[:en]In an oral decision, Mr. Justice Daniel W. Payette in Cineplex Entertainment v. Compagnie France Film inc., 2018 QCCS 2133 resisted defendant’s claim that the court could decide defendant’s jurisdictional challenge on the basis that doing so required only a superficial review of the facts. Payette J. acknowledged that the parties’ contract contained clearly worded delays regarding arbitration but held that the parties’ post-dispute conduct removed them from the narrow exception, mentioned in Dell Computer Corp. v. Union des consommateurs, [2007] 2 SCR 801, 2007 SCC 34, to the general rule of ‘challenge first before arbitrator’. The parties’ numerous exchanges about extending delays in their contract renewal had blurred their contract’s clear wording. Because those exchanges resisted easy factual analysis, Payette J. referred the parties to their arbitrator to decide the jurisdictional issue on more fulsome facts and sealed the sensitive information prepared for the court’s jurisdictional hearing. Continue reading “[:en]Québec – simplicity of jurisdictional challenge is for arbitrator to decide first – #090[:]”
[:en]Nova Scotia – Court of Appeal sceptical that litigants suffer irreparable harm if obliged to litigate instead of arbitrate – #089[:]
[:en]Nova Scotia’s Court of Appeal in Clyde Bergemann Canada Ltd. v. Lorneville Mechanical Contractors Ltd., 2018 NSCA 14 upheld a chambers judge’s decision granting a plaintiff a stay of its own litigation. The Court held that a stay and an interlocutory injunction are remedies of the same nature and, absent different rules set out in particular legislation, are governed by the same rules. Though section 9(1) Nova Scotia’s Commercial Arbitration Act, SNS 1999, c 5 did not authorize a stay in the circumstances, the Court accepted the chambers judges’ use of section 9(2) as a guideline in determining whether to exercise her discretion under section 41(e) the Judicature Act, RSNS 1989, c 240. In its review of the chambers judge’s reasoning on irreparable damage, the Court also observed that claims of litigation’s alleged disadvantages should be supported by evidence. Continue reading “[:en]Nova Scotia – Court of Appeal sceptical that litigants suffer irreparable harm if obliged to litigate instead of arbitrate – #089[:]”
[:en]Alberta – court dismisses second attempt to challenge award for breach of natural justice – #088[:]
[:en]Madam Justice Kim D. Nixon in Driscoll v. Hautz, 2018 ABQB 426 refused leave to an arbitral party seeking to challenge a final award for alleged bias. Having lost a first application for leave to appeal a final award under under Alberta’s Arbitration Act, RSA 2000, c A-43, the party sought to raise new facts regarding bias to challenge the award. On the second application, the party claimed that those facts were still timely because they fell within an earlier allegation of breach of natural justice. Nixon J. dismissed the second attempt as being out of time, barred by the doctrine of res judicata and not evidence of a reasonable apprehension of bias. Continue reading “[:en]Alberta – court dismisses second attempt to challenge award for breach of natural justice – #088[:]”
[:en]Québec – court enforces ex parte award stemming from e-mail notice to non-participating parties – #087[:]
[:en]In brief reasons, Mr. Justice Michel A. Pinsonnault in Centre Sheraton v. Canadian League of Gamers Inc., 2018 QCCS 1945 homologated a final award which issued ex parte against non-participating defendants. The case delivers on several of arbitration’s promises, including reduced formalities, shorter timelines, ability similar to courts to proceed ex parte and facility to have a final award homologated as a judgment of a court unless one of a limited number of grounds is proven to the court’s satisfaction. The apparent simplicity of the process listed in Pinsonnault J.’s reasons belies the contribution of several key components which enable those promises to be met: Québec’s Code of Civil Procedure, CQLR c C-25.01 (“C.C.P.”), an experienced arbitrator, an established administering institution and its rules, a court supportive of arbitration as an alternative route to dispute resolution. Continue reading “[:en]Québec – court enforces ex parte award stemming from e-mail notice to non-participating parties – #087[:]”
[:en]Ontario – courts must not pre-empt arbitrator decision on jurisdiction by limiting scope of issues in stay order – #086[:]
