In Associated Foreign Exchange Inc. v. 9189-0921 Québec Inc. (MBM Trading), 2020 QCCS 1823, Mr. Justice Michel A. Pinsonnault determined that the courts of Québec had jurisdiction to issue a Mareva injunction over assets located in Québec despite the parties’ prior, uncontested agreement that the courts of Ontario had exclusive jurisdiction over the merits of their dispute. Pinsonnault J. found support for that determination based on the clearer result, set out expressly in Québec’s substantive and procedural codes, confirming the Québec courts’ jurisdiction to issue provisional measures despite a final and binding agreement to arbitrate binding the parties and excluding the courts.
Continue reading “Québec – forum selection clause does not eliminate courts’ jurisdiction to issue provisional measures – #338”B.C. – Hells Angels’ mediation is not unlawful even if subject matter may involve alleged unlawful activity – #337
In British Columbia (Director of Civil Forfeiture) v. Angel Acres Recreation and Festival Property Ltd., 2020 BCSC 880, Mr. Justice Barry M. Davies determined that mediation of disputes by or between Hells Angels’ members/chapters is not an unlawful activity under B.C.’s Civil Forfeiture Act, SBC 2005, c 29 even if the subject matter of the disputes may involve unlawful activity. In refusing to grant forfeiture of clubhouses used by the Hells Angels, Davies J. determined that use of the clubhouses as venues to resolve disputes did not constitute the use of property to engage in unlawful activity. He agreed that the Director of Civil Forfeiture had proven that mediation of disputes among Hells Angels’ members/chapters plays a role in ensuring relative harmony within the Hells Angels so that internal discord is kept to a minimum but disagreed that the Director had proven that “resolving these disputes maintains the Hells Angels brand so that members and associates of the club continue to benefit from the opportunity to monetize the brand through criminal means”.
Continue reading “B.C. – Hells Angels’ mediation is not unlawful even if subject matter may involve alleged unlawful activity – #337”Ontario – oppression remedy grants party control of dispute resolution covered by funding agreement – #336
In 1515474 Ontario Inc. v. Soocellus Ontario Inc., 2020 ONSC 270, Ontario’s Divisional Court upheld an order granting a shareholder control of the conduct of ongoing dispute resolution. Post-sale of G’s shares in F Co., G retained non-voting shares in F Co. with a right to receive net proceeds in F Co.’s litigation so long as G provided litigation funding and met other financial terms. F Co.’s eventual decisions to reduce activity in the litigation, to seek an end to it and to mediate so as to “accept the best reasonable offer we are able to negotiate” combined to qualify as oppression justifying the grant of litigation control. The order sought to rectify for breach of G’s reasonable expectations created by the sale of G’s shares in a company engaged in litigation but, unlike other oppression remedies, limited the grant of control to the conduct of litigation and not overall operations of F Co.
Continue reading “Ontario – oppression remedy grants party control of dispute resolution covered by funding agreement – #336”Ontario – securities commission exempts filer from filing even redacted copies of litigation funding agreements – #335
In Stans Energy Corp. (Re), 2019 CanLII 36437 (ON SEC), the Ontario Securities Commission granted an exemption to a filer from filing two (2) litigation funding agreements despite the documents qualifying as material contracts under Ontario’s 51-102 – Continuous Disclosure Obligations. To issue the exemption, the Securities Commission relied on (i) prior disclosure of key information, (ii) privilege and confidentiality issues which would be violated if further disclosure was made as well as (iii) not compromising the filer’s relationship with the funders.
Continue reading “Ontario – securities commission exempts filer from filing even redacted copies of litigation funding agreements – #335”Alberta – videoconferencing for cross-examination on affidavit authorized, despite objection, because “It’s 2020” – #334
In Sandhu v. Siri Guru Nanak Sikh Gurdwara of Alberta, 2020 ABQB 359, Mr. Justice Michael J. Lema concluded that, despite no express mention in the applicable rules, the court has authority to direct remote questioning on affidavits despite a party’s resistance. In his reasons, Lema J. referred to Alberta case law from 2000 and Ontario case law from 2009 which clearly supported the use of videoconferencing for cross-examination on affidavit as “a normal process” in modern international litigation or arbitration. Lema J. also cited from the May 1, 2020 decision in Arconti v. Smith, 2020 ONSC 2782 authorizing videoconferencing because “It’s 2020”. Lema J.’s reasons include extensive references to key cases discussing the evolution of technology while acknowledging concerns for irritants and mischief.
