In Rivain v. La Capitale assureur de l’administration publique Inc. (La Capitale, assurances et services financiers), 2020 QCCS 3936, Mr. Justice Christian Immer declined to order parties to re-arbitrate an issue determined by a physician arbitrator under an insurance policy. That policy submitted medical disputes to arbitration before a physician and subjected awards to the typical three (3) post-award options available to arbitral parties: compliance, homologation, annulment. Immer J. did determine that the policy anticipated a 4th option, namely a subsequent arbitration before another medical specialist if the 1st arbitrator determined that the medical dispute fell within that other medical speciality. Immer J. also noted that, despite the complexity of the facts, a court was better placed to determine the jurisdictional issue, rather than defer to a first determination by the arbitrator, as the request to refer the parties to arbitration raised principally a question of law.
Continue reading “Québec – no second opinion on issue determined by award issued by physician arbitrator – #408”B.C. – errors interpreting and applying the law eligible for appeal on questions of law but not for set aside – #407
In Spirit Bay Developments v. Scala Developments, 2020 BCSC 1839, Mr. Justice Robert Johnston granted leave to appeal for three (3) questions of law which he determined had arguable merit but dismissed the application to set aside the award. A pair of questions involved misinterpretation and application of applicable case precedents and a third arose from the “arguably defective” pleading made by the party resisting appeal of the award. Refusing to set aside the award on the basis of legal error, Johnston J. noted that the alleged error of law would be determined on appeal. “Additionally, the parties clothed the arbitrator with the power to decide their dispute, and that includes the power to be wrong in interpreting and applying the law”.
Continue reading “B.C. – errors interpreting and applying the law eligible for appeal on questions of law but not for set aside – #407”Ontario – omission to stipulate language of arbitration and then require bilingual arbitrator creates delays – #406
In Hodder v. Eouanzoui, 2020 ONSC 7905, Mr. Justice Robert N. Beaudoin asserted jurisdiction under section 16(3) of Arbitration Act, 1991, SO 1991, c 17 to appoint a substitute arbitrator in an administered arbitration where neither the parties’ agreement to arbitrate nor the administering institution’s rules provided a process to appoint a substitute. The institution temporarily lacked a sufficient number of bilingual arbitrators on its roster and, during that period, Applicant applied to the court for assistance. The requirement that the arbitrator be bilingual did not appear in the agreement to arbitrate, arising after service of the notice to arbitrate, and appeared to result by consensus, combining the parties’ respective positions on the appropriate language of the arbitration. When confirming his orders, Beaudoin J. also formalized the bilingual status of the arbitration.
Continue reading “Ontario – omission to stipulate language of arbitration and then require bilingual arbitrator creates delays – #406”Alberta – court has no authority to impose private arbitration absent parties’ consent or an agreement – #405
In Stuve v. Stuve, 2020 ABCA 467, Alberta’s Court of Appeal upheld a chambers judge’s refusal to order the parties to engage in binding arbitration, agreeing that a judge has no jurisdiction to impose private arbitration without consent of the parties or an agreement to that effect. The Court held that “[s]pecific legislative language would be required for the court to have the power to require parties to participate in an extra judicial private process such as arbitration”. Neither the Alberta Rules of Court, Alta Reg 124/2010 or the Arbitration Act, RSA 2000, c A-43 empowered the judge to do so. “The parties commenced litigation in the publicly funded courts, and are entitled to access to court processes to resolve their dispute. Citizens have a right to access to the court, which is the public dispute resolution institution”.
Continue reading “Alberta – court has no authority to impose private arbitration absent parties’ consent or an agreement – #405”Québec – resourceful solution to confirm court-mediated settlement negotiated over videoconference – #404
In Claveau v. Distribution Jacques Cartier Inc., 2020 QCCQ 8376, Mr. Justice Pierre Simard confirmed a settlement arrived at through a court-assisted mediation conducted the day of trial despite Defendants participating by videoconferencing platform. Though the legislated process for confirming a court-mediated settlement requires litigants to sign and file in court either (i) a document confirming the settlement or (ii) the settlement agreement itself, Defendants were not present in court and unable to sign as required by legislation. In his brief judgment, Simard J. (i) recorded hearing from the mediator who reported the details of the settlement, (ii) confirmed the parties’ agreement to be bound to the settlement and (iii) issued orders reflecting the terms of the settlement. In doing so, Simard J. permitted the parties to resolve their dispute without a trial, without attending in person and without breaching applicable legislation.
