Despite the brevity of her decision, Madam Justice Carole Therrien in Dupont v. Langlois, 2021 QCCS 136 underscored a key distinction between the court’s oversight triggered by parties litigating before the court despite a binding agreements to arbitrate. Though Plaintiff voluntarily discontinued his action following Defendant’s application to decline jurisdiction, Therrien J. held that Defendant’s claim for abuse of procedure pursuant to articles 51-56 of the Code of Civil Procedure, CQLR c C-25.0 was made before Plaintiff’s discontinuance and in the context of management of the litigation. Acknowledging that the action stemmed from a dispute involving the contract, Therrien J. determined that the alleged procedural abuse by Plaintiff took place in the context of a judicial procedure before the Superior Court and it is the court which had the authority to sanction abuse, if need be.
Continue reading “Québec – alleged abuse of procedure in court prior to referral to arbitration is subject to court sanction not arbitration – #438”Saskatchewan – ‘only logical to modernize’ New York Convention ‘agreement in writing’ to include text/ e-mail exchange – #437
In Parrish & Heimbecker Ltd. v. TSM Winny AG Ltd., 2020 SKQB 348, Mr. Justice Richard W. Elson held that the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) mention of an “agreement in writing” in the definition of an agreement to arbitration was “inclusive” and imposed no formal requirement that an “agreement in writing” needed to be signed. “Given the absence of text and email messages in 1958, when the New York Convention was created, I think it only logical for the Court to modernize these words and find that the reference to “telegrams” should include other similar forms of electronic communication, such as facsimile, text and email messages”. Though applicant’s submissions referred to but produced no certified copies of the agreement to arbitrate or award, Elson J. adjourned the application for recognition and enforcement to allow applicant to file the certified copies. When recognizing and enforcing the appellate arbitral tribunal’s award issuing from an administered arbitration, Elson J. further acknowledged there was “little doubt” that the appeal panel “premised its analysis on a basis that was not part of either the notice of appeal or the respective arguments it received” but concluded that doing so did not justify a dismissal of the application. “I accept that it was unfortunate for the Appeals Committee to have addressed the question in the manner it did, without giving the parties an opportunity to address the point” but that the appeal panel “clearly believed it was entitled to act as it did”.
Continue reading “Saskatchewan – ‘only logical to modernize’ New York Convention ‘agreement in writing’ to include text/ e-mail exchange – #437”Québec – litigants’ membership in professional association binds them to arbitrate disputes – #436
In brief reasons, Mr. Justice Éric Couture in Diamond Diamond Real Estate Inc. v. Londono Realty Group Inc., 2021 QCCQ 176 dismissed an action for payment of commissions, holding that the litigants’ membership in a real estate association included bylaws submitting their dispute to mandatory arbitration. The dispute resolution bylaw also stipulated that disputes subject to arbitration under the membership bylaw must be submitted within one (1) year from the date of the transaction. As the action concerned an October 2016 transaction, Couture J. dismissed the action rather than stay it or refer the parties to arbitration. The facts serve as a sample situation in which parties are bound to arbitrate (i) by virtue of their membership in an association rather than having negotiated a contract and included an agreement to arbitrate and (ii) within a time frame shorter than applicable prescription/limitation periods.
Continue reading “Québec – litigants’ membership in professional association binds them to arbitrate disputes – #436”B.C. – expert determination not conducted in accordance with dispute resolution process may be error in law – #435
In Grewal v. Mann, 2021 BCSC 220, the parties disputed the impact of a property valuation which issued from an expert determination process established in their settlement agreement. Mr. Justice Peter H. Edelmann granted leave to appeal on three (3) grounds which he determined raised extricable questions of law: (i) the arbitrator allowed his focus on the overall factual matrix to overwhelm the words of the settlement and selected a property valuation method “directly at odds” with Petitioner’s ownership of the property and a date agreed to by the parties; (ii) while mistake or error on the part of an expert determination is not by itself sufficient to invalidate the valuation, the mistake may show that the expert’s determination did not comply with the contract; (iii) there was no evidence before the arbitrator that the parties challenged the valuation and that it is “well-established that it is an error of law to make a finding of fact for which there is no evidence”.
Continue reading “B.C. – expert determination not conducted in accordance with dispute resolution process may be error in law – #435”Québec – precedents on attornment re-read in light of newer rules requiring compliance to judicial contract – #434
In Bergeron v. 2528-1023 Québec inc., 2021 QCCS 539, Mr. Justice Babak Barin underlined (i) the importance of alternative dispute resolution and (ii) the principles applicable to submission/attornment to the court’s jurisdiction. Barin J. first drew attention to the primacy given by Code of Civil Procedure, CQLR c C-25.01 to alternative dispute resolution and then commented on the general principles and particular factual elements related to parties attorning to a court’s jurisdiction. Barin J. reconsidered earlier case law which issued before recent court rules updates which now oblige litigants, at the onset of the litigation, to identify their intention to raise declinatory exceptions. His comments suggest that earlier case law must be re-read in light of newer rules requiring parties to commit earlier and clearly to their procedural decisions and to abide by their “judicial contract”. Barin J.’s comments on attornment may assist litigants to determine whether a party has or has not waived the benefit of their agreement to arbitrate.
