[:en]In Fortinet Technologies (Canada) ULC v. Bell Canada, 2018 BCCA 277, the B.C. Court of Appeal cautioned arbitration parties not to “hold back arguments” or change their position afterwards when challenging the resulting award in court. The Court held that “issues” can be decided either explicitly and implicitly by awards and that (a) issue estoppel prevents a party in the post-award period from raising an issue it failed to raise or overlooked during the arbitration and (b) abuse of process prevents a party from taking a position inconsistent with that taken during the arbitration. Continue reading “[:en]B.C. – arbitration parties cautioned to present their full case or risk post-award issue estoppel – #107[:]”
[:en]Alberta – Court of Appeal blocks attempts to create shortcuts on challenges to arbitration awards – #106[:]
[:en]In Anand v. Anand, 2018 ABCA 259, Mr. Justice Brian O’Ferrall identified a series of dead ends for arbitral parties expecting shortcuts to the Court of Appeal from Court of Queen’s Bench decisions issuing from the “Remedies” chapter of Alberta’s Arbitration Act, RSA 2000, c A-43. A series of applications strained to persuade O’Ferrall J.A. to involve the Court of Appeal prematurely in existing court challenges to an arbitration award. O’Ferrall J.A. dismissed all of them, identifying the Court’s lack of jurisdiction, unless and until the Court of Queen’s Bench had completed its own statutorily-granted appeal role under any one of sections 44, 45, 47 and 49. The Court of Appeal had a role as an appellate court and not an alternative court sought by the unsatisfied arbitral party.
Continue reading “[:en]Alberta – Court of Appeal blocks attempts to create shortcuts on challenges to arbitration awards – #106[:]”
[:en]Québec – court challenges basis of familiar objections to stay applications – #105[:]
[:en]In Amusements Extra Inc. v. DEQ Systems Corp., 2018 QCCS 3198, Mr. Justice Michel Beaupré (i) refused to qualify defendant’s reliance on the arbitration agreement as dilatory, (ii) dismissed as ‘incoherent’ the argument that defendant’s alleged breach of the contract containing the arbitration agreement could be grounds to refuse a referral to arbitration and (ii) accepted that arbitration on one issue would proceed in parallel to litigation on several others because that very situation was what the parties had provided for when submitting only part of their business dealings and contractual relations to arbitration. His reasoning on those and other arguments serves to pre-empt others raising similar objections automatically or without sufficient facts. Continue reading “[:en]Québec – court challenges basis of familiar objections to stay applications – #105[:]”
[:en]Québec – broad and liberal interpretation of arbitration agreement limited by agreement’s narrow scope of dispute – #104[:]
[:en]A tenant and condo unit landlord successfully resisted their condo association’s motion to refer them to arbitration on the grounds that the arbitration agreement did not apply to the dispute before the court and that the agreement did not bind the tenant. In Lahaye-Abenhaïm v. Association des copropriétaires du Lowney 1, 2018 QCCS 3215, Madam Justice Johanne Brodeur held that even a broad and liberal interpretation of arbitration clauses still has to meet the parties’ intention to submit to arbitration as stated in their agreement. Continue reading “[:en]Québec – broad and liberal interpretation of arbitration agreement limited by agreement’s narrow scope of dispute – #104[:]”
[:en]Ontario – costs awarded for late, ‘cavalier’, speculative motion for disclosure of arbitration documents – #103[:]
[:en]Master C. Wiebe in ABCO One Corporation v. Pomerleau Inc., 2018 ONSC 4480 issued a costs decision following ABCO One Corporation’s (“ABCO”) decision to withdraw its motion for production for inspection of transcripts of evidence, document briefs and expert reports filed in an arbitration between Pomerleau Inc. (“Pomerleau”), general contractor, and the Toronto Transit Commission (“TTC”) regarding construction of a street car facility (the “Pomerleau-TTC Arbitration”). Not only did Master Wiebe determine that ABCO’s motion fell well short of demonstrating ‘compelling evidence of necessity’, he also determined that that ABCO failed to bring its motion with diligence and care. The brief reasons do not question the ability to bring such motions but only that they be timely and justified, and seek materials necessary to the applicant’s ability to make its case. Continue reading “[:en]Ontario – costs awarded for late, ‘cavalier’, speculative motion for disclosure of arbitration documents – #103[:]”
[:en]Québec – court outlines and upholds confidentiality of what is “said, written or done during” arbitration – #102[:]
