Arbitration Agreement Archives - Page 10 of 14

October 25, 2022October 25, 2022

Ontario – Limitations defence not a matter of arbitral jurisdiction – #674

In Cruickshank Construction Ltd. v The Corporation of the City of Kingston, 2022 ONSC 5704, Justice Myers allowed an application to appoint an arbitrator, providing his views on the method for that appointment. He also dismissed the Respondent’s cross-application for a declaration that the notice of arbitration was limitation-barred and that the Applicant had not complied with preconditions to arbitration in the parties’ agreement. Justice Myers held that there was no basis in the Ontario Arbitration Act, 1991, SO 1991, c 17 (“Arbitration Act”) to permit the court to grant the cross-application and the grounds raised were not matters of arbitral jurisdiction.

October 24, 2022January 10, 2023

Quebec – The broad powers of an arbitrator as “amiable composer” – #673

In Investissements immobiliers MB inc. c. SMP Direct inc., 2022 QCCS 3315, Justice Godbout affirmed the broad jurisdiction that an arbitrator has to grant remedies in oppression claims, especially when empowered as an ‘amiable composer’. An ‘amiable composer’ may make a binding decision based on equity (rather than law) and without procedural formalities. It is a role that has its roots in civil law (“amiable compositeur”).

October 11, 2022October 7, 2022

Manitoba – Arbitration Agreement Invalid due to Unconscionability and no Consideration – #669

In Pokornik v. SkipTheDishes Restaurant Services Inc., 2022 MBKB 178, Justice Chartier considered the principles arising from Uber Technologies Inc. v. Heller, 2020 SCC 16 (CanLII) (“Uber”) in a contract of adhesion between a restaurant delivery corporation, SkipTheDishes, and one of its individual couriers. Justice Chartier found that there was no arbitration agreement; SkipTheDishes asserted that the courier was bound to a new agreement with an arbitration agreement that only became effective after she sued. Had he found otherwise, Justice Chartier would have found the agreement to be invalid due to unconscionability and a lack of consideration. These findings were despite efforts by SkipTheDishes to address some of the concerns that animated the Supreme Court of Canada’s decision in Uber.

September 28, 2022April 20, 2023

Alberta – Master’s stay decision appealable despite no appeal under Arbitration Act – #665

In Agrium v Orbis Engineering Field Services, 2022 ABCA 266, the majority of a three-member panel of the Court of Appeal of Alberta (the “Court of Appeal”) dismissed an appeal to overturn a decision staying the action in favour of arbitration. The Appellant, Agrium, Inc. (“Agrium”), commenced an action against the Respondents, Orbis Engineering Field Services Ltd., Elliott Turbomachinery Canada Inc., and Elliott Company (together, the “Respondents”), in relation to a dispute arising out of the parties’ services contract that included a mandatory arbitration agreement. The Respondents defended the claim, including on the ground that the arbitration agreement barred the action pursuant to s 7 of Alberta’s Arbitration Act (the “Act”). The Respondents’ initial application to stay the action was dismissed by Master Prowse on the grounds of waiver and attornment. The Respondents then appealed to a Justice of Alberta’s Court of King’s Bench. Before Justice Dilts, Agrium relied upon s 7(6) of the Act, which states that “[t]here is no appeal from the court’s decision under this section”. Agrium argued that thisprohibited the appeal. Justice Dilts dismissed this argument and allowed the Respondents’ appeal on the grounds that: (1) an appeal was permitted notwithstanding s. 7(6); and (2) the Respondents’ conduct did not amount to a waiver of their right to arbitrate. The majority of the Court of Appeal upheld Justice Dilts’ decision based on a similar analysis. Of note, Justice Wakeling wrote a 44-page dissenting opinion, which includes 140 paragraphs and 152 footnotes, as compared with the 34- paragraph majority decision (!).

September 14, 2022September 9, 2022

Ontario – Court of Appeal upholds “single proceeding” insolvency model over recourse to arbitration – #660

In Mundo Media Ltd. (Re), 2022 ONCA 607, Court of Appeal for Ontario Justice Julie Thorburn dismissed a motion for leave to appeal a decision denying a motion to stay a receiver’s court proceeding. The Appellant/Moving Party sought the stay on the basis of an international arbitration agreement. Justice Thorburn found no reversible error in the motion judge’s choice to apply the “single proceeding model”, applicable in insolvency proceedings, with the effect that the Appellant/Moving Party, one of the insolvent company’s debtors, could not require the receiver to arbitrate its claim rather than litigate it. Together with the Superior Court’s decision below, this decision provides important guidance on the interplay between arbitration agreements and claims advanced in the bankruptcy and insolvency context.

