[:en]Mr. Justice Herman J. Wilton-Siegel in Alectra Utilities Corporation v. Solar Power Network Inc., 2018 ONSC 4926 determined that addressing jurisdictional issues required contractual interpretation. Recognizing that the former required a correctness standard while the latter required a reasonableness standard, and preferring reasonableness, he deemed it unnecessary to settle on either. His contractual interpretation led him to conclude that the arbitrator was reasonable to assert he had jurisdiction to hear the dispute but unreasonable when he deemed inapplicable a limit on recovery of lost profits. Under section 46(1)3 of Ontario’s Arbitration Act, 1991, SO 1991, c 17, the award’s grant of lost profits qualified as going beyond the scope of the contract and was set aside as “a dispute that the arbitration agreement does not cover or contains a decision on a matter that is beyond the scope of the agreement.” Continue reading “[:en]Ontario – court’s contractual interpretation confirms arbitrator’s jurisdiction to hear dispute but not award lost profits – #117[:]”
[:en]Québec – costs of arbitration incurred post-notice of intention not a claim provable in bankruptcy – #116[:]
[:en]In Proposition de 2295822 Canada Inc., 2018 QCCS 3862, Madam Justice Chantal Corriveau treated the costs of arbitration the same as court costs and applied the case law issuing in different Canadian jurisdictions to exclude the costs of arbitration from qualifying as a claim provable under the Bankruptcy and Insolvency Act, RSC 1985, c B-3 (“BIA”). Though the parties’ agreement to arbitrate, entered into prior to the debtor filing a notice of intention, mentioned the recovery of the costs of the arbitration, the agreement did not quantify them or impose them without condition on the losing party. Rather, the agreement merely gave the arbitrator jurisdiction to award them should she so decide and to do so in an amount subject to her determination. Continue reading “[:en]Québec – costs of arbitration incurred post-notice of intention not a claim provable in bankruptcy – #116[:]”
[:en]Manitoba – court refuses leave to appeal valid issues raised for first time on appeal or lacking evidence – #115[:]
[:en]In SG Ceresco Inc. v. BroadGrain Commodities Inc., 2018 MBQB 120, Madam Justice Canace Grammond sent several, distinctive messages to parties applying for leave to appeal under section 44(2) of Manitoba’s The Arbitration Act, CCSM c A120. The messages speak to parties who fail or forget to adjust the pre-established procedural rules they adopt, who do not raise valid arguments earlier before the arbitration tribunal or who apply to the court without sufficient evidence in support of issues raised. Her messages also address the proof and effect of standard form contracts, allegations of a reasonable apprehension of bias and the need to demonstrate the alleged importance to the parties of an issue. Continue reading “[:en]Manitoba – court refuses leave to appeal valid issues raised for first time on appeal or lacking evidence – #115[:]”
[:en]Québec – Court of Appeal upholds quashing arbitral party’s seizure of assets before award’s recognition/enforcement, award may also raise issue of public order – #114[:]
[:en]In deciding whether to grant leave to appeal an applications judge’s order, Mr. Justice Robert M. Mainville in Heft Family Law Inc. v. Alkhalafawi, 2018 QCCA 1262 set out the limits of a procedure available to arbitral parties in Québec looking to ensure recovery of their awards and the statutory framework for arbitrating fee disputes which exist in many self-governing professional orders in Québec. The reasons also anticipate a decision, to issue on the merits in the future, regarding Defendant’s argument that an arbitration award granting a contingency fee in family law matters is unenforceable as contrary to public order under article 646 of Québec’s Code of Civil Procedure, CQLR c C-25.01 (“C.C.P.”).
