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”Québec – resourceful solution to confirm court-mediated settlement negotiated over videoconference – #404
In Claveau v. Distribution Jacques Cartier Inc., 2020 QCCQ 8376, Mr. Justice Pierre Simard confirmed a settlement arrived at through a court-assisted mediation conducted the day of trial despite Defendants participating by videoconferencing platform. Though the legislated process for confirming a court-mediated settlement requires litigants to sign and file in court either (i) a document confirming the settlement or (ii) the settlement agreement itself, Defendants were not present in court and unable to sign as required by legislation. In his brief judgment, Simard J. (i) recorded hearing from the mediator who reported the details of the settlement, (ii) confirmed the parties’ agreement to be bound to the settlement and (iii) issued orders reflecting the terms of the settlement. In doing so, Simard J. permitted the parties to resolve their dispute without a trial, without attending in person and without breaching applicable legislation.
Continue reading “Québec – resourceful solution to confirm court-mediated settlement negotiated over videoconference – #404”Ontario – mediator appointed as arbitrator for disputes involving settlement negotiated during later arbitration – #403
Following an unsuccessful mediation phase before a mediator regarding disputes under a 2011 agreement, the parties in The Corporation of the Township of South Stormont v. The Kraft Heinz Company, 2020 ONSC 7641 engaged in arbitration before another professional during which the parties negotiated a 2017 settlement and agreed to arbitrate disputes before the mediator. When disputes arose over the settlement, one party sought to resume the earlier arbitration but to appoint a new arbitrator. The other party resisted, arguing that they had agreed to submit disputes regarding the settlement to the mediator. Mr. Justice James E. McNamara held that the dispute was not under the main 2011 agreement but fell within the express terms of the 2017 settlement. The dispute resolution in the parties’ settlement arguably constituted a med-arb agreement.
Continue reading “Ontario – mediator appointed as arbitrator for disputes involving settlement negotiated during later arbitration – #403”Ontario – trial judge and appeal court rely on litigants’ agreement to repurpose arbitral award findings of fact – #402
In dismissing appellant’s claims that the trial judge erred in interpreting a common form of insurance contract used in the construction industry, the Court of Appeal in Sky Clean Energy Ltd. (Sky Solar (Canada) Ltd.) v. Economical Mutual Insurance Company, 2020 ONCA 558 noted that the litigants had agreed that findings of fact made in an arbitration award would bind the trial judge. Though plaintiff had unsuccessfully challenged that same award and defendant had not been a party to the arbitration, both accepted not to relitigate the findings of fact when litigating their own dispute regarding those facts.
Continue reading “Ontario – trial judge and appeal court rely on litigants’ agreement to repurpose arbitral award findings of fact – #402”