[:en]Madam Justice Carole J. Brown in Zenith Aluminum Systems Limited v. 2335945 Ontario Inc., 2018 ONSC 4199 kept the bar firmly high, tripping claims that parties could unilaterally revoke their earlier unwritten agreement to arbitrate. Despite both parties, at separate moments, asserting that they were no longer bound by their agreement, Brown J. agreed with Claimant who now wanted to continue its arbitration despite having initiated litigation. She held that the parties’ conduct had affirmed their ongoing agreement to arbitrate and dismissed Respondent’s claims that both parties had revoked their agreement. Claimant’s earlier written notice that it withdrew its notice to arbitrate and Respondent’s later change of heart were each insufficient by themselves to serve as revocation. Applying “ordinary rules of contract law“, an arbitration agreement could only be revoked by an agreement of both parties and not unmatched, unilateral revocations. Continue reading “[:en]Ontario – court refuses to accept unilateral revocations of parties’ unwritten agreement to arbitrate – #097[:]”
[:en]Ontario – court’s resistance to re-using findings from earlier adjudications applies in arbitral proceedings – #096[:]
[:en]In Nasir v. Kochmanski, 2018 ONSC 3052, Mr. Justice Peter A. Daley dismissed Plaintiffs’ application for a trial adjournment which they based on, among other grounds, their intention to obtain and use at trial certain negative commentary on Defendant’s expert witness generated in other, earlier court and tribunal proceedings. Daley J.’s reasoning and the authorities referred to apply to the declared use in commercial arbitration of other materials produced for or by tribunal hearings, including arbitrations created by legislation. Prior to seeking to use those materials, arbitral parties must (a) ensure that no legislated prohibition exists regarding subsequent use in a new venue and (b) anticipate that tribunals will be vigilant to exclude admissible materials which are either unhelpful or lack proof of the fuller context in which they issued. Continue reading “[:en]Ontario – court’s resistance to re-using findings from earlier adjudications applies in arbitral proceedings – #096[:]”
[:en]Ontario – court rebuffs critique of commonplace, frequently enforced, understandable arbitration clause – #095[:]
[:en]In V Hazelton Limited v. Perfect Smile Dental Inc., 2018 ONSC 3958, Mr. Justice Edward M. Morgan dismissed a landlord’s objection to an arbitration clause, stating that the wording was clear enough to those familiar with commercial leases. Morgan J.’s comments can lend themselves to other types of contracts, tipping the balance if need be in favour of enforcing clauses that, while falling short of ideal wording, are commonplace, frequently enforced and likely to be understood without trouble by an experienced arbitrator. Continue reading “[:en]Ontario – court rebuffs critique of commonplace, frequently enforced, understandable arbitration clause – #095[:]”
[:en]Federal – Court of Appeal applies distinction between final offer arbitration and interest arbitration – #094[:]
[:en]In Laurentian Pilotage Authority v. Pilotes du Saint-Laurent Central Inc., 2018 FCA 117, the Federal Court of Appeal restored an arbitrator’s choice between two final awards, noting that the lower court’s judicial review had effectively converted the parties’ final offer arbitration into interest arbitration. In restoring the award, the Court refreshed guidelines on conducting final offer arbitration and distinguished it from interest arbitration. The reasons also identify arguments – compelling in principle but unsuccessful on the particular facts – to disqualify final offers which purportedly contain terms and conditions in conflict with legislation or exceed a party’s capacity to contract. Continue reading “[:en]Federal – Court of Appeal applies distinction between final offer arbitration and interest arbitration – #094[:]”
[:en]B.C. – case reflects versatile advocacy effective in preserving opportunity to arbitrate dispute – #093[:]
[:en]Asian Concepts Franchising Corporation (Re), 2018 BCSC 1022 serves as fresh reminder that effective arbitration practitioners must navigate well-beyond the safe harbours of their own practice area. Practitioners must also venture into court litigation and appreciate the impact of specialized legislation such as the Bankruptcy and Insolvency Act, RSC 1985, c B-3 (“BIA”) and the Arthur Wishart Act (Franchise Disclosure), 2000, SO 2000, c 3 (“Wishart Act”) to ensure that developments outside their arbitration do not compromise resolution of the dispute being arbitrated. The versatility of that advocacy rewards by preserving the claim underlying the arbitration. Continue reading “[:en]B.C. – case reflects versatile advocacy effective in preserving opportunity to arbitrate dispute – #093[:]”
[:en]Québec – court enforces parties’ requirement of post-dispute agreement to arbitrate – #092[:]