Continue reading “[:en]Québec – Court of Appeal upholds quashing arbitral party’s seizure of assets before award’s recognition/enforcement, award may also raise issue of public order – #114[:]”
[:en]Québec – court telephones its own choice of potential candidates during court hearing to appoint arbitrator – #113[:]
[:en]In Gestion PMOD Inc. v. 9E Bit (2015) Inc., 2018 QCCS 3594, Mr. Justice Jean-Guy Dubois demonstrated the court’s efforts to assist arbitral parties advance with their chosen form of dispute resolution. Dubois J. not only clarified the nature of each parties’ position to their dispute before granting Plaintiff’s motion to appoint an arbitrator but placed two (2) telephone calls during the court hearing to a pair of candidates of his own choosing and, confirming the second candidate’s acceptance and rate, appointed him as arbitrator. Dubois J. also closed his reasons with a clearly defined, non-binding obiter dictum section in which he articulated what he had determined was the scope of the dispute and the parties’ respective positions. Continue reading “[:en]Québec – court telephones its own choice of potential candidates during court hearing to appoint arbitrator – #113[:]”
[:en]Alberta – court applies its “unique” legislation to stay arbitration, prevent manifestly unfair/unequal treatment – #112[:]
[:en]Combining Alberta’s “unique” Arbitration Act, RSA 2000, c A-43, and its Judicature Act, RSA 2000, c J-2, Mr. Justice John D. Rooke, Associate Chief Justice, in Canadian Natural Resources Limited v. Flatiron Constructors Canada Limited, 2018 ABQB 613, granted a stay of the parties’ arbitration but only until further order of the court. Rooke ACJ determined that the circumstances triggered the application of the Arbitration Act’s section 6(c) authorization to intervene in order to prevent “manifestly unfair or unequal treatment of a party to an arbitration agreement”. In granting the order, Rooke ACJ acknowledged that other jurisdictions might not provide the same order as Alberta’s legislation and that legislation different from Alberta’s was “not helpful”. Continue reading “[:en]Alberta – court applies its “unique” legislation to stay arbitration, prevent manifestly unfair/unequal treatment – #112[:]”
[:en]Ontario – court refuses partial summary judgment for recognition and enforcement of award which overlaps alternative breach of contract claim – #111[:]
[:en]Madam Justice Andra Pollak in “Sanokr-Moskva” LLC v. Tradeoil Management Inc., 2018 ONSC 2967 decided that a plaintiff’s principal claims for recognition and enforcement of an international commercial award must be heard on the merits at the same time as plaintiff’s alternative claims for breach of contract. Agreeing that partial summary judgment should be considered a rare procedure reserved for issues that may be readily bifurcated, Pollak J. sent the parties to trial on the merits of both recognition and enforcement and breach of contract. Pollak J.’s caution is of particular relevance to arbitration counsel considering whether to combine, in one court application, claims for recognition and enforcement of arbitration awards and other claims. Continue reading “[:en]Ontario – court refuses partial summary judgment for recognition and enforcement of award which overlaps alternative breach of contract claim – #111[:]”
[:en]Québec – bankruptcy proceedings stayed pending arbitration on merits of creditor’s claim – #110[:]
[:en]Mr. Justice Pierre C. Bellavance in Syndic de Station touristique Massif du Sud (1993) Inc., 2018 QCCS 3605 suspended the court’s determination of a creditor’s application for a bankruptcy order under the Bankruptcy and Insolvency Act, RSC 1985, c B-3 (“BIA”) pending the result of an imminent arbitration on the merits between the creditor and debtor. Though the debtor applied for the immediate dismissal of the creditor’s court application, arguing that the highly publicized litigation harmed its operations, Bellavance J. exercised his discretion under the BIA to suspend the court process. Bellavance J. did so because the court was not the appropriate forum for doing so and the parties were soon to proceed on the merits before the arbitration tribunal having jurisdiction. The forthcoming arbitration award would soon resolve the court litigation. Continue reading “[:en]Québec – bankruptcy proceedings stayed pending arbitration on merits of creditor’s claim – #110[:]”
[:en]Alberta – Court of Appeal discourages serial challenges, notes certain litigation environments make experienced arbitrators bias-resistant – #109[:]
[:en]In Driscoll v. Hautz, 2018 ABCA 272, Mr. Justice Frans Slatter discouraged serial challenges to arbitration awards and distinguished dissatisfaction with an award from valid grounds justifying a court’s intervention. Slatter J.A. also reassured litigants that arbitrators experienced in family law disputes, like judges, could resist falling into bias if ever exposed to “exaggerated or extravagant allegations of misconduct”. In the underlying arbitration, the arbitrator had merely recorded mention of an isolated pair of exchanges made and gave no indication of having been influenced by either of the allegations. Continue reading “[:en]Alberta – Court of Appeal discourages serial challenges, notes certain litigation environments make experienced arbitrators bias-resistant – #109[:]”
[:en]Québec – arbitrator appointment process gives rise to reasonable apprehension of bias – #108[:]
[:en]Madam Justice Geneviève Marcotte in AEC Symmaf Inc. v. Poirier, 2018 QCCA 916 held that parties to an arbitration agreement must be explicit when choosing to arbitrate their oppression remedy and that a stay will still be refused if other claims before the court remain intertwined with and cannot be reasonably separated from the oppression remedy. Marcotte J.A. also agreed with the applications judge, Mr. Justice David R. Collier in Poirier v. AEC Symmaf Inc., 2018 QCCS 2946, that the arbitrator’s appointment for an oppression remedy could not be given exclusively to the Board of Directors of the corporation which is the object of the oppression remedy. Doing so submits the dispute to an arbitrator chosen by only one party to the dispute. Continue reading “[:en]Québec – arbitrator appointment process gives rise to reasonable apprehension of bias – #108[:]”