Mediation and Arbitration

Since September 1, 2026, out-of-court forced execution has, in certain cases, made it possible to collect a monetary claim in Quebec without first obtaining a judgment on the merits, provided that there is a notarial act en minute containing a clause to that effect and that the obligation in question is determined or determinable, exigible, and not excluded by law or regulation. What is out-of-court forced execution? Out-of-court forced execution is a mechanism designed to facilitate the collection of certain claims by allowing, when a notarial act exists, for the execution of certain specified monetary obligations without first having to obtain a judgment on the merits. This new mechanism, which has been in effect since September 1, 2026, promotes access to justice and helps reduce the time and costs associated with such proceedings. Out-of-court forced execution is not automatic; it must be specifically provided for in a notarial act and must relate to a clear, liquid, and exigible monetary obligation. The basis of out-of-court forced execution: Notarial acts en minute Access to this mechanism is contingent upon the inclusion, in a notarial act en minute, of a clause that complies with the requirements of the Regulation respecting the forced execution of the payment of a claim resulting from the non-performance of an obligation recorded in a notarial act, setting forth the terms and conditions for accessing out-of-court forced execution. The notary plays a crucial role, not only as a drafter but also as a public official bound by a duty to provide impartial and personalized advice, ensuring the parties’ free and informed consent. With this in mind, the automatic inclusion of a dispute resolution clause simply through the use of non-customizable templates should be avoided: the clause must reflect an informed choice that has been explained and accepted by both parties. Collaboration between the notary and the various professionals involved is therefore crucial, given the need to discuss with both parties whether it is appropriate to include such a clause. Since this provision must be agreed upon by both parties, it is important to fully understand how such a mechanism works, and to tailor the advice provided to the nature of the undertaking. Greater caution is warranted when obligations are reciprocal (with the parties alternately acting as creditors and debtors), or when the contractual mechanism may lead to the monetization of an obligation that was originally in kind, which can increase uncertainty and encourage contestation. In general, caution is also warranted when obligations are future, conditional, complex, or subject to interpretation. As for the requirements, the clause setting forth the terms and conditions for accessing out-of-court forced execution must, first and foremost, be included in the body of the notarial act en minute (and not in an appendix or an external clause). Next, the monetary obligation in question must be determined or determinable. The professional must also ensure that the monetary obligation does not fall into an excluded category by law or under the Regulation respecting the forced execution of the payment of a claim resulting from the non-performance of an obligation recorded in a notarial act. The excluded categories include, as applicable: Non-monetary obligations; Certain obligations secured by a hypothec, and those subject to another method of execution; Situations involving consumer protection; Obligations subject to arbitration; Certain obligations involving the State; and Others.  The parties may also contractually exclude certain monetary obligations, provided that such exclusions are clearly stated. How does out-of-court forced execution work? Once the parties have agreed to include an out-of-court forced execution access clause, the decision to use out-of-court forced execution rests with the creditor, and the debtor may not object (section 3, Regulation respecting the forced execution of the payment of a claim resulting from the non-performance of an obligation recorded in a notarial act). The creditor may also choose another method of execution provided for in the act. However, if the notarial act requires mediation to resolve a dispute, the creditor must first comply with that requirement before using out-of-court forced execution. The debtor’s three options within the 30-day period Subsequently, a payment order is prepared by the creditor in accordance with the mandatory requirements set forth in the regulation. The payment order and related documents are then served on the debtor, which formalizes the default and triggers the strict 30-day period granted to the debtor to remedy the default. Before this deadline expires, the debtor has three options: They may pay the claim in full, which will result in the termination of the out-of-court forced execution mechanism. They may enter into a payment agreement, with or without the assistance of the