In Norstar Shipping and Trading Ltd. v. The Rosy (Ship), 2019 FC 1572, parties to an arbitration disputed the amount of bail to be paid into court to free a ship arrested as security for the claims made in the parties’ arbitration. The ship’s arrest was authorized by the Federal Courts Rules, SOR/98-106 which further required the seizing party to name its other arbitral party, the ship owner, as a party to the litigation. Naming the other party did not qualify as waiver of the arbitration agreement and the parties’ argument before Madam Justice E. Susan Elliott was not considered a breach of any confidentiality agreement regarding the arbitration.
Continue reading “Federal – court rules require ship owner as party in admiralty proceedings despite arbitration agreement – #257”Ontario – sometimes only a single reasonable answer exists under reasonableness standard – #256
In Ontario (Finance) v. Echelon General Insurance Company, 2019 ONCA 629, the Ontario Court of Appeal held that, even when applying a standard of reasonableness, there are occasions in which there is only a single reasonable answer. The Court also considered the role of accumulated decisions issuing by arbitrators under a statutory process in which the decisions are either published or not confidential and whether those decisions bound other parties in later arbitrations.
Continue reading “Ontario – sometimes only a single reasonable answer exists under reasonableness standard – #256”Ontario – court declines to defer costs determination but orders information sent to non-party/arbitrator in related arbitration – #255
In her post-trial costs decision in G.E.X.R. v. Shantz Station and Parrish & Heimbecker, 2019 ONSC 5192, Madam Justice Catrina D. Braid declined to defer determination of court costs in litigation involving GEXR and P&H until a related, ongoing arbitration between GEXR and CN was complete. Ostensibly to pre-empt any potential for double recovery of costs once the arbitration concluded and determined its costs, she also directed that P&H’s cost submissions filed in the court litigation and her reasons on costs be given (i) to CN which was not a party to the court litigation and (ii) to the arbitrator.
Continue reading “Ontario – court declines to defer costs determination but orders information sent to non-party/arbitrator in related arbitration – #255”B.C. – court asserts inherent jurisdiction under insolvency legislation to override arbitration clauses – #254
In Petrowest Corporation v. Peace River Hydro Partners, 2019 BCSC 2221, Madam Justice Nitya Iyer held that mandatory terms of B.C.’s Arbitration Act, RSBC 1996, c 55 do not prevent courts from exercising their inherent jurisdiction to refuse to stay court proceedings where provisions of the Bankruptcy and Insolvency Act, RSC 1985, c B-3 apply. Iyer J. lists a number of factors to consider when exercising that jurisdiction. The reasons and result mark an innovation in how courts balance respect of party autonomy endorsed by arbitral legislation with interests recognized in other legislation. Iyer J. also held that a trustee in bankruptcy is a party to an arbitration agreement when the trustee institutes litigation to enforce the terms of the main contract in which the arbitration agreement appears.
Continue reading “B.C. – court asserts inherent jurisdiction under insolvency legislation to override arbitration clauses – #254”Alberta – heavily-customized industry standard form contract ineligible for precedential value – #253
In Prairie Roadbuilders Limited v. Flatiron-Dragados-Aecon-Lafarge, A Joint Venture, 2019 ABQB 934, Mr. Justice James T. Eamon held that interpretation of an industry standard form contract promised no precedential value due to extensive negotiated changes which had resulted in an “awkward hybrid” and that resolution of the parties’ dispute depended on key portions drafted by the parties. Eamon J. comments also on the role of “boilerplate” and further held that the issues submitted to the arbitrator qualified as discrete questions of law and, having already been referred to and determined in arbitration, could not be re-submitted on appeal to the court under section 44(3) of Alberta’s Arbitration Act, RSA 2000, c A-43.
