In Najah v. Desatrais, 2019 QCCQ 3143, Mr. Justice François Lebel held that an individual who contracts with the goal of becoming merchant is, at that time, a consumer within the meaning of Québec’s Québec’s Consumer Protection Act, CQLR c P-40.1 (“CPA”). As a result, the arbitration clause in the first-time franchisee’s contract did not apply because it restricted his right to go to court.
Continue reading “Québec – inexperienced, first-time franchisee remains consumer when contracting, arbitration clause inapplicable – #203”Ontario – length/brevity of reasons in award not equal to reasonableness/insufficiency – #202
In Peralta v. Peralta, 2019 ONSC 2854, (unreported, May 7, 2019, Court file no. CV-18-26994), Mr. Justice Thomas J. Carey held that lengthy reasons do not equal reasonable and correct reasons any more than brief ones are equated with insufficiency. In his own brief reasons upholding a final award on the standard of reasonableness, Carey J. echoed earlier judicial observation that losing in arbitration itself does not equate to unfair or unequal treatment. The challenged result was an outcome open to the arbitrator, within his expertise and supported by clear, concise and reasonable reasons.
Continue reading “Ontario – length/brevity of reasons in award not equal to reasonableness/insufficiency – #202”Alberta – court exercises contractual grant of discretion to refuse stay because proper for summary judgment – #201
In Obsidian Energy Partnership v. Grizzly Resources Ltd, 2019 ABQB 406, Master J.T. Prowse, Q.C. referred exclusively to the parties’ arbitration agreement to exercise discretion and refuse a stay because the dispute was a proper one for summary judgment. The contractual terms mirrored section 7 of Alberta’s Arbitration Act, RSA 2000, c A-43 but Master Prowse made no reference to the legislation in refusing to stay the litigation.
Continue reading “Alberta – court exercises contractual grant of discretion to refuse stay because proper for summary judgment – #201”Ontario – arbitral award given no weight in court when litigant not party to the arbitration – #200
In G.E.X.R. v. Shantz Station and Parrish & Heimbecker, 2019 ONSC 1914, Madam Justice Catrina D. Braid declined to give evidentiary weight in her court to an arbitral award to which one of the litigants before her was not a party. While open to giving arbitral awards some weight in certain circumstances, the plaintiff’s absence from the arbitration was sufficient to disregard the award. Braid J. also commented on whether an adverse inference should be drawn if neither party called a key witness from the arbitral proceedings.
Continue reading “Ontario – arbitral award given no weight in court when litigant not party to the arbitration – #200”Québec – stay application refused despite court’s and contract’s flexibility to identify agreement to arbitrate – #199
In Constructions 3P Inc. v. Construction Demathieu & Bard (CDB) Inc., 2019 QCCS 2070, Mr. Justice Thomas M. Davis refused to stay litigation in favour of arbitration despite his willingness to consider evidence pre- and post-contract of an agreement to arbitrate. Despite claims that the parties had agreed to arbitrate and attempts to demonstrate that agreement, Davis J. determined that (i) the existing agreement to arbitrate had not been followed and (ii) no new agreement post-dispute had been made despite contractual undertakings to explore dispute resolution options.
Continue reading “Québec – stay application refused despite court’s and contract’s flexibility to identify agreement to arbitrate – #199”Ontario – new disputes either beyond or no longer subject to abandoned submission agreement – #198
In 1230455 Ontario Ltd. v. 150 Katimavik Inc., 2019 ONSC 2481, Madam Justice Michelle O’Bonswain declined to order the parties to arbitration due to the scope of the submission to agreement and its abandonment. O’Bonswain J. held that (i) one part of their new dispute did not fall within their initial submission to arbitration and (ii) the other part of their dispute did fall within the agreement but the parties had abandoned arbitration.
Continue reading “Ontario – new disputes either beyond or no longer subject to abandoned submission agreement – #198”New Brunswick – justice of the court serves as statutory arbitrator in land expropriation dispute – #197
In McMackin v. Village of Salisbury, 2019 NBQB 99, Mr. Justice George S. Rideout served as arbitrator under the provisions of the Expropriation Act, RSNB 1973, c E-14 to resolve a dispute between a landowner and a municipality in New Brunswick following the latter’s expropriation of part of the land. Despite its “arbitration” label, the process set out in the legislation and Rideout J.’s reasons appears indistinguishable from a court proceeding. Without more information, the “arbitration” set out in the legislation does not qualify as an ‘alternative’ to dispute resolution offered by the court.
Continue reading “New Brunswick – justice of the court serves as statutory arbitrator in land expropriation dispute – #197”Ontario – unsuccessful attempt by new counsel to enjoin further arbitration after partial award – #196
In Lobanova v. Grynyshyn, 2019 ONSC 3064, Mr. Justice Frederick L. Myers dismissed an attempt by new counsel to enjoin the arbitrator from completing the arbitration and deciding isolated monetary issues intentionally left unresolved by an earlier, partial award. Myers J. stated that access to the courts is not a “do-over” once the arbitral “main event” concludes. Despite appointing new counsel, a change in strategy and new arguments cannot excuse positions taken earlier in the arbitration or contradict evidence already adduced. Myers J. discouraged challenges to discretionary procedural orders, especially fully reasoned ones, including challenges which prevent the court from having a full case if and when an appeal was authorized.
Continue reading “Ontario – unsuccessful attempt by new counsel to enjoin further arbitration after partial award – #196”Alberta – arbitrator’s findings in award have no probative value or binding effect if award set aside – #195
In Flock Estate v. Flock, 2019 ABCA 194, Alberta’s Court of Appeal overturned a chambers judge’s order which had allowed an arbitral party to reuse material from an arbitration in which the final award had been set aside. Such an award was “ineffectual”, reflected only the “personal opinions” of the arbitrator and had no probative value. Once set aside, the award did not serve to “crystallize” the interests of the parties or serve to create any issue estoppel.
Continue reading “Alberta – arbitrator’s findings in award have no probative value or binding effect if award set aside – #195”B.C. – incorporation by reference of arbitration agreement a question of intent not category of contract – #194
In MRC Total Build Ltd. v. F&M Installations Ltd., 2019 BCSC 765, Madam Justice Shelley C. Fitzpatrick determined that it was arguable that parties to one contract intended to incorporate by reference the arbitration provisions set out in another contract. Relying on the actual wording of the contract between the parties, Fitzpatrick J. identified the court’s role as discerning the intention of the parties. She resisted applying a technical rule to interpreting contracts or categorizing contracts into one type or another as a proxy for intention. Once the court finds that it is arguable that such an intention exists, and absent the arbitration agreement being incapable of being performed, the court must refer the matter to the arbitrator for determination.
Continue reading “B.C. – incorporation by reference of arbitration agreement a question of intent not category of contract – #194”