Arbitration Agreement Archives - Arbitration Matters

May 24, 2023May 24, 2023

Ontario – Peace River “arguable case” standard applies to ICAA stay motion – #739

Husky Food Importers & Distributors Ltd v JH Whittaker & Sons Limited and Star Marketing Ltd, 2023 ONCA 260 addresses the standard of proof that a party seeking a stay of proceedings under s. 9 of the International Commercial Arbitration Act, 2017, S.O. 2017, c. 2, Sch. 5 (“ICAA”) must meet in order to establish the existence of an arbitration agreement that grounds the stay of proceedings. The Court of Appeal found that Peace River Hydro Partners v Petrowest Corp, 2022 SCC 41 supersedes the stay analysis articulated in Haas v. Gunasekaram, 2016 ONCA 744.

May 10, 2023May 26, 2023

New Brunswick – When is an appeal not an appeal? – #736

In New Brunswick Highway Corporation v. MRDC Operations Corporation, 2023 NBCA 19, the Court of Appeal of New Brunswick (the “Court”) dismissed the appeal of a decision denying an appeal against an arbitral award. The Court found that the arbitration agreement did not grant the parties an automatic right of appeal, and denied leave to appeal pursuant to section 45 of the Arbitration Act, RSNB 2014, as no extricable questions of law were present. The Court cautioned against finding extricable errors of law in a case such as this involving contractual interpretation of the arbitration agreement. The decision turned on the interpretation of the arbitration agreement, which provided both for an appeal and for no appeal.

April 26, 2023April 24, 2023

Ontario – Challenge to award for procedural unfairness and insufficient reasons dismissed – #732

In Orion Travel Insurance Co. v. CMN Global Inc., 2023 ONSC 1527, Justice Morgan dismissed an application under sections 45 and 46(1) of Ontario’s Arbitration Act, 1991, SO 1991, c. 17 for leave to appeal and to set aside an arbitral award. Among other things, Justice Morgan rejected the applicant’s argument that it did was denied its “right to be heard” based on the record, finding that this right only affords a party the opportunity to make one’s case—not to re-make one’s case after shortcomings. He also found that the Arbitrator was at liberty to borrow language from the successful party’s written brief, finding that there was no evidence that the Arbitrator lacked independent thought in doing so. In totality, Justice Morgan found the Arbitrator’s reasons intelligible and concise, and that there were no grounds to set aside the award or to grant leave to appeal.

April 11, 2023April 10, 2023

B.C. – Arbitrator’s findings binding in subsequent court proceeding – #727

In his judgment from the trial in Betts v. Zienowicz, 2023 BCSC 328, Justice Macintosh considered, as a preliminary matter, the admissibility of findings of fact made in an earlier arbitration between the same individual parties and regarding the same issues. As no appeal had been taken from the Arbitrator’s award and given the deference owed to arbitral findings, Justice Macintosh adopted the facts as found by the Arbitrator in considering the issues before him. He then went on to find in favour of the plaintiffs, as had the Arbitrator.

April 10, 2023April 4, 2023

BC – Court determines arbitrator jurisdiction, exercising exception to competence-competence – #726

In Isagenix International LLC v. Harris, 2023 BCCA 96, Justice Griffin, for the British Columbia Court of Appeal, upheld an order dismissing the Appellant’s application made pursuant to section 8 of the International Commercial Arbitration Act, RSBC 1996, c 233 (the “ICCA”) for a stay of proceedings in favour of arbitration. In particular, she rejected the Appellant’s argument that the chambers justice had misapplied the principle of competence-competence by deciding the question about whether the underlying negligence claim fell within the scope of the arbitration clause, rather than referring the jurisdictional matter to the arbitrator. Justice Griffin found that the chambers justice did not err in law because he came within one of the well-established exceptions to the competence-competence rule.

