Despite the parties’ agreement that the arbitrator provide only summary reasons, Mr. Justice J. Christopher Grauer in Nolin v. Ramirez, 2019 BCSC 934 determined that the arbitrator’s brief reasons were insufficient to withstand review on a standard of reasonableness. Grauer J. held that even summary reasons require more than just a conclusion. Because he lacked jurisdiction to substitute his own decision for that of the arbitrator and, in the event, could not say that the arbitrator had gotten the issues wrong, he remitted the issues to the arbitrator for reconsideration.
Continue reading “B.C. – agreement to accept summary reasons is not acceptance of insufficient reasons – #217”Manitoba – willingness to arbitrate must be reciprocated and not just “most efficient” – #216
In considering interim measures sought in shareholder oppression litigation, Madam Justice Candace Grammond in Gershkovich et al. v. Sapozhnik et al., 2019 MBQB 115 declined to order the parties to undertake arbitration. Despite Respondents’ willingness to have the shareholder dispute decided in, what Respondents believed was, “the most efficient manner”, Grammond J. noted that Respondents did not allege the court lacked jurisdiction or the parties were bound by a pre-existing agreement to arbitrate. Grammond J. did confirm that she would hear the oppression remedy unless the parties consented to arbitration and Respondents applied to compel arbitration.
Continue reading “Manitoba – willingness to arbitrate must be reciprocated and not just “most efficient” – #216”Alberta – creature of statute, non-party can initiate arbitration where same legislation imposes its obligations and arbitration – #215
In TransAlta Generation Partnership v. Balancing Pool, 2019 ABCA 318, the Alberta Court of Appeal upheld dismissal of a challenge to arbitration initiated by an entity which was created by legislation but was not party to contracts stemming from the legislation. The Court determined that the statutory scheme which created the non-party did not limit its right to dispute its significant financial obligations to compensate the contracting parties in certain disputes. The Court’s handling of the implied exclusion rule lends itself to other legislative schemes created in the public interest.
Continue reading “Alberta – creature of statute, non-party can initiate arbitration where same legislation imposes its obligations and arbitration – #215”Ontario – administering institution granted leave to intervene in challenge to appellate arbitral award – #214
In Re/Max All-Stars Realty Inc. v. Real One Realty Inc., 2019 ONSC 4956, Master Michael P. McGraw granted leave to an real estate industry association to intervene in a challenge to an award issuing from a process it administered. Master McGraw held that the association was uniquely placed to make a useful contribution to the determination of the issue regarding the history/purposes of the arbitration rules prohibiting court litigation and how interpretation of those prohibitions may affect other arbitral provisions. Contrast this reasoning/result with HZPC Americas v. Skye View Farms, 2018 PESC 47 (CanLII) which determined that an arbitral institution would not contribute anything useful to an appeal involving excess of jurisdiction of the institution’s arbitration rules. See the Arbitration Matters note “P.E.I. – arbitral institution denied leave to intervene in jurisdiction-based challenge to arbitral award”.
Continue reading “Ontario – administering institution granted leave to intervene in challenge to appellate arbitral award – #214”Saskatchewan – arbitrator’s mentions of “in my experience” insignificant and raise no question of law – #213
In Graham Design Builders LP v. Black & McDonald Limited, 2019 SKQB 161, Mr. Justice G.M. Currie denied leave to appeal on a question of law because the arbitrator’s repeat mention of “in my experience” did not qualify as taking arbitral notice of a practice in the relevant market. Rather, the remarks were “mere passing comments” which did not affect the award based on the factual matrix in evidence and relevant contractual provisions. In a subsidiary analysis, Currie J. did accept that, had one of the challenges qualified as a question of law, he would have considered it important enough to grant leave to appeal by applying a $1 million threshold he identified as ‘significant’ in his one of his earlier decisions.
Continue reading “Saskatchewan – arbitrator’s mentions of “in my experience” insignificant and raise no question of law – #213”Ontario – no forgiving liability or forgetting facts when counsel apologizes in court on client’s behalf – #212
In Pollard Windows Inc. v. 1736106 Ontario Inc., 2019 ONSC 4859, Ontario’s Divisional Court held a litigant to submissions made by its counsel in court, determining that the provisions of Ontario’s Apology Act, 2009, SO 2009, c 3 did not serve to exclude the apology and admission of liability. Because the Apology Act expressly stipulates that it applies to arbitration, the Court’s reasons regarding the combined effect of counsel’s ostensible authority and the characteristics of an apology apply to arbitration as well.
Continue reading “Ontario – no forgiving liability or forgetting facts when counsel apologizes in court on client’s behalf – #212”Alberta – couple unable to litigate property dispute they agreed to delegate to parents – #211
In Mahajan v. Mahajan, 2019 ABQB 495, Mr. Justice Michael J. Lema stayed a divorce proceeding to provide time for the couple’s four (4) parents to resolve a property dispute delegated to them by the couple in their post-separation agreement. Lema J. held that no uncertainty existed regarding who would resolve the dispute but only uncertainty as to how they would do so.
Continue reading “Alberta – couple unable to litigate property dispute they agreed to delegate to parents – #211”Supreme Court – distinctions for service and notice to banks offers guidance for arbitral practice – #210
In 1068754 Alberta Ltd. v. Québec (Agence du revenu), 2019 SCC 37, on appeal from Québec, the Supreme Court of Canada distinguished between two (2) provisions of the Bank Act, SC 1991, c 46 which stipulate how to effectively serve banks with legal proceedings and provide notice.
Continue reading “Supreme Court – distinctions for service and notice to banks offers guidance for arbitral practice – #210”Ontario – pleading to action insufficient to qualify as waiver to request stay – #209
In Khomovych v. Bomar 2 Inc. o/a Colony Park Homes, 2019 ONSC 3982, Madam Justice Mary E. Vallee stayed the action despite Defendant having pleaded to it and Plaintiff’s request for an adjournment so that it could present its motion for summary judgment under section 7(2)5 of Ontario’s Arbitration Act, 1991, SO 1991, c 17. Vallee J. determined that the parties were bound to undertake arbitration imposed by legislation applicable to new home warranties.
Continue reading “Ontario – pleading to action insufficient to qualify as waiver to request stay – #209”Ontario – court’s willingness to continue in obiter and determine key issue in appeal treated as decision on merits – #208
In BGOI Films Inc. v. 108 Media Corporation, 2019 ONCA 539, the Ontario Court of Appeal quashed attempts to appeal a decision which denied leave to appeal an award and then a decision which recognized and enforced the award. In reasons best described as brief, the Court held that no appeal lies from a refusal to grant leave when that refusal is based on the merits. Having dismissed that appeal, no grounds remained to give the court jurisdiction to refuse to recognize and enforce the award and the second appeal no longer had a basis.
Continue reading “Ontario – court’s willingness to continue in obiter and determine key issue in appeal treated as decision on merits – #208”