Arbitration Case Notes Archives - Page 4 of 84

January 3, 2024April 30, 2024

Lisa Reflects (2023): Aroma – the blockbuster case of 2023? – #804

Aroma Franchise Company Inc. et al. v Aroma Espresso Bar Canada Inc., 2023 ONSC 1827 was the case I think created the biggest “buzz” in 2023, likely because it was the only Canadian case (of which I am aware) that has addressed the gnarly issue of arbitrator disclosure obligations in circumstances in which the arbitrator has taken on multiple appointments at the same time, a situation in which the IBA Guidelines on Conflict of Interest in International Arbitration provides little, well, guidance. I reported on this decision in an earlier case note: Ontario – Multiple arbitral appointments give rise to reasonable apprehension of bias – #734 – Arbitration Matters. Since then, the case has continued to generate interest and commentary, which has kept me thinking about it. The Ontario Court of Appeal heard the appeal on December 6, 2023.

January 2, 2024April 30, 2024

Jonathan Reflects (2023): Litigation Muscle Memory – #803

The festive season is a time for sharing. I’m re-gifting to Arbitration Matters readers a present I received at the end of a complex arbitration. My co-counsel in the arbitration remarked, “You know, litigation muscle memory is really strong.”

December 21, 2023December 18, 2023

Québec – Determination of Admissibility Left to Arbitrator Where Facts Disputed – #802

Fondations Trevi Canada c. Édyfic inc., 2023 QCCS 4466 highlights the importance of clear communications between parties when those communications have implications as to whether contractually prescribed deadlines are met where there is a multi-tier arbitration clause. In this case, the Court appointed an arbitrator where admissibility with respect to the arbitration was disputed. It was not obvious from a summary review of the evidence and an interpretation of the dispute resolution clause whether certain prescribed periods under the relevant agreement had expired. The Court rejected the defendant’s argument that the matter was inadmissible and that an arbitrator should therefore not be appointed. With reference to case law about the competence-competence principle, the Court held that these matters should be referred to the arbitrator for determination. This case engages the often difficult issue of jurisdiction versus admissibility.

December 20, 2023December 18, 2023

B.C. – failure to answer fundamental question not an extricable error of law – #801

In Hudson’s Bay Company ULC v. Piret (18111 Blundell Road) Holdings Inc., 2023 BCCA 428, the Court held that the failure of an arbitrator to answer a fundamental question is a matter of interpretation of the arbitral award and does not give rise to an extricable error of law. It dismissed the application for leave to appeal. This decision seems to stand in contrast to other recent decisions coming out of the same court that have held a material misapprehension of evidence going to the core of an outcome of an arbitral award can amount to an extricable legal error.

December 19, 2023December 18, 2023

Québec – Homologation refused where claim adjudication did not meet definition of “arbitration” – #800

In A. c. Frères du Sacré-Cœur, 2023 QCCS 2414, the Court determined that a claim adjudication process by two arbitrators pursuant to a class-action settlement agreement (“Agreement”) did not constitute arbitration. Therefore, the Court refused to homologate the arbitrators’ decisions, finding that two key features of arbitration described in Sport Maska Inc. v. Zittrer, [1988] 1 S.C.R. 564 (“Sport Maska”) were not present.

December 18, 2023December 18, 2023

Prince Edward Island – Plaintiffs’ Proposal to Arbitrate Years into Court Proceedings Factor in Excusing Delay – #799

In Elbaz v. Government of P.E.I., 2023 PESC 52 (CanLII), in the context of a motion by the defendants to dismiss an action for delay, the Court considered (among many other factors) the fact that the plaintiffs had, after their counsel had died after 15 years on the case, suggested to defendants that the case be moved to arbitration rather than remaining before the court. Considering this and other factors, the Court declined to dismiss the case for delay, finding that the delay was inordinate, but that it was not intentional or contumelious. Further, both sides were responsible for the delay. The explanations for the delays were “reasonable and cogent” or “sensible and persuasive”.

December 6, 2023December 8, 2023

Ontario – Court dismisses motion to quash notice of arbitration – #798

In Katerinaville Developments Ltd., v. Garthwood Homes Ltd.et al., 2023 ONSC 6267, the Court held that the Arbitration Act, 1991, S.O. 1991, c. 17 (the “Act”), does not allow a plaintiff to quash a notice of arbitration in favour of a court proceeding, deferring to the arbitral tribunal for any determination of the unconscionability of an arbitration clause. Additionally, the Court emphasized that duplication of proceedings in Court and arbitration does not necessarily render the arbitration unfair.

December 5, 2023December 1, 2023

Québec – Final Award on arbitrator’s own jurisdiction: what recourse(s)? – #797

In ADREQ (CSD) Estrie c. Centre intégré universitaire de santé et des services sociaux de l’Estrie – CHUS, 2023 QCCA 1315, the Court of Appeal granted leave to appeal a Superior Court decision dismissing an application for annulment of an arbitration award. The first instance Judge ruled that despite the fact that the arbitrator heard the whole case on the merits and decided in the final award that he had no jurisdiction, the award could not be contested under the annulment provisions of the Code of Civil Procedure (sec. 648), but rather must be challenged under the provisions concerning an arbitrator’s ruling on their own jurisdiction (sec. 632). Because of the potential overlap between these provisions and because of the limited jurisprudence on their application, the Court of Appeal deemed that it was a subject of interest for the Court and granted the leave.

December 4, 2023December 14, 2023

Ontario – No unfairness despite Browne v Dunn violation and arbitrator reasonable apprehension of bias – #796

In Vento Motorcycles, Inc. v. United Mexican States, 2023 ONSC 5964, the Court dismissed an application to set aside an investor-state arbitration award on the grounds that the arbitral tribunal denied procedural fairness, and that one of the tribunal members was biased. Although the Court found no unfairness, it acknowledged a reasonable apprehension of bias in respect of the impugned arbitrator. The Court nonetheless exercised its discretion under art. 34 of the Model Law to dismiss the set–aside application.

November 22, 2023November 22, 2023

Québec – Arbitrator has jurisdiction to determine lien entitlement; only court has jurisdiction to enforce – #794

Santé Montréal Collectif CJV c. Veolia Health Services Montreal 2023 QCCS 3817 concerned a dispute relating to the construction of a hospital complex. The Respondent, Veolia Health Services Montreal sec (“Veolia”), alleged it was due money for repair work as part of its contractual obligation to perform maintenance after construction of the hospital complex was complete. It filed a notice of arbitration and at the same time a hypothec, or lien, against the subject property (the “Mortgage Notice”) with the court. The Applicant, Sante Montreal CJV Collective sec (“CJV”) built the hospital complex. It, had separate obligations to ensure the property was clear of encumbrances and applied to strike the Mortgage Notice (the “Request to Strike”). Even though only the Court had authority to discharge the Mortgage Notice, it nonetheless suspended CJV’s application, pending the determination of the arbitration, and ruled that the Veolia’s entitlement to relief pursuant to the Mortgage Notice was an issue for an arbitrator to decide.