Category: Arbitration Case Notes

Brief summaries of recent cases on arbitration issues, as they are released, from across Canada. Each Case Note provides commentary which helps put the case in context.

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[:en]Québec – court upholds tribunal’s dismissal of jurisdictional challenge based on alleged settlement – #033[:]

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Madam Justice Lucie Fournier in Demers v. Conseil d’arbitrage des comptes d’avocats du Barreau du Québec, 2017 QCCS 1084 held that a consensual arbitration tribunal had the jurisdiction to consider the existence and effect, if any, of any alleged settlement in deciding its own jurisdiction.  Fournier J. also held that a non-party to a settlement could not rely on the terms of the settlement to resist arbitration of a dispute involving her. Continue reading “[:en]Québec – court upholds tribunal’s dismissal of jurisdictional challenge based on alleged settlement – #033[:]”

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[:en]B.C. – court reverses arbitrator, ruling arbitrator has no jurisdiction due to parties’ settlement – #032[:]

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In Lithium One Homes Ltd. v. Abakhan & Associates Inc., 2017 BCSC 2189, B.C.’s Supreme Court granted an appeal of an arbitrator’s decision by which he had decided he had jurisdiction.  Mr. Justice Ronald S. Tindale determined that the parties had signed a settlement which released each party from all disputes arising out of the contract containing their arbitration agreement.  Tindale held that the arbitrator failed to give sufficient reasons why he decided he had jurisdiction and, in reviewing the facts, Tindale J. concluded that without a dispute between the parties, the arbitrator lacked jurisdiction because of the settlement.   Continue reading “[:en]B.C. – court reverses arbitrator, ruling arbitrator has no jurisdiction due to parties’ settlement – #032[:]”

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[:en]Nova Scotia – court exercises discretion to grant plaintiff’s request to stay its own action – #031[:]

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In Lorneville Mechanical Contractors Ltd. v. Clyde Bergemann Canada Ltd., 2017 NSSC 119,  Madam Justice Ann E. Smith of the Supreme Court of Nova Scotia determined that a plaintiff could not rely on the Commercial Arbitration Act, SNS 1999, c 5 to stay its own lien action but exercised her discretion under section 41(e) of Nova Scotia’s Judicature Act, RSNS 1989, c 240 to refer the parties’ disputes to arbitration.  Continue reading “[:en]Nova Scotia – court exercises discretion to grant plaintiff’s request to stay its own action – #031[:]”

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[:en]Saskatchewan – court refuses interim relief in absence of a dispute between arbitration parties – #030[:]

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The Queen’s Bench of Saskatchewan refused to renew an ex parte order for detention and preservation of property in Farrell Holdings Inc. v. Nussbaumer Holdings Ltd., 2017 SKQB 125 because it could identify no dispute between the party.   Whether the parties went to arbitration or the court, any exercise of the court’s authority to issue interim measures had to be in aid of a larger, actual dispute between the parties.  The decision alerts arbitration parties that their involvement of the courts must serve in support of arbitration and not in a vacuum.   Continue reading “[:en]Saskatchewan – court refuses interim relief in absence of a dispute between arbitration parties – #030[:]”

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[:en]Québec – court offers reminder that arbitration agreements only bind parties – #029[:]

[:en]The Quebec Court of Appeal in Metso Minerals Canada Inc. v. BBA inc. 2017 QCCA 1544 firmly resolved irreconcilable procedural demands created when only some of the parties to a dispute had agreed to submit to arbitration. Weighing the competing inconveniences to the parties, the Appeal Court upheld a Quebec Superior Court decision and subordinated one party’s access to arbitration to another party’s reliance on court rules.

The decision is a reminder that agreements to arbitrate bind only those parties to it. If sophisticated parties in complex projects wish to consolidate their disputes either in court or in arbitration, the choice is theirs to negotiate beforehand — not the court’s to invent afterwards. Continue reading “[:en]Québec – court offers reminder that arbitration agreements only bind parties – #029[:]”

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[:en]B.C. – Defendants take one procedural step too many and cannot stay court action – #028[:]

[:en]In Pixhug Media Inc. v. Steeves, 2017 BCSC 2171,  Mr. Justice Paul J. Pearlman determined that Defendants can successfully contest interim measures obtained by a Plaintiff, including cross-examination on affidavit, document requests and a request security for costs related to the interim measures without risk of being precluded from obtaining the stay.  Defendants could not, however, take any steps which invoked the assistance of the court or advanced the litigation before applying for a stay. Continue reading “[:en]B.C. – Defendants take one procedural step too many and cannot stay court action – #028[:]”

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[:en]Ontario – court endorses reasonable standard of review in insurance arbitration – #027[:]

[:en]The Ontario Superior Court in Belairdirect Insurance v. Dominion of Canada General Insurance Company, 2017 ONSC 367  prioritized an arbitrator’s reliance on other arbitration awards over the arbitrator’s application of a contrary Superior Court decision with which the arbitrator disagreed but felt bound to follow.  The court effectively endorsed the arbitrator following arbitral precedent in the area of his expertise by declaring that his application stare decisis was not within his expertise.  Continue reading “[:en]Ontario – court endorses reasonable standard of review in insurance arbitration – #027[:]”

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[:en]Québec – court determines legislated arbitration procedure is mandatory only for commercial party to contract – #026[:]

[:en]The Court of Québec refused to dismiss litigation between parties who had already undertaken arbitration of some of their differences and sent the parties on to trial so that a trial judge could determine the overlap, if any, between the prior arbitral award and the court litigation.  The court in Gagnon v. Développement Hamavi inc., 2017 QCCQ 5269  also determined that the arbitration procedure set out in legislation for new residential constructions was mandatory for the builder and not by the buyer and concerned rights granted in supplement to the Civil Code of Québec, CQLR c CCQ-1991. Continue reading “[:en]Québec – court determines legislated arbitration procedure is mandatory only for commercial party to contract – #026[:]”

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[:en]Québec – court issues oral judgment dismissing contestation to homologation disguising a challenge to merits – #025[:]

[:en]The Court of Québec issued an oral judgment in 9143-0439 Québec inc. v. OAM Aluminium distributeur inc., 2017 QCCQ 1364  dismissing Defendant’s characterization of arbitral award as non-observance of applicable arbitration procedure or matters beyond the scope of the arbitration agreement.  The Court determined that the homologation stage was not an appeal of the award or an opportunity to challenge the merits. Continue reading “[:en]Québec – court issues oral judgment dismissing contestation to homologation disguising a challenge to merits – #025[:]”

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[:en]B.C. – court finds arbitrator’s disclosure sufficient for binding waiver of right to object to bias – #024[:]

[:en]British Columbia Supreme Court refused to order the revocation of an arbitrator’s authority for allegedly failing to make sufficient disclosure of potential conflicts.  The Supreme Court in Atlantic Industries Limited v. SNC-Lavalin Constructors (Pacific) Inc., 2017 BCSC 1263 determined that the arbitrator had met the standard of disclosure and the objecting party’s waiver of its right to object to potential bias was express, informed and binding. Continue reading “[:en]B.C. – court finds arbitrator’s disclosure sufficient for binding waiver of right to object to bias – #024[:]”