[:en]In ATS Automation Tooling Systems Inc v. Chubb Insurance Company of Canada, 2018 ONSC 6139, Master Donald E. Short refused a stay of litigation involving a non-party to overseas arbitration because that arbitration was only “invoked” but not instituted and the issues in both proceedings were not inextricably linked. In doing so, Master Short provided the non-party with its opportunity to present a summary judgment motion in the litigation rather than await the outcome of an arbitration involving other parties, covering different issues and still awaiting formal commencement. Continue reading “[:en]Ontario – stay of litigation requires active arbitration and significant overlap of issues – #147[:]”
[:en]Québec – arbitration not appropriate to conduct business or resolve daily business disagreements – #146[:]
[:en]In Naimer v. Naimer, 2018 QCCS 5210, Mr. Justice Stephen W. Hamilton rejected a post-trial solution by some of the litigants to impose arbitration as a way to avoid future deadlock in the operation of the litigants’ business. Though proposed in answer to his invitation to provide a lasting solution once the safeguard orders expired after the trial decision issued, Hamilton J. readily held that arbitration was not appropriate to resolve conflicts regarding day-to-day business decisions. The lack of any basis for arbitrators to decide on business initiatives, the non-arbitrable nature of business decisions and the anticipated delay in instituting arbitration for each disputed business decision lead Hamilton J. to dismiss the proposal. Continue reading “[:en]Québec – arbitration not appropriate to conduct business or resolve daily business disagreements – #146[:]”
[:en]P.E.I. – arbitral institution denied leave to intervene in jurisdiction-based challenge to arbitral award – #145[:]
[:en]In HZPC Americas v. Skye View Farms, 2018 PESC 47, Mr. Justice Gordon L. Campbell determined that an arbitral institution would not contribute anything useful to an appeal arguing an excess of jurisdiction of the institution’s arbitration rules. The institution’s concern for the precedential value of the appeal did not justify it being added to the appeal as the arguments it could make could be made by either of the existing parties. The institution’s claim to have a global outlook of the potential adverse impact of an “unfavourable” result was insufficient to grant the institution leave to intervene. Continue reading “[:en]P.E.I. – arbitral institution denied leave to intervene in jurisdiction-based challenge to arbitral award – #145[:]”
[:en]Alberta – “oblique” dispute resolution clause overlooks dispute, provides no resolution process – #144[:]
[:en]In Zerr v. Thermal Systems KWC Ltd, 2018 ABQB 1008, Master in Chambers A.R. Robertson found no application for a lease’s “oblique” dispute resolution clause which did not deal with contractual entitlements in the lease and provided no process to resolve the dispute. In considering the clause and disputes stemming from either “complexity” or “inconsistent wording” in the parties’ contracts, Master Robertson provided confirmation that clear drafting can both pre-empt disputes and solve them if and when they do arise. Continue reading “[:en]Alberta – “oblique” dispute resolution clause overlooks dispute, provides no resolution process – #144[:]”
[:en]B.C. – single notice to arbitrate breaching consent/privacy of parties cannot be regularized by court – #143[:]
[:en]B.C.’s Court of Appeal in South Coast British Columbia Transportation Authority v. BMT Fleet Technology Ltd., 2018 BCCA 468 refused to accept that a a single notice to arbitrate against three (3) different parties under four (4) separate contracts was merely a curable irregularity. Instead, the Court declared that the notice was a nullity, having breached the essence of the parties’ respective consents to arbitrate through a pre-determined, private process and could not be salvaged by a subsequent court order declaring it be valid. Continue reading “[:en]B.C. – single notice to arbitrate breaching consent/privacy of parties cannot be regularized by court – #143[:]”
[:en]B.C. – proper sequence for leave to appeal analysis applied to reverse result of appeal – #142[:]
