Mr. Justice Andrew M. Mahar in Northland Utilities (NWT) Ltd. v. Town of Hay River, 2019 NWTSC 31 remarked that parties do not hire lawyers to “reinvent the wheel” each time they engage in commercial activity and, in doing so, do not thereby make their contract a standard form contract. Despite omitting to characterize the issues as questions of law, mixed fact and law or fact and despite holding that the standard of review was reasonableness, Mahar J. did determine that the arbitrator’s analyses were not only reasonable but correct.
Continue reading “N.W.T. – parties do not create standard form contract when their lawyers do not “reinvent the wheel” – #240″Federal – no need to serve non-participating arbitral party with materials regarding post-recognition enforcement procedures – #239
In Heddle Marine Service (NL) Inc. v. Kydy Sea (Ship), 2019 FC 1140, Mr. Justice Peter G. Pamel relieved a third party from serving a losing, non-participating arbitral party with court materials related to post-recognition enforcement measures instituted by the successful arbitral party. The case offers a rare view into post-recognition skirmishes between an arbitral party and a third party competing over assets subject to judicial sale authorized as part of award enforcement. The facts also confirm that the arbitration process – from award to execution on assets – will proceed whether a duly-notified arbitral party participates or not.
Continue reading “Federal – no need to serve non-participating arbitral party with materials regarding post-recognition enforcement procedures – #239”Ontario – confidentiality of arbitration raised as shield to disclosing information relevant to litigation – #238
In Vanalt Electrical Construction, Inc. v. Ozz Electric Inc., 2019 ONSC 5893, Defendant alleged that confidentiality of an arbitration involving it and others prevented it from providing Plaintiff with information/documents relevant and probative to quantifying a key claim it made against Plaintiff. Instead of forcing an issue on the confidentiality, Master Michael Philip McGraw ordered Defendant to re-attend a final time for discovery at which time it could satisfy Plaintiff’s entitlement to clarity and evidence.
Continue reading “Ontario – confidentiality of arbitration raised as shield to disclosing information relevant to litigation – #238”B.C. – broad interpretation of carve out in arbitration clause risks nullifying agreement to arbitrate – #237
In Clayworth v. Octaform Systems Inc., 2019 BCCA 354, Madam Justice Lauri Ann Fenlon granted a stay of non-injunctive proceedings in first instance, acknowledging that Appellant had met the “low threshold” of “some merit” in her appeal. The issues on appeal concerned whether an exception in an arbitration agreement should be interpreted broadly enough to encompass claims brought in court or is the correct question is whether those court claims are clearly beyond the scope of the mandatory arbitration clause. The appeal will also resolve when does a court risk reading an exclusion clause so broadly that it nullifies the arbitration clause.
Continue reading “B.C. – broad interpretation of carve out in arbitration clause risks nullifying agreement to arbitrate – #237”Ontario – entity invoking arbitration agreement must first demonstrate representative’s authority to act – #236
Before addressing the merits of a challenge to the court’s jurisdiction, Madam Justice Bernadette Dietrich in Jamrock Broadcasting Corporation v. The Estate of Fitzroy Gordon, 2019 ONSC 5732 had to first make a preliminary determination regarding a representative’s purported authority to bind the corporation which made the challenge. Despite a series of gaps in governance and non-compliance with applicable corporate law and shareholder agreements, Dietrich J. did find that the representative had de facto authority and could hire counsel and instruct on the corporation’s objection to jurisdiction based on an arbitration agreement.
Continue reading “Ontario – entity invoking arbitration agreement must first demonstrate representative’s authority to act – #236”B.C. – anti-suit injunction based on contract enjoins party from pursuing arbitration administered outside Canada – #235
In a novel decision, B.C.’s Court of Appeal Li v. Rao, 2019 BCCA 264 upheld an anti-suit injunction preventing a party from taking further steps in a pending arbitration administered beyond the court’s jurisdiction. Exercising its in personam jurisdiction over the party, the Court enforced that party’s agreement not to take further steps in its arbitration. The Court held that an injunction based on contract did not engage the jurisdiction of the foreign tribunal or raise issues of comity but did involve an assessment of the conduct of a party and whether to enforce a promise it made.
Continue reading “B.C. – anti-suit injunction based on contract enjoins party from pursuing arbitration administered outside Canada – #235”Ontario – amendment to pleading in court cannot include claim subject to arbitration – #234
In Paul Sun v. Duc-Tho Ma, 2019 ONSC 4586, Master Alexandre Kaufman denied leave to amend Defendant’s counterclaim because, inter alia, the proposed claim was subject to arbitration. Despite mandatory wording in the applicable Rules of Civil Procedure, RRO 1990, Reg 194 that a court shall grant leave to amend at any stage of an action, Master Kaufman held that a claim subject to arbitration effectively did not meet ‘a basic threshold of legal soundness’ and was ‘not tenable in law’.
Continue reading “Ontario – amendment to pleading in court cannot include claim subject to arbitration – #234”Québec – court orders parties to agree on arbitrator from plaintiff’s list rather than appoint one itself – #233
Relying on his inherent powers and without reference to the provisions applicable to arbitration, Mr. Justice Jocelyn Geoffroy in 9338-3941 Québec inc. v. 9356-2379 Québec inc., 2019 QCCS 4226 ordered the parties (i) to appoint an arbitrator from a list of five (5) sent earlier by Plaintiff rather than appoint one himself and (ii) to complete their arbitration by year’s end. Geoffroy J. also issued a safeguard order for payment of commercial rent owing going forward but refrained from dealing with past months, stating that retroactive payments were within the arbitrator’s jurisdiction.
Continue reading “Québec – court orders parties to agree on arbitrator from plaintiff’s list rather than appoint one itself – #233”Alberta – court orders which advanced arbitration set aside due to irregular service outside of jurisdiction – #232
In Acciona Infrastructure Canada Inc v. Posco Daewoo Corporation, 2019 ABCA 241, Alberta’s Court of Appeal set aside ex parte orders which validated ex juris service, appointed arbitrators and consolidated arbitrations due to Plaintiff’s non-compliance with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters and service ex juris under Alberta Rules of Court, Alta Reg 124/2010. Acknowledging Plaintiff’s frustration with Defendant’s procedural responses and the practical effect of adding to the delays, the Court declined to retroactively validate irregular service due to significant deficiencies in service.
Continue reading “Alberta – court orders which advanced arbitration set aside due to irregular service outside of jurisdiction – #232”Ontario – court revives litigation dismissed on consent when parties do not proceed with arbitration – #231
In Mishukov v. Fatoullaeva, 2019 ONSC 5550, Mr. Justice Grant R. Dow revived litigation which had been dismissed on consent by a court order in favour of arbitration. Despite having agreed to submit to arbitration, the parties never completed the arbitration in the agreed upon time frame and Defendants claimed that the arbitration could no longer proceed, Applying equitable estoppel, Dow J. determinined that a party which chooses to treat its agreement as subsisting cannot later claim non-performance. Dow J. held that a consent order dismissing an action was not a judicial determination of the dispute but only elevated the parties’ consent.
Continue reading “Ontario – court revives litigation dismissed on consent when parties do not proceed with arbitration – #231”