notes on new arbitration cases in Canada
By James Plotkin and Eric Morgan.
Our last Case Note reviewed the Ontario Court of Appeal’s Mundo decision. Here we consider the more recent decision of Peace River Hydro Partners v Petrowest, 2022 SCC 41 (“Petrowest”).
Continue reading “Eric/James 2022 Hot Topic: What is next for arbitration and insolvency? (Part 2) – #701”
In Newtech Waste Solutions inc. c. Asselin, 2022 QCCS 3537, Justice Bellavance dismissed an application challenging an arbitral tribunal’s jurisdictional decision to join a non-signatory corporation to an arbitration. Justice Bellavance validated the tribunal’s application of jurisprudence on joinder of non-signatories to arbitrations seated in Québec. Although the non-signatory was a stranger to the arbitration agreement, the arbitral tribunal found, and Justice Bellavance agreed, that it was appropriate to join it based on a prima facie showing that the corporation was one of the parties’ alter ego.
Continue reading “Québec – Court dismisses application challenging arbitral tribunal’s joinder of non-signatory – #680”
In Wang v. Luo, 2022 ONSC 5544, Justice LeMay, sitting as an Ontario Divisional Court judge, upheld the enforcement of a foreign arbitral award rendered under the auspices of the China International Economic and Trade Arbitration Commission (“CIETAC”). He rejected the Appellant’s arguments that the Superior Court of Justice erred in enforcing the award, including an argument that enforcement was improper given the Respondent’s previous attempt to pursue its claim before the Ontario Small Claims Court.
Continue reading “Ontario – Foreign award enforcement upheld on appeal despite previous attornment to court – #679”
In Mundo Media Ltd. (Re), 2022 ONCA 607, Court of Appeal for Ontario Justice Julie Thorburn dismissed a motion for leave to appeal a decision denying a motion to stay a receiver’s court proceeding. The Appellant/Moving Party sought the stay on the basis of an international arbitration agreement. Justice Thorburn found no reversible error in the motion judge’s choice to apply the “single proceeding model”, applicable in insolvency proceedings, with the effect that the Appellant/Moving Party, one of the insolvent company’s debtors, could not require the receiver to arbitrate its claim rather than litigate it. Together with the Superior Court’s decision below, this decision provides important guidance on the interplay between arbitration agreements and claims advanced in the bankruptcy and insolvency context.
Continue reading “Ontario – Court of Appeal upholds “single proceeding” insolvency model over recourse to arbitration – #660”
In Petty v Niantic Inc., 2022 BCSC 1077, Justice Mayer stayed a proposed class action in favour of arbitration, except in respect of claims advanced under B.C.’s Business Practices and Consumer Protection Act [BPCPA]. He rejected the Representative Plaintiffs’ arguments that the arbitration agreements were null and void for unconscionability and/or violating B.C. public policy. He also applied the competence-competence principle, holding the arbitral tribunal should decide first as to its jurisdiction over claims based on the Competition Act where the parties’ contract provided for California law.
Continue reading “British Columbia: – Court partially stays class action related to videogame “loot boxes” – #639”
In Ledsham v. Air Canada Pilots Association, 2022 ONSC 1877, a self-represented litigant found himself in the wrong place at the wrong time to appeal an order enforcing an arbitral award. Justice D.L. Corbett of the Ontario Divisional Court summarily dismissed the appeal under rule 2.1.01 of the Ontario Rules of Civil Procedure. That Rule provides that the court may, on its own initiative, stay or dismiss a proceeding if it appears on its face to be frivolous, vexatious or an abuse of the process. Despite observing several badges of vexatiousness, Justice Corbett declined to declare the appellant a vexatious litigant. He nevertheless found the appeal before him was frivolous, vexatious and an abuse of process.
Continue reading “Ontario – Dismissal of appeal of order enforcing award as abuse of process – #621”
In Enrroxs Energy and Mining Group v Saddad, 2022 BCSC 285, Justice Crerar granted a petition to enforce a foreign arbitral award under the International Commercial Arbitration Act, RSBC 1996, c 233 (ICAA) and the Foreign Arbitral Awards Act, RSBC 1996, c 154 (FAAA). He rejected the respondent’s attempts to resist enforcement based on the public policy ground in subparagraph 36(1)(b)(ii) of the ICAA and art. V(2)(b) of the FAAA. Justice Crerar also rejected the respondent’s request to stay execution pending a valuation of certain assets that the petitioner had seized, which the responded complained could result in double recovery.
Continue reading “B.C. – Court recognizes/enforces Swiss award, rejecting public policy defence – #597”
In Clemina Hydro Power Limited Partnership v British Columbia Hydro and Power Authority, 2022 BCSC 25, Justice Carol J. Ross denied the petitioners’ application for leave to appeal an arbitral award arising out of two energy purchase agreements. Justice Ross found the petitioners failed to identify an extricable legal error in the arbitrator’s contract interpretation exercise. She also held that, in any event, the petitioners’ appeal had been rendered moot. One issue Justice Ross addressed was what the appellate court should do with an alleged error of law where the law has changed between the initial decision and the appeal.
Continue reading “B.C. – Appeal court considering arbitrator’s alleged error of law where law changed post-award – #579”
In 619818 N.B. Inc. v. 656991 N.B. Inc., 2021 NBQB 269, Justice Ferguson of the New Brunswick Court of Queen’s Bench denied an application for leave to appeal an arbitral award. In so doing, he distinguished questions of mixed fact and law from pure questions of law arising from an arbitrator’s contract interpretation exercise.
Continue reading “New Brunswick – Arbitrator reading professional standards into valuation clause not extricable error of law – #573”
My top pick for 2021 is Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District, 2021 SCC 7 [Wastech]. For most, Wastech’s primary importance relates to the common law duty of good faith in the exercise of contractual discretion. But for arbitration aficionados, another key aspect is what the Supreme Court of Canada’s concurring Justices said, and what the majority Justices declined to say, about the standard of review applicable to appeals from arbitral awards.
Continue reading “James’s 2021 Top Pick: B.C. – Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District – #565”