In Wang v. Mattamy Corporation, 2021 ONSC 2635, Ontario’s Divisional Court in brief reasons refused to vary or set aside a judge’s decision in Wang v. Mattamy Corporation, 2020 ONSC 7012 to dismiss an appeal from a Master’s order granting a stay of their litigation in favour of arbitration. In determining that Applicants had failed to demonstrate an error of law or palpable and overriding error of fact, the Court agreed that section 7(6) of Ontario’s Arbitration Act, 1991, SO 1991, c 17 is “a complete bar to the appeal” which provides that is no appeal from a decision of the court staying an action on the basis of an arbitration clause. For an opposite result in first instance on an appeal of a Master’s decision based on interpretation/application of Alberta rules of court and legislation, see the Arbitration Matters note “Alberta – court rules permitting appeal of Master’s stay decision consistent with section 7(6) of Arbitration Act – #412” regarding Agrium, Inc v. Colt Engineering Corporation, 2020 ABQB 807.
Continue reading “Ontario – no appeal from Master’s order to stay litigation in favour of arbitration – #468”Manitoba – applicant for leave to appeal cannot revisit procedural decisions creating limited evidentiary record – #467
In the context of an application for leave to appeal on a question of law, Mr. Chief Justice Glenn D. Joyal in Christie Building Holding Company, Limited v. Shelter Canadian Properties Limited, 2021 MBQB 77, rejected Applicant’s attempt to adduce extensive affidavit material to reconstruct the arbitration’s evidentiary record limited by the parties’ procedural decisions not to (i) have a court reporter attend the hearing and prepare a transcript and (ii) mark documents as exhibits. Respondent argued the decisions were consistent with “the characteristics of commercial arbitration and the need for efficiency, cost effectiveness, confidentiality and finality” and afterwards Applicant could not “tender a selective and disputed evidentiary record” and seek a court’s review of alleged errors of law which necessarily require a complete evidentiary record. Joyal C.J. agreed and limited the record to the awards and reasons, five (5) exhibits and the pleadings. Joyal C.J. declined to assess the impact of Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 but commented that he found “persuasive, certain aspects of the reasons and conclusions set forth” in Cove Contracting Ltd. v. Condominium Corporation No. 012 5598 (Ravine Park), 2020 ABQB 106 and Ontario First Nations (2008) Limited Partnership v. Ontario Lottery and Gaming Corporation, 2020 ONSC 1516. Joyal C.J. observed “without deciding the issue, it need be acknowledged that it is anything but obvious that the Supreme Court of Canada intended Vavilov to apply to a statutory appeal of a commercial arbitration award and thereby overrule its own significant judgments in [Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 (CanLII), [2014] 2 SCR 633] and [Teal Cedar Products Ltd. v. British Columbia, 2017 SCC 32 (CanLII), [2017] 1 SCR 688] along with the long-standing legal principles which acknowledge the reasons for limited judicial intervention in commercial arbitration.”
Continue reading “Manitoba – applicant for leave to appeal cannot revisit procedural decisions creating limited evidentiary record – #467”Québec – breach of public order involves outcome of award, not mistake in application of rules of public order – #466
In Perreault v. Groupe Jonathan Benoît, 2021 QCCS 1350, Mr. Justice Peter Kalichman dismissed an application to annul an award based on alleged breaches of public order. Kalichman J. held that [informal translation] ‘[t]o annul an award or to oppose its homologation on the ground that it is contrary to fundamental principles of public order, a party must do more than simply demonstrate that the arbitrator committed a mistake in the application of the rules of public order. It must demonstrate that the result itself is incompatible with public order’. Kalichman J. relied on Desputeaux v. Éditions Chouette (1987) inc., 2003 SCC 17 (CanLII), [2003] 1 SCR 178 to underline that (i) the courts’ consideration of an alleged breach of public order focused on the outcome of the award and (ii) an error in interpreting a mandatory statutory provision would not provide a basis for annulling the award as a violation of public order, unless the outcome of the arbitration was in conflict with the relevant fundamental principles of public order.
