Lisa C. Munro

October 20, 2022October 20, 2022

Ontario – Does an appeal of a costs award require leave? – #672

In Schickedanz v Wagema Holdings Ltd., 2022 ONSC 5315, Justice Ramsay dismissed the motion by Wagema Holdings Ltd (Respondent on appeal) to quash Appellant Schickedanz’s appeal of a costs award. Wagema argued that leave was required under s. 133(b) of the Ontario Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”) and so the appeal was also out of time. Justice Ramsay was not persuaded that Wagema would prevail when the issue was determined by the appeal judge. First, the parties’ arbitration agreement contained a broad appeal process, without a leave requirement for costs appeals. Second, there is nothing in s. 45 of the Ontario Arbitration Act, 1991, S.O. 1991, c. 17 that requires leave to appeal a costs award or imports the leave requirement set out in the general costs appeal provision in s. 113(b) of the CJA. Third, the parties could contract out of the appeal provisions in s. 45 of the Arbitration Act pursuant to s. 3. Imposing a leave requirement to appeal a costs award would amount to judicial interference with the parties’ right to contract, which was recognized by the Supreme Court of Canada in TELUS Communications Inc. v. Wellman, 2019 SCC 19. Ultimately, it would be up to the judge hearing the appeal to decide whether leave was required and, if so, whether the appeal was out of time and whether the appeal had merit.

October 13, 2022October 17, 2022

Québec – Solidary liability allegation no bar to referral to arbitration for one defendant – #671

In Nantel v Gonzalez (not reported), Justice Buchholz stayed an action as against one defendant of a group and referred its dispute with the Plaintiffs to arbitration, even though the Plaintiffs alleged solidary (joint) liability as against all Defendants.

October 6, 2022October 13, 2022

Ontario – No oral hearing required even if one party requests it – #667

Optiva Inc. v Tbaytel, 2022 ONCA 646, raises two issues of interest to arbitration law. First, the Appellant (Optiva) made a jurisdictional objection to the arbitrator’s ruling allowing the Respondent (Tbaytel) to bring a motion for summary judgment. The arbitrator then issued a procedural order in which he ruled that he had jurisdiction. After hearing the motion, the arbitrator issued a partial award on the merits, which was in favour of Tbaytel. Optiva applied to the Ontario Superior Court of Justice to “decide the matter” of the arbitrator’s jurisdiction and to set aside the partial award, both pursuant to s.17 (rulings and objections re jurisdiction) of the Ontario Arbitration Act, 1991, S.O. 1991, c. 17 (the “Act”). However, the application judge found that Optiva had failed to bring its application on time and dismissed it. Pursuant to s. 17(8), it was required to do so within 30 days of the arbitrator’s jurisdiction ruling, not after the issuance of the partial award on the merits. The Ontario Court of Appeal agreed with the application judge and dismissed Optiva’s appeal, but for different reasons. The application judge erred in finding that Optiva was out of time to ask the Court to “decide the matter” because the preliminary ruling was not jurisdictional. Relying upon Inforica Inc. v. CGI Information Systems and Management Consultants Inc., 2009 ONCA 642, the ruling that the matter could proceed by summary judgment was procedural, not a ruling on the arbitrator’s “own jurisdiction”; therefore, s. 17 was not engaged. However, the appeal was dismissed because the arbitrator was entitled to decide matters of procedure, both under the Act and under the parties’ arbitration agreement, and did so. Second, the Court of Appeal held that s. 26(1) of the Act does not require an oral evidentiary hearing, even if one party requests it.

September 23, 2022April 13, 2023

B.C. – Material misapprehension of evidence is an extricable error of law – #662

In Escape 101 Ventures Inc. v March of Dimes Canada, 2022 BCCA 294, Justice Voith (for the Court) allowed an appeal of a commercial arbitral award on two grounds of significance: (1) the arbitrator demonstrated a material misapprehension of evidence going to the core of the outcome – this constituted an extricable error of law subject to appeal; and (2) an appeal is allowed with respect to “any question of law arising out of an arbitral award”, but this is not limited to errors arising from the formal award of the arbitrator. Here, the error was patent from the record, but was not apparent in the arbitrator’s reasons. The Court remitted the issue back to the arbitrator for reconsideration rather than substitute its own decision because there was no record of the proceedings, so it lacked the necessary evidentiary foundation to do so. (This was also the first appeal under the new B.C. Arbitration Act, S.B.C. 2020, c. 2.)

