[:en]Aware that arbitration was only a precondition to eventual litigation between the parties on related issues, Mr. Justice Jean-Jude Chabot of the Québec Superior Court in Julien et Assurances Jones inc., 2018 QCCS 35 still referred the parties to arbitration but in obiter offered some observations. If heeded, his observations would simplify the progress of the parties’ dispute resolution process. In doing so, Chabot J. demonstrated the judiciary’s flexibility and ongoing willingness to enable the parties’ choice of arbitration. Continue reading “[:en]Québec – court’s obiter attempts to pre-empt procedural disagreements – #045[:]”
[:en]Ontario – Court of Appeal offers clarity for contracts containing competing wording on dispute resolution – #044[:]
[:en]Ontario’s Court of Appeal provided clarity for parties bound to contracts containing competing mentions of arbitration and litigation. In Trade Finance Solutions Inc. v. Equinox Global Limited, 2018 ONCA 12, the Court overturned a motion judge’s interpretation of the International Commercial Arbitration Act, RSO 1990, c I.9 (“ICAA”) and the Model Law on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law on June 21, 1985, as set out in the Schedule to ICCA (“Model Law”). The Court qualified the interpretation as an error in law, and asserted that arbitration can still be binding even if it subjects only “certain” disputes to arbitration. Continue reading “[:en]Ontario – Court of Appeal offers clarity for contracts containing competing wording on dispute resolution – #044[:]”
[:en]Ontario – courts consider final award which refuses to resolve dispute between some parties to arbitration – #043[:]
[:en]A short decision from the Court of Appeal, in Chambers, highlighted the shortened delay applicable in Ontario to appeals of Superior Court decisions confirming arbitral awards. Maracle III v. Miracle, 2017 ONCA 950 also dealt with the uncommon situation of an arbitrator’s refusal to make any findings regarding certain parties to a dispute despite their clear agreement to arbitrate that dispute. Continue reading “[:en]Ontario – courts consider final award which refuses to resolve dispute between some parties to arbitration – #043[:]”
[:en]Alberta – court allows amendments to court proceedings despite potential subsequent application to stay – #042[:]
[:en]The Alberta Court of Queen’s Bench in Canexus Corporation v. MEG Energy, 2017 ABQB 739 allowed amendments to a Statement of Claim despite claims that the contract on which the claims were based provided for arbitration. The court dealt with the interplay between Alberta’s Arbitration Act, RSA 2000, c A-43 and the Alberta Rules of Court, distinguishing between an initial decision to allow amendments and a later decision as to whether the claims should be stayed in favour of arbitration. Continue reading “[:en]Alberta – court allows amendments to court proceedings despite potential subsequent application to stay – #042[:]”
[:en]N.L. – court stay bifurcates litigation in favour of statute-imposed arbitration of resource – #041[:]
[:en]The Supreme Court of Newfoundland and Labrador, Trial Division in Dewey v. Kruger Inc., 2017 CanLII 85310 agreed to stay part of a proposed class action in favour of mandatory arbitration imposed by legislation dating back to 1927. In doing so, the court acknowledged the while both class actions and arbitrations have advantages, (a) possible bifurcation of proceedings is not a determining factor to deny referring parties to arbitration and (b) if a legislature intends to exclude arbitration of a particular type of dispute, it must do so explicitly. Continue reading “[:en]N.L. – court stay bifurcates litigation in favour of statute-imposed arbitration of resource – #041[:]”
[:en]Ontario – court able to decide jurisdictional challenge on “superficial consideration of documentary evidence” – #040[:]
[:en]The Ontario Superior Court in Kanda Franchising Inc. and Kanda Franchising Leaseholds Inc. v. 1795517 Ontario Inc., 2017 ONSC 7064 determined that parties resisting their inclusion in an arbitration were entitled to a decision by the court rather than having their jurisdictional challenge referred to the arbitrator. Madam Justice Jocelyn Speyer determined that the materials were clear enough and required little if any evidence for a determination of the challenge. Continue reading “[:en]Ontario – court able to decide jurisdictional challenge on “superficial consideration of documentary evidence” – #040[:]”
[:en]Manitoba – litigants lack a dispute to justify one arbitration and an agreement to justify another arbitration – #039[:]
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Manitoba’s Court of Queen’s Bench in I.XL Properties Ltd. v. Springs of Living Water Centre Inc. et al, 2017 MBQB 30 demonstrated two (2) limits of a court’s intervention in consensual arbitration when handling two (2) separate disagreements involving three parties. For the first disagreement, involving two (2) litigants bound by an arbitration agreement, Mr. Justice Robert A. Dewar declined to order them to arbitration because they had not yet reached a dispute. For the second disagreement, involving another pair of litigants who did have a dispute but no arbitration agreement, Dewar J. sent them to trial but offered to order them to arbitration if only they would consent. Continue reading “[:en]Manitoba – litigants lack a dispute to justify one arbitration and an agreement to justify another arbitration – #039[:]”
[:en]Québec – court refers litigants to arbitration despite requesting party not signing arbitration agreement – #038[:]
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The Québec Superior Court in 9302-7654 Québec inc. (Team Productions) v. Bieber, 2017 QCCS 1100 determined that both litigants were bound by an arbitration agreement even if one had not personally signed the arbitration agreement. Mr. Justice Daniel Dumais also reviewed the facts provided to him in court to conclude that the litigation raised a dispute which, though potentially extracontractual, fell with the large scope of the parties’ arbitration agreement. Continue reading “[:en]Québec – court refers litigants to arbitration despite requesting party not signing arbitration agreement – #038[:]”
[:en]Ontario – Court of Appeal upholds dismissal of litigation based on issue estoppel with Sharia Law arbitration – #037[:]
[:en]In brief reasons, the Ontario Court of Appeal Mroue v. Mroue, 2017 ONCA 517 dismissed an appeal from Mr. Justice Colin D.A. McKinnon’s decision in Mroue v. Mroue, 2016 ONSC 2992 which struck a Statement of Claim on the basis of res judicata and issue estoppel with a prior arbitration award. McKinnon J. held that the parties had bargained for a decision in accordance with Sharia Law and, having received one, could not now object to it. Any alleged improprieties with the procedure followed in the Iran, while different from that in Ontario, did not result in any unfairness. Continue reading “[:en]Ontario – Court of Appeal upholds dismissal of litigation based on issue estoppel with Sharia Law arbitration – #037[:]”
[:en]Québec – court holds parties to their bargain to refuse challenge to arbitral award – #036[:]
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Mouhadi v. Fiducie famille Eusanio, 2017 QCCS 3570 demonstrated the economy inherent in Québec’s approach to the court’s post-award intervention by briskly considering and dismissing four challenges to a final arbitration award. Unlike other Canadian provinces and territories, Québec arbitration law makes no distinction between international and domestic arbitration, applying a single standard familiar to international commercial arbitration practitioners. Defendants failed to meet their burden of establishing any one of the few grounds available to resist homologation. Continue reading “[:en]Québec – court holds parties to their bargain to refuse challenge to arbitral award – #036[:]”