In Gestion PMOD Inc. v. 9e Bit (2015) Inc., 2019 QCCS 1154, Mr. Justice Steve J. Reimnitz homologated an award despite one of the dispositive orders omitting mention of the exact amounts due by respondent. Contrary to the opposite result in Carpenter v. Soudure Plastique Québec Inc. 2019 QCCS 321 in which the court refused to homologate an order which did not liquidate damages, Reimnitiz J. held that the award was capable of being executed. The award referred to an exhibit listing the amounts due as well as respondent’s admission that they were due.
Continue reading “Québec – award still capable of being executed despite order not mentioning amounts owing by respondent – #190”Québec – arbitration agreement prevents defendant from adding third party as defendant-in-warranty – #189
In Svensson v. Groupe Ovo inc., 2019 QCCS 1278, Mr. Justice Yves Poirier refused a defendant’s motion to implead a third party as its defendant-in-warranty because the civil procedure allowing defendant to do so must yield to the parties’ arbitration agreement. The court’s procedural solution allowing a defendant to join its proposed action-in-warranty to an existing litigation is suppletive and gives no jurisdiction to the court to grant the motion or override the primacy of arbitration procedure.
Continue reading “Québec – arbitration agreement prevents defendant from adding third party as defendant-in-warranty – #189”Québec – parties’ autonomy favours allowing arbitrator to decide jurisdiction first even if some claims appear beyond it – #188
In 9338-3941 Québec inc. v. 9356-2379 Québec inc., 2019 QCCS 1221, Madam Justice Danye Daigle referred the parties to arbitration despite the possibility that some of relief sought might not be covered by the arbitration agreement. Daigle J. preferred to have the arbitrator rule first on jurisdiction and then allow the parties to apply to the court for review or decision, rather than the reverse sequence. Doing so would respect the parties autonomy to choose how to resolve their disputes.
Continue reading “Québec – parties’ autonomy favours allowing arbitrator to decide jurisdiction first even if some claims appear beyond it – #188”B.C. – no abuse of court process by either litigant simply by seeking or resisting arbitration – #187
In Grewal v. Mann, 2019 BCSC 433, Mr. Justice Dennis Hori held that neither party was entitled to special costs following one party’s decision to file an action in court and the other party’s decision to apply for a stay of proceedings. In a dispute familiar to courts across Canada, both parties disputed the role of arbitration but, as Hori J. held, each appeared to genuinely pursue their legal remedies and in doing so did not commit any abuse of the court’s process.
Continue reading “B.C. – no abuse of court process by either litigant simply by seeking or resisting arbitration – #187”Québec – arbitration agreement with optional wording not a complete undertaking to arbitrate – #186
In Prométal inc. v. Maxim Construction inc., 2019 QCCS 1207, Mr. Justice Bernard Tremblay refused to refer the litigants to arbitration, holding that they had failed to agree in a clear and unequivocal way to exclude the resolution of their disputes from the courts. To allow defendant to present its motion for referral, Tremblay J. applied the longer 90 day delay available under article 622 of Québec’s Code of Civil Procedure, CQLR c C-25.01 to do so, holding that the standard, shorter 45 day delay did not apply because some of the dispute involved elements outside of Québec.
Continue reading “Québec – arbitration agreement with optional wording not a complete undertaking to arbitrate – #186”Supreme Court – cumbersome task of sorting of consumer/non-consumer claimants does not authorize courts to re-cast arbitral legislation – #185
Canada’s Supreme Court in TELUS Communications Inc. v. Wellman, 2019 SCC 19 held that section 7(5) of Ontario’s Arbitration Act, 1991, SO 1991, c 17 does not give courts discretion to refuse to stay claims dealt with by an otherwise valid arbitration agreement. Though Ontario’s Consumer Protection Act, 2002, SO 2002, c 30, Sch A invalidates arbitration agreements to the extent they prevent consumers from pursuing claims in court, that policy choice does not extend to non-consumers who remain bound by their agreements to arbitrate. Courts are to interpret legislation and not re-write it.
Continue reading “Supreme Court – cumbersome task of sorting of consumer/non-consumer claimants does not authorize courts to re-cast arbitral legislation – #185”Ontario – once court finds arbitrator acted within jurisdiction, it cannot consider merits in exercise of that jurisdiction – #184
Ontario’s Court of Appeal held in Alectra Utilities Corporation v. Solar Power Network Inc., 2019 ONCA 254 that, under section 46(1)3 of the Arbitration Act, 1991, SO 1991, c 17, once a court satisfies itself that an arbitrator had jurisdiction to resolve a particular dispute, absent a right of appeal, the court has no authority to delve into the merits of the award and review its for reasonableness. The Court held that a jurisdictional question must be answered correctly but “neither requires nor authorizes review of the substance of an arbitrator’s award”.
Continue reading “Ontario – once court finds arbitrator acted within jurisdiction, it cannot consider merits in exercise of that jurisdiction – #184”B.C. – no arbitral error where arbitrator seeks assistance on legal principles raised in, but beyond, parties’ authorities – #183
In MSI Methylation Sciences, Inc. v. Quark Ventures Inc., 2019 BCSC 440, Madam Justice Elaine J. Adair dismissed claims that the arbitrator had committed arbitral error due to breach of natural justice by allegedly (i) deciding the dispute on authorities not submitted by either party and (ii) adopting his own theory of damages not advanced by either party. Adair J. held that the legal principles were not obscure legal points raised for the first time, created by the arbitrator or divorced from the cases and argument submitted by the parties. Adair J. also held that the arbitrator did not commit arbitral error by not referring to each of a party’s submissions or seeking assistance beyond authorities submitted.
Continue reading “B.C. – no arbitral error where arbitrator seeks assistance on legal principles raised in, but beyond, parties’ authorities – #183”Ontario – unpaid expert and arbitrator denied status as creditors of court order omitting their mention as beneficiaries – #182
In Miracle v. Maracle, 2019 ONCA 238, the Ontario Court of Appeal upheld the unreported September 10, 2018 decision by Mr. Justice Patrick Hurley denying an unpaid expert and unpaid arbitrator leave to be added as parties to post-arbitration litigation. In doing so, Hurley J. left open the possibility that the result could have been different had an earlier court order, recognizing and enforcing the arbitration award, mentioned personally the expert and arbitrator as beneficiaries of the orders for payment of arbitration costs incurred by the prevailing arbitral party. Hurley J.’s comments also serve to guide arbitration counsel in drafting dispositive sections for recognition and enforcement applications.
Continue reading “Ontario – unpaid expert and arbitrator denied status as creditors of court order omitting their mention as beneficiaries – #182”B.C. – corporation unsuccessfully uses indoor management rule and alleged forgery to challenge arbitration result – #181
In Sun Wave Forest Products Ltd. v Prince Rupert (City), 2019 BCSC 415, Mr. Justice Neill Brown dismissed a challenge to arbitration activity based on the challenger’s allegations that the arbitration stemmed from forgery, fraud and a lack of authority. In lengthy reasons, Brown J. discussed the evidentiary burden required to establish forgery and fraud in civil matters and the role of the indoor management rule in binding negotiations.
Continue reading “B.C. – corporation unsuccessfully uses indoor management rule and alleged forgery to challenge arbitration result – #181”