March 15, 2023March 9, 2023

Ontario – no jurisdiction over dispute not properly raised in arbitration – #720

In EBC Inc. v. City of Ottawa, the parties’ primary construction contract contained a multi-tier dispute resolution clause that provided for notice, negotiation, mediation, and arbitration. The parties also negotiated an agreement that contained a Claims Process applicable to disputes between them that provided for the exchange of documentation, negotiation, mediation and arbitration. The parties followed the Claims Process and proceeded to arbitration on a number of issues consisting of a jurisdiction motion and then three arbitral phases. As part of the jurisdiction motion the Arbitrator held that the arbitration could only address claims that had been advanced prior to September 2018. After completion of the arbitration, EBC brought an application for payment of money from the Respondent City, which was an issue that had not been raised in the Claims Process. Justice P. J. Boucher rejected EBC’s application on the basis that as the dispute arose after September, 2018, it should have been raised using the dispute resolution process in the Contract, and not before the court.

March 14, 2023March 10, 2023

New Brunswick – Awaiting response to arbitrate extends time for JR of decision – #719

In New Brunswick Lotteries and Gaming Corporation v Madawaska First Nation, 2023 NBCA 1, the Court of Appeal of New Brunswick (“NBCA”) per Justices Drapeau, French, and LeBlond, upheld the application judge’s decision that the appellant’s response that it would consider arbitration was not a decision that started the limitation period for bringing a judicial review application.

March 2, 2023February 23, 2023

Québec – Class Actions: rules for referral to arbitration should be followed – #717

In Vidéotron c. 9238-0831 Québec inc. (Caféier-Boustifo), 2023 QCCA 110, the Court of Appeal dismissed Vidéotron’s appeal and confirmed Justice Lussier’s first instance judgement dismissing Vidéotron’s request to limit the definition of the plaintiff group in a class action to only those customers whose contracts do not contain an arbitration clause. After the application for authorization was filed but before it was decided, Vidéotron amended its contracts with all new customers so that they contained an arbitration clause. Almost three years later, it sought to change the definition of the plaintiff group so that it included only those customers with contracts that pre-dated the amendment to include an arbitration clause. Justice Lussier found that Vidéotron was out of time. The Court of Appeal confirmed that section 622 CCP and its 45-day limit for an application for referral to arbitration are applicable to class action proceedings as well as to any other proceedings. Even if this limit is not de rigueur, the party asking for referral to arbitration has the burden of proof to justify any added delay. The Court of Appeal also reaffirmed that, based on an arbitration clause, the motion to request a modification to a plaintiff group in a class action is equivalent to a jurisdiction challenge. The Court of Appeal confirmed Justice Lussier’s ruling that Vidéotron did not meet its burden of proof to justify its delay to file its application to change the definition of the plaintiff class.

February 27, 2023February 23, 2023

B.C. – Recent shift towards competence-competence in arbitration clause interpretation? – #714

In 3-Sigma Consulting Inc. v Ostara Nutrient Recovery Technologies Inc, 2023 BCSC 100. Justice Matthews granted a stay of proceedings, finding that the, “arguable case standard provides room for a judge to dismiss a stay application when there is no nexus between the claims and the matters reserved for arbitration, while referring to the arbitrator any legitimate question of the scope of the arbitration jurisdiction” relying upon Clayworth v. Octaform Systems Inc., 2020 BCCA 117 at para. 30. Here there was such a nexus, so the matter was referred to the arbitrator to decide jurisdiction.

February 15, 2023February 10, 2023

Saskatchewan – Tribunal to decide whether arbitration clause is unconscionable – #711

In Singer Enterprises Inc. v. Parrish & Heinbecker, Ltd., 2022 SKKB 268, Justice Currie found, based on the principles of competence-competence, that an arbitral tribunal has the jurisdiction to determine whether an arbitration clause is unconscionable and improvident, because such a determination is not a question of law alone and requires a review of the facts. He stayed the plaintiff’s action pending that determination by the tribunal in an arbitration already commenced by the defendant.