In Uber Technologies Inc. v. Heller, 2020 SCC 16, the Supreme Court of Canada introduced a third exception to its general rule that jurisdiction challenges should be referred first to the arbitrator. The exception contemplates scenarios in which validity of the arbitration agreement might not be determined if arbitration is too costly or inaccessible due to costs, distance or even a choice of law clause circumventing mandatory local policy. Staying an action in favour of arbitration would deny relief for claims made under the agreement and insulate disputes from resolution. The Court also asserted that unconscionability involves both inequality and improvidence but does not require intention. The Court further confirmed that employment disputes are not “commercial” for the purpose of the International Commercial Arbitration Act, RSO 1990, c I.9.
Continue reading “Supreme Court – courts should not refer jurisdiction challenge to arbitrator if real prospect that challenge might never be resolved – #344”B.C. – alleged breach of unclear settlement agreement requires lengthy trial to discern rights/obligations – #343
Following 18 days of proof and hearing, Mr. Justice J. Christopher Grauer in Great Corner Stone Ltd. v. Vancouver Cabinets Inc., 2020 BCSC 107 puzzled through a “bewildering” set of initial contracts and a “poorly drafted” settlement agreement purporting to “reset” the relationship. Grauer J. struggled to identify what the mediate resolved, concluding that the settlement agreement “does not offer much guidance”. Overall, Grauer J. held that discerning what rights and obligations were placed on the parties “was not a problem of ambiguity, but rather one of inexpert drafting and lack of clarity”.
Continue reading “B.C. – alleged breach of unclear settlement agreement requires lengthy trial to discern rights/obligations – #343”Saskatchewan – availability and final nature of partial discontinuance of claims in arbitration considered – #342
In Poffenroth Agri Ltd. v Brown, 2020 SKCA 68, Saskatchewan’s Court of Appeal held that a notice of discontinuance filed in a civil action was interlocutory, not final, in nature and required leave to appeal. Observing the limited number of precedents, the Court referred to but distinguished the reasoning and result in Ontario First Nations (2008) Limited Partnership v. Aboriginal Affairs (Ontario), 2013 ONSC 7141 which considered whether an arbitral panel’s decision to accept a claimant’s partial withdrawal of its notice of arbitration was final or not and, if subject to appeal, permitted under Ontario’s Arbitration Act, 1991, SO 1991, c 17.
Continue reading “Saskatchewan – availability and final nature of partial discontinuance of claims in arbitration considered – #342”Ontario – Appeal Court questions why arbitrate under a statute if statute does not apply to both parties – #341
In Travelers Insurance Company of Canada v. CAA Insurance Company, 2020 ONCA 382, Ontario’s Court of Appeal set aside an award which issued following a statutory arbitration because the Ontario statute did not apply to the defendant. The Court questioned how did Ontario statutory accident benefits for a Nunavut accident come to be arbitrated under Ontario’s Insurance Act, RSO 1990, c I.8 if that legislation’s priority rules only apply if both insurers are subject to those rules. The Court identified as a “serious” error the arbitrator’s determination that the Insurance Act applied to the defendant insurer. Despite that error, the Court is silent on (i) how/when parties can consent by contract to submit to statutory arbitration under a statute which does not apply to one of them and (ii) why apply the standard of review applicable to statutory arbitrations, recently restated in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, to an appeal from a consensual arbitration.
Continue reading “Ontario – Appeal Court questions why arbitrate under a statute if statute does not apply to both parties – #341”New Brunswick – detailed time summaries not a condition precedent to arbitrator’s ability to award costs – #340
In Jammin Rock Resources v. Dowd & Associates, et al., 2020 NBQB 102, Mr. Justice Daniel J. Stephenson denied leave to appeal a cost award which issued in favour of respondents further to their successful pre-hearing motion to determine that claimants’ arbitration was statute-barred. Stephenson J. refused to characterize the arbitrator’s discretion on costs as equivalent to a taxation. Despite objections to the summary evidence provided to and relied on by the arbitrator, Stephenson J. wrote that he was not aware of any jurisprudence mandating that arbitrators must have detailed time summaries as a condition precedent to their ability to award costs and that no provision of the Arbitration Act, RSNB 2014, c 100 mandates that an arbitrator must have detailed computer-generated time summaries prior to allocating costs. The facts also confirmed the arbitrator’s authority to make a determination with final effect prior to the merits hearing and on documentary evidence.
