Prince Edward Island – Plaintiffs’ Proposal to Arbitrate Years into Court Proceedings Factor in Excusing Delay – #799

In Elbaz v. Government of P.E.I., 2023 PESC 52 (CanLII), in the context of a motion by the defendants to dismiss an action for delay, the Court considered (among many other factors) the fact that the plaintiffs had, after their counsel had died after 15 years on the case, suggested to defendants that the case be moved to arbitration rather than remaining before the court. Considering this and other factors, the Court declined to dismiss the case for delay, finding that the delay was inordinate, but that it was not intentional or contumelious. Further, both sides were responsible for the delay. The explanations for the delays were “reasonable and cogent” or “sensible and persuasive”.

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Ontario – Court dismisses motion to quash notice of arbitration – #798

In Katerinaville Developments Ltd., v. Garthwood Homes Ltd.et al., 2023 ONSC 6267, the Court held that the Arbitration Act, 1991, S.O. 1991, c. 17 (the “Act”), does not allow a plaintiff to quash a notice of arbitration in favour of a court proceeding, deferring to the arbitral tribunal for any determination of the unconscionability of an arbitration clause. Additionally, the Court emphasized that duplication of proceedings in Court and arbitration does not necessarily render the arbitration unfair. 

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Québec – Final Award on arbitrator’s own jurisdiction: what recourse(s)? – #797

In ADREQ (CSD) Estrie c. Centre intégré universitaire de santé et des services sociaux de l’Estrie – CHUS, 2023 QCCA 1315, the Court of Appeal granted leave  to appeal  a Superior Court decision dismissing an application for annulment of an arbitration award. The first instance Judge ruled that despite the fact that the arbitrator heard the whole case on the merits and decided in the final award that he had no jurisdiction, the award could not be contested under the annulment provisions of the Code of Civil Procedure (sec. 648), but rather must be challenged under the provisions concerning an arbitrator’s ruling on their own jurisdiction (sec. 632). Because of the potential overlap between these provisions and because of the limited jurisprudence on their application, the Court of Appeal deemed that it was a subject of interest for the Court and granted the leave. 

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Ontario – No unfairness despite Browne v Dunn violation and arbitrator reasonable apprehension of bias – #796

In Vento Motorcycles, Inc. v. United Mexican States, 2023 ONSC 5964, the Court dismissed an application to set aside an investor-state arbitration award on the grounds that the arbitral tribunal denied procedural fairness, and that one of the tribunal members was biased. Although the Court found no unfairness, it acknowledged a reasonable apprehension of bias in respect of the impugned arbitrator. The Court nonetheless exercised its discretion under art. 34 of the Model Law to dismiss the set–aside application.

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Québec – Arbitrator has jurisdiction to determine lien entitlement; only court has jurisdiction to enforce – #794

Santé Montréal Collectif CJV c. Veolia Health Services Montreal 2023 QCCS 3817 concerned a dispute relating to the construction of a hospital complex. The Respondent, Veolia Health Services Montreal sec (“Veolia”), alleged it was due money for repair work as part of its contractual obligation to perform maintenance after construction of the hospital complex was complete. It filed a notice of arbitration and at the same time a hypothec, or lien, against the subject property (the “Mortgage Notice”) with the court. The Applicant, Sante Montreal CJV Collective sec (“CJV”) built the hospital complex. It, had separate obligations to ensure the property was clear of encumbrances and applied to strike the Mortgage Notice (the “Request to Strike”). Even though only the Court had authority to discharge the Mortgage Notice, it nonetheless suspended CJV’s application, pending the determination of the arbitration, and ruled that the Veolia’s entitlement to relief pursuant to the Mortgage Notice was an issue for an arbitrator to decide.

