In Burwell v. Wozniak, 2024 ONSC 1234, the Court grappled with the appropriate standard of review to apply to arbitral awards. The heart of the underlying dispute was whether the appellant Burwell’s promise of shares in his company was sufficient to establish an estoppel against him in favour of his former partner, Wozniak. This case is noteworthy because most cases since Vavilov have not weighed in on the issue and have simply said that, regardless of the standard of review, the appellant does not meet it.
Continue reading “Ontario – Court weighs in on standard of review post-Vavilov (and decides) – #879”Québec – Court finds separate arbitration agreement, despite arbitration clause in contract – #857
In Roxboro Excavation Inc. v. Delsan-AIM Environmental Services Inc., 2024 QCCS 2331 the Court declined to hear a dispute between the Applicant, Roxboro Excavation Inc. (“Roxboro”), and the Defendant, Les Services environnementales Delsan-A.I.M. Inc. (“Delsan”), on the grounds that it lacked jurisdiction because the parties had agreed to submit the matter to arbitration. Even though the subject contract included an arbitration clause, the Court did not interpret the clause or otherwise consider whether that clause required the parties to arbitrate the disputes. The Court instead focussed its analysis and decision on a separate agreement the parties had negotiated to resolve their disputes by arbitration and not in court.
Continue reading “Québec – Court finds separate arbitration agreement, despite arbitration clause in contract – #857”B.C. – Court strictly enforces arbitration rules to foreclose leave to appeal award – #843
In Bollhorn v Lakehouse Custom Homes Ltd., 2024 BCCA 192, the Court dismissed an application by the Appellant/Plaintiff Robert Bollhorn for leave to appeal an award of an arbitrator. This outcome resulted from the Court’s application of Rule 27 of the Vancouver International Arbitration Centre (“VanIAC”) Domestic Arbitration Rules (the “Rules”) and Section 59(3) of the Arbitration Act, SBC 2020, c 2. The former operates to foreclose appeals where the award is issued under the Expedited Procedures of the Rules, which the Court found applied to the case. The latter provides that there can be no appeal on a question of law where the arbitration agreement – in this case the parties’ adoption of the Rules – expressly disallows it.
Continue reading “B.C. – Court strictly enforces arbitration rules to foreclose leave to appeal award – #843”Ontario – Abuse of process precludes re-litigating arbitrator bias allegation – #827
La Française IC 2 v. Wires, 2024 ONCA 171 involved an appeal from a judgment recognizing and enforcing an arbitration award obtained by the Respondent. The Appellant/Claimant in the arbitration, entered into a funding agreement. The arbitration arose when the Appellant/Claimant commenced proceedings seeking recovery of fees under the funding agreement. The central issue before the Court was whether the doctrine of abuse of process prevented the Appellant/Claimant from arguing on the application to enforce the judgment that the arbitrator was biased, when that issue had already been dismissed by the arbitral institution that heard and decided the challenge.
Continue reading “Ontario – Abuse of process precludes re-litigating arbitrator bias allegation – #827”Chris Reflects (2023): Arbitrator Bias and the Unanimous Award – #807
When will a court confirm a unanimous arbitral award issued by a three-person panel where one of those arbitrators was biased? This case note reviews three cases that try to answer that question. In each, the Court applied the Model Law. In one recent casethe Ontario Superior Court of Justice upheld the award, finding that the bias did not cause actual prejudice. The other two cases, one from India, the other from Germany, reached the opposite conclusion, highlighting the pernicious, and often unseen, effect that bias can have on the deliberative process.
Continue reading “Chris Reflects (2023): Arbitrator Bias and the Unanimous Award – #807”Québec – Arbitrator has jurisdiction to determine lien entitlement; only court has jurisdiction to enforce – #794
Santé Montréal Collectif CJV c. Veolia Health Services Montreal 2023 QCCS 3817 concerned a dispute relating to the construction of a hospital complex. The Respondent, Veolia Health Services Montreal sec (“Veolia”), alleged it was due money for repair work as part of its contractual obligation to perform maintenance after construction of the hospital complex was complete. It filed a notice of arbitration and at the same time a hypothec, or lien, against the subject property (the “Mortgage Notice”) with the court. The Applicant, Sante Montreal CJV Collective sec (“CJV”) built the hospital complex. It, had separate obligations to ensure the property was clear of encumbrances and applied to strike the Mortgage Notice (the “Request to Strike”). Even though only the Court had authority to discharge the Mortgage Notice, it nonetheless suspended CJV’s application, pending the determination of the arbitration, and ruled that the Veolia’s entitlement to relief pursuant to the Mortgage Notice was an issue for an arbitrator to decide.
