In Chung v. Merchant Law Group, 2020 QCCS 398, Mr. Justice Sylvain Lussier held that a clause, removing jurisdiction from the courts of Québec for an employment dispute, had no effect because it violated a rule of public order in Québec’s Civil Code of Québec, CQLR c CCQ-1991. Though the case dealt with a clause by which the parties submitted any issues to the exclusive jurisdiction of Saskatchewan’s Court of Queen’s Bench, the rule has application to related attempts to submit similar employment relationships to arbitration.
Continue reading “Québec – rule shielding employee with Québec residence/domicile from litigating outside province applies to arbitration – #277”Alberta & Manitoba – courts take different paths to different outcomes following same S.C.C. case – #276
In Cove Contracting Ltd v. Condominium Corporation No 012 5598 (Ravine Park), 2020 ABQB 106, Mr. Justice Grant S. Dunlop held that Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 had not changed the standard of review for commercial arbitrations from reasonableness to correctness and denied leave to appeal. In Buffalo Point First Nation et al. v. Cottage Owners Association, 2020 MBQB 20, Mr. Justice Chris W. Martin held that Vavilov had changed the standard and granted leave to appeal. Dunlop J. postponed his hearing to give the parties the opportunity to argue the role of Vavilov. Martin J. issued his decision on leave to appeal without hearing from the parties but invited them to submit argument for the merits of the appeal.
Continue reading “Alberta & Manitoba – courts take different paths to different outcomes following same S.C.C. case – #276”Ontario – majority shareholder referring contract interpretation to arbitration is not oppressive conduct – #275
In Richcraft Homes Ltd. v. Urbandale Corporation et al., 2020 ONSC 411, Mr. Justice Robert J. Smith dismissed a minority shareholder’s action which alleged oppression based on a majority shareholder requesting a legal opinion favourable to its interests and then submitting the interpretation to arbitration. Smith J. held that any party to a commercial agreement, including a majority shareholder, is entitled to seek a legal opinion concerning interpretation its rights under a contract and, instead of acting illicitly on any interpretation, refer interpretation of the contract to arbitration.
Continue reading “Ontario – majority shareholder referring contract interpretation to arbitration is not oppressive conduct – #275”Ontario – reliance on theories not pleaded/argued are errors and have ripple effects throughout award – #274
In Tall Ships Landing Devt. Inc. v. City of Brockville, 2019 ONSC 6597, Madam Justice Sally Gomery held that deference for arbitrators and discretion over procedural matters do not displace the imperatives of fairness and reliability which underpin arbitration. Despite a standard of reasonableness applicable to commercial arbitration awards, reliance on a legal theory not advanced or argued by the parties is an error of law and leads to conclusions outside the arbitrator’s mandate. Errors early in the award undermined later, otherwise reasonable determinations made in the same award but which rested on those earlier determinations. Rather than vary, set aside or remit the awards with directions, Gomery J. solicited submissions to determine the appropriate remedy at a future hearing.
Continue reading “Ontario – reliance on theories not pleaded/argued are errors and have ripple effects throughout award – #274”Alberta – participation in court proceedings prior to stay application waives mandatory arbitration – #273
In Agrium, Inc. v. Colt Engineering Corporation, 2020 ABQB 53, Master J.T. Prowse held that he had discretion to refuse a stay in favour of mandatory arbitration and could do so on the basis of unfairness to plaintiff stemming from the applicants’ participation in court proceedings. That participation, though minimum, coupled with two (2) years of delay, lead Master Prowse to conclude that it would be unfair to plaintiff to allow defendants to “go back on their choice to participate in this litigation”.
