[:en]In PriceWaterhouseCoopers Inc. v. Chamberland, 2018 QCCS 4948, Mr. Justice Bernard Tremblay dismissed a successful arbitral party’s attempt to challenge an arbitral award on the basis that the arbitrator’s reasoning was not consistent with the majority line of reasoning in the subject matter. The arbitral party filed into court several prior arbitral awards involving other parties to support its unsuccessful argument that arbitral precedent justified the court’s intervention. Continue reading “[:en]Québec – court dismisses rare challenge by successful arbitral party and challenge based on arbitral precedent – #137[:]”
[:en]B.C. – arbitration agreement not inoperative simply because arbitral party’s litigation intertwines non-parties – #136[:]
[:en]In Ts’kw’aylaxw First Nation v. Graymont Western Canada Inc. (2018) BCSC 2101, Mr. Justice Gordon C. Weatherill held that, under section 15(2) of B.C.’s Arbitration Act, RSBC 1996, c 55, an arbitration agreement is not inoperative simply because a plaintiff advances intertwining claims against multiple defendants including non-parties to the arbitration agreement. Weatherill J. also reiterated that section 15 does not give the court any residual discretion to refuse a stay against one defendant on the basis that another defendant is a non-party to the arbitration agreement. Continue reading “[:en]B.C. – arbitration agreement not inoperative simply because arbitral party’s litigation intertwines non-parties – #136[:]”
[:en]B.C. – no special rules of procedure exist for self-represented arbitral parties – #135[:]
[:en]In Meszaros v. 464235 B.C. Ltd., 2018 BCSC 2033, Madam Justice Linda A. Loo dismissed a self-represented arbitral party’s attempt to set aside a final award based on arbitral error involving alleged failure to observe the rules of natural justice. The alleged arbitral errors were rather the results of decisions taken by the self-represented party to ignore the arbitrator’s directions and the party’s obligations under the Domestic Commercial Arbitration Rules of Procedure applicable to the arbitration administered by the British Columbia International Commercial Arbitration Centre. It is not the arbitrator’s function or duty to tell parties how to prove their cases or, after the close of the case and closing arguments, to inform a party that it had holes or weaknesses in its case. Continue reading “[:en]B.C. – no special rules of procedure exist for self-represented arbitral parties – #135[:]”
[:en]N.L. – court renews ex parte order in service of court’s deference to arbitration – #134[:]
[:en]Mr. Justice Carl R. Thompson in Astaldi Canada Inc. v. Muskrat Falls Corporation, 2018 NLSC 229 demonstrated Newfoundland and Labrador’s Supreme Courts’ support of arbitration by renewing ex parte interim relief so that a Board of Arbitration constituted following a recent court decision could undertake and complete its own determination of its jurisdiction and, if accepted, issue its own interim relief sought in the Notice of Arbitration. Thompson J. subjected the term of his own order to the occurrence of a later procedural step in the arbitration. His decision recognized that the courts can act quickly, repeatedly and in coordination to preserve to arbitral parties the value of the bargain they made to resolve their disputes, including urgent ones, by arbitration. Continue reading “[:en]N.L. – court renews ex parte order in service of court’s deference to arbitration – #134[:]”
[:en]Ontario – Court of Appeal refuses to appoint arbitrator unless parties fail to do so under their procedure – #133[:]
[:en]In upholding The Walt Disney Company v. American International Reinsurance Company, Ltd., 2018 ONSC 1108, the Ontario Court of Appeal in The Walt Disney Company v. American International Reinsurance Company, Ltd., 2018 ONCA 948 underscored that the courts’ jurisdiction under Ontario’s International Commercial Arbitration Act, 2017, SO 2017, c 2, Sch 5 to intervene in the appointment of arbitrators only arises if there is a failure of the parties’ appointment procedure. One party’s refusal to follow the procedure set out in the arbitration agreement does not give that party standing to apply to the court and allege that the parties are unable to proceed. Appointing an institution to administer an arbitration does not constitute that party’s appointment of its arbitrator in an ad hoc arbitration. Continue reading “[:en]Ontario – Court of Appeal refuses to appoint arbitrator unless parties fail to do so under their procedure – #133[:]”
[:en]B.C. – arbitral party required to repurpose prior arbitral discovery for use in court litigation – #132[:]
