Mr. Justice Daniel Bourgeois in Medeiros v. Jan-Pro Canada Est, 2019 QCCQ 663 held that he had no jurisdiction sitting in Court of Québec, Small Claims Division to refer the parties to arbitration because an arbitration tribunal did not qualify as a ‘court’ under article 547 al. 2(2) of Québec’s Code of Civil Procedure, CQLR c C-25.01 (“C.C.P.”) governing the options available to parties. Instead of a referral, Bourgeois J. suspended the court proceedings in Small Claims Division pending an arbitration tribunal’s determination of the validity of the arbitration clause.
Continue reading “Québec – court lacks jurisdiction to refer parties to arbitration where dispute involves $15,000.00 or less – #177”N.L. – ‘legislative language to the contrary’ provides option of court proceedings or arbitration – #176
In Dewey v. Corner Brook Pulp and Paper Limited, 2019 NLCA 14, Newfoundland and Labrador’s Court f Appeal held that the applications judge had erred in ordering a stay of a proposed class action when he found that the dispute could only be resolved by mandatory arbitration. Based on its interpretation of the legislation first introduced in 1915 and amended subsequently, the Court held that the legislation, from the onset and despite amendments, provided for the option of arbitration or court proceedings. The Court identified the result as an exception, based on “legislative language to the contrary”, to courts enforcing mandatory arbitration.
Continue reading “N.L. – ‘legislative language to the contrary’ provides option of court proceedings or arbitration – #176”Ontario – court passes on stay because hockey contract’s arbitration agreement not in play – #175
Presented with disputes stemming from the same, key fact, Mr. Justice James A. Ramsay in Niagara Ice Dogs Hockey Club Inc. v. Ontario Major Junior Hockey League, 2019 ONSC 1713 refused to enjoin a hockey league from holding a disciplinary hearing for a hockey club in favour of that same club’s arbitration with one of its players. In doing so, Ramsay J. demonstrated that the same fact can trigger separate sets of rights and obligations between the club, the player and the league as well lead to different dispute resolution processes.
Continue reading “Ontario – court passes on stay because hockey contract’s arbitration agreement not in play – #175”Québec – court enjoins reluctant arbitral party to abide by earlier court decision enforcing award – #174
In SDC Habitations Saint-Maurice phase III v. Raymond Chabot Administrateur, 2019 QCCS 636, Madam Justice Jocelyn Geoffroy summarily dispensed with a Respondent’s persistent refusal to abide by an award which had been recognized and enforced as a judgment of the Québec Superior Court. The application to the court prompted a seldom needed level of court intervention in support of arbitration. The court’s brief reasons reflect that respect for a resolution of disputes is rooted in a respect for the rule of law.
Continue reading “Québec – court enjoins reluctant arbitral party to abide by earlier court decision enforcing award – #174”Ontario – notice requirement satisfied where form of notice reasonably calculated to inform of arbitral proceedings and opportunity to respond – #173
In Tianjin v. Xu, 2019 ONSC 628, Mr. Justice Laurence A. Pattillo dismissed objections to recognition and enforcement based on allegations that respondent did not receive notice and that arbitration did not qualify as “international”. In doing so, Pattillo J. determined that using the form of notice adopted by the arbitral institution administering the arbitration satisfied the “proper notice” requirement. To determine what constitutes “proper notice”, he also referred to and adopted as “a reasonable standard” the standard developed by U.S. authorities listed at para. 31 of his reasons. Pattillo J. also determined that respondent’s domicile at the time she entered into the arbitration agreement qualified the arbitration as international.
Continue reading “Ontario – notice requirement satisfied where form of notice reasonably calculated to inform of arbitral proceedings and opportunity to respond – #173”Ontario – clause omitting express referral to arbitration still valid enough to stay litigation – #172
Despite less-than clear drafting, the parties’ agreement to have their disputes “settled in accordance with” identified institutional rules was sufficient to remove the court’s jurisdiction in Belnor Engineering Inc. v. Strobic Air Corporation et al., 2019 ONSC 664. Mr. Justice Lorne Sossin also dismissed arguments that the arbitration agreement was invalid because it was unconscionable, noting that (i) no argument was made that applying the institutional rules was unconscionable and (ii) no inequality of bargaining power or practical inaccessibility of arbitration existed to create an unfairness if the action was stayed in favour of arbitration.
