In Graham Design Builders LP v. Black & McDonald Limited, 2019 SKQB 161, Mr. Justice G.M. Currie denied leave to appeal on a question of law because the arbitrator’s repeat mention of “in my experience” did not qualify as taking arbitral notice of a practice in the relevant market. Rather, the remarks were “mere passing comments” which did not affect the award based on the factual matrix in evidence and relevant contractual provisions. In a subsidiary analysis, Currie J. did accept that, had one of the challenges qualified as a question of law, he would have considered it important enough to grant leave to appeal by applying a $1 million threshold he identified as ‘significant’ in his one of his earlier decisions.
Continue reading “Saskatchewan – arbitrator’s mentions of “in my experience” insignificant and raise no question of law – #213”Ontario – no forgiving liability or forgetting facts when counsel apologizes in court on client’s behalf – #212
In Pollard Windows Inc. v. 1736106 Ontario Inc., 2019 ONSC 4859, Ontario’s Divisional Court held a litigant to submissions made by its counsel in court, determining that the provisions of Ontario’s Apology Act, 2009, SO 2009, c 3 did not serve to exclude the apology and admission of liability. Because the Apology Act expressly stipulates that it applies to arbitration, the Court’s reasons regarding the combined effect of counsel’s ostensible authority and the characteristics of an apology apply to arbitration as well.
Continue reading “Ontario – no forgiving liability or forgetting facts when counsel apologizes in court on client’s behalf – #212”Alberta – couple unable to litigate property dispute they agreed to delegate to parents – #211
In Mahajan v. Mahajan, 2019 ABQB 495, Mr. Justice Michael J. Lema stayed a divorce proceeding to provide time for the couple’s four (4) parents to resolve a property dispute delegated to them by the couple in their post-separation agreement. Lema J. held that no uncertainty existed regarding who would resolve the dispute but only uncertainty as to how they would do so.
Continue reading “Alberta – couple unable to litigate property dispute they agreed to delegate to parents – #211”Supreme Court – distinctions for service and notice to banks offers guidance for arbitral practice – #210
In 1068754 Alberta Ltd. v. Québec (Agence du revenu), 2019 SCC 37, on appeal from Québec, the Supreme Court of Canada distinguished between two (2) provisions of the Bank Act, SC 1991, c 46 which stipulate how to effectively serve banks with legal proceedings and provide notice.
Continue reading “Supreme Court – distinctions for service and notice to banks offers guidance for arbitral practice – #210”Ontario – pleading to action insufficient to qualify as waiver to request stay – #209
In Khomovych v. Bomar 2 Inc. o/a Colony Park Homes, 2019 ONSC 3982, Madam Justice Mary E. Vallee stayed the action despite Defendant having pleaded to it and Plaintiff’s request for an adjournment so that it could present its motion for summary judgment under section 7(2)5 of Ontario’s Arbitration Act, 1991, SO 1991, c 17. Vallee J. determined that the parties were bound to undertake arbitration imposed by legislation applicable to new home warranties.
Continue reading “Ontario – pleading to action insufficient to qualify as waiver to request stay – #209”Ontario – court’s willingness to continue in obiter and determine key issue in appeal treated as decision on merits – #208
In BGOI Films Inc. v. 108 Media Corporation, 2019 ONCA 539, the Ontario Court of Appeal quashed attempts to appeal a decision which denied leave to appeal an award and then a decision which recognized and enforced the award. In reasons best described as brief, the Court held that no appeal lies from a refusal to grant leave when that refusal is based on the merits. Having dismissed that appeal, no grounds remained to give the court jurisdiction to refuse to recognize and enforce the award and the second appeal no longer had a basis.
Continue reading “Ontario – court’s willingness to continue in obiter and determine key issue in appeal treated as decision on merits – #208”N.L. – city lacks authority to impose arbitration unrelated to legislation’s purpose/intent – #207
In St. John’s (City) v. 10718 Nfld. Inc., 2019 NLCA 41, Newfoundland and Labrador’s Court of Appeal upheld a first instance decision declaring that the City of St. John’s (the “City”) cannot require mandatory arbitration in an agreement as a term of approval of development as doing so is acting beyond its jurisdiction under its enabling legislation. See the earlier Arbitration Matters note “Newfoundland and Labrador court holds that a municipality has authority to agree to arbitration but not to impose it as a condition of regulatory approval“
Continue reading “N.L. – city lacks authority to impose arbitration unrelated to legislation’s purpose/intent – #207”B.C. – application to cancel certificate of pending litigation granted despite stay of litigation for arbitration – #206
In 1077708 BC Ltd. v. Agri-Grow Farm Services Ltd., 2019 BCSC 977, Madam Justice Catherine Murray granted Defendants’ application to cancel and remove a Certificate of Pending Litigation despite a stay of litigation granted by consent on broad terms. Murray J. noted that Plaintiff provided no authority requiring Defendants to first apply to lift the stay. She added that she saw “no logic or merit” in that requirement and held that Plaintiff was not prejudiced by having the court consider the application.
Continue reading “B.C. – application to cancel certificate of pending litigation granted despite stay of litigation for arbitration – #206”Alberta – court has no jurisdiction to extend statutory time limit in which to seek leave to appeal award – #205
Alberta’s Court of Appeal in Allen v. Renouf, 2019 ABCA 250 upheld a chambers judge’s decision to dismiss an application for leave to appeal on the basis that the court had no jurisdiction to extend a statutory time limit set out in the Arbitration Act, RSA 2000, c A-43. The arbitrator’s reserve of jurisdiction to issue a costs award did not suspend or add to that time period to challenge the earlier award on the merits. Case law also distinguishes calculating delays based on the ‘date of the decision’ and the ‘making of the decision’ and should apply with equal merit to delays applicable to arbitration awards.
Continue reading “Alberta – court has no jurisdiction to extend statutory time limit in which to seek leave to appeal award – #205”Québec – arbitration imposed by statute remains consensual if opportunity available to renounce – #204
In Boisvert v. Selvaggi, 2019 QCCS 1673, Mr. Justice Kirkland Casgrain dismissed an attempt at judicial review of an award issuing from arbitration imposed by statute. Relying on the reasoning and result in Conseil d’arbitrage des comptes des avocats du Barreau du Québec v. Marquis, 2011 QCCA 133, Casgrain J. held that such arbitrations remain consensual if the legislation allows opportunity to renounce to its application. Being consensual, such arbitrations were subject not to judicial review but to annulment proceedings based on limited grounds familiar to practitioners practising international commercial arbitration.
Continue reading “Québec – arbitration imposed by statute remains consensual if opportunity available to renounce – #204”