In Maisonneuve v. Clark, 2021 ONSC 1960, Madam Justice Sally Gomery held she had jurisdiction to determine whether an application for referral to arbitration was time-barred because (i) the record provided sufficient insight with respect to limitation issues despite having to draw some inferences and (ii) Ontario’s Rules of Civil Procedure, RRO 1990, Reg 194 urged that they be “liberally construed to secure the just, most expeditious and least expensive determination” of the limitation issue. Gomery J. commented that those reasons justified her deciding the issue, thereby relieving parties of having to reargue it before arbitrator. Gomery J. also observed that “the exercise of interpreting a contract is different than the exercise of interpreting a statutory provision”. The latter is a question law, requiring courts to “discern the mischief that the legislator intended to address in enacting legislation, and to interpret the statutory language to further the legislator’s purpose, sometimes to address problems that were not even contemplated when the law was passed”. The former is a mixed question of fact and law. “A contract is not made to address a societal issue or need. It is made to order the relationship between the parties or to resolve a specific problem they have at a particular time”.
Continue reading “Ontario – ability to decide limitation issue before referral to arbitrator relieves parties from rearguing issue – #478”Manitoba – no meeting of minds to arbitrate due to unsuccessful attempts to access online contractual schedules – #477
In Razar Contracting Services Ltd v. Evoqua Water, 2021 MBQB 69, Mr. Justice David Kroft dismissed an application to stay in favour of arbitration, holding that (i) a bidder’s inability to access an online link to other documents containing an agreement to arbitrate and (ii) absent evidence that such agreement had been brought to the bidder’s attention demonstrated “no meeting of the minds in respective of the agreement to arbitrate”. Kroft J. held he had jurisdiction to determine whether the facts established an agreement to arbitrate within the meaning of article 7(2) of the UNCITRAL Model Law on International Commercial Arbitration (1985). He concluded that “the evidence, viewed objectively, does not establish, on a balance of probabilities, the three elements required for a binding contract: intention to contract; settlement of essential terms; and, sufficiently certain terms”.
Continue reading “Manitoba – no meeting of minds to arbitrate due to unsuccessful attempts to access online contractual schedules – #477”Québec – attempt dismissed to limit arbitral jurisdiction by presumption statutory recourse excluded unless expressly included – #476
In Valiquette v. PL Nouvelle France Inc., 2021 QCCS 1096, Madam Justice Florence Lucas followed the lead recently set out in Groupe Dimension Multi Vétérinaire Inc. v. Vaillancourt, 2020 QCCS 1134 which dismissed attempts to limit an arbitral tribunal’s jurisdiction by way of presumption that statutory recourses were excluded unless expressly included. Lucas J. held that an arbitrator’s jurisdiction extends to all disputes relating directly or indirectly to the contract in which the agreement to arbitrate is contained, unless from its wording or the context a real intention by the parties to limit its scope. Lucas J. held that nothing in the agreement to arbitrate – which defined ‘Dispute’ in ‘excessively broad terms’ – or in the context of the matter permitted inferring the parties’ intention to limit the scope of their agreement to arbitrate or to exclude the oppression remedy from an arbitrator. Relying on the record before her, Lucas J. also definitively determined the issue of jurisdiction and referred the parties to arbitration.
Continue reading “Québec – attempt dismissed to limit arbitral jurisdiction by presumption statutory recourse excluded unless expressly included – #476”Federal – arbitral party’s post-recognition intentions not a ground to refuse recognition – #475
In Treaty Land Entitlement Committee Inc. v. Canada (Indigenous and Northern Affairs), 2021 FC 329, Mr. Justice Sébastien Grammond dismissed Canada’s submissions that he refuse registration of an award because (i) applicant had not explained how it intended to enforce the award and (ii) enforcement measures would not be available against the Crown. Grammond J. rejected them as “contrary to the philosophy underpinning” the Commercial Arbitration Act, RSC 1985, c 17 (2nd suppl) (“Code”), stating that recognition of an arbitral award may be obtained “as of right”. Grammond J. noted that “the reasons for which a court may refuse to homologate or annul an arbitration award are exhaustively set out” in article 36 of the Code and non-disclosure of applicant’s intentions with respect to enforcement is not one of those grounds. As for post-recognition enforcement issues, Grammond J. commented that “I need not speculate about the immunities Canada could raise if the applicants attempted to enforce the award”.
