In Gestion Michel Gagné inc. v. Gaston Gagné inc., 2019 QCCS 3260, Mr. Justice Simon Hébert declined to hear a motion for leave to institute a derivative action if doing so would encroach on an arbitrator’s jurisdiction to consider that same motion. The corporate legislation which permitted the proposed derivative action stipulated that an application for leave be submitted to the Superior Court. Since the proposed derivative action also included claims subject to arbitration, Hébert J. determined that the motion for leave was best heard at the same time as the motion to refer the parties to arbitration.
Continue reading “Québec – arbitrator may have default jurisdiction to grant leave to institute derivative action despite legislation assigning it to court – #229”Ontario – no binding settlement agreement means no binding agreement to arbitrate settlement dispute – #228
In Rubner v. Rubner, 2019 ONSC 4110, Mr. Justice Laurence A. Pattillo dismissed party M’s application to appoint an arbitrator, determining that the evidence failed to demonstrate that party M and party J had entered into a binding settlement agreement. Consistent with that determination, he also granted party J’s application to set aside party M’s notice to arbitrate because, in the absence of a settlement, there was no agreement to arbitrate. The case is a less common instance of a court determining on “a superficial examination of the evidence” that the principal contract was non-existent and, with it, the agreement to arbitrate.
Continue reading “Ontario – no binding settlement agreement means no binding agreement to arbitrate settlement dispute – #228”Ontario – summary judgment motion opportunity for arbitrator to determine issues in favour of respondent – #227
In Canada Bread v. Mallot Creek, 2019 ONSC 2578, Madam Justice Bernadette Dietrich upheld an arbitrator’s decision to dismiss one party’s motion for summary judgment but then also make a final determination of a key issue in favour of the other party. Dietrich J. determined that, if the sufficiency of the record permits the arbitrator to decide the motion, it is “axiomatic” that the arbitrator resolve the issue raised by the motion in favour of either party. The parties selected the mediator to serve as arbitrator for their settlement agreement should a dispute arise in the interpretation of the settlement.
Continue reading “Ontario – summary judgment motion opportunity for arbitrator to determine issues in favour of respondent – #227”Saskatchewan – limited scope to enjoin beneficiary from drawing on letter of credit despite arbitration – #226
In Veolia Water Technologies, Inc. v. K+S Potash Canada General Partnership, 2019 SKCA 25, Saskatchewan’s Court of Appeal expressly signalled its willingness to grant an injunction against a beneficiary attempting to draw on a letter of credit if the draw breached an express contractual restriction in the main contract. Having commenced arbitration, applicant sought the injunction until a court or an arbitral tribunal had determined the beneficiary’s right to draw on the letter. The Court recognized the autonomy of the letter of credit from the main contract and acknowledged a financial institution’s limited concern regarding whether to pay out on the draw made under its letter of credit.
Continue reading “Saskatchewan – limited scope to enjoin beneficiary from drawing on letter of credit despite arbitration – #226”B.C. – no special rules for self-represented parties in arbitration beyond natural justice – #225
In 0941187 B.C. Ltd. v 0927613 B.C. Ltd., 2019 BCSC 1649, Mr. Justice Gregory T.W. Bowden dismissed a litigant’s attempt to dispute claims on the basis of an alleged estoppel arising from an earlier arbitral award. Bowden J.’s brief treatment of the estoppel argument underlines that awards only resolve the issues submitted in the arbitration in which the awards was made. The decision also refers back to an earlier decision of the Court of Appeal, involving the same parties, which held that, despite some latitude, no special rules apply for self-represented arbitral parties beyond basic natural justice requirements of an impartial arbitrator, notice, an opportunity to tender evidence, make representations and to respond to the other side’s case.
Continue reading “B.C. – no special rules for self-represented parties in arbitration beyond natural justice – #225”Federal – confidentiality of arbitration must be re-established independently on appeal to court – #224
In a pair of decisions, the Federal Court in Canadian National Railway Company v. Gibraltar Mines Ltd., 2019 FC 225 and in Canadian National Railway Company v. Gibraltar Mines Ltd., 2019 FC 963 held that there is no general principle that confidentiality of arbitration proceedings carries over to court when a party appeals the arbitral award. Even if confidentiality was imposed by statute for the purpose of the arbitration, absent specific wording in the statute, confidentiality does not automatically extend into the courts which are open and public.
Continue reading “Federal – confidentiality of arbitration must be re-established independently on appeal to court – #224”Ontario – non-parties to arbitration agree arbitrator’s findings of facts binding for facts common to their litigation – #223
In Sky Solar (Canada) Ltd. v. Economical Mutual Insurance Company, 2019 ONSC 4165, Mr. Justice Peter J. Cavanagh issued detailed trial reasons relying on key findings of fact made in arbitration involving only plaintiff. Defendants in the court litigation – an insurer of respondent in the arbitration and respondent’s insurance broker – agreed with plaintiff that those facts were binding and would not be relitigated. Plaintiff had been unsuccessful in the arbitration but still agreed to re-purpose those findings for use by Cavanagh J. in determining liability against the non-parties. The agreement demonstrates that non-parties – and unsuccessful arbitral parties – need not expect different findings if the same evidence is presented to a new decision maker.
Continue reading “Ontario – non-parties to arbitration agree arbitrator’s findings of facts binding for facts common to their litigation – #223”Québec – parties ordered to mediate according to express, imperative agreement even if dispute not arbitrable – #222
In Capital JPEG Inc. v. Corporation Zone B4 Ltée, 2019 QCCS 2986, Mr. Justice Babak Barin enforced the express terms of the shareholders’ agreement to mediate before they arbitrated, staying the court litigation pending the result of the mediation. The court litigation sought dissolution of a corporation and, despite considering that dissolution could be arbitrated, Barin J. refrained from referring the parties to arbitration as that stage had not yet been reached or requested. He held that parties could agree to mediate topics which could not also be arbitrated.
Continue reading “Québec – parties ordered to mediate according to express, imperative agreement even if dispute not arbitrable – #222”B.C. – refusal to grant access to details of counsel billing qualified as denial of natural justice in costs award – #221
In 0718698 B.C. Ltd. v. Ogopogo Beach Resorts Ltd., 2019 BCSC 1503, Mr. Justice S. Dev Dley remitted a costs awards back to the arbitrator so that the party ordered to pay 75% of actual legal fees would have a meaningful opportunity to challenge the other party’s counsel’s accounts. Failure to order disclosure of counsel’s accounts qualified as a denial of natural justice because it prevented the party from undertaking an informed analysis of whether the fees were reasonable.
Continue reading “B.C. – refusal to grant access to details of counsel billing qualified as denial of natural justice in costs award – #221”Alberta – decision illustrates role of interim costs to ensure arbitration process moves forward – #220
In Alanen v. Elliott, 2019 ABCA 290, Madam Justice Elizabeth Hughes reiterated that the Court of Appeal had no jurisdiction to grant permission to appeal an arbitration award “outright”, its jurisdiction limited to appeals of Court of Queen’s Bench decisions under sections 44, 45 and 47 of Alberta’s Arbitration Act, RSA 2000, c A-43. By declining to deal with the initial appeal from an interim costs award, the chambers judge had issued no decision subject to the Court of Appeal’s jurisdiction under that legislation. The reasons also illustrate the role of interim costs to ensure that arbitration process moves forward while treating parties equally and fairly and giving parties opportunity to present their case and respond to the other party’s.
Continue reading “Alberta – decision illustrates role of interim costs to ensure arbitration process moves forward – #220”