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”B.C. – consent of parties to re-open formal order yields to functus officio – #193
In Leonard v. The Manufacturers Life Insurance Company, 2019 BCSC 598, Mr. Justice J. Christopher Grauer dismissed an application, made on consent of the parties, to certify a class proceeding under B.C.’s Class Proceedings Act, RSBC 1996, c 50 in which the court had already dismissed a prior, unsuccessful application for certification. Despite arising in a class action context, Grauer J.’s reasons offer insights regarding how applications on consent to re-open final awards could apply in arbitrations undertaken pursuant to statute and for which appeals are limited to questions of law. A key authority cited by Grauer J. stated that an order cannot be revisited even with consent of the parties because “consent cannot clothe the arbitrator with jurisdiction he [or she] does not have”.
Continue reading “B.C. – consent of parties to re-open formal order yields to functus officio – #193”Alberta – records subject to solicitor-client privilege and involving arbitration proceedings subjected to court review – #192
In Alberta (Municipal Affairs) v. Alberta (Information and Privacy Commissioner), 2019 ABQB 274, Mr. Justice Steven N. Mandziuk examined records relating to arbitration proceedings in regard to which one party claimed solicitor-client privilege. Mandziuk J. demonstrated the process that will apply to such records if and when brought before the court. His reasons set out the appropriate test for determining whether privilege exists, the practical manner in which the court will receive those records and how the courts must consider them on a document-by-document basis.
Continue reading “Alberta – records subject to solicitor-client privilege and involving arbitration proceedings subjected to court review – #192”Ontario – overlapping cost applications result in denial of most of costs claimed – #191
In Iqbal v. Mansoor, 2019 ONCA 110, Ontario’s Court of Appeal declined to hear an appeal of a costs order, holding that appellant had refused to seek the required leave to appeal such an order. Regarding the substance of appellant’s claim, the Court observed how the Superior Court had already dealt with costs in an earlier order. The various reasons in the sequence of decisions identify opportunities for arbitral parties to either reserve or clarify the issue of costs incurred up to each phase of their dispute resolution.
Continue reading “Ontario – overlapping cost applications result in denial of most of costs claimed – #191”Québec – award still capable of being executed despite order not mentioning amounts owing by respondent – #190
In Gestion PMOD Inc. v. 9e Bit (2015) Inc., 2019 QCCS 1154, Mr. Justice Steve J. Reimnitz homologated an award despite one of the dispositive orders omitting mention of the exact amounts due by respondent. Contrary to the opposite result in Carpenter v. Soudure Plastique Québec Inc. 2019 QCCS 321 in which the court refused to homologate an order which did not liquidate damages, Reimnitiz J. held that the award was capable of being executed. The award referred to an exhibit listing the amounts due as well as respondent’s admission that they were due.
Continue reading “Québec – award still capable of being executed despite order not mentioning amounts owing by respondent – #190”Québec – arbitration agreement prevents defendant from adding third party as defendant-in-warranty – #189
In Svensson v. Groupe Ovo inc., 2019 QCCS 1278, Mr. Justice Yves Poirier refused a defendant’s motion to implead a third party as its defendant-in-warranty because the civil procedure allowing defendant to do so must yield to the parties’ arbitration agreement. The court’s procedural solution allowing a defendant to join its proposed action-in-warranty to an existing litigation is suppletive and gives no jurisdiction to the court to grant the motion or override the primacy of arbitration procedure.
Continue reading “Québec – arbitration agreement prevents defendant from adding third party as defendant-in-warranty – #189”Québec – parties’ autonomy favours allowing arbitrator to decide jurisdiction first even if some claims appear beyond it – #188
In 9338-3941 Québec inc. v. 9356-2379 Québec inc., 2019 QCCS 1221, Madam Justice Danye Daigle referred the parties to arbitration despite the possibility that some of relief sought might not be covered by the arbitration agreement. Daigle J. preferred to have the arbitrator rule first on jurisdiction and then allow the parties to apply to the court for review or decision, rather than the reverse sequence. Doing so would respect the parties autonomy to choose how to resolve their disputes.
Continue reading “Québec – parties’ autonomy favours allowing arbitrator to decide jurisdiction first even if some claims appear beyond it – #188”B.C. – no abuse of court process by either litigant simply by seeking or resisting arbitration – #187
In Grewal v. Mann, 2019 BCSC 433, Mr. Justice Dennis Hori held that neither party was entitled to special costs following one party’s decision to file an action in court and the other party’s decision to apply for a stay of proceedings. In a dispute familiar to courts across Canada, both parties disputed the role of arbitration but, as Hori J. held, each appeared to genuinely pursue their legal remedies and in doing so did not commit any abuse of the court’s process.
Continue reading “B.C. – no abuse of court process by either litigant simply by seeking or resisting arbitration – #187”Québec – arbitration agreement with optional wording not a complete undertaking to arbitrate – #186
In Prométal inc. v. Maxim Construction inc., 2019 QCCS 1207, Mr. Justice Bernard Tremblay refused to refer the litigants to arbitration, holding that they had failed to agree in a clear and unequivocal way to exclude the resolution of their disputes from the courts. To allow defendant to present its motion for referral, Tremblay J. applied the longer 90 day delay available under article 622 of Québec’s Code of Civil Procedure, CQLR c C-25.01 to do so, holding that the standard, shorter 45 day delay did not apply because some of the dispute involved elements outside of Québec.
Continue reading “Québec – arbitration agreement with optional wording not a complete undertaking to arbitrate – #186”Supreme Court – cumbersome task of sorting of consumer/non-consumer claimants does not authorize courts to re-cast arbitral legislation – #185
Canada’s Supreme Court in TELUS Communications Inc. v. Wellman, 2019 SCC 19 held that section 7(5) of Ontario’s Arbitration Act, 1991, SO 1991, c 17 does not give courts discretion to refuse to stay claims dealt with by an otherwise valid arbitration agreement. Though Ontario’s Consumer Protection Act, 2002, SO 2002, c 30, Sch A invalidates arbitration agreements to the extent they prevent consumers from pursuing claims in court, that policy choice does not extend to non-consumers who remain bound by their agreements to arbitrate. Courts are to interpret legislation and not re-write it.
Continue reading “Supreme Court – cumbersome task of sorting of consumer/non-consumer claimants does not authorize courts to re-cast arbitral legislation – #185”