[:en]In SNC-Lavalin Inc. v. ArcelorMittal Exploitation minière Canada, 2018 QCCS 3024, Mr. Justice Jean-François Michaud maintained the confidentiality of materials prepared for use in an arbitration limited to two parties and prevented communication of those materials to other parties involved in litigation involving related, overlapping disputes. By maintaining the arbitral parties’ objections based on the confidentiality of arbitration as established by legislation and the arbitral parties’ agreement, Michaud J. held that third parties seeking access to those materials must demonstrate necessity and not merely relevance and convenience of obtaining access. The legislated protection applied only to what is “said, written or done during” arbitration and did not shield access to relevant, admissible documents which existed independent of the arbitration. Continue reading “[:en]Québec – court outlines and upholds confidentiality of what is “said, written or done during” arbitration – #102[:]”
[:en]Alberta – court favours deference to arbitration, holds parties to promise to arbitrate despite inefficiencies created for other litigants – #101[:]
[:en]In Macdonald v. Burke, 2018 ABQB 534, Mr. Justice William A. Tilleman forcefully demonstrated the evolution of the court’s diminished discretion to grant a stay of litigation, tracking changes to Alberta’s Arbitration Act, RSA 2000, c A-43’s section 7(1) from the earlier, permissive “may” to the current, mandatory “shall”. He acknowledged that the change in wording to section 7(1) now restricted his discretion to those five (5) circumstances listed in section 7(2) and that none of the latter applied on the facts. Despite overlapping facts and issues in the various disputes, he remained unpersuaded that he should exercise his separate, remaining discretion under section 7(5) to allow the court litigation to continue in parallel to the arbitration. Continue reading “[:en]Alberta – court favours deference to arbitration, holds parties to promise to arbitrate despite inefficiencies created for other litigants – #101[:]”
[:en]Ontario – court exercises discretion to refuse a stay not sought by defendants – #100[:]
[:en]Enabling Plaintiff to access the court’s own procedural rules to strike pleadings and grant summary judgment, Madam Justice Michelle O’Bonsawin in Hoya Lens Canada Inc. v. 2364141 Ontario Inc., 2018 ONSC 4338 dismissed a motion, not made by Defendants, to stay the litigation in favour of arbitration. Doing so allowed her to confirm her jurisdiction over the parties and proceed to summarily resolve their dispute despite Defendants’ failure or refusal to participate. Her approach sets out a three-step path for other plaintiffs struggling to advance resolution of their dispute despite having earlier agreed to arbitrate. Continue reading “[:en]Ontario – court exercises discretion to refuse a stay not sought by defendants – #100[:]”
[:en]Ontario – award has binding effect despite post-award issues and tribunal’s willingness to consider them – #099[:]
[:en]Ontario’s Court of Appeal in Popack v. Lipszyc, 2018 ONCA 635 explored the meaning of the term “binding” and whether parties’ post-award conduct can delay the moment by which their award becomes binding on them. Absent the parties’ agreement that they can appeal their award on grounds stated by them and available under applicable arbitration legislation, parties resisting the binding nature of the award are constrained to challenge their award within the narrow grounds for refusal of recognition and enforcement set out in the UNCITRAL Model Law on International Commercial Arbitration, adopted by the United Nations Commission on International Trade Law on June 21, 1985, as amended on July 7, 2006, (“Model Law”) and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) (the “New York Convention”). A party’s stated intention to return to the arbitral tribunal to have post-award issues decided and the tribunal’s willingness to consider those issues do not serve together or alone to delay the binding effect of the final award. Continue reading “[:en]Ontario – award has binding effect despite post-award issues and tribunal’s willingness to consider them – #099[:]”
[:en]Alberta – court gives drafting advice for key-person retention and incentive agreements available in arbitration – #098[:]
[:en]Ostensibly an employment law dispute, Palmer v. Acciona Infrastructures, 2018 ABQB 462 shines rare light into back-office arrangements for large claim commercial arbitrations and how to retain and incentivize individuals necessary to manage a party’s case. In analysing claims made by an executive following termination of his employment, Madam Justice Janice R. Ashcroft’s dutifully provides many employment law updates and statements such as what constitutes a valid resignation and how an employer’s notice can and ought to be given. The reasons also deliver essential drafting points for commercial arbitration practitioners negotiating with individuals tapped to lead a party to success. Continue reading “[:en]Alberta – court gives drafting advice for key-person retention and incentive agreements available in arbitration – #098[:]”