Continue reading “New Brunswick – detailed time summaries not a condition precedent to arbitrator’s ability to award costs – #340”Québec – trial judge on own initiative quashes subpoena issued to mediator – #339
Without need for application by either the opposing party or the proposed witness, Madam Justice Céline Gervais in PC Avocats inc. (Perras Couillard Avocats) v. Perreault, 2020 QCCQ 1972 quashed a subpoena sent to the attorney who served as mediator in court-supported mediation. In quashing it proprio motu, Gervais J. explained to the self-represented litigant that the mediator was not compellable and all that transpired during the mediation was confidential. Gervais J. also commented on the role/liability of lawyers in a client’s own decision to engage in mediation and negotiate a settlement.
Continue reading “Québec – trial judge on own initiative quashes subpoena issued to mediator – #339”Québec – forum selection clause does not eliminate courts’ jurisdiction to issue provisional measures – #338
In Associated Foreign Exchange Inc. v. 9189-0921 Québec Inc. (MBM Trading), 2020 QCCS 1823, Mr. Justice Michel A. Pinsonnault determined that the courts of Québec had jurisdiction to issue a Mareva injunction over assets located in Québec despite the parties’ prior, uncontested agreement that the courts of Ontario had exclusive jurisdiction over the merits of their dispute. Pinsonnault J. found support for that determination based on the clearer result, set out expressly in Québec’s substantive and procedural codes, confirming the Québec courts’ jurisdiction to issue provisional measures despite a final and binding agreement to arbitrate binding the parties and excluding the courts.
Continue reading “Québec – forum selection clause does not eliminate courts’ jurisdiction to issue provisional measures – #338”B.C. – Hells Angels’ mediation is not unlawful even if subject matter may involve alleged unlawful activity – #337
In British Columbia (Director of Civil Forfeiture) v. Angel Acres Recreation and Festival Property Ltd., 2020 BCSC 880, Mr. Justice Barry M. Davies determined that mediation of disputes by or between Hells Angels’ members/chapters is not an unlawful activity under B.C.’s Civil Forfeiture Act, SBC 2005, c 29 even if the subject matter of the disputes may involve unlawful activity. In refusing to grant forfeiture of clubhouses used by the Hells Angels, Davies J. determined that use of the clubhouses as venues to resolve disputes did not constitute the use of property to engage in unlawful activity. He agreed that the Director of Civil Forfeiture had proven that mediation of disputes among Hells Angels’ members/chapters plays a role in ensuring relative harmony within the Hells Angels so that internal discord is kept to a minimum but disagreed that the Director had proven that “resolving these disputes maintains the Hells Angels brand so that members and associates of the club continue to benefit from the opportunity to monetize the brand through criminal means”.
Continue reading “B.C. – Hells Angels’ mediation is not unlawful even if subject matter may involve alleged unlawful activity – #337”Ontario – oppression remedy grants party control of dispute resolution covered by funding agreement – #336
In 1515474 Ontario Inc. v. Soocellus Ontario Inc., 2020 ONSC 270, Ontario’s Divisional Court upheld an order granting a shareholder control of the conduct of ongoing dispute resolution. Post-sale of G’s shares in F Co., G retained non-voting shares in F Co. with a right to receive net proceeds in F Co.’s litigation so long as G provided litigation funding and met other financial terms. F Co.’s eventual decisions to reduce activity in the litigation, to seek an end to it and to mediate so as to “accept the best reasonable offer we are able to negotiate” combined to qualify as oppression justifying the grant of litigation control. The order sought to rectify for breach of G’s reasonable expectations created by the sale of G’s shares in a company engaged in litigation but, unlike other oppression remedies, limited the grant of control to the conduct of litigation and not overall operations of F Co.
Continue reading “Ontario – oppression remedy grants party control of dispute resolution covered by funding agreement – #336”Ontario – securities commission exempts filer from filing even redacted copies of litigation funding agreements – #335
In Stans Energy Corp. (Re), 2019 CanLII 36437 (ON SEC), the Ontario Securities Commission granted an exemption to a filer from filing two (2) litigation funding agreements despite the documents qualifying as material contracts under Ontario’s 51-102 – Continuous Disclosure Obligations. To issue the exemption, the Securities Commission relied on (i) prior disclosure of key information, (ii) privilege and confidentiality issues which would be violated if further disclosure was made as well as (iii) not compromising the filer’s relationship with the funders.
Continue reading “Ontario – securities commission exempts filer from filing even redacted copies of litigation funding agreements – #335”