In Prairie Roadbuilders Limited v. Flatiron-Dragados-Aecon-Lafarge, A Joint Venture, 2019 ABQB 934, Mr. Justice James T. Eamon held that interpretation of an industry standard form contract promised no precedential value due to extensive negotiated changes which had resulted in an “awkward hybrid” and that resolution of the parties’ dispute depended on key portions drafted by the parties. Eamon J. comments also on the role of “boilerplate” and further held that the issues submitted to the arbitrator qualified as discrete questions of law and, having already been referred to and determined in arbitration, could not be re-submitted on appeal to the court under section 44(3) of Alberta’s Arbitration Act, RSA 2000, c A-43.
Continue reading “Alberta – heavily-customized industry standard form contract ineligible for precedential value – #253”Ontario – “very clear” that Court of Appeal lacks jurisdiction to hear appeal of order granting/refusing stay – #252
In Eggiman v. Martin, 2019 ONCA 974, Ontario’s Court of Appeal dismissed an attempt to appeal a motion judge’s decision refusing to stay an action under section 7(1) of Ontario’s Arbitration Act, 1991, SO 1991, c 17. The Court held that section 7(6) was “very clear” that there was no appeal from an order under section 7(1), whether that order grants or refuses the stay, if the arbitration agreement applies to the issue raised in the proceeding. The Court paused to mention that it was not to be seen as agreeing with the analysis engaged in by the motions judge. For the earlier Arbitration Matters note on the decision in first instance, Eggiman v. Martin, 2019 ONSC 1388, see “arbitrator appointment procedure in franchise agreement risks “absurd and likely unfair result””.
Continue reading “Ontario – “very clear” that Court of Appeal lacks jurisdiction to hear appeal of order granting/refusing stay – #252”Alberta – Defendants obtain stay after filing defence once they discover contract contained arbitration clause – #251
In Obcorp Holdings Inc v. Mammoet Canada Western Ltd, 2019 ABQB 960, Master B.W. Summers stayed litigation in favour of Defendants who, in “particularly unique” circumstances, had already pleaded to the action but did so unaware of the arbitration clause. Based on uncontradicted evidence, Defendants had acted promptly upon learning of the arbitration clause included in an updated version of their contract communicated by Plaintiff during the document discovery phase and had proposed that the few court pleadings be used to frame the issues in arbitration.
Continue reading “Alberta – Defendants obtain stay after filing defence once they discover contract contained arbitration clause – #251”Saskatchewan – arbitral board created by statute subject to access to information legislation procedures – #250
In 605499 Saskatchewan Ltd. v. Rifle Shot Oil Corp., 2019 SKCA 133, the Saskatchewan Court of Appeal held that an arbitration board, created by legislation, qualified as a government institution under Saskatchewan regulation and was subject to access to information rules and procedure. The decision reminds parties that the documents they file during their dispute resolution process may be subject to additional legislation preventing or facilitating their disclosure. The Court provided an express caution, indicating that it did not endorse the arbitration board’s conclusion that documents filed with the arbitration board were, as a category, always exempt from production.
Continue reading “Saskatchewan – arbitral board created by statute subject to access to information legislation procedures – #250”Québec – word inserted only in French version of standard form construction contract makes arbitration mandatory – #249
In Construction Larivière Ltée v. Pomerleau Inc., 2019 QCCS 5410, Madam Justice Dominique Goulet held that the word French word “peut” (“may” in English), when read in context with the word “exiger” (“require” in English), justified qualifying the agreement to arbitrate as mandatory rather than a possibility. The French word “exiger” does not appear in the English equivalent of the same standard form contract. Goulet J. also held that the ten (10) day delay in which to initiate arbitration was a strict one. Though the undertaking was mandatory, the arbitral party willing to proceed was too late in doing so and she denied the application to refer the parties to arbitration.