[:en]In 9283-7459 Québec inc. v. Anfossi Tassé d’Avirro inc., 2018 QCCS 2548, Madam Justice Suzanne Courchesne held that parties’ reference to arbitration in their contract was neither sufficient nor clear enough to eliminate recourse to the courts. By adding the mention of ‘by agreement of the parties’ in their undertaking to arbitrate, the parties had imposed a post-dispute requirement for fresh agreement to go to arbitration. Given that the responding party resisted arbitration, Courchesne J. held that the terms of the undertaking to arbitrate had not been met and she would not order the parties to do what they had not clearly undertaken to do. Continue reading “[:en]Québec – court enforces parties’ requirement of post-dispute agreement to arbitrate – #092[:]”
[:en]Québec – arbitration and litigation endorsed as independent recourses for different claims related to new residential home disputes – #091[:]
[:en]Québec’s Court of Appeal in 3223701 Canada inc. v. Darkallah, 2018 QCCA 937 distinguished between statutory arbitration and court litigation for disputes stemming from the construction and sale of new residential homes in Québec. The Court agreed with Madam Justice Carole Therrien’s trial decision in Darkallah v. 3223701 Canada inc., 2016 QCCS 3245 which declared that arbitration of issues covered by Québec’s Regulation respecting the guarantee plan for new residential buildings, CQLR c B-1.1, r 8 (“Regulation”) does not oust the courts’ jurisdiction for other issues such as disputes over the contract of sale and the legal guarantee for latent defects. The Court agreed that the arbitration and litigation are independent recourses providing different remedies and can be pursued either in isolation or in tandem, at the option of the home owner. Continue reading “[:en]Québec – arbitration and litigation endorsed as independent recourses for different claims related to new residential home disputes – #091[:]”
[:en]Québec – simplicity of jurisdictional challenge is for arbitrator to decide first – #090[:]
[:en]In an oral decision, Mr. Justice Daniel W. Payette in Cineplex Entertainment v. Compagnie France Film inc., 2018 QCCS 2133 resisted defendant’s claim that the court could decide defendant’s jurisdictional challenge on the basis that doing so required only a superficial review of the facts. Payette J. acknowledged that the parties’ contract contained clearly worded delays regarding arbitration but held that the parties’ post-dispute conduct removed them from the narrow exception, mentioned in Dell Computer Corp. v. Union des consommateurs, [2007] 2 SCR 801, 2007 SCC 34, to the general rule of ‘challenge first before arbitrator’. The parties’ numerous exchanges about extending delays in their contract renewal had blurred their contract’s clear wording. Because those exchanges resisted easy factual analysis, Payette J. referred the parties to their arbitrator to decide the jurisdictional issue on more fulsome facts and sealed the sensitive information prepared for the court’s jurisdictional hearing. Continue reading “[:en]Québec – simplicity of jurisdictional challenge is for arbitrator to decide first – #090[:]”
[:en]Nova Scotia – Court of Appeal sceptical that litigants suffer irreparable harm if obliged to litigate instead of arbitrate – #089[:]
[:en]Nova Scotia’s Court of Appeal in Clyde Bergemann Canada Ltd. v. Lorneville Mechanical Contractors Ltd., 2018 NSCA 14 upheld a chambers judge’s decision granting a plaintiff a stay of its own litigation. The Court held that a stay and an interlocutory injunction are remedies of the same nature and, absent different rules set out in particular legislation, are governed by the same rules. Though section 9(1) Nova Scotia’s Commercial Arbitration Act, SNS 1999, c 5 did not authorize a stay in the circumstances, the Court accepted the chambers judges’ use of section 9(2) as a guideline in determining whether to exercise her discretion under section 41(e) the Judicature Act, RSNS 1989, c 240. In its review of the chambers judge’s reasoning on irreparable damage, the Court also observed that claims of litigation’s alleged disadvantages should be supported by evidence. Continue reading “[:en]Nova Scotia – Court of Appeal sceptical that litigants suffer irreparable harm if obliged to litigate instead of arbitrate – #089[:]”
[:en]Alberta – court dismisses second attempt to challenge award for breach of natural justice – #088[:]
[:en]Madam Justice Kim D. Nixon in Driscoll v. Hautz, 2018 ABQB 426 refused leave to an arbitral party seeking to challenge a final award for alleged bias. Having lost a first application for leave to appeal a final award under under Alberta’s Arbitration Act, RSA 2000, c A-43, the party sought to raise new facts regarding bias to challenge the award. On the second application, the party claimed that those facts were still timely because they fell within an earlier allegation of breach of natural justice. Nixon J. dismissed the second attempt as being out of time, barred by the doctrine of res judicata and not evidence of a reasonable apprehension of bias. Continue reading “[:en]Alberta – court dismisses second attempt to challenge award for breach of natural justice – #088[:]”