In Kumer v. MTCC No. 775, 2021 ONSC 1181, Madam Justice Audrey P. Ramsay determined that a correctness standard applied to appeals of arbitration awards rendered under the Condominium Act, 1998, SO 1998, c 19.Ramsay J. observed that neither party argued Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 and she accepted the guidance set out in (i) 90 George Street Ltd. v. Ottawa-Carleton Standard, 2015 ONSC 336 which noted that “arbitration pursuant to the Condominium Act is distinguishable and very different from the arbitration of a commercial dispute” and (ii) Metropolitan Toronto Condominium Corporation No. 590 v. The Registered Owners and Mortgagees of Metropolitan Toronto Condominium Corporation No. 590, 2020 ONCA 471 which remarked that a condominium declaration is “a special form of contract, the structure of which is prescribed by statute. It must adhere to certain statutory requirements”. Both decisions distinguished Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 (CanLII), [2014] 2 SCR 633 because it concerned commercial arbitration. Ramsay J. agreed with the Court of Appeal’s comments in 2020 that “while a declaration under the Condominium Act could be characterized as a contract, [it] is not the type of private contract negotiated between two parties, to which the comments in Sattva were directed. A declaration is a special form of contract, the structure of which is prescribed by statute. It must adhere to certain statutory requirements”.
Continue reading “Ontario – correctness standard applies on appeal of arbitration award under contract prescribed by statute – #494”Ontario – jurisdiction to correct/amend document affecting others reserved to Superior Court by legislation – #493
In Mensula Bancorp Inc. v. Halton Condominium Corporation No. 137, 2021 ONSC 2575, Madam Justice Marie-Andrée Vermette set aside an award in which the arbitrator, unsatisfied with the interpretation given by the “plain language” of a condominium declaration, “purported to deal with and correct what he thought were errors and inconsistencies”. Doing so “crossed the line between interpretation and correction/amendment” and decided a matter beyond the scope of the agreement to arbitrate, justifying Vermette J.’s intervention under section 46(1)3 of the Arbitration Act, 1991, SO 1991, c 17. Because a condominium declaration is “the equivalent of the constitution of a condominium corporation” and, registered, impacts current and prospective condominium owners, section 109 of the Condominium Act, 1998, SO 1998, c 19 reserves jurisdiction to the Superior Court to correct alleged errors and inconsistencies. The parties also reiterated that jurisdiction in their agreement to arbitrate which itself appeared in their applicable documents by virtue of that same legislation.
Continue reading “Ontario – jurisdiction to correct/amend document affecting others reserved to Superior Court by legislation – #493”Alberta – allocation of lien security to subcontractors adjourned pending arbitration between owners and general contractor – #492
In Avli BRC Developments Inc v. BMP Construction Management Ltd, 2021 ABQB 412, Master Andrew R. Robertson Q.C. adjourned an application for costs claimed against security provided further to an order under Alberta’s Builders’ Lien Act, RSA 2000, c B-7, holding that he could not determine and allocate amounts owing to subcontractors or related costs until a pending arbitration decided the amounts owing between the building owners and the general contractor.
Continue reading “Alberta – allocation of lien security to subcontractors adjourned pending arbitration between owners and general contractor – #492”Ontario – though authorized, plaintiffs fail to justify stay of their own action after taking too many steps – #491
Despite section 7(1) of the Arbitration Act, 1991, SO 1991, c 17 requiring that a stay application be brought by the party which did not commence the court proceeding, Mr. Justice Christopher de Sa in Deluxe Windoors Manufacturing Inc. v. Bruhm, 2021 ONSC 3616, accepted that the parties’ agreement to arbitrate authorized either party to apply for stay. Ostensibly authorized to apply to stay its own action, Plaintiffs’ own activity in the action nonetheless prompted de Sa J. to follow Lansens v. Onbelay Automotive Coatings Corp., 2006 CanLII 51177 (ON SC) which dismissed a stay application because defendant seeking the stay had taken several steps in the action before applying for a stay. Regarding Plaintiffs’ application for a stay, de Sa J. stated that “I agree with the Defendant that the Plaintiffs have acted no differently than the defendants in Lansens, in fact they did not simply respond, they initiated this claim”.
Continue reading “Ontario – though authorized, plaintiffs fail to justify stay of their own action after taking too many steps – #491”Ontario – agreement to arbitrate not unconscionable where governing law preserves executive’s Employment Standards Act rights – #490
In Leon v. Dealnet Capital Corp., 2021 ONSC 3636, Master Barbara McAfee declined to exercise her discretion under section 7(2) of the Arbitration Act, 1991, SO 1991, c 17 to refuse a stay. She dismissed the senior executive’s reliance on Uber Technologies Inc. v. Heller, 2020 SCC 16 to invalidate the agreement to arbitrate contained in the employment agreement, noting that the governing law preserved the executive’s right to file an Employment Standards Act, 2000 S.O. 2000, c.41 complaint. Master McAfee also disagreed that (i) the Business Corporations Act, RSO 1990, c B.16 oppression claim, contained in employer’s counterclaim, was not arbitrable or (ii) the employer had attorned by filing a defense and counterclaim or applied for a stay with “undue” delay. Master McAfee confirmed there was no evidence that employer or its current counsel “noticed” the agreement to arbitrate contained in the employment agreement until later in the action.
