[:en]In Restoule v. Canada (Attorney General), 2018 ONSC 7701, Madam Justice Patricia C. Hennessy dismissed an attempt to re-use arbitral awards as evidence against litigants who were not parties to the related arbitrations. Despite a collaborative, flexible approach by the litigants to presenting sprawling, complex facts necessitating the use of extensive primary and secondary documentary sources as well as expert and community leaders testimony providing historical context, Hennessy J. drew limits to that collaborative flexibility and underscored the limited role arbitral awards play beyond the parties who, by contract, agreed to submit to and be bound by arbitration. Continue reading “[:en]Ontario – court rejects re-using arbitral awards against non-parties despite litigants’ flexibility – #153[:]”
[:en]Québec – award voided for providing insufficient reasoning and imposing unintelligible order – #152[:]
[:en]In 9264-3212 Québec inc. v. Moseka, 2018 QCCS 5286, Madam Justice Johanne Brodeur granted judicial review of an arbitral award because it was not executory. Despite applying a deferential standard of reasonable, Brodeur J. sent the parties back to arbitration because the specialized decision maker had omitted to articulate the industry standard he determined was breached and did not explain what result the party had to meet in order to comply with his order. Continue reading “[:en]Québec – award voided for providing insufficient reasoning and imposing unintelligible order – #152[:]”
[:en]Alberta – court reverses summary judgment order, refers parties to trial, suggests parties consider arbitration – #151[:]
[:en]In Prestige Granite & Marble Inc v. Maillot Homes Inc, 2018 ABQB 1040, Madam Justice Michele H. Hollins reversed a Master’s order granting summary judgment on the basis that court rules allowed parties to present new evidence on appeal of the order and, in doing so, “amplified” their case sufficiently to justify a trial on the merits. Hollins J. suggested that the parties consider “private arbitration” in lieu of continuing in court should settlement fail. The suggestion likely reflects the court’s perception that arbitration would provide a more suitable resolution of the issues still in dispute and would avoid the layers of appeals and compensate for the delays associated with amplifying one’s position. Continue reading “[:en]Alberta – court reverses summary judgment order, refers parties to trial, suggests parties consider arbitration – #151[:]”
[:en]B.C. – arbitrator’s decision on costs qualifies as an award enforceable as judgment/order of the court – #150[:]
[:en]In Sangha v. Goel, 2018 BCSC 2267, Mr. Chief Justice Christopher E. Hinkson qualified a costs award as an “award” under B.C.’s Arbitration Act, RSBC 1996, c 55. The costs award issued as a distinct award following a partial award by the arbitrator and was based on a summary presentation of evidence based on an initial agreement by the parties but from which Respondents later unsuccessfully attempted to resile. Hinkson C.J. held that the delays and costs borne by Petitioners were significant reasons for granting Petitioners leave to enforce the award on arbitral costs but also refused to grant Petitioners their court costs due to their occasioning use of one (1) hour more than the time reserved because of same day filing of motion materials. Continue reading “[:en]B.C. – arbitrator’s decision on costs qualifies as an award enforceable as judgment/order of the court – #150[:]”
[:en]Ontario – leave to appeal on question of law waived when both parties fully argue issues in court – #149[:]
[:en]In O’Connell v. Awada, 2019 ONSC 273, Mr. Justice Stanley Kershman allowed Appellant to present his appeal on two (2) questions of law even though he had not sought or obtained leave to do so. Kershman J. held that, because both parties fully pleaded the issues regarding the questions of law, he waived the requirement for leave despite Respondent’s objections. Kershman J. also provided comment on the extent to which arbitrators ought to comment on evidence and demonstrate that they have heard the evidence. Continue reading “[:en]Ontario – leave to appeal on question of law waived when both parties fully argue issues in court – #149[:]”
[:en]Ontario – determination of exceptions to mandatory stay are for court to make and not arbitrator – #148[:]
[:en]Ontario’s Court of Appeal in Heller v. Uber Technologies Inc., 2019 ONCA 1 determined that the arbitration agreements contained in service agreements between drivers and Uber qualified as illegal contracting out of Ontario’s Employment Standards Act, 2000, SO 2000, c 41 (“ESA”), and that the arbitration agreements were unconscionable and invalid. In doing so, the Court provided new guidance for drafting arbitration clauses applicable to non-employment contracts and to their enforceability. Continue reading “[:en]Ontario – determination of exceptions to mandatory stay are for court to make and not arbitrator – #148[:]”
[:en]Ontario – stay of litigation requires active arbitration and significant overlap of issues – #147[:]
[:en]In ATS Automation Tooling Systems Inc v. Chubb Insurance Company of Canada, 2018 ONSC 6139, Master Donald E. Short refused a stay of litigation involving a non-party to overseas arbitration because that arbitration was only “invoked” but not instituted and the issues in both proceedings were not inextricably linked. In doing so, Master Short provided the non-party with its opportunity to present a summary judgment motion in the litigation rather than await the outcome of an arbitration involving other parties, covering different issues and still awaiting formal commencement. Continue reading “[:en]Ontario – stay of litigation requires active arbitration and significant overlap of issues – #147[:]”
[:en]Québec – arbitration not appropriate to conduct business or resolve daily business disagreements – #146[:]
[:en]In Naimer v. Naimer, 2018 QCCS 5210, Mr. Justice Stephen W. Hamilton rejected a post-trial solution by some of the litigants to impose arbitration as a way to avoid future deadlock in the operation of the litigants’ business. Though proposed in answer to his invitation to provide a lasting solution once the safeguard orders expired after the trial decision issued, Hamilton J. readily held that arbitration was not appropriate to resolve conflicts regarding day-to-day business decisions. The lack of any basis for arbitrators to decide on business initiatives, the non-arbitrable nature of business decisions and the anticipated delay in instituting arbitration for each disputed business decision lead Hamilton J. to dismiss the proposal. Continue reading “[:en]Québec – arbitration not appropriate to conduct business or resolve daily business disagreements – #146[:]”
[:en]P.E.I. – arbitral institution denied leave to intervene in jurisdiction-based challenge to arbitral award – #145[:]
[:en]In HZPC Americas v. Skye View Farms, 2018 PESC 47, Mr. Justice Gordon L. Campbell determined that an arbitral institution would not contribute anything useful to an appeal arguing an excess of jurisdiction of the institution’s arbitration rules. The institution’s concern for the precedential value of the appeal did not justify it being added to the appeal as the arguments it could make could be made by either of the existing parties. The institution’s claim to have a global outlook of the potential adverse impact of an “unfavourable” result was insufficient to grant the institution leave to intervene. Continue reading “[:en]P.E.I. – arbitral institution denied leave to intervene in jurisdiction-based challenge to arbitral award – #145[:]”
[:en]Alberta – “oblique” dispute resolution clause overlooks dispute, provides no resolution process – #144[:]
[:en]In Zerr v. Thermal Systems KWC Ltd, 2018 ABQB 1008, Master in Chambers A.R. Robertson found no application for a lease’s “oblique” dispute resolution clause which did not deal with contractual entitlements in the lease and provided no process to resolve the dispute. In considering the clause and disputes stemming from either “complexity” or “inconsistent wording” in the parties’ contracts, Master Robertson provided confirmation that clear drafting can both pre-empt disputes and solve them if and when they do arise. Continue reading “[:en]Alberta – “oblique” dispute resolution clause overlooks dispute, provides no resolution process – #144[:]”