In MSI Methylation Sciences, Inc. v. Quark Ventures Inc., 2019 BCSC 440, Madam Justice Elaine J. Adair dismissed claims that the arbitrator had committed arbitral error due to breach of natural justice by allegedly (i) deciding the dispute on authorities not submitted by either party and (ii) adopting his own theory of damages not advanced by either party. Adair J. held that the legal principles were not obscure legal points raised for the first time, created by the arbitrator or divorced from the cases and argument submitted by the parties. Adair J. also held that the arbitrator did not commit arbitral error by not referring to each of a party’s submissions or seeking assistance beyond authorities submitted.
Continue reading “B.C. – no arbitral error where arbitrator seeks assistance on legal principles raised in, but beyond, parties’ authorities – #183”Ontario – unpaid expert and arbitrator denied status as creditors of court order omitting their mention as beneficiaries – #182
In Miracle v. Maracle, 2019 ONCA 238, the Ontario Court of Appeal upheld the unreported September 10, 2018 decision by Mr. Justice Patrick Hurley denying an unpaid expert and unpaid arbitrator leave to be added as parties to post-arbitration litigation. In doing so, Hurley J. left open the possibility that the result could have been different had an earlier court order, recognizing and enforcing the arbitration award, mentioned personally the expert and arbitrator as beneficiaries of the orders for payment of arbitration costs incurred by the prevailing arbitral party. Hurley J.’s comments also serve to guide arbitration counsel in drafting dispositive sections for recognition and enforcement applications.
Continue reading “Ontario – unpaid expert and arbitrator denied status as creditors of court order omitting their mention as beneficiaries – #182”B.C. – corporation unsuccessfully uses indoor management rule and alleged forgery to challenge arbitration result – #181
In Sun Wave Forest Products Ltd. v Prince Rupert (City), 2019 BCSC 415, Mr. Justice Neill Brown dismissed a challenge to arbitration activity based on the challenger’s allegations that the arbitration stemmed from forgery, fraud and a lack of authority. In lengthy reasons, Brown J. discussed the evidentiary burden required to establish forgery and fraud in civil matters and the role of the indoor management rule in binding negotiations.
Continue reading “B.C. – corporation unsuccessfully uses indoor management rule and alleged forgery to challenge arbitration result – #181”Ontario – stay application dismissed without prejudice to re-apply after pleadings close – #180
Having relieved Defendant from a partial default judgment, Mr. Justice Andrew A. Sanfilippo in Natural Energy Systems Inc. v. Hallett, 2019 ONSC 1372 dismissed Defendant’s application for a stay but without substantive determination and without prejudice to Defendant’s opportunity to re-apply after the close of pleadings. In doing so, Sanfilippo J. implicitly authorized Defendant to take further steps in the litigation without any deemed waiver of right to invoke arbitration agreement at a later date and to do so even if the arbitration agreement covered only half of the claims made in the court litigation.
Continue reading “Ontario – stay application dismissed without prejudice to re-apply after pleadings close – #180”B.C. – shareholders waive arbitration to resolve management deadlock – #179
In No. 20 CR Ventures Ltd. v Andrex Developments (1985) Ltd., 2019 BCSC 405, Mr. Justice John J. Steeves distinguished the requirements for establishing oppression and deadlock and, having concluded that deadlock existed, issued a series of orders leading to the liquidation of the corporation. Despite having initially included an agreement to arbitrate deadlock, the shareholders opted to pursue their disagreement in court. For a recent case considering whether arbitration is an appropriate format to operate a business, see the Arbitration Matters note “Québec – arbitration not appropriate to conduct business or resolve operating disagreements”.
Continue reading “B.C. – shareholders waive arbitration to resolve management deadlock – #179”Ontario – arbitrator appointment procedure in franchise agreement risks “absurd and likely unfair result” – #178
In Eggiman v. Martin, 2019 ONSC 1388, Mr. Justice Wolfram Tausendfreund exercised his discretion to refuse a partial stay because the claims subject to arbitration were based on closely related facts and issues in dispute and a partial stay would likely bifurcate the claims, leading to a multiplicity of proceedings. In addition, Tausendfreund J. considered that the right of a franchisor to appoint the arbitrator for a dispute between franchisee and sub-franchisees would lead to “the absurd and likely unfair result of allowing [that party] to either appoint the arbitrator or effect control and/or direct the arbitration of this dispute”.
Continue reading “Ontario – arbitrator appointment procedure in franchise agreement risks “absurd and likely unfair result” – #178”Québec – court lacks jurisdiction to refer parties to arbitration where dispute involves $15,000.00 or less – #177
Mr. Justice Daniel Bourgeois in Medeiros v. Jan-Pro Canada Est, 2019 QCCQ 663 held that he had no jurisdiction sitting in Court of Québec, Small Claims Division to refer the parties to arbitration because an arbitration tribunal did not qualify as a ‘court’ under article 547 al. 2(2) of Québec’s Code of Civil Procedure, CQLR c C-25.01 (“C.C.P.”) governing the options available to parties. Instead of a referral, Bourgeois J. suspended the court proceedings in Small Claims Division pending an arbitration tribunal’s determination of the validity of the arbitration clause.
Continue reading “Québec – court lacks jurisdiction to refer parties to arbitration where dispute involves $15,000.00 or less – #177”N.L. – ‘legislative language to the contrary’ provides option of court proceedings or arbitration – #176
In Dewey v. Corner Brook Pulp and Paper Limited, 2019 NLCA 14, Newfoundland and Labrador’s Court f Appeal held that the applications judge had erred in ordering a stay of a proposed class action when he found that the dispute could only be resolved by mandatory arbitration. Based on its interpretation of the legislation first introduced in 1915 and amended subsequently, the Court held that the legislation, from the onset and despite amendments, provided for the option of arbitration or court proceedings. The Court identified the result as an exception, based on “legislative language to the contrary”, to courts enforcing mandatory arbitration.
Continue reading “N.L. – ‘legislative language to the contrary’ provides option of court proceedings or arbitration – #176”Ontario – court passes on stay because hockey contract’s arbitration agreement not in play – #175
Presented with disputes stemming from the same, key fact, Mr. Justice James A. Ramsay in Niagara Ice Dogs Hockey Club Inc. v. Ontario Major Junior Hockey League, 2019 ONSC 1713 refused to enjoin a hockey league from holding a disciplinary hearing for a hockey club in favour of that same club’s arbitration with one of its players. In doing so, Ramsay J. demonstrated that the same fact can trigger separate sets of rights and obligations between the club, the player and the league as well lead to different dispute resolution processes.
Continue reading “Ontario – court passes on stay because hockey contract’s arbitration agreement not in play – #175”Québec – court enjoins reluctant arbitral party to abide by earlier court decision enforcing award – #174
In SDC Habitations Saint-Maurice phase III v. Raymond Chabot Administrateur, 2019 QCCS 636, Madam Justice Jocelyn Geoffroy summarily dispensed with a Respondent’s persistent refusal to abide by an award which had been recognized and enforced as a judgment of the Québec Superior Court. The application to the court prompted a seldom needed level of court intervention in support of arbitration. The court’s brief reasons reflect that respect for a resolution of disputes is rooted in a respect for the rule of law.
Continue reading “Québec – court enjoins reluctant arbitral party to abide by earlier court decision enforcing award – #174”