notes on new arbitration cases in Canada
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Québec’s Court of Appeal in Bard v. Appel, 2017 QCCA 1150 dismissed an appeal from a Superior Court decision in Bard v. Appel, 2015 QCCS 4752 which held that enforcement of a 2002 Florida final arbitration award was prescribed at the time its beneficiaries applied in 2014 in Québec to homologate and enforce. Continue reading “[:en]Québec – court upholds dismissal of application to homologate and enforce final award due to lapse of time – #022[:]”
[:en]The Ontario Superior Court in Co-operators General Insurance Company v. Doobay, 2017 ONSC 5804 upheld a statutory rule limiting the time before which a negotiated settlement can terminate arbitration. The case should highlight that certain arbitrations, conducted under national legislation, may be subject to similar suspensive or resolutory conditions and that arbitral parties cannot presume their settlements are effective merely upon initial agreement of the parties. Continue reading “[:en]Ontario – court enforces legislated cooling off period to prevent settlement ending arbitration – #021[:]”
[:en]In Arkell v. Brightpath, 2017 ONSC 6612, Mr. Justice Michael J. Emery combined two of Ontario’s procedural tools – section 7(2)(5) of the Arbitration Act, 1991, SO 1991, c 17 and Rule 20.01 summary judgment of Rules of Civil Procedure, RRO 1990, Reg 194 – to craft solutions to the parties’ disputes. Wielding both, he refused Defendant’s application to stay, agreed with Plaintiffs that both their claims were suitable for summary judgment consideration in preference to arbitration, granted one of Plaintiffs’ claims and kept jurisdiction over Plaintiffs’ other claim for the purpose of a mini-trial on the merits. Continue reading “[:en]Ontario – court grants partial summary judgment instead of stay and conducts mini-trial for balance of claim – #020[:]”
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Despite Plaintiff basing its claims on an unsigned 2003 agreement, Saskatchewan’s Queen’s Bench relied on the parties’ earlier, more detailed 2001 signed agreement to tip the balance and grant Defendant’s application to decline jurisdiction in favour of the Ontario courts. Mr. Justice D.H. Layh in JCP Conservation Systems Ltd. v Convenience Group Inc., 2017 SKQB 309 considered evidence from Defendant including the parties’ earlier agreement which applied Ontario law and subjected any disputes under that agreement to arbitration under Ontario’s Arbitration Act, 1991, SO 1991, c 17. Continue reading “[:en]Saskatchewan – court considers arbitration undertaking as part of reasons to refer parties to Ontario courts – #019[:]”
[:en]The decision in Myers v. AlanRidge Homes Ltd, 2017 ABQB 631 provides insights on the extent to which some successful arbitral parties go to execute on recognized and enforced awards. The case contains six categories of transactions which Plaintiffs tried to void in order to recover assets against which they could then execute to satisfy their awards recognized by an earlier court decision. Plaintiffs’ claims and Defendants’ circumstances provide a useful discussion on different transactions which may be challenged and how the court can approach those transactions which stand in the way of satisfying arbitral awards. Continue reading “[:en]Alberta – decision demonstrates limits of enforcement even for recognized commercial arbitration awards – #018[:]”
[:en]The Québec Superior Court determined that the true nature of a dispute covered by the litigation was over the manner in which the government imposed the contract on the litigants and not over its interpretation or application. Corporation des services d’ambulance du Québec v. Barette (Ministre de la Santé et des Services sociaux), 2017 QCCS 4170 serves as a caution that even the most elaborate undertakings to arbitrate do not necessarily apply if the dispute is not about the contract between the parties but with the government as a third party which created it. Continue reading “[:en]Québec – court declines request to refer parties to arbitration disputing validity of government decision to impose standard contract – #017[:]”
[:en]Unlike most other court decisions in which litigants apply to a judge to send the parties to arbitration or to review an arbitral award, the judge in Haras Management et al. v. Gov. of P.E.I., 2017 PESC 14 was appointed by provincial legislation to sit as an arbitrator to resolve the parties’ dispute and her award was subject to the province’s Arbitration Act, RSPEI 1988, c A-16. Continue reading “[:en]P.E.I. – legislation imposes arbitration before a judge in order to resolve disputes over compensation owing from expropriation – #016[:]”
[:en]The Northwest Territories’ Court of Appeal in Miller Sales et al v. Metso Minerals et al, 2017 NWTCA 3 granted an application to stay under section of NWT’s International Commercial Arbitration Act, RSNWT 1988, c I-6 (“ICAA”) . In doing so, it upheld the reasoning and result in the chambers judge’s decision, reported in Miller Sales & Engineering Inc. et al. v. Metso Minerals Industries Inc. et al., 2016 NWTSC 23, which looked past the terms of a settlement and assignment agreement and enforced the parties’ initial undertaking to arbitrate. Continue reading “[:en]Northwest Territories – Court of Appeal applies ‘pith and substance’ analysis to enforce original undertaking to arbitrate – #015[:]”
[:en]Ontario’s Superior Court dismissed litigation in favour of statute-ordered mediation and arbitration because those two steps were necessary but unmet preconditions to court access. Peel Condo Corp 166 v. Ohri, 2017 ONSC 6438 determined that each of those steps had neither been attempted by Plaintiff nor waived by Defendant. The case illustrates how some legislation can impose alternative dispute resolution steps onto some legal relationships, created by contract, which the parties must attempt before filing litigation. Continue reading “[:en]Ontario – court obliges plaintiff to complete legislated mediation and arbitration steps before having access to court – #014[:]”
[:en]In a pair of decisions, the Federal Court of Appeal reminded litigants of the limits of enforcing arbitral awards. In Delizia Limited v. Nevsun Resources Ltd., 2017 FCA 187 and Delizia Limited v. Sunridge Gold Corp., 2017 FCA 188 the court upheld two corresponding lower court decisions, Nevsun Resources Ltd. v. Delizia Limited, 2016 FC 393 and Sunridge Gold Corp. v. Delizia Limited, 2016 FC 392, which overturned a Prothonotary’s order of garnishment against non-parties to the arbitration, Delizia Limited v. Eritrea, 2015 FC 33 and Delizia Limited v. Eritrea, 2015 FC 34, when doing so would require the court to pierce multiple corporate veils on the basis of the debtor’s control over them. Continue reading “[:en]Federal – Court of Appeal quashes garnishment attempt executing arbitral award against third parties – #013[:]”