In Geophysical Service Incorporated v. Canada (Attorney General), 2020 FC 984, Madam Justice Martine St-Louis declined to intervene in a decision by Canada’s legal representative refusing to remove a member from the legal team representing Canada in an investor-state arbitration. St-Louis J. held that (i) the staffing decision did not qualify as a public decision made by an entity subject to judicial review under the Federal Courts Act, RSC 1985, c F-7 and (ii) Applicants had not demonstrated the arbitral tribunal’s lack of jurisdiction to deal with the issue. Applicants raised concerns regarding an individual newly assigned to the legal team representing Canada in the arbitration. Applicants alleged a conflict based on that individual’s recent, prior employment relationship with the third-party funder with which Applicants had signed an agreement regarding its investor-state claim against Canada. Though St-Louis J. declined to intervene, in obiter she considered “there is little unambiguous evidence that [the individual] received information that would cause a conflict of interests”.
Continue reading “Federal – court declines to intervene regarding counsel’s alleged conflict of interest in investor-state arbitration – #398”Alberta – parties can agree to be bound by coin flips, Ouija boards and bespoke judicial resolution processes – #397
In Keeder v. AlGendy, 2020 ABCA 420, Madam Justice Jolaine Antonio denied leave to appeal consent orders which issued from a binding judicial dispute resolution process by which the parties had agreed to either resolve the issue themselves or be bound by the determination of the judge presiding the process. Antonio J.A. held the parties to their contract, applying precedent which held that such decisions are imposed on the parties as a result of their contract rather than the court’s authority. If the settlement falls apart, the parties must sue on their contract. Though the judge issues a determination, the decision is imposed as a result of their contract and not the court’s authority.
Continue reading “Alberta – parties can agree to be bound by coin flips, Ouija boards and bespoke judicial resolution processes – #397”Québec – court refers parties to arbitration but grants adjournment permitting parties to agree on arbitrator – #396
In Proservin Inc. v. Investissements Toro Inc., 2020 QCCS 3561, Mr. Justice Stéphane Lacoste demonstrated the Québec courts’ ready support of arbitration and their practical approach to assisting parties to appoint their own arbitrators. Citing the applicable legislative provisions in Code of Civil Procedure, CQLR c C-25.01 and principles issuing from key cases, Lacoste J. readily dismissed objections to the court referring the parties to arbitration. Having granted the application to nominate, Lacoste J. nonetheless granted the parties an adjournment to a specific date prior to which they were ordered to exchange on the nomination and informed that, failing agreement, he would resume the hearing and nominate an arbitrator from the competing choices.
Continue reading “Québec – court refers parties to arbitration but grants adjournment permitting parties to agree on arbitrator – #396”Ontario – interpreting agreement to allow appeal of procedural orders is commercially unreasonable – #395
In Converaidem, Inc. v. Mulcahy, 2020 ONSC 6747, Madam Justice Breese Davies dismissed an attempt to appeal interim procedural orders. One section of the parties’ agreement to arbitrate described rulings on procedural matters as “awards” and a later section allowed the parties to appeal “awards” on a question of law. Davies J. held that, as a general rule, the same word will be presumed to bear the same meaning throughout a contract but that the presumption of consistent expression may not apply if the resulting meaning is absurd or commercially unreasonable. Her reading of the various sections, individually and together, supported her conclusion that allowing appeals of the challenged procedural orders, despite being termed “awards”, would be commercially unreasonable.
Continue reading “Ontario – interpreting agreement to allow appeal of procedural orders is commercially unreasonable – #395”Ontario – application to extend time to file appeal denied because review of stay decision precluded – #394
In Wang v. Mattamy Corporation, 2020 ONSC 7012, Mr. Justice Michael A. Penny dismissed Plaintiffs’ application to extend the delay in which to appeal a Master’s decision staying their action in favour of arbitration. As part of his decision making, he had to determine the merits of their proposed appeal. Based on section 7(6) of Ontario’s Arbitration Act, 1991, SO 1991, c 17 which prohibits appeals of decisions under section 7, he held that the Master’s decision “falls squarely” within section 7 and “it is not appropriate for the court to engage in an analysis of the Master’s decision because any review of it is precluded” by section 7(6).
