In SNC-Lavalin inc. v. Arcelormittal Exploitation minière Canada, 2021 QCCA 849, Madam Justice Christine Baudouin dismissed two (2) applications for leave to appeal interim decisions involving the role an arbitration award played in court. That award involved some, but not all, of the parties to litigation initiated by A. S and B as non-parties to that award between A and M argued that the judge had unduly limited the scope of the award. Baudouin J.A. disagreed, holding that the opposite prevailed. Subject to what the evidence might eventually establish and limiting her comments to her view of the record, Baudouin J.A. remarked that (i) S and B gave the award a scope which exceeded its conclusions and (ii) the issue addressed in the award was not A’s sole source of recourse against S and B. Regarding M’s application as party to the award and involved in the court litigation by way of B’s recursory claim against M, Baudouin J.A. did not accept that B’s recursory action was a collateral attack on that award and noted that the inconveniences inherent in a trial do not qualify for leave under article 31 of Code of Civil Procedure, CQLR c C-25.01.
Continue reading “Québec – court denies leave to challenge interim trial level decisions involving role of arbitration award in litigation – #488”B.C. – appeal court declines to re-assess success in appeal of award where court remits valuation matter to arbitrator – #487
In Nolin v. Ramirez, 2021 BCCA 191, B.C.’s Court of Appeal declined to modify a costs award issued in first instance, reiterating its deference to such discretionary orders. The Court did acknowledge that it could modify a costs award “without undue deference to the views of the trial judge” if the Court on appeal had modified the amount granted in first instance for the merits of the dispute and where “the amount or nature of the award was a factor in the costs award below”. Because the judge in first instance had remitted a valuation matter to the arbitrator, the Court held that “[t]here are still issues outstanding that have been referred to the arbitrator, and without a final decision with respect to those issues, it is difficult to assess substantial success”.
Continue reading “B.C. – appeal court declines to re-assess success in appeal of award where court remits valuation matter to arbitrator – #487”Manitoba – ‘reckless’ and ’unfounded’ allegations against S counsel regarding arbitration record justify personal costs order against C counsel – #486
In Christie Building Holding Company, Limited v. Shelter Canadian Properties Limited, 2021 MBQB 101, Mr. Chief Justice Glenn D. Joyal dismissed attempts to reopen an earlier hearing in which he determined what constituted the record from the arbitration for the purpose of leave to appeal applications and any eventual appeal. To do so, Joyal C.J. reviewed the evolution of the procedural decisions contemplated in the arbitration, offering insights into how to document such decisions and whether excessive flexibility actually generates uncertainty even for those involved in the arbitration. In dismissing attempts by C’s counsel to ground C’s relief on allegations of fraud or facts arising or discovered after the initial court order, Joyal C.J. characterized the allegations made by C’s counsel against S’s counsel as “reckless and unfounded”, “an abuse of this Court’s process” and “unprofessional and inappropriate”. Such allegations made personally against S’s counsel justified a reasonable solicitor-costs order against C’s counsel personally.
Continue reading “Manitoba – ‘reckless’ and ’unfounded’ allegations against S counsel regarding arbitration record justify personal costs order against C counsel – #486”Ontario – legislation permitting application to court does not oust arbitrator’s jurisdiction for same remedy – #485
In Toronto Standard Condominium Corporation No. 1628 v. Toronto Standard Condominium Corporation No. 1636, 2021 ONCA 360, Ontario’s Court of Appeal held that wording in the Condominium Act, 1998, SO 1998, c 19 which permits an application to the Superior Court for relief regarding oppression set out in that legislation “does not oust the jurisdiction of an arbitrator to consider the same relief, if that relief is part of the dispute in question that properly falls within the terms of the arbitration provision”. The Court also expressly accepted that a stay order would result in “parallel proceedings” – arbitration between two (2) parties and court litigation with all four (4) over the balance of the dispute – but concluded that parallel proceedings did not “detract from the central point” that two (2) of the parties must arbitrate. The Court did observe that the other non-parties to the arbitration “might voluntarily agree to be part of the arbitration proceedings”.
Continue reading “Ontario – legislation permitting application to court does not oust arbitrator’s jurisdiction for same remedy – #485”Québec – liquidator of preferred shareholders’ succession granted leave to intervene in common shareholder’s motion to nominate a mediator – #484
Upon application by the liquidator of G’s succession, Madam Justice Aline U.K. Quach in Charron v. Charron, 2021 QCCS 2043 granted the liquidator leave to intervene in shareholder A’s motion to nominate a mediator regarding a dispute he had with shareholder C. Though the dispute appeared to only involve A and C who held common shares, Quach J. held that their dispute might impact the value of G’s preferred shares administered by the liquidator. As such, Quach J. determined that the liquidator had a sufficient, probable, direct and personal interest in the matter in dispute. The shareholders’ agreement contained a stepped dispute resolution process, involving mediation as a first step followed, if need be, by arbitration.
