[:en]In Canada (Attorney General) v. Clayton, 2018 FC 436, Madam Justice Anne L. Mactavish held that a NAFTA tribunal majority’s consideration of domestic law was either a factual finding or part of the factual matrix on which the majority considered the host state’s breach of customary international law. In considering the domestic legal framework and the host state’s non-compliance with that law as facts on which it could determine whether investors had received unequal treatment without justification, Mactavish J. held that the majority had stayed within the scope of the submission to arbitration and did not exceed its jurisdiction. Continue reading “[:en]Federal – court dismisses jurisdictional challenge to NAFTA tribunal majority’s consideration of domestic law – #067[:]”
[:en]Québec – courts vigilant regarding merchants’ reliance on arbitration clauses in consumer contracts – #066[:]
[:en]A pair of recent cases in Court of Québec demonstrate merchants’ persistence in inserting mandatory arbitration clauses into their contracts with consumers and the court’s corresponding vigilance in guarding against violation of Québec’s public order consumer legislation regarding mandatory arbitration. Despite defendants’ reliance on those arbitration clauses as part of their defenses in court, Mr. Justice Daniel Bourgeois in Poirier v. RSH Travel Ltd.(CheapOair.ca), 2018 QCCQ 2753 and Mr. Justice Jean Hudon in Gauthier v. Détection thermique JD Québec inc., 2018 QCCQ 2198 demonstrated how the courts make brief work of defendants’ reliance on mandatory arbitration clauses in consumer contracts. Continue reading “[:en]Québec – courts vigilant regarding merchants’ reliance on arbitration clauses in consumer contracts – #066[:]”
[:en]Alberta – all parties must consent to consolidation under international commercial arbitration legislation – #065[:]
[:en]In Alberta Motor Association Insurance Company v. Aspen Insurance UK Limited, 2018 ABQB 207, Madam Justice Dawn Pentelechuk reviewed competing case law and considered academic commentary before concluding that, under the International Commercial Arbitration Act, RSA 2000, c I-5,(“ICAA”) court involvement must yield to party autonomy and party control when the court is asked to order consolidation. Unless all parties agree to consolidation, the courts do not have jurisdiction under the ICAA to consolidate despite how circumstances might tempting the court to do so. Continue reading “[:en]Alberta – all parties must consent to consolidation under international commercial arbitration legislation – #065[:]”
[:en]B.C. – arbitral termination order is not a final award and non-parties cannot maintain earlier stay of litigation – #064[:]
[:en]In Tresoro Mining Corporation v. Mercer Gold Corp. (B.C.), 2018 BCCA 160, the B.C. Court of Appeal determined that an arbitration tribunal’s order to terminate arbitration for non-payment of the tribunal’s fees is not a final award and does not determine the merits of the dispute. That order cannot be used by non-parties to the arbitration to preserve an earlier stay of court litigation benefiting them. The Court determined that it would be an injustice to maintain a stay of litigation and allowed the litigation can proceed against the non-parties. Continue reading “[:en]B.C. – arbitral termination order is not a final award and non-parties cannot maintain earlier stay of litigation – #064[:]”
[:en]B.C. – ex parte communications on procedural matters create reasonable apprehension of bias and grant judicial review of award – #063[:]
[:en]The B.C. Court of Appeal in Hunt v. The Owners, Strata Plan LMS 2556, 2018 BCCA 159 held that ex parte communications between one of the parties and the arbitrators on procedural matters would create a reasonable apprehension of bias, leading an informed person to believe that the arbitrators would likely not decide the matter fairly. Ruling that the test for a reasonable apprehension of bias required no proof of actual bias or that the communications changed the award, the Court granted the appeal from the chambers’ judge’s decision in Hunt v. The Owners, Strata Plan LMS 2556, 2017 BCSC 786 which initially dismissed a judicial review application. Continue reading “[:en]B.C. – ex parte communications on procedural matters create reasonable apprehension of bias and grant judicial review of award – #063[:]”
[:en]B.C. – court identifies limits to duty of good faith to meet party’s contractual expectations – #062[:]
