[:en]In Toronto-Dominion Bank v. Andal Holdings (Moncton) Ltd., 2018 NBCA 68, the New Brunswick Court of Appeal reversed a motions judge’s decision to order an indefinite stay of two motions, including an application to refer the parties to arbitration. Though it agreed with the judge that a key third party ought to be added to the principal court litigation before the court adjudicated motions in that litigation affecting the third party, the Court held that an indefinite stay was unwarranted. The Court also considered that the motions judge could still have proceeded with the application to refer the parties to arbitration. In effect, the court rules of procedure applicable to completing the court litigation were not allowed to delay possible recourse to arbitration. Continue reading “[:en]N.B. – court cannot order indefinite stay of application to refer parties to arbitration – #130[:]”
[:en]Québec – court disallows amendment seeking to add claim subject to arbitration agreement – #129[:]
[:en]In Lashchuk v. Zambito, 2018 QCCS 4553, Mr. Justice Michel A. Pinsonnault affirmed the court’s support for arbitration and disallowed Plaintiff’s application to amend its proceeding to include a dispute covered by a valid arbitration agreement. Analysing the role of wording such as “may”, “shall” and “must” in the parties’ arbitration agreement, Pinsonnault J. accepted that parties’ use of the term “may” can unconditionally grant each other the right to undertake arbitration without rendering their agreement unenforceable or otherwise less obligatory. The use of “may” still allowed Pinsonnault J. to hive off part of a complex dispute and exclude it from the litigation going forward. Continue reading “[:en]Québec – court disallows amendment seeking to add claim subject to arbitration agreement – #129[:]”
[:en]Saskatchewan – court-approved insolvency proposal eliminates tardy arbitral claim – #128[:]
[:en]Invoking the integrity of the Bankruptcy and Insolvency Act, RSC 1985, c B-3 restructuring system and without the need to mention any arbitration legislation, in In Golden Band Resources Inc. (Re), 2018 SKQB 284, Mr. Justice G.A. Meschishnick stayed an arbitration filed by a creditor seeking post-proposal remedies. Meschishnick J. held that a party having both (a) a claim against an asset and (b) knowledge of insolvency proceedings which risks eliminating its claim must alert the debtor, creditors, trustee and the court of that claim, either formally by filing a claim or, at a minimum, giving notice of its position. Drawing parallels to earlier case law under the Companies’ Creditors Arrangement Act, RSC 1985, c C-36, the arbitration qualified as a “proceeding” within the meaning of the BIA and can be stayed. Continue reading “[:en]Saskatchewan – court-approved insolvency proposal eliminates tardy arbitral claim – #128[:]”
[:en]New Brunswick – “reasonable likelihood” applied as “minimal” standard for stay application – #127[:]
[:en]Using “reasonable likelihood” as the “minimal” standard an applicant must meet for a stay, Madam Justice Judy L. Clendening in Knowcharge v. NB Innovation et al., 2018 NBQB 181 stayed litigation involving shareholders, directors and corporations so that the arbitration tribunal could determine its own jurisdiction. Her analysis rested also on the wording of the parties’ agreement to arbitrate which provided that disputes “involving” shareholders and not just “between” shareholders would go to arbitration. That wording was sufficient to include litigation filed by the non-shareholder plaintiff corporation which had signed the arbitration agreement. Continue reading “[:en]New Brunswick – “reasonable likelihood” applied as “minimal” standard for stay application – #127[:]”
[:en]Ontario – court opts for practical solution by appointing existing arbitrator to hear additional dispute – #126[:]
[:en]Mr. Justice Glenn A. Hainey in Sears Canada Inc., et al. (Re), 2018 ONSC 5852 ordered that a purchase price dispute between two parties regarding commercial property be resolved by an arbitrator already appointed by the court under the Companies’ Creditors Arrangement Act, RSC 1985, c C-36 (“CCAA”) to resolve two other disputes between the same parties for the same property. Hainey J. gave effect to the parties’ agreement which anticipated that some of their disputes would serve to offset the cash amount determined for the purchase price dispute. Without mention of any arbitration legislation and relying on the parties’ contract and the court’s authority under the CCAA’s section 11 to “make any order that it considers appropriate in the circumstances”, Hainey J. appointed the existing arbitrator to resolve all three (3) disputes because doing so avoided the additional cost and delay of a “piecemeal fashion”.
