[:en]In TransAlta Generation Partnership v. Balancing Pool, 2018 ABQB 932, Mr. Justice Paul R. Jeffrey held that a creature of statute with duties under a statutory contract between two other parties had the right to initiate arbitration if neither of the main two parties to the contract chose to do so. The decision extended recognition further than earlier decisions in which the right to initiate arbitration appeared limited to joining an existing arbitration between the main contracting two parties. Continue reading “[:en]Alberta – third party to statutory contract can initiate arbitration disputing fact triggering its obligations – #140[:]”
[:en]Québec – industry association’s arbitration bylaw binds only members, allows litigation against non-members – #139[:]
[:en]In Hypotheca Courtier hypothécaire SSM Inc. v. Re/Max Imagine Inc., 2018 QCCQ 7956, Mr. Justice J. Sébastien Vaillancourt of the Court of Québec summarily dismissed a defendant’s objection to his jurisdiction, holding that the clear wording of an arbitration bylaw adopted by the Québec Federation of Real Estate Boards (the “Federation”) bound only its members. Members were still free to initiate court proceedings against non-members for disputes otherwise covered by the arbitration procedure. The detailed arbitration procedure also stated that any decisions issuing from the arbitration procedure were not to serve as precedents. Continue reading “[:en]Québec – industry association’s arbitration bylaw binds only members, allows litigation against non-members – #139[:]”
[:en]Ontario – courts not bound by arbitration agreement’s stipulated standard of review on appeal – #138[:]
[:en]Unlike the parties’ agreement on the applicable law, the seat and the language, the court is not bound by the parties’ agreement on the standard of review for the appeal of an arbitral award. In Northbridge v. Intact Insurance., 2018 ONSC 7131, Mr. Justice James F. Diamond reiterated the decision in The Dominion of Canada General Insurance Company v. Unifund Assurance Company, 2018 ONCA 303 that an appellate standard of review is a legal issue to be determined by the courts and not by the parties themselves. It appears that, in doing so, Diamond J. extended the Court of Appeal’s reasoning by expressly setting aside a stipulation agreed to by the parties in their arbitration agreement, before the dispute arose and before the court proceedings were initiated. Continue reading “[:en]Ontario – courts not bound by arbitration agreement’s stipulated standard of review on appeal – #138[:]”
[:en]Québec – court dismisses rare challenge by successful arbitral party and challenge based on arbitral precedent – #137[:]
[:en]In PriceWaterhouseCoopers Inc. v. Chamberland, 2018 QCCS 4948, Mr. Justice Bernard Tremblay dismissed a successful arbitral party’s attempt to challenge an arbitral award on the basis that the arbitrator’s reasoning was not consistent with the majority line of reasoning in the subject matter. The arbitral party filed into court several prior arbitral awards involving other parties to support its unsuccessful argument that arbitral precedent justified the court’s intervention. Continue reading “[:en]Québec – court dismisses rare challenge by successful arbitral party and challenge based on arbitral precedent – #137[:]”
[:en]B.C. – arbitration agreement not inoperative simply because arbitral party’s litigation intertwines non-parties – #136[:]
[:en]In Ts’kw’aylaxw First Nation v. Graymont Western Canada Inc. (2018) BCSC 2101, Mr. Justice Gordon C. Weatherill held that, under section 15(2) of B.C.’s Arbitration Act, RSBC 1996, c 55, an arbitration agreement is not inoperative simply because a plaintiff advances intertwining claims against multiple defendants including non-parties to the arbitration agreement. Weatherill J. also reiterated that section 15 does not give the court any residual discretion to refuse a stay against one defendant on the basis that another defendant is a non-party to the arbitration agreement. Continue reading “[:en]B.C. – arbitration agreement not inoperative simply because arbitral party’s litigation intertwines non-parties – #136[:]”
[:en]B.C. – no special rules of procedure exist for self-represented arbitral parties – #135[:]
