In Clark v. Unterschultz, 2020 ABQB 338, Madam Justice June M. Ross dismissed a challenge to an award on the merits, holding that one party’s communication of privileged settlement offers after the award and before the costs award were insufficient to meet the high threshold required to find real or perceived bias. Ross J. determined that a reasonable person, viewing the matter realistically and practically, and knowing that the hearing had concluded and the substantive award had issued, would be unlikely to conclude that the arbitrator would not decide the remaining matters fairly.
Continue reading “Alberta – communication of privileged offers after award but before clarification/costs insufficient to raise bias – #328”Québec – crossclaim triggers arbitration though agreement to arbitrate silent in that regard – #327
Relying on the contracts and the parties’ respective claims, Mr. Justice Éric Dufour in Kolinar Real Estate Inc. v. Cadieux, 2019 QCCQ 7183 determined that Defendants’ crossclaim triggered the parties’ particular agreement to arbitrate unless the claim fell within the $15,000.00 level for Small Claims division’s jurisdiction. Defendants’ crossclaim exceeded that level and Dufour J. held it was not dilatory. Without express mention of Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34 (CanLII), [2007] 2 SCR 801, Dufour J. effectively determined jurisdiction first by “only superficial consideration of the documentary evidence in the record” and applied the approach, familiar in many court rules, which allows a crossclaim to impact jurisdiction set by amount of claim.
Continue reading “Québec – crossclaim triggers arbitration though agreement to arbitrate silent in that regard – #327”Ontario – consent order prompts agreement to arbitrate to complete it and fresh litigation over vague term – #326
In Lokhandwala v. Khan et. al., 2020 ONSC 3209, Mr. Justice William M. LeMay determined that an offer received for a property qualified as “reasonable” according to a consent order agreed to by the parties in an earlier hearing. That consent order also included an agreement to arbitrate, if need be, the choice of real estate agent to list the property. LeMay J.’s reasons illustrate the care needed by parties to disputes when drafting terms to resolve their disputes so that today’s resolution does not inadvertently sow seeds for future, new disputes. The reasons also include helpful references to case law on judicial notice and the pandemic.
Continue reading “Ontario – consent order prompts agreement to arbitrate to complete it and fresh litigation over vague term – #326”Québec – tardy litigation, due to attorneys’ failure to file post-award proceedings, resists dismissal – #325
Acknowledging Plaintiffs’ eventual challenges at trial with a lapsed prescription (limitation) period, Mr. Justice Martin Castonguay in Truong v. Brunelle, 2020 QCCS 55 refused to dismiss procedures stemming from a June 23, 2009 arbitral award. Filed June 25, 2019, Plaintiffs’ litigation sought both homologation and damages stemming from non-compliance with aspects of the award, but the motion to dismiss eventually focused on only the damage action. Castonguay J. held that Plaintiffs’ attorneys’ failure to finalize and file relevant pleadings justified exercising discretion to allow their case to proceed. His reasoning applies equally to late applications to homologate awards.
Continue reading “Québec – tardy litigation, due to attorneys’ failure to file post-award proceedings, resists dismissal – #325”Alberta – stay of BIA order lifted, enabling trustee to investigate transactions preventing execution of award – #324
On application by a successful arbitral party, Mr. Justice Brian O’Ferrall in Pacer Holdings Construction Corporation v. Richard Pelletier Holdings Inc, 2020 ABCA 47 lifted a stay imposed by the appeal filed by the losing arbitral party against the order putting it in bankruptcy. The successful arbitral party challenged certain transactions by the losing arbitral party which “stripped” the latter of all its assets. O’Ferrall J.A. was “not yet convinced” to interpret the Bankruptcy and Insolvency Act, RSC 1985, c B-3 to mean that a “dormant shell” corporation was not a “debtor” or “insolvent person”. Lifting the stay enabled the trustee to exercise powers ordinary creditors do not have, including collection of information relevant to ordering transferees of property of the bankrupt arbitral party to pay to the difference between the value of the consideration the bankrupt gave and the value transferees received.
