[:en]Federal – Court of Appeal notes 1890’s provincial undertakings to arbitrate with other provinces as predecessor to current court rule on jurisdiction – #075[:]

[:en]In Alberta v. Canada, 2018 FCA 83, the Federal Court of Appeal analyzed the legislative evolution of section 19 of the Federal Courts Act, RSC 1985, c F-7 to resolve a modern day challenge to the Federal Court’s jurisdiction over a Third Party Claim filed by Canada against Ontario regarding contribution and indemnification in an aboriginal law dispute.  In doing so, the Court drew attention to legislation from the 1890’s which confirmed the provincial undertakings to arbitrate against other provinces.  Those legislated undertakings, like many current private agreements, sought to solve difficult, albeit different, procedural challenges created by court litigation. Continue reading “[:en]Federal – Court of Appeal notes 1890’s provincial undertakings to arbitrate with other provinces as predecessor to current court rule on jurisdiction – #075[:]”

[:en]Ontario – final award remitted to arbitrator to rework one term in order to not affect third party – #074[:]

[:en]In Bedard v. Bedard, 2018 ONSC 2220, Mr. Justice David G. Stinson resolved a less common issue of jurisdiction involving dispositive terms of a final award having an impact on a non-party to the arbitration, albeit wholly-controlled by one of the arbitration parties.  Stinson J. exercised his authority under section 45(5) of Ontario’s Arbitration Act, 1991 S.O.1991, c. 17 to remit the award to the arbitrator, accompanied by specific directions regarding how to finesse the terms to affect only parties to the arbitration and that such additional work for the arbitrator be subject to prior discussions between the parties on draft language. Continue reading “[:en]Ontario – final award remitted to arbitrator to rework one term in order to not affect third party – #074[:]”

[:en]B.C. – arbitral party files counter claim for breach of undertaking to arbitrate and confidentiality triggered by other party instituting litigation – #073[:]

[:en]In B & L Holdings Inc. v. SNFW Fitness BC Ltd., 2018 BCSC 849, Mr. Justice Leonard Marchand dealt with a request for an adjournment and, in doing so, gave insight into a seldom discussed by-product of litigation involving arbitration.  Marchand J.’s summary of the procedural history included a note that the defendant parties bound by arbitration with one of the plaintiffs filed a counter claim for damages related to plaintiff’s decision to go to public court rather than confidential arbitration. Continue reading “[:en]B.C. – arbitral party files counter claim for breach of undertaking to arbitrate and confidentiality triggered by other party instituting litigation – #073[:]”

[:en]Manitoba – Court of Appeal declines to grant leave to appeal if unnecessary – #072[:]

[:en]In Broadband Communications North Inc v. I-Netlink Incorporated, 2018 MBCA 24 , Mr. Justice William J. Burnett sitting in Chambers dismissed an application for leave to appeal a Court of Queen’s Bench decision which itself had granted leave in part to appeal a final award.   Burnett J.’s brief reasons observe that leave is not granted when leave is unnecessary, jurisdiction only being raised if and when an appeal is filed. Continue reading “[:en]Manitoba – Court of Appeal declines to grant leave to appeal if unnecessary – #072[:]”

[:en]Québec – Court of Appeal upholds stay of multi-party court litigation pending arbitration by two parties – #071[:]

[:en]Québec’s Court of Appeal in Lavoie v. Maltais, 2018 QCCA 777 upheld a Superior Court case management decision staying court litigation involving five parties in favour of arbitration between two of the litigants. The arbitration would serve to first resolve a specific list of disputes tied to the contract containing the arbitration clause, followed by the revival of the court litigation to involve all five parties on the remainder of the issues. Continue reading “[:en]Québec – Court of Appeal upholds stay of multi-party court litigation pending arbitration by two parties – #071[:]”

[:en]Ontario – court enforces award after arbitrator required to untangle a cluster of less common procedural challenges – #070[:]

