To decide whether to exercise her discretion to stay duplicative proceedings involving administrative action taken in two (2) provinces, Madam Justice Susan L. Bercov in Mema v. Chartered Professional Accountants of Alberta, 2020 ABQB 486 drew on principles stated in UCANU Manufacturing Corp v. Calgary (City), 2015 ABCA 22 which considered whether to issue a stay when the duplicative proceedings involved a court action and an arbitration. Bercov J. declined to exercise her discretion due to applicant’s failure to meet his evidentiary burden to establish the overlap and status of the duplicative proceedings. Her comments on applicant’s evidence help guide arbitration practitioners invoking overlap with arbitration. The note also lists recent Alberta cases applying those principles to stays involving arbitration.
Continue reading “Alberta – stay application lacks evidence required to demonstrate overlap/status of duplicative proceedings – #371”Ontario – arbitrator’s interpretation of settlement raises extricable question of law and jurisdictional issue – #370
In Camerman v. Busch Painting Limited et al., 2020 ONSC 5260, Mr. Justice Paul B. Schabas both varied and set aside a portion of an award due to the arbitrator’s contractual interpretation of the scope of issues subject to arbitration under a settlement. Schabas J. determined that the parties, by their settlement, had “reset the dial” between them and the award breached the scope of disputes subject to arbitration. The arbitrator’s award relied on his interpretation of the settlement and exceeded the terms of the settlement. That interpretation raised an extricable question of law identified by Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, qualifying that issue for leave to appeal under section 45(1) of Ontario’s Arbitration Act, 1991, SO 1991, c 17. Schabas J. also held that the same facts demonstrated a jurisdictional error covered by section 46(1)3 and an order setting aside the same portion of the award.
Continue reading “Ontario – arbitrator’s interpretation of settlement raises extricable question of law and jurisdictional issue – #370”N.L. – agreement to arbitrate renewal option’s financial terms ensures lease is enforceable – #369
In Copper Stop Limited v. Parkland Fuel Corporation, 2020 NLSC 114, Madam Justice Kendra J. Goulding had to resolve a lease dispute which arose when the lessee sought to exercise an option to renew but for which the lease provided no specific term governing the method or time within which to exercise that option. Despite lessor’s argument that the lease was enforceable, Goulding J. held that the option to renew was enforceable as the financial terms of the renewal option were capable of being made definite through imposition by the arbitrator. The ability to arbitrate if negotiations failed made the lease’s renewal option more than just “an agreement to agree”.
Continue reading “N.L. – agreement to arbitrate renewal option’s financial terms ensures lease is enforceable – #369”Ontario – anti-suit injunction restrains party bound by Ontario arbitration award from pursuing parallel U.S. litigation – #368
In Borschel v. Borschel, 2020 ONSC 4395, Mr. Justice Lorne Sossin issued an anti-suit injunction restraining a party to arbitration awards subject to Ontario law from pursuing parallel proceedings in a U.S. jurisdiction. Sossin J. also dismissed arguments challenging enforcement of the awards based on legislative provisions requiring parties to sign any agreement reached as part of the court process. Sossin J. held that the provisions did not serve to invalidate awards which had issued on consent and where consent of the parties had been communicated by counsel.
Continue reading “Ontario – anti-suit injunction restrains party bound by Ontario arbitration award from pursuing parallel U.S. litigation – #368”Alberta – challenge to validity of agreement to arbitrate cannot evade application of Arbitration Act – #367
In Aldred Estate (Re), 2020 ABQB 469, Mr. Justice Craig M. Jones held that a court’s discretion to refuse a stay under section 7(2) of the Arbitration Act, RSA 2000, c A-43 was limited to specific circumstances and a potential for inefficiency did not empower courts to disregard a statutory imperative. Despite challenges to the validity of the arbitration agreement, a court may grant the stay and allow the arbitrator to determine allegations of invalidity. Jones J. dismissed as “insupportable” the argument that the Arbitration Act did not apply if a party challenged the validity of agreement to arbitrate. Referring to sections 7(2)(b) and section 17(3), Jones J. held that these provisions would make no sense if an invalid arbitration agreement rendered the Arbitration Act inapplicable.