[:en]In allowing an appeal on a question of law, Mr. Justice Mark T. MacEwan in Greater Vancouver Sewerage and Drainage District v. Wastech Services Ltd., 2018 BCSC 605, ruled that the doctrine of good faith cannot fill gaps left by parties in their contracts. One party’s exercise of its contractual rights can deny the other party’s contractual expectations but will not breach the duty of good faith if their contract contains no express or implied terms to safeguard those expectations. MacEwan J. held that sophisticated parties do leave gaps in their agreements which either might regret even if the situation is “highly unlikely”. Continue reading “[:en]B.C. – court identifies limits to duty of good faith to meet party’s contractual expectations – #062[:]”
[:en]N.L – municipality has authority to agree to arbitration but not to impose it as a condition of regulatory approval – #061[:]
[:en]In 10718 Nfld. Inc. v. St. John’s (City), 2018 NLSC 82, Madam Justice Frances J. Knickle of the Newfoundland and Labrador Supreme Court determined that the City of St. John’s (the “City”), as a creature of statute, had no authority under its enabling legislation to require that parties agree to mandatory arbitration as a condition for the City’s regulatory approval of the grant of a contract. Continue reading “[:en]N.L – municipality has authority to agree to arbitration but not to impose it as a condition of regulatory approval – #061[:]”
[:en]Ontario – arbitral tribunal’s evidentiary record on jurisdiction challenge is not ignored but also does not confine court – #060[:]
[:en]In The Russian Federation v. Luxtona Limited, 2018 ONSC 2419, Mr. Justice Sean F. Dunphy asserted the court’s autonomy vis-à-vis the arbitral tribunal’s evidentiary record when hearing a challenge to that tribunal’s preliminary award on jurisdiction. In the context of a dispute over the admissibility of evidence which had not been before the arbitral tribunal, Dunphy J. determined that a court was neither limited to the tribunal’s findings of fact nor confined by the record relied on by the tribunal to reach its conclusions. Continue reading “[:en]Ontario – arbitral tribunal’s evidentiary record on jurisdiction challenge is not ignored but also does not confine court – #060[:]”
[:en]B.C. – parties cannot waive application of International Commercial Arbitration Act because its application is mandatory – #059[:]
[:en]The B.C. Supreme Court in McHenry Software Inc. v. ARAS 360 Incorporated, 2018 BCSC 586 held that parties could not waive the application of B.C.’s International Commercial Arbitration Act, RSBC 1996, c 233 (“ICAA”) because its application was mandatory. In addition, despite the parties having conducted their entire arbitration according to the Arbitration Act, RSBC 1996, c 55 (“Arbitration Act”), Madam Justice Loryl D. Russell also determined that the party seeking to rely on the ICAA, and its more limited appeal provisions, could not be estopped from doing so as the ICAA was enacted for a public purpose. Continue reading “[:en]B.C. – parties cannot waive application of International Commercial Arbitration Act because its application is mandatory – #059[:]”
[:en]Alberta – legislative rule “unique” to Alberta applied to refuse leave to appeal extricable question of law in multimillion dollar dispute – #058[:]
[:en]In KBR Industrial Canada Co v. Air Liquide Global E&C Solutions Canada LP, 2018 ABQB 257, Alberta’s Court of Queen’s Bench refused leave to appeal a final award by application of the “unique” section 44(3) of Alberta’s Arbitration Act, RSA 2000, c A-43 which stipulates that a party may not appeal a question of law which the parties expressly referred to the arbitral tribunal for decision. In denying leave to appeal, Madam Justice Ritu Khullar added that, in the alternative, if she were mistaken, then that question did not meet the threshold set by section 44(2.1). The latter limits leave to appeal on a question of law only if the court is satisfied that (a) the importance to the parties of the matters at stake in the arbitration justifies an appeal, and (b) the determination of the question of law at issue will significantly affect the rights of the parties. Continue reading “[:en]Alberta – legislative rule “unique” to Alberta applied to refuse leave to appeal extricable question of law in multimillion dollar dispute – #058[:]”