Continue reading “Alberta – stay of BIA order lifted, enabling trustee to investigate transactions preventing execution of award – #324”Ontario – applicant seeking court appointment of arbitrator ordered to pay security for costs – #323
In Rayman Tiger Inc. v. Unger Tiger Inc., 2020 ONSC 691, Master Michael P. McGraw ordered that an arbitral party, applying for the appointment of an arbitrator, file security for costs related to its application. Having insufficient assets in Ontario or any reciprocating jurisdiction, the party had to post security in order to engage the court’s assistance for its arbitration. In ordering $15,000.00 rather than the $37,714.01 sought by respondents, Master McGraw distinguished the complexity of issues and facts of the eventual arbitration from those raised by the narrower application to appoint an arbitrator.
Continue reading “Ontario – applicant seeking court appointment of arbitrator ordered to pay security for costs – #323”Manitoba – court relies on arbitral award to qualify award amount as debt surviving bankrupt’s discharge – #322
Relying on findings made in an arbitral award, Madam Justice Colleen Suche in Bannerman Lumber Ltd. et al. v. Goodman, 2020 MBQB 76 declared that a bankrupt’s debt disputed in arbitration survived his discharge because the debt resulted from “obtaining property or services by false pretences or fraudulent misrepresentation”. Though the arbitration proceeded without pleadings and the issue of fraud was not advanced in the arbitration, the arbitrator’s findings permitted Suche J. to determine that the bankrupt “lacked an honest belief in the truth of his statements” which were reckless and qualified as false pretences under section 178(1)(e) of the Bankruptcy and Insolvency Act, RSC 1985, c B-3.
Continue reading “Manitoba – court relies on arbitral award to qualify award amount as debt surviving bankrupt’s discharge – #322”Nova Scotia – umpire owes duty of procedural fairness, breaches it when deviating from own procedure – #321
In New Dawn Enterprises Limited v. Northbridge General Insurance Corporation, 2020 NSSC 150, Mr. Justice Joshua M. Arnold agreed that an umpire’s failure (i) to share information obtained and relied on or (ii) to give a party the opportunity to respond breached the principle of audi alteram partem. Acknowledging that an umpire does not conduct an arbitration or provide an adjudicative process, Arnold J. determined that the umpire’s exercise of discretion in choosing his own procedure had created legitimate expectations and that, by deviating from that procedure, breached the duty of fairness.
Continue reading “Nova Scotia – umpire owes duty of procedural fairness, breaches it when deviating from own procedure – #321”Ontario – adequate reasons serve to justify/explain result so losing party knows why it lost – #320
In Wawanesa Mutual Insurance Company v. Renwick, 2020 ONSC 2226, Ontario’s Divisional Court determined that inadequate reasons fell short of their “very important purpose”, namely that “they justify and explain the result so that the losing party knows why they have lost and interested members of the public can satisfy themselves that justice has been done”. The Court prioritized that purpose, listing it ahead of the more oft-cited purpose of allowing for meaningful review by a court. Though not all parties prevail in their dispute resolution, they are entitled to know that their evidence and arguments were considered and why they did not prevail. As the Divisional Court added, “[h]owever, this does not mean that the decision maker must refer to every bit of evidence or argument before him. To be adequate, reasons do not have to be long or perfect”.
Continue reading “Ontario – adequate reasons serve to justify/explain result so losing party knows why it lost – #320”Québec – attorney’s lack of knowledge of arbitration clause justifies late request for referral to arbitration – #319
In 9107-7719 Québec Inc. v. Constructions Hub Inc., 2020 QCCQ 1706, Madam Justice Johanne Gagnon readily extended defendant’s delay to apply for referral to arbitration. The forty-five (45) day delay was not a strict one and extending it was justified by explanations given by defendant’s attorney, including attempts to settle, an intervening holiday break and being unaware that the contract contained an agreement to arbitrate. Gagnon J. accepted defendant’s application filed 77 days after service of the action and, having considered it, granted it but declined to declare plaintiff’s action abusive.
Continue reading “Québec – attorney’s lack of knowledge of arbitration clause justifies late request for referral to arbitration – #319”