Arbitration Agreement Archives - Page 7 of 10

July 18, 2022July 18, 2022

Québec – Light touch to determining arbitration clause application (except to the non-signatory, maybe!) – #638

In Cannatechnologie inc. c. Matica Enterprises Inc., 2022 QCCA 758, the Québec Court of Appeal (Justices Bélanger, Rancourt and Moore) affirmed the principle that a court should limit itself to a prima facie assessment of whether or not a dispute comes within the scope of an arbitration clause. If it does, a court proceeding regarding the dispute should be stayed so that the arbitrator can rule on his or her own jurisdiction.

June 21, 2022June 17, 2022

Ontario – No stay despite broad arbitration clause – #629

In FNF Enterprises Inc. v. Wag and Train Inc., 2022 ONSC 2813,Justice Ramsay dismissed the Defendant’s motion for a stay of proceedings under section 7 of the Ontario Arbitration Act, 1991, S.O. 1991, c. 17. The Defendant sought a stay of proceedings based on an arbitration clause included in a lease agreement. Justice Ramsay concluded that, standing alone, the arbitration clause suggested that issues arising out of the lease agreement shall be determined by way of arbitration, but he decided that, interpreting the lease agreement as a whole, the arbitration clause did not extend to an issue concerning collection of unpaid rent, which could be sought by action. Therefore, Justice Ramsay declined to stay the proceedings.

June 6, 2022May 27, 2022

Alberta – Appeal process under s. 44(2) of the Arbitration Act clarified – #623

In Esfahani v. Samimi, 2022 ABCA 178, the Court of Appeal for Alberta set out the procedure to be undertaken by the Court of Queen’s Bench when an arbitral award is appealed under s. 44(2) of the Arbitration Act, RSA 2000, c A-43. It states that if the arbitration agreement does not provide that the parties may appeal an award to the court on a question of law, a party may, with the permission of the court, appeal an award to the court on a question of law. The Court of Appeal held that the procedure is as follows: (a) an appeal does not exist unless permission to appeal is granted; (b) if parties do not make the required election in their arbitration agreement, permission to appeal is required and will be granted on questions of law only, subject to s 44(3) of the Arbitration Act (which provides that a party may not appeal an award to the court on a question of law that the parties expressly referred to the arbitral tribunal for decision); and (c) an application for permission to appeal must be heard and decided first, and separately, not contemporaneously with the appeal of the arbitral award.

May 24, 2022May 26, 2022

Ontario – Arbitration or expert determination? Stay granted, referral to “Independent Accountant” – #620

In 2832402 Ontario Inc. v 2853462 Ontario Inc., QBD Modular Systems Inc., and QBD Cooling Systems Inc., 2022 ONSC 2694, Justice Conway was asked to decide whether the parties had agreed to arbitration or expert determination. The parties had entered into a Share Purchase Agreement (“SPA”), which contained a dispute resolution clause to deal with disagreements as to post-closing purchase price adjustments, which disputes were to be determined by an “Independent Accountant”. A dispute arose and the Vendor brought a court application against the Purchaser for production of documents to allow it to calculate the post-closing adjustments. The Vendor argued that even if the parties had agreed to arbitration, the document production issue was outside the jurisdiction of the Independent Accountant. Justice Conway considered the various indicia of arbitration and concluded that the clause in the SPA was an arbitration clause. Therefore, she stayed the application and referred the production issue to the Independent Accountant. That issue was relevant to the Independent Accountant’s ability to decide the parties’ dispute as to the amount of the post-closing purchase price adjustment.

May 22, 2022May 26, 2022

Ontario – Trial required to determine compliance with arbitration preconditions – #618

In H. R. Doornekamp Construction Ltd. v. Canada (Attorney General) (Department of Public Works and Government Services), 2022 ONSC 2247, the Divisional Court (Justices Stewart, Lederer and Tzimas) dismissed the Defendant’s motion for summary judgment and decided that a trial was required to determine whether a party had properly complied with a condition precedent to an arbitration clause. The issue was whether the Plaintiff’s rights under the dispute resolution clause were extinguished or whether the Defendant’s conduct was such that the Plaintiff’s rights were not yet engaged.

