under articles 535.5 and 622 of the Code of Civil Procedure asking the court to refer the case to arbitration. Justice Nicholas Daudelin heard the application on September 8, 2026, and delivered judgment on September 28, 2026. The judgment does not describe the services provided under the agreement or the facts behind the alleged fraud.

Policy and legislative provisions at issue

The dispute turned on two consecutive clauses in the contract. Under the first, titled "Jurisdiction and Election of District," Québec law governed the agreement. It also required that any dispute between the parties relating to the interpretation or application of the agreement that could not be settled amicably be brought before the courts of the judicial district of Montréal. The second clause, titled "Arbitration," provided that any disagreement or dispute arising as a result of or in connection with the contract would be finally settled by arbitration under the auspices of the Canadian Commercial Arbitration Centre, "to the exclusion of the courts." Arbitration was to proceed under the Centre's General Commercial Arbitration Rules in force when the contract was signed. Article 2638 C.C.Q. defines an arbitration agreement as an undertaking to submit a dispute to arbitrators to the exclusion of the courts. For the search for the parties' common intention, the court relied on article 1425 C.C.Q. It also drew on the interpretive principles in articles 1426 to 1432, including article 1427 on reading clauses in light of one another and article 1432, which it cited as the source of the contra proferentem rule. Articles 623 and 625 C.C.P. were cited as examples of the courts' role in assisting arbitration.

Reasoning and analysis

9497 argued that the arbitration clause was perfect and that the forum clause simply designated the district for proceedings needed to support the arbitration. Girard conceded that the arbitration clause was "very well drafted." It argued, however, that placing the forum clause first showed an intention to give the parties a choice between the Montréal courts and arbitration, which made arbitration optional. Under questioning, Girard accepted that the clauses could be reconciled on 9497's reading, but only if the forum clause had come after the arbitration clause. It also characterized the agreement as a contract of adhesion and made contra proferentem its main argument.

Justice Daudelin first held that arbitration clauses are to be read broadly and liberally, without any presumption in favour of the courts, and with the parties' autonomy as the guiding principle. Relying on the Court of Appeal's decision in Bâton Rouge, he found that he could rule fully on the objection, rather than on a prima facie basis, without undermining the competence-competence principle. At the first step of the Uniprix analysis, the court agreed with the parties that some ambiguity existed. It noted that, at first glance, the forum clause's broad wording went beyond the narrow assistance role 9497 attributed to it.

At the second step, which looks for the parties' common intention, the court applied the rule that specific clauses prevail over general ones. Placing the forum clause first, in the court's view, set a general principle of court jurisdiction. The arbitration clause then carved out from that principle every dispute arising from or in connection with the contract. Applications that arbitration could not handle remained with the Montréal courts, so the forum clause kept some content. According to the court, this reading gave effect to both clauses, read each in light of the contract as a whole, and avoided depriving the words "to the exclusion of the courts" of any meaning. Girard's reading, by contrast, would have let any dispute go to court and turned a clause both sides accepted as perfect into an optional one, which the court called illogical and untenable.

Girard's attempt to distinguish Morin-Houde, a Superior Court decision involving similar overlapping clauses, was rejected as artificial. Referring to the "interpretation or application" of an agreement, rather than to the agreement generally, did not make arbitration optional. Nor did the order of the clauses change the analysis. Justice Daudelin noted that Girard's own concession showed the clauses could be reconciled on 9497's reading, while Girard's reading produced an obvious conflict. Because the other interpretive rules had resolved the apparent ambiguity, contra proferentem did not need to be applied as a rule of last resort. Even if it had applied, the court did not see how sending the case to arbitration, which it described as a flexible and fast process, would work against the adhering party.

Ruling and overall outcome

The court granted 9497-2056 Québec inc.'s declinatory exception, declined jurisdiction, and referred the parties to arbitration under the parameters of the Services Agreement – Sterling Program. Legal costs were awarded to 9497 as the successful party, but the judgment does not state an amount. The court did not rule on the merits of Girard's claims for annulment and unjust enrichment.