August 26, 2022August 19, 2022

Ontario – Arbitrator resignation did not terminate arbitration – #652

In Kubecka v Novakovic, 2022 ONSC 4503, Justice Pinto determined that, on the wording of the parties’ arbitration agreement, the parties had agreed that the arbitration was not terminated and their dispute returned to the jurisdiction of the courts – even when the arbitrator resigned. He appointed a replacement arbitrator on the application of one of the parties.

August 15, 2022August 15, 2022

Québec – Parallel proceedings insufficient to justify disregard of arbitration agreement – #651

In Travelers Insurance Company of Canada v Greyhound Canada Transportation, 2022 QCCQ 4746, Justice Davignon declined jurisdiction over part of a dispute – the Plaintiffs sued the Defendants for recovery of damages as a result of an explosion on their property; in a separate action, one Defendant sued the other to recover any damages it might be required to pay to the Plaintiffs, relying upon a warranty provision in the Defendants’ agreement (to which the Plaintiffs were not parties). That agreement contained both a forum selection and arbitration clause. Justice Davignon declined jurisdiction over the warranty claim. He was unmoved by the fact that this would result in the dispute being debated in two different forums – the court, in respect of the principal action, and arbitration, as to the warranty claim – and gave full effect to the arbitration clause in the agreement between the Defendants.

August 11, 2022August 11, 2022

Ontario – Stay Granted where Competing Arguable Interpretations of Scope of Arbitration Agreement – #648

In Biancucci v Buttarazzi, 2022 ONSC 4054, Justice Myers followed the analytical framework for a stay application under s. 7 of the Arbitration Act, 1991, S.O. 1991, c. 17 (the “Act”) as set out in Haas v. Gunasekaram, 2016 ONCA 744. The arbitration agreement at issue was contained in a settlement agreement, and interconnected litigation and arbitration taking place over a decade made analysis of the scope of the arbitration agreement complex. Ultimately, Justice Myers confirmed that there were competing arguable interpretations of scope and granted the stay, leaving jurisdiction to be ultimately determined by the arbitral panel.

August 11, 2022August 11, 2022

Alberta – SCC Wastech decision applies to exercise of arbitrator’s discretion to resign – #647

In SZ v JZ, 2022 ABQB 493 Justice Marion agreed to hear an application for urgent relief, despite the Respondent’s position that he had no jurisdiction. The Respondent argued that the parties were engaged in arbitration until the Arbitrator resigned unilaterally; however, the parties’ arbitration agreement continued to be enforceable. Justice Marion disagreed. He found that the Alberta Arbitration Act, RSA 2000, c A-43 (Arbitration Act) and the arbitration agreement (to which the Arbitrator was a party) allowed the Arbitrator to resign and that because the parties agreed to arbitration only before the specific Arbitrator appointed, upon his resignation, the arbitration terminated. However, the Arbitrator was required to exercise his discretion to resign reasonably and in good faith, including in a manner that was consistent with the purposes for which the discretion was provided in the contract, in accordance with the Supreme Court of Canada decision in Wastech Services Ltd v Greater Vancouver Sewage and Drainage District, 2021 SCC 7. There was no suggestion that he had not done so.

July 29, 2022August 2, 2022

Ontario: Stay ordered as promissory note captured by separate arbitration agreement – #643

In Pioneer Cannabis Corp. v. 2715615 Ontario Inc., 2022 ONSC 3998, the Plaintiff’s action was stayed pursuant to s. 7(1) of Ontario’s Arbitration Act, 1991 (the “Act “) and the parties’ arbitration agreement found in their “Master Cannabis Agreement” (the “MCA”). The Plaintiff Pioneer Cannabis Corp (“Pioneer”) commenced an action alleging that the Defendants 2715615 Ontario Inc and Mr. Sangha owed money pursuant to a promissory note. The parties had entered into a number of agreements relating to cannabis retail consulting and brand licensing services including the MCA, a Retail Services Authorization Agreement (the “RSAA”), and a promissory note. On its motion to stay, the Defendants argued that the Plaintiff’s claim fell within the arbitration clause in the MCA. The Plaintiff, however, argued since its claim wass based solely on the promissory note, which should be viewed as a standalone instrument, it fell outside the scope of the arbitration clause. Associate Justice Robinson disagreed with Pioneer, found the arbitration agreement covered the promissory note, and granted the stay. As outlined below, in reaching his conclusion, Associate Justice Robinson applied the five-part test established by the Court of Appeal for Ontario in Haas v Gunasekaram, 2016 ONCA 744 (“Haas”)at paragraph 17 to determine whether an action should be stayed in favour of arbitration (the “Haas Test”).