In Royal and Sunalliance Insurance v Ontario Provincial Police, 2024 ONSC 5505, the Court interpreted section 29(4) of Ontario’s Arbitration Act, 1991 (the “Act”) to allow courts to order non-party disclosure before an arbitration hearing. Section 29(4) states, “[o]n the application of a party or of the arbitral tribunal, the court may make orders and give directions with respect to the taking of evidence for an arbitration as if it were a court proceeding.” The Court’s order permits pre-hearing “discovery” of a non-party to the arbitration, as opposed to the taking of evidence at a hearing. The case sets out some considerations that may be relevant to future applications under this provision of the Act. This case highlights the need for parties seeking non-party disclosure in arbitration to carefully review the applicable legislation and frame requests for Court assistance accordingly.
Continue reading “Ontario – Court endorses pre-hearing disclosure from non-parties to assist arbitration – #876”Nova Scotia – Court orders stay in favour of arbitration – but with conditions – #858
In Colbourne Chrysler Dodge Ram Ltd., v. MacDonald et al. v Colbourne, MacDougall, and Denny, 2024 NSSC 204, the Court stayed an action in favour of arbitration. Of interest to readers of this blog, the stay was made “subject to the parties moving forward in an efficient and expeditious manner” with the arbitration. The Court also ordered the arbitrator – notwithstanding that none had been appointed – to “in the first instance, determine any jurisdiction issues and/or defences which may be raised in connection with the claims made against [certain parties which were not signatories to the arbitration agreement].”
Continue reading “Nova Scotia – Court orders stay in favour of arbitration – but with conditions – #858”Ontario – International award enforced despite respondent’s non-participation – #839
Medivolve Inc. v. JSC Chukotka Mining and Geological Company, 2024 ONSC 2200, the Court refused Medivolve’s application to set aside an international arbitration award issued by a Moscow-seated tribunal, instead granting Chukotka’s application to recognize and enforce the award. Medivolve failed to appear at the arbitration and claimed that it had not been given proper notice or an opportunity to be heard. The Court found that Medivolve had proper notice of the arbitration within the meaning of Art. 36(1)(a)(ii) of the UNCITRAL Model Law on International Commercial Arbitration (the “Model Law”). It had received actual notice, by email, of the pendency and status of the arbitration well before the award was rendered even though it changed offices (without notifying the opposing party).
Continue reading “Ontario – International award enforced despite respondent’s non-participation – #839”Ontario – Affidavits of “reasonable and informed persons” inadmissible in bias challenge – #824
In The Law Society of British Columbia and Valerie Frances Hemminger, 2024 LSBC 7, a hearing panel of the Law Society of British Columbia Tribunal refused to admit twelve affidavits offered to support the Respondent’s allegation of a reasonable apprehension of bias on the part of the panel. The panel found the affidavits were inadmissible primarily because the “reasonable and informed person” part of the test for reasonable apprehension of bias is an objective legal fiction, not informed by a subjective person whose views may be assessed by evidence and then applied by a decision maker. Accordingly, the affidavits – which offered the opinions of self-professed “reasonable” people about the implications of procedural decisions at the heart of the Respondent’s challenge – were inadmissible.
Continue reading “Ontario – Affidavits of “reasonable and informed persons” inadmissible in bias challenge – #824”Timothy Reflects (2023): Are arbitral tribunals soft targets for bad actors? – #809
This case note reflects on emerging procedural and systemic vulnerabilities of arbitration, a timely and important topic in light of the recent decision of the High Court of England and Wales in Process & Industrial Development v Federal Republic of Nigeria, [2023] EWHC 2638 (Comm) (“P&ID v Nigeria”). In that case, Justice Robin Knowles remarked:
Continue reading “Timothy Reflects (2023): Are arbitral tribunals soft targets for bad actors? – #809”Quebec – Streamlined procedures do not deny party’s ability to its present case – #792
In Gagnon c. Truchon, 2023 QCCA 1053, the Quebec Court of Appeal declined leave to appeal the Superior Court’s earlier decision to dismiss an application to annul an award and instead to enforce it. The Court of Appeal concluded that the Applicants had failed to establish “questions of principle” arising out of a “purement privé” fee dispute between the Applicants and their former lawyer. After failing to object to streamlined procedures selected by the Arbitration Council appointed by the Bureau du Québec, the Applicants could not later complain that they were denied the opportunity to present their case.
Continue reading “Quebec – Streamlined procedures do not deny party’s ability to its present case – #792”Ontario – Arbitrator to decide whether non-signatories are bound to arbitrate – #776
In We Care Community Operating Ltd. v Bhardwaj, 2023 ONSC 4747, the Court granted the Plaintiff’s motion to compel arbitration under a Co-Ownership Agreement that related to a development property in Toronto. The Court deferred to the arbitrator the question of whether certain corporate entities – which were not signatories to the Co-Ownership Agreement – were nonetheless bound by the arbitration agreement contained in it.
Continue reading “Ontario – Arbitrator to decide whether non-signatories are bound to arbitrate – #776”British Columbia – Google wins stay of conspiracy claims; plaintiff refuses to arbitrate – #761
In Spark Event Rentals Ltd. v. Google LLC, 2023 BCSC 1115, the BC Supreme Court granted the Google Defendants a stay in favour of arbitration. The Court rejected Spark’s assertion that the applicable arbitration agreement prohibited it from commencing arbitration, and that the entire dispute with Google could not be resolved in arbitration. Spark had also sued affiliates of Apple in the action. Apple applied, unsuccessfully, to stay the action on the basis that it was so intertwined with the claims against Google that it would amount to an abuse of process for the BC litigation to proceed in parallel with an arbitration against Google on the same claims. However, Spark represented to the Court that if its claims against Google were stayed, it would not proceed with an arbitration; accordingly, the Court found that Apple’s stay application was moot. While the Court left the door open to Spark to arbitrate with Google, in effect the arbitration agreement appears to have provided a tactical shield for Google – for now. This may be a case to watch, as Canadian courts have not yet definitively ruled on the availability of joint and several damages from co-conspirators in private litigation under the Competition Act, RSC 1985, c C-34. Another unsettled question that may arise in due course is whether, in these circumstances, a party has a right of contribution and indemnity from a co-conspirator if it is ordered to pay more than its proportional share of damages.
Continue reading “British Columbia – Google wins stay of conspiracy claims; plaintiff refuses to arbitrate – #761”B.C. – High bar to arbitrate amended claims after attornment – #744
In Hawthorn v Hawrish, 2023 BCCA 182, the BC Court of Appeal addressed the often-difficult question of “who decides” key issues where arbitration agreements and court proceedings collide. The appeal concerned an amended notice of civil claim, which the defendants – who had already attorned to the court in respect of the original notice of civil claim – applied to stay in favor of arbitration. The core question was whether the amendments added new claims. The Court of Appeal affirmed the lower court’s refusal to refer the question first to arbitration, and the conclusion that the amendments were not new.
Continue reading “B.C. – High bar to arbitrate amended claims after attornment – #744”B.C. – Court of Appeal finds extricable error in contract interpretation (again) – #728
In Mann v. Grewal, 2023 BCCA 88, the BC Court of Appeal upheld the judgment below (1) finding an extricable error of law in the sole arbitrator’s interpretation of a settlement agreement, and (2) amending the award rather than remitting it to the arbitrator. The Arbitrator’s error of law was that he failed to interpret the agreement at the center of the dispute and – in effect – re-wrote the parties’ agreement.
Continue reading “B.C. – Court of Appeal finds extricable error in contract interpretation (again) – #728”