bailiff, thereby suspending the out-of-court forced execution mechanism, with the possibility of reinstatement in the event of default. They may contest the payment order in the appropriate court, which also has the effect of suspending the out-of-court forced execution mechanism. However, the contestation must be served on the creditor and the bailiff, and the supporting documents must be filed within ten days of the contestation. What happens if there is no payment, no agreement, and no contestation? In the absence of full payment, and in the absence of an agreement or a contestation, the bailiff may, upon expiration of the deadline, proceed with the execution of the payment order, which, under these circumstances, acquires the enforceable status of a judgment (section 9, Regulation respecting the forced execution of the payment of a claim resulting from the non-performance of an obligation recorded in a notarial act) and all of the effects thereof. The effects associated with out-of-court forced execution are significant. An uncontested payment order carries a prescription period equivalent to that of a judgment—that is, ten years—and allows for the registration of a legal hypothec and the resulting seizures, while maintaining its rank in the collocation of creditors. The creditor remains, however, an ordinary creditor and is subject to the applicable priority rules with respect to ranking. Advantages and limitations of out-of-court forced execution for the creditor and the debtor For the creditor, out-of-court forced execution can offer greater predictability when the debt is clear, quick access to execution without having to go through the courts, and a significant reduction in collection costs. The mechanism is also advantageous because of the effects associated with an uncontested payment order. However, out-of-court forced execution has certain limitations. It should be noted that this mechanism is strictly limited to monetary obligations. If a dispute arises, it may be suspended or delayed, in which case legal action may become a possible outcome. For the debtor, out-of-court forced execution includes some valuable protections. At the time the act is signed, the debtor receives guidance from the notary to ensure that their consent is freely given and informed. This mechanism can prevent immediate legal proceedings and allows the debtor to contest the payment order within the 30-day period granted to them. Conclusion Out-of-court forced execution is a tool accessible through a notarial act en minute. It is an effective, quick, and cost-efficient process that has the potential to prevent litigation if the required conditions are met. Thus, this new measure is based on the existence of a valid notarial act en minute and determined or determinable monetary obligations that are not excluded. It is also based on strict compliance with the formalities of payment orders. At a time when it is desirable to develop solutions to facilitate better access to justice, this alternative could help alleviate the backlog in the judicial system. It will be interesting to closely monitor the implementation and future use of out-of-court forced execution, keeping in mind that it all begins with a notarial act en minute. Takeaways 1. Out-of-court forced execution does not apply to all claims. It pertains to certain monetary obligations set forth in a notarial act en minute containing a valid access clause. 2. This mechanism allows the creditor to take action without a prior judgment on the merits. After a payment order is served, the debtor has 30 days to pay, reach a settlement, or contest the order. 3. An uncontested payment order may have effects comparable to those of a judgment. In particular, it may become enforceable, trigger a 10-year prescription period, and allow for certain collection measures, subject to the applicable rules.

On October 28, 2025, the government passed An Act to improve certain labour laws,1 also referred to as Bill 101. The reform has the stated objective of improving efficiency in grievance arbitration, in particular by reducing processing times, implementing a more structured case management system, and ensuring more thorough case preparation. The explanatory notes expressly state the intention to “determin[e] the rules relating to the communication of evidence before the hearing of the grievance.”2 In this context, the Labour Code3 was amended to introduce, among other things, section 100.3.1, which now requires parties to disclose in advance the evidence they intend to present, as well as the list of witnesses:  100.3.1. The party that intends to produce an exhibit or other evidence at the hearing must provide a copy of it to the other parties and the arbitrator within the time agreed upon at the pre-hearing conference or at least 30 days before the beginning of the hearing, except in an urgent situation or unless otherwise decided to ensure the proper administration of justice.  