[:en]Master C. Wiebe in ABCO One Corporation v. Pomerleau Inc., 2018 ONSC 4480 issued a costs decision following ABCO One Corporation’s (“ABCO”) decision to withdraw its motion for production for inspection of transcripts of evidence, document briefs and expert reports filed in an arbitration between Pomerleau Inc. (“Pomerleau”), general contractor, and the Toronto Transit Commission (“TTC”) regarding construction of a street car facility (the “Pomerleau-TTC Arbitration”). Not only did Master Wiebe determine that ABCO’s motion fell well short of demonstrating ‘compelling evidence of necessity’, he also determined that that ABCO failed to bring its motion with diligence and care. The brief reasons do not question the ability to bring such motions but only that they be timely and justified, and seek materials necessary to the applicant’s ability to make its case. Continue reading “[:en]Ontario – costs awarded for late, ‘cavalier’, speculative motion for disclosure of arbitration documents – #103[:]”
[:en]Québec – court outlines and upholds confidentiality of what is “said, written or done during” arbitration – #102[:]
[:en]In SNC-Lavalin Inc. v. ArcelorMittal Exploitation minière Canada, 2018 QCCS 3024, Mr. Justice Jean-François Michaud maintained the confidentiality of materials prepared for use in an arbitration limited to two parties and prevented communication of those materials to other parties involved in litigation involving related, overlapping disputes. By maintaining the arbitral parties’ objections based on the confidentiality of arbitration as established by legislation and the arbitral parties’ agreement, Michaud J. held that third parties seeking access to those materials must demonstrate necessity and not merely relevance and convenience of obtaining access. The legislated protection applied only to what is “said, written or done during” arbitration and did not shield access to relevant, admissible documents which existed independent of the arbitration. Continue reading “[:en]Québec – court outlines and upholds confidentiality of what is “said, written or done during” arbitration – #102[:]”
[:en]Alberta – court favours deference to arbitration, holds parties to promise to arbitrate despite inefficiencies created for other litigants – #101[:]
[:en]In Macdonald v. Burke, 2018 ABQB 534, Mr. Justice William A. Tilleman forcefully demonstrated the evolution of the court’s diminished discretion to grant a stay of litigation, tracking changes to Alberta’s Arbitration Act, RSA 2000, c A-43’s section 7(1) from the earlier, permissive “may” to the current, mandatory “shall”. He acknowledged that the change in wording to section 7(1) now restricted his discretion to those five (5) circumstances listed in section 7(2) and that none of the latter applied on the facts. Despite overlapping facts and issues in the various disputes, he remained unpersuaded that he should exercise his separate, remaining discretion under section 7(5) to allow the court litigation to continue in parallel to the arbitration. Continue reading “[:en]Alberta – court favours deference to arbitration, holds parties to promise to arbitrate despite inefficiencies created for other litigants – #101[:]”
[:en]Ontario – court exercises discretion to refuse a stay not sought by defendants – #100[:]
[:en]Enabling Plaintiff to access the court’s own procedural rules to strike pleadings and grant summary judgment, Madam Justice Michelle O’Bonsawin in Hoya Lens Canada Inc. v. 2364141 Ontario Inc., 2018 ONSC 4338 dismissed a motion, not made by Defendants, to stay the litigation in favour of arbitration. Doing so allowed her to confirm her jurisdiction over the parties and proceed to summarily resolve their dispute despite Defendants’ failure or refusal to participate. Her approach sets out a three-step path for other plaintiffs struggling to advance resolution of their dispute despite having earlier agreed to arbitrate. Continue reading “[:en]Ontario – court exercises discretion to refuse a stay not sought by defendants – #100[:]”
[:en]Ontario – award has binding effect despite post-award issues and tribunal’s willingness to consider them – #099[:]
[:en]Ontario’s Court of Appeal in Popack v. Lipszyc, 2018 ONCA 635 explored the meaning of the term “binding” and whether parties’ post-award conduct can delay the moment by which their award becomes binding on them. Absent the parties’ agreement that they can appeal their award on grounds stated by them and available under applicable arbitration legislation, parties resisting the binding nature of the award are constrained to challenge their award within the narrow grounds for refusal of recognition and enforcement set out in the UNCITRAL Model Law on International Commercial Arbitration, adopted by the United Nations Commission on International Trade Law on June 21, 1985, as amended on July 7, 2006, (“Model Law”) and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) (the “New York Convention”). A party’s stated intention to return to the arbitral tribunal to have post-award issues decided and the tribunal’s willingness to consider those issues do not serve together or alone to delay the binding effect of the final award. Continue reading “[:en]Ontario – award has binding effect despite post-award issues and tribunal’s willingness to consider them – #099[:]”