Continue reading “Québec – Arbitrator has jurisdiction to determine lien entitlement; only court has jurisdiction to enforce – #794”B.C. – Court articulates principles on fixing conditions in leave applications – #778
In Kingsgate Property Ltd. v The Board of Education of School District No. 39, 2023 BCSC 1266, the Court considered the text, context and purpose of s. 31(3) of the (former) Arbitration Act R.S.B.C. 1996 c. 55 (the “Arbitration Act”). (Comparable language appears in s. 59(5) of the current B.C. domestic Act.) That section allowed a court to attach such conditions to an order granting leave to appeal an arbitration award as it considers just. The Court determined that s. 31(3) empowered the Court to impose conditions on granting leave to appeal that will prevent miscarriages of justice. Here, the Court made two such orders sought by the petitioner Kingsgate Property Ltd. (the “Tenant”). Firstly, the Court settled the terms of security with respect to the Tenant’s appeal of an award made in a rent review arbitration (the “Award”). Secondly, the Court ordered a stay of the Award and a default notice the Board of Education of School District No. 39 School Board (the “Landlord ”) had issued for arrears of rent (the “Default Notice”).
Continue reading “B.C. – Court articulates principles on fixing conditions in leave applications – #778”Ontario – Courts will also enforce agreements in favour of court proceedings – #758
In Eurofins Experchem Laboratories, Inc. v BevCanna Operating Corp., 2023 ONSC 4015, the Court dismissed an application by Defendant BevCanna Operating Corp (“BevCanna”) for a permanent stay of the action or alternatively, a permanent stay of any claims caught by the arbitration clause in the agreement between BevCanna and the Plaintiff, Eurofins Experchem Laboratories, Inc. (“Eurofins”). The Court found that Eurofins’s claim sought recovery of unpaid fees under the parties’ contract, even though it also included claims for breach of fiduciary duty and unjust enrichment. Claims for unpaid fees fell within an exception to the mandatory arbitration clause. It permitted (but did not require) claims for unpaid fees to be brought in the courts. In reaching this conclusion, the Court considered whether the essential character, or pith and substance of the dispute, was covered by the arbitration clause. This focus ensures that parties are held to their agreement and avoids attempts by clever counsel to plead their way around an arbitration clause.
Continue reading “Ontario – Courts will also enforce agreements in favour of court proceedings – #758”Alberta – “Participating in” not same as “taking a step in” an arbitration – #745
In Dow Chemical Canada ULC v NOVA Chemicals Corporation, 2023 ABKB 215, Justice Wooley dismissed an application by Dow Chemical Canada ULC (“Dow”) for an order declaring the invalidity of the arbitration pursuant to Section 47 of the Arbitration Act to enjoin an arbitration between the parties. That provision requires that the party seeking the order has “not participated in the arbitration.” The Court found that Dow did participate in the arbitration and the case provides a useful framework for what it means to “participate” in an arbitration.
Continue reading “Alberta – “Participating in” not same as “taking a step in” an arbitration – #745″Ontario – Court affirms narrow jurisdiction to set aside an arbitral award – #729
In Canada Soccer Association Incorporated v. Association de Soccer de Brossard, 2023 ONSC 1367, Bell J. dismissed a motion to stay an arbitral award and granted a cross-motion to enforce the award. The case is a reminder that applications to set aside arbitral awards which merely quarrel with the merits of a decision, even when dressed up as procedural grievances, attract little judicial sympathy.
Continue reading “Ontario – Court affirms narrow jurisdiction to set aside an arbitral award – #729”