In Elgin Mills v. Farhanian, 2020 ONSC 6435, Master Karen E. Jolley granted an application for a stay, holding that a defendant does not attorn to the court process by filing a defence wherein it specifically raises the arbitration provision. Master Jolley followed the precedent set by ABN Ambro Bank Canada v. Krupp Mak Maschihnenbau GmbH, 1996 CanLII 12449 (ON SCDC) which held that reference to arbitration in a defence may be treated as a request to arbitrate, “were one needed“. She further held that defendant’s delayed application for a stay, coupled with light activity in the litigation, did not justify refusing stay and that the work in the litigation could be repurposed for an arbitration.
Continue reading “Ontario – raising arbitration in defence helps demonstrate defendant did not waive arbitration – #414”Québec – sequential arbitrations without exclusion of courts renders clause invalid in real rights litigation – #413
Distinguishing between actions involving personal and real rights, Mr. Justice Martin Castonguay in Specter Aviation v. Laprade, 2020 QCCS 4392 held that article 3148 para. 2 of the Civil Code of Québec, CQLR c CCQ-1991 did not apply to deny the court’s jurisdiction when a party invoked an agreement to arbitrate. Rather, article 622 of Code of Civil Procedure, CQLR c C-25.01 governed when the dispute involved ownership of an aircraft and it required him to consider whether the parties had negotiated a binding, mandatory agreement to arbitrate. Castonguay J. determined that the parties’ agreement to arbitrate was ambiguous and invalid, including a mention of two (2) sequential arbitrations and lacking an express exclusion of the courts if the parties did undertake arbitration.
Continue reading “Québec – sequential arbitrations without exclusion of courts renders clause invalid in real rights litigation – #413”Alberta – court rules permitting appeal of Master’s stay decision consistent with section 7(6) of Arbitration Act – #412
In Agrium, Inc v. Colt Engineering Corporation, 2020 ABQB 807, Madam Justice Nancy Dilts held that unsuccessful applicants could appeal to a justice of the court a Master’s decision refusing a stay under section 7(1) of the Arbitration Act, RSA 2000, c A-43. The legislated right of appeal from a Master’s decision under the Alberta Rules of Court, Alta Reg 124/2010 does not contradict the policy decisions underlying the Arbitration Act. The Court of Queen’s Bench Act, RSA 2000, c C-31 “creates layers of decision making authority” and section 7(6) did not intend to render Master’s decisions on stay applications “unappealable”. Section 7(6) should “not be read in a manner that would be inconsistent with that legislated right”. Having jurisdiction to hear the appeal, Dilts J. held that she retained jurisdiction under section 7(1) to consider waiver and attornment notwithstanding expiry of a limitation period in which to commence arbitration.
Continue reading “Alberta – court rules permitting appeal of Master’s stay decision consistent with section 7(6) of Arbitration Act – #412”Ontario – enforcing award’s remedy excludes substituting court’s own remedy – #411
In Abittan v. Wilcox, 2020 ONSC 6836, Mr. Justice Frederick L. Myers reiterated the “consequences” of agreeing to submit disputes to arbitration, limiting his involvement by “[i]gnoring the merits of the Arbitrator’s decisions, as I must, and considering only the nature and form of remedy granted”. Enforcing the award which ordered one party to pay the other the costs of the arbitration, Myers J. explained that section 50(7) of the Arbitration Act, 1991, SO 1991, c 17 did not authorize him to change the remedy ordered in an award. Doing so would not be enforcing an award but substituting the court’s award for that of the arbitrator.
Continue reading “Ontario – enforcing award’s remedy excludes substituting court’s own remedy – #411”Ontario – exceptions to solicitor-client and settlement privileges arise in post-settlement dispute – #410
In Laliberté v. Monteith, 2021 ONSC 14, Madam Justice Sandra Nishikawa ordered Respondent to answer questions and to provide his lawyer’s complete file. First, she determined that Respondent had waived solicitor-client privilege over exchanges relating to a disputed, negotiated settlement. Though Respondent’s pleadings were “carefully drafted to avoid putting the Respondent’s state of mind, and any legal advice that might have had an impact on his state of mind, at issue”, Respondent’s denials did put in issue his state of mind and his reliance on legal advice in not disclosing facts material to Applicant’s decision to enter into the settlement. Second, Nishikawa J. further held that the record justified applying an exception to settlement privilege, namely where “a party perverts the purpose of a settlement negotiation and attempts to use it to mislead the other party into changing its position”.
