Though arbitrators should give reasons for departing from the “normal” costs rule, Madam Justice Lisa A. Warren in Goel v. Sangha, 2019 BCSC 1916 held that it does not follow that arbitrators must provide reasons for not departing from the normal rule. Warren J. also held that an arbitrator cannot be faulted for following a process adopted by agreement of the parties and that, on appeal, absent further evidence, the court had no role in revisiting an arbitrator’s finding that such an agreement existed in fact.
Continue reading “B.C. – no need to give reasons when not departing from normal rule on costs – #287”Ontario – summary judgment granted despite intersection with contract subject to arbitration – #286
In P and A Holdings Inc. v. Kim, 2020 ONSC 546, Mr. Justice Paul R. Sweeny dismissed Defendant’s attempt to pause the litigation pending arbitration and, instead, granted summary judgment in Plaintiff’s favour. Sweeny J. acknowledged that the promissory note, on which the court litigation was based, had been mentioned in a unanimous shareholders agreement which was subject to arbitration. Despite that mention, (i) failure to pay on the note was not addressed as an obligation between the shareholders and (ii) the shareholders agreement provided no mechanism for recovery on the note.
Continue reading “Ontario – summary judgment granted despite intersection with contract subject to arbitration – #286”Québec – award homologated but interest rate in contract not added as award omitted mention – #285
In BMLEX Avocats inc. v. Sahabdool, 2019 QCCQ 3552, Mr. Justice Luc Huppé agreed to homologate (recognize and enforce) an arbitral award but declined to modify the terms of the interest owing on the amount because the arbitral award did not mention it. In the same decision, Huppé J. also ordered a third party to be solidarily liable for payment of the award amount. Unlike a similar result in GGL Avocat v. Dumont, 2020 QCCQ 597, Huppé J. made no mention of the special vocation of the small claims court to favour access to justice and debt recovery.
Continue reading “Québec – award homologated but interest rate in contract not added as award omitted mention – #285”Québec – award homologated against arbitral party and non-party held solidarily liable for award amount – #284
In GGL Avocat v. Dumont, 2020 QCCQ 597, Mr. Justice Daniel Lévesque homologated (recognized and enforced) an arbitral award against a party to the arbitration and ordered a third party to be solidarily liable for payment of the award amount. Lévesque J. acknowledged that the legal matrix was “particular” but was prompted to issue the tandem orders because (i) the amount fell within the jurisdiction of small claims court which favours access to justice and debt recovery and (ii) the invoice underlying the award issued against both the arbitral party and the non-party.
Continue reading “Québec – award homologated against arbitral party and non-party held solidarily liable for award amount – #284”B.C. – stay granted despite anticipation that arbitrator applying U.S. law might not be able to grant claims – #283
In Williams v. Amazon.com, Inc., 2020 BCSC 300, Madam Justice Karen Horsman stayed a proposed class proceeding for non-consumer claims seeking damages under Canada’s Competition Act, RSC 1985, c C-34 based on a standard form contract which submitted those claims to arbitration administered in the U.S. and subject to U.S. laws. Respecting competence-competence, Horsman J. recognized several issues affecting jurisdiction but deferred them to the arbitrator. She acknowledged the “real prospect” that a U.S. arbitrator (i) could decide that such claims were not available under U.S. substantive law and (ii) might lack jurisdiction to award the claimed damages but those were not sufficient to hold that the arbitration agreement was void, inoperative or incapable of performance. In addition, Horsman J. held that the agreement to arbitrate overcame any unconscionability concerns raised in Heller v. Uber Technologies Inc., 2019 ONCA 1.
Continue reading “B.C. – stay granted despite anticipation that arbitrator applying U.S. law might not be able to grant claims – #283”Ontario – failing to file application to stay and taking significant steps in litigation justifies refusal of stay – #282
In Paulpillai v. Yusuf, 2020 ONSC 851, Madam Justice Judy A. Fowler Byrne refused to stay litigation despite no challenge being made to the validity of the arbitration agreement. Rather, she held that the parties requesting the stay had not only omitted to bring a motion to stay but had waived the benefit of the agreement by having taken significant steps in the litigation to date.
Continue reading “Ontario – failing to file application to stay and taking significant steps in litigation justifies refusal of stay – #282”Alberta – costs are discretionary, not a discrete legal issue submitted to arbitrator, must be exercised judicially – #281
In Allen v. Renouf, 2020 ABQB 98, Mr. Justice C. Scott Brooker held that an arbitral party which ignores an opportunity to present its case cannot argue that it was treated manifestly unfairly. Brooker J. dismissed Applicant’s attempt to challenge a costs award which he categorized as a discretionary decision but equally disagreed with Respondent’s argument that costs were a discrete legal issue expressly submitted to the arbitrator and shielded from appeal under section 44(3) of Alberta’s Arbitration Act, RSA 2000, c A-43. He did acknowledge that costs awards may raise a question of law if the discretion was not exercised judicially.
Continue reading “Alberta – costs are discretionary, not a discrete legal issue submitted to arbitrator, must be exercised judicially – #281”Ontario – Olympic athletes cannot relitigate sports arbitration dispute as tort action – #280
In Sokolov v. The World Anti-Doping Agency, 2020 ONSC 704, Mr. Justice Mario D. Faieta granted summary judgment on a jurisdictional issue, dismissing a tort claim made by athletes denied entry to the 2016 Olympic Games in Rio. Faieta J. held that the athletes sought to litigate the same factual matrix which they had unsuccessfully arbitrated before the Court of Arbitration for Sport and that the “essential character” of the dispute was within the scope of the arbitration agreements. Though he considered the arbitration agreements to be more like arbitration imposed by statute or adhesion contracts, he expressly considered the impact on international sports if he signalled a willingness of domestic courts to resolve matters otherwise reserved for more specialized tribunals.
Continue reading “Ontario – Olympic athletes cannot relitigate sports arbitration dispute as tort action – #280”Québec – parties urged to mediate/arbitrate to ‘avoid bogging down’ in ‘complex and costly judicial procedures’ – #279
In Équipements de gardien de but Michel Lefebvre inc. v. Sport Maska inc., 2020 QCCS 44, Mr. Justice Frédéric Bachand dismissed an application for a provisional injunction but, in doing so, prompted the parties to seize the opportunity, already consented to in their contract, to undertake mediation and arbitration ‘to avoid bogging themselves down in complex and costly judicial procedures’. Bachand J. also urged the parties to engage in less formal exchanges of information which may allow them to find a faster solution to their dispute.
Continue reading “Québec – parties urged to mediate/arbitrate to ‘avoid bogging down’ in ‘complex and costly judicial procedures’ – #279”Ontario – agreement to arbitrate disputes involving “construction, meaning or effect” does not cover “enforcement” – #278
In Illumina Holdings Inc. v. Brand Alliance Inc. et al, 2020 ONSC 1053, Mr. Justice Cory A. Gilmore gave effect to an agreement to arbitrate disputes involving “construction, meaning or effect” of an agreement and refused to stay litigation based on enforcement of the agreement. Gilmore J. held that the claims involved “a straightforward contract case” and that breach of an enforceable agreement was not the same as the meaning of that agreement. Demonstrating the courts’ own readiness and flexibility to provide resolution of disputes, Gilmore J. then went on to determine that the disputes did not warrant a trial and issued orders on the merits of the claims made.
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