In Gestion S. Cantin Inc. v. Emblème Canneberge Inc., 2020 QCCS 2259, Mr. Justice Daniel Dumais distinguished the leeway available to arbitral parties to agree, subsequent to a settlement arrived at during arbitration, if/how to grant the court jurisdiction to examine the merits of the resolution of their dispute. On a transaction (settlement agreement), arbitral parties can give the court jurisdiction to examine the merits. On a consent award recording that same settlement, parties cannot give the courts jurisdiction to examine the merits. The arbitral parties had negotiated a settlement agreement and obtained a consent award recording it but, disputing performance post-settlement, were allowed to dispute only the merits of the agreement but not the award, despite being identical in terms.
Continue reading “Québec – parties can give court role to examine merits of settlement but not to examine merits of identical consent award – #358”Alberta – arbitration act informs court rules allowing court to clarify its order allowing appeal of award – #357
In Clark v. Unterschultz, 2020 ABQB 423, Madam Justice June M. Ross agreed to revisit her earlier decision in Clark v. Unterschultz, 2020 ABQB 338 which allowed an appeal in part, limited to the arbitrator having not provided adequate reasons for a lump sum award. In her follow up decision, Ross J. dismissed Applicant’s application under Alberta Rules of Court, Alta Reg 124/2010 as a “second kick at the can”, holding that any remedy Applicant may have lay with the Court of Appeal. Ross J. did agree to reframe her earlier order and, exercising her own options under the Arbitration Act, RSA 2000, c A-43, provided directions to the arbitrator. In doing so, Ross J. gave the arbitrator much broader scope than that which may have been read into her earlier decision and expressly confirmed his discretion to determine the procedure warranted to exercise that authority.
Continue reading “Alberta – arbitration act informs court rules allowing court to clarify its order allowing appeal of award – #357”B.C. – settlement privilege applies to arbitration and justifies refusal of access to information request – #356
In White Rock (City) (Re), 2020 BCIPC 25, Ian C. Davis, Adjudicator with the B.C. Information and Privacy Commissioner, held that common law settlement privilege applied to access to information requests, despite omission to include express mention of that privilege as a ground to resist disclosure, and that the privilege applied to arbitration. Dismissing argument that arbitration was not a “litigious dispute”, Adjudicator Davis also held that settlement privilege is jointly held between parties to settlement negotiations and concluded that procedural fairness required that he consider the other arbitral party’s submissions on settlement privilege even if that other arbitral party was not a party to the access request.
Continue reading “B.C. – settlement privilege applies to arbitration and justifies refusal of access to information request – #356”Québec – choice of law does not determine choice of forum – #355
In Corner Brook Pulp and Paper Limited v. Valmet Ltd., 2020 QCCS 2136, Mr. Justice Gregory Moore dismissed a defendant’s argument that choice of Ontario law in its contracts with another entity required application of Ontario’s Arbitration Act, 1991, SO 1991, c 17. Moore J. held that choice of governing law did not determine choice of forum and that Québec’s Civil Code of Québec, CQLR c CCQ-1991 provides that the law of the court seized of the matter governs procedure. Defendant’s procedural decision to force intervention of its contracting party as defendant-in-warranty to the principal claim yielded to the choice of forum clause indicating a clear intention to remove jurisdiction.
Continue reading “Québec – choice of law does not determine choice of forum – #355”Ontario – courts cannot imply terms which legislation requires be express to have valid arbitration agreement – #354
In Magotiaux v. Stanton, 2020 ONSC 4049, Madam Justice Jennifer Mackinnon denied to stay court proceedings, having determined that the parties’ otherwise detailed agreement to arbitrate was subject to, but did not comply with all of, certain formal requirements required by the Family Law Act, RSO 1990, c F.3 and the Family Arbitration, O Reg 134/07, the sole regulation made to the Arbitration Act, 1991, SO 1991, c 17. Mackinnon J. recognized that courts can imply terms into a contract following the approach in Pacific Hotels Ltd. v. Bank of Montreal, 1987 CanLII 55 (SCC) but, where legislation has mandated express terms, courts cannot imply terms to produce a binding agreement to arbitrate compliant with that legislation.
