In Toronto District School Board v. Roofmart Ontario Inc., 2021 ONSC 1688, Mr. Justice Frederick L. Myers dismissed R’s application under Rule 13.1.02 of Ontario’s Rules of Civil Procedure, RRO 1990, Reg 194 to change venue from Brampton to Toronto for the adjudication of SB’s application to appoint an arbitrator under section 10 of the Arbitration Act, 1991, SO 1991, c 17. Though he acknowledged that the parties’ underlying dispute was “wholly Toronto-based”, Myers J. observed that “the question of who arbitrates has no natural connection to any venue”. Noting that a Brampton-assigned judge had already seized himself of SB’s application to appoint an arbitrator and scheduled an upcoming hearing to decide that application, Myers J. disagreed with R’s attempt to task another judge to hear SB’s application. “Any judge of this court is equally capable of hearing this matter quickly and making a decision on the identity of the arbitrator”.
Continue reading “Ontario – venue change application for arbitrator appointment application an inappropriate, misuse of court resources – read #448”B.C. – stay of execution’s “low threshold” for merits met by appeal offering opportunity to consider Mexico v. Cargill – #447
In lululemon athletica canada inc. v. Industrial Color Productions Inc., 2021 BCCA 108, Madam Justice Susan Griffin stayed execution of part of an arbitration award pending appeal of lululemon athletica canada inc. v. Industrial Color Productions Inc., 2021 BCSC 15 but without preventing Respondent’s application for recognition of the same award. Required to consider the merits of the appeal when considering a stay of execution, Griffin J.A. focused on proposed grounds relating to the decision made to apply a standard of reasonableness rather than a standard of correctness for errors of law, as established in Mexico v. Cargill, Incorporated, 2011 ONCA 622. Griffin J.A. noted the release of Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District, 2021 SCC 7 after the decision in first instance, the B.C. Court of Appeal’s own choice in Greater Vancouver Sewerage and Drainage District v. Wastech Services Ltd., 2019 BCCA 66 to apply standard of correctness and the lack of a B.C. Court of Appeal decision which re-considered the standard set following the various, recent Supreme Court decisions. She determined that Appellant met the “low threshold” but she did not address success on appeal. Following her decision, Mr. Justice Gordon S. Funt in lululemon athletica canada inc. v. Industrial Color Productions Inc., 2021 BCSC 422, acknowledged the appeal of his earlier decision and, having noted Griffin J.A.’s stay of execution, granted recognition of the award.
Continue reading “B.C. – stay of execution’s “low threshold” for merits met by appeal offering opportunity to consider Mexico v. Cargill – #447”B.C. – application for stay pursuant to ICAA should be heard before class action certification hearing – #446
In Wittman v. Blackbaud, Inc., 2021 BCSC 415, Madam Justice Jasmin Ahmad acknowledged that the combined reading of section 8(1) of the International Commercial Arbitration Act, RSBC 1996, c 233 and Rule 9-6(2) of the Supreme Court Civil Rules, BC Reg 168/2009 presented a “dilemma” to Defendants wishing to apply for both a stay in favour of arbitration and summary judgment. Defendants must apply for a stay before submitting their first statement on the substance of the dispute but must serve such statement prior to applying for summary judgment. Ahmad J. pointed out that section 8(1) did not expressly prevent Defendants from filing their statement after applying for a stay but anticipated that “a cautious defendant would not file a response”. Though Defendants suggested Ahmad J. could grant them leave to file a response while relying on section 8(1), Ahmad J. observed that Defendants had taken no such steps to obtain such leave. Ahmad J. also addressed how the International Commercial Arbitration Act’s limited the court’s discretion on sequencing decisions under the Class Proceedings Act, RSBC 1996, c 50, observing that “in most cases, an application for stay pursuant to the ICAA should be heard in advance of the certification hearing”.
Continue reading “B.C. – application for stay pursuant to ICAA should be heard before class action certification hearing – #446”B.C. – court declines to “look behind” award on challenge to Mareva injunction filed with recognition/enforcement proceedings – #445
In Enrroxs Energy and Mining Group v. Saddad, 2021 BCSC 291, Mr. Justice Alan M. Ross declined to “look behind” an international commercial arbitration award when determining whether an applicant for a Mareva injunction demonstrated a strong prima facie case. Ross J. also refused to explore contradictory statements allegedly made by the successful arbitral party in the Swiss arbitration and in related UAE litigation involving ownership of equipment acquired with proceeds of a loan. Ross J. noted that “this issue was raised in the Swiss arbitration case and discussed in the decision. I find that accepting the respondent’s argument on this point would again require me to look behind the arbitration award. Whether [Petitioner’s witness] took inconsistent positions does not affect this proceeding, which seeks enforcement and recognition of the Swiss decision”. Petitioner also argued that the Mareva injunction sought to prevent disposal/dissipation of assets and not to execute on the award, pending the determination of its recognition and enforcement application.
Continue reading “B.C. – court declines to “look behind” award on challenge to Mareva injunction filed with recognition/enforcement proceedings – #445”Ontario – Arbitration Act does not preclude court staying execution of final award under Courts of Justice Act – #444
In Zenith Aluminum Systems Ltd. v. 2335945 Ontario Inc., 2021 ONSC 1128, Mr. Justice Benjamin T. Glustein dismissed attempts to limit the court’s jurisdiction to stay execution of final arbitral awards to only those circumstances set out in section 50(5) Arbitration Act, 1991, SO 1991, c 17. Glustein J. held that section 50(5) does not preclude a stay of execution under section 106 of the Courts of Justice Act, R.S.O. 1990, c. C. 43. Glustein J. refused, however, to accept that Rule 20.08 of the Rules of Civil Procedure, RRO 1990, Reg. 194 authorized courts to stay execution of final awards. Glustein J. observed that Rule 20.08 limited its application to summary judgments and, on the record before him, the final awards “are treated as final judgments”, issued by an arbitrator who the parties “asked to conduct the trial” of their dispute.