The party must, in the same manner, provide a list of the witnesses it intends to call and a list of those whose testimony it intends to present in the form of affidavits, unless there is valid cause not to disclose their identities.  The party must also file with the arbitrator proof that the copy has been provided to the other parties.  This change has significant practical implications. For decades, the issue of advance disclosure of evidence in grievance arbitration has given rise to conflicting jurisprudence. A majority view held that the arbitrator could not require a full exchange of evidence outside the hearing, while a minority view recognized a broader scope for intervention in the interest of fairness and the proper administration of justice.4 Several authors have criticized the role of surprise in arbitration. They found that a lack of advance disclosure leads to unnecessary debates, causes delays and adjournments, and contributes to making the process more cumbersome. Author and arbitrator Marc Mancini aptly summarizes the issue. He points out that the fact that rules governing the advance disclosure of evidence in grievance arbitration are virtually nonexistent can, in certain cases, encourage games of hide-and-seek between the parties.5  Section 100.3.1 is therefore triggering a cultural shift. Advance disclosure is no longer merely a cooperative practice that takes place only when the parties consent to it. It is a legislative obligation, subject to only two exemptions: an urgent situation or when a decision is otherwise rendered to ensure the proper administration of justice.  Under this new framework, an initial interlocutory judgment—eagerly awaited by legal practitioners—has clarified the scope of the obligation and, above all, how strictly the exemption for the proper administration of justice is enforced. It was rendered by arbitrator Isabelle Leblanc on June 22, 2026, in Syndicat des professeures et professeurs du Cégep Marie-Victorin and Cégep Marie-Victorin.7  Background on the ruling  The dispute arose in the context of workplace disciplinary measures that included a dismissal. The employer requested an exemption from the requirement to disclose certain documents in advance—primarily messages exchanged on social media and via text—which it preferred to disclose either during or after the complainant’s testimony. The union opposed the exemption, citing the very rationale behind the reform.  In her ruling, the arbitrator first notes that advance disclosure is now the rule and that parties can no longer treat it as a matter of procedural discretion. Advance disclosure, she states, is a strict procedural duty that may be waived only in urgent situations or for the proper administration of justice.  She frames the duty within Bill 101, stating that the reform aims to reduce processing times, enable the parties to better prepare their cases, and promote the resolution of disputes based on evidence known to both sides.  A ruling that’s open to interpretation, yet still sends a clear message  This ruling should be interpreted carefully. The arbitrator herself highlights the unique aspects of the case, in particular that the complainant was either the sender or the recipient of the messages the employer sought to use. The complainant was therefore already aware of the messages, even though he claimed to have deleted them and no longer to have them in his physical possession prior to his testimony.  From a practical standpoint, the arbitrator highlights the risks that inefficiency can entail. She notes that failure to provide advance disclosure may hinder the search for the truth, not because the facts are actually disputed, but because the normal limitations of memory may affect responses. She also notes that failure to provide advance disclosure impacts the efficiency of the hearing due to the time required to review the messages in the hearing room, especially given their volume.  From a legal standpoint, the arbitrator rejects the employer’s argument, one based on having a full and complete defence. She deems the concept inapplicable in arbitration and shifts the focus to the concept of the right to be heard. In her view, withholding evidence in the name of the right to be heard would amount to encouraging a practice that undermines the other party’s right to properly prepare and defend itself.  She specifies that the employer would have to demonstrate a real, concrete, and disproportionate infringement of his rights, constituting a heavy burden of proof that was not met in this case. She suggests that exemptions should not be viewed as merely a way out when advance disclosure is uncomfortable or strategically disadvantageous.  It is important to remember that each case is unique. Section 100.3.1 grants the arbitrator discretion based on the principle of the proper administration of justice, and it is possible that other arbitrators may reach different conclusions depending on the facts.  