[:en]In Lalli v. Gravel, 2018 QCCS 3927, Mr. Justice Lukasz Granosik accepted that a meeting conducted by a Mafia leader to resolve opposing interests and claims between two individuals over a particular piece of real estate validly qualified as an arbitration. Though unconventional, the constituent elements of the meeting – two individuals with opposing interests or claims summoned to appear before the Mafia leader who, after having heard each, decided in favour of Plaintiff – justified characterizing the meeting as an arbitration. Continue reading “[:en]Québec – Mafia leader’s resolution of real estate dispute qualifies as arbitration – #123[:]”
[:en]Ontario – not-for-profit’s arbitration agreement in by-laws not subject to heightened court scrutiny – #122[:]
[:en]In The Campaign for the Inclusion of People who are Deaf and Hard of Hearing v. Canadian Hearing Society, 2018 ONSC 5445, Mr. Justice Herman J. Wilton-Siegel dismissed arguments that a not-for-profit corporation’s status required the courts to be more vigilant in validating their arbitration provisions and held former members of the not-for-profit corporation to the terms of the arbitration provisions in the by-laws applicable before their loss of membership. Wilton-Siegel J. also held that it was well established that parties by private agreement could submit their oppression claims to arbitration. Continue reading “[:en]Ontario – not-for-profit’s arbitration agreement in by-laws not subject to heightened court scrutiny – #122[:]”
[:en]Alberta – expert determination allows expert to decide questions of mixed fact and law – #121[:]
[:en]In Applied Industrial Technologies, LP v. Sirois, 2018 ABQB 818, Mr. Justice J.T. Eamon distinguished between expert determination and arbitration, holding that, unlike arbitration, the scope of an expert’s mandate and the court’s review depended on contractual interpretation without the benefit of a statutory framework or well-established practices available in arbitration. Despite the challenges, Eamon J. provided a detailed analysis useful in future cases regarding an expert’s ability to decide questions of mixed fact and law and the applicable standard of review. Continue reading “[:en]Alberta – expert determination allows expert to decide questions of mixed fact and law – #121[:]”
[:en]Ontario – costs award in domestic arbitration subject to reasonableness standard – #120[:]
[:en]In reviewing a challenge to a costs award issued in a domestic arbitration, Mr. Justice Peter Bawden in Bilal Syed v. Cricket Canada, 2018 ONSC 5637 held that the standard of review of such costs award under Ontario’s Arbitration Act, 1991, SO 1991, c 17 is on a reasonableness standard. His ability to consider applicant’s challenge the costs portion of the award was enhanced (a) by respondent’s decision to complete the record before the court with substantial materials not offered by applicant and (b) by reference to criteria for costs awards contained in the Canadian Sport Dispute Resolution Code (the “Code”), a robust set of arbitration rules applicable to the dispute issued by the Sport Dispute Resolution Centre of Canada (“Centre”).
Continue reading “[:en]Ontario – costs award in domestic arbitration subject to reasonableness standard – #120[:]”
[:en]Ontario – court defers to arbitrator court’s discretion to release statutory deposit of court costs for lien litigation – #119[:]
[:en]In Man-Shield Construction Inc. et al. v. 1876030 Ontario Inc. et al., 2018 ONSC 5231, Mr. Justice F. Bruce Fitzpatrick deferred to an arbitrator the exercise of the court’s discretion to release monies deposited into court as security for costs in lien litigation under Ontario’s Construction Act, RSO 1990, c C.30. In light of the parties’ submission to arbitration, Fitzpatrick J. held that the discretion to determine the amount of those costs and their release now rested with an arbitrator, despite that the Construction Act expressly granted that discretion to the court. Continue reading “[:en]Ontario – court defers to arbitrator court’s discretion to release statutory deposit of court costs for lien litigation – #119[:]”
[:en]Ontario – court finds no obligation to mediate but also holds parties must have a dispute to require mediation – #118[:]
[:en]In Mera Software v. Intelligent Mechatronic Systems, 2018 ONSC 5208, Mr. Justice Donald J. Gordon determined that the parties’ mention of mediation in their agreement did not impose mediation as a condition precedent but, if it did, he found no dispute. Gordon J. granted summary judgment in favour of plaintiff under Rule 20.04 of Ontario’s Rules of Civil Procedure, RRO 1990, Reg 194 because no “dispute” existed and there was no need to mediate a non-existent dispute. The parties’ contract contained no binding agreement to mediate and their litigation had no disagreement requiring mediation. Continue reading “[:en]Ontario – court finds no obligation to mediate but also holds parties must have a dispute to require mediation – #118[:]”