Continue reading “Québec – breach of public order involves outcome of award, not mistake in application of rules of public order – #466”B.C. – court enforces parties’ choice to apply International Commercial Arbitration Act to employment disputes – #465
In Johnston v. Octaform Inc., 2021 BCSC 536, Mr. Justice Nigel P. Kent dismissed an application to set aside an interim award which confirmed among other things that (i) disputes between the parties arising from employment agreements were subject to the International Commercial Arbitration Act, RSBC 1996, c 233 and (ii) the arbitrator had jurisdiction to grant equitable remedies. Kent J. held that the manner in which the parties framed their pleadings (i) supported application of the ICAA as a choice expressly made and (ii) was “an explicit recognition” of the arbitrator’s equitable jurisdiction and their agreement to apply Nevada law as the substantive law under section 28 of the ICAA reinforced that jurisdiction. Kent J. also upheld the arbitrator’s decision to dismiss Petitioners’ abuse of process claims, noting that Respondent “arguing diametrically opposed positions on the same point of law raised in two different legal proceedings … does not, however, necessarily amount to an abuse of process where it involves different contracting parties, different governing law, different lawyers/law firms representing the parties, no actual adjudication of the legal point in question, and no advantage obtained by the inconsistent submissions”. Kent J. dismissed Respondent’s objection that Petitioners applied outside the delay set by ICAA’s section 16(6), holding that the application qualified as a “proceeding” under B.C.’s COVID-19 (Limitation Periods in Court Proceedings) Regulation which suspended the limitation period. Kent J. also declined to engage in determining the impact of Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.
Continue reading “B.C. – court enforces parties’ choice to apply International Commercial Arbitration Act to employment disputes – #465”Ontario – court invokes kompetenz-kompetenz to refuse stay of ongoing arbitration pending appeal/set aside – #464
In Kingston Automation Technology Inc. v. Montebello Packaging, 2021 ONSC 2684, Mr. Justice Graeme Mew dismissed an application to stay an award pending other applications to appeal that award and to set it aside. Addressing one of applicant’s grounds which raised a jurisdictional issue involving whether all claims granted were within the scope of the agreement to arbitrate. Mew J. noted that the applicant now objecting to those claims being added was the party which had added them. Mew J. held that applicant had agreed to their inclusion, had not objected within the delays at the onset of the arbitration, only raising the objection “rather late in the game”. Mew J. also refused to order a stay of the arbitration which remained ongoing. Applicant had made no application to stay to the arbitrator and Mew J. concluded he had no basis on which to intervene. Mew J. acknowledged the potential for “wasted time and expense” but such could be compensated in an award for costs and “it is not, in any event, a basis for displacing the kompetenz-kompetenz principle by interfering with the arbitrator’s management of the arbitration”.
Continue reading “Ontario – court invokes kompetenz-kompetenz to refuse stay of ongoing arbitration pending appeal/set aside – #464”Alberta – leave to appeal refused when ICC tribunal follows own procedure to bar late-raised ‘arguably complete’ defence – #463
Though she acknowledged that a particular notice provision in the parties’ subcontract “would arguably provide a complete defence”, Madam Justice Johnna C. Kubik in TR Canada Inc v. Cahill Industrial Limited, 2021 ABQB 274 held that the arbitral tribunal committed no breach of procedural fairness or rule of natural justice when it barred a party from relying on that provision for its defence. Kubik J. held that the ICC Rules of Arbitration “empower the tribunal to establish the process by which the dispute will be presented and heard, including with respect to the timing for filing pleadings, the hearing of evidence and the timing of submissions”. Dismissing leave to appeal the ICC tribunal’s award under section 44 of the Arbitration Act, RSA 2000, c A-43, Kubik J. held that the tribunal had “applied its own procedural rules to the record of proceedings, and exercised its discretion, within the powers conferred on it, to bar the defence raised”. Kubik J. accepted that the tribunal was authorized to concluded that failure to plead the notice provisions was “prejudicial to the other party, depriving it of the opportunity to advance responsive evidence and argument.
