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”Ontario – pre-litigation costs for mediation imposed by legislation recoverable because non-discretionary – #441
In Gelman v. 1529439 Ontario, 2021 ONSC 424, Madam Justice Bernadette Dietrich denied a successful litigant’s claim for pre-litigation costs, following the rule set out in Greenlight Capital, Inc. v. Stronach (2008), 2008 CanLII 34359 (ON SCDC), 91 O.R. (3d) 241 (Div. Ct.). In doing so, Dietrich J. resurfaced 90 George Street Ltd. v. Ottawa-Carleton Standard, 2015 ONSC 336 in which pre-litigation costs for mediation were awarded in an arbitration and upheld on a post-award challenge. Those costs related to mediation imposed by the Condominium Act, 1998, SO 1998, c 19 which requires parties to mediate budget disagreements before undertaking arbitration and, as such, did not represent an exercise of discretion by the parties prior to commencing arbitration.
Continue reading “Ontario – pre-litigation costs for mediation imposed by legislation recoverable because non-discretionary – #441”Québec – no abuse of procedure if losing arbitral party obliges non-parties to litigate their liability for similar claims – #440
In litigation instituted by A against S/B, with M forced to intervene by B, Mr. Justice Jean-François Michaud in ArcelorMittal Exploitation minière Canada v. SNC-Lavalin Inc., 2021 QCCS 202 refused to grant S/B’s and M’s applications to dismiss which invoked abuse of procedure based on a prior arbitral award between A and M. A chose not to involve M in the litigation but B had forced M’s intervention as part of B’s defense against A. Michaud J. held that (i) S/B were not parties in the arbitration and the arbitration did not address their liability and (ii) M could not object to the expense of defending in a second, separate instance in which B had forced M’s intervention. Recognizing that M had spent millions to successfully contest similar claims by A in the arbitration, Michaud J. concluded that M’s additional expense stemmed from the arbitration clause it had accepted. Despite a successful result for M in the arbitration with A, Michaud J. observed that the trial judge might draw conclusions similar to or different from the arbitration and eliminating the risks of contradictory judgments was impossible.
Continue reading “Québec – no abuse of procedure if losing arbitral party obliges non-parties to litigate their liability for similar claims – #440”Ontario – findings of fact which established legal obligations also prevent raising question of law – #439
In 1852998 Ontario Limited v. HCC No. 227, 2021 ONSC 21, Mr. Justice Andrew J. Goodman denied leave to appeal on a question of law, holding that the arbitrator’s determinations of a condominium rule’s validity and compliance with the Condominium Act, 1998, SO 1998, c 19 rested on findings of fact concerning uses of the units generally and the historical interpretation of the declaration by the corporation. The arbitrator’s findings of fact also involved whether the condominium’s vote on setting aside the rule was valid and resulted in a valid rule prohibiting Appellants’ retail sale of cannabis products. Despite denying leave, Goodman J. used his “equitable prerogative” to modify the delays in the Amended Award , extending the time for performance and thereby allowing the arbitral party subject to the orders sufficient time to exhaust its inventory.
Continue reading “Ontario – findings of fact which established legal obligations also prevent raising question of law – #439”Québec – alleged abuse of procedure in court prior to referral to arbitration is subject to court sanction not arbitration – #438
Despite the brevity of her decision, Madam Justice Carole Therrien in Dupont v. Langlois, 2021 QCCS 136 underscored a key distinction between the court’s oversight triggered by parties litigating before the court despite a binding agreements to arbitrate. Though Plaintiff voluntarily discontinued his action following Defendant’s application to decline jurisdiction, Therrien J. held that Defendant’s claim for abuse of procedure pursuant to articles 51-56 of the Code of Civil Procedure, CQLR c C-25.0 was made before Plaintiff’s discontinuance and in the context of management of the litigation. Acknowledging that the action stemmed from a dispute involving the contract, Therrien J. determined that the alleged procedural abuse by Plaintiff took place in the context of a judicial procedure before the Superior Court and it is the court which had the authority to sanction abuse, if need be.
Continue reading “Québec – alleged abuse of procedure in court prior to referral to arbitration is subject to court sanction not arbitration – #438”Saskatchewan – ‘only logical to modernize’ New York Convention ‘agreement in writing’ to include text/ e-mail exchange – #437
In Parrish & Heimbecker Ltd. v. TSM Winny AG Ltd., 2020 SKQB 348, Mr. Justice Richard W. Elson held that the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) mention of an “agreement in writing” in the definition of an agreement to arbitration was “inclusive” and imposed no formal requirement that an “agreement in writing” needed to be signed. “Given the absence of text and email messages in 1958, when the New York Convention was created, I think it only logical for the Court to modernize these words and find that the reference to “telegrams” should include other similar forms of electronic communication, such as facsimile, text and email messages”. Though applicant’s submissions referred to but produced no certified copies of the agreement to arbitrate or award, Elson J. adjourned the application for recognition and enforcement to allow applicant to file the certified copies. When recognizing and enforcing the appellate arbitral tribunal’s award issuing from an administered arbitration, Elson J. further acknowledged there was “little doubt” that the appeal panel “premised its analysis on a basis that was not part of either the notice of appeal or the respective arguments it received” but concluded that doing so did not justify a dismissal of the application. “I accept that it was unfortunate for the Appeals Committee to have addressed the question in the manner it did, without giving the parties an opportunity to address the point” but that the appeal panel “clearly believed it was entitled to act as it did”.
Continue reading “Saskatchewan – ‘only logical to modernize’ New York Convention ‘agreement in writing’ to include text/ e-mail exchange – #437”Québec – litigants’ membership in professional association binds them to arbitrate disputes – #436
In brief reasons, Mr. Justice Éric Couture in Diamond Diamond Real Estate Inc. v. Londono Realty Group Inc., 2021 QCCQ 176 dismissed an action for payment of commissions, holding that the litigants’ membership in a real estate association included bylaws submitting their dispute to mandatory arbitration. The dispute resolution bylaw also stipulated that disputes subject to arbitration under the membership bylaw must be submitted within one (1) year from the date of the transaction. As the action concerned an October 2016 transaction, Couture J. dismissed the action rather than stay it or refer the parties to arbitration. The facts serve as a sample situation in which parties are bound to arbitrate (i) by virtue of their membership in an association rather than having negotiated a contract and included an agreement to arbitrate and (ii) within a time frame shorter than applicable prescription/limitation periods.
Continue reading “Québec – litigants’ membership in professional association binds them to arbitrate disputes – #436”B.C. – expert determination not conducted in accordance with dispute resolution process may be error in law – #435
In Grewal v. Mann, 2021 BCSC 220, the parties disputed the impact of a property valuation which issued from an expert determination process established in their settlement agreement. Mr. Justice Peter H. Edelmann granted leave to appeal on three (3) grounds which he determined raised extricable questions of law: (i) the arbitrator allowed his focus on the overall factual matrix to overwhelm the words of the settlement and selected a property valuation method “directly at odds” with Petitioner’s ownership of the property and a date agreed to by the parties; (ii) while mistake or error on the part of an expert determination is not by itself sufficient to invalidate the valuation, the mistake may show that the expert’s determination did not comply with the contract; (iii) there was no evidence before the arbitrator that the parties challenged the valuation and that it is “well-established that it is an error of law to make a finding of fact for which there is no evidence”.
Continue reading “B.C. – expert determination not conducted in accordance with dispute resolution process may be error in law – #435”