notes on new arbitration cases in Canada
In Green Urban People Ltd. v. Berthault, 2022 ONSC 737, the Divisional Court (Justices Sachs, Morgan and D.L. Edwards) granted leave to appeal on the issue of whether a certificate of pending litigation (“CPL”) can be issued by the court in face of an arbitration agreement.
Continue reading “Ontario – Opportunity to clarify how arbitration interfaces with registering land interests – #599”
In Sheridan v Sheridan, 2022 ABQB 180, Justice Jerke dismissed the appeal of an arbitral award for which leave had not been sought. The appellant Husband argued that by providing in the parties’ arbitration clause that any award was “subject to the rights of appeal under s. 44” of the Alberta Arbitration Act, RSO 2000, c. A-43, he was entitled to appeal on all of the grounds set out in s. 44(1) – on a question of law, on a question of fact or on a question of mixed law and fact. However, Justice Jerke found that this language meant that the award was also subject to s. 44(2) of the Act, which provides that where the arbitration agreement does not provide that the parties may appeal an award on a question of law, leave is required. This means that the arbitration agreement must explicitly allow an appeal on the s. 44(1) specified grounds, or the parties may appeal only a question of law, with leave of the court. Because the parties’ arbitration agreement did not explicitly do so, the appeal was dismissed because the Husband had not sought leave.
Continue reading “Alberta – Rights of appeal must be explicit in arbitration agreement – # 598”
In 9238-0831 Québec inc. v Télébec and Vidéotron senc, 2022 QCCS 183 Justice Lussier dismissed defendant Vidéotron’s request to modify the definition of the plaintiff group in a class action to exclude customers who had signed a contract containing an arbitration clause. Vidéotron changed the relevant contracts to add the arbitration clause after the plaintiff’s application to authorize institution of the class action but before that application was decided. However, its application to modify the plaintiff group was brought outside of 45 days from the originating application in the litigation, as required by article 622 of the Code of Civil Procedure, CQLR c C-25.01. Vidéotron had participated in the judicial process for years before bringing its application and offered no explanation for its delay.
Continue reading “Québec – Delay in raising arbitration provision fatal to application to amend class – #595”
In Maisonneuve v Clark, 2022 ONCA 113, the Ontario Court of Appeal interpreted the language of an arbitration agreement to determine the applicable limitation period. It found that the application judge’s interpretation of that language was entitled to deference and that the palpable and overriding error standard of review applied. The application judge found that the following language in the arbitration clause made an attempt at informal resolution a pre-requisite to arbitration: “[i]f the parties are unable to resolve the Excluded Issue as between them, then the Excluded Issue shall be fully and finally referred to the Arbitrator for resolution”. The application judge found that the word “then” made the clause “both temporal and conditional”, after considering the wording of the arbitration clause and the factual matrix. The Court of Appeal found no palpable and overriding error and dismissed the appeal. Maisonneuve’s application to appoint an arbitrator was not time-barred; he had brought his application within two years of the date when he knew that a negotiated resolution was not possible.
Continue reading “Ontario – Start of limitation period determined by interpretation of stepped arbitration clause – #592”
In The 6th Line Mofos Limited v Stewart, 2022 ONSC 520, Justice Healey dismissed a summary judgment motion brought by parties to court proceedings, who argued that issue estoppel applied to prevent the court from making findings that were inconsistent with those made in a previous arbitration. The plaintiffs, who were adverse in interest in the arbitration, sued a land appraiser whose report was central to their dispute and which the arbitrator found did not meet the requisite professional standards. The plaintiffs argued that this finding was sufficient to establish the negligence of the defendant appraiser and they sought in damages recovery of the costs they had incurred in relation to the arbitration. Justice Healey disagreed and found that two elements of issue estoppel could not be met: (1) the same question was not before both the court and the arbitrator; and (2) the defendant appraiser was a witness in the arbitration and was not a party or its privy.
Continue reading “Ontario – No issue estoppel regarding arbitrator’s findings in later litigation – #591”
In Grewal v. Mann, 2022 BCCA 30, the British Columbia Court of Appeal dismissed an appeal of an order granting leave to appeal an arbitral award. In doing so, the Court of Appeal confirmed the bounds of contractual interpretation, including the principle that the analysis must remain grounded in the text of the contract.
