In Stegenga v. Economical Mutual Insurance Company, 2019 ONCA 615, the Ontario Court of Appeal held that the nature and subject matter of a dispute, assessed on the facts giving rise to it, determine jurisdiction. The legal characterization of a cause of action does not determine whether a claim falls within the jurisdiction of the court or an alternative dispute process created by legislation. Though an insured raised an independent cause of action of alleged bad faith in the handling of statutory benefits and sought remedies which the statutory tribunal could not grant, litigation was barred. The legislation used broad phrase of “in respect of” to link “dispute” and “entitlement” and captured the facts alleged.
Continue reading “Ontario – facts determine jurisdiction and not the characterization of those facts – #270”Ontario – non-parties seek injunction to stop private arbitration from proceeding – #269
In City of Toronto v. Resource Productivity & Recovery Authority, 2020 ONSC 599, Madam Justice Katherine E. Swinton dismissed an attempt by non-parties to enjoin a private arbitration from proceeding. Though one of the arbitral parties exercised duties under Ontario legislation, the dispute stemmed from a bilateral agreement and involved no exercise of statutory power of decision subject to judicial review. Swinton J. observed that the non-parties argued the arbitrator lacked authority but neither of the arbitral parties challenged the arbitrator’s jurisdiction.
Continue reading “Ontario – non-parties seek injunction to stop private arbitration from proceeding – #269”Ontario – “sophisticated corporate consumer” expected to review external undertaking to arbitrate – #268
In Hydro Hawkesbury v. ABB Inc., 2020 ONCA 53, the Ontario Court of Appeal enforced an undertaking to arbitrate despite the undertaking being contained in terms which had not been specifically brought to the resisting party’s attention or provided in materials exchanged. Those terms were readily available and specifically referred to in documents creating the contractual relationship and a “fairly sophisticated corporate consumer” doing business with a foreign supplier in international markets would reasonably be expected to expect and to review the terms. Also, in first instance, the applications judge also accepted that the application to stay was timely despite being filed well after the defence.
Continue reading “Ontario – “sophisticated corporate consumer” expected to review external undertaking to arbitrate – #268”Nunavut – non-compliance with clear deadlines in contract eliminates ability to arbitrate – #267
In Comren Contracting Inc. v Bouygues Building Canada Inc., 2020 NUCJ 2, Mr. Justice Paul Bychok held that non-compliance with clear and unambiguous deadlines in a stepped dispute resolution clause extinguished claimant’s right to pursue arbitration. Respondent’s eventual agreement to engage in mediation and arbitration, subject to its rights to raise that non-compliance as “technical or procedural defences”, did not waive its right to litigate or estop it from refusing arbitration.
Continue reading “Nunavut – non-compliance with clear deadlines in contract eliminates ability to arbitrate – #267”Ontario – consumer contract arbitration clauses resist unconscionability/undue influence challenges – #266
Master Karen E. Jolley in Evans v. Mattamy Homes Limited, 2019 ONSC 3883 and Master Robert A. Muir in Wang v. Mattamy Corporation, 2019 ONSC 6675 each dismissed Plaintiffs’ attempts to resist application of an arbitration agreement based on arguments that the agreements were invalid due to unconscionability and undue influence. Both concluded that Plaintiffs failed to demonstrate any of the elements required to invalidate the agreements. Any alleged pressure was market driven, due more to Plaintiffs vying to purchase a property from a finite number being sold by Defendant and subject to ongoing sales efforts to other prospective purchasers.
Continue reading “Ontario – consumer contract arbitration clauses resist unconscionability/undue influence challenges – #266”Supreme Court – litigation funding agreement approved in insolvency proceedings without need to submit to creditors – #265
The Supreme Court of Canada in 9354-9186 Québec inc. v. Callidus Capital Corp., 2020 CanLII 5612 reinstated a decision in first instance which authorized third-party litigation funding in court-monitored insolvency proceedings and granted the funders a super priority charge and security. The decision was announced with reasons to follow.
Continue reading “Supreme Court – litigation funding agreement approved in insolvency proceedings without need to submit to creditors – #265”Québec – appeal court quashes otherwise valid stay order due to defendants’ subsequent acquiescence – #264
On the basis of Defendant’s acquiescence, the Québec Court of Appeal in Association des copropriétaires du 10355 Ave Bois-de-Boulogne v. Balabanian, 2019 QCCA 2165 agreed to quash the decision in first instance which referred the parties to arbitration. Despite flagging, without deciding, whether a particular aspect of the claims sought could be granted in arbitration, the Court summarily agreed to annul that earlier decision and no argument was made that the decision suffered any flaws.
Continue reading “Québec – appeal court quashes otherwise valid stay order due to defendants’ subsequent acquiescence – #264”B.C. – period in which to appeal partial award runs from date of that award, not the later, final award – #263
In Milner v. Clean Harbors Industrial Services Canada, Inc., 2020 BCSC 68, Mr. Justice Anthony Saunders dismissed argument by a late-filing petitioner that the title “Partial Award” (i) created “inherent uncertainty” and (ii) justified calculating time to seek leave to appeal from the later, final award. Saunders J. held that the title “Partial Award” was not ambiguous and petitioner demonstrated no confusion as to his rights determined under that award. Saunders J. held that, of all the factors applicable to exercising his discretion to extend that time, the interests of justice subsumed the others and did not favour petitioner.
Continue reading “B.C. – period in which to appeal partial award runs from date of that award, not the later, final award – #263”Ontario – decision maker’s position in judicial hierarchy justifies no reason for different review standard – #262
In ATS Automation Tooling Systems Inc. v. Chubb Insurance Co., 2019 ONSC 5073, Madam Justice Sandra Nishikawa upheld a Master’s decision to dismiss plaintiffs’ motion to stay their own litigation. The facts did not confirm that the arbitration was active and, as of the date of the appeal hearing, arbitration had not been formalized and the limitation period in which to do so had expired. Nishikawa J. agreed with earlier case law there was “no compelling reason for adopting differing standards of review on appeal depending solely on the place in the judicial hierarchy occupied by the decision maker whose decision is under appeal”.
Continue reading “Ontario – decision maker’s position in judicial hierarchy justifies no reason for different review standard – #262”B.C. – evidence of fraud need not be ‘new’ to be admissible on post-decision challenge – #261
The fact that evidence of fraud existed at the time of hearing might justify its rejection as ‘new’ evidence on a post-decision challenge but cannot justify rejecting it as evidence of fraud. In McCallum v. Mooney, 2019 BCSC 1938, Madam Justice Nitya Iyer granted a defendant’s application to set aside a default decision, even after having unsuccessfully challenged it by internal appeal, due to claimant allegedly withholding a key document during the initial hearing on the merits.
Continue reading “B.C. – evidence of fraud need not be ‘new’ to be admissible on post-decision challenge – #261”