In Magotiaux v. Stanton, 2020 ONSC 4049, Madam Justice Jennifer Mackinnon denied to stay court proceedings, having determined that the parties’ otherwise detailed agreement to arbitrate was subject to, but did not comply with all of, certain formal requirements required by the Family Law Act, RSO 1990, c F.3 and the Family Arbitration, O Reg 134/07, the sole regulation made to the Arbitration Act, 1991, SO 1991, c 17. Mackinnon J. recognized that courts can imply terms into a contract following the approach in Pacific Hotels Ltd. v. Bank of Montreal, 1987 CanLII 55 (SCC) but, where legislation has mandated express terms, courts cannot imply terms to produce a binding agreement to arbitrate compliant with that legislation.
Continue reading “Ontario – courts cannot imply terms which legislation requires be express to have valid arbitration agreement – #354”Ontario – interim procedural orders “immune from review” during arbitration even when titled “award” – #353
In Hristovski v. Hristovski, 2020 ONSC 4021, Madam Justice Francine Van Melle held she had no jurisdiction to hear an appeal of an arbitrator’s pre-merits hearing denial of further document disclosure. Despite use of the term “award” to title the decision, Van Melle J. determined that the denial was an interim procedural order. Unlike an award which disposes of disputes between parties, the order was not eligible for appeal, being “immune from review” under the Arbitration Act, 1991, SO 1991, c 17. Van Melle J.’s reasons do not assert that interim decisions cannot later be challenged when appealing the final award if an interim decision impacts on the result. As neither party argued whether leave had to be sought/obtained, Van Melle J. made no comment on the issue.
Continue reading “Ontario – interim procedural orders “immune from review” during arbitration even when titled “award” – #353”Saskatchewan – absent party bound by disputed settlement terms signed by authorized solicitor/agent – #352
In Bakken v. Bakken, 2020 SKQB 127, Madam Justice Brenda R. Hildebrandt held defendant to a mediated settlement regarding sale of land, holding that defendant authorized counsel to attend as her solicitor/agent and consulting her by telephone during the mediation prior to counsel’s signature. Disagreement between the parties regarding the settlement lead to litigation to enforce purportedly unclear terms documented by the settlement. Litigation, filed May 20, 2010, was resolved ten (10) years later by trial judgment on May 7, 2020. Hildebrandt J.’s reasons explore possible, but unsuccessful, defenses to a breach of settlement claim, including frustration and three (3) types of contractual mistake: common mistake, unilateral mistake, mutual mistake.
Continue reading “Saskatchewan – absent party bound by disputed settlement terms signed by authorized solicitor/agent – #352”Alberta – refusal to adjourn hearing respects due process if recognition/enforcement conditions present – #351
In Pearson v. Pearson, 2020 ABCA 260, Alberta’s Court of Appeal distinguished between discretion to grant/refuse an adjournment and discretion which raises issues of procedural fairness. Deference is owed “generally” to the former, provided discretion is exercised judicially and sufficient weight given to all relevant considerations. The latter raises the question of whether due process was followed and attracts no deference. Despite disagreement whether a party had counsel of record and that party’s choice not to be ‘present’, the Court held that the party seeking adjournment suffered no prejudice because all the conditions in section 49 of the Arbitration Act, RSA 2000, c A-43 were ‘present’ and “there was no reason to think the outcome would have been different had an adjournment been granted”.
Continue reading “Alberta – refusal to adjourn hearing respects due process if recognition/enforcement conditions present – #351”B.C. – failure to disclose existence of arbitration over only material asset alleged to breach securities legislation – #350
In Arian Resources Corp. (Re), 2020 BCSECCOM 89, an alleged failure to disclose arbitration prompted B.C.’s Securities Commission to issue a notice advising that a hearing would be held at which the Executive Director would tender evidence, make submissions and apply for orders under the Securities Act, RSBC 1996, c 418 for failure to disclose material changes. The notice does not purport to assert determinations of fault or sanction but does remind that, despite the role and availability of confidentiality in arbitration, arbitration parties may still be required to share sufficient, timely information on arbitrations involving them and involving material change.