Continue reading “Québec – precedents on attornment re-read in light of newer rules requiring compliance to judicial contract – #434”Québec – lawyer’s action dismissed as premature for pre-empting client’s right to opt for conciliation and arbitration – #433
In Landry v. Gagné, 2021 QCCA 128, Québec’s Court of Appeal upheld the dismissal of a lawyer’s action which pre-empted the client’s right to require conciliation and, if need be, arbitration of a dispute over an account by way of process set out by Regulation respecting the conciliation and arbitration procedure for the accounts of advocates, CQLR c B-1, r 17. While the process is asymmetrical in that only the client can opt not to engage in it, the Québec Court of Appeal in Conseil d’arbitrage des comptes des avocats du Barreau du Québec v. Marquis, 2011 QCCA 133 determined that the process qualified as a consensual arbitration and not a statutory and therefore exempt from judicial review.
Continue reading “Québec – lawyer’s action dismissed as premature for pre-empting client’s right to opt for conciliation and arbitration – #433”B.C. – forum non conveniens required to address omission to extend agreement to arbitrate to merged corporation – #432
In O’Melveny & Myers LLP v. Tilt Holdings Inc., 2021 BCSC 124, Madam Justice Amy D. Francis applied the doctrine of forum non conveniens to stay B.C. litigation in favour of California litigation and, in doing so, recorded gaps in a law firm’s engagement letter. The B.C. litigation involved disputed invoices totalling $3.2 million USD for significant M&A work undertaken by the law firm but without renegotiating an initial engagement letter (i) signed with only one (1) of four (4) corporations which merged into the eventual client and (ii) limited to a threatened litigation file. The engagement letter contained an agreement to arbitrate which an arbitrator held did not apply to the merged client. The evolution of the law firm’s relationship with the merged client suggests moments at which law firms and clients ought to revisit, reframe and extend initial engagement letters in order to carry forward the benefit of any initial agreement to arbitrate.
Continue reading “B.C. – forum non conveniens required to address omission to extend agreement to arbitrate to merged corporation – #432”Québec – ‘best to leave it to the Supreme Court to reverse or distinguish its own majority decisions’ – #431
In authorizing a class action, Mr. Justice Sylvain Lussier in Société AGIL OBNL v. Bell Canada, 2021 QCCS 365 excluded from the group’s definition those members bound by standard form contracts containing an agreement to arbitrate. Representative plaintiff had not signed such a contract and evidence of the circumstances of signature would be speculative, adding that it ‘would be unfair to impose on [representative plaintiff] the burden of pleading a question which does not concern it’. Lussier J. also declined to remit the issue of the agreement to arbitrate to a subsequent declinatory motion as ‘one cannot refer a hypothetical file to a non-existent arbitrator’. Lussier J. gave the parties the opportunity to comment on Uber Technologies Inc. v. Heller, 2020 SCC 16 which issued after their hearing but distinguished it as having been decided on common law rather than civil law legislation and argued by a representative plaintiff bound by the actual disputed agreement to arbitrate. In comments preceding his consideration of Uber Technologies, Lussier J. declined to accept the invitation to adopt the dissent’s comments in TELUS Communications Inc. v. Wellman, 2019 SCC 19, [2019] 2 SCR 144 because ‘it is best to leave it to the Supreme Court to reverse or distinguish its own majority decisions’.
Continue reading “Québec – ‘best to leave it to the Supreme Court to reverse or distinguish its own majority decisions’ – #431”Manitoba – attaching conditions to award of damages is an error of law – #430
In Broadband Communications North Inc. v. 6901001 Manitoba Ltd., 2021 MBQB 25, Mr. Justice James G. Edmond held that imposing conditions on an award of damages does not comply with principles of awarding damages in breach of contract cases. Observing that the arbitrator ought to have awarded damages without conditions or required the parties to file additional evidence if the evidence was insufficient to grant the award of damages, the decision to grant a conditional award of damages resulted in the successful party receiving no compensation when it failed to satisfy the conditions. Edmond J. also expressly followed and applied the principles set in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 in choosing correctness as the standard of review in an appeal provided by statute.
Continue reading “Manitoba – attaching conditions to award of damages is an error of law – #430”Alberta – issue not “expressly” referred to arbitrator may not preclude appeal but still live enough to signal overlooked opportunity to plead – #429
Preferring the “narrow interpretation” of section 44(3) of the Arbitration Act, RSA 2000, c A-43, Madam Justice Shaina Leonard in Athan Homes Inc v. Phan, 2021 ABQB 119 determined that the fundamental breach issue had not “expressly” been submitted to the arbitrator for decision and section 44(3) did not preclude leave to appeal. Applicant did succeed in identifying a question law but Leonard J. determined that its appeal had no merit. Leonard J. also dismissed Applicant’s alternative application to set aside the award due to alleged lack of opportunity to plead on the issue of fundamental breach. Though she had determined that fundamental breach had not been referred “expressly” to the arbitrator for the purpose of section 44(3), Leonard J. also determined that the issue was before the arbitrator for the purpose of natural justice. Omitted from the parties’ Joint Memorandum list of issues submitted to the arbitrator, the fundamental breach issue was present in the pleadings and Respondents’ written argument. Applicant’s choice not to make submissions on the issue did not result in a lack of opportunity to be heard.
Continue reading “Alberta – issue not “expressly” referred to arbitrator may not preclude appeal but still live enough to signal overlooked opportunity to plead – #429”