Resolving your construction disputes without going to court.
WHAT IS ARBITRATION?
In the Quebec construction industry, disputes are commonplace. Missed deadlines, defects in workmanship, contested invoices, unpaid additional work, contract termination — the sources of conflict are many.
Yet few people know about a solution that can save time, money, and energy: arbitration.
Arbitration is a private dispute resolution process in which the parties entrust their dispute to a neutral third party — the arbitrator — whose decision is final and binding. Unlike mediation, where the goal is to find common ground, arbitration resembles a trial more closely: the arbitrator hears both parties, examines the evidence, and renders a decision — called an arbitral award — that is binding on all.
Arbitration is frequently found in commercial contracts, where the parties agree in advance to submit any future dispute to arbitrators rather than to the courts (art. 2638 C.C.Q.). This is known as an arbitration agreement. Where such an agreement exists, the court seized of the matter must, at the request of a party, refer the dispute to arbitration, unless it finds the agreement to be null (art. 622 C.C.P.).
WHO IS THE ARBITRATOR?
In Quebec, the parties themselves choose, by mutual agreement, the arbitrator who will decide their dispute (art. 624 C.C.P.). If needed, they may appoint more than one arbitrator: each party nominates one, and those arbitrators jointly designate a third.
In civil law, arbitrators are often lawyers or notaries specializing in the relevant field, but may also be engineers, accountants, architects, and so on, depending on the nature of the dispute. In general, parties select their arbitrator through an arbitration body such as the IMAQ, which provides a comprehensive list of accredited experts in all fields. If the parties cannot agree on the choice of arbitrator, the court may, at the request of one of the parties, take any necessary measure to ensure their appointment (art. 625 para. 1 C.C.P.).
Once chosen, the arbitrator has the same duties as a judge: they must be impartial and independent, in accordance with article 23 of the Charter of Human Rights and Freedoms.
WHY IS ARBITRATION PARTICULARLY SUITED TO CONSTRUCTION?
- Speed: A file before the Superior Court can take two to five years. In arbitration, the process unfolds over a few months. For a contractor whose cash flow is tied up, or a property owner whose work is stalled, this difference can be decisive.
- Technical expertise of the arbitrator: Construction disputes are often highly technical: calculation of extras, interpretation of plans and specifications, building standards, assessment of defects. The arbitrator can be chosen precisely for their expertise in the field — engineer, architect, technologist, or specialized lawyer. A generalist judge will not necessarily have these tools.
- Confidentiality: Arbitration takes place in private. The details of the dispute, the amounts at stake, and the award are not public — a precious advantage for protecting the reputation of businesses.
- Control over the process: The parties choose their arbitrator, agree on the schedule and procedural rules. This flexibility is absent in the courts, where the pace is dictated by the system.
ARBITRATION OR COURT? THE COMPARISON
Note: arbitration is not the same as mediation (which aims for a mutual agreement) nor as the court (public and state-run). It is a private, often fast and specialized choice, whose decision is just as binding as a judgment.
| Criterion | Civil court | Arbitration |
| Decision | By a judge — imposed | By the arbitrator — imposed |
| Binding nature | Yes — enforceable judgment | Yes — final award |
| Confidentiality | None — public hearing | Yes — in camera |
| Typical duration | 2 to 5 years | A few months |
| Technical expertise | Not guaranteed | Yes — chosen by the parties |
| Approximate costs | High ($10,000 to $100,000+) | Moderate — shared fees |
HOW DOES CONSTRUCTION ARBITRATION WORK?
Here are the five key steps of arbitration in the Quebec construction industry.
- Review the contract: Is there an arbitration or dispute resolution clause? If so, arbitration is generally mandatory. If not, the parties may agree to submit to it after the dispute arises.
- Send written notice: The party wishing to pursue arbitration notifies the other party in writing. This step officially triggers the procedure and marks the start of the applicable deadlines.
- Choose the arbitrator: The parties agree on an arbitrator (the IMAQ offers a wide range of accredited arbitrators). They may be an engineer, architect, or lawyer specializing in construction.
- Present evidence and arguments: Each party submits their documents, expert reports, and submissions — plans, specifications, contracts, change orders, site photos, emails, expert reports. The hearing may be oral or written.
- Receive the arbitral award: The arbitrator renders their decision in writing. It is final and may be homologated by the court to obtain the executory force of a judgment.
The arbitration proceeding is conducted at a hearing, in oral form, unless the parties agree otherwise (art. 633 para. 1 C.C.P.). The arbitrator controls the process but must ensure respect for the adversarial principle and proportionality: all parties must be duly heard.
In construction matters, evidence typically includes: plans and specifications, contracts, addenda and change orders, site photographs, expert reports, emails and correspondence, invoices, and progress billing.
The arbitrator has all necessary powers: they may administer oaths, appoint experts, and require the disclosure of relevant documents (art. 634 C.C.P.).
« An arbitral award is like a judgment. It is not a mere recommendation — the arbitrator decides, and the parties must comply. »
WHAT TYPES OF DISPUTES ARE SUBMITTED TO CONSTRUCTION ARBITRATION?
Disputes commonly resolved through arbitration in construction include:
- Non-payment for work or subcontracts
- Claims for unauthorized additional work
- Disputes over quality of execution or presence of defects
- Construction delays and penalty claims
- Unilateral termination of a construction contract
- Interpretation of ambiguous contractual clauses
- Disputes between general contractors and subcontractors
Where to start?
An unresolved construction dispute can paralyze a business. Arbitration offers a fast and final resolution — but knowing how to prepare and present your case effectively is essential. Whether you are a contractor, subcontractor, project owner, or property owner, our lawyers at Fiset Legal specialize in construction law and are accredited in arbitration. They know the challenges of the industry and will defend your interests with rigour.
