In Comren Contracting Inc. v Bouygues Building Canada Inc., 2020 NUCJ 2, Mr. Justice Paul Bychok held that non-compliance with clear and unambiguous deadlines in a stepped dispute resolution clause extinguished claimant’s right to pursue arbitration. Respondent’s eventual agreement to engage in mediation and arbitration, subject to its rights to raise that non-compliance as “technical or procedural defences”, did not waive its right to litigate or estop it from refusing arbitration.
Continue reading “Nunavut – non-compliance with clear deadlines in contract eliminates ability to arbitrate – #267”Ontario – consumer contract arbitration clauses resist unconscionability/undue influence challenges – #266
Master Karen E. Jolley in Evans v. Mattamy Homes Limited, 2019 ONSC 3883 and Master Robert A. Muir in Wang v. Mattamy Corporation, 2019 ONSC 6675 each dismissed Plaintiffs’ attempts to resist application of an arbitration agreement based on arguments that the agreements were invalid due to unconscionability and undue influence. Both concluded that Plaintiffs failed to demonstrate any of the elements required to invalidate the agreements. Any alleged pressure was market driven, due more to Plaintiffs vying to purchase a property from a finite number being sold by Defendant and subject to ongoing sales efforts to other prospective purchasers.
Continue reading “Ontario – consumer contract arbitration clauses resist unconscionability/undue influence challenges – #266”Supreme Court – litigation funding agreement approved in insolvency proceedings without need to submit to creditors – #265
The Supreme Court of Canada in 9354-9186 Québec inc. v. Callidus Capital Corp., 2020 CanLII 5612 reinstated a decision in first instance which authorized third-party litigation funding in court-monitored insolvency proceedings and granted the funders a super priority charge and security. The decision was announced with reasons to follow.
Continue reading “Supreme Court – litigation funding agreement approved in insolvency proceedings without need to submit to creditors – #265”Québec – appeal court quashes otherwise valid stay order due to defendants’ subsequent acquiescence – #264
On the basis of Defendant’s acquiescence, the Québec Court of Appeal in Association des copropriétaires du 10355 Ave Bois-de-Boulogne v. Balabanian, 2019 QCCA 2165 agreed to quash the decision in first instance which referred the parties to arbitration. Despite flagging, without deciding, whether a particular aspect of the claims sought could be granted in arbitration, the Court summarily agreed to annul that earlier decision and no argument was made that the decision suffered any flaws.
Continue reading “Québec – appeal court quashes otherwise valid stay order due to defendants’ subsequent acquiescence – #264”B.C. – period in which to appeal partial award runs from date of that award, not the later, final award – #263
In Milner v. Clean Harbors Industrial Services Canada, Inc., 2020 BCSC 68, Mr. Justice Anthony Saunders dismissed argument by a late-filing petitioner that the title “Partial Award” (i) created “inherent uncertainty” and (ii) justified calculating time to seek leave to appeal from the later, final award. Saunders J. held that the title “Partial Award” was not ambiguous and petitioner demonstrated no confusion as to his rights determined under that award. Saunders J. held that, of all the factors applicable to exercising his discretion to extend that time, the interests of justice subsumed the others and did not favour petitioner.
Continue reading “B.C. – period in which to appeal partial award runs from date of that award, not the later, final award – #263”Ontario – decision maker’s position in judicial hierarchy justifies no reason for different review standard – #262
In ATS Automation Tooling Systems Inc. v. Chubb Insurance Co., 2019 ONSC 5073, Madam Justice Sandra Nishikawa upheld a Master’s decision to dismiss plaintiffs’ motion to stay their own litigation. The facts did not confirm that the arbitration was active and, as of the date of the appeal hearing, arbitration had not been formalized and the limitation period in which to do so had expired. Nishikawa J. agreed with earlier case law there was “no compelling reason for adopting differing standards of review on appeal depending solely on the place in the judicial hierarchy occupied by the decision maker whose decision is under appeal”.
Continue reading “Ontario – decision maker’s position in judicial hierarchy justifies no reason for different review standard – #262”B.C. – evidence of fraud need not be ‘new’ to be admissible on post-decision challenge – #261
The fact that evidence of fraud existed at the time of hearing might justify its rejection as ‘new’ evidence on a post-decision challenge but cannot justify rejecting it as evidence of fraud. In McCallum v. Mooney, 2019 BCSC 1938, Madam Justice Nitya Iyer granted a defendant’s application to set aside a default decision, even after having unsuccessfully challenged it by internal appeal, due to claimant allegedly withholding a key document during the initial hearing on the merits.
Continue reading “B.C. – evidence of fraud need not be ‘new’ to be admissible on post-decision challenge – #261”Federal – final offer arbitration characterized as “an intentionally high risk form of arbitration” – #260
Madam Justice Ann Marie McDonald in Canadian National Railway Company v. Gibraltar Mines Ltd, 2019 FC 1650 demonstrated that the “unique nature” of final offer arbitration distinguished it from “ordinary commercial arbitration” and informed expectations of procedural fairness. The dissatisfied party objected to the administering institution’s decision to dismiss a preliminary application but provide reasons only after the arbitration concluded. McDonald J. held that the decision was not part of the FOA process under challenge and did not affect the fairness of the process. McDonald J. also issued a permanent order declaring certain documents, created for the arbitration, to remain confidential.
Continue reading “Federal – final offer arbitration characterized as “an intentionally high risk form of arbitration” – #260”Québec – award treated as “judgment” subject to ten (10) year prescription (limitation) period – #259
In Société générale de Banque au Liban SAL v. Itani, 2019 QCCS 5266, Madam Justice Dominique Poulin held that the longer, ten (10) year prescription (limitation) period applied to recognize and enforce an arbitration award made outside of Québec. Notwithstanding comments to the contrary in Yugraneft Corp. v. Rexx Management Corp., 2010 SCC 19 (CanLII), [2010] 1 SCR 649 based on two (2) of its leading cases originating from Québec, Poulin J. reasoned that, to be coherent, the provisions in the Civil Code of Québec, CQLR c CCQ-1991 should be read to treat an arbitration award as a “judgment”, thereby qualifying it for longer prescription (limitation) period.
Continue reading “Québec – award treated as “judgment” subject to ten (10) year prescription (limitation) period – #259”B.C. – land transfer made during arbitration later voided as fraudulent attempt to defeat creditors – #258
In Balfour v. Tarasenko, 2019 BCSC 2212, knowledge of a pending but unfinished arbitration qualified as one of the facts relevant to a declaration under B.C.’s Fraudulent Conveyance Act, RSBC 1996, c 163 to void a land transfer made during the arbitration and before the final award issued. Though hampered by an incomplete evidentiary record presented by self-represented litigants, Mr. Justice Dennis K. Hori did identify the land transfer as having the effect of delaying, hindering or defeating creditors.
Continue reading “B.C. – land transfer made during arbitration later voided as fraudulent attempt to defeat creditors – #258”