In Tianjin v. Xu, 2019 ONSC 628, Mr. Justice Laurence A. Pattillo dismissed objections to recognition and enforcement based on allegations that respondent did not receive notice and that arbitration did not qualify as “international”. In doing so, Pattillo J. determined that using the form of notice adopted by the arbitral institution administering the arbitration satisfied the “proper notice” requirement. To determine what constitutes “proper notice”, he also referred to and adopted as “a reasonable standard” the standard developed by U.S. authorities listed at para. 31 of his reasons. Pattillo J. also determined that respondent’s domicile at the time she entered into the arbitration agreement qualified the arbitration as international.
Continue reading “Ontario – notice requirement satisfied where form of notice reasonably calculated to inform of arbitral proceedings and opportunity to respond – #173”Ontario – clause omitting express referral to arbitration still valid enough to stay litigation – #172
Despite less-than clear drafting, the parties’ agreement to have their disputes “settled in accordance with” identified institutional rules was sufficient to remove the court’s jurisdiction in Belnor Engineering Inc. v. Strobic Air Corporation et al., 2019 ONSC 664. Mr. Justice Lorne Sossin also dismissed arguments that the arbitration agreement was invalid because it was unconscionable, noting that (i) no argument was made that applying the institutional rules was unconscionable and (ii) no inequality of bargaining power or practical inaccessibility of arbitration existed to create an unfairness if the action was stayed in favour of arbitration.
Continue reading “Ontario – clause omitting express referral to arbitration still valid enough to stay litigation – #172”Alberta – even after limitation period expires to initiate arbitration, court applies exceptions to deny stay – #171
In Fath v. Quadrant Construction Ltd, 2019 ABQB 151, defendant petitioned to stay litigation against it only after the limitation period expired in which plaintiff could initiate mandatory arbitration. Master W. Scott Schlosser noted that a court lost its supervisory jurisdiction to stay if arbitration was no longer viable because its jurisdiction was over the arbitration and not the lawsuit. Acknowledging that granting a stay effectively barred plaintiff’s claim against defendant and faced with a divided approach in the case law, Master Schlosser opted to consider the exceptions to stay set in Section 7(2) of the Arbitration Act, RSA 2000, c A-43. As an alternative, he also considered defendant’s waiver and attornment as further sources of the court’s jurisdiction to preserve the litigation.
Continue reading “Alberta – even after limitation period expires to initiate arbitration, court applies exceptions to deny stay – #171”N.L. – reciprocal enforcement of court judgment enforcing awards not opportunity for collateral attack of awards – #170
In Shoppers Drug Mart Inc. v. Retirement Home Specialists Inc., 2019 NLSC 44, Mr. Justice Robert P. Stack upheld an ex parte Newfoundland and Labrador court decision registering as its own judgment an earlier Ontario court decision enforcing awards. In dismissing defendants’ contestation as a collateral attack on the awards, Stack J. listed alternative procedural steps which might have provided plausible opportunity to challenge the awards. Stack J. underlined the limited role of the Ontario court enforcing an arbitration award under its Arbitration Act, 1991, SO 1991, c 17, and the Newfoundland and Labrador court providing reciprocal enforcement of another province’s court judgments under the Reciprocal Enforcement of Judgments Act, RSNL 1990, c R-4.
Continue reading “N.L. – reciprocal enforcement of court judgment enforcing awards not opportunity for collateral attack of awards – #170”Saskatchewan – privity of contract prevents enforcing court-approved arbitral consent award against third party – #169
In NewAgco Inc. v. Syngenta Crop Protection, 2019 SKQB 56, Mr. Justice G.A. Meschishnick vacated an earlier ex parte Queen’s Bench decision enforcing a U.S. court decision under Saskatchewan’s The Enforcement of Foreign Judgments Act, SS 2005, c E-9.121. The U.S. decision stemmed from a settlement agreement negotiated between parties to an arbitration and which had resulted in a consent ‘judgment’ of the arbitration tribunal. Having successfully applied to a U.S. court to confirm that arbitration judgment as a U.S. court decision, the U.S. corporation failed to enforce that same U.S. court decision in Saskatchewan against a Saskatoon corporation bearing the same corporate name, unsuccessfully arguing that the Saskatoon corporation was bound by the settlement and U.S. court decision.
