Cynthia Kuehl, Author at Arbitration Matters

June 6, 2023June 20, 2023

Ontario – Competing “jurisdiction” clauses result in application for stay being dismissed – #743

In RH20 North America Inc. et al v. Bergmann et al, 2023 ONSC 2378, the moving defendants brought both a motion under Rule 21 striking out certain of the plaintiff’s claims as disclosing no reasonable cause of action, and an application for a stay for want of jurisdiction on the basis of arbitration clauses in their underlying contracts with the plaintiffs. They met with divided success. While granting relief on the Rule 21 motion, Justice Valente dismissed the stay application on a variety of grounds, including that there were competing arbitration and jurisdiction clauses and that there was an attornment to the court’s jurisdiction as a result of bringing the Rule 21 motion.

April 11, 2023April 10, 2023

B.C. – Arbitrator’s findings binding in subsequent court proceeding – #727

In his judgment from the trial in Betts v. Zienowicz, 2023 BCSC 328, Justice Macintosh considered, as a preliminary matter, the admissibility of findings of fact made in an earlier arbitration between the same individual parties and regarding the same issues. As no appeal had been taken from the Arbitrator’s award and given the deference owed to arbitral findings, Justice Macintosh adopted the facts as found by the Arbitrator in considering the issues before him. He then went on to find in favour of the plaintiffs, as had the Arbitrator.

February 15, 2023February 10, 2023

Saskatchewan – Tribunal to decide whether arbitration clause is unconscionable – #711

In Singer Enterprises Inc. v. Parrish & Heinbecker, Ltd., 2022 SKKB 268, Justice Currie found, based on the principles of competence-competence, that an arbitral tribunal has the jurisdiction to determine whether an arbitration clause is unconscionable and improvident, because such a determination is not a question of law alone and requires a review of the facts. He stayed the plaintiff’s action pending that determination by the tribunal in an arbitration already commenced by the defendant.

December 19, 2022December 15, 2022

Ontario – High threshold to set aside international award for damages not met – #694

In Clayton v. Attorney General of Canada, 2022 ONSC 6583, Justice Akbarali rejected an attempt to set aside a damages award made by a three-member tribunal (the “Tribunal”) originally constituted under Chapter 11 of the North American Free Trade Agreement (“NAFTA”). The applicants argued that the Tribunal had exceeded its jurisdiction in respect of the legal standard to be applied, breached procedural fairness by refusing to admit certain expert evidence, and rendered an award that was contrary to public policy. Citing previous jurisprudence on the high thresholds to be met for each of these grounds to succeed – thresholds consistent with deference to arbitral tribunals, – Justice Akbarali found no errors had be committed. She dismissed the application.

October 11, 2022October 7, 2022

Manitoba – Arbitration Agreement Invalid due to Unconscionability and no Consideration – #669

In Pokornik v. SkipTheDishes Restaurant Services Inc., 2022 MBKB 178, Justice Chartier considered the principles arising from Uber Technologies Inc. v. Heller, 2020 SCC 16 (CanLII) (“Uber”) in a contract of adhesion between a restaurant delivery corporation, SkipTheDishes, and one of its individual couriers. Justice Chartier found that there was no arbitration agreement; SkipTheDishes asserted that the courier was bound to a new agreement with an arbitration agreement that only became effective after she sued. Had he found otherwise, Justice Chartier would have found the agreement to be invalid due to unconscionability and a lack of consideration. These findings were despite efforts by SkipTheDishes to address some of the concerns that animated the Supreme Court of Canada’s decision in Uber.

August 29, 2022August 29, 2022

Ontario – Arbitrator to determine jurisdiction/validity of arbitration clause in employment dispute – #654

In Irwin v. Protiviti, 2022 ONCA 533, the Ontario Court of Appeal confirmed that, unless the question is one of pure law or is a question of mixed fact and law requiring only a superficial review of the evidence, questions about the jurisdiction of an arbitrator are to be arbitrated. This includes whether an arbitration clause in an arbitration contract is void for unconscionability, or for inconsistency with the Employment Standards Act, 2000, S. O. 2000, c. 41 (“ESA”) or the Human Rights Code, R.S.O. 1990, c. H. 19 (“the Code”).

July 5, 2022July 14, 2022

British Columbia – Effect of consent orders staying proceedings in favour of arbitration – #636

Williams v. Audible Inc., 2022 BCSC 834 (“Audible”) is the second of two decisions by Justice Horsman extending stays of proceedings in favour of arbitration under s. 15 of the former Arbitration Act, R.S.B.C. 1996, c. 55 in the context of class proceedings. The first, Williams v. Amazon.com Inc., 2020 BCSC 300 (the “Amazon Stay Decision”), concerned a separate class proceeding, brought by the same representative plaintiffs as in Audible, alleging similar causes of action, but against Amazon. That decision is under appeal. In this case, Justice Horsman granted the stay sought by Audible. Following the principles in Seidel v TELUS Communications Inc., 2011 SCC 15, the parties agreed to a consent stay of proceedings in favour of arbitration in respect of the plaintiff’s non-consumer protection legislation claims because of the arbitration clause in the relevant contracts. On this application, Justice Horsman found that, because the representative plaintiffs’ non-consumer claims were stayed by virtue of a consent order, there was no proceeding in which to advance the claims of the other possible class members, whose claims related to a period of time when Audible’s contracts did not contain arbitration clause. Therefore, she granted an extension of the stay of those proceedings to cover those claims too.

May 9, 2022May 9, 2022

Québec – Intervention by appointing authority not permitted on challenge to decision – #613

In Mullen v. Nakisa inc., 2022 QCCS 1164, Justice Lacoste rejected a request that the Canadian Commercial Arbitration Centre (the “CCAC”), an appointing institution, be permitted to intervene in an appeal of a decision by an arbitrator appointed by it. Applying the higher threshold for interventions in private litigation, Justice Lacoste held that there was no reason to permit the CCAC to intervene as it would not add any substance to the arguments on appeal.

March 15, 2022May 4, 2022

Saskatchewan – Judicial review available only when arbitration agreement provides – #594

In Ministry of Highways for the Province of Saskatchewan v. West-Can Seal Coating Inc. et al, 2022 SKQB 43, Justice Currie heard, and rejected, all grounds pursued by the applicant, Ministry of Highways (the “Ministry”), to set aside a decision arising from an arbitration conducted pursuant to the New West Partnership Trade Agreement (“NWPTA”), a trade agreement among the four western Canadian provinces. Justice Currie confirmed that, unless contracted for by the parties, there is no role for judicial review of an arbitration award. The options are appeal (if applicable) and set aside. Set aside applications are also limited to issues of procedural fairness, and not whether the decision is correct on its merits.

January 18, 2022May 4, 2022

Ontario – tolling agreement from arbitration overcomes limitation defence at pleadings amendment stage – #574

In Vale Canada Limited v. Solway Investment Group Limited et al, 2021 ONSC 7562, Justice Koehnen considered, in the context of a motion to amend a Statement of Claim, the impact of a tolling agreement made in respect of claims made in arbitrations that had been commenced and concluded five years previous. In a decision that canvasses the law on the interaction of motions to strike and motions to amend, Justice Koehnen ultimately permitted the amendments, without prejudice to the defendants to plead a limitation defence and to bring a motion to strike.