In authorizing a class action, Mr. Justice Sylvain Lussier in Société AGIL OBNL v. Bell Canada, 2021 QCCS 365 excluded from the group’s definition those members bound by standard form contracts containing an agreement to arbitrate. Representative plaintiff had not signed such a contract and evidence of the circumstances of signature would be speculative, adding that it ‘would be unfair to impose on [representative plaintiff] the burden of pleading a question which does not concern it’. Lussier J. also declined to remit the issue of the agreement to arbitrate to a subsequent declinatory motion as ‘one cannot refer a hypothetical file to a non-existent arbitrator’. Lussier J. gave the parties the opportunity to comment on Uber Technologies Inc. v. Heller, 2020 SCC 16 which issued after their hearing but distinguished it as having been decided on common law rather than civil law legislation and argued by a representative plaintiff bound by the actual disputed agreement to arbitrate. In comments preceding his consideration of Uber Technologies, Lussier J. declined to accept the invitation to adopt the dissent’s comments in TELUS Communications Inc. v. Wellman, 2019 SCC 19, [2019] 2 SCR 144 because ‘it is best to leave it to the Supreme Court to reverse or distinguish its own majority decisions’.
Continue reading “Québec – ‘best to leave it to the Supreme Court to reverse or distinguish its own majority decisions’ – #431”Manitoba – attaching conditions to award of damages is an error of law – #430
In Broadband Communications North Inc. v. 6901001 Manitoba Ltd., 2021 MBQB 25, Mr. Justice James G. Edmond held that imposing conditions on an award of damages does not comply with principles of awarding damages in breach of contract cases. Observing that the arbitrator ought to have awarded damages without conditions or required the parties to file additional evidence if the evidence was insufficient to grant the award of damages, the decision to grant a conditional award of damages resulted in the successful party receiving no compensation when it failed to satisfy the conditions. Edmond J. also expressly followed and applied the principles set in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 in choosing correctness as the standard of review in an appeal provided by statute.
Continue reading “Manitoba – attaching conditions to award of damages is an error of law – #430”Alberta – issue not “expressly” referred to arbitrator may not preclude appeal but still live enough to signal overlooked opportunity to plead – #429
Preferring the “narrow interpretation” of section 44(3) of the Arbitration Act, RSA 2000, c A-43, Madam Justice Shaina Leonard in Athan Homes Inc v. Phan, 2021 ABQB 119 determined that the fundamental breach issue had not “expressly” been submitted to the arbitrator for decision and section 44(3) did not preclude leave to appeal. Applicant did succeed in identifying a question law but Leonard J. determined that its appeal had no merit. Leonard J. also dismissed Applicant’s alternative application to set aside the award due to alleged lack of opportunity to plead on the issue of fundamental breach. Though she had determined that fundamental breach had not been referred “expressly” to the arbitrator for the purpose of section 44(3), Leonard J. also determined that the issue was before the arbitrator for the purpose of natural justice. Omitted from the parties’ Joint Memorandum list of issues submitted to the arbitrator, the fundamental breach issue was present in the pleadings and Respondents’ written argument. Applicant’s choice not to make submissions on the issue did not result in a lack of opportunity to be heard.
Continue reading “Alberta – issue not “expressly” referred to arbitrator may not preclude appeal but still live enough to signal overlooked opportunity to plead – #429”Québec – ‘state of the current case law’ justifies leave to appeal raising autonomy of agreement to arbitrate – #428
Referring to the ‘state of the current case law’, Mr. Justice Frédéric Bachand in Specter Aviation v. Laprade, 2021 QCCA 183 determined that the proposed appeal questions involving aspects of arbitral law merited the Court of Appeal’s attention. The questions included whether: (i) the judge disregarded the principle of the autonomy of the agreement to arbitrate when concluding that Applicants could not invoke both the agreement to arbitrate and the nullity of the liquidation contract containing it; (ii) Applicants had waived the agreements to arbitrate despite having reiterated their consent to arbitrate; and, (iii) the judge incorrectly assessed the impact of article 3152 of the Civil Code of Québec, CQLR c CCQ-1991 in a contract having extraneous elements. Though he did order the suspension of the Superior Court proceedings, Bachand J.A. declined to order the suspension of the arbitration undertaken before the Chambre Arbitrale Internationale de Paris. He determined that doing so would breach the autonomy of international arbitration and violate the limitations imposed on courts by article 622 of the Code of Civil Procedure, CQLR c C-25.01.
Continue reading “Québec – ‘state of the current case law’ justifies leave to appeal raising autonomy of agreement to arbitrate – #428”Ontario – court enforces Model Law prohibition of appeals where arbitral tribunal decides jurisdiction as preliminary question – #427
On application by Respondents, Ontario’s Court of Appeal in United Mexican States v. Burr, 2021 ONCA 64 quashed the appeal of a decision in first instance dismissing a challenge to a tribunal’s preliminary decision on jurisdiction. Despite counsel’s agreement that a party could “ride both horses” and rely on both articles 16 and 34 of the UNCITRAL Model Law on International Commercial Arbitration, adopted by the United Nations Commission on International Trade Law on June 21, 1985, as amended on July 7, 2006 when challenging an arbitral tribunal’s decision on jurisdiction, the Court limited its decision to prohibiting those appeals wherein a party’s jurisdictional decision was determined as a preliminary question under article 16(3) and not in the award on the merits.