Continue reading “B.C. – Arbitrator’s Analysis Must not let Factual Matrix Overwhelm Text of Contract – #588”
In Terrace Community Forest LLP v Skeena Sawmills Ltd., 2022 BCCA 37, the Court of Appeal for British Columbia started its reasons with, “this appeal is about the meaning of the word or. It is also about the goals of legislated regimes and the role of courts in protecting the interests of non-parties to arbitration proceedings”. Section. 29(4) of the B.C. Arbitration Act, S.B.C. 2020, c. 2 provides that a subpoena issued by an arbitrator to a non-party can be set aside on an application “to the arbitral tribunal or the Supreme Court”. The parties to this court application disputed whether the word “or” was inclusive (A or B or both) or exclusive (A or B, but not both). The Court of Appeal agreed with the judge below, Justice Milman, that “or” is to be given an exclusive meaning. Because the non-party asked the arbitrator to set aside the subpoena first, the court had no jurisdiction under s. 29(4). Therefore, Justice Milman declined to apply s. 29, and an appeal of his decision was not prohibited under s. 29(10). The appeal was dismissed.
Continue reading “BC- Decision not to make a decision on jurisdiction grounds, not a “decision” barred by “no appeal” provision – #587”
In Electek Power Services Inc. v. Greenfield Energy Centre Limited Partnership, 2022 ONSC 894, Justice Perell set aside a preliminary jurisdiction decision rendered by a three-person arbitral tribunal. The tribunal found that the parties had agreed to arbitrate their dispute. The matter came before the court as an application under section 17(8) of the Arbitration Act, 1991, S.O. 1991, c. 17, which provides that the court may “decide the matter” of a jurisdictional objection where the arbitral tribunal rules on the objection as a preliminary question. Following the approach set out by the Divisional Court in The Russian Federation v. Luxtona Limited, 2021 ONSC 4604 (Lisa’s 2021 Top Pick: Ontario – Russian Federation v. Luxtona Limited (Part 1) – #564), Justice Perell held that he was required to “decide the matter” of whether the parties agreed to arbitrate on a de novo basis. He explicitly rejected the submission that administrative law or appellate standards of review have any relevance in an application to the court to “decide the matter” of whether parties agreed to arbitrate their dispute.
Continue reading “Ontario – Court overturns decision, “deciding the matter” of jurisdiction de novo – #586”
In Metropolitan Toronto Condominium Corporation No. 1171 v Rebeiro, 2022 ONSC 503, Justice Myers granted a stay of an application brought by a condominium corporation to require the respondent unit holder to comply with the condominium by-laws and rules, and ordered the dispute to go to mediation and arbitration. Justice Myers found that the condominium corporation had deliberately framed its relief to avoid the provisions of the Ontario Condominium Act, 1998, S.O. 1998, c. 19, which require mediation and arbitration pursuant to the Ontario Arbitration Act, 1991, S.O. 1991, c. 17, if certain relief is sought. Significantly, he found that the Act provides economic incentives to the condominium corporation to seek relief from the courts rather than to go mediation and arbitration. First, the Act states that if the condominium corporation wins damages or costs in court, its full legal costs can be added to the owner’s common expenses. Second, it allows the condominium corporation to demand payment of ongoing legal costs, such as for lawyers letters, in the midst of the dispute. If the unit holder refuses to pay, the condominium corporation may file a lien against the unit, which escalates the existing dispute and creates a new one.
Continue reading “Ontario – Statute gives unintended economic incentives to avoid mandatory arbitration – #585”
In JM Bay Properties Inc. v Tung Cheng Yuen Buddhist Association, 2022 BCSC 81, Justice Walker found that a contract’s dispute resolution clause which provided that “parties shall make all reasonable efforts to resolve their dispute by amicable negotiations and agree to provide, without prejudice, frank, candid and timely disclosure of relevant facts, information and documents to facilitate these negotiations” was not breached in circumstances where a party decided not to engage in any further communication with the other party to resolve a dispute between them. Justice Walker noted that the party alleging breach did not raise its complaint about the dispute resolution clause at the time of the contract’s termination. Finally, he held that even if the party were in breach, the party alleging the breach failed to establish that it had suffered any damages.
Continue reading “B.C. – No breach of dispute resolution clause, no damages where party refused communication to resolve dispute – #584”