[:en]In 108 Media Corporation v. BGOI Films Inc., 2019 ONSC 880, Mr. Justice Mario D. Faieta applied the “ordinary and grammatical meaning” of the expression “final and binding” to refuse leave to appeal, adding that a party’s subjective view of that expression is irrelevant to interpreting it. Faieta J. further held that where the appeal would only give the parties “a new forum in which to continue their private litigation” without a potential application of the ruling to others, the court will not characterize their dispute as a question of law. Continue reading “[:en]Ontario – “final and binding” means “final and binding” – #163[:]”
[:en]Alberta – uncertainty over which claims covered by arbitration does not delay commencement of limitation period – #162[:]
[:en]In Weir-Jones Technical Services Incorporated v. Purolator Courier Ltd, 2019 ABCA 49, Alberta’s Court of Appeal held that an arbitral party’s uncertainty about which claims were covered by arbitration did not delay commencement of the applicable limitation period. A party’s reliance on the potential success of other procedures amounts at most to an error of law is irrelevant to calculating the start of a limitation period. “Discovery relates to the facts, not the applicable law or any assurance of success.” In a lengthy footnote to concurring reasons, Mr. Justice Thomas W. Wakeling also commented on how the cost of litigation drove litigants towards other procedural solutions such as summary judgment and arbitration. Continue reading “[:en]Alberta – uncertainty over which claims covered by arbitration does not delay commencement of limitation period – #162[:]”
[:en]Ontario – overlap of facts insufficient to justify consolidation without consent of all parties – #161[:]
[:en]In Loan Away Inc. v. Western Live Assurance Company, 2019 ONSC 657, Madam Justice Harriet E. Sachs issued a costs order stemming from her earlier decision in Loan Away Inc. v. Western Life Assurance Company, 2018 ONSC 7229 in which she stayed plaintiff’s litigation in favour of arbitration and refused to consolidate that arbitration with an ongoing one between defendant and a third party. Despite respondents’ claims for costs on a substantial indemnity, Sachs J. ordered costs on a less-than partial indemnity basis. She observed that the motions were important and of “more than average complexity” but required modest written materials and evidence and less than a day to argue. Continue reading “[:en]Ontario – overlap of facts insufficient to justify consolidation without consent of all parties – #161[:]”
Québec – successful arbitral party seizes assets in hands of third party pending homologation of award – #160
[:en]In Instrubel N.V. v. Republic of Iraq, 2019 QCCA 78, Québec’s Court of Appeal upheld a successful arbitral claimant’s attempt to garnish funds owed by a third party to respondent pending an application to recognize and enforce its award. The Court determined that, independent of the location of the bank in which the funds were deposited, garnishee was domiciled within the jurisdiction of the courts of Québec and could be the subject of a garnishment when it is a debtor of a personal right owed to respondent. In reversing Instrubel, N.V. v. Ministry of Industry of The Republic of Iraq, 2016 QCCS 1184, the reasons provide meaningful, informed guidance for arbitration practitioners striving to preserve assets in anticipation of executing on successful arbitration awards. Continue reading “Québec – successful arbitral party seizes assets in hands of third party pending homologation of award – #160”
[:en]Alberta – concurrent liability in tort and contract possible but insufficient to avoid agreement to arbitrate – #159[:]
[:en]In Edmonton (City) v. Amec Foster Wheeler Americas Limited, 2019 ABQB 24, Master W. Scott Schlosser resisted a plaintiff’s attempt to narrow the arbitration clause to cover only contractual claims and allow its litigation in tort to escape a stay. Acknowledging plaintiff’s resourceful argument, Master Schlosser still held that the overlap between particulars of negligence and contract was too great and permitting plaintiff to choose tort over contract would allow it to escape the consequences of its own arbitration agreement. Continue reading “[:en]Alberta – concurrent liability in tort and contract possible but insufficient to avoid agreement to arbitrate – #159[:]”
[:en]B.C. – grumblings insufficient to constitute notice to trigger arbitration – #158[:]
[:en]In Campbell Construction Ltd. v. Abstract Construction Inc., 2019 BCSC 113, Madam Justice Jennifer M.I. Duncan held that ongoing dissatisfaction without particulars of a claim or the intention to start a claim are insufficient to qualify as notice to the other party. Notice is useless unless it gives enough information to the recipient to know what is in issue, the monetary effect and what the recipient can or has to do. Lack of notice deprives the recipient of the opportunity to consider its position and to negotiate under the contract or otherwise to resolve the problem. Continue reading “[:en]B.C. – grumblings insufficient to constitute notice to trigger arbitration – #158[:]”
[:en]Québec – one party’s omission to respond fully to other’s claim does not limit scope of arbitration – #157[:]
[:en]In Garantie de construction résidentielle (GCR) v. Ewart, 2019 QCCS 40, Madam Justice Danielle Mayrand held that one party’s omission to deal with all components of the other’s claims did not deny the arbitrator jurisdiction to deal with all issues raised in the dispute. Despite the label used by one party to characterize its claim, Mayrand J. held that the arbitrator had correctly dealt with the true nature of the claims in the hearing administered by the Canadian Commercial Arbitration Centre (“CCAC”).
Continue reading “[:en]Québec – one party’s omission to respond fully to other’s claim does not limit scope of arbitration – #157[:]”
[:en]Alberta – willingness to undertake legislated arbitration option may impact court costs – #156[:]
[:en]In Boardwalk REIT Properties Holdings Ltd v. Condominium Corp No 0822896, 2019 ABQB 40, Mr. Justice Grant S. Dunlop reserved his decision on costs and invited the parties to refer to any proposals to arbitrate provided as a dispute resolution option. In doing so, Dunlop J. signalled to litigants the court’s willingness to adjust its own award of court costs by considering if either of the parties had proposed to engage in arbitration as authorized by the legislation applicable to their dispute. Continue reading “[:en]Alberta – willingness to undertake legislated arbitration option may impact court costs – #156[:]”
[:en]Ontario – standard of correctness applies to arbitrator’s decision on solicitor-client privilege – #155[:]
[:en]In Saskatchewan v. Cricket, 2019 ONSC 18, Mr. Justice Peter Bawden considered challenges to evidentiary decisions taken by the arbitrator regarding solicitor-client privilege, hearsay and the impact of a prior but quashed arbitral award between the same parties. In dismissing each challenge, Bawden J. provided helpful albeit brief guidance on how to deal with similar post-award challenges. Continue reading “[:en]Ontario – standard of correctness applies to arbitrator’s decision on solicitor-client privilege – #155[:]”
[:en]Ontario – jurisdiction challenge must be raised early as preliminary objection, not as defence at merits stage – #154[:]
[:en]In FCA Canada Inc. v. Reid-Lamontagne, 2019 ONSC 364, Madam Justice Nancy J. Spies refused an application to set aside a final award challenged on the basis of an excess of jurisdiction, holding that the applicant had failed to raise the objection in a timely fashion. Though the applicant argued that it had raised the objection, Spies J. determined that it had done so as a substantive defence later on at the merits stage and not as a preliminary objection earlier on in the process. Continue reading “[:en]Ontario – jurisdiction challenge must be raised early as preliminary objection, not as defence at merits stage – #154[:]”