In Syndicat des employés du CISSSMO, section locale 3247 v. Murray, 2021 QCCS 459, Madam Justice Suzanne Courchesne annulled an award rendered by a physician arbitrator appointed by a third party pursuant to a process set out in the parties’ agreement to arbitrate but who, despite demands to recuse himself, issued a decision on the merits of the dispute without addressing the demands for recusal. The parties’ agreement omitted any express mention of the physician arbitrator’s authority to recuse himself or any grant of such authority to another. Courchesne J. observed that the physician arbitrator, performing a quasi-judicial function, was subject to the impartiality and independence obligation and rules of procedural fairness and had both the jurisdiction and obligation to decide first on the grounds of his recusal. Courchesne J. held that the parties ought to have instructed the physician arbitrator on the rules governing a motion for recusal but did not. Despite that omission, by refusing to decide on the motion for recusal or by implicitly dismissing it without reasons, the physician arbitrator omitted to exercise his jurisdiction and breached the rules of procedural fairness. Courchesne J. annulled the award and ordered the parties to resume the arbitration before another physician arbitrator.
Continue reading “Québec – arbitrator has jurisdiction/obligation to decide recusal even absent express grant of authority to do so – #451”Ontario – court urges parties consider mediation/arbitration for “unusual financial transactions” – #450
When imputing income to spouses to determine temporary spousal support, Mr. Justice David A. Jarvis in G. v. S., 2021 ONSC 1625 commented on the complexity of the financial transactions included in the information on which the parties asked him to rely. After detailing those transactions, which appeared to involve companies owned by the husband or with/by one or more of his family members. Jarvis J. determined the spousal support and completed his task. Jarvis J. then closed his reasons by first disclaiming any “proxy” for the Canada Revenue Agency but then observing that “consideration might be given to mediation/arbitration” where there appears to be “unusual financial transactions whether those are family expenses funded through a myriad of related corporate entities … or bundles of “gifted” neatly-bound cash hidden in a bedroom closet in excess of $100,000”.
Continue reading “Ontario – court urges parties consider mediation/arbitration for “unusual financial transactions” – #450”Québec – challenge rejected to court’s authority to issue injunctive relief before arbitrator appointed – #449
In Bouchard v. Gouin, 2021 QCCS 781, Mr. Justice Jocelyn Pilote dismissed a defendant’s jurisdictional challenge to the Superior Court’s authority to issue injunctive relief in light of a valid agreement to arbitrate. Acknowledging that neither party challenged the validity of the agreement to arbitrate and mindful of the deference owed by courts to the jurisdiction given to an arbitrator by parties, Pilote J. held that defendant’s interpretation of article 623 Code of Civil Procedure, CQLR c C-25.01, which confirmed a court’s authority to issue provisional measures before or during arbitration, would remove all substance from that article. In the dispute before him, the parties had not yet named an arbitrator and respondent’s delay in which to propose an arbitrator had not yet expired.
Continue reading “Québec – challenge rejected to court’s authority to issue injunctive relief before arbitrator appointed – #449”Ontario – venue change application for arbitrator appointment application an inappropriate, misuse of court resources – read #448
In Toronto District School Board v. Roofmart Ontario Inc., 2021 ONSC 1688, Mr. Justice Frederick L. Myers dismissed R’s application under Rule 13.1.02 of Ontario’s Rules of Civil Procedure, RRO 1990, Reg 194 to change venue from Brampton to Toronto for the adjudication of SB’s application to appoint an arbitrator under section 10 of the Arbitration Act, 1991, SO 1991, c 17. Though he acknowledged that the parties’ underlying dispute was “wholly Toronto-based”, Myers J. observed that “the question of who arbitrates has no natural connection to any venue”. Noting that a Brampton-assigned judge had already seized himself of SB’s application to appoint an arbitrator and scheduled an upcoming hearing to decide that application, Myers J. disagreed with R’s attempt to task another judge to hear SB’s application. “Any judge of this court is equally capable of hearing this matter quickly and making a decision on the identity of the arbitrator”.
Continue reading “Ontario – venue change application for arbitrator appointment application an inappropriate, misuse of court resources – read #448”B.C. – stay of execution’s “low threshold” for merits met by appeal offering opportunity to consider Mexico v. Cargill – #447
In lululemon athletica canada inc. v. Industrial Color Productions Inc., 2021 BCCA 108, Madam Justice Susan Griffin stayed execution of part of an arbitration award pending appeal of lululemon athletica canada inc. v. Industrial Color Productions Inc., 2021 BCSC 15 but without preventing Respondent’s application for recognition of the same award. Required to consider the merits of the appeal when considering a stay of execution, Griffin J.A. focused on proposed grounds relating to the decision made to apply a standard of reasonableness rather than a standard of correctness for errors of law, as established in Mexico v. Cargill, Incorporated, 2011 ONCA 622. Griffin J.A. noted the release of Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District, 2021 SCC 7 after the decision in first instance, the B.C. Court of Appeal’s own choice in Greater Vancouver Sewerage and Drainage District v. Wastech Services Ltd., 2019 BCCA 66 to apply standard of correctness and the lack of a B.C. Court of Appeal decision which re-considered the standard set following the various, recent Supreme Court decisions. She determined that Appellant met the “low threshold” but she did not address success on appeal. Following her decision, Mr. Justice Gordon S. Funt in lululemon athletica canada inc. v. Industrial Color Productions Inc., 2021 BCSC 422, acknowledged the appeal of his earlier decision and, having noted Griffin J.A.’s stay of execution, granted recognition of the award.