Continue reading “Québec – resourceful solution to confirm court-mediated settlement negotiated over videoconference – #404”Ontario – mediator appointed as arbitrator for disputes involving settlement negotiated during later arbitration – #403
Following an unsuccessful mediation phase before a mediator regarding disputes under a 2011 agreement, the parties in The Corporation of the Township of South Stormont v. The Kraft Heinz Company, 2020 ONSC 7641 engaged in arbitration before another professional during which the parties negotiated a 2017 settlement and agreed to arbitrate disputes before the mediator. When disputes arose over the settlement, one party sought to resume the earlier arbitration but to appoint a new arbitrator. The other party resisted, arguing that they had agreed to submit disputes regarding the settlement to the mediator. Mr. Justice James E. McNamara held that the dispute was not under the main 2011 agreement but fell within the express terms of the 2017 settlement. The dispute resolution in the parties’ settlement arguably constituted a med-arb agreement.
Continue reading “Ontario – mediator appointed as arbitrator for disputes involving settlement negotiated during later arbitration – #403”Ontario – trial judge and appeal court rely on litigants’ agreement to repurpose arbitral award findings of fact – #402
In dismissing appellant’s claims that the trial judge erred in interpreting a common form of insurance contract used in the construction industry, the Court of Appeal in Sky Clean Energy Ltd. (Sky Solar (Canada) Ltd.) v. Economical Mutual Insurance Company, 2020 ONCA 558 noted that the litigants had agreed that findings of fact made in an arbitration award would bind the trial judge. Though plaintiff had unsuccessfully challenged that same award and defendant had not been a party to the arbitration, both accepted not to relitigate the findings of fact when litigating their own dispute regarding those facts.
Continue reading “Ontario – trial judge and appeal court rely on litigants’ agreement to repurpose arbitral award findings of fact – #402”Québec – party autonomy to design arbitration includes right to risk loss of statutory construction lien rights – #401
In 9221-2323 Québec inc. v. Excavation L. Martel inc., 2020 QCCS 4363, Mr. Justice Martin F. Sheehan enforced the parties’ agreement to arbitrate contractor’s claims for additional sums even if doing so might result in loss of the contractor’s right to publish (register) its legal hypothec (lien) within the statutory delay. Sheehan J. recognized that the arbitration award might issue only after the end of the construction work and, by mere lapse of time, extinguish the contractor’s right to publish its legal hypothec. Party autonomy included the ability to require arbitration as a condition precedent to exercising statutory rights to protect claims and thereby give notice to third parties of that claim. Sheehan J. determined that the contractor had agreed that its legal hypothec could be published only after arbitration, knowing that the award might issue too late.
Continue reading “Québec – party autonomy to design arbitration includes right to risk loss of statutory construction lien rights – #401”Alberta – protracted costly litigation highlights “perils of not having a dispute resolution mechanism built into a contract” – #400
In North Pacific Properties Ltd v. Bethel United Churches of Jesus Christ Apostolic of Edmonton, 2020 ABQB 791, Madam Justice Anna Loparco determined that the parties to an existing contract had not entered into a binding agreement to (i) extend a key date for performance or (ii) arbitrate disagreements under that extension. Loparco J. opened and closed her reasons noting the parties’ lost opportunity to engage in less costly, less protracted dispute resolution. “In the end, this is an unfortunate tale of two well-meaning parties who had no means of resolving their disputes prior to the Closing; the result was protracted and costly litigation. It highlights the perils of not having a dispute resolution mechanism built into a contract”.
Continue reading “Alberta – protracted costly litigation highlights “perils of not having a dispute resolution mechanism built into a contract” – #400”B.C. – doctrine of separability allows receiver to disclaim agreement to arbitrate while litigating main contract – #399
In Petrowest Corporation v. Peace River Hydro Partners, 2020 BCCA 339, B.C.’s Court of Appeal identified the particular status and powers of a court-appointed receiver exercising its jurisdiction under the Bankruptcy and Insolvency Act, RSC 1985, c B-3 and set out the doctrine of separability applicable to agreements to arbitrate. Their combined application supported the Court’s conclusion that a court-appointed receiver can sue on a contract and also disclaim application of the agreement to arbitrate contained in that contract. The Court held that doing so did not allow the receiver to “pick and choose” terms in a contract but instead merely recognized that the receiver had the option to pursue or disclaim two (2) separate contracts.
Continue reading “B.C. – doctrine of separability allows receiver to disclaim agreement to arbitrate while litigating main contract – #399”