Domestic Archives - Page 17 of 21

January 6, 2022May 4, 2022

Liz’s 2021 Top Pick: Ontario – CUSO International v. Pan American Development Foundation 2021 ONSC 3101 – #570

This case is my top pick as the facts and issues between the parties serve to highlight the value of the arbitration process, including characteristics related to enforceability, neutral forum, party autonomy, confidentiality and arbitrator selection. It also shows how these matters can deliver tangible benefits to parties.

January 5, 2022May 4, 2022

Laura’s 2021 Top Pick: B.C. – Spirit Bay Developments Limited Partnership v. Scala Developments Consultants Ltd. – #569

Spirit Bay Developments Limited Partnership v Scala Developments Consultants Ltd., 2021 BCSC 1415, is part of a series of cases that leave an important question undetermined at the end of 2021: what is Vavilov’s impact on commercial arbitration appeals? Although on its own Spirit Bay is not the most significant case of the year, the impact of the Vavilov on commercial arbitration appeals will be studied with interest by arbitration practitioners in 2022 and is an important aspect of arbitration jurisprudence in 2021.

December 22, 2021May 4, 2022

Julie’s 2021 Top Pick: B.C. – Allard v The University of British Columbia – #567

Costs results in domestic commercial arbitrations are often based on, or consistent with, the norms of international commercial arbitration and can differ greatly from what is expected based on standard litigation practice. This can be an unpleasant surprise for counsel and their clients who are unfamiliar with this. In Allard v The University of British Columbia Justice Douglas confirmed that the “starting point” for an award of costs in domestic commercial arbitration is that the winner is entitled to its reasonable legal fees and disbursements, or what is referred to in litigation practice as “solicitor client costs” or “indemnity costs” and not “party party” costs, which many litigators would expect. There are, of course, exceptions to this “normal rule” for assessing costs. Alberta’s Arbitration Act, RSA 2000, c A-43 perhaps provides one, as is discussed below.

December 20, 2021May 4, 2022

James’s 2021 Top Pick: B.C. – Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District – #565

My top pick for 2021 is Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District, 2021 SCC 7 [Wastech]. For most, Wastech’s primary importance relates to the common law duty of good faith in the exercise of contractual discretion. But for arbitration aficionados, another key aspect is what the Supreme Court of Canada’s concurring Justices said, and what the majority Justices declined to say, about the standard of review applicable to appeals from arbitral awards.

December 9, 2021May 4, 2022

Québec – partial award may determine scope of arbitration agreement for final award – #563

In Maïo v Lambert, 2021 QCCS 3884, Justice Castonguay denied an application to annul in part and modify a final award. He found that the arbitrator did not exceed the scope of his mandate, including in how he ruled on matters that had been circumscribed in a prior partial award, and that the applicant was essentially seeking an improper review of the merits of the dispute.

December 8, 2021May 4, 2022

BC – Stay granted where two relevant agreements, only one having arbitration clause – #562

In Canadian Pacific Railway Company v Canadian National Railway Company, 2021 BCSC, Justice Iyer ordered a stay of an action in favour of arbitration in circumstances in which she found that it was arguable that the parties’ dispute fell within two contracts between the parties – one that contained a mandatory arbitration clause and one that did not. Which agreement governed the dispute was an issue for the arbitrator to decide.

December 7, 2021May 4, 2022

Ontario – A reminder of the “hands off” approach of courts in arbitration even with oppression claims and injunctions – #561

In TSCC No. 2364 v. TSCC No. 2442, 2021 ONSC 7689, Justice Myers affirmed the “hands off” approach courts take regarding disputes that are properly the subject of an arbitration clause. The applicant condominium corporation sought an order by way of an oppression remedy or an injunction precluding the respondent condominium corporation from drawing amounts from a bank account for shared management services. The parties had already been through a lengthy arbitration regarding various disputes between them pursuant to a shared facilities agreement. Justice Myers held that the proper forum for the new disputes was arbitration.

December 3, 2021May 4, 2022

Newfoundland and Labrador – Labour Arbitrator’s Collective Agreement Interpretation Passes Vavilov Reasonableness Muster – #559

In Pennecon Maintenance Services Limited v. Fish, Food & Allied Workers, 2021 NLSC 141, Justice Knickle ruled that a labour arbitrator reasonably interpreted a collective agreement in light of the precepts laid down in both Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 [Vavilov] and Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 [Sattva]. Although arising from an application for judicial review, Justice Knickle’s analysis provides relevant insights applicable to private arbitration disputes as they relate to contract interpretation.

November 26, 2021May 4, 2022

Ontario – Motion to quash appeal dismissed in light of conflicting policy implications – #558

In considering whether to grant a motion to quash an appeal in Leon v. Dealnet, 2021 ONSC 7192, Justice Kristjanson of the Ontario Divisional Court was faced with two conflicting policy concerns: respect for and giving effect to arbitration agreements and protecting vulnerable workers by ensuring that the arbitration agreement did not constitute a contracting out of an employee’s statutory rights

November 25, 2021May 4, 2022

Ontario – Appeal of award dismissed after party refused to participate – #557

In Vanhof & Blokker Ltd. v Vanhoff & Blokker Acquisition Corp., 2021 ONSC 7211, the Respondents/Appellants on Appeal (“the Sellers”) sold the assets of their horticultural and garden supply business to the Applicants/Respondents on Appeal (“the Purchasers”) pursuant to an Asset Purchase Agreement dated December 29, 2014. The Sellers alleged that the Purchasers breached the terms of the Asset Purchase Agreement and they therefore refused to make payments under the Agreement, claiming that they were induced to enter into the Agreement by fraudulent and negligent misrepresentations made by the Purchasers. The Sellers refused to participate in an arbitration of the dispute and then appealed the final award. Justice Pollack dismissed the appeal, relying upon s. 27(3) of the Arbitration Act, 1991, S.O. 1991, c. 17, on the basis that the Sellers had been advised of the date for the arbitration and had filed material, but had failed to participate. They were obliged to raise their objections about the arbitrator’s jurisdiction before the arbitrator at the hearing, rather than by letter.