September 15, 2022September 9, 2022

Ontario – Action abuse of process – even against new defendant – where issues already arbitrated – #661

In Doria v Warner Bros. Entertainment Canada Inc. et al., 2022 ONSC 4454, Justice Koehnen granted the Defendants’ motion to strike the Plaintiff’s Statement of Claim pursuant to Rule 21.1(3)(d) of the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194 on the ground that it was an abuse of process because it sought to relitigate issues that were previously decided by an arbitrator. The Plaintiff argued that s. 139 of the Ontario Courts of Justice Act. R.S.O. 1990, c. C.43, allowed him to bring a subsequent proceeding for the same or similar relief against a person who was jointly liable and who was not bound by a previous judgment. Justice Koehnen found that s. 139 did not apply these circumstances, where the Plaintiff had a full opportunity to have his entire claim adjudicated in the arbitration, was awarded judgment, and had fully collected on the judgment. The Plaintiff’s complaint was that the arbitrator did not grant him his full damages. The fact that the Defendants were not parties to the arbitration and therefore not bound by the award was irrelevant.

September 8, 2022September 8, 2022

Québec – Arbitral award did not “apply” to court proceeding – #657

In Nour v Estephan, 2022 QCCS 2996, Justice Wery dismissed an action brought by the Plaintiff for damages for breach of an agreement with the Defendants, which set out the terms of his departure from their business acting as financial advisors. Confession: this is not an arbitration case, but don’t stop reading because there is an interesting little section on the precedential value in the Québec Superior Court of an arbitral award issued by a retired former justice of the Québec Court of Appeal, acting as arbitrator, in unrelated litigation brought in the courts.

September 7, 2022September 12, 2022

Québec – Stay of homologation application where parties disagreed on award’s meaning – #656

In Syndicate of co-owners of Quartier Urbain 3 v Habitations Bellagio Inc, 2022 BCCS 2445, the Applicant sought the homologation of an arbitral award dated October 28, 2021, which ordered the Respondent to carry out certain corrective work on the Applicant’s residential building. The parties disagreed upon the meaning of the award. Therefore, Justice Lussier stayed the homologation application for a short time to allow the parties to return to the Arbitrator to try to reach agreement on the meaning of the award. Because the Arbitrator was functus officio (presumably because the parties were too late to seek an interpretation of the award from the Arbitrator), she was not to participate in the meeting as arbitrator.

August 26, 2022August 19, 2022

Ontario – Arbitrator resignation did not terminate arbitration – #652

In Kubecka v Novakovic, 2022 ONSC 4503, Justice Pinto determined that, on the wording of the parties’ arbitration agreement, the parties had agreed that the arbitration was not terminated and their dispute returned to the jurisdiction of the courts – even when the arbitrator resigned. He appointed a replacement arbitrator on the application of one of the parties.

August 15, 2022August 15, 2022

Alberta – Why arbitration needs the courts – and vice versa – #650

In Benke v Loblaw Companies Limited, 2022 ABQB 461, Justice Feasby called for a “culture change” in the courts to “create an environment promoting timely and affordable access to the civil justice system” (quoting Justice Karakatsanis in Hyrniak v Mauldin, 2014 SCC 7 at para. 2) to avoid a “large-scale exodus” from the courts to arbitration. He took an expansive view of the court’s power to decide a case by summary trial as one way to move away from the conventional trial and solve the problem. He also commented on why we should not want all commercial disputes to be decided by arbitration.

August 11, 2022August 11, 2022

Alberta – SCC Wastech decision applies to exercise of arbitrator’s discretion to resign – #647

In SZ v JZ, 2022 ABQB 493 Justice Marion agreed to hear an application for urgent relief, despite the Respondent’s position that he had no jurisdiction. The Respondent argued that the parties were engaged in arbitration until the Arbitrator resigned unilaterally; however, the parties’ arbitration agreement continued to be enforceable. Justice Marion disagreed. He found that the Alberta Arbitration Act, RSA 2000, c A-43 (Arbitration Act) and the arbitration agreement (to which the Arbitrator was a party) allowed the Arbitrator to resign and that because the parties agreed to arbitration only before the specific Arbitrator appointed, upon his resignation, the arbitration terminated. However, the Arbitrator was required to exercise his discretion to resign reasonably and in good faith, including in a manner that was consistent with the purposes for which the discretion was provided in the contract, in accordance with the Supreme Court of Canada decision in Wastech Services Ltd v Greater Vancouver Sewage and Drainage District, 2021 SCC 7. There was no suggestion that he had not done so.