[:en]In Meszaros v. 464235 B.C. Ltd., 2018 BCSC 2033, Madam Justice Linda A. Loo dismissed a self-represented arbitral party’s attempt to set aside a final award based on arbitral error involving alleged failure to observe the rules of natural justice. The alleged arbitral errors were rather the results of decisions taken by the self-represented party to ignore the arbitrator’s directions and the party’s obligations under the Domestic Commercial Arbitration Rules of Procedure applicable to the arbitration administered by the British Columbia International Commercial Arbitration Centre. It is not the arbitrator’s function or duty to tell parties how to prove their cases or, after the close of the case and closing arguments, to inform a party that it had holes or weaknesses in its case. Continue reading “[:en]B.C. – no special rules of procedure exist for self-represented arbitral parties – #135[:]”
[:en]N.L. – court renews ex parte order in service of court’s deference to arbitration – #134[:]
[:en]Mr. Justice Carl R. Thompson in Astaldi Canada Inc. v. Muskrat Falls Corporation, 2018 NLSC 229 demonstrated Newfoundland and Labrador’s Supreme Courts’ support of arbitration by renewing ex parte interim relief so that a Board of Arbitration constituted following a recent court decision could undertake and complete its own determination of its jurisdiction and, if accepted, issue its own interim relief sought in the Notice of Arbitration. Thompson J. subjected the term of his own order to the occurrence of a later procedural step in the arbitration. His decision recognized that the courts can act quickly, repeatedly and in coordination to preserve to arbitral parties the value of the bargain they made to resolve their disputes, including urgent ones, by arbitration. Continue reading “[:en]N.L. – court renews ex parte order in service of court’s deference to arbitration – #134[:]”
[:en]Ontario – Court of Appeal refuses to appoint arbitrator unless parties fail to do so under their procedure – #133[:]
[:en]In upholding The Walt Disney Company v. American International Reinsurance Company, Ltd., 2018 ONSC 1108, the Ontario Court of Appeal in The Walt Disney Company v. American International Reinsurance Company, Ltd., 2018 ONCA 948 underscored that the courts’ jurisdiction under Ontario’s International Commercial Arbitration Act, 2017, SO 2017, c 2, Sch 5 to intervene in the appointment of arbitrators only arises if there is a failure of the parties’ appointment procedure. One party’s refusal to follow the procedure set out in the arbitration agreement does not give that party standing to apply to the court and allege that the parties are unable to proceed. Appointing an institution to administer an arbitration does not constitute that party’s appointment of its arbitrator in an ad hoc arbitration. Continue reading “[:en]Ontario – Court of Appeal refuses to appoint arbitrator unless parties fail to do so under their procedure – #133[:]”
[:en]B.C. – arbitral party required to repurpose prior arbitral discovery for use in court litigation – #132[:]
[:en]In Moneywise Financial Inc., v. Key Life WCF Financial Inc., 2018 BCSC 1789, Mr. Justice Trevor C. Armstrong granted part of Plaintiff’s application for document discovery by ordering that a Defendant examine a prior arbitration document disclosure and provide Plaintiff copies of any documents in its possession to satisfy a category of documents sought by Plaintiff in later court litigation. The initial arbitration dealt with a dispute over unpaid instalments of the sale price and the subsequent court litigation concerned ownership of assets divested by a Defendant. Despite the gap in disputes and the addition of three other parties to the court litigation uninvolved in the arbitration, Armstrong J. ordered that disclosure of the arbitration bundles serve their new purpose in the court litigation. Continue reading “[:en]B.C. – arbitral party required to repurpose prior arbitral discovery for use in court litigation – #132[:]”
[:en]N.L. – court endorses principle of separability of arbitration agreement despite omission in legislation – #131[:]
[:en]In Muskrat Falls Corporation v. Astaldi Canada Inc., 2018 NLSC 210, Mr. Justice James P. Adams reiterated the Newfoundland and Labrador Supreme Court’s endorsement of the principle of separability despite the absence of an express provision in the Arbitration Act, RSNL 1990, c A-14. Adams J. accepted that the parties’ arbitration provisions continued despite claims that their principal contract may be inoperative, unenforceable or terminated. Adams J. held that the party resisting arbitration failed to discharge its onus to satisfy him that he should depart from the general rule that questions of jurisdiction must first be referred to the arbitrator. Continue reading “[:en]N.L. – court endorses principle of separability of arbitration agreement despite omission in legislation – #131[:]”