[:en]Ontario’s Court of Appeal in PQ Licensing S.A. v. LPQ Central Canada Inc., 2018 ONCA 331 upheld an arbitrator’s decision on a preliminary issue involving the application of a limitation period. The Court of Appeal agreed with the Superior Court which had held that it was reasonable for the arbitrator to sever the mention of “in Delaware” in a mediation clause because that stipulation violated remedial legislation applicable to franchising. The balance of the mediation clause remained valid. Completing the mediation was a condition precedent to triggering the date at which one of the parties could “discover” its claim and delayed triggering the two-year limitation period in Ontario’s Limitations Act, 2002, SO 2002, c 24, Sch B. (“Limitations Act”). Continue reading “[:en]Ontario – Court of Appeal upholds arbitrator’s decision to “blue pencil” mediation clause having impact on limitation period – #057[:]”
[:en]Ontario – court assists arbitration by holding party to its agreement to appoint arbitrator – #056[:]
[:en]The Ontario Superior Court in Overberg v. Aerospace, 2018 ONSC 1720 exercised its jurisdiction under section 6 Arbitration Act, 1991, SO 1991, c 17 to intervene in a private commercial arbitration and enforce respondent’s agreement to accept and confirm the arbitrator nominated by claimants. In doing so, the court assisted the conduct of the arbitration and ensured that the arbitration was conducted according to the parties’ agreement. Continue reading “[:en]Ontario – court assists arbitration by holding party to its agreement to appoint arbitrator – #056[:]”
[:en]Québec – court considers challenge on arbitrator’s procedural irregularities and jurisdiction to issue safeguard orders – #055[:]
[:en]In deciding competing applications to homologate and to annul two arbitral awards and an interim safeguard oder, the Québec Superior Court in Hachette Distribution Services (Canada) Inc. v. 2295822 Canada Inc., 2018 QCCS 1213 set out the standard of review applicable to alleged procedural defects committed during an arbitration and the extent to which an arbitral tribunal can issue orders having an injunctive effect. Continue reading “[:en]Québec – court considers challenge on arbitrator’s procedural irregularities and jurisdiction to issue safeguard orders – #055[:]”
[:en]Saskatchewan – Court of Appeal rules appeal right on court’s jurisdiction not displaced by Arbitration Act – #054[:]
[:en]The Saskatchewan Court of Appeal distinguished appeals under Saskatchewan’s The Arbitration Act, 1992, SS 1992, c A-24.1 (“AA”) from appeals under Saskatchewan’s The Court of Appeal Rules, Sask Gaz April 18, 1997 (“Appeal Rules”). In Saskatchewan v. Capitol Steel Corporation, 2018 SKCA 3, the Court held that a chambers judge’s decision that he had no jurisdiction under the AA was a decision subject to appeal under the Appeal Rules. Continue reading “[:en]Saskatchewan – Court of Appeal rules appeal right on court’s jurisdiction not displaced by Arbitration Act – #054[:]”
[:en]Alberta – Court of Appeal reiterates policy underlying lack of appeals in arbitration matters absent agreement – #053[:]
[:en]An application for leave gave the Court of Appeal in Rusnak v. Canyon Spring Master Builder Inc, 2018 ABCA 2 an opportunity to reiterate the policy behind the lack of an appeal. Applicants sought to appeal a special chambers judge’s refusal to grant them leave to appeal a final award. In refusing leave, the Court of Appeal stated that the lack of an appeal was based on a policy decision which favoured streamlining the dispute resolution process. Continue reading “[:en]Alberta – Court of Appeal reiterates policy underlying lack of appeals in arbitration matters absent agreement – #053[:]”
[:en]Ontario – Court of Appeal reiterates that appeals of interlocutory orders in arbitration challenges are beyond its jurisdiction – #052[:]
[:en]In brief reasons, the Ontario Court of Appeal in DAC Group (Holdings) Limited v. Fuego Digital Media Inc., 2018 ONCA 43 rebuffed a dissatisfied arbitral party’s attempt to foist jurisdiction on it over a Superior Court decision. That decision had stayed enforcement of the arbitral award, on conditions, pending a hearing on the merits in Superior Court a few months away. Madam Justice Mary Lou Benotto qualified such orders as interlocutory, observing that only the Divisional Court had jurisdiction to continue any appellate activity in regard to such Superior Court orders made pending final disposition of the challenge. Continue reading “[:en]Ontario – Court of Appeal reiterates that appeals of interlocutory orders in arbitration challenges are beyond its jurisdiction – #052[:]”
[:en]Alberta – court denies injunction where ongoing performance not stipulated during arbitration – #051[:]
[:en]Alberta’s Court of Queen’s Bench in Graham Infrastructure LP v. Whitefish Lake First Nation #459, 2018 ABQB 66 gave insights for drafting commercial contracts containing arbitration clauses. Contracts which expressly provide for continued performance of the obligations might justify or at least facilitate consideration of mandatory injunctions while the parties undertake arbitration. Such clauses would clarify the parties’ expectations of whether a court might grant of provisional measures in advance of or during their arbitration. Continue reading “[:en]Alberta – court denies injunction where ongoing performance not stipulated during arbitration – #051[:]”
[:en]Nova Scotia – court’s use of test for new evidence in judicial review also useful in arbitration – #050[:]
[:en]In Sorflaten v. Nova Scotia (Environment), 2018 NSSC 7, the Nova Scotia Supreme Court dismissed an attempt to add facts to the record to decide a judicial review application. The court’s reasoning in part lends itself to commercial arbitration challenges when a full record of the arbitral proceeding was either not made or not preserved. Continue reading “[:en]Nova Scotia – court’s use of test for new evidence in judicial review also useful in arbitration – #050[:]”
[:en]Ontario – court directs attorney to appear and participate in adjudicative proceeding – #049[:]
[:en]The Ontario Superior Court in Fontaine v. Canada (Attorney General), 2018 ONSC 357 relied in part on professional conduct rules to order an attorney to appear and participate in an adjudicative proceeding. The reasoning might serve as guidance for similar orders to ensure that parties complete their undertaking to arbitrate. Continue reading “[:en]Ontario – court directs attorney to appear and participate in adjudicative proceeding – #049[:]”
[:en]Saskatchewan – court delivers no-fuss recognition of default foreign arbitral award – #048[:]
[:en]Saskatchewan’s Court of Queen’s Bench in Parrish & Heimbecker Ltd. v Bukurak, 2017 SKQB 322 provided a proof-of-concept application of Saskatchewan’s embrace of international commercial arbitration in its straightforward review and grant of an application to recognize and enforce a foreign arbitral award. Continue reading “[:en]Saskatchewan – court delivers no-fuss recognition of default foreign arbitral award – #048[:]”