Rethinking disciplinary investigations and how we gather versions of the facts  A practical lesson emerges clearly from this ruling and is of direct interest to human resources and labour relations managers. The arbitrator points out that the employer already has a forum to assess the employee’s credibility: the investigation conducted prior to imposing the disciplinary measure. She highlights that, while evidence is not generally disclosed during investigations, this is often a deliberate choice rather than a necessity. She adds that the employer is not precluded from challenging the employee’s credibility and that it may do so during the investigation.7  Bill 101 and this ruling therefore call for a more rigorous structure for disciplinary investigations, not only to establish the facts but also to verify the consistency and reliability of the explanations before a decision is made. In many cases, this means the better planning of meetings aimed at gathering the versions of the facts. It is essential to ensure that the relevant questions are asked during the investigation, that the answers are accurately recorded, and that the person in question can clearly explain the allegations against them, especially when the employer intends to rely on this evidence. This way, there is less risk that a late review of evidence will slow down proceedings with delays and interruptions.  In light of these lessons, it appears that the following practices deserve consideration when conducting disciplinary investigations:  Clarifying from the outset what the allegations are and what needs to be verified, and then adjusting the investigation as findings emerge;  Preparing an agenda to gather the parties’ versions of the facts and identify the documents to be discussed;  Documenting responses accurately and completely, including nuances, corrections, and explanations;  Submitting written materials during the investigation, when applicable, to obtain comprehensive and contemporaneous explanations;  Addressing any contradictions or grey areas during the investigation, rather than letting them become more pronounced during the hearing; and  Ensuring that the disciplinary decision reflects the facts known at the time it is made and that the investigation file provides a clear explanation of the decision.  We will closely monitor future rulings under section 100.3.1, as the jurisprudence will clarify, over time, the practical scope of the exemption for the proper administration of justice, as well as its limits in disciplinary matters. In this ever-changing environment, we remain available to assist employers from the investigation stage through to arbitration in order to minimize the risk of contestation and strengthen their case.  SQ 2025, c. 28. Idem., Explanatory Notes. CQLR, c. C-27. Marc Mancini, Frédéric Poirier and Stéphanie Lalande, La preuve et la procédure en arbitrage de griefs, 3rd ed., Wilson & Lafleur, Montréal, 2026, pp. 117–127. Marc Mancini, “Et si la Règle de Browne c. Dunn s’appliquait en arbitrage de griefs au Québec : analyse réflexive sur les enjeux de divulgation de la preuve”, in Sébastien Beauregard et al., 50e anniversaire de la conférence des arbitres du Québec - Un demi-siècle de réflexion et d’évolution, Wilson & Lafleur, Montréal, 2024, pp. 74–83, 93. Syndicat des professeures et professeurs du Cégep Marie-Victorin and Cégep Marie-Victorin, 2026 QCTA 284 (Ms. Isabelle Leblanc). Idem., para. 58.

This bulletin addresses the same subject as a first bulletin we published on March 10, 2025, regarding Bill 89 tabled by the government. The bill was assented to on May 30, 2025, with a number of amendments and clarifications. The bill provides for major amendments to the Labour Code (L.C.) to improve the way in which the needs of the population are taken into account during labour disputes by introducing two new mechanisms, in particular. Firstly, it grants the Minister of Labour the power to refer parties to binding arbitration when the Minister considers that a strike or lockout is causing or threatening to cause serious harm to the public after unsuccessful mediation or conciliation. Secondly, it creates a framework for a new category of services to be maintained, those “ensuring the well-being of the population,” under which critical services will be maintained during strikes or lockouts. Having followed the parliamentary proceedings closely, we noted that a number of significant amendments were made to the bill since it was introduced. The time limit to negotiate services ensuring the well-being of the population was changed from fifteen to seven clear working days and the date of entry into force of the new provisions postponed to November 30, 2025. During the parliamentary debates, the Minister gave a few examples of what could fall under the concept of “social, economic or environmental security” for the population. Social security could be at stake in situations affecting the development of a vulnerable person, or in cases linked to