Continue reading “Alberta – heavily-customized industry standard form contract ineligible for precedential value – #253”Ontario – “very clear” that Court of Appeal lacks jurisdiction to hear appeal of order granting/refusing stay – #252
In Eggiman v. Martin, 2019 ONCA 974, Ontario’s Court of Appeal dismissed an attempt to appeal a motion judge’s decision refusing to stay an action under section 7(1) of Ontario’s Arbitration Act, 1991, SO 1991, c 17. The Court held that section 7(6) was “very clear” that there was no appeal from an order under section 7(1), whether that order grants or refuses the stay, if the arbitration agreement applies to the issue raised in the proceeding. The Court paused to mention that it was not to be seen as agreeing with the analysis engaged in by the motions judge. For the earlier Arbitration Matters note on the decision in first instance, Eggiman v. Martin, 2019 ONSC 1388, see “arbitrator appointment procedure in franchise agreement risks “absurd and likely unfair result””.
Continue reading “Ontario – “very clear” that Court of Appeal lacks jurisdiction to hear appeal of order granting/refusing stay – #252”Alberta – Defendants obtain stay after filing defence once they discover contract contained arbitration clause – #251
In Obcorp Holdings Inc v. Mammoet Canada Western Ltd, 2019 ABQB 960, Master B.W. Summers stayed litigation in favour of Defendants who, in “particularly unique” circumstances, had already pleaded to the action but did so unaware of the arbitration clause. Based on uncontradicted evidence, Defendants had acted promptly upon learning of the arbitration clause included in an updated version of their contract communicated by Plaintiff during the document discovery phase and had proposed that the few court pleadings be used to frame the issues in arbitration.
Continue reading “Alberta – Defendants obtain stay after filing defence once they discover contract contained arbitration clause – #251”Saskatchewan – arbitral board created by statute subject to access to information legislation procedures – #250
In 605499 Saskatchewan Ltd. v. Rifle Shot Oil Corp., 2019 SKCA 133, the Saskatchewan Court of Appeal held that an arbitration board, created by legislation, qualified as a government institution under Saskatchewan regulation and was subject to access to information rules and procedure. The decision reminds parties that the documents they file during their dispute resolution process may be subject to additional legislation preventing or facilitating their disclosure. The Court provided an express caution, indicating that it did not endorse the arbitration board’s conclusion that documents filed with the arbitration board were, as a category, always exempt from production.
Continue reading “Saskatchewan – arbitral board created by statute subject to access to information legislation procedures – #250”Québec – word inserted only in French version of standard form construction contract makes arbitration mandatory – #249
In Construction Larivière Ltée v. Pomerleau Inc., 2019 QCCS 5410, Madam Justice Dominique Goulet held that the word French word “peut” (“may” in English), when read in context with the word “exiger” (“require” in English), justified qualifying the agreement to arbitrate as mandatory rather than a possibility. The French word “exiger” does not appear in the English equivalent of the same standard form contract. Goulet J. also held that the ten (10) day delay in which to initiate arbitration was a strict one. Though the undertaking was mandatory, the arbitral party willing to proceed was too late in doing so and she denied the application to refer the parties to arbitration.
Continue reading “Québec – word inserted only in French version of standard form construction contract makes arbitration mandatory – #249”B.C. – Court of Appeal provides summary of principles applicable in appeals of arbitration awards – #248
In MSI Methylation Sciences, Inc. v. Quark Venture Inc., 2019 BCCA 448, B.C.’s Court of Appeal upheld an award, agreeing with the chambers judge that the arbitrator had not breached natural justice by allegedly failing to give the losing party an opportunity to address a theory of damages used in the award. The Court held that the alleged error did not raise a distinction of sufficient substance to render the arbitration process unfair. The Court also provided a summary of principles applicable in appeals of arbitration awards. For more on the issues in first instance, see the earlier Arbitration Matters note “B.C. – no arbitral error where arbitrator seeks assistance on legal principles raised in, but beyond, parties’ authorities.
Continue reading “B.C. – Court of Appeal provides summary of principles applicable in appeals of arbitration awards – #248”