Continue reading “Federal – arbitral party’s post-recognition intentions not a ground to refuse recognition – #475”Ontario – arbitrator has jurisdiction to hear summary judgment despite party’s objection provided process complies with Hryniak – #474
In Optiva Inc. v, Tbaytel, 2021 ONSC 2929, Mr. Justice W. Daniel Newton dismissed a post-award challenge to an arbitrator’s initial decision to proceed by way of summary judgment absent defendant’s consent. Newton J. determined that section 26 of Ontario’s Arbitration Act, 1991, SO 1991, c 17 describes hearings for “presentation of evidence” and “oral argument” but expresses no requirement for oral evidence. As the parties proceeded by affidavit, after cross-examination, and with oral argument, Newton J. held that arbitrator’s process had met requirement to “hold a hearing” as requested by defendant. Newton J also held that summary judgment should be available in arbitration for the same reasons as those given in Hryniak v. Mauldin, 2014 SCC 7 (CanLII), [2014] 1 SCR 87 provided the process “(1) allows the arbitrator to make the necessary findings of fact; (2) allows the arbitrator to apply the law to the facts; and (3) is a proportionate, more expeditious and less expensive means to achieve a just result”.
Continue reading “Ontario – arbitrator has jurisdiction to hear summary judgment despite party’s objection provided process complies with Hryniak – #474”Québec – fair administration of justice of complex construction dispute requires some litigants to arbitrate -#473
In four (4) court files involving five (5) litigants, Mr. Justice Bernard Synnott in Transport Richard Meloche Inc. v. Constructions Innovo Inc., 2021 QCCS 605 dismissed court litigation between two (2) of the litigants G and C and referred them to arbitration. Three (3) court files had already been joined for proof and hearing by an earlier court decision and G had successfully applied to intervene in and file an action in warranty in one (1) file and filed a cross-claim in another. Synnott J. resisted G’s arguments that enforcing its agreement to arbitrate would not favour the fair administration of justice. [informal translation] ‘If arbitration clauses had to be put aside each time several disputes arose from the performance of a construction contract, mandatary arbitration clauses would rapidly become obsolete and superfluous’. Synnott J. dismissed argument raising the potential for contradictory decisions and held G to its bargain. [informal translation] ‘In any event, the Court is of the opinion that it would be contrary to the interests of justice and its fair administration to deprive the parties of a process for dispute resolution, namely by way of arbitration, which they themselves chose and to which they freely agreed to submit by way of contract’.
Continue reading “Québec – fair administration of justice of complex construction dispute requires some litigants to arbitrate -#473”Alberta – binding valuation of shares not arbitrable, limits claims in litigation over overlapping issues – #472
To resolve the scope of an earlier share valuation and subsequent arbitration unsuccessfully challenging that valuation and their impact on current litigation, Madam Justice Susan E. Richardson in Lischuk v. K-Jay Electric Ltd, 2021 ABQB 280 explored five (5) key legal principles: estoppel by convention, res judicata, issue estoppel, cause of action estoppel and abuse of process by litigation. The parties disputed (i) termination of L’s employment contract with employer K and (ii) valuation of shares held by L’s holding company 997 under a shareholder’s agreement between 997 and employer K. L argued that a reasonable notice period after thirty-five (35) years of employment would extend the date at which his shares would be valued but 997’s contract submitted valuation of the shares as of the date of the termination. Richardson J.’s comments underline (a) the importance of drafting parallel contracts which speak to each other in the event of dispute, (b) the consequences of privity of contract and (c) the binding effect of decisions which the parties agreed would have binding effect.
