Relying on his inherent powers and without reference to the provisions applicable to arbitration, Mr. Justice Jocelyn Geoffroy in 9338-3941 Québec inc. v. 9356-2379 Québec inc., 2019 QCCS 4226 ordered the parties (i) to appoint an arbitrator from a list of five (5) sent earlier by Plaintiff rather than appoint one himself and (ii) to complete their arbitration by year’s end. Geoffroy J. also issued a safeguard order for payment of commercial rent owing going forward but refrained from dealing with past months, stating that retroactive payments were within the arbitrator’s jurisdiction.
Continue reading “Québec – court orders parties to agree on arbitrator from plaintiff’s list rather than appoint one itself – #233”Alberta – court orders which advanced arbitration set aside due to irregular service outside of jurisdiction – #232
In Acciona Infrastructure Canada Inc v. Posco Daewoo Corporation, 2019 ABCA 241, Alberta’s Court of Appeal set aside ex parte orders which validated ex juris service, appointed arbitrators and consolidated arbitrations due to Plaintiff’s non-compliance with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters and service ex juris under Alberta Rules of Court, Alta Reg 124/2010. Acknowledging Plaintiff’s frustration with Defendant’s procedural responses and the practical effect of adding to the delays, the Court declined to retroactively validate irregular service due to significant deficiencies in service.
Continue reading “Alberta – court orders which advanced arbitration set aside due to irregular service outside of jurisdiction – #232”Ontario – court revives litigation dismissed on consent when parties do not proceed with arbitration – #231
In Mishukov v. Fatoullaeva, 2019 ONSC 5550, Mr. Justice Grant R. Dow revived litigation which had been dismissed on consent by a court order in favour of arbitration. Despite having agreed to submit to arbitration, the parties never completed the arbitration in the agreed upon time frame and Defendants claimed that the arbitration could no longer proceed, Applying equitable estoppel, Dow J. determinined that a party which chooses to treat its agreement as subsisting cannot later claim non-performance. Dow J. held that a consent order dismissing an action was not a judicial determination of the dispute but only elevated the parties’ consent.
Continue reading “Ontario – court revives litigation dismissed on consent when parties do not proceed with arbitration – #231”Ontario – court adopts baseball arbitration to resolve disputes in document discovery plan – #230
In Sullivan v. Northwood Media Inc., 2019 ONSC 9, Master Donald E. Short provided litigants with a novel approach to resolving disputes over discovery plans, a procedural step imposed by Ontario’s Rules of Civil Procedure, RRO 1990, Reg 194. Expressly adopting the approach of “baseball style” arbitration, Master Short required that the litigants complete their discussions in light of detailed observations he provided in his reasons and, failing agreement, return to court with their respective proposals as to the most practical and reasonable approach. Absent the most unusual circumstances, the court would not “split the difference” but choose one of the competing alternatives.
Continue reading “Ontario – court adopts baseball arbitration to resolve disputes in document discovery plan – #230”Québec – arbitrator may have default jurisdiction to grant leave to institute derivative action despite legislation assigning it to court – #229
In Gestion Michel Gagné inc. v. Gaston Gagné inc., 2019 QCCS 3260, Mr. Justice Simon Hébert declined to hear a motion for leave to institute a derivative action if doing so would encroach on an arbitrator’s jurisdiction to consider that same motion. The corporate legislation which permitted the proposed derivative action stipulated that an application for leave be submitted to the Superior Court. Since the proposed derivative action also included claims subject to arbitration, Hébert J. determined that the motion for leave was best heard at the same time as the motion to refer the parties to arbitration.
Continue reading “Québec – arbitrator may have default jurisdiction to grant leave to institute derivative action despite legislation assigning it to court – #229”Ontario – no binding settlement agreement means no binding agreement to arbitrate settlement dispute – #228
In Rubner v. Rubner, 2019 ONSC 4110, Mr. Justice Laurence A. Pattillo dismissed party M’s application to appoint an arbitrator, determining that the evidence failed to demonstrate that party M and party J had entered into a binding settlement agreement. Consistent with that determination, he also granted party J’s application to set aside party M’s notice to arbitrate because, in the absence of a settlement, there was no agreement to arbitrate. The case is a less common instance of a court determining on “a superficial examination of the evidence” that the principal contract was non-existent and, with it, the agreement to arbitrate.
Continue reading “Ontario – no binding settlement agreement means no binding agreement to arbitrate settlement dispute – #228”Ontario – summary judgment motion opportunity for arbitrator to determine issues in favour of respondent – #227
In Canada Bread v. Mallot Creek, 2019 ONSC 2578, Madam Justice Bernadette Dietrich upheld an arbitrator’s decision to dismiss one party’s motion for summary judgment but then also make a final determination of a key issue in favour of the other party. Dietrich J. determined that, if the sufficiency of the record permits the arbitrator to decide the motion, it is “axiomatic” that the arbitrator resolve the issue raised by the motion in favour of either party. The parties selected the mediator to serve as arbitrator for their settlement agreement should a dispute arise in the interpretation of the settlement.
Continue reading “Ontario – summary judgment motion opportunity for arbitrator to determine issues in favour of respondent – #227”Saskatchewan – limited scope to enjoin beneficiary from drawing on letter of credit despite arbitration – #226
In Veolia Water Technologies, Inc. v. K+S Potash Canada General Partnership, 2019 SKCA 25, Saskatchewan’s Court of Appeal expressly signalled its willingness to grant an injunction against a beneficiary attempting to draw on a letter of credit if the draw breached an express contractual restriction in the main contract. Having commenced arbitration, applicant sought the injunction until a court or an arbitral tribunal had determined the beneficiary’s right to draw on the letter. The Court recognized the autonomy of the letter of credit from the main contract and acknowledged a financial institution’s limited concern regarding whether to pay out on the draw made under its letter of credit.
Continue reading “Saskatchewan – limited scope to enjoin beneficiary from drawing on letter of credit despite arbitration – #226”B.C. – no special rules for self-represented parties in arbitration beyond natural justice – #225
In 0941187 B.C. Ltd. v 0927613 B.C. Ltd., 2019 BCSC 1649, Mr. Justice Gregory T.W. Bowden dismissed a litigant’s attempt to dispute claims on the basis of an alleged estoppel arising from an earlier arbitral award. Bowden J.’s brief treatment of the estoppel argument underlines that awards only resolve the issues submitted in the arbitration in which the awards was made. The decision also refers back to an earlier decision of the Court of Appeal, involving the same parties, which held that, despite some latitude, no special rules apply for self-represented arbitral parties beyond basic natural justice requirements of an impartial arbitrator, notice, an opportunity to tender evidence, make representations and to respond to the other side’s case.
Continue reading “B.C. – no special rules for self-represented parties in arbitration beyond natural justice – #225”Federal – confidentiality of arbitration must be re-established independently on appeal to court – #224
In a pair of decisions, the Federal Court in Canadian National Railway Company v. Gibraltar Mines Ltd., 2019 FC 225 and in Canadian National Railway Company v. Gibraltar Mines Ltd., 2019 FC 963 held that there is no general principle that confidentiality of arbitration proceedings carries over to court when a party appeals the arbitral award. Even if confidentiality was imposed by statute for the purpose of the arbitration, absent specific wording in the statute, confidentiality does not automatically extend into the courts which are open and public.
Continue reading “Federal – confidentiality of arbitration must be re-established independently on appeal to court – #224”