In G.E.X.R. v. Shantz Station and Parrish & Heimbecker, 2019 ONSC 1914, Madam Justice Catrina D. Braid declined to give evidentiary weight in her court to an arbitral award to which one of the litigants before her was not a party. While open to giving arbitral awards some weight in certain circumstances, the plaintiff’s absence from the arbitration was sufficient to disregard the award. Braid J. also commented on whether an adverse inference should be drawn if neither party called a key witness from the arbitral proceedings.
Continue reading “Ontario – arbitral award given no weight in court when litigant not party to the arbitration – #200”Québec – stay application refused despite court’s and contract’s flexibility to identify agreement to arbitrate – #199
In Constructions 3P Inc. v. Construction Demathieu & Bard (CDB) Inc., 2019 QCCS 2070, Mr. Justice Thomas M. Davis refused to stay litigation in favour of arbitration despite his willingness to consider evidence pre- and post-contract of an agreement to arbitrate. Despite claims that the parties had agreed to arbitrate and attempts to demonstrate that agreement, Davis J. determined that (i) the existing agreement to arbitrate had not been followed and (ii) no new agreement post-dispute had been made despite contractual undertakings to explore dispute resolution options.
Continue reading “Québec – stay application refused despite court’s and contract’s flexibility to identify agreement to arbitrate – #199”Ontario – new disputes either beyond or no longer subject to abandoned submission agreement – #198
In 1230455 Ontario Ltd. v. 150 Katimavik Inc., 2019 ONSC 2481, Madam Justice Michelle O’Bonswain declined to order the parties to arbitration due to the scope of the submission to agreement and its abandonment. O’Bonswain J. held that (i) one part of their new dispute did not fall within their initial submission to arbitration and (ii) the other part of their dispute did fall within the agreement but the parties had abandoned arbitration.
Continue reading “Ontario – new disputes either beyond or no longer subject to abandoned submission agreement – #198”New Brunswick – justice of the court serves as statutory arbitrator in land expropriation dispute – #197
In McMackin v. Village of Salisbury, 2019 NBQB 99, Mr. Justice George S. Rideout served as arbitrator under the provisions of the Expropriation Act, RSNB 1973, c E-14 to resolve a dispute between a landowner and a municipality in New Brunswick following the latter’s expropriation of part of the land. Despite its “arbitration” label, the process set out in the legislation and Rideout J.’s reasons appears indistinguishable from a court proceeding. Without more information, the “arbitration” set out in the legislation does not qualify as an ‘alternative’ to dispute resolution offered by the court.
Continue reading “New Brunswick – justice of the court serves as statutory arbitrator in land expropriation dispute – #197”Ontario – unsuccessful attempt by new counsel to enjoin further arbitration after partial award – #196
In Lobanova v. Grynyshyn, 2019 ONSC 3064, Mr. Justice Frederick L. Myers dismissed an attempt by new counsel to enjoin the arbitrator from completing the arbitration and deciding isolated monetary issues intentionally left unresolved by an earlier, partial award. Myers J. stated that access to the courts is not a “do-over” once the arbitral “main event” concludes. Despite appointing new counsel, a change in strategy and new arguments cannot excuse positions taken earlier in the arbitration or contradict evidence already adduced. Myers J. discouraged challenges to discretionary procedural orders, especially fully reasoned ones, including challenges which prevent the court from having a full case if and when an appeal was authorized.
Continue reading “Ontario – unsuccessful attempt by new counsel to enjoin further arbitration after partial award – #196”Alberta – arbitrator’s findings in award have no probative value or binding effect if award set aside – #195
In Flock Estate v. Flock, 2019 ABCA 194, Alberta’s Court of Appeal overturned a chambers judge’s order which had allowed an arbitral party to reuse material from an arbitration in which the final award had been set aside. Such an award was “ineffectual”, reflected only the “personal opinions” of the arbitrator and had no probative value. Once set aside, the award did not serve to “crystallize” the interests of the parties or serve to create any issue estoppel.
Continue reading “Alberta – arbitrator’s findings in award have no probative value or binding effect if award set aside – #195”B.C. – incorporation by reference of arbitration agreement a question of intent not category of contract – #194
In MRC Total Build Ltd. v. F&M Installations Ltd., 2019 BCSC 765, Madam Justice Shelley C. Fitzpatrick determined that it was arguable that parties to one contract intended to incorporate by reference the arbitration provisions set out in another contract. Relying on the actual wording of the contract between the parties, Fitzpatrick J. identified the court’s role as discerning the intention of the parties. She resisted applying a technical rule to interpreting contracts or categorizing contracts into one type or another as a proxy for intention. Once the court finds that it is arguable that such an intention exists, and absent the arbitration agreement being incapable of being performed, the court must refer the matter to the arbitrator for determination.
Continue reading “B.C. – incorporation by reference of arbitration agreement a question of intent not category of contract – #194”B.C. – consent of parties to re-open formal order yields to functus officio – #193
In Leonard v. The Manufacturers Life Insurance Company, 2019 BCSC 598, Mr. Justice J. Christopher Grauer dismissed an application, made on consent of the parties, to certify a class proceeding under B.C.’s Class Proceedings Act, RSBC 1996, c 50 in which the court had already dismissed a prior, unsuccessful application for certification. Despite arising in a class action context, Grauer J.’s reasons offer insights regarding how applications on consent to re-open final awards could apply in arbitrations undertaken pursuant to statute and for which appeals are limited to questions of law. A key authority cited by Grauer J. stated that an order cannot be revisited even with consent of the parties because “consent cannot clothe the arbitrator with jurisdiction he [or she] does not have”.
Continue reading “B.C. – consent of parties to re-open formal order yields to functus officio – #193”Alberta – records subject to solicitor-client privilege and involving arbitration proceedings subjected to court review – #192
In Alberta (Municipal Affairs) v. Alberta (Information and Privacy Commissioner), 2019 ABQB 274, Mr. Justice Steven N. Mandziuk examined records relating to arbitration proceedings in regard to which one party claimed solicitor-client privilege. Mandziuk J. demonstrated the process that will apply to such records if and when brought before the court. His reasons set out the appropriate test for determining whether privilege exists, the practical manner in which the court will receive those records and how the courts must consider them on a document-by-document basis.
Continue reading “Alberta – records subject to solicitor-client privilege and involving arbitration proceedings subjected to court review – #192”Ontario – overlapping cost applications result in denial of most of costs claimed – #191
In Iqbal v. Mansoor, 2019 ONCA 110, Ontario’s Court of Appeal declined to hear an appeal of a costs order, holding that appellant had refused to seek the required leave to appeal such an order. Regarding the substance of appellant’s claim, the Court observed how the Superior Court had already dealt with costs in an earlier order. The various reasons in the sequence of decisions identify opportunities for arbitral parties to either reserve or clarify the issue of costs incurred up to each phase of their dispute resolution.
Continue reading “Ontario – overlapping cost applications result in denial of most of costs claimed – #191”