In HCI Ventures Ltd. v. S.O.L. Acres, 2020 SKCA 24, Saskatchewan’s Court of Appeal dismissed two (2) appeals stemming from application of the province’s Farm Debt Mediation Act, SC 1997, c 21 which imposes mediation between insolvent farmers and their creditors pending a stay of any proceedings. “[D]esigned as a tool for farmers to work with creditors in order to keep the farming operation afloat during difficult financial times”, the mediation-and-stay applies to “any proceedings or any action, execution or other proceedings, judicial or extra-judicial, for the recovery of a debt, the realization of any security or the taking of any property of the farmer”.
Continue reading “Saskatchewan – legislation imposes mediation and stay of any proceedings upon application of farmer – #300”Ontario – summary judgment enforces settlement issuing from arbitration – #299
In Furniture.com Inc. v. Leon’s Furniture Ltd., 2019 ONSC 7451, Madam Justice Sandra Nishikawa granted summary judgment for breach of a settlement entered into after arbitration began. Nishikawa J.’s decision was the latest in a sequence of different dispute resolution options undertaken by the parties – arbitration, court application for leave to appeal an award, private settlement and summary judgment to enforce settlement. Nishikawa’s reasons also demonstrate that resolution went ahead despite defendant’s evidentiary objections and other ongoing dispute resolution in the U.S.
Continue reading “Ontario – summary judgment enforces settlement issuing from arbitration – #299”Ontario – Vavilov standard applies to statutory insurance arbitration but not private commercial arbitration – #298
In Allstate Insurance Company v. Her Majesty the Queen, 2020 ONSC 830, Madam Justice Breese Davies held that Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 altered judicial intervention on appeals from insurance arbitration mandated by legislation. Davies J. held that legislation which includes a statutory appeal mechanism signals legislative intent that courts are to perform an appellate function in respect of the administrative decision and apply appellate standards of review. Davies J. distinguished between appeals of statutory arbitrations and private commercial arbitrations, the latter being seen as autonomous, self-contained process in which courts should “generally” not intervene.
Continue reading “Ontario – Vavilov standard applies to statutory insurance arbitration but not private commercial arbitration – #298”Québec – parties prompted to consider consent award, not litigate whether settlement occurred – #297
In Syndicat de la copropriété Marché St-Jacques v. 9257-3302 Québec inc., 2020 QCCS 975, Mr. Justice Sylvain Lussier refused to homologate a transaction (settlement agreement) and reminded the parties that their contract contained an agreement to arbitrate further to which they could obtain a consent award recording their settlement. Lussier J. reviewed the purported settlement and determined that it lacked most of the essentials to qualify as a transaction such as a mention of the exact disputes, the parties’ respective claims made leading up to the settlement, any judicial/arbitral proceeding settled, a release or payment.
Continue reading “Québec – parties prompted to consider consent award, not litigate whether settlement occurred – #297”Québec – court’s intervention on challenge to award on jurisdiction is not judicial review – #296
In Khalilian v. Murphy, 2020 QCCS 831, Madam Justice Chantal Chatelain resisted the parties’ joint submission that her intervention on a challenge to an arbitrator’s award on jurisdiction was a judicial review subject to administrative law standards of review. Instead, referring to Québec’s Code of Civil Procedure, CQLR c C-25.01, leading doctrine and case law in Québec, she emphasized that an arbitrator in a contractual arbitration does not qualify as a tribunal subject to a court’s control and supervision. A court can intervene on errors of law committed by the arbitrator when deciding jurisdiction because an arbitrator cannot attribute jurisdiction by incorrectly evaluating the facts and the law.
Continue reading “Québec – court’s intervention on challenge to award on jurisdiction is not judicial review – #296”Ontario – litigation stayed to permit arbitrator to determine jurisdiction and issues subject to arbitration – #295
In a pair of decisions, Deco Homes (Richmond Hill) Inc. v. Mao, 2019 ONSC 6223 and Deco Homes (Richmond Hill) Inc. v. Li, 2019 ONSC 7501, Mr. Justice Lorne Sossin acknowledged overlap of buyers’ claims subject to statutory arbitration and vendor’s claims for breach of contract not covered by arbitration. Respectful of competence-competence, Sossin J. stayed the actions to allow an arbitrator to make a first determination, reasoning that vendor’s claims could not be resolved without recourse to questions that lay within the agreement’s exclusive scope. To identify the dispute, he included vendor’s claims and those raised by each buyer.
Continue reading “Ontario – litigation stayed to permit arbitrator to determine jurisdiction and issues subject to arbitration – #295”Saskatchewan – court approves arbitral parties’ Pierringer agreement in litigation against third party – #294
Upon application, Madam Justice Brenda R. Hildebrandt in Rosetown (Town) v. Bridge Road Construction Ltd., 2020 SKQB 3 approved an agreement between two (2) arbitral/litigation parties T and BR to release BR from litigation involving a third party S which did not participate in that agreement. The agreement, known as a Pierringer agreement, left S open to its proportionate share of responsibility in the litigation pursued by T. Having examined the Pierringer agreement in light of its impact on S, Hildebrandt J. approved its application and amendments to the pleadings in court to implement it.
Continue reading “Saskatchewan – court approves arbitral parties’ Pierringer agreement in litigation against third party – #294”Saskatchewan – referral to statutory arbitration requires a dispute between parties subject to legislation – #293
In Antoniadou v. Saskatchewan Government Insurance, 2020 SKCA 20, Saskatchewan’s Court of Appeal reiterated a basic premise in dispute resolution that a dispute must exist between parties subject to the dispute resolution, whether by statute or otherwise. Though the dispute resolution involved naming an umpire under a statutory scheme, the Court’s reasons apply equally to commercial arbitration and remind parties that not all disagreements over a set of facts falls within the scope of the dispute resolution.
Continue reading “Saskatchewan – referral to statutory arbitration requires a dispute between parties subject to legislation – #293”Québec – court litigation deemed abusive attempt to evade res judicata of homologated award – #292
In Papadakis v. 10069841 Canada inc., 2020 QCCS 32, Madam Justice Judith Harvie held that a litigant cannot avoid application of an arbitral award’s res judicata by litigating new arguments on old facts. Harvie J. held that the litigant ought to have raised its new arguments in arbitration and that it would be against public interest and stability of social relations to allow it to raise new arguments to plead the same cause of action. Harvie J. further declared the proceeding abusive and ordered the litigant to pay some but not all of the other litigant’s legal fees.
Continue reading “Québec – court litigation deemed abusive attempt to evade res judicata of homologated award – #292”Ontario – expired limitation period pre-empts need to decide stay application – #291
Ontario’s Court of Appeal in Glen Schnarr & Associates Inc. v. Vector (Georgetown) Limited, 2019 ONCA 1012 asserted jurisdiction to decide a claim’s viability rather than defer the decision to an arbitrator as mandated by section 7(1) of the Arbitration Act, 1991, SO 1991, c 17 and Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34 (CanLII), [2007] 2 SCR 801. A court may pre-empt an arbitrator’s competence-competence to determine jurisdiction if it can decide that an applicable limitation period has expired. This approach is presented as a second exception, independent to the “superficial consideration of the documentary evidence in the record” for questions of law or mixed fact and law. The approach addresses viability of claims and not the interplay of the arbitration agreement and the dispute.
Continue reading “Ontario – expired limitation period pre-empts need to decide stay application – #291”