May 12, 2022May 10, 2022

Ontario – Set- aside application failed; dispute covered by arbitration agreement, no objection to jurisdiction – #616

In Baffinland v Tower-EBC, 2022 ONSC 1900, Justice Pattillo dismissed both: (1) an application to set aside an award from a majority of an arbitral tribunal (the “Majority Award”) under section 46 of the Arbitration Act, 1991, S.O. 1991, c. 17 (the “Act”); and (2) an application for an order granting leave to appeal the Majority Award and Costs Award under section 45(1) of the Act. Justice Pattillo found there were no grounds upon which to set aside the Majority Award; there was no lack of jurisdiction or failure to be treated equally and fairly. Nor could leave to appeal be granted under section 45(1) of the Act because the arbitration agreement precluded an appeal.

May 10, 2022May 10, 2022

Ontario – Determining appeal rights in arbitration agreement in effect since 1960 Arbitration Act – #614

In D Lands Inc. v KS Victoria and King, 2022 ONSC 1029, Justice Dietrich granted the Landlord leave to appeal the tribunal Majority’s award in a rent reset arbitration, but ultimately dismissed the appeal and the Landlord’s application to set aside the Majority’s award on jurisdictional grounds. Her reasons summarize the legal principles to be applied to determine whether the parties agreed to a right of appeal and, in particular: (1) the effect of an arbitration agreement when it spans a period of time in which more than one piece of arbitration legislation governed that provided for different rights of appeal; and (2) as a matter of contract interpretation, the language necessary for the parties to contract out of rights of appeal. Here, the parties’ agreement was entered into in 1968 and the arbitration legislation in Ontario changed since then from an “opt in” regime to an “opt out” regime. However, the parties provided in their arbitration clause that any arbitration was to be conducted under the ICDR Rules, which were silent on appeal rights. Therefore, it was necessary for Justice Dietrich to interpret the contract as a whole to determine the parties’ intentions. The words in the arbitration agreement that the tribunal’s award “is conclusive on the parties” and that judgment may be entered in any court having jurisdiction were not sufficiently clear to express an intention to contract out of a right to appeal.

May 5, 2022May 17, 2022

Ontario – Uber arbitration, and class action waiver not certified as common issue – #612

In Heller v. Uber Technologies Inc., 2022 ONSC 1997, Justice Perell dismissed a motion to certify as a common issue the enforceability of an Arbitration and Class Action Waiver Clause in the Uber standard form services agreement that members of the class signed. As a result, this issue will not be determined at a common issues trial. Class action members who did not exercise their right to opt out of the clause are still class members and may be able to negate the operation of the waiver at individual issues trials if the class action gets that far.

April 26, 2022April 25, 2022

Ontario – Clause specifying non-exclusive attornment to courts doesn’t override arbitration clause – #609

In Husky Food Importers v. JH Whittaker & Sons, 2022 ONSC 1679, Justice Conway granted a stay of proceedings in favour of arbitration despite an allegation that no underlying agreement was ever finalized and notwithstanding a clause stating that the courts of New Zealand had non-exclusive jurisdiction.

April 25, 2022April 25, 2022

Ontario – Arbitrators can decide non-legal business disputes, but not in this case – #608

The case 1107051 Ontario Ltd. v. GG Kingspa Enterprises Limited Partnership, 2022 ONSC 1847 concerned the jurisdiction of an arbitrator to decide a business dispute that was not legal in nature. The Applicant, 1107051 Ontario Ltd. (“110”), applied to “set aside” a decision of an arbitrator to assume jurisdiction over a dispute about whether a major real estate development project at King Street West and Spadina Avenue in Toronto (the “Project”) should include a hotel component when the parties were deadlocked on the issue. Section 17(8) of the Ontario Arbitration Act allows a party to apply to the Court to “decide” a jurisdictional issue if, as here, an arbitrator decides it as a preliminary question, as opposed to with the merits. Justice McEwen granted the “set aside”. He agreed with the arbitrator that the dispute was of a business nature and not legal and, further, that parties could arbitrate such non-justiciable disputes if they clearly and specifically intended to do so. In this case, although the arbitration clause was described as broad, the dispute was beyond its scope because the dispute was required by the clause to arise “under this Agreement”. That meant the dispute had to be about more than just anything to do with the Project. It had to concern the rights and obligations of the parties under the Agreement. Although a hotel was contemplated as part of the Project, it was not a required component. Further, express authorization to determine a business issue would have been necessary.