Continue reading “Ontario – agreement to arbitrate not unconscionable where governing law preserves executive’s Employment Standards Act rights – #490”Alberta – Arbitration Act does not incorporate court’s powers in Rules of Court to extend delays – #489
In Mailer v. Mailer, 2021 ABQB 423, Mr. Justice Michael J. Lema confirmed he had no authority to extend the delay in which to file an application for leave to appeal an arbitration award, noting that the “Arbitration Act [RSA 2000, c A-43] does not provide for extensions of the s. 46 deadlines, whether directly or indirectly e.g. by incorporating the extension powers in the [Alberta Rules of Court, Alta Reg 124/2010]”. The party seeking to challenge the award had filed an appeal as of right within the thirty (30) day delay but did not seek leave within that delay. The parties had agreed that their award “shall be subject to an appeal only on question of law in accordance with s. 44(2) of the Arbitration Act” and Lema J. held that their addition of the phrase “in accordance with s. 44(2)” changed the meaning of the first eleven (11) words, imposing a leave requirement. Though the party appealed in the relevant delay, he failed to comply with the requirements of section 44(2) to seek leave and Lema J. lacked authority to remedy that procedural decision.
Continue reading “Alberta – Arbitration Act does not incorporate court’s powers in Rules of Court to extend delays – #489”Québec – court denies leave to challenge interim trial level decisions involving role of arbitration award in litigation – #488
In SNC-Lavalin inc. v. Arcelormittal Exploitation minière Canada, 2021 QCCA 849, Madam Justice Christine Baudouin dismissed two (2) applications for leave to appeal interim decisions involving the role an arbitration award played in court. That award involved some, but not all, of the parties to litigation initiated by A. S and B as non-parties to that award between A and M argued that the judge had unduly limited the scope of the award. Baudouin J.A. disagreed, holding that the opposite prevailed. Subject to what the evidence might eventually establish and limiting her comments to her view of the record, Baudouin J.A. remarked that (i) S and B gave the award a scope which exceeded its conclusions and (ii) the issue addressed in the award was not A’s sole source of recourse against S and B. Regarding M’s application as party to the award and involved in the court litigation by way of B’s recursory claim against M, Baudouin J.A. did not accept that B’s recursory action was a collateral attack on that award and noted that the inconveniences inherent in a trial do not qualify for leave under article 31 of Code of Civil Procedure, CQLR c C-25.01.
Continue reading “Québec – court denies leave to challenge interim trial level decisions involving role of arbitration award in litigation – #488”B.C. – appeal court declines to re-assess success in appeal of award where court remits valuation matter to arbitrator – #487
In Nolin v. Ramirez, 2021 BCCA 191, B.C.’s Court of Appeal declined to modify a costs award issued in first instance, reiterating its deference to such discretionary orders. The Court did acknowledge that it could modify a costs award “without undue deference to the views of the trial judge” if the Court on appeal had modified the amount granted in first instance for the merits of the dispute and where “the amount or nature of the award was a factor in the costs award below”. Because the judge in first instance had remitted a valuation matter to the arbitrator, the Court held that “[t]here are still issues outstanding that have been referred to the arbitrator, and without a final decision with respect to those issues, it is difficult to assess substantial success”.
Continue reading “B.C. – appeal court declines to re-assess success in appeal of award where court remits valuation matter to arbitrator – #487”Manitoba – ‘reckless’ and ’unfounded’ allegations against S counsel regarding arbitration record justify personal costs order against C counsel – #486
In Christie Building Holding Company, Limited v. Shelter Canadian Properties Limited, 2021 MBQB 101, Mr. Chief Justice Glenn D. Joyal dismissed attempts to reopen an earlier hearing in which he determined what constituted the record from the arbitration for the purpose of leave to appeal applications and any eventual appeal. To do so, Joyal C.J. reviewed the evolution of the procedural decisions contemplated in the arbitration, offering insights into how to document such decisions and whether excessive flexibility actually generates uncertainty even for those involved in the arbitration. In dismissing attempts by C’s counsel to ground C’s relief on allegations of fraud or facts arising or discovered after the initial court order, Joyal C.J. characterized the allegations made by C’s counsel against S’s counsel as “reckless and unfounded”, “an abuse of this Court’s process” and “unprofessional and inappropriate”. Such allegations made personally against S’s counsel justified a reasonable solicitor-costs order against C’s counsel personally.
Continue reading “Manitoba – ‘reckless’ and ’unfounded’ allegations against S counsel regarding arbitration record justify personal costs order against C counsel – #486”Ontario – legislation permitting application to court does not oust arbitrator’s jurisdiction for same remedy – #485
In Toronto Standard Condominium Corporation No. 1628 v. Toronto Standard Condominium Corporation No. 1636, 2021 ONCA 360, Ontario’s Court of Appeal held that wording in the Condominium Act, 1998, SO 1998, c 19 which permits an application to the Superior Court for relief regarding oppression set out in that legislation “does not oust the jurisdiction of an arbitrator to consider the same relief, if that relief is part of the dispute in question that properly falls within the terms of the arbitration provision”. The Court also expressly accepted that a stay order would result in “parallel proceedings” – arbitration between two (2) parties and court litigation with all four (4) over the balance of the dispute – but concluded that parallel proceedings did not “detract from the central point” that two (2) of the parties must arbitrate. The Court did observe that the other non-parties to the arbitration “might voluntarily agree to be part of the arbitration proceedings”.
Continue reading “Ontario – legislation permitting application to court does not oust arbitrator’s jurisdiction for same remedy – #485”