Continue reading “Alberta – challenge to validity of agreement to arbitrate cannot evade application of Arbitration Act – #367”Manitoba – facts raising claim subject to arbitration, but common to judicial review, disregarded – #366
Despite overlap in facts, Mr. Justice James G. Edmond in Ladco Company Limited v. The City of Winnipeg, 2020 MBQB 101 declined to include an alleged breach of contract issue as an issue ancillary to judicial review applications, observing only that, if valid, that alleged breach should be determined by another procedural mechanism such as arbitration provided in the parties’ agreements. The facts in the record involved both (i) a 2016 exercise of a city’s statutory powers and the constitutionality of a by-law and resolution and (ii) a breach of contract issue arguably subject to an agreement to arbitrate. Despite acknowledging that certain facts in the record overlapped with issues properly raised for judicial review, Edmond J. held that he would disregard those facts involving breach of contract and would “leave that issue to another day”.
Continue reading “Manitoba – facts raising claim subject to arbitration, but common to judicial review, disregarded – #366”Québec – court suspends own process, requires parties take arbitration-related steps prior to decision on stay – #365
In Syndicat de la copropriété Clark et Fleury v. Généreux, 2020 QCCS 1835, Mr. Justice Mark Phillips issued a sequence of orders regarding the parties’ to exhaust the steps related to each of their competing dispute resolution procedural approaches. Without pre-determining either party’s rights either to pursue freshly-filed litigation or to obtain referral to arbitration, Phillips J. suspended his own involvement in a referral application and, during that suspension, imposed steps to complete procedural arguments for/against arbitration in two (2) court files. His orders included ‘recommending’ the parties exercise certain rights in their agreement to arbitrate prior to a later but near-in-time date at which he would resume involvement. Phillips J. limited his involvement to ensuring completion of all steps necessary to (i) the agreement to arbitrate and (ii) contesting the court’s jurisdiction, under reserve of any upcoming decision that the agreement to arbitrate applied to the disputes.
Continue reading “Québec – court suspends own process, requires parties take arbitration-related steps prior to decision on stay – #365”Ontario – professional negligence claims stem in part from arbitration agreement’s procedural options – #364
In HQIC and Circlemed Inc. v. Hamdani, 2020 ONSC 3403, Madam Justice Cynthia Petersen considered allegations made by clients against their former counsel of record in an arbitration and the negotiations which resolved the arbitration. Though her reasons focus on whether the record was sufficient/appropriate to allow her to grant summary judgment (no, it was not), Petersen J.’s analysis disclosed certain risks inherent for counsel in commercial arbitration when (i) stepping into a new brief and (ii) responding post-resolution to a client’s alleged dissatisfaction over the conduct and settlement of the arbitration. The record also highlights the opportunities for preliminary skirmishing created by inserting procedural options into an agreement to arbitrate which can be triggered merely by how either party frames its action.
Continue reading “Ontario – professional negligence claims stem in part from arbitration agreement’s procedural options – #364”Ontario – Mareva injunction and increased costs ordered where arbitral award funds were core of dispute – #363
In awarding costs on a substantial indemnity basis in Ndrive v. Zhou, 2020 ONSC 4568, Mr. Justice John R. McCarthy drew attention to a defendant’s conduct which “unnecessarily extended and complicated” Mareva injunction proceedings in which arbitral award funds were the “core of the dispute between the parties”. McCarthy J. underlined the importance of Mareva injunctions as a tool in civil litigation “to address the problem posed when a defendant utilizes the time lag between a claim being prosecuted and a plaintiff’s attainment and execution upon a judgment to divest itself of assets which would otherwise be available to satisfy that judgment in whole or in part”. Also, see notes regarding an arbitrator’s jurisdiction under the Arbitration Act, 1991, SO 1991, c 17 to issue ex parte preservation orders against arbitral parties and an arbitrator’s lack of jurisdiction to issue Mareva injunctions against non-parties.
Continue reading “Ontario – Mareva injunction and increased costs ordered where arbitral award funds were core of dispute – #363”Alberta – alleged limitations of arbitration unproven/insufficient to grant jurisdiction to regulator – #362
In FortisAlberta Inc v. Alberta (Utilities Commission), 2020 ABCA 271, Mr. Justice Jack Watson refused leave to appeal from a regulator’s decision that it lacked jurisdiction over costs otherwise subject to arbitration. Watson J. held that a “harmonious reading” of legislation governing the regulatory environment created jurisdiction for both regulator and arbitration tribunals. He resisted appellant’s alleged efforts to “confect” a “solemnly commercial sounding term” to bring the dispute within the regulator’s jurisdiction. Watson J. also determined that any alleged limitations in the arbitration process were insufficient to empower the regulator to “effectively override” the parties’ contracts. As appellate gatekeeper, Watson J. concluded that a full panel was unlikely to find the claim of inadequacy of arbitration anything more than just a claim supported only by appellant’s own say so.
Continue reading “Alberta – alleged limitations of arbitration unproven/insufficient to grant jurisdiction to regulator – #362”