[:en]In Gestion PMOD Inc. v. 9E Bit (2015) Inc., 2018 QCCS 3594, Mr. Justice Jean-Guy Dubois demonstrated the court’s efforts to assist arbitral parties advance with their chosen form of dispute resolution. Dubois J. not only clarified the nature of each parties’ position to their dispute before granting Plaintiff’s motion to appoint an arbitrator but placed two (2) telephone calls during the court hearing to a pair of candidates of his own choosing and, confirming the second candidate’s acceptance and rate, appointed him as arbitrator. Dubois J. also closed his reasons with a clearly defined, non-binding obiter dictum section in which he articulated what he had determined was the scope of the dispute and the parties’ respective positions. Continue reading “[:en]Québec – court telephones its own choice of potential candidates during court hearing to appoint arbitrator – #113[:]”
[:en]Alberta – court applies its “unique” legislation to stay arbitration, prevent manifestly unfair/unequal treatment – #112[:]
[:en]Combining Alberta’s “unique” Arbitration Act, RSA 2000, c A-43, and its Judicature Act, RSA 2000, c J-2, Mr. Justice John D. Rooke, Associate Chief Justice, in Canadian Natural Resources Limited v. Flatiron Constructors Canada Limited, 2018 ABQB 613, granted a stay of the parties’ arbitration but only until further order of the court. Rooke ACJ determined that the circumstances triggered the application of the Arbitration Act’s section 6(c) authorization to intervene in order to prevent “manifestly unfair or unequal treatment of a party to an arbitration agreement”. In granting the order, Rooke ACJ acknowledged that other jurisdictions might not provide the same order as Alberta’s legislation and that legislation different from Alberta’s was “not helpful”. Continue reading “[:en]Alberta – court applies its “unique” legislation to stay arbitration, prevent manifestly unfair/unequal treatment – #112[:]”
[:en]Ontario – court refuses partial summary judgment for recognition and enforcement of award which overlaps alternative breach of contract claim – #111[:]
[:en]Madam Justice Andra Pollak in “Sanokr-Moskva” LLC v. Tradeoil Management Inc., 2018 ONSC 2967 decided that a plaintiff’s principal claims for recognition and enforcement of an international commercial award must be heard on the merits at the same time as plaintiff’s alternative claims for breach of contract. Agreeing that partial summary judgment should be considered a rare procedure reserved for issues that may be readily bifurcated, Pollak J. sent the parties to trial on the merits of both recognition and enforcement and breach of contract. Pollak J.’s caution is of particular relevance to arbitration counsel considering whether to combine, in one court application, claims for recognition and enforcement of arbitration awards and other claims. Continue reading “[:en]Ontario – court refuses partial summary judgment for recognition and enforcement of award which overlaps alternative breach of contract claim – #111[:]”
[:en]Québec – bankruptcy proceedings stayed pending arbitration on merits of creditor’s claim – #110[:]
[:en]Mr. Justice Pierre C. Bellavance in Syndic de Station touristique Massif du Sud (1993) Inc., 2018 QCCS 3605 suspended the court’s determination of a creditor’s application for a bankruptcy order under the Bankruptcy and Insolvency Act, RSC 1985, c B-3 (“BIA”) pending the result of an imminent arbitration on the merits between the creditor and debtor. Though the debtor applied for the immediate dismissal of the creditor’s court application, arguing that the highly publicized litigation harmed its operations, Bellavance J. exercised his discretion under the BIA to suspend the court process. Bellavance J. did so because the court was not the appropriate forum for doing so and the parties were soon to proceed on the merits before the arbitration tribunal having jurisdiction. The forthcoming arbitration award would soon resolve the court litigation. Continue reading “[:en]Québec – bankruptcy proceedings stayed pending arbitration on merits of creditor’s claim – #110[:]”
[:en]Alberta – Court of Appeal discourages serial challenges, notes certain litigation environments make experienced arbitrators bias-resistant – #109[:]
[:en]In Driscoll v. Hautz, 2018 ABCA 272, Mr. Justice Frans Slatter discouraged serial challenges to arbitration awards and distinguished dissatisfaction with an award from valid grounds justifying a court’s intervention. Slatter J.A. also reassured litigants that arbitrators experienced in family law disputes, like judges, could resist falling into bias if ever exposed to “exaggerated or extravagant allegations of misconduct”. In the underlying arbitration, the arbitrator had merely recorded mention of an isolated pair of exchanges made and gave no indication of having been influenced by either of the allegations. Continue reading “[:en]Alberta – Court of Appeal discourages serial challenges, notes certain litigation environments make experienced arbitrators bias-resistant – #109[:]”