Continue reading “Ontario – clause omitting express referral to arbitration still valid enough to stay litigation – #172”Alberta – even after limitation period expires to initiate arbitration, court applies exceptions to deny stay – #171
In Fath v. Quadrant Construction Ltd, 2019 ABQB 151, defendant petitioned to stay litigation against it only after the limitation period expired in which plaintiff could initiate mandatory arbitration. Master W. Scott Schlosser noted that a court lost its supervisory jurisdiction to stay if arbitration was no longer viable because its jurisdiction was over the arbitration and not the lawsuit. Acknowledging that granting a stay effectively barred plaintiff’s claim against defendant and faced with a divided approach in the case law, Master Schlosser opted to consider the exceptions to stay set in Section 7(2) of the Arbitration Act, RSA 2000, c A-43. As an alternative, he also considered defendant’s waiver and attornment as further sources of the court’s jurisdiction to preserve the litigation.
Continue reading “Alberta – even after limitation period expires to initiate arbitration, court applies exceptions to deny stay – #171”N.L. – reciprocal enforcement of court judgment enforcing awards not opportunity for collateral attack of awards – #170
In Shoppers Drug Mart Inc. v. Retirement Home Specialists Inc., 2019 NLSC 44, Mr. Justice Robert P. Stack upheld an ex parte Newfoundland and Labrador court decision registering as its own judgment an earlier Ontario court decision enforcing awards. In dismissing defendants’ contestation as a collateral attack on the awards, Stack J. listed alternative procedural steps which might have provided plausible opportunity to challenge the awards. Stack J. underlined the limited role of the Ontario court enforcing an arbitration award under its Arbitration Act, 1991, SO 1991, c 17, and the Newfoundland and Labrador court providing reciprocal enforcement of another province’s court judgments under the Reciprocal Enforcement of Judgments Act, RSNL 1990, c R-4.
Continue reading “N.L. – reciprocal enforcement of court judgment enforcing awards not opportunity for collateral attack of awards – #170”Saskatchewan – privity of contract prevents enforcing court-approved arbitral consent award against third party – #169
In NewAgco Inc. v. Syngenta Crop Protection, 2019 SKQB 56, Mr. Justice G.A. Meschishnick vacated an earlier ex parte Queen’s Bench decision enforcing a U.S. court decision under Saskatchewan’s The Enforcement of Foreign Judgments Act, SS 2005, c E-9.121. The U.S. decision stemmed from a settlement agreement negotiated between parties to an arbitration and which had resulted in a consent ‘judgment’ of the arbitration tribunal. Having successfully applied to a U.S. court to confirm that arbitration judgment as a U.S. court decision, the U.S. corporation failed to enforce that same U.S. court decision in Saskatchewan against a Saskatoon corporation bearing the same corporate name, unsuccessfully arguing that the Saskatoon corporation was bound by the settlement and U.S. court decision.
Continue reading “Saskatchewan – privity of contract prevents enforcing court-approved arbitral consent award against third party – #169”[:en]Québec – non-respect of delays in arbitration agreement insufficient to annul award – #168[:]
[:en]In Carpenter v. Soudure Plastique Québec inc., 2019 QCCS 321, Madam Justice Silvana Conte refused to annul an award merely because delays in the arbitration agreement had been exceeded or that the arbitrator had reserved jurisdiction on certain issues. She held that the delays had not only been waived but were insufficient to undermine the award and that arbitrators had jurisdiction to reserve issues for later determination. Despite an initial willingness to pay, Defendant successfully argued that certain payment orders were vague, leading Conte J. to homologate the award only in part. Because the monetary value of the disputed orders fell below her jurisdiction, she referred the parties to the Court of Québec to determine whether they had a binding, post-award settlement agreement regarding payment.
Continue reading “[:en]Québec – non-respect of delays in arbitration agreement insufficient to annul award – #168[:]”