Continue reading “Alberta – participation in court proceedings prior to stay application waives mandatory arbitration – #273”Ontario – court revisits/reverses prior decision which allowed new evidence on post-award jurisdictional challenge – #272
In The Russia Federation v. Luxtona Limited, 2019 ONSC 7558, Mr. Justice Michael A. Penny held that a party to a challenge of an arbitral tribunal’s jurisdiction under articles 16 and 34 of the UNCITRAL Model Law on International Arbitration may not file fresh evidence as of right. A party must obtain leave to do so by providing a “reasonable explanation” for why new evidence is necessary, including why that evidence was not, or could not have been, put before the tribunal in the first place. Abiding by the Mexico v. Cargill, Incorporated, 2011 ONCA 622 approach restricting courts to a “review” and not a trial de novo, Penny J. held that competence-competence was best served by requiring parties to put their “best foot forward” before the arbitral tribunal and not re-try the jurisdictional issue with additional evidence informed by hindsight.
Continue reading “Ontario – court revisits/reverses prior decision which allowed new evidence on post-award jurisdictional challenge – #272”B.C. – court acknowledges but declines to follow reasoning in Heller v. Uber Technologies Inc. – #271
In A-Teck Appraisals Ltd. v. Constandinou, 2020 BCSC 135, Madam Justice Mary A. Humphries expressly noted but declined to follow the reasoning in Heller v. Uber Technologies Inc., 2019 ONCA 1 (leave to appeal granted Uber Technologies Inc., et al. v. David Heller, 2019 CanLII 45261 (SCC), under advisement following the November 6, 2019 hearing). Recognizing the Ontario Court of Appeal as a persuasive authority whose judgments merit respect, Humphries J. held it was “not obvious” that its reasoning applied to B.C. legislation and the unfairness informing that result did not arise on the facts before her. She refused to void an arbitration agreement in an employment contract and, in doing so, granted a stay.
Continue reading “B.C. – court acknowledges but declines to follow reasoning in Heller v. Uber Technologies Inc. – #271”Ontario – facts determine jurisdiction and not the characterization of those facts – #270
In Stegenga v. Economical Mutual Insurance Company, 2019 ONCA 615, the Ontario Court of Appeal held that the nature and subject matter of a dispute, assessed on the facts giving rise to it, determine jurisdiction. The legal characterization of a cause of action does not determine whether a claim falls within the jurisdiction of the court or an alternative dispute process created by legislation. Though an insured raised an independent cause of action of alleged bad faith in the handling of statutory benefits and sought remedies which the statutory tribunal could not grant, litigation was barred. The legislation used broad phrase of “in respect of” to link “dispute” and “entitlement” and captured the facts alleged.
Continue reading “Ontario – facts determine jurisdiction and not the characterization of those facts – #270”Ontario – non-parties seek injunction to stop private arbitration from proceeding – #269
In City of Toronto v. Resource Productivity & Recovery Authority, 2020 ONSC 599, Madam Justice Katherine E. Swinton dismissed an attempt by non-parties to enjoin a private arbitration from proceeding. Though one of the arbitral parties exercised duties under Ontario legislation, the dispute stemmed from a bilateral agreement and involved no exercise of statutory power of decision subject to judicial review. Swinton J. observed that the non-parties argued the arbitrator lacked authority but neither of the arbitral parties challenged the arbitrator’s jurisdiction.
Continue reading “Ontario – non-parties seek injunction to stop private arbitration from proceeding – #269”Ontario – “sophisticated corporate consumer” expected to review external undertaking to arbitrate – #268
In Hydro Hawkesbury v. ABB Inc., 2020 ONCA 53, the Ontario Court of Appeal enforced an undertaking to arbitrate despite the undertaking being contained in terms which had not been specifically brought to the resisting party’s attention or provided in materials exchanged. Those terms were readily available and specifically referred to in documents creating the contractual relationship and a “fairly sophisticated corporate consumer” doing business with a foreign supplier in international markets would reasonably be expected to expect and to review the terms. Also, in first instance, the applications judge also accepted that the application to stay was timely despite being filed well after the defence.
Continue reading “Ontario – “sophisticated corporate consumer” expected to review external undertaking to arbitrate – #268”