poverty, isolation or food insecurity, among others. Economic security could also be compromised in similar circumstances, particularly when they affect the ability to get to work or earn wages. The concept of environmental security may include natural disasters or a significant deterioration in environmental quality, in particular. Although it will ultimately be up to the courts to rule on the scope of these new provisions, we believe that the points raised in parliamentary committee will affect how they are interpreted. The following table illustrates the main differences between the general essential services framework that apply to the public services covered by the Act and the new measures that can be put in place to protect the population:   Essential services among public services  Services ensuring the well-being of the population Special powers granted to the Minister Scope of application (subject to exclusions)  Public or comparable services (ss. 111.0.16 and 111.0.17 L.C.) Parties designated by the government by order (s. 111.22.4 L.C.) Any dispute, but does not apply to certain sectors or organizations listed in s. 111.32.1 L.C. Process by which dispute is rendered subject to mechanism ALT decision (s. 111.0.17 L.C.) ALT decision (s. 111.22.5 L.C.) Notice from the Minister to the parties (s. 111.32.2 L.C.) Application criteria Possibility of endangering public health or safety (s. 111.0.17 L.C.) Disproportionate impact on the social, economic or environmental security of the population, particularly that of persons in vulnerable situations (s. 111.22.3 L.C.) Labour conflict that causes or threatens to cause serious or irreparable harm to the public and unsuccessful intervention of a conciliator or mediator (s. 111.32.2 L.C.) Effect once subject to mechanism Right to strike temporarily suspended until legal requirements are met (s 111.0.17 L.C.)   Right to lockout prohibited in public services (s. 111.0.26 L.C.)   Continuation of strike or lockout after a decision making the dispute subject to the mechanism is rendered, unless exceptional circumstances warrant otherwise pending a decision by the ALT on whether the minimum services to be maintained are sufficient (s. 111.22.11 L.C.) Right to strike and lockout ceasing at the time indicated on the Minister’s notice (s. 111.32.2 L.C.) Procedure 1. Mandatory negotiation between the parties (s. 111.0.18 L.C.) 1. Mandatory negotiation between the parties within seven clear working days of an ALT decision (s. 111.22.7 L.C.) Parties consulted for 10 days on choice of arbitrator. If this fails, appointment by the Minister (s. 111.32.3 L.C.)   At any time, the parties may agree upon one of the matters of the dispute. The agreement shall be recorded in the arbitration award, which shall not amend it (s. 111.32.4 L.C.). Procedure 2. Forwarding of the agreement to the ALT for sufficiency assessment. If no agreement is reached, the union must forward a list of which services must be maintained (s. 111.0.18 L.C.). 2. Forwarding of the agreement to the ALT for sufficiency assessment (s. 111.22.8 L.C.) Dispute referred to arbitration, with necessary adaptations (ss. 111.32.2 and 111.32.5 L.C.) Procedure 3. ALT can help the parties to reach an agreement (s. 111.0.18 L.C.) 3. ALT can help the parties to reach an agreement (s. 111.22.7 L.C.) n/a ALT’s main role Sufficiency assessment, recommendations to parties in the event of insufficiency (s. 111.0.19 L.C.) Sufficiency assessment, determination of services to be maintained in case of insufficiency or if no agreement is reached (ss. 111.22.8 and 111.22.9 L.C.) Rule on the conditions of employment in dispute. Term and amendment of decisions The ALT’s decision to require a certified association and an employer to maintain services applies to each negotiation stage.   The ALT may also amend or revoke its decision at any time (s. 111.0.17.1 L.C.). The ALT’s decision to require a certified association and an employer to maintain services applies to the negotiation stage in progress.   The ALT may also amend or revoke its decision at any time, after the parties have submitted their views (s. 111.22.10 L.C.). Save for some exceptions, the award binds the parties for no less than one year or more than three years. The parties may, however, agree to amend the content, wholly or in part (s. 92 L.C.).   The arbitrator may at any time correct an award containing a mistake in writing or calculation or any other clerical error (s. 91.1 L.C.). Entry into force October 30, 2019 November 30, 2025 November 30, 2025 Note that we summarized the information above to make it concise. Given the complexity of the provisions in question and the many nuances and clarifications that may apply, you should read the specific provisions of the Labour Code or contact your legal advisors before making any decisions. We are available to answer any questions you may have about the impact of these new provisions on your business or to help you address such matters.