Continue reading “Alberta – leave to appeal refused when ICC tribunal follows own procedure to bar late-raised ‘arguably complete’ defence – #463”Ontario – non-party witnesses applying to arbitrator to quash summonses do not attorn to jurisdiction – #462
Despite extensive rights of appeal provided in BP’s and D’s agreement to arbitrate, Mr. Justice William S. Chalmers in Bergmanis v. Diamond, 2021 ONSC 2375 held that their agreement did not apply to non-party witnesses who successfully applied to the arbitrator under sections 29 and 30 of the Arbitration Act, 1991, SO 1991, c 17 to quash summonses issued by the arbitrator. Unsatisfied with the arbitrator’s decision to quash summonses, claimant appealed but without seeking leave. Chalmers J. held that the successful non-parties did not attorn by applying to the arbitrator to quash the summonses and therefor the general provisions for appeal under the legislation applied. Relying Ontario First Nations (2008) Limited Partnership v. Ontario Lottery And Gaming Corporation, 2020 ONSC 1516, Chalmers J. held that Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 did not modify the standard of review. Chalmers. J. further held that a legal principle as important a solicitor-client privilege is not a question of legal importance to the legal system as a whole if neither of the parties disputes the legal principle.
Continue reading “Ontario – non-party witnesses applying to arbitrator to quash summonses do not attorn to jurisdiction – #462”B.C. – patently unreasonable to prefer one expert over another when both agree – #461
In Han v. Baune, 2021 BCCA 139, the Court of Appeal held that an arbitrator’s decision to prefer one expert’s report over another’s was patently unreasonable as both confirmed the same facts determinative of a fact in dispute. Determining that the parties’ expert reports did not conflict in any material respect and that reliance on only one was patently unreasonable, the Court set aside the award and remitted the matter for rehearing before another arbitrator. Though the decision involved a statutory scheme for arbitration and judicial law principles, the Court’s determination of how arbitrator must handle overlapping expert reports still serves as guidance in private commercial arbitration which invariably involve experts’ reports.
Continue reading “B.C. – patently unreasonable to prefer one expert over another when both agree – #461”Alberta – “surrounding circumstances” for contract interpretation exclude subjective intentions – #460
In 719491 Alberta Inc. v. The Canada Life Assurance Company, 2021 ABQB 226, Mr. Justice W. Patrick Sullivan dismissed attempts to identify an error of law based on the arbitrator’s handling of surrounding circumstances known at the time of contract formation. Sullivan J. agreed that contract interpretation required reading the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with those surrounding circumstances but disagreed that “surrounding circumstances” included the parties’ subjective intentions. The latter cannot serve to add to, detract from, vary or otherwise overwhelm the agreement’s written words. In obiter, Sullivan J. also endorsed the concurring three (3)’s approach in Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District, 2021 SCC 7 to apply Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 to appeals of commercial arbitration awards.
Continue reading “Alberta – “surrounding circumstances” for contract interpretation exclude subjective intentions – #460”B.C. – non-parties to agreement to arbitrate granted stay of counterclaim along with plaintiff – #459
Pursuant to section 7(2) of the Arbitration Act, SBC 2020, c 2 and section 10 of Law and Equity Act, RSBC 1996, c 253, Madam Justice Carla L. Forth in Kwon v. Vanwest College Ltd., 2021 BCSC 545 stated a Defendant’s counterclaim against Plaintiff and non-parties to the agreement to arbitrate,. Forth J. relied on (i) precedent adopting a generous interpretation of “arising out of” in the agreement to arbitrate, (ii) the intertwined, overlap of factual matrices and (iii) avoidance of multiple proceedings and inconsistent decisions to grant a stay in regard to Plaintiff and to include the arbitral non-parties as defendants to that counterclaim. Defendant requested Forth J. also stay Plaintiff’s claim against it on the basis that Defendant sought an equitable set-off. Forth J. refused, considering that the parties’ claims did not arise out of the same matter and that, even if Defendant’s counterclaim arose out of the same contract giving rise to Plaintiff’s claim, the counterclaim did not go to the “root” of Plaintiff’s claim.
Continue reading “B.C. – non-parties to agreement to arbitrate granted stay of counterclaim along with plaintiff – #459”