Continue reading “Ontario – exceptions to solicitor-client and settlement privileges arise in post-settlement dispute – #410”B.C. – commercial dispute “foundationally different” from investor-state claim – #409
In lululemon athletica canada inc. v. Industrial Color Productions Inc., 2021 BCSC 15, Mr. Justice Gordon S. Funt determined that a standard of reasonableness applied to the court’s review of jurisdictional challenges in consensual arbitration. He distinguished Mexico v. Cargill, Incorporated, 2011 ONCA 622, stating that “[a] dispute involving two commercial parties over the termination of a private contract is, without more, foundationally different than a claim for damages against a country under NAFTA engaging international multilateral trade agreement or treaty interpretation principles”. Also, Funt J. dismissed the requirement for a more express or “paint by numbers” treatment of a party’s jurisdictional argument, stating that “the parties’ expectations as to the completeness of the arbitrator’s reasons is less than those of parties engaged in commercial litigation before a judge”.
Continue reading “B.C. – commercial dispute “foundationally different” from investor-state claim – #409″Québec – no second opinion on issue determined by award issued by physician arbitrator – #408
In Rivain v. La Capitale assureur de l’administration publique Inc. (La Capitale, assurances et services financiers), 2020 QCCS 3936, Mr. Justice Christian Immer declined to order parties to re-arbitrate an issue determined by a physician arbitrator under an insurance policy. That policy submitted medical disputes to arbitration before a physician and subjected awards to the typical three (3) post-award options available to arbitral parties: compliance, homologation, annulment. Immer J. did determine that the policy anticipated a 4th option, namely a subsequent arbitration before another medical specialist if the 1st arbitrator determined that the medical dispute fell within that other medical speciality. Immer J. also noted that, despite the complexity of the facts, a court was better placed to determine the jurisdictional issue, rather than defer to a first determination by the arbitrator, as the request to refer the parties to arbitration raised principally a question of law.
Continue reading “Québec – no second opinion on issue determined by award issued by physician arbitrator – #408”B.C. – errors interpreting and applying the law eligible for appeal on questions of law but not for set aside – #407
In Spirit Bay Developments v. Scala Developments, 2020 BCSC 1839, Mr. Justice Robert Johnston granted leave to appeal for three (3) questions of law which he determined had arguable merit but dismissed the application to set aside the award. A pair of questions involved misinterpretation and application of applicable case precedents and a third arose from the “arguably defective” pleading made by the party resisting appeal of the award. Refusing to set aside the award on the basis of legal error, Johnston J. noted that the alleged error of law would be determined on appeal. “Additionally, the parties clothed the arbitrator with the power to decide their dispute, and that includes the power to be wrong in interpreting and applying the law”.
Continue reading “B.C. – errors interpreting and applying the law eligible for appeal on questions of law but not for set aside – #407”Ontario – omission to stipulate language of arbitration and then require bilingual arbitrator creates delays – #406
In Hodder v. Eouanzoui, 2020 ONSC 7905, Mr. Justice Robert N. Beaudoin asserted jurisdiction under section 16(3) of Arbitration Act, 1991, SO 1991, c 17 to appoint a substitute arbitrator in an administered arbitration where neither the parties’ agreement to arbitrate nor the administering institution’s rules provided a process to appoint a substitute. The institution temporarily lacked a sufficient number of bilingual arbitrators on its roster and, during that period, Applicant applied to the court for assistance. The requirement that the arbitrator be bilingual did not appear in the agreement to arbitrate, arising after service of the notice to arbitrate, and appeared to result by consensus, combining the parties’ respective positions on the appropriate language of the arbitration. When confirming his orders, Beaudoin J. also formalized the bilingual status of the arbitration.
Continue reading “Ontario – omission to stipulate language of arbitration and then require bilingual arbitrator creates delays – #406”Alberta – court has no authority to impose private arbitration absent parties’ consent or an agreement – #405
In Stuve v. Stuve, 2020 ABCA 467, Alberta’s Court of Appeal upheld a chambers judge’s refusal to order the parties to engage in binding arbitration, agreeing that a judge has no jurisdiction to impose private arbitration without consent of the parties or an agreement to that effect. The Court held that “[s]pecific legislative language would be required for the court to have the power to require parties to participate in an extra judicial private process such as arbitration”. Neither the Alberta Rules of Court, Alta Reg 124/2010 or the Arbitration Act, RSA 2000, c A-43 empowered the judge to do so. “The parties commenced litigation in the publicly funded courts, and are entitled to access to court processes to resolve their dispute. Citizens have a right to access to the court, which is the public dispute resolution institution”.
Continue reading “Alberta – court has no authority to impose private arbitration absent parties’ consent or an agreement – #405”