Continue reading “Saskatchewan – privity of contract prevents enforcing court-approved arbitral consent award against third party – #169”[:en]Québec – non-respect of delays in arbitration agreement insufficient to annul award – #168[:]
[:en]In Carpenter v. Soudure Plastique Québec inc., 2019 QCCS 321, Madam Justice Silvana Conte refused to annul an award merely because delays in the arbitration agreement had been exceeded or that the arbitrator had reserved jurisdiction on certain issues. She held that the delays had not only been waived but were insufficient to undermine the award and that arbitrators had jurisdiction to reserve issues for later determination. Despite an initial willingness to pay, Defendant successfully argued that certain payment orders were vague, leading Conte J. to homologate the award only in part. Because the monetary value of the disputed orders fell below her jurisdiction, she referred the parties to the Court of Québec to determine whether they had a binding, post-award settlement agreement regarding payment.
Continue reading “[:en]Québec – non-respect of delays in arbitration agreement insufficient to annul award – #168[:]”[:en]Québec – unfounded challenges to final award declared abusive, exposes Respondents to damages – #167[:]
[:en]Applying Québec’s Code of Civil Procedure, CQLR c C-25.01, Mr. Justice Gérard Dugré in Leduc v. Ayoub, 2019 QCCS 457 declared that Respondents’ challenges to a final arbitration award were manifestly unfounded and abusive, exposing Respondents to damages. Dugré J. determined that Respondents’ challenges amounted to an indirect appeal of the award and would require the court to exceed the limited role given to it when recognizing and enforcing awards. Continue reading “[:en]Québec – unfounded challenges to final award declared abusive, exposes Respondents to damages – #167[:]”
[:en]Nova Scotia – “battle of the forms” doctrine fails to resolve whose agreement binds parties to arbitrate – #166[:]
[:en]Faced with competing claims regarding whose documents constituted the parties’ agreement, Madam Justice M. Heather Robertson in LED Roadway Lighting Ltd. v. Alltrade Industrial Contractors Inc., 2019 NSSC 62 found no clear intention to incorporate either party’s arbitration clause. Instead, Robertson J. decided to favour Defendant’s suggestion and stayed the litigation pending the outcome of arbitration between the parties. Though she found no agreement to arbitrate, she also determined that there was no objection to arbitration either. Continue reading “[:en]Nova Scotia – “battle of the forms” doctrine fails to resolve whose agreement binds parties to arbitrate – #166[:]”
[:en]N.L. – “shall” is not “must” and can be directory rather than mandatory – #165[:]
[:en]In Labrador-Island Link Limited Partnership v. General Cable Company, 2019 NLSC 6, Madam Justice Gillian D. Butler examined the sufficiency of steps taken in a dispute resolution process to determine whether steps served as mandatory conditions precedent which a party had to complete prior to commencing litigation. In doing so, Butler J. provides remarkable guidance to arbitration practitioners grappling with identical issues in their arbitration clauses. Her efforts to distinguish between “shall” and “must” were informed by Plaintiff’s good faith in attempting to complete the work contemplated in the contracts and by the severe implication of an expired limitation period. Continue reading “[:en]N.L. – “shall” is not “must” and can be directory rather than mandatory – #165[:]”
[:en]Ontario – claimant unable to arbitrate its dispute unless consolidated with non-existent arbitration – #164[:]
[:en]In Federal Electric (1976) Limited v. McDonald Brothers Construction, 2019 ONSC 496, Madam Justice Michelle O’Bonsawin refused to refer A and B to arbitration because their agreement provided that any of their disputes also relating to a dispute between B and C shall be arbitrated “at the same time in the same proceedings and by the same Arbitration Board as is appointed to resolve the dispute between” B and C. The contract between B and C had no agreement to arbitrate. O’Bonsawin J. also lists and applies the principles applicable to determining whether “best efforts” were made by B to advance its claim against C. Continue reading “[:en]Ontario – claimant unable to arbitrate its dispute unless consolidated with non-existent arbitration – #164[:]”