Continue reading “Ontario – courts cannot imply terms which legislation requires be express to have valid arbitration agreement – #354”Ontario – interim procedural orders “immune from review” during arbitration even when titled “award” – #353
In Hristovski v. Hristovski, 2020 ONSC 4021, Madam Justice Francine Van Melle held she had no jurisdiction to hear an appeal of an arbitrator’s pre-merits hearing denial of further document disclosure. Despite use of the term “award” to title the decision, Van Melle J. determined that the denial was an interim procedural order. Unlike an award which disposes of disputes between parties, the order was not eligible for appeal, being “immune from review” under the Arbitration Act, 1991, SO 1991, c 17. Van Melle J.’s reasons do not assert that interim decisions cannot later be challenged when appealing the final award if an interim decision impacts on the result. As neither party argued whether leave had to be sought/obtained, Van Melle J. made no comment on the issue.
Continue reading “Ontario – interim procedural orders “immune from review” during arbitration even when titled “award” – #353”Saskatchewan – absent party bound by disputed settlement terms signed by authorized solicitor/agent – #352
In Bakken v. Bakken, 2020 SKQB 127, Madam Justice Brenda R. Hildebrandt held defendant to a mediated settlement regarding sale of land, holding that defendant authorized counsel to attend as her solicitor/agent and consulting her by telephone during the mediation prior to counsel’s signature. Disagreement between the parties regarding the settlement lead to litigation to enforce purportedly unclear terms documented by the settlement. Litigation, filed May 20, 2010, was resolved ten (10) years later by trial judgment on May 7, 2020. Hildebrandt J.’s reasons explore possible, but unsuccessful, defenses to a breach of settlement claim, including frustration and three (3) types of contractual mistake: common mistake, unilateral mistake, mutual mistake.
Continue reading “Saskatchewan – absent party bound by disputed settlement terms signed by authorized solicitor/agent – #352”Alberta – refusal to adjourn hearing respects due process if recognition/enforcement conditions present – #351
In Pearson v. Pearson, 2020 ABCA 260, Alberta’s Court of Appeal distinguished between discretion to grant/refuse an adjournment and discretion which raises issues of procedural fairness. Deference is owed “generally” to the former, provided discretion is exercised judicially and sufficient weight given to all relevant considerations. The latter raises the question of whether due process was followed and attracts no deference. Despite disagreement whether a party had counsel of record and that party’s choice not to be ‘present’, the Court held that the party seeking adjournment suffered no prejudice because all the conditions in section 49 of the Arbitration Act, RSA 2000, c A-43 were ‘present’ and “there was no reason to think the outcome would have been different had an adjournment been granted”.
Continue reading “Alberta – refusal to adjourn hearing respects due process if recognition/enforcement conditions present – #351”B.C. – failure to disclose existence of arbitration over only material asset alleged to breach securities legislation – #350
In Arian Resources Corp. (Re), 2020 BCSECCOM 89, an alleged failure to disclose arbitration prompted B.C.’s Securities Commission to issue a notice advising that a hearing would be held at which the Executive Director would tender evidence, make submissions and apply for orders under the Securities Act, RSBC 1996, c 418 for failure to disclose material changes. The notice does not purport to assert determinations of fault or sanction but does remind that, despite the role and availability of confidentiality in arbitration, arbitration parties may still be required to share sufficient, timely information on arbitrations involving them and involving material change.
Continue reading “B.C. – failure to disclose existence of arbitration over only material asset alleged to breach securities legislation – #350”B.C. – precedents acknowledged for parties to constitute sitting judge as private tribunal without appeal – #349
In Gourlay v. Crystal Mountain Resorts Ltd., 2020 BCCA 191, B.C.’s Court of Appeal acknowledged precedents in which litigants constituted a judge/panel of judges as arbitrator(s) but, on the facts, held that no such agreement existed in the action. Such an agreement, if established, also entailed consequences, familiar to arbitration, such as an inability to appeal unsatisfactory orders. The Court’s reasons omit the Court’s own consideration of whether consent to have a judge sit as arbitrator could validly be given or enforced. Rather, it limited its reasons to acknowledging that it had been done in the past but that the agreement in the case did not support its application.
Continue reading “B.C. – precedents acknowledged for parties to constitute sitting judge as private tribunal without appeal – #349”