[:en]Applying Québec’s Code of Civil Procedure, CQLR c C-25.01, Mr. Justice Gérard Dugré in Leduc v. Ayoub, 2019 QCCS 457 declared that Respondents’ challenges to a final arbitration award were manifestly unfounded and abusive, exposing Respondents to damages. Dugré J. determined that Respondents’ challenges amounted to an indirect appeal of the award and would require the court to exceed the limited role given to it when recognizing and enforcing awards. Continue reading “[:en]Québec – unfounded challenges to final award declared abusive, exposes Respondents to damages – #167[:]”
[:en]Nova Scotia – “battle of the forms” doctrine fails to resolve whose agreement binds parties to arbitrate – #166[:]
[:en]Faced with competing claims regarding whose documents constituted the parties’ agreement, Madam Justice M. Heather Robertson in LED Roadway Lighting Ltd. v. Alltrade Industrial Contractors Inc., 2019 NSSC 62 found no clear intention to incorporate either party’s arbitration clause. Instead, Robertson J. decided to favour Defendant’s suggestion and stayed the litigation pending the outcome of arbitration between the parties. Though she found no agreement to arbitrate, she also determined that there was no objection to arbitration either. Continue reading “[:en]Nova Scotia – “battle of the forms” doctrine fails to resolve whose agreement binds parties to arbitrate – #166[:]”
[:en]N.L. – “shall” is not “must” and can be directory rather than mandatory – #165[:]
[:en]In Labrador-Island Link Limited Partnership v. General Cable Company, 2019 NLSC 6, Madam Justice Gillian D. Butler examined the sufficiency of steps taken in a dispute resolution process to determine whether steps served as mandatory conditions precedent which a party had to complete prior to commencing litigation. In doing so, Butler J. provides remarkable guidance to arbitration practitioners grappling with identical issues in their arbitration clauses. Her efforts to distinguish between “shall” and “must” were informed by Plaintiff’s good faith in attempting to complete the work contemplated in the contracts and by the severe implication of an expired limitation period. Continue reading “[:en]N.L. – “shall” is not “must” and can be directory rather than mandatory – #165[:]”
[:en]Ontario – claimant unable to arbitrate its dispute unless consolidated with non-existent arbitration – #164[:]
[:en]In Federal Electric (1976) Limited v. McDonald Brothers Construction, 2019 ONSC 496, Madam Justice Michelle O’Bonsawin refused to refer A and B to arbitration because their agreement provided that any of their disputes also relating to a dispute between B and C shall be arbitrated “at the same time in the same proceedings and by the same Arbitration Board as is appointed to resolve the dispute between” B and C. The contract between B and C had no agreement to arbitrate. O’Bonsawin J. also lists and applies the principles applicable to determining whether “best efforts” were made by B to advance its claim against C. Continue reading “[:en]Ontario – claimant unable to arbitrate its dispute unless consolidated with non-existent arbitration – #164[:]”
[:en]Ontario – “final and binding” means “final and binding” – #163[:]
[:en]In 108 Media Corporation v. BGOI Films Inc., 2019 ONSC 880, Mr. Justice Mario D. Faieta applied the “ordinary and grammatical meaning” of the expression “final and binding” to refuse leave to appeal, adding that a party’s subjective view of that expression is irrelevant to interpreting it. Faieta J. further held that where the appeal would only give the parties “a new forum in which to continue their private litigation” without a potential application of the ruling to others, the court will not characterize their dispute as a question of law. Continue reading “[:en]Ontario – “final and binding” means “final and binding” – #163[:]”
[:en]Alberta – uncertainty over which claims covered by arbitration does not delay commencement of limitation period – #162[:]
[:en]In Weir-Jones Technical Services Incorporated v. Purolator Courier Ltd, 2019 ABCA 49, Alberta’s Court of Appeal held that an arbitral party’s uncertainty about which claims were covered by arbitration did not delay commencement of the applicable limitation period. A party’s reliance on the potential success of other procedures amounts at most to an error of law is irrelevant to calculating the start of a limitation period. “Discovery relates to the facts, not the applicable law or any assurance of success.” In a lengthy footnote to concurring reasons, Mr. Justice Thomas W. Wakeling also commented on how the cost of litigation drove litigants towards other procedural solutions such as summary judgment and arbitration. Continue reading “[:en]Alberta – uncertainty over which claims covered by arbitration does not delay commencement of limitation period – #162[:]”
[:en]Ontario – overlap of facts insufficient to justify consolidation without consent of all parties – #161[:]
[:en]In Loan Away Inc. v. Western Live Assurance Company, 2019 ONSC 657, Madam Justice Harriet E. Sachs issued a costs order stemming from her earlier decision in Loan Away Inc. v. Western Life Assurance Company, 2018 ONSC 7229 in which she stayed plaintiff’s litigation in favour of arbitration and refused to consolidate that arbitration with an ongoing one between defendant and a third party. Despite respondents’ claims for costs on a substantial indemnity, Sachs J. ordered costs on a less-than partial indemnity basis. She observed that the motions were important and of “more than average complexity” but required modest written materials and evidence and less than a day to argue. Continue reading “[:en]Ontario – overlap of facts insufficient to justify consolidation without consent of all parties – #161[:]”
Québec – successful arbitral party seizes assets in hands of third party pending homologation of award – #160
[:en]In Instrubel N.V. v. Republic of Iraq, 2019 QCCA 78, Québec’s Court of Appeal 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. The Court determined that, independent of the location of the bank in which the funds were deposited, garnishee was domiciled within the jurisdiction of the courts of Québec and could be the subject of a garnishment when it is a debtor of a personal right owed to respondent. In reversing Instrubel, N.V. v. Ministry of Industry of The Republic of Iraq, 2016 QCCS 1184, the reasons provide meaningful, informed guidance for arbitration practitioners striving to preserve assets in anticipation of executing on successful arbitration awards. Continue reading “Québec – successful arbitral party seizes assets in hands of third party pending homologation of award – #160”
[:en]Alberta – concurrent liability in tort and contract possible but insufficient to avoid agreement to arbitrate – #159[:]
[:en]In Edmonton (City) v. Amec Foster Wheeler Americas Limited, 2019 ABQB 24, Master W. Scott Schlosser resisted a plaintiff’s attempt to narrow the arbitration clause to cover only contractual claims and allow its litigation in tort to escape a stay. Acknowledging plaintiff’s resourceful argument, Master Schlosser still held that the overlap between particulars of negligence and contract was too great and permitting plaintiff to choose tort over contract would allow it to escape the consequences of its own arbitration agreement. Continue reading “[:en]Alberta – concurrent liability in tort and contract possible but insufficient to avoid agreement to arbitrate – #159[:]”
[:en]B.C. – grumblings insufficient to constitute notice to trigger arbitration – #158[:]
[:en]In Campbell Construction Ltd. v. Abstract Construction Inc., 2019 BCSC 113, Madam Justice Jennifer M.I. Duncan held that ongoing dissatisfaction without particulars of a claim or the intention to start a claim are insufficient to qualify as notice to the other party. Notice is useless unless it gives enough information to the recipient to know what is in issue, the monetary effect and what the recipient can or has to do. Lack of notice deprives the recipient of the opportunity to consider its position and to negotiate under the contract or otherwise to resolve the problem. Continue reading “[:en]B.C. – grumblings insufficient to constitute notice to trigger arbitration – #158[:]”