Continue reading “Ontario – court enforces Model Law prohibition of appeals where arbitral tribunal decides jurisdiction as preliminary question – #427”Ontario – “trite law” that settlement agreements are contracts subject to general law of contract – #426
Following the guidance set out in Bawitko Investments Ltd. v. Kernels Popcorn Ltd., 1991 CanLII 2734 (ON CA), Mr. Justice W. Daniel Newton in Rockwater Construction Inc. v. Coppin et al, 2020 ONSC 7956 held that a settlement failed to qualify as a binding contract. Newton J. observed that it is “trite law that settlement agreements are contracts subject to the general law of contract” and that contract interpretation principles apply equally to deadlines in agreements. Significant post-settlement disagreements over key provisions demonstrated to Newton J. that neither party had initially contemplated or agreed on all essential terms. Newton J. held that waiver of timelines in a settlement “would require clear evidence that both parties agreed that there would be no deadline for completing” the disputed steps. Despite a settlement clause requiring mediation in case of disagreement over the settlement, Newton J. determined that it was “pointless” to require the parties to return to mediation.
Continue reading “Ontario – “trite law” that settlement agreements are contracts subject to general law of contract – #426”B.C. – three-part test for stay under 1996 Arbitration Act still applies under 2020 Arbitration Act – #425
In Wilson v. Infracon Construction Inc., 2020 BCSC 2074, Madam Justice Lindsay L. Lyster held that the three-part test for a stay developed under B.C.’s former Arbitration Act, RSBC 1996, c 55 continues to apply under the new Arbitration Act, SBC 2020, c 2. To resist a stay of his wrongful dismissal action, Plaintiff argued that the agreement to arbitrate included in the employment contract was void due to conflict between B.C.’s Arbitration Act, RSBC 1996, c 55 and its Employment Standards Act, RSBC 1996, c 113. Lyster J. disagreed, following A-Teck Appraisals Ltd. v. Constandinou, 2020 BCSC 135 whose reasoning was on “all fours with the present matter”. In doing so, Lyster J. dismissed all four (4) of Plaintiff’s reasons to resist its application: the court had considered binding authorities and statutes; despite being “isolated and relatively recent”, the reasoning remained persuasive; promoting consistency with similar legislation did not justify disregarding the B.C. decision in first instance in favour of an Ontario appellate decision; and, Plaintiff failed to meet the “exceptionally high” standard to demonstrate that the decision was “palpably wrong”.
Continue reading “B.C. – three-part test for stay under 1996 Arbitration Act still applies under 2020 Arbitration Act – #425”Ontario – awards are neither “suggestions” nor “invitation to further negotiation” – #424
In van Rhijn v. van Rhijn, 2020 ONSC 8032, Madam Justice Lene Madsen reminded an arbitral party that awards were neither “suggestions” nor “an invitation to further negotiation”. Arbitration awards “spoke from when they were made”, creating obligations which required the party’s compliance, “whether he agreed with those terms or not”. The parties submitted their dispute to a med-arb process before the same neutral who, after having issued two (2) awards advised the parties of his withdrawal. Despite his withdrawal, the arbitrator retained jurisdiction to issue a costs award which he did issue after his withdrawal and after having invited costs submissions in one award released just prior to withdrawing.
Continue reading “Ontario – awards are neither “suggestions” nor “invitation to further negotiation” – #424”Saskatchewan – terms of reference “supersede” earlier agreement on leave to appeal question of law – #423
In Turpie Farms Ltd. v. 613168 Saskatchewan Ltd., 2020 SKQB 345, Mr. Justice Neil Robertson applied the last of four (4) agreements to arbitrate addressing the parties’ right to appeal on a question of law. Robertson J. held that the last-signed terms of reference signed by parties’ counsel “superseded” the parties’ earlier agreement and allowed an appeal as of right on a question of law. Though respondent disputed whether the numerous grounds raised a question of law, Robertson J. deferred that issue to the judge hearing the appeal, reasoning that “since leave to appeal is not required, I am not called upon to decide whether the proposed grounds are proper questions of law”.
Continue reading “Saskatchewan – terms of reference “supersede” earlier agreement on leave to appeal question of law – #423”P.E.I. – set aside application invoking arbitral misconduct is neither a judicial review nor an appeal – #422
In Charlottetown Equities Ltd. v. Charlottetown Airport Authority Inc., 2020 PESC 41, Madam Justice Nancy L. Key dismissed a set aside application which alleged arbitral misconduct. Stating that an applicant must support its allegation of bias by evidence, Key J. reminded that “the threshold for a finding of bias is high and suspicion is not enough”. Key J. confirmed that a set aside invoking misconduct constituted neither a judicial review nor an appeal and stressed that she must base her review on the record as a whole. The record included two (2) e-mails exchanged between the party appointed arbitrators which Key J. described as “vital” to her decision. Those e-mails formed part of the record on which the Chair had based his decision and, having been referenced by the Chair in his reasons, allowed Key J. to qualify the Chair’s reasons as sufficient. Key J. determined that applicant had agreed to the process by which the arbitration panel’s terms of reference had been drafted and, having contributed to and approved of those terms, could not afterwards allege that a panel member showed bias by drafting those terms.
Continue reading “P.E.I. – set aside application invoking arbitral misconduct is neither a judicial review nor an appeal – #422”