In Williams v. Amazon.com, Inc., 2020 BCSC 300, Madam Justice Karen Horsman stayed a proposed class proceeding for non-consumer claims seeking damages under Canada’s Competition Act, RSC 1985, c C-34 based on a standard form contract which submitted those claims to arbitration administered in the U.S. and subject to U.S. laws. Respecting competence-competence, Horsman J. recognized several issues affecting jurisdiction but deferred them to the arbitrator. She acknowledged the “real prospect” that a U.S. arbitrator (i) could decide that such claims were not available under U.S. substantive law and (ii) might lack jurisdiction to award the claimed damages but those were not sufficient to hold that the arbitration agreement was void, inoperative or incapable of performance. In addition, Horsman J. held that the agreement to arbitrate overcame any unconscionability concerns raised in Heller v. Uber Technologies Inc., 2019 ONCA 1.
Continue reading “B.C. – stay granted despite anticipation that arbitrator applying U.S. law might not be able to grant claims – #283”Ontario – failing to file application to stay and taking significant steps in litigation justifies refusal of stay – #282
In Paulpillai v. Yusuf, 2020 ONSC 851, Madam Justice Judy A. Fowler Byrne refused to stay litigation despite no challenge being made to the validity of the arbitration agreement. Rather, she held that the parties requesting the stay had not only omitted to bring a motion to stay but had waived the benefit of the agreement by having taken significant steps in the litigation to date.
Continue reading “Ontario – failing to file application to stay and taking significant steps in litigation justifies refusal of stay – #282”Alberta – costs are discretionary, not a discrete legal issue submitted to arbitrator, must be exercised judicially – #281
In Allen v. Renouf, 2020 ABQB 98, Mr. Justice C. Scott Brooker held that an arbitral party which ignores an opportunity to present its case cannot argue that it was treated manifestly unfairly. Brooker J. dismissed Applicant’s attempt to challenge a costs award which he categorized as a discretionary decision but equally disagreed with Respondent’s argument that costs were a discrete legal issue expressly submitted to the arbitrator and shielded from appeal under section 44(3) of Alberta’s Arbitration Act, RSA 2000, c A-43. He did acknowledge that costs awards may raise a question of law if the discretion was not exercised judicially.
Continue reading “Alberta – costs are discretionary, not a discrete legal issue submitted to arbitrator, must be exercised judicially – #281”Ontario – Olympic athletes cannot relitigate sports arbitration dispute as tort action – #280
In Sokolov v. The World Anti-Doping Agency, 2020 ONSC 704, Mr. Justice Mario D. Faieta granted summary judgment on a jurisdictional issue, dismissing a tort claim made by athletes denied entry to the 2016 Olympic Games in Rio. Faieta J. held that the athletes sought to litigate the same factual matrix which they had unsuccessfully arbitrated before the Court of Arbitration for Sport and that the “essential character” of the dispute was within the scope of the arbitration agreements. Though he considered the arbitration agreements to be more like arbitration imposed by statute or adhesion contracts, he expressly considered the impact on international sports if he signalled a willingness of domestic courts to resolve matters otherwise reserved for more specialized tribunals.
Continue reading “Ontario – Olympic athletes cannot relitigate sports arbitration dispute as tort action – #280”Québec – parties urged to mediate/arbitrate to ‘avoid bogging down’ in ‘complex and costly judicial procedures’ – #279
In Équipements de gardien de but Michel Lefebvre inc. v. Sport Maska inc., 2020 QCCS 44, Mr. Justice Frédéric Bachand dismissed an application for a provisional injunction but, in doing so, prompted the parties to seize the opportunity, already consented to in their contract, to undertake mediation and arbitration ‘to avoid bogging themselves down in complex and costly judicial procedures’. Bachand J. also urged the parties to engage in less formal exchanges of information which may allow them to find a faster solution to their dispute.
