In Paulpillai Estate v. Yusuf, 2020 ONCA 655, Ontario’s Court of Appeal held that it lacked jurisdiction to hear an appeal of a motion judge’s order regarding a stay in favour of arbitration. No formal motion had been made to refer the dispute to arbitration, the motion judge’s dispositive order was silent on the issue of arbitration and any comments on waiver of arbitration were merely obiter. Even assuming that an order might have been made, the Court held it lacked jurisdiction because section 7(6) of the Arbitration Act, 1991, SO 1991, c 17 stipulated no appeal lay from a decision under section 7. For a more in-depth look at how and whether section 7(6) applies to limit appeals, see the equally recent Court of Appeal decision in Toronto Standard Condominium Corporation No. 1628 v. Toronto Standard Condominium Corporation No. 1636, 2020 ONCA 612 and the related Arbitration Matters note “Appeal court reaffirms jurisdiction for appeal of stay decision where decision holds arbitration agreement does not apply“.
Continue reading “Ontario – no appeal lies from an order refusing a stay whether order was made or not – #384”Québec – agreement giving one party privileged position to designate arbitrator subject to “blue-pencil” severance – #383
In Caron v. 7834101 Canada inc. (Triviom à Charlemagne), 2020 QCCS 2859, Mr. Justice Stéphane Lacoste severed a portion of an agreement to arbitrate which violated the rule against placing one party in a privileged position with respect to the designation of the arbitrator. Rather than declare null the entire agreement to arbitrate, as had an earlier court when faced with the same agreement, Lacoste J. struck the provision, likening the relief to the “blue-pencil” severance explained and applied in Shafron v. KRG Insurance Brokers (Western) Inc., 2009 SCC 6 (CanLII), [2009] 1 SCR 157. To do so, Lacoste J. combined articles 2641 and 1438 of the Civil Code of Québec, CQLR c CCQ-1991 and, having done so, referred the parties to arbitration.
Continue reading “Québec – agreement giving one party privileged position to designate arbitrator subject to “blue-pencil” severance – #383”Federal – appointing authority’s breach of appointment provisions raise no reasonable apprehension of bias – #382
In Grey v. Whitefish Lake First Nation, 2020 FC 949, Madam Justice Cecily Y. Strickland dismissed challenges to an arbitrator’s decision, applying correctness as the standard of review for questions of procedural fairness, including those which encompass issues of bias. Despite the appointing authority’s breach of the “clear and unambiguous” regulations for appointing the arbitrator, the breach was not raised on appeal and did not affect the procedural fairness of the arbitration. The arbitrator’s previous appointment did not give rise to a reasonable apprehension of bias.
Continue reading “Federal – appointing authority’s breach of appointment provisions raise no reasonable apprehension of bias – #382”B.C. – court qualifies parties’ agreement to require only summary reasons as “penny-wise and pound-foolish” – #381
In Nolin v. Ramirez, 2020 BCCA 274, B.C.’s Court of Appeal set aside part of an arbitration award which rested on the arbitrator’s dismissal of a party’s evidence as suspicious in one context and reliance on it in another. The handling of the evidence was so inconsistent that the Court found it “impossible to understand how the arbitrator came to his conclusion” on the related issues and the arbitrator provided no justification in the summary reasons agreed to by the parties. Without more explanation in the brief reasons and unable to reconcile the findings and conclusions, the Court set aside that portion of the award related to the handling of that evidence.
Continue reading “B.C. – court qualifies parties’ agreement to require only summary reasons as “penny-wise and pound-foolish” – #381”B.C. – award’s short-form reference to party insufficient to refuse recognition and enforcement – #380
Despite ambiguity in the award’s use of a “short-form reference” to refer to the winning party, B.C.’s Court of Appeal in Macdonald Realty Ltd. v. Metro Edge Holdings Ltd., 2020 BCCA 272 declined to refer the parties back to the arbitration panel to clarify the name as doing so would be an “unnecessary expense to the parties and would not change the result”. The Court held that, despite the variation in the legal name, the award and decision in first instance validly identified the winning party. The Court also readily dismissed post-award challenges, in first instance and on appeal, limited to contesting the facts in dispute. The court reminded challengers that such an approach is misdirected given that an application to recognize and enforce an award is not a hearing on merits of the arbitrated dispute.