[:en]Ontario – court’s contractual interpretation confirms arbitrator’s jurisdiction to hear dispute but not award lost profits – #117[:]
[:en]Mr. Justice Herman J. Wilton-Siegel in Alectra Utilities Corporation v. Solar Power Network Inc., 2018 ONSC 4926 determined that addressing jurisdictional issues required contractual interpretation. Recognizing that the former required a correctness standard while the latter required a reasonableness standard, and preferring reasonableness, he deemed it unnecessary to settle on either. His contractual interpretation led him to conclude that the arbitrator was reasonable to assert he had jurisdiction to hear the dispute but unreasonable when he deemed inapplicable a limit on recovery of lost profits. Under section 46(1)3 of Ontario’s Arbitration Act, 1991, SO 1991, c 17, the award’s grant of lost profits qualified as going beyond the scope of the contract and was set aside as “a dispute that the arbitration agreement does not cover or contains a decision on a matter that is beyond the scope of the agreement.” Continue reading “[:en]Ontario – court’s contractual interpretation confirms arbitrator’s jurisdiction to hear dispute but not award lost profits – #117[:]”
[:en]Québec – costs of arbitration incurred post-notice of intention not a claim provable in bankruptcy – #116[:]
[:en]In Proposition de 2295822 Canada Inc., 2018 QCCS 3862, Madam Justice Chantal Corriveau treated the costs of arbitration the same as court costs and applied the case law issuing in different Canadian jurisdictions to exclude the costs of arbitration from qualifying as a claim provable under the Bankruptcy and Insolvency Act, RSC 1985, c B-3 (“BIA”). Though the parties’ agreement to arbitrate, entered into prior to the debtor filing a notice of intention, mentioned the recovery of the costs of the arbitration, the agreement did not quantify them or impose them without condition on the losing party. Rather, the agreement merely gave the arbitrator jurisdiction to award them should she so decide and to do so in an amount subject to her determination. Continue reading “[:en]Québec – costs of arbitration incurred post-notice of intention not a claim provable in bankruptcy – #116[:]”
[:en]Manitoba – court refuses leave to appeal valid issues raised for first time on appeal or lacking evidence – #115[:]
[:en]In SG Ceresco Inc. v. BroadGrain Commodities Inc., 2018 MBQB 120, Madam Justice Canace Grammond sent several, distinctive messages to parties applying for leave to appeal under section 44(2) of Manitoba’s The Arbitration Act, CCSM c A120. The messages speak to parties who fail or forget to adjust the pre-established procedural rules they adopt, who do not raise valid arguments earlier before the arbitration tribunal or who apply to the court without sufficient evidence in support of issues raised. Her messages also address the proof and effect of standard form contracts, allegations of a reasonable apprehension of bias and the need to demonstrate the alleged importance to the parties of an issue. Continue reading “[:en]Manitoba – court refuses leave to appeal valid issues raised for first time on appeal or lacking evidence – #115[:]”
[:en]Québec – Court of Appeal upholds quashing arbitral party’s seizure of assets before award’s recognition/enforcement, award may also raise issue of public order – #114[:]
[:en]In deciding whether to grant leave to appeal an applications judge’s order, Mr. Justice Robert M. Mainville in Heft Family Law Inc. v. Alkhalafawi, 2018 QCCA 1262 set out the limits of a procedure available to arbitral parties in Québec looking to ensure recovery of their awards and the statutory framework for arbitrating fee disputes which exist in many self-governing professional orders in Québec. The reasons also anticipate a decision, to issue on the merits in the future, regarding Defendant’s argument that an arbitration award granting a contingency fee in family law matters is unenforceable as contrary to public order under article 646 of Québec’s Code of Civil Procedure, CQLR c C-25.01 (“C.C.P.”).
Continue reading “[:en]Québec – Court of Appeal upholds quashing arbitral party’s seizure of assets before award’s recognition/enforcement, award may also raise issue of public order – #114[:]”