In Z v. M, 2020 BCSC 568, Mr. Justice Leonard S. Marchand declined to enforce in B.C. costs awards which issued from an arbitration conducted in Alberta under Arbitration Act, RSA 2000, c A-43. Instead, he directed the applicant to obtain first an order from the courts in Alberta recognizing and enforcing those awards and then apply to the B.C. courts under B.C.’s Court Order Enforcement Act, RSBC 1996, c 78. By express provision in their arbitration legislation, some other provinces do away with this two-step process and B.C. will do so also in its soon-to-be-in-force updated legislation.
Continue reading “B.C. – pending update to B.C. legislation, enforcing Alberta arbitral awards in B.C. subject to two-step process – #310”Québec – default is all disputes subject to broadly-worded arbitration agreement unless expressly excluded – #309
In Groupe Dimension Multi Vétérinaire Inc. v. Vaillancourt, 2020 QCCS 1134, Mr. Justice Frédéric Bachand dismissed attempts to limit an arbitral tribunal’s jurisdiction by way of presumption that statutory recourses were excluded unless expressly included. He held that the reverse approach was supported by a liberal interpretation which must be given to such agreements to arbitrate and legislative policy favouring development of consensual arbitration. Bachand J. concluded that an arbitral tribunal’s jurisdiction extends to all disputes relating directly or indirectly to the contract in which the agreement to arbitrate is inserted unless the terms of that agreement or relevant contextual elements indicate a real intention of the parties to limit its scope.
Continue reading “Québec – default is all disputes subject to broadly-worded arbitration agreement unless expressly excluded – #309”Ontario – insurer’s duty to defend in arbitration includes right to select/add new counsel and control defence – #308
In Panasonic Eco Solutions Canada Inc. v. XL Specialty Insurance Company, 2020 ONSC 1502, Mr. Justice Markus Koehnen granted in part an arbitral defendant’s application to enforce its insurer’s duty to defend. That duty also included the right under the policy to select and add new counsel in the arbitration to defend that portion of the claims made by the third party in the arbitration. The insured and insurer were bound by the allegations of fact made in the arbitration and not the legal characterization made by the third party about those facts.
Continue reading “Ontario – insurer’s duty to defend in arbitration includes right to select/add new counsel and control defence – #308”Québec – recognition granted for international award with which respondent had already complied – #307
In Metso Minerals Canada Inc. v. Arcelormittal exploitation minière Canada, 2020 QCCS 1103, Madam Justice Marie-Anne Paquette issued an order recognizing an international commercial arbitration award despite prior compliance with the payment obligations in the award. She underlined that recognition and enforcement were distinct aspects: although an award will not be enforced if it is not recognized, it can be recognized without being enforced. She further noted that the award once recognized could serve other purposes between the same parties, including their other ongoing arbitrations regarding the same grinding mill.
Continue reading “Québec – recognition granted for international award with which respondent had already complied – #307”Ontario – Zoom technology for court hearing to accommodate 500 members of the public – #306
For those interested in just how Canadian courts organize procedural hearings and maintain the public nature of those hearings in the new normal, read the brief endorsement issued April 1, 2020 by Mr. Justice David L. Corbett in Nation Rise v. Minister of the Environment, 2020 CanLII 25863 (ON SCDC). The details involve a virtual hearing scheduled for April 17, 2020 using Zoom technology organized through Arbitration Place.
Continue reading “Ontario – Zoom technology for court hearing to accommodate 500 members of the public – #306”Québec – judicial protection of parties’ confidentiality promotes public interest in arbitration – #305
In homologating an award issuing from a consensual, administered arbitration, Madam Justice Marie-Anne Paquette in 79411 USA Inc. v. Mondofix Inc., 2020 QCCS 1104 ordered that the award be kept confidential because (i) doing so encourages the use of arbitration as a dispute resolution mechanism and (ii) the public interest favors confidentiality orders to promote arbitrations and protect the expectations of the parties to the arbitration. Paquette J. also held that the burden rests on the party seeking the disclosure of otherwise confidential information to demonstrate that the good effects of disclosure outweigh the bad effects of infringing on the confidentiality expectations of parties to an arbitration. Her approach emphasizes the public interest in arbitration and does not rely merely on the private interests peculiar to the parties.
Continue reading “Québec – judicial protection of parties’ confidentiality promotes public interest in arbitration – #305”Alberta – unilateral offers to mediate/arbitrate fail to resist dismissal of litigation under “drop dead rule” – #304
In McKay v. Prowse, 2020 ABCA 131, Alberta’s Court of Appeal upheld the dismissal of Plaintiff’s litigation despite Plaintiff’s genuine but unilateral invitations to mediate or arbitrate, holding that unrequited overtures do not qualify as significant advances in a litigation. Using jurisdiction confirmed by the Alberta Rules of Court, Alta Reg 124/2010, the Court determined that Plaintiff had failed to take a significant step in three (3) years prior to the application made by Defendant. The Court cautioned that, absent a standstill agreement or a defendant’s tactics to obstruct, stall or delay, if a defendant fails to accept invitations to engage in alternate dispute resolution mechanisms, plaintiff continues to bear the onus to advance its action or risk having it struck.
Continue reading “Alberta – unilateral offers to mediate/arbitrate fail to resist dismissal of litigation under “drop dead rule” – #304”Québec – narrow definition of ‘dispute’ in agreement to arbitrate justifies refusal to nominate arbitrator – #303
In Municipalité de Caplan v. Arpo Groupe-Conseil Inc., 2020 QCCS 885, Madam Justice Michèle Lacroix refused to nominate an arbitrator due to the limited scope the parties gave to the definition of dispute in the agreement to arbitrate. She held that when an agreement to arbitrate uses imprecise terms, access to the courts must be favoured over enforcement of such clauses.
Continue reading “Québec – narrow definition of ‘dispute’ in agreement to arbitrate justifies refusal to nominate arbitrator – #303”Ontario – Vavilov does not overrule Teal Cedar or Sattva Capital – #302
In Ontario First Nations (2008) Limited Partnership v. Ontario Lottery And Gaming Corporation, 2020 ONSC 1516, Mr. Justice Glenn A. Hainey held that Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 does not refer to either Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 (CanLII), [2014] 2 SCR 633 or Teal Cedar Products Ltd. v. British Columbia, 2017 SCC 32 (CanLII), [2017] 1 SCR 688 and that it is not reasonable to conclude that the Supreme Court meant to overrule its own decisions without making any reference to them or to the area of law to which they relate.
Continue reading “Ontario – Vavilov does not overrule Teal Cedar or Sattva Capital – #302”B.C. – stay issued despite procedural complexity, further legal proceedings prohibited without leave – #301
In Houm Services Inc. v. Lettuce Eatery Development Inc., 2020 BCSC 430, Madam Justice Heather MacNaughton stayed claims filed by plaintiff against defendant and its employees, pending resolution of claims which did fall within the agreement to arbitrate. She held that the agreement was valid and compliant with B.C.’s Franchises Act, SBC 2015, c 35 and any further relief, beyond the scope of the agreement to arbitrate, could be pursued in court after arbitration despite any “procedural complexity” or delays. She also issued an order under the Supreme Court Act, RSBC 1996, c 443 prohibiting plaintiff and its representative from instituting further legal proceedings against defendant and/or its employees without leave of the court.
Continue reading “B.C. – stay issued despite procedural complexity, further legal proceedings prohibited without leave – #301”