In Arista Homes (Kleinburg) Inc. v. Sarah Igbinedion, 2019 ONSC 7086, Madam Justice Margaret Eberhard held that the costs of an earlier arbitration could not be recovered in subsequent litigation involving breach of a settlement negotiated during that arbitration. Eberhard J. held that such costs had been spoken to by the parties in their settlement and were also not within the discretion of the court to award as costs of the court proceeding alleging breach of the settlement.
Continue reading “Ontario – costs of arbitration not recoverable as damages in litigation over breach of settlement arrived at during arbitration – #247”Supreme Court – guidance for preserving assets in anticipation of execution of award upheld – #246
In the briefest of reasons, a 6:1 majority of the Supreme Court of Canada in International Air Transport Association v. Instrubel, N.V., 2019 SCC 61 dismissed the appeal from the Québec Court of Appeal decision in Instrubel v. Republic of Iraq, 2019 QCCA 78. In doing so, it upheld a successful arbitral claimant’s attempt to garnish funds owed by a third party to respondent pending an application to recognize and enforce its award. For more on the issues, see the earlier Arbitration Matters note “Québec – successful arbitral party seizes assets in hands of third party pending homologation of award”.
Continue reading “Supreme Court – guidance for preserving assets in anticipation of execution of award upheld – #246”Ontario – tests for adequacy of reasons and for remitting awards considered and applied – #245
Mr. Justice David L. Edwards in Wang v. Takhar, 2019 ONSC 5535 determined that an agreement to arbitrate, contained in a more recent contract, applied to the parties’ relationship established prior to that contract and did not eliminate appeals on questions of law. The challenged award lacked adequate reasons on only a single issue and, applying the principles for remitting awards, Edwards J. remitted the issue back to the arbitrator with specific questions as well as authority to re-open the evidence if need be.
In his follow up decision on costs in Wang v. Takhar, 2019 ONSC 6237, and after having considered the parties’ submissions, Edwards J. ordered no costs. Appellant was successful but only on a single issue narrower than the appeal framed initially and Respondent was successful in having the issue remitted back to the arbitrator.
Continue reading “Ontario – tests for adequacy of reasons and for remitting awards considered and applied – #245”Québec – $1 million suretyship ordered for stay of Canadian enforcement pending U.S. annulment – #244
In Lakah v. UBS, 2019 QCCA 1869, the Québec Court of Appeal denied leave to appeal a Superior Court decision ordering an arbitral party, resisting recognition and enforcement in Canada of an award made in the U.S., to post $1 million as suretyship in Canada pending U.S. annulment proceedings. The Superior Court acknowledged that a stay should be granted only exceptionally “because it impedes one of the key goals of arbitration, which is to avoid protracted litigation”. In the circumstances, the grounds alleged in the U.S. annulment proceedings “appeared serious” on their face and merited a stay of the Canadian recognition and enforcement proceedings but, in light of the $150 million ordered in the challenged arbitral award, a suretyship of $1 million was “relatively modest”.
Continue reading “Québec – $1 million suretyship ordered for stay of Canadian enforcement pending U.S. annulment – #244”P.E.I. – arbitral institution denied opportunity to contribute on key issues raised by challenge to award – #243
In HZPC Americas v. Skye View Farms & Ano, 2019 PECA 25, the P.E.I. Court of Appeal upheld a motions judge’s discretionary decision denying an arbitral institution leave to intervene in a challenge to an award. Limiting its review to whether the decision was reasonable on those grounds raised in appeal, the Court did not itself express its own view of key issues which had prompted the arbitral institution’s involvement. For more background on the parties involved and issues in first instance, see the Arbitration Matters note “Arbitral institution denied leave to intervene in jurisdiction-based challenge to arbitral award”.
Continue reading “P.E.I. – arbitral institution denied opportunity to contribute on key issues raised by challenge to award – #243”Alberta – contract and arbitration agreement both valid but inapplicable when parties effectively carry on different relationship – #242
In Trainor v. Fundstream Inc, 2019 ABQB 800, Madam Justice Alice Woolley declined to refer the parties to arbitration, holding that the employment contract was neither void ab initio or invalid but simply did not apply to the resulting legal relationship between the parties. The employment contract provided for services “within” a province but were actually performed “without”, in another province. As a result, the arbitration agreement did not apply to the termination because the services did not relate to the otherwise valid but unperformed original employment contract.
Continue reading “Alberta – contract and arbitration agreement both valid but inapplicable when parties effectively carry on different relationship – #242”B.C. – unlike agreement to arbitrate, class action waiver not effective to resist class action certification – #241
In Pearce v. 4 Pillars Consulting Group Inc., 2019 BCSC 1851, Mr. Justice Andrew P.A. Mayer declined to allow a class action waiver to override the mandatory provisions of B.C.’s Class Proceedings Act, RSBC 1996, c 50. In contrast to cases enforcing parties’ agreements to arbitrate and thereby resist class action certification, Mayer J. determined that the waiver’s only purpose was to avoid a class action. Though B.C. legislation did not prohibit such waivers, Mayer J. determined that the omission did not thereby constitute a legislative choice permitting class action waivers. He had no judicial discretion once the mandatory requirements for class action certification were met.
Continue reading “B.C. – unlike agreement to arbitrate, class action waiver not effective to resist class action certification – #241”N.W.T. – parties do not create standard form contract when their lawyers do not “reinvent the wheel” – #240
Mr. Justice Andrew M. Mahar in Northland Utilities (NWT) Ltd. v. Town of Hay River, 2019 NWTSC 31 remarked that parties do not hire lawyers to “reinvent the wheel” each time they engage in commercial activity and, in doing so, do not thereby make their contract a standard form contract. Despite omitting to characterize the issues as questions of law, mixed fact and law or fact and despite holding that the standard of review was reasonableness, Mahar J. did determine that the arbitrator’s analyses were not only reasonable but correct.
Continue reading “N.W.T. – parties do not create standard form contract when their lawyers do not “reinvent the wheel” – #240″Federal – no need to serve non-participating arbitral party with materials regarding post-recognition enforcement procedures – #239
In Heddle Marine Service (NL) Inc. v. Kydy Sea (Ship), 2019 FC 1140, Mr. Justice Peter G. Pamel relieved a third party from serving a losing, non-participating arbitral party with court materials related to post-recognition enforcement measures instituted by the successful arbitral party. The case offers a rare view into post-recognition skirmishes between an arbitral party and a third party competing over assets subject to judicial sale authorized as part of award enforcement. The facts also confirm that the arbitration process – from award to execution on assets – will proceed whether a duly-notified arbitral party participates or not.
Continue reading “Federal – no need to serve non-participating arbitral party with materials regarding post-recognition enforcement procedures – #239”Ontario – confidentiality of arbitration raised as shield to disclosing information relevant to litigation – #238
In Vanalt Electrical Construction, Inc. v. Ozz Electric Inc., 2019 ONSC 5893, Defendant alleged that confidentiality of an arbitration involving it and others prevented it from providing Plaintiff with information/documents relevant and probative to quantifying a key claim it made against Plaintiff. Instead of forcing an issue on the confidentiality, Master Michael Philip McGraw ordered Defendant to re-attend a final time for discovery at which time it could satisfy Plaintiff’s entitlement to clarity and evidence.
Continue reading “Ontario – confidentiality of arbitration raised as shield to disclosing information relevant to litigation – #238”