Continue reading “B.C. – award’s short-form reference to party insufficient to refuse recognition and enforcement – #380”B.C. – “standard to interfere” with awards is “very high” to protect “speedy and final” resolution – #379
In Bosa Properties (Sovereign) Inc. v. The Owners, Strata Plan EPS2461, 2020 BCSC 1357, Madam Justice Neena Sharma reiterated that the “standard to interfere” with an arbitration award is “very high” because “people who choose commercial arbitration have elected to resolve their disputes in a forum that is speedy and final, without the intervention of the courts”. Sharma J. observed that one of the purposes of the standard “is to discourage appeals to the court”, referring to earlier Ed Bulley Ventures Ltd. v. Eton-West Construction Inc., 2002 BCSC 826 which held that “[i]f leave were granted too readily, one of the beneficial and distinguishing features of arbitration (its finality) would be lost”.
Continue reading “B.C. – “standard to interfere” with awards is “very high” to protect “speedy and final” resolution – #379”Alberta – court acknowledges litigants’ commercial interest in arbitration as alternative to court litigation – #378
In Hannam v. Medicine Hat School District No. 76, 2020 ABCA 343, Alberta’s Court of Appeal assessed the practical significance of its earlier five (5) judge panel decision in Weir-Jones Technical Services Incorporated v Purolator Courier Ltd, 2019 ABCA 49 which considered the benefits of summary judgment set out in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 SCR 87. In doing so, the majority and dissent both commented on the promised benefits of arbitration in contrast to court litigation. The present note highlights those passages to illustrate contemporary comments by the courts.
Continue reading “Alberta – court acknowledges litigants’ commercial interest in arbitration as alternative to court litigation – #378”Alberta – unambiguous wording on arbitration costs in standard contract does not merit court intervention – #377
In K-Rite Construction Ltd v. Enigma Ventures Inc, 2020 ABQB 566, Madam Justice Donna L. Shelley dismissed challenges to a costs award, holding that awarding costs is discretionary and generally will be a question of mixed fact and law. Shelley J. held that, absent some form of improper consideration, arbitrators have full discretion as to costs, may not be bound by traditional rules regarding the award of costs and using their discretion does not amount to an error of law. Shelley J. also dismissed Applicants’ challenges to the arbitration agreement’s costs provisions contained in an industry-specific contract. Despite the potential importance that standard forms may arguably have in an industry, unambiguous wording does not merit the court’s intervention.
Continue reading “Alberta – unambiguous wording on arbitration costs in standard contract does not merit court intervention – #377”Ontario – court denies tenant relief from forfeiture where tenant disregards arbitration – #376
In Hunt’s Transport Limited v. Eagle Street Industrial GP Inc., 2020 ONSC 5768, Mr. Justice David A. Broad refused to exercise his discretion to grant a commercial tenant relief from forfeiture given tenant’s refusal to abide by its obligation to continue performance during arbitration of its disputes with the landlord. Broad J. held that tenant’s conduct qualified as “wilful” self-help and justified the court in holding tenant to its obligations pending resolution of issues exclusively reserved for arbitration. Tenant’s unilateral decision to withhold payments, prior to their determination exclusively reserved in the lease to the arbitrator, played a key role in Broad J.’s reasons.
Continue reading “Ontario – court denies tenant relief from forfeiture where tenant disregards arbitration – #376”Québec – court relies on post-trial arbitration award to determine value under dispute at trial – #375
In Langlois v. Langlois, 2020 QCCS 2959, Mr. Justice Éric Hardy endorsed the court’s reliance on an arbitration award, which issued after a trial decision, to determine the amount of the value under dispute in court at trial. Hardy J. accepted that the court could use the award to calculate court costs according to a court tariff. The court trial had ordered a buyback of Plaintiffs’ shares due to oppression but also ordered the parties to engage in arbitration to determine the narrower issue of share valuation, as agreed to in their shareholders agreement.
Continue reading “Québec – court relies on post-trial arbitration award to determine value under dispute at trial – #375”