Traditionally, the view of many practitioners in Québec has been that arbitrators did not have the power to force parties to an arbitration agreement to do or cease doing something, including the performance of their contractual obligations. This view was based on, among other things: (a) Article 751 of the Code of Civil Procedure (the "CCP") and the case-law applying that provision which provides that the Québec Superior Court (the "QSC") has the exclusive jurisdiction to issue the extraordinary remedy of injunctions (i.e. an order enjoining a person not to do or to cease doing something or, in applicable cases, to perform an act or operation, under pain of all legal penalties); and (b) Article 940.4 of the CCP which provides that "a judge or the court may grant provisional measures [seizures before judgment, judicial sequestration, and provisional and interlocutory injunctions] before or during the arbitration proceedings [...]".

Recently, however, this position has been nuanced by the courts in Québec who have distinguished between injunctions—which arbitrators cannot order—and arbitrators' powers to enforce specific performance of contractual obligations.

In Canadian Royalties Inc. v. Nearctic Nickel Mines Inc., 2010 QCCS 4600, the defendant challenged an arbitral award on the basis that the arbitrator had exceeded its jurisdiction by rendering conclusions that were akin to an injunction, namely, ordering the defendant to transfer ownership interest in property to the plaintiff and to take all necessary steps to complete this transfer. The QSC dismissed the defendant's challenge and, in so doing, distinguished between injunctions and orders for specific performance of contractual obligations. It noted that "all orders to perform contractual obligations are, taken in a large sense, orders of specific performance, but not all such orders are injunctions". The nuanced distinction between the two, according to the QSC, was that "orders are not injunctive if they do not require the exercise of judicial discretion to make them and further judicial intervention to enforce them thereafter" and that "they depend on conclusions [...] that automatically entail access to execution rather than punishment [such as by fines or imprisonment] of the debtor in order to obtain compliance." Examples of non-injunctive orders include orders to pay money, to vacate property, returning what was received under a contract, ordering a creditor to perform a contractual obligation in the place of a debtor, and an obligation to enter into a deed of sale. Ultimately, the QSC concluded that "if Quebec arbitrators could not give orders of specific performance of contracts not amounting to injunctions, they would be lame ducks and arbitration would not be taken seriously as an effective and complete means of resolving commercial disputes."

More recently, in Service Bérubé Ltée v. General Motors du Canada Ltée, 2011 QCCA 567, the Québec Court of Appeal (the "QCA") analyzed the powers of arbitrators to order the performance of a contract. In Service Bérubé, the plaintiff, a car dealer, asked the QSC to render various declaratory and injunctive orders to allow it to remain open pending a final resolution of its dispute with GM and to force GM to renew a franchise agreement. The parties were bound by an arbitration agreement and GM asked the QSC to refer the matter to arbitration. Service Bérubé opposed this request on the grounds that only the QSC could issue the other measures that were being sought. The QCA upheld the decision of the lower court and referred the parties to arbitration. Consistent with the decision in Canadian Royalties, the QCA concluded that in contractual matters, not all orders for specific performance constituted an injunction and that the relief sought in this case was compliance with a contract.

The decision in Canadian Royalties is under appeal and it is expected that a decision, which may provide further clarification on the jurisdiction of arbitrators and the distinction between injunctions and specific performance of contractual obligations, will be rendered by the QCA in the upcoming months.

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