Continue reading “Ontario – Arbitration Act does not preclude court staying execution of final award under Courts of Justice Act – #444”Manitoba – “balance of probabilities” is standard of proof in civil matters, “clear, convincing and cogent” is quality of evidence – #443
In Bannerman Lumber Ltd et al v Goodman, 2021 MBCA 13, Madam Justice Holly C. Beard explored statements by the Supreme Court which asserted “balance of probabilities” as the only standard of proof in civil matters and limited the recurring phrase “clear, convincing and cogent” to merely a statement of the quality of evidence. Beard J.A. also addressed the nature of inferences and the appellate courts’ limited intervention to the extent that the inferences are questions of fact and mixed fact and law. Beard J.A. determined that the applications judge made no palpable or overriding error by drawing inferences on findings made in an arbitration award and using those inferences to determine the viability of other claims.
Continue reading “Manitoba – “balance of probabilities” is standard of proof in civil matters, “clear, convincing and cogent” is quality of evidence – #443”B.C. – authority to award actual reasonable legal costs a “desirable feature” not a “chilling effect” – #442
Relying on provisions of the Arbitration Act, RSBC 1996, c 55 and the British Columbia International Commercial Arbitration Centre’s rules, Madam Justice Karen F. Douglas in Allard v. The University of British Columbia, 2021 BCSC 60 held that the “normal rule” in arbitration is successful parties are entitled to indemnification costs unless special circumstances warrant some other type of costs. When a party is “wholly successful” an arbitrator is not required to make a finding of misconduct against the other party as a prerequisite to awarding actual reasonable legal costs. Douglas J. excerpted comments made in the legislature when B.C. introduced amendments to its Arbitration Act, RSBC 1996, c 55 to clarify an arbitrator’s authority to award actual reasonable legal fees. B.C. anticipated that authority would “preserve a desirable feature of arbitration: namely, the ability of a party to recover its actual costs”. Douglas J. observed that the legislature’s stated intent “undermines” concern for any alleged unintended “chilling effect” of awarding indemnity costs because “parties are more likely to pursue commercial arbitration precisely because doing so permits them to recover their actual costs”.
Continue reading “B.C. – authority to award actual reasonable legal costs a “desirable feature” not a “chilling effect” – #442”Ontario – pre-litigation costs for mediation imposed by legislation recoverable because non-discretionary – #441
In Gelman v. 1529439 Ontario, 2021 ONSC 424, Madam Justice Bernadette Dietrich denied a successful litigant’s claim for pre-litigation costs, following the rule set out in Greenlight Capital, Inc. v. Stronach (2008), 2008 CanLII 34359 (ON SCDC), 91 O.R. (3d) 241 (Div. Ct.). In doing so, Dietrich J. resurfaced 90 George Street Ltd. v. Ottawa-Carleton Standard, 2015 ONSC 336 in which pre-litigation costs for mediation were awarded in an arbitration and upheld on a post-award challenge. Those costs related to mediation imposed by the Condominium Act, 1998, SO 1998, c 19 which requires parties to mediate budget disagreements before undertaking arbitration and, as such, did not represent an exercise of discretion by the parties prior to commencing arbitration.
Continue reading “Ontario – pre-litigation costs for mediation imposed by legislation recoverable because non-discretionary – #441”Québec – no abuse of procedure if losing arbitral party obliges non-parties to litigate their liability for similar claims – #440
In litigation instituted by A against S/B, with M forced to intervene by B, Mr. Justice Jean-François Michaud in ArcelorMittal Exploitation minière Canada v. SNC-Lavalin Inc., 2021 QCCS 202 refused to grant S/B’s and M’s applications to dismiss which invoked abuse of procedure based on a prior arbitral award between A and M. A chose not to involve M in the litigation but B had forced M’s intervention as part of B’s defense against A. Michaud J. held that (i) S/B were not parties in the arbitration and the arbitration did not address their liability and (ii) M could not object to the expense of defending in a second, separate instance in which B had forced M’s intervention. Recognizing that M had spent millions to successfully contest similar claims by A in the arbitration, Michaud J. concluded that M’s additional expense stemmed from the arbitration clause it had accepted. Despite a successful result for M in the arbitration with A, Michaud J. observed that the trial judge might draw conclusions similar to or different from the arbitration and eliminating the risks of contradictory judgments was impossible.
Continue reading “Québec – no abuse of procedure if losing arbitral party obliges non-parties to litigate their liability for similar claims – #440”Ontario – findings of fact which established legal obligations also prevent raising question of law – #439
In 1852998 Ontario Limited v. HCC No. 227, 2021 ONSC 21, Mr. Justice Andrew J. Goodman denied leave to appeal on a question of law, holding that the arbitrator’s determinations of a condominium rule’s validity and compliance with the Condominium Act, 1998, SO 1998, c 19 rested on findings of fact concerning uses of the units generally and the historical interpretation of the declaration by the corporation. The arbitrator’s findings of fact also involved whether the condominium’s vote on setting aside the rule was valid and resulted in a valid rule prohibiting Appellants’ retail sale of cannabis products. Despite denying leave, Goodman J. used his “equitable prerogative” to modify the delays in the Amended Award , extending the time for performance and thereby allowing the arbitral party subject to the orders sufficient time to exhaust its inventory.
Continue reading “Ontario – findings of fact which established legal obligations also prevent raising question of law – #439”