notes on new arbitration cases in Canada
In Johnson Bros. Corporation v. Soletanche Bachy Canada Inc., 2024 ONSC 6296, the Court found that the parties had contracted out of the right to appeal on the basis that the arbitration agreement provided that disputes were to be “finally resolved” by arbitration.
Continue reading “Ontario – “Finally Resolved” means “Final and Binding” – #890”
In Wiederhold v Aspen Technology, Inc., 2024 BCSC 1731, the Court declined to grant a stay application under s. 7 of the Arbitration Act, SBC 2020, c. 2 [Act], on the basis that the arbitration clause was unenforceable for lack of consideration, contrary to public policy, and unconscionable. It applied the “brick wall framework” described in Spark Event Rentals Ltd. v Google LLC, 2024 BCCA 148 at paragraphs 19 ss.
Continue reading “B.C. – Stay motion test and the “brick wall framework” – #874”
In Magnum Management Inc. v Chilliwack Hangar Corp., 2024 BCCA 212 [Magnum Management], the Court dismissed an application for leave to appeal an arbitration award. The applicant sought leave on the basis that the arbitrator had failed to apply, or misapplied, the legal principle of issue estoppel, had misapprehended another arbitrator’s reasons in a prior arbitration involving the same contractual clauses, and had not anchored the award in either party’s submissions. The Court found that the applicant had failed to identify an extricable question of law under s. 59(3) of British Columbia’s Arbitration Act, SBC 2020, c. 2 [“Act”].
Continue reading “B.C. – Questions of issue estoppel not always extricable questions of law – #855”
In Ford v. GMP Securities LP, 2024 ONSC 271, the Court partially dismissed an action for issue estoppel, relying on a 2022 arbitral award that had been rendered as a result of a dispute between a group of shareholders (of which the plaintiff was a part) and an entity that the defendants (investment dealer and senior investment banker) had represented in a reverse take-over process. The defendants were found to be privies of the parties to the previous arbitration, even though they were not parties themselves. The only claims remaining in the Ontario action were the ones that had not been raised or decided in the previous arbitration.
Continue reading “Ontario – Court dismisses action for issue estoppel based on prior arbitration – #840”
In Orica Canada Inc v ARVOS GmbH, 2024 ABKB 97, the Court applied, and possibly expanded, the exception to the competence-competence principle that allows a Court to resolve a jurisdictional claim if there is a real prospect that referring the issue to arbitration would mean that it is never resolved. The Court also determined that, in an action between two parties without an arbitration agreement, where the defendant raises claims against a third party subject to an arbitration agreement, those third party claims cannot be included in the action and must be determined by arbitration, even if they are related to the issues between the plaintiff and defendant in the main action. However, any third party claims that are not subject to the arbitration agreement can proceed in the action.
Continue reading “Alberta – A potential expansion of the exceptions to the competence-competence principle? – #823”
For better or for worse, parties can challenge arbitral decisions through multiple avenues, whether through a review of a preliminary jurisdictional ruling, set-aside application, or appeal. Arbitration case law in 2023 highlighted a striking lack of consistency between the standards of review and appeal applied in each of these different avenues.
Continue reading “Stephanie Reflects (2023): What’s the Standard? Reviews, Appeals and “Decisions of the Matter” – #806”
In Buffalo Point First Nation and Buffalo Point Development Corp Ltd v Buffalo Point Cottage Owners Association, Inc, 2023 MBKB 141, the Court confirmed its earlier decision on the motion for leave to appeal, in which it held that the correctness standard of appeal in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (“Vavilov”) applies to review of private arbitration awards appealed under provincial arbitration legislation. The Court held that the arbitrator had erred because he exceeded the jurisdiction granted to him under the parties’ agreement. First, the arbitrator exceeded the jurisdiction to “implement” or “clarify” a Consent Award which the parties had entered into following an earlier dispute. Second, the arbitrator’s award constituted “a significant rewrite of the bargain (…) by introducing new concepts alien to the negotiated bargain”.
Continue reading “Manitoba – Awards set aside after arbitrator re-wrote parties’ bargain – #790”
In Glen Eagle Resources Inc. c. GEM Global Yield, 2023 QCCS 3144, the Court determined that a law firm was not disqualified from acting as counsel in annulment and enforcement proceedings when it acted for one party, but a portion of the legal fees were paid by the opposing party in the transaction giving rise to arbitration. But it raises a potential red flag for counsel.
Continue reading “Québec – Arbitration counsel not disqualified, despite opposing party paying underlying transaction fees – #771”
In EDE Capital Inc. v Guan, 2023 ONSC 3273, Justice Vermette dismissed a set-aside application on the basis that the applicant had failed to make out a breach of procedural fairness or lack of jurisdiction. In doing so, Justice Vermette also held that the applicable legislation in this case was the Model Law, despite the fact that the parties’ arbitration agreement referred to the domestic arbitration act.
Continue reading “Ontario – No contracting out of the Model Law – #752”