Continue reading “Ontario – application to extend time to file appeal denied because review of stay decision precluded – #394”Ontario – resort to arbitration commercially reasonable to resolve ambiguous non-compete clause – #393
In Way v. Schembri, 2020 ONCA 691, Ontario’s Court of Appeal set aside a decision granting summary judgment which, among other determinations, had held that it was “commercially unreasonable” to consider that arbitration was suitable to resolve disputes over an ambiguous non-competition clause. As part of his reasoning, the judge in first instance had observed that one party’s “suggestion that the answer to the ambiguities and lack of details in [non-competition clause] would be resolved by an arbitrator is commercially unreasonable and something that no businessperson would agree to”. The Court of Appeal disagreed, noting that “[g]iven the presence of arbitration provisions in countless business agreements, it cannot be that their existence alone is commercially unreasonable”.
Continue reading “Ontario – resort to arbitration commercially reasonable to resolve ambiguous non-compete clause – #393”Federal – successful offer in all-or-nothing final offer arbitration can include agreement to arbitrate – #392
In Canadian National Railway Company v. Gibraltar Mines Ltd., 2020 FC 1034, Mr. Justice Michael D. Manson held that, in final offer arbitration, the absence of reasons in a decision qualified the decision as reasonable and correct. Though one party objected to the other’s final offer including an agreement to arbitrate, Manson J. held that the arbitrator had to accept either offer “in its entirety” based on which offer the arbitrator considered more reasonable. Final offer arbitration’s “all-or-nothing” approach prevents an arbitrator from extracting reasonable terms from one offer for inclusion in the other and the Canada Transportation Act, SC 1996, c 10 prohibited the arbitrator from explaining the choice made.
Continue reading “Federal – successful offer in all-or-nothing final offer arbitration can include agreement to arbitrate – #392”Saskatchewan – appeal court endorses other appeal courts’ approach to stay application appeals where arbitration agreement does not apply – #391
In Abbey Resources Corp. v. Andjelic Land Inc., 2020 SKCA 125, Saskatchewan’s Court endorsed the Ontario Court of Appeal’s reasoning in Huras v. Primerica Financial Services Ltd., 2000 CanLII 16892 (ON CA) to determine that, under section 8(6) of its The Arbitration Act, 1992, SS 1992, c A-24.1, the Court of Appel did have jurisdiction to hear an appeal of a decision in first instance which refused a stay if the decision held that that arbitration agreement did not apply. Identifying that case as the first in a “very solid line of authority” and a “significant body of case law from other provinces”, the Court held that it did have jurisdiction to hear the appeal. On the merits, the Court held that the trial judge made no error in deciding the issue of the arbitrator’s jurisdiction because the case qualified as an exception to the “methodic referral of matters to arbitration” favoured by competence-competence. “The leases would seem to be standard form contracts, the interpretation of which is of precedential value, and there appears to be no meaningful factual matrix specific to [the parties] that can inform their interpretation”.
Continue reading “Saskatchewan – appeal court endorses other appeal courts’ approach to stay application appeals where arbitration agreement does not apply – #391”Alberta – evidentiary rules for adducing videos/video stills applicable also in arbitration – #390
In R. v. Brar, 2020 ABCA 398, Alberta’s Court of Appeal analysed the Canada Evidence Act, RSC 1985, c C-5’s application to bank records including video surveillance stills and videos captured at automatic teller machines. The Court explored the reasoning behind the Canada Evidence Act’s evidentiary rules applicable to records held by financial institutions and requirements for adducing such evidence. The Canada Evidence Act expressly applies to arbitration and matters within the jurisdiction of Parliament. While the Court’s analysis applied to a criminal proceeding with its heightened standard of ‘beyond a reasonable doubt’, it still serves to guide arbitration practitioners. Subject to any adjustments occasioned by the standard of ‘balance of probabilities’ applicable in civil matters, the Court’s analysis offers arbitration practitioners meaningful insights.
Continue reading “Alberta – evidentiary rules for adducing videos/video stills applicable also in arbitration – #390”Ontario – court’s jurisdiction “not an elastic concept” – it either has or has not jurisdiction – #389
In George v. Wang, 2020 ONSC 6175, Mr. Justice James F. Diamond dismissed a defendant’s challenged to the court’s jurisdiction, determining that defendant had effectively waived the application by conduct in court. Having participated in case conferences and motions, including seeking relief on separate cross-motions, Diamond J. determined that defendant had effectively waived the application of the otherwise-valid agreement to arbitrate. Diamond J. also underlined that the court’s jurisdiction arose from plaintiff’s application as originating document and not from an earlier court order in the action.
Continue reading “Ontario – court’s jurisdiction “not an elastic concept” – it either has or has not jurisdiction – #389”