Continue reading “Alberta – binding valuation of shares not arbitrable, limits claims in litigation over overlapping issues – #472”Ontario – complex contractual matrix and lack of privity prompts court to propose arbitration – #471
In CUSO International v. Pan American Development Foundation, 2021 ONSC 3101, Mr. Justice Calum MacLeod relied on forum non conveniens principles to resolve an application to stay Ontario litigation pending the outcome of litigation in Colombia. Despite a complex matrix of documents and contracts to which the litigants were not all parties, MacLeod J. urged the litigants to consider a submission agreement to arbitrate. Though that complexity and lack of privity often serve as lines of first resistance for a litigant objecting to arbitration, MacLeod J. relied on both as his prompts.
Continue reading “Ontario – complex contractual matrix and lack of privity prompts court to propose arbitration – #471”B.C. – court assists arbitration with subpoenas, subject to respect of implied undertaking of confidentiality – #470
In Octaform Inc. v Leung, 2021 BCSC 761, Mr. Justice Gordon C. Weatherill granted petitions under section 27 of the International Commercial Arbitration Act, RSBC 1996, c 233 and issued subpoenas to compel non-party witnesses to attend an ongoing arbitration. Observing that an “arbitration tribunal has the authority to control its own process, including the power to adopt its own rules and procedures for taking evidence that meet the needs of the particular case”, he added that “[i]t is not the role of this court to second guess the suitability of the processes adopted by the tribunal”. Weatherill J. had adjourned an initial hearing on the petitions to issue subpoenas to non-parties, judging the petitions to be premature. Provided with additional information since then, Weatherill J. confirmed the arbitrator’s determinations for approving the non-party witnesses’ attendance satisfied the court and warranted assistance. Weatherill J. issued additional terms to the witnesses’ attendance requiring the petitioner’s undertaking (i) not to use the evidence obtained anywhere else but with the court’s consent and (ii) to reimburse “respective reasonable legal expenses incurred in respect of their preparation for and attendance as a witness at the Arbitration”. The undertaking to restrict use mirrored in some respects the terms developed for the implied undertaking of confidentiality set out in Lac d’Amiante du Québec Ltée v. 2858-0702 Québec Inc., 2001 SCC 51 (CanLII), [2001] 2 SCR 743.
Continue reading “B.C. – court assists arbitration with subpoenas, subject to respect of implied undertaking of confidentiality – #470”Ontario – court all but drafts pandemic obituary for forum non conveniens as factor in fairness of arbitration venue – #469
Mr. Justice Edward M. Morgan in Kore Meals LLC v. Freshii Development LLC, 2021 ONSC 2896 included a forum non conveniens-type analysis to grant a stay, including whether the forum and venue identified in the agreement to arbitrate were unfair or impractical for a party. Morgan J. favoured competence-competence and referred the parties to arbitration administered by the American Arbitration Association, confirming that neither knew where the AAA was located and both informed him that arbitration was likely conducted online because they “presume so since the pandemic has moved most proceedings of this nature to a digital forum”. “If hearings are held by videoconference, documents filed in digital form, and witnesses examined from remote locations, what is left of any challenge based on the unfairness or impracticality of any given forum? To ask the question is to answer it”. Morgan J. observed that “[i]t is by now an obvious point, but it bears repeating that a digital-based adjudicative system with a videoconference hearing is as distant and as nearby as the World Wide Web. With this in mind, the considerable legal learning that has gone into contests of competing forums over the years is now all but obsolete. Judges cannot say forum non conveniens we hardly knew you, but they can now say farewell to what was until recently a familiar doctrinal presence in the courthouse”. Morgan J. added “what is true for forum non conveniens is equally true for the access to justice approach to the arbitration question. Chicago and Toronto are all on the same cyber street. They are accessed in the identical way with a voice command or the click of a finger. No one venue is more or less unfair or impractical than another”. Morgan J. also included a party’s co-defendant parent in the referral despite being non-party to the agreement to arbitrate.
Continue reading “Ontario – court all but drafts pandemic obituary for forum non conveniens as factor in fairness of arbitration venue – #469”