[:en]In Moneywise Financial Inc., v. Key Life WCF Financial Inc., 2018 BCSC 1789, Mr. Justice Trevor C. Armstrong granted part of Plaintiff’s application for document discovery by ordering that a Defendant examine a prior arbitration document disclosure and provide Plaintiff copies of any documents in its possession to satisfy a category of documents sought by Plaintiff in later court litigation. The initial arbitration dealt with a dispute over unpaid instalments of the sale price and the subsequent court litigation concerned ownership of assets divested by a Defendant. Despite the gap in disputes and the addition of three other parties to the court litigation uninvolved in the arbitration, Armstrong J. ordered that disclosure of the arbitration bundles serve their new purpose in the court litigation. Continue reading “[:en]B.C. – arbitral party required to repurpose prior arbitral discovery for use in court litigation – #132[:]”
[:en]N.L. – court endorses principle of separability of arbitration agreement despite omission in legislation – #131[:]
[:en]In Muskrat Falls Corporation v. Astaldi Canada Inc., 2018 NLSC 210, Mr. Justice James P. Adams reiterated the Newfoundland and Labrador Supreme Court’s endorsement of the principle of separability despite the absence of an express provision in the Arbitration Act, RSNL 1990, c A-14. Adams J. accepted that the parties’ arbitration provisions continued despite claims that their principal contract may be inoperative, unenforceable or terminated. Adams J. held that the party resisting arbitration failed to discharge its onus to satisfy him that he should depart from the general rule that questions of jurisdiction must first be referred to the arbitrator. Continue reading “[:en]N.L. – court endorses principle of separability of arbitration agreement despite omission in legislation – #131[:]”
[:en]N.B. – court cannot order indefinite stay of application to refer parties to arbitration – #130[:]
[:en]In Toronto-Dominion Bank v. Andal Holdings (Moncton) Ltd., 2018 NBCA 68, the New Brunswick Court of Appeal reversed a motions judge’s decision to order an indefinite stay of two motions, including an application to refer the parties to arbitration. Though it agreed with the judge that a key third party ought to be added to the principal court litigation before the court adjudicated motions in that litigation affecting the third party, the Court held that an indefinite stay was unwarranted. The Court also considered that the motions judge could still have proceeded with the application to refer the parties to arbitration. In effect, the court rules of procedure applicable to completing the court litigation were not allowed to delay possible recourse to arbitration. Continue reading “[:en]N.B. – court cannot order indefinite stay of application to refer parties to arbitration – #130[:]”
[:en]Québec – court disallows amendment seeking to add claim subject to arbitration agreement – #129[:]
[:en]In Lashchuk v. Zambito, 2018 QCCS 4553, Mr. Justice Michel A. Pinsonnault affirmed the court’s support for arbitration and disallowed Plaintiff’s application to amend its proceeding to include a dispute covered by a valid arbitration agreement. Analysing the role of wording such as “may”, “shall” and “must” in the parties’ arbitration agreement, Pinsonnault J. accepted that parties’ use of the term “may” can unconditionally grant each other the right to undertake arbitration without rendering their agreement unenforceable or otherwise less obligatory. The use of “may” still allowed Pinsonnault J. to hive off part of a complex dispute and exclude it from the litigation going forward. Continue reading “[:en]Québec – court disallows amendment seeking to add claim subject to arbitration agreement – #129[:]”
[:en]Saskatchewan – court-approved insolvency proposal eliminates tardy arbitral claim – #128[:]
[:en]Invoking the integrity of the Bankruptcy and Insolvency Act, RSC 1985, c B-3 restructuring system and without the need to mention any arbitration legislation, in In Golden Band Resources Inc. (Re), 2018 SKQB 284, Mr. Justice G.A. Meschishnick stayed an arbitration filed by a creditor seeking post-proposal remedies. Meschishnick J. held that a party having both (a) a claim against an asset and (b) knowledge of insolvency proceedings which risks eliminating its claim must alert the debtor, creditors, trustee and the court of that claim, either formally by filing a claim or, at a minimum, giving notice of its position. Drawing parallels to earlier case law under the Companies’ Creditors Arrangement Act, RSC 1985, c C-36, the arbitration qualified as a “proceeding” within the meaning of the BIA and can be stayed. Continue reading “[:en]Saskatchewan – court-approved insolvency proposal eliminates tardy arbitral claim – #128[:]”