In Wang v. Mattamy Corporation, 2020 ONSC 7012, Mr. Justice Michael A. Penny dismissed Plaintiffs’ application to extend the delay in which to appeal a Master’s decision staying their action in favour of arbitration. As part of his decision making, he had to determine the merits of their proposed appeal. Based on section 7(6) of Ontario’s Arbitration Act, 1991, SO 1991, c 17 which prohibits appeals of decisions under section 7, he held that the Master’s decision “falls squarely” within section 7 and “it is not appropriate for the court to engage in an analysis of the Master’s decision because any review of it is precluded” by section 7(6).
Continue reading “Ontario – application to extend time to file appeal denied because review of stay decision precluded – #394”Ontario – resort to arbitration commercially reasonable to resolve ambiguous non-compete clause – #393
In Way v. Schembri, 2020 ONCA 691, Ontario’s Court of Appeal set aside a decision granting summary judgment which, among other determinations, had held that it was “commercially unreasonable” to consider that arbitration was suitable to resolve disputes over an ambiguous non-competition clause. As part of his reasoning, the judge in first instance had observed that one party’s “suggestion that the answer to the ambiguities and lack of details in [non-competition clause] would be resolved by an arbitrator is commercially unreasonable and something that no businessperson would agree to”. The Court of Appeal disagreed, noting that “[g]iven the presence of arbitration provisions in countless business agreements, it cannot be that their existence alone is commercially unreasonable”.
Continue reading “Ontario – resort to arbitration commercially reasonable to resolve ambiguous non-compete clause – #393”Federal – successful offer in all-or-nothing final offer arbitration can include agreement to arbitrate – #392
In Canadian National Railway Company v. Gibraltar Mines Ltd., 2020 FC 1034, Mr. Justice Michael D. Manson held that, in final offer arbitration, the absence of reasons in a decision qualified the decision as reasonable and correct. Though one party objected to the other’s final offer including an agreement to arbitrate, Manson J. held that the arbitrator had to accept either offer “in its entirety” based on which offer the arbitrator considered more reasonable. Final offer arbitration’s “all-or-nothing” approach prevents an arbitrator from extracting reasonable terms from one offer for inclusion in the other and the Canada Transportation Act, SC 1996, c 10 prohibited the arbitrator from explaining the choice made.
Continue reading “Federal – successful offer in all-or-nothing final offer arbitration can include agreement to arbitrate – #392”Saskatchewan – appeal court endorses other appeal courts’ approach to stay application appeals where arbitration agreement does not apply – #391
In Abbey Resources Corp. v. Andjelic Land Inc., 2020 SKCA 125, Saskatchewan’s Court endorsed the Ontario Court of Appeal’s reasoning in Huras v. Primerica Financial Services Ltd., 2000 CanLII 16892 (ON CA) to determine that, under section 8(6) of its The Arbitration Act, 1992, SS 1992, c A-24.1, the Court of Appel did have jurisdiction to hear an appeal of a decision in first instance which refused a stay if the decision held that that arbitration agreement did not apply. Identifying that case as the first in a “very solid line of authority” and a “significant body of case law from other provinces”, the Court held that it did have jurisdiction to hear the appeal. On the merits, the Court held that the trial judge made no error in deciding the issue of the arbitrator’s jurisdiction because the case qualified as an exception to the “methodic referral of matters to arbitration” favoured by competence-competence. “The leases would seem to be standard form contracts, the interpretation of which is of precedential value, and there appears to be no meaningful factual matrix specific to [the parties] that can inform their interpretation”.
Continue reading “Saskatchewan – appeal court endorses other appeal courts’ approach to stay application appeals where arbitration agreement does not apply – #391”Alberta – evidentiary rules for adducing videos/video stills applicable also in arbitration – #390
In R. v. Brar, 2020 ABCA 398, Alberta’s Court of Appeal analysed the Canada Evidence Act, RSC 1985, c C-5’s application to bank records including video surveillance stills and videos captured at automatic teller machines. The Court explored the reasoning behind the Canada Evidence Act’s evidentiary rules applicable to records held by financial institutions and requirements for adducing such evidence. The Canada Evidence Act expressly applies to arbitration and matters within the jurisdiction of Parliament. While the Court’s analysis applied to a criminal proceeding with its heightened standard of ‘beyond a reasonable doubt’, it still serves to guide arbitration practitioners. Subject to any adjustments occasioned by the standard of ‘balance of probabilities’ applicable in civil matters, the Court’s analysis offers arbitration practitioners meaningful insights.