Continue reading “Québec – parties urged to mediate/arbitrate to ‘avoid bogging down’ in ‘complex and costly judicial procedures’ – #279”Ontario – agreement to arbitrate disputes involving “construction, meaning or effect” does not cover “enforcement” – #278
In Illumina Holdings Inc. v. Brand Alliance Inc. et al, 2020 ONSC 1053, Mr. Justice Cory A. Gilmore gave effect to an agreement to arbitrate disputes involving “construction, meaning or effect” of an agreement and refused to stay litigation based on enforcement of the agreement. Gilmore J. held that the claims involved “a straightforward contract case” and that breach of an enforceable agreement was not the same as the meaning of that agreement. Demonstrating the courts’ own readiness and flexibility to provide resolution of disputes, Gilmore J. then went on to determine that the disputes did not warrant a trial and issued orders on the merits of the claims made.
Continue reading “Ontario – agreement to arbitrate disputes involving “construction, meaning or effect” does not cover “enforcement” – #278″Québec – rule shielding employee with Québec residence/domicile from litigating outside province applies to arbitration – #277
In Chung v. Merchant Law Group, 2020 QCCS 398, Mr. Justice Sylvain Lussier held that a clause, removing jurisdiction from the courts of Québec for an employment dispute, had no effect because it violated a rule of public order in Québec’s Civil Code of Québec, CQLR c CCQ-1991. Though the case dealt with a clause by which the parties submitted any issues to the exclusive jurisdiction of Saskatchewan’s Court of Queen’s Bench, the rule has application to related attempts to submit similar employment relationships to arbitration.
Continue reading “Québec – rule shielding employee with Québec residence/domicile from litigating outside province applies to arbitration – #277”Alberta & Manitoba – courts take different paths to different outcomes following same S.C.C. case – #276
In Cove Contracting Ltd v. Condominium Corporation No 012 5598 (Ravine Park), 2020 ABQB 106, Mr. Justice Grant S. Dunlop held that Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 had not changed the standard of review for commercial arbitrations from reasonableness to correctness and denied leave to appeal. In Buffalo Point First Nation et al. v. Cottage Owners Association, 2020 MBQB 20, Mr. Justice Chris W. Martin held that Vavilov had changed the standard and granted leave to appeal. Dunlop J. postponed his hearing to give the parties the opportunity to argue the role of Vavilov. Martin J. issued his decision on leave to appeal without hearing from the parties but invited them to submit argument for the merits of the appeal.
Continue reading “Alberta & Manitoba – courts take different paths to different outcomes following same S.C.C. case – #276”Ontario – majority shareholder referring contract interpretation to arbitration is not oppressive conduct – #275
In Richcraft Homes Ltd. v. Urbandale Corporation et al., 2020 ONSC 411, Mr. Justice Robert J. Smith dismissed a minority shareholder’s action which alleged oppression based on a majority shareholder requesting a legal opinion favourable to its interests and then submitting the interpretation to arbitration. Smith J. held that any party to a commercial agreement, including a majority shareholder, is entitled to seek a legal opinion concerning interpretation its rights under a contract and, instead of acting illicitly on any interpretation, refer interpretation of the contract to arbitration.
Continue reading “Ontario – majority shareholder referring contract interpretation to arbitration is not oppressive conduct – #275”Ontario – reliance on theories not pleaded/argued are errors and have ripple effects throughout award – #274
In Tall Ships Landing Devt. Inc. v. City of Brockville, 2019 ONSC 6597, Madam Justice Sally Gomery held that deference for arbitrators and discretion over procedural matters do not displace the imperatives of fairness and reliability which underpin arbitration. Despite a standard of reasonableness applicable to commercial arbitration awards, reliance on a legal theory not advanced or argued by the parties is an error of law and leads to conclusions outside the arbitrator’s mandate. Errors early in the award undermined later, otherwise reasonable determinations made in the same award but which rested on those earlier determinations. Rather than vary, set aside or remit the awards with directions, Gomery J. solicited submissions to determine the appropriate remedy at a future hearing.
Continue reading “Ontario – reliance on theories not pleaded/argued are errors and have ripple effects throughout award – #274”