Continue reading “Québec – liquidator of preferred shareholders’ succession granted leave to intervene in common shareholder’s motion to nominate a mediator – #484”Québec – application for referral to arbitration has no autonomous status once plaintiff discontinues action – #483
In Gagné v. Gagné, 2021 QCCA 823, Québec’s Court of Appeal agreed that defendants’ application for referral to arbitration did not qualify as a cross-demand and the court was not seized of that application as an independent claim. Plaintiff had discontinued his action after the parties had pleaded defendants’ application for referral and during advisement. The Court held that defendants could not require the court to issue a decision after plaintiff filed the discontinuance. The court faced a juridical void given that there was no dispute to refer to arbitration and had no basis to conclude that defendants had acquired rights to have a decision on a referral to arbitration of a matter which had already terminated. The Court qualified an application for referral as limited to contestation of plaintiff’s action and, without that action, had no distinct or autonomous status in regard to a right invoked by defendants.
Continue reading “Québec – application for referral to arbitration has no autonomous status once plaintiff discontinues action – #483”Ontario – offer to settle in advance of stay application must contain real compromise to justify higher costs – #482
In Kore Meals LLC v. Freshii Development LLC, 2021 ONSC 3736, Mr. Justice Edward M. Morgan provided guidance on how to make an offer to settle in advance of an application to stay which would qualify for the increased costs eligible under Rule 49.10(2) of Ontario’s Rules of Civil Procedure, RRO 1990, Reg 194. Morgan J. observed that advising that “Defendants were right and the Plaintiff was wrong” and that defendants would apply for a stay contains no real compromise. Defendants’ offer to refrain from defending or seeking a stay of proceedings if plaintiff would walk away from the claim is not an offer which attracts increased costs. Morgan J. nonetheless granted costs on a partial indemnity scale, qualifying them as reasonable. He determined that the motion required “considerable legal research”, counsel “did what it to took to win the motion” and he was “not inclined to second guess [FD]’s counsel’s investment of time and effort” regarding an amount of fees which would not surprise “a sophisticated corporate party”.
Continue reading “Ontario – offer to settle in advance of stay application must contain real compromise to justify higher costs – #482”Alberta – absent summary judgment motion, stay granted because summary judgment exemption is premature – #481
In Melcor Reit Limited Partnership (Melcor Reit GP Inc) v. TDL Group Corp (Tim Hortons), 2021 ABQB 379, Master W. Scott Schlosser stayed a proceeding because plaintiff’s reliance on the summary judgment exemption in section 7(2)(e) of Alberta’s Arbitration Act, RSA 2000, c A-43 was “at the very least premature”. Master Schlosser held that a party resisting referral to arbitration under section 7(2)(e) must have first filed a summary judgment application and, until doing so, the exemption was not in issue. Master Schlosser also contrasted the state of summary judgment principles applicable when the Arbitration Act was first introduced and the current status of those principles following Hryniak v. Mauldin, 2014 SCC 7 (CanLII), [2014] 1 SCR 87. He noted that “[s]omething now suitable for Summary Judgment is quite different from what might have been suitable when Section 7(2)(e) of the Arbitration Act was passed into law” and “[a]n expansive reading of summary disposition is likely much wider than what was originally intended by the Act”.
Continue reading “Alberta – absent summary judgment motion, stay granted because summary judgment exemption is premature – #481”Nova Scotia – absent summary judgment motion, stay declined if there is arguable case for summary judgment – #480
Despite the absence of a motion for summary judgment, in VistaCare Communications Services of Canada Inc. v. Verge Technologies Inc., 2021 NSSC 161, Madam Justice Mona Lynch declined a stay under section 9(2)(e) of the Commercial Arbitration Act, SNS 1999, c 5 because the party resisting the stay “has satisfied me that there is an arguable case for summary judgment”. Lynch J. determined that whether a matter is a proper one for summary judgment (i) “does not mean deciding whether summary judgment would be granted as doing so would be too high a bar to meet” or (ii) “cannot be only whether summary judgment will be sought as that bar is too low”. Lynch J. held that “[w]here there is no summary judgment motion with the stay motion, the proper test should be whether there is an arguable case for summary judgment”.
Continue reading “Nova Scotia – absent summary judgment motion, stay declined if there is arguable case for summary judgment – #480”Ontario – security for costs order in recognition application appealable “because it speaks to the response of Canadian courts to international comity” – #479
In China Yantai Friction Co. Ltd. v. Novalex Inc., 2021 ONSC 3571, Ontario’s Divisional Court granted leave to appeal (i) a decision dismissing an application to order that the award debtor deposit the award amount pending opposition to recognition of the award and (ii) a decision granting an order for security for costs against the non-resident award creditor seeking recognition. The award debtor had not applied to set aside or suspend the award in Beijing where the award was made and had not argued any of the grounds listed in article 36(1)(a) of the International Commercial Arbitration Act, 2017, SO 2017, c 2, Sch 5 to resist recognition. The Divisional Court held there was “reason to doubt the correctness of the decision”. Though the matter involved recognition of an arbitral award issued outside of Canada rather than a court decision, the Divisional Court considered the appeal “important because it speaks to the response of Canadian courts to international comity and our relationship to the courts of other countries”.
Continue reading “Ontario – security for costs order in recognition application appealable “because it speaks to the response of Canadian courts to international comity” – #479”