[:en]Québec – arbitrator appointment process gives rise to reasonable apprehension of bias – #108[:]
[:en]Madam Justice Geneviève Marcotte in AEC Symmaf Inc. v. Poirier, 2018 QCCA 916 held that parties to an arbitration agreement must be explicit when choosing to arbitrate their oppression remedy and that a stay will still be refused if other claims before the court remain intertwined with and cannot be reasonably separated from the oppression remedy. Marcotte J.A. also agreed with the applications judge, Mr. Justice David R. Collier in Poirier v. AEC Symmaf Inc., 2018 QCCS 2946, that the arbitrator’s appointment for an oppression remedy could not be given exclusively to the Board of Directors of the corporation which is the object of the oppression remedy. Doing so submits the dispute to an arbitrator chosen by only one party to the dispute. Continue reading “[:en]Québec – arbitrator appointment process gives rise to reasonable apprehension of bias – #108[:]”
[:en]B.C. – arbitration parties cautioned to present their full case or risk post-award issue estoppel – #107[:]
[:en]In Fortinet Technologies (Canada) ULC v. Bell Canada, 2018 BCCA 277, the B.C. Court of Appeal cautioned arbitration parties not to “hold back arguments” or change their position afterwards when challenging the resulting award in court. The Court held that “issues” can be decided either explicitly and implicitly by awards and that (a) issue estoppel prevents a party in the post-award period from raising an issue it failed to raise or overlooked during the arbitration and (b) abuse of process prevents a party from taking a position inconsistent with that taken during the arbitration. Continue reading “[:en]B.C. – arbitration parties cautioned to present their full case or risk post-award issue estoppel – #107[:]”
[:en]Alberta – Court of Appeal blocks attempts to create shortcuts on challenges to arbitration awards – #106[:]
[:en]In Anand v. Anand, 2018 ABCA 259, Mr. Justice Brian O’Ferrall identified a series of dead ends for arbitral parties expecting shortcuts to the Court of Appeal from Court of Queen’s Bench decisions issuing from the “Remedies” chapter of Alberta’s Arbitration Act, RSA 2000, c A-43. A series of applications strained to persuade O’Ferrall J.A. to involve the Court of Appeal prematurely in existing court challenges to an arbitration award. O’Ferrall J.A. dismissed all of them, identifying the Court’s lack of jurisdiction, unless and until the Court of Queen’s Bench had completed its own statutorily-granted appeal role under any one of sections 44, 45, 47 and 49. The Court of Appeal had a role as an appellate court and not an alternative court sought by the unsatisfied arbitral party.
Continue reading “[:en]Alberta – Court of Appeal blocks attempts to create shortcuts on challenges to arbitration awards – #106[:]”
[:en]Québec – court challenges basis of familiar objections to stay applications – #105[:]
[:en]In Amusements Extra Inc. v. DEQ Systems Corp., 2018 QCCS 3198, Mr. Justice Michel Beaupré (i) refused to qualify defendant’s reliance on the arbitration agreement as dilatory, (ii) dismissed as ‘incoherent’ the argument that defendant’s alleged breach of the contract containing the arbitration agreement could be grounds to refuse a referral to arbitration and (ii) accepted that arbitration on one issue would proceed in parallel to litigation on several others because that very situation was what the parties had provided for when submitting only part of their business dealings and contractual relations to arbitration. His reasoning on those and other arguments serves to pre-empt others raising similar objections automatically or without sufficient facts. Continue reading “[:en]Québec – court challenges basis of familiar objections to stay applications – #105[:]”
[:en]Québec – broad and liberal interpretation of arbitration agreement limited by agreement’s narrow scope of dispute – #104[:]
[:en]A tenant and condo unit landlord successfully resisted their condo association’s motion to refer them to arbitration on the grounds that the arbitration agreement did not apply to the dispute before the court and that the agreement did not bind the tenant. In Lahaye-Abenhaïm v. Association des copropriétaires du Lowney 1, 2018 QCCS 3215, Madam Justice Johanne Brodeur held that even a broad and liberal interpretation of arbitration clauses still has to meet the parties’ intention to submit to arbitration as stated in their agreement. Continue reading “[:en]Québec – broad and liberal interpretation of arbitration agreement limited by agreement’s narrow scope of dispute – #104[:]”