Continue reading “B.C. – failure to disclose existence of arbitration over only material asset alleged to breach securities legislation – #350”B.C. – precedents acknowledged for parties to constitute sitting judge as private tribunal without appeal – #349
In Gourlay v. Crystal Mountain Resorts Ltd., 2020 BCCA 191, B.C.’s Court of Appeal acknowledged precedents in which litigants constituted a judge/panel of judges as arbitrator(s) but, on the facts, held that no such agreement existed in the action. Such an agreement, if established, also entailed consequences, familiar to arbitration, such as an inability to appeal unsatisfactory orders. The Court’s reasons omit the Court’s own consideration of whether consent to have a judge sit as arbitrator could validly be given or enforced. Rather, it limited its reasons to acknowledging that it had been done in the past but that the agreement in the case did not support its application.
Continue reading “B.C. – precedents acknowledged for parties to constitute sitting judge as private tribunal without appeal – #349”B.C. – upcoming legislation overrides determination that summary assessment of costs is arbitral error – #348
In Appleton & Associates v. Branch MacMaster LLP, 2020 BCCA 187, B.C.’s Court of Appeal held that a court’s discretion to refuse to set aside an award under section 30(1) of the Arbitration Act, RSBC 1996, c 55 upon a finding of arbitral error is “constrained by the parameters” in section 30(2). The arbitral error consisted of making a summary assessment to determine costs. However, going forward, section 50(2)(d) of B.C.’s new Arbitration Act (Bill 7 – 2020: Arbitration Act), in effect September 1, 2020, expressly authorizes an arbitrator to summarily determine the amount of costs. In debating whether to set aside or remit the award, the Court observed that it is doubtful that a party can constrain the court’s discretion under section 30(1) to set aside the award or remit by limiting the requested relief to only one of the remedies.
Continue reading “B.C. – upcoming legislation overrides determination that summary assessment of costs is arbitral error – #348”Québec – parties renounce referral to arbitration but court later confirms issues not public order, still arbitrable – #347
In Gestion George Kyritsis Inc. v. Balabanian, 2020 QCCS 1806, Madam Justice Claude Dallaire asserted public order limits to the arbitrability of certain disputes but, on the facts, held that the dispute did not pass those limits. Dallaire J. held that where a declaration of improbation (annulment) is required to annul an authentic act received before a notary and registered in the land registry office, only a Superior Court could issue that declaration. Challenge to the validity of a notarial act alleging a notary’s non-compliance with the mission given by legislation is a matter involving public order. In the circumstances, because the nullity of the act could issue on grounds which did not require improbation, an arbitrator could have decided the matter.
Continue reading “Québec – parties renounce referral to arbitration but court later confirms issues not public order, still arbitrable – #347”Ontario – arbitrator determines complainant’s status as member of respondent and eligible to arbitrate dispute – #346
In Cricket Canada v. Alberta Cricket Council, 2020 ONSC 3776, Mr. Justice Markus Koehnen upheld an arbitrator’s determination that she had jurisdiction over both the complainant and the dispute, consistent with not only the applicable dispute resolution rules but also the administering institution’s enabling legislation. Koehnen J. held that the arbitrator had not taken it upon herself the power to determine membership in a private corporation, had not undertaken any corporate reorganization or attempted any unjustified removal of a right to self-determine membership. Rather, the arbitrator was correct in her determination that claimant’s status and the nature of the dispute fell within her jurisdiction and that of the administering institution which adopted the dispute resolution rules.
Continue reading “Ontario – arbitrator determines complainant’s status as member of respondent and eligible to arbitrate dispute – #346”Ontario – each party argues to have the other party’s candidate appointed arbitrator instead of their own – #345
Still seized of the appointment process following his earlier decision to refer the parties to arbitration, Mr. Justice Jonathan Dawe in King Valley Estates Inc. v. Wong et al., 2020 ONSC 3950 accepted to grant Defendants’ application to appoint a candidate initially proposed, but now resisted, by Plaintiff. Despite months of opportunity and diligent efforts by Defendants, the parties returned before Dawe J. each proposing that the other’s candidate be named. Both candidates were “eminently qualified”, acceptable to both parties and not under “any disqualifying conflict”. Due to advantages perceived by Plaintiff’s candidate’s lower rate and cap on fees, Dawe J. expressed readiness to appoint that candidate at Defendants’ request subject to (i) re-confirmation of his interest and (ii) a schedule acceptable to Defendants.
Continue reading “Ontario – each party argues to have the other party’s candidate appointed arbitrator instead of their own – #345”