Continue reading “B.C. – stay of execution’s “low threshold” for merits met by appeal offering opportunity to consider Mexico v. Cargill – #447”B.C. – application for stay pursuant to ICAA should be heard before class action certification hearing – #446
In Wittman v. Blackbaud, Inc., 2021 BCSC 415, Madam Justice Jasmin Ahmad acknowledged that the combined reading of section 8(1) of the International Commercial Arbitration Act, RSBC 1996, c 233 and Rule 9-6(2) of the Supreme Court Civil Rules, BC Reg 168/2009 presented a “dilemma” to Defendants wishing to apply for both a stay in favour of arbitration and summary judgment. Defendants must apply for a stay before submitting their first statement on the substance of the dispute but must serve such statement prior to applying for summary judgment. Ahmad J. pointed out that section 8(1) did not expressly prevent Defendants from filing their statement after applying for a stay but anticipated that “a cautious defendant would not file a response”. Though Defendants suggested Ahmad J. could grant them leave to file a response while relying on section 8(1), Ahmad J. observed that Defendants had taken no such steps to obtain such leave. Ahmad J. also addressed how the International Commercial Arbitration Act’s limited the court’s discretion on sequencing decisions under the Class Proceedings Act, RSBC 1996, c 50, observing that “in most cases, an application for stay pursuant to the ICAA should be heard in advance of the certification hearing”.
Continue reading “B.C. – application for stay pursuant to ICAA should be heard before class action certification hearing – #446”B.C. – court declines to “look behind” award on challenge to Mareva injunction filed with recognition/enforcement proceedings – #445
In Enrroxs Energy and Mining Group v. Saddad, 2021 BCSC 291, Mr. Justice Alan M. Ross declined to “look behind” an international commercial arbitration award when determining whether an applicant for a Mareva injunction demonstrated a strong prima facie case. Ross J. also refused to explore contradictory statements allegedly made by the successful arbitral party in the Swiss arbitration and in related UAE litigation involving ownership of equipment acquired with proceeds of a loan. Ross J. noted that “this issue was raised in the Swiss arbitration case and discussed in the decision. I find that accepting the respondent’s argument on this point would again require me to look behind the arbitration award. Whether [Petitioner’s witness] took inconsistent positions does not affect this proceeding, which seeks enforcement and recognition of the Swiss decision”. Petitioner also argued that the Mareva injunction sought to prevent disposal/dissipation of assets and not to execute on the award, pending the determination of its recognition and enforcement application.
Continue reading “B.C. – court declines to “look behind” award on challenge to Mareva injunction filed with recognition/enforcement proceedings – #445”Ontario – Arbitration Act does not preclude court staying execution of final award under Courts of Justice Act – #444
In Zenith Aluminum Systems Ltd. v. 2335945 Ontario Inc., 2021 ONSC 1128, Mr. Justice Benjamin T. Glustein dismissed attempts to limit the court’s jurisdiction to stay execution of final arbitral awards to only those circumstances set out in section 50(5) Arbitration Act, 1991, SO 1991, c 17. Glustein J. held that section 50(5) does not preclude a stay of execution under section 106 of the Courts of Justice Act, R.S.O. 1990, c. C. 43. Glustein J. refused, however, to accept that Rule 20.08 of the Rules of Civil Procedure, RRO 1990, Reg. 194 authorized courts to stay execution of final awards. Glustein J. observed that Rule 20.08 limited its application to summary judgments and, on the record before him, the final awards “are treated as final judgments”, issued by an arbitrator who the parties “asked to conduct the trial” of their dispute.
Continue reading “Ontario – Arbitration Act does not preclude court staying execution of final award under Courts of Justice Act – #444”Manitoba – “balance of probabilities” is standard of proof in civil matters, “clear, convincing and cogent” is quality of evidence – #443
In Bannerman Lumber Ltd et al v Goodman, 2021 MBCA 13, Madam Justice Holly C. Beard explored statements by the Supreme Court which asserted “balance of probabilities” as the only standard of proof in civil matters and limited the recurring phrase “clear, convincing and cogent” to merely a statement of the quality of evidence. Beard J.A. also addressed the nature of inferences and the appellate courts’ limited intervention to the extent that the inferences are questions of fact and mixed fact and law. Beard J.A. determined that the applications judge made no palpable or overriding error by drawing inferences on findings made in an arbitration award and using those inferences to determine the viability of other claims.
Continue reading “Manitoba – “balance of probabilities” is standard of proof in civil matters, “clear, convincing and cogent” is quality of evidence – #443”B.C. – authority to award actual reasonable legal costs a “desirable feature” not a “chilling effect” – #442
Relying on provisions of the Arbitration Act, RSBC 1996, c 55 and the British Columbia International Commercial Arbitration Centre’s rules, Madam Justice Karen F. Douglas in Allard v. The University of British Columbia, 2021 BCSC 60 held that the “normal rule” in arbitration is successful parties are entitled to indemnification costs unless special circumstances warrant some other type of costs. When a party is “wholly successful” an arbitrator is not required to make a finding of misconduct against the other party as a prerequisite to awarding actual reasonable legal costs. Douglas J. excerpted comments made in the legislature when B.C. introduced amendments to its Arbitration Act, RSBC 1996, c 55 to clarify an arbitrator’s authority to award actual reasonable legal fees. B.C. anticipated that authority would “preserve a desirable feature of arbitration: namely, the ability of a party to recover its actual costs”. Douglas J. observed that the legislature’s stated intent “undermines” concern for any alleged unintended “chilling effect” of awarding indemnity costs because “parties are more likely to pursue commercial arbitration precisely because doing so permits them to recover their actual costs”.
Continue reading “B.C. – authority to award actual reasonable legal costs a “desirable feature” not a “chilling effect” – #442”