Continue reading “Alberta – evidentiary rules for adducing videos/video stills applicable also in arbitration – #390”Ontario – court’s jurisdiction “not an elastic concept” – it either has or has not jurisdiction – #389
In George v. Wang, 2020 ONSC 6175, Mr. Justice James F. Diamond dismissed a defendant’s challenged to the court’s jurisdiction, determining that defendant had effectively waived the application by conduct in court. Having participated in case conferences and motions, including seeking relief on separate cross-motions, Diamond J. determined that defendant had effectively waived the application of the otherwise-valid agreement to arbitrate. Diamond J. also underlined that the court’s jurisdiction arose from plaintiff’s application as originating document and not from an earlier court order in the action.
Continue reading “Ontario – court’s jurisdiction “not an elastic concept” – it either has or has not jurisdiction – #389”Alberta – different levels of court urge the parties before them to mediate instead of litigating – #388
In separate cases, the Court of Appeal in Iyad Al-Qishawi Professional Corporation v. Alexander C. Yeh Professional Corporation, 2020 ABCA 372 and the Court of Queen’s Bench in Soloniuk Estate v. Huyghe, 2020 ABQB 616 each urged the different groups of parties before them to consider mediation as a dispute resolution. Each level of court dutifully undertook and completed the task assigned to it by the parties under the applicable Alberta Rules of Court, Alta Reg 124/2010 and, having done so, paused before closing to urge that the parties consider other forms of dispute resolution.
Continue reading “Alberta – different levels of court urge the parties before them to mediate instead of litigating – #388”Québec – use of ‘arbitration’ to label administrative proceeding no substitute for consent to statutory arbitration – #387
In Ville de Saint-Colomban v. Commission municipale du Québec, 2020 QCCS 3396, Mr. Justice Michel Yergeau dismissed judicial review of an administrative body’s decision to decline jurisdiction to conduct statutory arbitration where both parties had not expressly consented to arbitration as required by the statute. Despite the availability of arbitration before the administrative body and both parties using the term ‘arbitration’ to refer to the administrative proceeding, the term did not change the nature of the proceeding. Applying judicial review standards of review refreshed by Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 Yergeau J. determined that the decision was reasonable and intervention was unwarranted.
Continue reading “Québec – use of ‘arbitration’ to label administrative proceeding no substitute for consent to statutory arbitration – #387”Nova Scotia – court refuses to appoint arbitrator because notice to arbitrate not acted upon had expired – #386
In Site 2020 Incorporated v. Campbell, 2020 NSSC 305, Mr. Justice Jamie S. Campbell declared invalid a notice of arbitration subject to strict time limits set by the parties’ own agreement to arbitrate. Because the parties had not acted upon the notice to arbitrate in the time agreed upon, he dismissed claimant’s request to appoint an arbitrator for the otherwise ongoing dispute. Campbell J. also dismissed respondent’s request to have the court resolve the parties’ dispute, determining that the dispute was subject to the agreement to arbitrate. The facts did not mention that any limitation period applied yet and Campbell J. urged the parties to either arbitrate or negotiate.
Continue reading “Nova Scotia – court refuses to appoint arbitrator because notice to arbitrate not acted upon had expired – #386”Ontario – appeal court reaffirms jurisdiction for appeal of stay decision where decision holds arbitration agreement does not apply – #385
In Toronto Standard Condominium Corporation No. 1628 v. Toronto Standard Condominium Corporation No. 1636, 2020 ONCA 612, Ontario’s Court of Appeal delivered a masterclass in judicial reasoning/drafting. It set out the role of judicial interpretation of statutes, observed how a wrong interpretation is never right, set out its approach to overruling its own precedents, acknowledged new guidance given in TELUS Communications Inc. v. Wellman, 2019 SCC 19 (CanLII), [2019] 2 SCR 144 on section 7(5) of Arbitration Act, 1991, SO 1991, c 17 but distinguished its impact from the Court of Appeal’s well-accepted reasoning in Huras v. Primerica Financial Services Ltd., 2000 CanLII 16892 (ON CA) on section 7(6)’s application. Reasserting its interpretation on section 7(6), the Court held that it did have jurisdiction to hear an appeal of a motion judge’s decision purporting to exercise discretion under section 7(5) to deny a stay. On the merits of the appeal, the Court then applied the Supreme Court’s interpretation which overturned the Court of Appeal’s interpretation on section 7(5).
Continue reading “Ontario – appeal court reaffirms jurisdiction for appeal of stay decision where decision holds arbitration agreement does not apply – #385”