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Alberta – “Admissions” made by party in arbitration did not bind it in action – #795

In Paramount Resources Ltd. v Chubb Insurance Company of Canada, 2023 ABKB 627, Paramount, an oil and gas company, sued its insurers as a result of their denial of coverage with respect to an incident involving environmental contamination following a leak in a pipeline carrying natural gas condensate. The insurers asserted that the leak was “detected” outside the period required for coverage under the policy. This action proceeded in parallel with an arbitration between Paramount and its co-owner and operator of the pipeline, over whether Paramount was required to share in the remediation costs. Paramount settled the arbitration, paying less than the amount claimed by the operator. In the action, Paramount sought damages from the insurers in an amount equal to the settlement payment. The insurers defended, in part, on the basis that Paramount had made admissions in the arbitration which were fatal to its action against the insurers. The court rejected those arguments. First, Paramount was entitled to make alternative arguments in the arbitration. Second, there was a risk of inconsistent results in the two proceedings, including on whether there was coverage under the policies, which was important context. Third, Paramount was fully transparent in its strategy and the insurers did not rely upon Paramount’s “admissions”. Finally, Paramount’s “admissions of fact” as to when the leak was “detected” in the arbitration were issues of mixed fact and law in the action because they turned on the interpretation of the words “detected” and “discover” under the policy. The court found that the settlement was reasonable and awarded Paramount damages equal to the settlement amount for the insurers’ breach of contract.

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Newfoundland and Labrador – Set-aside application denied where  award meets Vavilov reasonableness test – #793

In Zenda Mount Pearl Square Enterprises Limited Partnership v MP TEI Realty Limited Partnership, 2023 NLSC 142, the Applicant/Respondent in the arbitration applied to set aside an arbitral award arising from a dispute involving the contractual entitlement to refinancing proceeds that the Applicant/Respondent received as a result of a rogue transfer of funds. Section 14 of the Newfoundland and Labrador Arbitration Act, RSNL 1990, c A-14 (the “Arbitration Act”) gives the Court the authority to set aside an arbitral award if it finds that there was Arbitrator misconduct or the award was improperly procured. The Court held that the burden is on the applicant to show that the award is improper as a matter of fact, law, or mixed fact and law, and that the award falls outside out any potential reasonable outcome. The Court’s analysis and reasons looked at whether the decision of the Arbitrator was reasonable, applying Layman v Layman Estate, 2016 NLCA 13 (“Layman”). Focusing, in part, on the Arbitrator’s application of the principles of contract interpretation set out in Creston Moly Corp. v Sattva Capital Corp., 2014 SCC 53 (“Sattva”), the Court concluded that the Arbitrator’s decision to divide the proceeds equally between the parties was reasonable based on the terms of the parties’ agreements. The Court dismissed the set-aside application on the basis that the decision of the Arbitrator, in respect of all of the grounds reviewed by the Court, was reasonable. This case has application to the review (including on set-asides) of arbitration decisions on the basis of reasonableness and the contractual interpretation of commercial agreements. 

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Quebec – Streamlined procedures do not deny party’s ability to its present case – #792

In Gagnon c. Truchon, 2023 QCCA 1053, the Quebec Court of Appeal declined leave to appeal the Superior Court’s earlier decision to dismiss an application to annul an award and instead to enforce it. The Court of Appeal concluded that the Applicants had failed to establish “questions of principle” arising out of a “purement privé” fee dispute between the Applicants and their former lawyer. After failing to object to streamlined procedures selected by the Arbitration Council appointed by the Bureau du Québec, the Applicants could not later complain that they were denied the opportunity to present their case.

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Ontario – Arbitrator to rule on own jurisdiction and addition of party – #791

In Toronto Standard v Distillery SE, 2023 ONSC 5340, the Court upheld the parties’ agreement to appoint a specific arbitrator, and also determined that issues relating to the arbitrator’s jurisdiction and mandate, and the addition of a party, should be decided by the arbitrator and not the Court. 

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Manitoba – Awards set aside after arbitrator re-wrote parties’ bargain – #790

In Buffalo Point First Nation and Buffalo Point Development Corp Ltd v Buffalo Point Cottage Owners Association, Inc, 2023 MBKB 141, the Court confirmed its earlier decision on the motion for leave to appeal, in which it held that the correctness standard of appeal in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (“Vavilov”) applies to review of private arbitration awards appealed under provincial arbitration legislation. The Court held that the arbitrator had erred because he exceeded the jurisdiction granted to him under the parties’ agreement. First, the arbitrator exceeded the jurisdiction to “implement” or “clarify” a Consent Award which the parties had entered into following an earlier dispute. Second, the arbitrator’s award constituted a significant rewrite of the bargain (…) by introducing new concepts alien to the negotiated bargain”. 

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