[:en]In 10313033 Canada Inc. v. 2418973 Ontario Inc. et al., 2018 ONSC 2406, Madam Justice Sally Gomery declined to limit the scope of the issues referred to the arbitrator. She determined that, absent exceptional circumstances, courts must not pre-empt an arbitrator’s ruling on jurisdiction. Following the stay granted, the parties could make their own submissions directly to the arbitrator regarding the issues which could or could not be within the undertaking to arbitrate or which were no longer in dispute following prior court rulings. Continue reading “[:en]Ontario – courts must not pre-empt arbitrator decision on jurisdiction by limiting scope of issues in stay order – #086[:]”
[:en]Ontario – court accepts both parties’ waiver of arbitration but notes impact on test for injunction – #085[:]
[:en]Both parties can waive their undertaking to arbitrate but doing so has its own knock-on effects. In Armes and 2331513 Ontario Inc. et al v. Barlett, 2018 ONSC 1396, Mr. Justice R. John Harper accepted that neither party had or wished to undertake arbitration but did consider one party’s waiver as having a role, however slight but worthy of mention, in considering whether that party demonstrated irreparable damage. Continue reading “[:en]Ontario – court accepts both parties’ waiver of arbitration but notes impact on test for injunction – #085[:]”
[:en]Québec – courts assert consequences of not undertaking/participating in mandatory legislated arbitration – #084[:]
[:en]Three recent Québec cases – Raymond Chabot Administrateur provisoire inc. (Garantie Abritat inc.) v. A à Z Construction-rénovation inc., 2018 QCCS 2061, Garantie Habitation du Québec inc. v. Groupe Faguy inc., 2018 QCCQ 2763 and Garantie habitation du Québec inc. v. Quirion, 2018 QCCQ 1549 – reflect the courts’ straightforward enforcement of arbitration as the exclusive legislated way in Québec to resolve disputes over guarantee plans for new residential constructions. Parties must either resolve their disputes by arbitration or forever accept that no dispute exists and that certain facts are either uncontested or uncontestable. The decisions remind parties that a failure or refusal to engage in arbitration has consequences on any subsequent flexibility to defend litigation. Continue reading “[:en]Québec – courts assert consequences of not undertaking/participating in mandatory legislated arbitration – #084[:]”
[:en]Alberta – Court of Appeal acknowledges lack of authority to extend time to appeal – #083[:]
[:en]Alberta’s Court of Appeal in Funk v. Funk, 2018 ABCA 210 dismissed an application to extend the time to appeal an arbitration award because the appeal had no reasonable chance of success. The Court held, among other things, that it did not have authority to extend the time period to appeal set out in the Arbitration Act, RSA 2000, c A-43 and that any remedy to challenge the award ought to be heard by arbitration as the parties had agreed. Continue reading “[:en]Alberta – Court of Appeal acknowledges lack of authority to extend time to appeal – #083[:]”
[:en]Alberta – signature of submission agreement qualifies as commencement of arbitration – #082[:]
[:en]In brief reasons, Alberta’s Court of Appeal in Inter Pipeline Ltd v Rural Road Construction Ltd, 2018 ABCA 184 upheld Madam Justice C. Dario’s decision in Inter Pipeline Ltd v Rural Road Construction Ltd, 2017 ABQB 811 to consider parties’ signature of a post-dispute submission agreement as sufficient to serve as notice of commencement of arbitration. The Court was careful, if not emphatic, to note that the “conclusions are based on the unique facts of this case and on those specific facts there is clear evidentiary basis to support the chambers judge’s findings”. Continue reading “[:en]Alberta – signature of submission agreement qualifies as commencement of arbitration – #082[:]”
[:en]Ontario – litigation offers proof of concept that arbitration matters – #081[:]
[:en]In Network Site Services Ltd. v. Town of Oakville, 2018 ONSC 2599, Mr. Justice David A. Broad resolved litigation commenced in early 2012 regarding a road reconstruction project certified to have been substantially performed on September 30, 2011. The parties to the litigation had entered into a detailed set of contracts which identified mediation and arbitration but made neither mandatory. Continue reading “[:en]Ontario – litigation offers proof of concept that arbitration matters – #081[:]”