Continue reading “Alberta – videoconferencing for cross-examination on affidavit authorized, despite objection, because “It’s 2020” – #334”B.C. – application for stay required for court to consider role of arbitration at certification stage – #333
Tasked with deciding whether or not to certify an action as a class proceeding, Madam Justice Veronica Jackson in Matthews v. La Capitale Civil Service Mutual, 2020 BCSC 787 declined to consider whether to stay the proceedings on the basis of mandatory arbitration agreements contained in several of the agreements. Despite contesting certification, Jackson J. noted that Defendants had not filed an application for a stay under section 15 of the Arbitration Act, RSBC 1996, c 55 and therefore the issues “were not squarely before me and were not argued on this application”. “At this time”, she could not conclude arbitration of disputes involving potential class members was required. See the earlier Arbitration Matters note “Stay granted despite anticipation that arbitrator applying U.S. law might not be able to grant claims”.
Continue reading “B.C. – application for stay required for court to consider role of arbitration at certification stage – #333”Ontario – settlement rescinded based on innocent misrepresentation of material fact unknown to Defendant – #332
In Deschenes v. Lalonde, 2020 ONCA 304, Ontario’s Court of Appeal upheld rescission of a settlement on the basis of Defendant’s innocent misrepresentation regarding a fact material to Plaintiff’s decision to settle. Defendant’s actual or constructive knowledge that the representation was false was unnecessary. The Court distinguished rescission based on innocent misrepresentation from rescission based on unilateral mistake. Despite the strong presumption favouring finality of settlements, the Court reiterated that the ways to “upset” a settlement are the same as those applicable to other contracts, including fraud, misrepresentation, duress, undue influence, unconscionability, or mutual or unilateral mistake.
Continue reading “Ontario – settlement rescinded based on innocent misrepresentation of material fact unknown to Defendant – #332”Ontario – parties’ signature of arbitrator’s terms does not overwrite appeal process in original agreement – #331
In 547131 Ontario Limited v. MPI Torgan, 2020 ONSC 3186, Madam Justice Carole J. Brown disagreed that terms submitted by the arbitrator and signed by the parties overwrote the parties’ initial agreement in their main contract regarding appeals of any arbitral award. The arbitrator’s terms covered conflicts, compensation, the services of an arbitral secretary, cancellation policy, confidentiality, immunity and administration issues. Brown J. identified no indicia that the arbitrator’s terms altered the initial agreement that the award would be “final and binding” and not subject to appeal, even on a question of law with leave of the court.
Continue reading “Ontario – parties’ signature of arbitrator’s terms does not overwrite appeal process in original agreement – #331”Québec – use of confidential mediation exchanges permitted to prove fraud vitiating settlement consent – #330
In Viconte inc. v. Transcontinental inc., 2020 QCCQ 1475, Madam Justice Céline Gervais recognized that that the exception to settlement privilege applies to permit a party to adduce confidential exchanges made in a mediation to prove the existence or scope of a transaction but she saw no principle under which that exception did not also apply if a party challenged the validity of a transaction and not its existence or scope. The party resisting homologation of a settlement sought to prove that the other party had given false information or allowed it to be retained, thereby vitiating consent and justifying annulment of the settlement. Gervais J. cautioned that her decision was only a preliminary one and did not consider the difficulty a party may have at trial to prove its allegations.
Continue reading “Québec – use of confidential mediation exchanges permitted to prove fraud vitiating settlement consent – #330”Québec – post-mediation dispute over existence/terms of agreement permits disclosure of confidential exchanges – #329
In Bisaillon v. Bouvier, 2020 QCCA 115, the Québec Court of Appeal applied the exception to confidentiality of mediation, confirmed in Union Carbide Canada Inc. v. Bombardier Inc., 2014 SCC 35, [2014] 1 SCR 800, allowing disclosure of confidential exchanges necessary to prove (i) that an agreement resulted from mediation or (ii) the scope of the agreement which the parties acknowledged making. The parties could but did not tailor their mediation to eliminate that exception. Absent a clear, express statement of their intention to prevent subsequent disclosure, the exception applied to permit disclosure. The mediator’s summary of the agreement was only a simple writing, reflected his understanding of the agreement’s terms and did not bind the parties unless signed by them. Update: leave to appeal granted August 6, 2020 in Association de médiation familiale du Québec v. Isabelle Bisaillon, et al., 2020 CanLII 52976 (SCC).
Continue reading “Québec – post-mediation dispute over existence/terms of agreement permits disclosure of confidential exchanges – #329”