[:en]In Fuego Digital Media Inc. v. DAC Group (Holdings) Limited, 2018 ONSC 2897, Madam Justice Julianne Parfett considered and dismissed challenges to a final award based on an alleged denial of natural justice and on an alleged excess of jurisdiction.  The reasons demonstrate key procedural difficulties encountered in complex IT arbitration and the variety of solutions applied by arbitrators to resolve those difficulties and provide the parties with an enforceable final award.   The procedural history demonstrates how to deal with a bundle of less common issues such as adjournments to obtain financing and new legal counsel, non-payment of fees leading to dismissal of counterclaim, new evidence, draft awards provided by parties and injunctive relief against the officers and directors of corporate entities. Continue reading “[:en]Ontario – court enforces award after arbitrator required to untangle a cluster of less common procedural challenges – #070[:]”

[:en]Ontario – court applies limits and deference in judicial review of appeal from statutory arbitration – #069[:]

[:en]In its judicial review of an administrative appeal from a statutory arbitration decision, Ontario’s Divisional Court in Belair Direct Insurance Company v. Green, 2018 ONSC 2782, asserted the limited scope granted for that appeal.  By quashing and upholding parts of that appeal decision, Mr. Justice Frederick L. Myers, writing for the court, reiterated the limited role facts can play on an appeal limited to a question of law and the deference the court has for decisions taken on questions of law. Continue reading “[:en]Ontario – court applies limits and deference in judicial review of appeal from statutory arbitration – #069[:]”

[:en]Ontario – court grants temporary stay of litigation, endorsing arbitration as tandem support to court litigation process – #068[:]

[:en]Master Robert A. Muir in Coco Paving Inc. v. Durham (Municipality), 2018 ONSC 2849 used the court’s own case management powers under section 106 of the Courts of Justice Act, RSO 1990, c C.43 to temporarily stay five (5) court files in favour of ongoing arbitration to advance the litigation.  The arbitration process would resolve issues key to the litigation and thereby add efficiencies to the litigation process. The reasoning and the result in support of a temporary stay reflects the court’s belief that arbitration is not only an either-or alternative to litigation but can qualify as tandem support. Continue reading “[:en]Ontario – court grants temporary stay of litigation, endorsing arbitration as tandem support to court litigation process – #068[:]”

[:en]Federal – court dismisses jurisdictional challenge to NAFTA tribunal majority’s consideration of domestic law – #067[:]

[:en]In Canada (Attorney General) v. Clayton, 2018 FC 436, Madam Justice Anne L. Mactavish held that a NAFTA tribunal majority’s consideration of domestic law was either a factual finding or part of the factual matrix on which the majority considered the host state’s breach of customary international law.  In considering the domestic legal framework and the host state’s non-compliance with that law as facts on which it could determine whether investors had received unequal treatment without justification, Mactavish J. held that the majority had stayed within the scope of the submission to arbitration and did not exceed its jurisdiction.  Continue reading “[:en]Federal – court dismisses jurisdictional challenge to NAFTA tribunal majority’s consideration of domestic law – #067[:]”

[:en]Québec – courts vigilant regarding merchants’ reliance on arbitration clauses in consumer contracts – #066[:]

[:en]A pair of recent cases in Court of Québec demonstrate merchants’ persistence in inserting mandatory arbitration clauses into their contracts with consumers and the court’s corresponding vigilance in guarding against violation of Québec’s public order consumer legislation regarding mandatory arbitration.  Despite defendants’ reliance on those arbitration clauses as part of their defenses in court, Mr. Justice Daniel Bourgeois in Poirier v. RSH Travel Ltd.(CheapOair.ca), 2018 QCCQ 2753 and Mr. Justice Jean Hudon in Gauthier v. Détection thermique JD Québec inc., 2018 QCCQ 2198 demonstrated how the courts make brief work of defendants’ reliance on mandatory arbitration clauses in consumer contracts. Continue reading “[:en]Québec – courts vigilant regarding merchants’ reliance on arbitration clauses in consumer contracts – #066[:]”