[:en]In Richmont Mines Inc. v. Teck Resources Limited, 2018 BCCA 452, the B.C. Court of Appeal reversed an applications judge’s decision granting leave to appeal an arbitral award on a question of law due to the judge’s failure to follow the analytical framework established by Sattva Capital Corp. v. Creston Moly Corp., [2014] 2 SCR 633, 2014 SCC 53 and Teal Cedar Products Ltd. v. British Columbia, [2017] 1 SCR 688, 2017 SCC 32. The Court determined that the judge had reversed the analysis when he first determined the substantive issue of the correctness of the arbitrator’s decision and then, having agreed with the applicant, held that the applicant had identified an extricable question of law to appeal. By reversing the analysis back to its correct sequence, the Court reversed the result and refused leave to appeal. The Court also concluded its reasons with references to broad observations about the different approaches courts take to appeals of arbitral awards and trial decisions. Continue reading “[:en]B.C. – proper sequence for leave to appeal analysis applied to reverse result of appeal – #142[:]”
[:en]Ontario – non-parties’ cannot resile from consent to earlier court order joining them to arbitration – #141[:]
[:en]In Chemical Vapour Metal Refining Inc., et al v. Terekhov, 2018 ONSC 7037, Mr. Justice Glenn A. Hainey denied a post-award challenge by non-parties to an arbitration agreement to revisit their earlier consent to a court order joining them to arbitration. Hainey J. determined that the non-parties had consented to be joined to an arbitration that would determine a range of claims including oppression, fraudulent conveyance and alter ego liability. Having consented to that order, they could not later, on a leave to appeal application, argue that the award should be set aside due to an excess of jurisdiction. Their consent also enlarged the scope of the issues initially submitted to arbitration by the parties to the contract. Continue reading “[:en]Ontario – non-parties’ cannot resile from consent to earlier court order joining them to arbitration – #141[:]”
[:en]Alberta – third party to statutory contract can initiate arbitration disputing fact triggering its obligations – #140[:]
[:en]In TransAlta Generation Partnership v. Balancing Pool, 2018 ABQB 932, Mr. Justice Paul R. Jeffrey held that a creature of statute with duties under a statutory contract between two other parties had the right to initiate arbitration if neither of the main two parties to the contract chose to do so. The decision extended recognition further than earlier decisions in which the right to initiate arbitration appeared limited to joining an existing arbitration between the main contracting two parties. Continue reading “[:en]Alberta – third party to statutory contract can initiate arbitration disputing fact triggering its obligations – #140[:]”
[:en]Québec – industry association’s arbitration bylaw binds only members, allows litigation against non-members – #139[:]
[:en]In Hypotheca Courtier hypothécaire SSM Inc. v. Re/Max Imagine Inc., 2018 QCCQ 7956, Mr. Justice J. Sébastien Vaillancourt of the Court of Québec summarily dismissed a defendant’s objection to his jurisdiction, holding that the clear wording of an arbitration bylaw adopted by the Québec Federation of Real Estate Boards (the “Federation”) bound only its members. Members were still free to initiate court proceedings against non-members for disputes otherwise covered by the arbitration procedure. The detailed arbitration procedure also stated that any decisions issuing from the arbitration procedure were not to serve as precedents. Continue reading “[:en]Québec – industry association’s arbitration bylaw binds only members, allows litigation against non-members – #139[:]”
[:en]Ontario – courts not bound by arbitration agreement’s stipulated standard of review on appeal – #138[:]
[:en]Unlike the parties’ agreement on the applicable law, the seat and the language, the court is not bound by the parties’ agreement on the standard of review for the appeal of an arbitral award. In Northbridge v. Intact Insurance., 2018 ONSC 7131, Mr. Justice James F. Diamond reiterated the decision in The Dominion of Canada General Insurance Company v. Unifund Assurance Company, 2018 ONCA 303 that an appellate standard of review is a legal issue to be determined by the courts and not by the parties themselves. It appears that, in doing so, Diamond J. extended the Court of Appeal’s reasoning by expressly setting aside a stipulation agreed to by the parties in their arbitration agreement, before the dispute arose and before the court proceedings were initiated. Continue reading “[:en]Ontario – courts not bound by arbitration agreement’s stipulated standard of review on appeal – #138[:]”