Understanding the House Agreement On June 6, 2025, a landmark settlement catalyzed a major turning point and reshaped the dynamics of American collegiate sports. By approving the House v. NCAA settlement, U.S. courts authorized universities to directly compensate their athletes for the use of their name, image, and likeness (NIL), which represents a significant departure from previous restrictions. In practical terms, NIL rights grant athletes’ exclusive control over their personal brand, enabling them to generate revenue from the commercial use of their identity. In addition to establishing a new legal framework, this settlement provides for a retroactive payout of $2.8 billion to be shared among Division I athletes, the National Collegiate Athletic Association (NCAA)’s top tier, who have competed since 2016. Building on the Supreme Court’s 2021 ruling in NCAA v. Alston, this development stems from the Court's determination that the NCAA’s restrictions on certain education-related benefits constituted antitrust violations. While Alston laid the groundwork for the commercialization of NIL agreements, the subsequent years were plagued by legal uncertainty and a lack of consistency in regulations surrounding the compensation of collegiate athletes. As states and universities implemented divergent policies and internal rules, former Alabama head coach Nick Saban posed a question that remains unanswered to this day: “Where does it end?” A Uniform National Framework at Last The House v. NCAA settlement establishes the first nationwide framework for compensating collegiate athletes. Starting in the 2025-2026 academic year, Division I programs will be permitted to allocate up to $20.5 million annually distributed among their athletes, covering both athletic potential and NIL monetization. This represents a major shift, as universities themselves, not just third-party sponsors, will now be able to directly fund their athletes. Simultaneously, an independent entity, the College Sports Commission LLC, has been established to oversee NIL agreements valued at $600 or more. The Commission will have the authority to approve, modify or reject deals that exceed fair market value or deviate from their intended purpose. For instance, NIL deals cannot reward athletic performance, influence recruitment or transfer decisions, nor serve as disguised salaries, practices commonly known as pay-for-play incentives. To ensure prompt and confidential resolution of disputes, the agreement introduces an expedited arbitration mechanism. Managed by an independent panel, this procedure requires parties to submit their documents within a short timeframe, with decisions to be rendered within 45 days of case initiation, and with no possibility for appeal. The goal is to safeguard athletes’ rights while preventing an overload of NIL-related cases in civil courts. In the wake of this recognition, the introduction of direct payments and the consolidation of the NIL framework are also reshaping traditional career paths for collegiate athletes. Increasingly, collegiate athletes are choosing to delay their entry into professional drafts, particularly in the NBA and NFL, to benefit from the financial and strategic advantages that college sports now offer. For athletes who are not guaranteed an early draft selection, staying in school can mean earning substantial income, sometimes comparable to that of professional athletes, while retaining greater control over the development of their athletic careers. In an increasingly competitive market, this new leverage is redefining the balance of power between athletes, universities, and professional franchises. This reform also resonates with the journeys of several Quebec athletes who came up through the NCAA, such as Bennedict Mathurin and Luguentz Dort, both of whom reached this year’s NBA Finals. Their stories illustrate how American college sports can serve as a powerful gateway that now financially recognizes and rewards its athletes. The fact that these players grew up in Montréal-North before rising through the NCAA makes it clear that Quebec is claiming its place in this evolving landscape, not only as a pool of talent, but also as a fertile soil for cultivating collegiate careers that are both inspiring and financially profitable. What Lies Ahead? While this reform represents a milestone, it also prompts significant new legal challenges. A pending appeal challenges the $2.8 billion retroactive payout, arguing that it could violate Title IX’s mandate for gender equity in federally funded education programs. Critics warn that, without clear safeguards, the distribution may exacerbate rather than reduce existing disparities between men’s and women’s sports. Furthermore, the Johnson v. NCAA case is currently pending before the U.S. District Court for the Eastern District of Pennsylvania, where collegiate athletes are seeking to be recognized as university employees, which would entitle them to a minimum wage and other labour protections. With over 350 universities and approximately 200,000 athletes impacted, the implementation of this reform is likely to vary significantly across institutions. Collegiate athletics is entering a new era of remunerated athletes but remains for the moment in a state of transition and uncertainty.