Timothy Hughes, Author at Arbitration Matters

March 27, 2024April 1, 2024

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.

January 17, 2024December 18, 2023

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:

November 20, 2023November 17, 2023

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.

October 1, 2023October 1, 2023

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.

August 4, 2023August 1, 2023

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-3 4. 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.

June 7, 2023June 5, 2023

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.

April 12, 2023April 10, 2023

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.

February 14, 2023March 17, 2023

Québec – Court rejects foreign state immunity to award enforcement – #710

In CC/Devas (Mauritius) Ltd v. Republic of India, 2022 QCCS 4785, Justice Pinsonnault rejected the Republic of India’s effort to invoke state immunity in response to an application seeking the recognition and enforcement of two investment treaty awards. He found that the Plaintiffs had met their burden to prove that (1) the commercial activities exception applied, and (2) India had waived state immunity to enforcement proceedings.

January 16, 2023March 13, 2023

Timothy’s 2022 Hot Topic – At the crossroads of class actions and arbitration – #702

For this year’s “hot topics” post, I have chosen to spotlight an enduring subject: the policy conflict that can arise between arbitration and consumer class actions. The heat comes from developments in 2022 which suggest a fresh look (or two!) at how to reconcile pro-arbitration international legal commitments and policy objectives with consumer protection and class action laws.

December 5, 2022August 8, 2023

Alberta – Court of Appeal to clarify its jurisdiction in arbitration matters – #689

In Schafer v Schafer, 2022 ABCA 358, Justice Pentelchuk ordered further briefing on the court’s jurisdiction to hear an appeal from an order of the Alberta Court of King’s Bench refusing permission to appeal under section 44(2) of the Arbitration Act, RSA 2000, c A-43 (the “Arbitration Act”). Although the amounts in dispute were relatively small, the case engaged several foundational questions. The first involved the overlapping, and sometimes dissonant, statutory jurisdiction of the Court of Appeal in matters ancillary to arbitration. Second, Justice Pentelchuk saw merit in providing interpretive guidance to parties and counsel on the appeal rights which flow from the arbitration agreement signed by the parties, which was said to be “standard” in family law arbitration in Alberta. She accordingly granted permission to brief the issue of jurisdiction to a panel of the Court of Appeal, in order to provide clarity in situations where the Judicature Act, Rules of Court, and Arbitration Act intersect. Justice Pentelchuk also asked the parties to address whether the arbitration agreement was a standard form agreement (which could make its interpretation an issue of law rather than mixed law and fact), and apply to adduce fresh evidence on that question, if necessary.