[:en]Alberta – court gives drafting advice for key-person retention and incentive agreements available in arbitration – #098[:]
[:en]Ostensibly an employment law dispute, Palmer v. Acciona Infrastructures, 2018 ABQB 462 shines rare light into back-office arrangements for large claim commercial arbitrations and how to retain and incentivize individuals necessary to manage a party’s case. In analysing claims made by an executive following termination of his employment, Madam Justice Janice R. Ashcroft’s dutifully provides many employment law updates and statements such as what constitutes a valid resignation and how an employer’s notice can and ought to be given. The reasons also deliver essential drafting points for commercial arbitration practitioners negotiating with individuals tapped to lead a party to success. Continue reading “[:en]Alberta – court gives drafting advice for key-person retention and incentive agreements available in arbitration – #098[:]”
[:en]Ontario – court refuses to accept unilateral revocations of parties’ unwritten agreement to arbitrate – #097[:]
[:en]Madam Justice Carole J. Brown in Zenith Aluminum Systems Limited v. 2335945 Ontario Inc., 2018 ONSC 4199 kept the bar firmly high, tripping claims that parties could unilaterally revoke their earlier unwritten agreement to arbitrate. Despite both parties, at separate moments, asserting that they were no longer bound by their agreement, Brown J. agreed with Claimant who now wanted to continue its arbitration despite having initiated litigation. She held that the parties’ conduct had affirmed their ongoing agreement to arbitrate and dismissed Respondent’s claims that both parties had revoked their agreement. Claimant’s earlier written notice that it withdrew its notice to arbitrate and Respondent’s later change of heart were each insufficient by themselves to serve as revocation. Applying “ordinary rules of contract law“, an arbitration agreement could only be revoked by an agreement of both parties and not unmatched, unilateral revocations. Continue reading “[:en]Ontario – court refuses to accept unilateral revocations of parties’ unwritten agreement to arbitrate – #097[:]”
[:en]Ontario – court’s resistance to re-using findings from earlier adjudications applies in arbitral proceedings – #096[:]
[:en]In Nasir v. Kochmanski, 2018 ONSC 3052, Mr. Justice Peter A. Daley dismissed Plaintiffs’ application for a trial adjournment which they based on, among other grounds, their intention to obtain and use at trial certain negative commentary on Defendant’s expert witness generated in other, earlier court and tribunal proceedings. Daley J.’s reasoning and the authorities referred to apply to the declared use in commercial arbitration of other materials produced for or by tribunal hearings, including arbitrations created by legislation. Prior to seeking to use those materials, arbitral parties must (a) ensure that no legislated prohibition exists regarding subsequent use in a new venue and (b) anticipate that tribunals will be vigilant to exclude admissible materials which are either unhelpful or lack proof of the fuller context in which they issued. Continue reading “[:en]Ontario – court’s resistance to re-using findings from earlier adjudications applies in arbitral proceedings – #096[:]”
[:en]Ontario – court rebuffs critique of commonplace, frequently enforced, understandable arbitration clause – #095[:]
[:en]In V Hazelton Limited v. Perfect Smile Dental Inc., 2018 ONSC 3958, Mr. Justice Edward M. Morgan dismissed a landlord’s objection to an arbitration clause, stating that the wording was clear enough to those familiar with commercial leases. Morgan J.’s comments can lend themselves to other types of contracts, tipping the balance if need be in favour of enforcing clauses that, while falling short of ideal wording, are commonplace, frequently enforced and likely to be understood without trouble by an experienced arbitrator. Continue reading “[:en]Ontario – court rebuffs critique of commonplace, frequently enforced, understandable arbitration clause – #095[:]”
[:en]Federal – Court of Appeal applies distinction between final offer arbitration and interest arbitration – #094[:]
[:en]In Laurentian Pilotage Authority v. Pilotes du Saint-Laurent Central Inc., 2018 FCA 117, the Federal Court of Appeal restored an arbitrator’s choice between two final awards, noting that the lower court’s judicial review had effectively converted the parties’ final offer arbitration into interest arbitration. In restoring the award, the Court refreshed guidelines on conducting final offer arbitration and distinguished it from interest arbitration. The reasons also identify arguments – compelling in principle but unsuccessful on the particular facts – to disqualify final offers which purportedly contain terms and conditions in conflict with legislation or exceed a party’s capacity to contract. Continue reading “[:en]Federal – Court of Appeal applies distinction between final offer arbitration and interest arbitration – #094[:]”