Continue reading “Québec – word inserted only in French version of standard form construction contract makes arbitration mandatory – #249”B.C. – Court of Appeal provides summary of principles applicable in appeals of arbitration awards – #248
In MSI Methylation Sciences, Inc. v. Quark Venture Inc., 2019 BCCA 448, B.C.’s Court of Appeal upheld an award, agreeing with the chambers judge that the arbitrator had not breached natural justice by allegedly failing to give the losing party an opportunity to address a theory of damages used in the award. The Court held that the alleged error did not raise a distinction of sufficient substance to render the arbitration process unfair. The Court also provided a summary of principles applicable in appeals of arbitration awards. For more on the issues in first instance, see the earlier Arbitration Matters note “B.C. – no arbitral error where arbitrator seeks assistance on legal principles raised in, but beyond, parties’ authorities.
Continue reading “B.C. – Court of Appeal provides summary of principles applicable in appeals of arbitration awards – #248”Ontario – costs of arbitration not recoverable as damages in litigation over breach of settlement arrived at during arbitration – #247
In Arista Homes (Kleinburg) Inc. v. Sarah Igbinedion, 2019 ONSC 7086, Madam Justice Margaret Eberhard held that the costs of an earlier arbitration could not be recovered in subsequent litigation involving breach of a settlement negotiated during that arbitration. Eberhard J. held that such costs had been spoken to by the parties in their settlement and were also not within the discretion of the court to award as costs of the court proceeding alleging breach of the settlement.
Continue reading “Ontario – costs of arbitration not recoverable as damages in litigation over breach of settlement arrived at during arbitration – #247”Supreme Court – guidance for preserving assets in anticipation of execution of award upheld – #246
In the briefest of reasons, a 6:1 majority of the Supreme Court of Canada in International Air Transport Association v. Instrubel, N.V., 2019 SCC 61 dismissed the appeal from the Québec Court of Appeal decision in Instrubel v. Republic of Iraq, 2019 QCCA 78. In doing so, it upheld a successful arbitral claimant’s attempt to garnish funds owed by a third party to respondent pending an application to recognize and enforce its award. For more on the issues, see the earlier Arbitration Matters note “Québec – successful arbitral party seizes assets in hands of third party pending homologation of award”.
Continue reading “Supreme Court – guidance for preserving assets in anticipation of execution of award upheld – #246”Ontario – tests for adequacy of reasons and for remitting awards considered and applied – #245
Mr. Justice David L. Edwards in Wang v. Takhar, 2019 ONSC 5535 determined that an agreement to arbitrate, contained in a more recent contract, applied to the parties’ relationship established prior to that contract and did not eliminate appeals on questions of law. The challenged award lacked adequate reasons on only a single issue and, applying the principles for remitting awards, Edwards J. remitted the issue back to the arbitrator with specific questions as well as authority to re-open the evidence if need be.
In his follow up decision on costs in Wang v. Takhar, 2019 ONSC 6237, and after having considered the parties’ submissions, Edwards J. ordered no costs. Appellant was successful but only on a single issue narrower than the appeal framed initially and Respondent was successful in having the issue remitted back to the arbitrator.
Continue reading “Ontario – tests for adequacy of reasons and for remitting awards considered and applied – #245”Québec – $1 million suretyship ordered for stay of Canadian enforcement pending U.S. annulment – #244
In Lakah v. UBS, 2019 QCCA 1869, the Québec Court of Appeal denied leave to appeal a Superior Court decision ordering an arbitral party, resisting recognition and enforcement in Canada of an award made in the U.S., to post $1 million as suretyship in Canada pending U.S. annulment proceedings. The Superior Court acknowledged that a stay should be granted only exceptionally “because it impedes one of the key goals of arbitration, which is to avoid protracted litigation”. In the circumstances, the grounds alleged in the U.S. annulment proceedings “appeared serious” on their face and merited a stay of the Canadian recognition and enforcement proceedings but, in light of the $150 million ordered in the challenged arbitral award, a suretyship of $1 million was “relatively modest”.
Continue reading “Québec – $1 million suretyship ordered for stay of Canadian enforcement pending U.S. annulment – #244”