In Milner v. Clean Harbors Industrial Services Canada, Inc., 2020 BCSC 68, Mr. Justice Anthony Saunders dismissed argument by a late-filing petitioner that the title “Partial Award” (i) created “inherent uncertainty” and (ii) justified calculating time to seek leave to appeal from the later, final award. Saunders J. held that the title “Partial Award” was not ambiguous and petitioner demonstrated no confusion as to his rights determined under that award. Saunders J. held that, of all the factors applicable to exercising his discretion to extend that time, the interests of justice subsumed the others and did not favour petitioner.
Continue reading “B.C. – period in which to appeal partial award runs from date of that award, not the later, final award – #263”Ontario – decision maker’s position in judicial hierarchy justifies no reason for different review standard – #262
In ATS Automation Tooling Systems Inc. v. Chubb Insurance Co., 2019 ONSC 5073, Madam Justice Sandra Nishikawa upheld a Master’s decision to dismiss plaintiffs’ motion to stay their own litigation. The facts did not confirm that the arbitration was active and, as of the date of the appeal hearing, arbitration had not been formalized and the limitation period in which to do so had expired. Nishikawa J. agreed with earlier case law there was “no compelling reason for adopting differing standards of review on appeal depending solely on the place in the judicial hierarchy occupied by the decision maker whose decision is under appeal”.
Continue reading “Ontario – decision maker’s position in judicial hierarchy justifies no reason for different review standard – #262”B.C. – evidence of fraud need not be ‘new’ to be admissible on post-decision challenge – #261
The fact that evidence of fraud existed at the time of hearing might justify its rejection as ‘new’ evidence on a post-decision challenge but cannot justify rejecting it as evidence of fraud. In McCallum v. Mooney, 2019 BCSC 1938, Madam Justice Nitya Iyer granted a defendant’s application to set aside a default decision, even after having unsuccessfully challenged it by internal appeal, due to claimant allegedly withholding a key document during the initial hearing on the merits.
Continue reading “B.C. – evidence of fraud need not be ‘new’ to be admissible on post-decision challenge – #261”Federal – final offer arbitration characterized as “an intentionally high risk form of arbitration” – #260
Madam Justice Ann Marie McDonald in Canadian National Railway Company v. Gibraltar Mines Ltd, 2019 FC 1650 demonstrated that the “unique nature” of final offer arbitration distinguished it from “ordinary commercial arbitration” and informed expectations of procedural fairness. The dissatisfied party objected to the administering institution’s decision to dismiss a preliminary application but provide reasons only after the arbitration concluded. McDonald J. held that the decision was not part of the FOA process under challenge and did not affect the fairness of the process. McDonald J. also issued a permanent order declaring certain documents, created for the arbitration, to remain confidential.
Continue reading “Federal – final offer arbitration characterized as “an intentionally high risk form of arbitration” – #260”Québec – award treated as “judgment” subject to ten (10) year prescription (limitation) period – #259
In Société générale de Banque au Liban SAL v. Itani, 2019 QCCS 5266, Madam Justice Dominique Poulin held that the longer, ten (10) year prescription (limitation) period applied to recognize and enforce an arbitration award made outside of Québec. Notwithstanding comments to the contrary in Yugraneft Corp. v. Rexx Management Corp., 2010 SCC 19 (CanLII), [2010] 1 SCR 649 based on two (2) of its leading cases originating from Québec, Poulin J. reasoned that, to be coherent, the provisions in the Civil Code of Québec, CQLR c CCQ-1991 should be read to treat an arbitration award as a “judgment”, thereby qualifying it for longer prescription (limitation) period.
Continue reading “Québec – award treated as “judgment” subject to ten (10) year prescription (limitation) period – #259”B.C. – land transfer made during arbitration later voided as fraudulent attempt to defeat creditors – #258
In Balfour v. Tarasenko, 2019 BCSC 2212, knowledge of a pending but unfinished arbitration qualified as one of the facts relevant to a declaration under B.C.’s Fraudulent Conveyance Act, RSBC 1996, c 163 to void a land transfer made during the arbitration and before the final award issued. Though hampered by an incomplete evidentiary record presented by self-represented litigants, Mr. Justice Dennis K. Hori did identify the land transfer as having the effect of delaying, hindering or defeating creditors.
Continue reading “B.C. – land transfer made during arbitration later voided as fraudulent attempt to defeat creditors – #258”Federal – court rules require ship owner as party in admiralty proceedings despite arbitration agreement – #257
In Norstar Shipping and Trading Ltd. v. The Rosy (Ship), 2019 FC 1572, parties to an arbitration disputed the amount of bail to be paid into court to free a ship arrested as security for the claims made in the parties’ arbitration. The ship’s arrest was authorized by the Federal Courts Rules, SOR/98-106 which further required the seizing party to name its other arbitral party, the ship owner, as a party to the litigation. Naming the other party did not qualify as waiver of the arbitration agreement and the parties’ argument before Madam Justice E. Susan Elliott was not considered a breach of any confidentiality agreement regarding the arbitration.
Continue reading “Federal – court rules require ship owner as party in admiralty proceedings despite arbitration agreement – #257”Ontario – sometimes only a single reasonable answer exists under reasonableness standard – #256
In Ontario (Finance) v. Echelon General Insurance Company, 2019 ONCA 629, the Ontario Court of Appeal held that, even when applying a standard of reasonableness, there are occasions in which there is only a single reasonable answer. The Court also considered the role of accumulated decisions issuing by arbitrators under a statutory process in which the decisions are either published or not confidential and whether those decisions bound other parties in later arbitrations.
Continue reading “Ontario – sometimes only a single reasonable answer exists under reasonableness standard – #256”Ontario – court declines to defer costs determination but orders information sent to non-party/arbitrator in related arbitration – #255
In her post-trial costs decision in G.E.X.R. v. Shantz Station and Parrish & Heimbecker, 2019 ONSC 5192, Madam Justice Catrina D. Braid declined to defer determination of court costs in litigation involving GEXR and P&H until a related, ongoing arbitration between GEXR and CN was complete. Ostensibly to pre-empt any potential for double recovery of costs once the arbitration concluded and determined its costs, she also directed that P&H’s cost submissions filed in the court litigation and her reasons on costs be given (i) to CN which was not a party to the court litigation and (ii) to the arbitrator.
Continue reading “Ontario – court declines to defer costs determination but orders information sent to non-party/arbitrator in related arbitration – #255”B.C. – court asserts inherent jurisdiction under insolvency legislation to override arbitration clauses – #254
In Petrowest Corporation v. Peace River Hydro Partners, 2019 BCSC 2221, Madam Justice Nitya Iyer held that mandatory terms of B.C.’s Arbitration Act, RSBC 1996, c 55 do not prevent courts from exercising their inherent jurisdiction to refuse to stay court proceedings where provisions of the Bankruptcy and Insolvency Act, RSC 1985, c B-3 apply. Iyer J. lists a number of factors to consider when exercising that jurisdiction. The reasons and result mark an innovation in how courts balance respect of party autonomy endorsed by arbitral legislation with interests recognized in other legislation. Iyer J. also held that a trustee in bankruptcy is a party to an arbitration agreement when the trustee institutes litigation to enforce the terms of the main contract in which the arbitration agreement appears.
Continue reading “B.C. – court asserts inherent jurisdiction under insolvency legislation to override arbitration clauses – #254”