In St. John’s (City) v. 10718 Nfld. Inc., 2019 NLCA 41, Newfoundland and Labrador’s Court of Appeal upheld a first instance decision declaring that the City of St. John’s (the “City”) cannot require mandatory arbitration in an agreement as a term of approval of development as doing so is acting beyond its jurisdiction under its enabling legislation. See the earlier Arbitration Matters note “Newfoundland and Labrador court holds that a municipality has authority to agree to arbitration but not to impose it as a condition of regulatory approval“
Continue reading “N.L. – city lacks authority to impose arbitration unrelated to legislation’s purpose/intent – #207”B.C. – application to cancel certificate of pending litigation granted despite stay of litigation for arbitration – #206
In 1077708 BC Ltd. v. Agri-Grow Farm Services Ltd., 2019 BCSC 977, Madam Justice Catherine Murray granted Defendants’ application to cancel and remove a Certificate of Pending Litigation despite a stay of litigation granted by consent on broad terms. Murray J. noted that Plaintiff provided no authority requiring Defendants to first apply to lift the stay. She added that she saw “no logic or merit” in that requirement and held that Plaintiff was not prejudiced by having the court consider the application.
Continue reading “B.C. – application to cancel certificate of pending litigation granted despite stay of litigation for arbitration – #206”Alberta – court has no jurisdiction to extend statutory time limit in which to seek leave to appeal award – #205
Alberta’s Court of Appeal in Allen v. Renouf, 2019 ABCA 250 upheld a chambers judge’s decision to dismiss an application for leave to appeal on the basis that the court had no jurisdiction to extend a statutory time limit set out in the Arbitration Act, RSA 2000, c A-43. The arbitrator’s reserve of jurisdiction to issue a costs award did not suspend or add to that time period to challenge the earlier award on the merits. Case law also distinguishes calculating delays based on the ‘date of the decision’ and the ‘making of the decision’ and should apply with equal merit to delays applicable to arbitration awards.
Continue reading “Alberta – court has no jurisdiction to extend statutory time limit in which to seek leave to appeal award – #205”Québec – arbitration imposed by statute remains consensual if opportunity available to renounce – #204
In Boisvert v. Selvaggi, 2019 QCCS 1673, Mr. Justice Kirkland Casgrain dismissed an attempt at judicial review of an award issuing from arbitration imposed by statute. Relying on the reasoning and result in Conseil d’arbitrage des comptes des avocats du Barreau du Québec v. Marquis, 2011 QCCA 133, Casgrain J. held that such arbitrations remain consensual if the legislation allows opportunity to renounce to its application. Being consensual, such arbitrations were subject not to judicial review but to annulment proceedings based on limited grounds familiar to practitioners practising international commercial arbitration.
Continue reading “Québec – arbitration imposed by statute remains consensual if opportunity available to renounce – #204”Québec – inexperienced, first-time franchisee remains consumer when contracting, arbitration clause inapplicable – #203
In Najah v. Desatrais, 2019 QCCQ 3143, Mr. Justice François Lebel held that an individual who contracts with the goal of becoming merchant is, at that time, a consumer within the meaning of Québec’s Québec’s Consumer Protection Act, CQLR c P-40.1 (“CPA”). As a result, the arbitration clause in the first-time franchisee’s contract did not apply because it restricted his right to go to court.
Continue reading “Québec – inexperienced, first-time franchisee remains consumer when contracting, arbitration clause inapplicable – #203”Ontario – length/brevity of reasons in award not equal to reasonableness/insufficiency – #202
In Peralta v. Peralta, 2019 ONSC 2854, (unreported, May 7, 2019, Court file no. CV-18-26994), Mr. Justice Thomas J. Carey held that lengthy reasons do not equal reasonable and correct reasons any more than brief ones are equated with insufficiency. In his own brief reasons upholding a final award on the standard of reasonableness, Carey J. echoed earlier judicial observation that losing in arbitration itself does not equate to unfair or unequal treatment. The challenged result was an outcome open to the arbitrator, within his expertise and supported by clear, concise and reasonable reasons.
Continue reading “Ontario – length/brevity of reasons in award not equal to reasonableness/insufficiency – #202”Alberta – court exercises contractual grant of discretion to refuse stay because proper for summary judgment – #201
In Obsidian Energy Partnership v. Grizzly Resources Ltd, 2019 ABQB 406, Master J.T. Prowse, Q.C. referred exclusively to the parties’ arbitration agreement to exercise discretion and refuse a stay because the dispute was a proper one for summary judgment. The contractual terms mirrored section 7 of Alberta’s Arbitration Act, RSA 2000, c A-43 but Master Prowse made no reference to the legislation in refusing to stay the litigation.
Continue reading “Alberta – court exercises contractual grant of discretion to refuse stay because proper for summary judgment – #201”Ontario – arbitral award given no weight in court when litigant not party to the arbitration – #200
In G.E.X.R. v. Shantz Station and Parrish & Heimbecker, 2019 ONSC 1914, Madam Justice Catrina D. Braid declined to give evidentiary weight in her court to an arbitral award to which one of the litigants before her was not a party. While open to giving arbitral awards some weight in certain circumstances, the plaintiff’s absence from the arbitration was sufficient to disregard the award. Braid J. also commented on whether an adverse inference should be drawn if neither party called a key witness from the arbitral proceedings.
Continue reading “Ontario – arbitral award given no weight in court when litigant not party to the arbitration – #200”Québec – stay application refused despite court’s and contract’s flexibility to identify agreement to arbitrate – #199
In Constructions 3P Inc. v. Construction Demathieu & Bard (CDB) Inc., 2019 QCCS 2070, Mr. Justice Thomas M. Davis refused to stay litigation in favour of arbitration despite his willingness to consider evidence pre- and post-contract of an agreement to arbitrate. Despite claims that the parties had agreed to arbitrate and attempts to demonstrate that agreement, Davis J. determined that (i) the existing agreement to arbitrate had not been followed and (ii) no new agreement post-dispute had been made despite contractual undertakings to explore dispute resolution options.
Continue reading “Québec – stay application refused despite court’s and contract’s flexibility to identify agreement to arbitrate – #199”Ontario – new disputes either beyond or no longer subject to abandoned submission agreement – #198
In 1230455 Ontario Ltd. v. 150 Katimavik Inc., 2019 ONSC 2481, Madam Justice Michelle O’Bonswain declined to order the parties to arbitration due to the scope of the submission to agreement and its abandonment. O’Bonswain J. held that (i) one part of their new dispute did not fall within their initial submission to arbitration and (ii) the other part of their dispute did fall within the agreement but the parties had abandoned arbitration.
Continue reading “Ontario – new disputes either beyond or no longer subject to abandoned submission agreement – #198”