[:en]In brief reasons, Mr. Justice Michel A. Pinsonnault in Centre Sheraton v. Canadian League of Gamers Inc., 2018 QCCS 1945 homologated a final award which issued ex parte against non-participating defendants. The case delivers on several of arbitration’s promises, including reduced formalities, shorter timelines, ability similar to courts to proceed ex parte and facility to have a final award homologated as a judgment of a court unless one of a limited number of grounds is proven to the court’s satisfaction. The apparent simplicity of the process listed in Pinsonnault J.’s reasons belies the contribution of several key components which enable those promises to be met: Québec’s Code of Civil Procedure, CQLR c C-25.01 (“C.C.P.”), an experienced arbitrator, an established administering institution and its rules, a court supportive of arbitration as an alternative route to dispute resolution. Continue reading “[:en]Québec – court enforces ex parte award stemming from e-mail notice to non-participating parties – #087[:]”
[:en]Ontario – courts must not pre-empt arbitrator decision on jurisdiction by limiting scope of issues in stay order – #086[:]
[:en]In 10313033 Canada Inc. v. 2418973 Ontario Inc. et al., 2018 ONSC 2406, Madam Justice Sally Gomery declined to limit the scope of the issues referred to the arbitrator. She determined that, absent exceptional circumstances, courts must not pre-empt an arbitrator’s ruling on jurisdiction. Following the stay granted, the parties could make their own submissions directly to the arbitrator regarding the issues which could or could not be within the undertaking to arbitrate or which were no longer in dispute following prior court rulings. Continue reading “[:en]Ontario – courts must not pre-empt arbitrator decision on jurisdiction by limiting scope of issues in stay order – #086[:]”
[:en]Ontario – court accepts both parties’ waiver of arbitration but notes impact on test for injunction – #085[:]
[:en]Both parties can waive their undertaking to arbitrate but doing so has its own knock-on effects. In Armes and 2331513 Ontario Inc. et al v. Barlett, 2018 ONSC 1396, Mr. Justice R. John Harper accepted that neither party had or wished to undertake arbitration but did consider one party’s waiver as having a role, however slight but worthy of mention, in considering whether that party demonstrated irreparable damage. Continue reading “[:en]Ontario – court accepts both parties’ waiver of arbitration but notes impact on test for injunction – #085[:]”
[:en]Québec – courts assert consequences of not undertaking/participating in mandatory legislated arbitration – #084[:]
[:en]Three recent Québec cases – Raymond Chabot Administrateur provisoire inc. (Garantie Abritat inc.) v. A à Z Construction-rénovation inc., 2018 QCCS 2061, Garantie Habitation du Québec inc. v. Groupe Faguy inc., 2018 QCCQ 2763 and Garantie habitation du Québec inc. v. Quirion, 2018 QCCQ 1549 – reflect the courts’ straightforward enforcement of arbitration as the exclusive legislated way in Québec to resolve disputes over guarantee plans for new residential constructions. Parties must either resolve their disputes by arbitration or forever accept that no dispute exists and that certain facts are either uncontested or uncontestable. The decisions remind parties that a failure or refusal to engage in arbitration has consequences on any subsequent flexibility to defend litigation. Continue reading “[:en]Québec – courts assert consequences of not undertaking/participating in mandatory legislated arbitration – #084[:]”
[:en]Alberta – Court of Appeal acknowledges lack of authority to extend time to appeal – #083[:]
[:en]Alberta’s Court of Appeal in Funk v. Funk, 2018 ABCA 210 dismissed an application to extend the time to appeal an arbitration award because the appeal had no reasonable chance of success. The Court held, among other things, that it did not have authority to extend the time period to appeal set out in the Arbitration Act, RSA 2000, c A-43 and that any remedy to challenge the award ought to be heard by arbitration as the parties had agreed. Continue reading “[:en]Alberta – Court of Appeal acknowledges lack of authority to extend time to appeal – #083[:]”
[:en]Alberta – signature of submission agreement qualifies as commencement of arbitration – #082[:]
[:en]In brief reasons, Alberta’s Court of Appeal in Inter Pipeline Ltd v Rural Road Construction Ltd, 2018 ABCA 184 upheld Madam Justice C. Dario’s decision in Inter Pipeline Ltd v Rural Road Construction Ltd, 2017 ABQB 811 to consider parties’ signature of a post-dispute submission agreement as sufficient to serve as notice of commencement of arbitration. The Court was careful, if not emphatic, to note that the “conclusions are based on the unique facts of this case and on those specific facts there is clear evidentiary basis to support the chambers judge’s findings”. Continue reading “[:en]Alberta – signature of submission agreement qualifies as commencement of arbitration – #082[:]”
[:en]Ontario – litigation offers proof of concept that arbitration matters – #081[:]
[:en]In Network Site Services Ltd. v. Town of Oakville, 2018 ONSC 2599, Mr. Justice David A. Broad resolved litigation commenced in early 2012 regarding a road reconstruction project certified to have been substantially performed on September 30, 2011. The parties to the litigation had entered into a detailed set of contracts which identified mediation and arbitration but made neither mandatory. Continue reading “[:en]Ontario – litigation offers proof of concept that arbitration matters – #081[:]”
[:en]Québec – Court of Appeal agrees to confine litigants to one forum to resolve longstanding shareholders dispute – #080[:]
[:en]The Québec Court of Appeal in Jack v. Jack, 2018 QCCA 788 refused leave to appeal a Superior Court decision dismissing an application for a stay in favour of arbitration. The Court determined that not only was the multi-faceted litigation not covered by the agreement to arbitrate but that judicial efficacity and proportionality urged against having the parties litigate in two forums. Continue reading “[:en]Québec – Court of Appeal agrees to confine litigants to one forum to resolve longstanding shareholders dispute – #080[:]”
[:en]Ontario – court declines jurisdiction to determine pending court costs once parties settle through mediation/arbitration – #079[:]
[:en]In Patterson v. Sarafian, 2018 ONSC 274, Mr. Justice David Jarvis had to resolve the court’s jurisdiction to deal with costs of motions reserved, but not decided, when the parties later agreed to mediation/arbitration and settled their disputes. Though the court litigation involved a family law dispute, the result and reasoning can apply to commercial disputes in which court litigants agree to become arbitral parties and subsequently resolve their disputes. The resulting settlements can have the effect, intended or not, of resolving issues left pending from the court litigation. Continue reading “[:en]Ontario – court declines jurisdiction to determine pending court costs once parties settle through mediation/arbitration – #079[:]”
[:en]Ontario – court to consider statutory arbitration as grounds for dismissal of class action – #078[:]
[:en]A pair of interim applications in Ronald Breen Consulting v. CNR, 2018 ONSC 1778 disclose an upcoming opportunity for the Ontario Superior Court to determine whether arbitration imposed by federal statute can justify dismissal of court litigation. In adjudicating applications by Ronald C. Breen Consulting, In Trust (“Plaintiff”) to order Canadian National Railway Company (“CN”) to produce documents and to compel answers on cross-examination, Madam Justice Lynne Leitch noted that CN intended to invoke arbitration provided in Canada Transportation Act. S.C. 1996, c.10 (“CTA”) to obtain dismissal of the litigation filed in court against CN. Continue reading “[:en]Ontario – court to consider statutory arbitration as grounds for dismissal of class action – #078[:]”