[: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[:]”
[:en]Ontario – court respectful of parties’ choice while ensuring parties treated fairly and equally – #035[:]
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The application in Gerstel and 2102503 Ontario Inc. (Harold the Jewellery Buyer) v. Kelman and Mortgage Maven Inc., 2017 ONSC 214 required Mr. Justice Thomas R. Lederer to balance the limits of court intervention with party autonomy when he reviewed reproaches to the procedure adopted and tailored by the parties. As with many arbitration agreements, the parties chose their applicable law and decision makers, opting to submit to a panel of three respected community leaders sharing similar values and approaches in order to resolve a commercial dispute. Lederer J. carefully navigated between keeping the court’s distance and ensuring that both parties were treated equally and fairly, with a chance to present their case on the merits and challenge the other party’s. Continue reading “[:en]Ontario – court respectful of parties’ choice while ensuring parties treated fairly and equally – #035[:]”
[:en]B.C. – court applies ‘arguable case’ test to stay action based on arbitration clause external to contract – #034[:]
[:en]The B.C. Supreme Court determined that an applicant for a stay of proceedings under section 8 of B.C.’s International Commercial Arbitration Act, RSBC 1996, c 233 need only meet an arguable case when establishing whether section 8 could support a stay in favour of arbitration. Mr. Justice Warren B. Milman in Sum Trade Corp. v. Agricom International Inc., 2017 BCSC 2213 determined that both parties had valid arguments to make which went beyond pure questions of law or superficial considerations of documentary evidence and were best determined by an arbitrator with industry expertise. Continue reading “[:en]B.C. – court applies ‘arguable case’ test to stay action based on arbitration clause external to contract – #034[:]”
[:en]Québec – court upholds tribunal’s dismissal of jurisdictional challenge based on alleged settlement – #033[:]
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Madam Justice Lucie Fournier in Demers v. Conseil d’arbitrage des comptes d’avocats du Barreau du Québec, 2017 QCCS 1084 held that a consensual arbitration tribunal had the jurisdiction to consider the existence and effect, if any, of any alleged settlement in deciding its own jurisdiction. Fournier J. also held that a non-party to a settlement could not rely on the terms of the settlement to resist arbitration of a dispute involving her. Continue reading “[:en]Québec – court upholds tribunal’s dismissal of jurisdictional challenge based on alleged settlement – #033[:]”
[:en]B.C. – court reverses arbitrator, ruling arbitrator has no jurisdiction due to parties’ settlement – #032[:]
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In Lithium One Homes Ltd. v. Abakhan & Associates Inc., 2017 BCSC 2189, B.C.’s Supreme Court granted an appeal of an arbitrator’s decision by which he had decided he had jurisdiction. Mr. Justice Ronald S. Tindale determined that the parties had signed a settlement which released each party from all disputes arising out of the contract containing their arbitration agreement. Tindale held that the arbitrator failed to give sufficient reasons why he decided he had jurisdiction and, in reviewing the facts, Tindale J. concluded that without a dispute between the parties, the arbitrator lacked jurisdiction because of the settlement. Continue reading “[:en]B.C. – court reverses arbitrator, ruling arbitrator has no jurisdiction due to parties’ settlement – #032[:]”