[:en]Three recent Québec cases – Raymond Chabot Administrateur provisoire inc. (Garantie Abritat inc.) v. A à Z Construction-rénovation inc., 2018 QCCS 2061, Garantie Habitation du Québec inc. v. Groupe Faguy inc., 2018 QCCQ 2763 and Garantie habitation du Québec inc. v. Quirion, 2018 QCCQ 1549 – reflect the courts’ straightforward enforcement of arbitration as the exclusive legislated way in Québec to resolve disputes over guarantee plans for new residential constructions. Parties must either resolve their disputes by arbitration or forever accept that no dispute exists and that certain facts are either uncontested or uncontestable. The decisions remind parties that a failure or refusal to engage in arbitration has consequences on any subsequent flexibility to defend litigation. Continue reading “[:en]Québec – courts assert consequences of not undertaking/participating in mandatory legislated arbitration – #084[:]”
[:en]Alberta – Court of Appeal acknowledges lack of authority to extend time to appeal – #083[:]
[:en]Alberta’s Court of Appeal in Funk v. Funk, 2018 ABCA 210 dismissed an application to extend the time to appeal an arbitration award because the appeal had no reasonable chance of success. The Court held, among other things, that it did not have authority to extend the time period to appeal set out in the Arbitration Act, RSA 2000, c A-43 and that any remedy to challenge the award ought to be heard by arbitration as the parties had agreed. Continue reading “[:en]Alberta – Court of Appeal acknowledges lack of authority to extend time to appeal – #083[:]”
[:en]Alberta – signature of submission agreement qualifies as commencement of arbitration – #082[:]
[:en]In brief reasons, Alberta’s Court of Appeal in Inter Pipeline Ltd v Rural Road Construction Ltd, 2018 ABCA 184 upheld Madam Justice C. Dario’s decision in Inter Pipeline Ltd v Rural Road Construction Ltd, 2017 ABQB 811 to consider parties’ signature of a post-dispute submission agreement as sufficient to serve as notice of commencement of arbitration. The Court was careful, if not emphatic, to note that the “conclusions are based on the unique facts of this case and on those specific facts there is clear evidentiary basis to support the chambers judge’s findings”. Continue reading “[:en]Alberta – signature of submission agreement qualifies as commencement of arbitration – #082[:]”
[:en]Ontario – litigation offers proof of concept that arbitration matters – #081[:]
[:en]In Network Site Services Ltd. v. Town of Oakville, 2018 ONSC 2599, Mr. Justice David A. Broad resolved litigation commenced in early 2012 regarding a road reconstruction project certified to have been substantially performed on September 30, 2011. The parties to the litigation had entered into a detailed set of contracts which identified mediation and arbitration but made neither mandatory. Continue reading “[:en]Ontario – litigation offers proof of concept that arbitration matters – #081[:]”
[:en]Québec – Court of Appeal agrees to confine litigants to one forum to resolve longstanding shareholders dispute – #080[:]
[:en]The Québec Court of Appeal in Jack v. Jack, 2018 QCCA 788 refused leave to appeal a Superior Court decision dismissing an application for a stay in favour of arbitration. The Court determined that not only was the multi-faceted litigation not covered by the agreement to arbitrate but that judicial efficacity and proportionality urged against having the parties litigate in two forums. Continue reading “[:en]Québec – Court of Appeal agrees to confine litigants to one forum to resolve longstanding shareholders dispute – #080[:]”
[:en]Ontario – court declines jurisdiction to determine pending court costs once parties settle through mediation/arbitration – #079[:]
[:en]In Patterson v. Sarafian, 2018 ONSC 274, Mr. Justice David Jarvis had to resolve the court’s jurisdiction to deal with costs of motions reserved, but not decided, when the parties later agreed to mediation/arbitration and settled their disputes. Though the court litigation involved a family law dispute, the result and reasoning can apply to commercial disputes in which court litigants agree to become arbitral parties and subsequently resolve their disputes. The resulting settlements can have the effect, intended or not, of resolving issues left pending from the court litigation. Continue reading “[:en]Ontario – court declines jurisdiction to determine pending court costs once parties settle through mediation/arbitration – #079[:]”
[:en]Ontario – court to consider statutory arbitration as grounds for dismissal of class action – #078[:]
[:en]A pair of interim applications in Ronald Breen Consulting v. CNR, 2018 ONSC 1778 disclose an upcoming opportunity for the Ontario Superior Court to determine whether arbitration imposed by federal statute can justify dismissal of court litigation. In adjudicating applications by Ronald C. Breen Consulting, In Trust (“Plaintiff”) to order Canadian National Railway Company (“CN”) to produce documents and to compel answers on cross-examination, Madam Justice Lynne Leitch noted that CN intended to invoke arbitration provided in Canada Transportation Act. S.C. 1996, c.10 (“CTA”) to obtain dismissal of the litigation filed in court against CN. Continue reading “[:en]Ontario – court to consider statutory arbitration as grounds for dismissal of class action – #078[:]”
[:en]Alberta – court gives effect to parties’ agreement for recovery of costs for court litigation to enforce award – #077[:]
[:en]In Extreme Excavating & Backhoe Services Ltd v. Scott, 2018 ABQB 414, Mr. Justice Wayne N. Renke gave effect to the parties’ agreement allowing one party to recover costs on a solicitor-client basis but for only the court litigation identified in the agreement. That party successfully defended an appeal of an award and successfully applied to enforce that same award. He was limited to recovering costs according to the court’s tariff on the appeal of the award but allowed recovery on solicitor-client basis, subject to an assessment, for its enforcement. The result underlines the importance of identifying which post-award litigation will merit a more robust cost-recovery, if any, and using the necessary wording to give effect to that recovery. Continue reading “[:en]Alberta – court gives effect to parties’ agreement for recovery of costs for court litigation to enforce award – #077[:]”
[:en]B.C. – court determines arbitrator’s key procedural decisions respected procedural fairness – #076[:]
[:en]In PHS Community Services Society v. Swait, 2018 BCSC 824, Madam Justice Neena Sharma analysed three key procedural decisions common to commercial arbitration and considered whether they qualified as breaches of procedural fairness. Though fact-specific, her analysis of each lends itself as a guide for similar procedural skirmishing in commercial arbitration for both counsel and arbitrators. Continue reading “[:en]B.C. – court determines arbitrator’s key procedural decisions respected procedural fairness – #076[:]”
[:en]Federal – Court of Appeal notes 1890’s provincial undertakings to arbitrate with other provinces as predecessor to current court rule on jurisdiction – #075[:]
[:en]In Alberta v. Canada, 2018 FCA 83, the Federal Court of Appeal analyzed the legislative evolution of section 19 of the Federal Courts Act, RSC 1985, c F-7 to resolve a modern day challenge to the Federal Court’s jurisdiction over a Third Party Claim filed by Canada against Ontario regarding contribution and indemnification in an aboriginal law dispute. In doing so, the Court drew attention to legislation from the 1890’s which confirmed the provincial undertakings to arbitrate against other provinces. Those legislated undertakings, like many current private agreements, sought to solve difficult, albeit different, procedural challenges created by court litigation. Continue reading “[:en]Federal – Court of Appeal notes 1890’s provincial undertakings to arbitrate with other provinces as predecessor to current court rule on jurisdiction – #075[:]”