In Sky Solar (Canada) Ltd. v. Economical Mutual Insurance Company, 2019 ONSC 4165, Mr. Justice Peter J. Cavanagh issued detailed trial reasons relying on key findings of fact made in arbitration involving only plaintiff. Defendants in the court litigation – an insurer of respondent in the arbitration and respondent’s insurance broker – agreed with plaintiff that those facts were binding and would not be relitigated. Plaintiff had been unsuccessful in the arbitration but still agreed to re-purpose those findings for use by Cavanagh J. in determining liability against the non-parties. The agreement demonstrates that non-parties – and unsuccessful arbitral parties – need not expect different findings if the same evidence is presented to a new decision maker.
Continue reading “Ontario – non-parties to arbitration agree arbitrator’s findings of facts binding for facts common to their litigation – #223”Québec – parties ordered to mediate according to express, imperative agreement even if dispute not arbitrable – #222
In Capital JPEG Inc. v. Corporation Zone B4 Ltée, 2019 QCCS 2986, Mr. Justice Babak Barin enforced the express terms of the shareholders’ agreement to mediate before they arbitrated, staying the court litigation pending the result of the mediation. The court litigation sought dissolution of a corporation and, despite considering that dissolution could be arbitrated, Barin J. refrained from referring the parties to arbitration as that stage had not yet been reached or requested. He held that parties could agree to mediate topics which could not also be arbitrated.
Continue reading “Québec – parties ordered to mediate according to express, imperative agreement even if dispute not arbitrable – #222”B.C. – refusal to grant access to details of counsel billing qualified as denial of natural justice in costs award – #221
In 0718698 B.C. Ltd. v. Ogopogo Beach Resorts Ltd., 2019 BCSC 1503, Mr. Justice S. Dev Dley remitted a costs awards back to the arbitrator so that the party ordered to pay 75% of actual legal fees would have a meaningful opportunity to challenge the other party’s counsel’s accounts. Failure to order disclosure of counsel’s accounts qualified as a denial of natural justice because it prevented the party from undertaking an informed analysis of whether the fees were reasonable.
Continue reading “B.C. – refusal to grant access to details of counsel billing qualified as denial of natural justice in costs award – #221”Alberta – decision illustrates role of interim costs to ensure arbitration process moves forward – #220
In Alanen v. Elliott, 2019 ABCA 290, Madam Justice Elizabeth Hughes reiterated that the Court of Appeal had no jurisdiction to grant permission to appeal an arbitration award “outright”, its jurisdiction limited to appeals of Court of Queen’s Bench decisions under sections 44, 45 and 47 of Alberta’s Arbitration Act, RSA 2000, c A-43. By declining to deal with the initial appeal from an interim costs award, the chambers judge had issued no decision subject to the Court of Appeal’s jurisdiction under that legislation. The reasons also illustrate the role of interim costs to ensure that arbitration process moves forward while treating parties equally and fairly and giving parties opportunity to present their case and respond to the other party’s.
Continue reading “Alberta – decision illustrates role of interim costs to ensure arbitration process moves forward – #220”Saskatchewan – litigants’ autonomy to consent to drop dead orders not contrary to public policy – #219
In Gustafson v. Future Four Agro Inc., 2019 SKCA 68, Saskatchewan’s Court of Appeal upheld the litigants’ agreement to dismiss a party’s Statement of Defence and Counterclaim for failure to complete an agreed-upon procedural step by the date set. The Court held that such agreements are “Contracts” which can be enforced by a consent order and do not constitute contracting out of legislation designed to protect the public interest. The reasoning can apply by analogy to procedural agreements made and enforced in arbitration.
Continue reading “Saskatchewan – litigants’ autonomy to consent to drop dead orders not contrary to public policy – #219”Ontario – “agree to be bound” less effective than “final and binding” in excluding appeal – #218
In Diorite Securities v. Trevali, 2019 ONSC 4225, Mr. Justice Laurence A. Pattillo held that determining whether parties intended to exclude a right of appeal required analysis of both the actual wording in their agreement and the circumstances surrounding its negotiation. The application for leave to appeal involved an agreement entered into before Ontario’s Arbitration Act, 1991, SO 1991, c 17, a time at which no appeal was provided on even questions of law. The 1990 agreement required Pattillo J. to consider whether the parties’ wording disclosed an intention to allow or deny appeals on a question of law and whether the award contained a “rare” extricable question of law.
Continue reading “Ontario – “agree to be bound” less effective than “final and binding” in excluding appeal – #218”B.C. – agreement to accept summary reasons is not acceptance of insufficient reasons – #217
Despite the parties’ agreement that the arbitrator provide only summary reasons, Mr. Justice J. Christopher Grauer in Nolin v. Ramirez, 2019 BCSC 934 determined that the arbitrator’s brief reasons were insufficient to withstand review on a standard of reasonableness. Grauer J. held that even summary reasons require more than just a conclusion. Because he lacked jurisdiction to substitute his own decision for that of the arbitrator and, in the event, could not say that the arbitrator had gotten the issues wrong, he remitted the issues to the arbitrator for reconsideration.
Continue reading “B.C. – agreement to accept summary reasons is not acceptance of insufficient reasons – #217”Manitoba – willingness to arbitrate must be reciprocated and not just “most efficient” – #216
In considering interim measures sought in shareholder oppression litigation, Madam Justice Candace Grammond in Gershkovich et al. v. Sapozhnik et al., 2019 MBQB 115 declined to order the parties to undertake arbitration. Despite Respondents’ willingness to have the shareholder dispute decided in, what Respondents believed was, “the most efficient manner”, Grammond J. noted that Respondents did not allege the court lacked jurisdiction or the parties were bound by a pre-existing agreement to arbitrate. Grammond J. did confirm that she would hear the oppression remedy unless the parties consented to arbitration and Respondents applied to compel arbitration.
Continue reading “Manitoba – willingness to arbitrate must be reciprocated and not just “most efficient” – #216”Alberta – creature of statute, non-party can initiate arbitration where same legislation imposes its obligations and arbitration – #215
In TransAlta Generation Partnership v. Balancing Pool, 2019 ABCA 318, the Alberta Court of Appeal upheld dismissal of a challenge to arbitration initiated by an entity which was created by legislation but was not party to contracts stemming from the legislation. The Court determined that the statutory scheme which created the non-party did not limit its right to dispute its significant financial obligations to compensate the contracting parties in certain disputes. The Court’s handling of the implied exclusion rule lends itself to other legislative schemes created in the public interest.
Continue reading “Alberta – creature of statute, non-party can initiate arbitration where same legislation imposes its obligations and arbitration – #215”Ontario – administering institution granted leave to intervene in challenge to appellate arbitral award – #214
In Re/Max All-Stars Realty Inc. v. Real One Realty Inc., 2019 ONSC 4956, Master Michael P. McGraw granted leave to an real estate industry association to intervene in a challenge to an award issuing from a process it administered. Master McGraw held that the association was uniquely placed to make a useful contribution to the determination of the issue regarding the history/purposes of the arbitration rules prohibiting court litigation and how interpretation of those prohibitions may affect other arbitral provisions. Contrast this reasoning/result with HZPC Americas v. Skye View Farms, 2018 PESC 47 (CanLII) which determined that an arbitral institution would not contribute anything useful to an appeal involving excess of jurisdiction of the institution’s arbitration rules. See the Arbitration Matters note “P.E.I. – arbitral institution denied leave to intervene in jurisdiction-based challenge to arbitral award”.
Continue reading “Ontario – administering institution granted leave to intervene in challenge to appellate arbitral award – #214”