Continue reading “[:en]Ontario – court opts for practical solution by appointing existing arbitrator to hear additional dispute – #126[:]”
[:en]B.C. – Court of Appeal reasserts need for only an “arguable case” to justify stay of proceedings – #125[:]
[:en]In Sum Trade Corp. v. Agricom International Inc., 2018 BCCA 379, the B.C. Court of Appeal upheld a stay of court litigation in favour of arbitration, reiterating that, unless a party “clearly” establishes that it is not a party to an arbitration agreement, then the other party seeking a stay need only have an “arguable case” that the prerequisites under section 8(2) of B.C.’s International Commercial Arbitration Act, RSBC 1996, c 233 have been met. The Court noted that, over the years, the prima facie or “arguable case” analysis had been extended from cases involving the validity of arbitration clauses to cases concerning the applicability of such clauses. The Court also cautioned that earlier judicial comments regarding arbitration must be read in light of the increased deference now applied by the courts. Continue reading “[:en]B.C. – Court of Appeal reasserts need for only an “arguable case” to justify stay of proceedings – #125[:]”
[:en]Alberta – court consolidates international and domestic arbitrations without consent of all parties – #124[:]
[:en]In Japan Canada Oil Sands Limited v. Toyo Engineering Canada Ltd, 2018 ABQB 844, Madam Justice Barbara E.C. Romaine held that she had jurisdiction under section 8(1) of Alberta’s International Commercial Arbitration Act, RSA 2000, c I-5 to order the consolidation of an international commercial arbitration and a domestic arbitration involving the three parties even though one of the parties had not consented to consolidation. Romaine J. further held that, in light of the parties’ own contracts and in the circumstances, she ordered consolidation but left identifying the parties as Claimant(s) or Respondent(s) to the arbitrator to be appointed by ADR Institute of Canada Inc. (“ADRIC”). In her analysis, Romaine J. distinguished between consent to arbitrate and consolidation, characterizing the later as a procedural issue. Continue reading “[:en]Alberta – court consolidates international and domestic arbitrations without consent of all parties – #124[:]”
[:en]Québec – Mafia leader’s resolution of real estate dispute qualifies as arbitration – #123[:]
[:en]In Lalli v. Gravel, 2018 QCCS 3927, Mr. Justice Lukasz Granosik accepted that a meeting conducted by a Mafia leader to resolve opposing interests and claims between two individuals over a particular piece of real estate validly qualified as an arbitration. Though unconventional, the constituent elements of the meeting – two individuals with opposing interests or claims summoned to appear before the Mafia leader who, after having heard each, decided in favour of Plaintiff – justified characterizing the meeting as an arbitration. Continue reading “[:en]Québec – Mafia leader’s resolution of real estate dispute qualifies as arbitration – #123[:]”
[:en]Ontario – not-for-profit’s arbitration agreement in by-laws not subject to heightened court scrutiny – #122[:]
[:en]In The Campaign for the Inclusion of People who are Deaf and Hard of Hearing v. Canadian Hearing Society, 2018 ONSC 5445, Mr. Justice Herman J. Wilton-Siegel dismissed arguments that a not-for-profit corporation’s status required the courts to be more vigilant in validating their arbitration provisions and held former members of the not-for-profit corporation to the terms of the arbitration provisions in the by-laws applicable before their loss of membership. Wilton-Siegel J. also held that it was well established that parties by private agreement could submit their oppression claims to arbitration. Continue reading “[:en]Ontario – not-for-profit’s arbitration agreement in by-laws not subject to heightened court scrutiny – #122[:]”
[:en]Alberta – expert determination allows expert to decide questions of mixed fact and law – #121[:]
[:en]In Applied Industrial Technologies, LP v. Sirois, 2018 ABQB 818, Mr. Justice J.T. Eamon distinguished between expert determination and arbitration, holding that, unlike arbitration, the scope of an expert’s mandate and the court’s review depended on contractual interpretation without the benefit of a statutory framework or well-established practices available in arbitration. Despite the challenges, Eamon J. provided a detailed analysis useful in future cases regarding an expert’s ability to decide questions of mixed fact and law and the applicable standard of review. Continue reading “[:en]Alberta – expert determination allows expert to decide questions of mixed fact and law – #121[:]”