Enforcement/Homologation Archives

September 11, 2023September 8, 2023

Québec – Arbitration counsel not disqualified, despite opposing party paying underlying transaction fees – #771

In Glen Eagle Resources Inc. c. GEM Global Yield, 2023 QCCS 3144, the Court determined that a law firm was not disqualified from acting as counsel in annulment and enforcement proceedings when it acted for one party, but a portion of the legal fees were paid by the opposing party in the transaction giving rise to arbitration. But it raises a potential red flag for counsel.

August 28, 2023August 28, 2023

Ontario –Arbitration Costs Payable Despite Application to Set Aside the Award – #767

In The Canada Soccer Association Incorporated v. Association de Soccer de Brossard, 2023 ONSC 4317, the Court held that the arbitrator’s cost decision was part of the arbitral final award, that a judgment enforcing the award extends to the decision on costs and that the winning party is entitled to the payment of its costs despite the losing party’s pending application to set aside the award, unless it obtains an interim order to the contrary. Rule 63.01 of the Ontario Rules of Civil Procedure, RRO 1990, Reg 194, which applies to appeals, does not apply – by analogy – to stay the costs order made as part of an award.

August 17, 2023August 11, 2023

Québec – No evidence permitted in support of annulment application – #765

In Glen Eagle Resources Inc. v. Gem Yield Bahamas Ltd, 2023 QCCA 686, the Court of Appeal dismissed Appellant’s application for leave to appeal the Superior Court’s decision dismissing Appellant’s request to adduce evidence in support of its application for annulment of an arbitral award. The lower court dismissed Appellant’s request to have a witness testify in support of its argument that the contract containing the arbitration clause was void. Appellant argued that the nullity of the contract would lead to the conclusion that the arbitrator had no jurisdiction. Respondent, which applied for homologation of the award, argued that the lower court had no jurisdiction to hear evidence on the merits of the arbitration on an application to annul the award and that, in any event, the arbitration clause was a separate contract, not affected by the nullity of the contract in which it was included. Following the Superior Court’s decision, the hearing before it was suspended until the Court of Appeal’s decision on the matter.

July 19, 2023July 17, 2023

Québec – Arbitrator’s past professional relationship not a cause of partiality – #756

In Tourigny v Chabot, 2023 QCCS 1976 (“Tourigny”), the Court homologated an arbitral award for costs, thereby dismissing the Defendants’ challenge based on an application to recuse the arbitrator on grounds of partiality.

May 23, 2023May 26, 2023

Ontario – International award not enforced because of improper notice – #738

In Tianjin Dinghui Hongjun Equity Investment Partnership v. Du, 2023 ONSC 1808, Justice Kimmel refused to recognize and enforce a $120 million arbitral award in a Shenzhen Court of International Arbitration (“SCIA”) arbitration seated in Shenzhen, China against two individual respondents, Mr. and Mrs. Du, who were resident in both Canada and China. She found that the Dus had not been given proper notice of the arbitration within the meaning of Article 36(1)(a)(ii) of the UNCITRAL Model Law on International Commercial Arbitration (the “Model Law”), being Schedule 2 to the International Commercial Arbitration Act, 2017, c. 2, Sched. 5. By extension, the Dus were also unable to present their case.

March 29, 2023March 24, 2023

B.C. – Non-participation in arbitration leads to procedural complexity – #724

In UMS Solutions, Inc. v Cornell, 2023 BCSC 214, Justice Morellato refused to dismiss a B.C. action seeking to enforce a New York judgment, which confirmed an arbitration award, on the basis of delay. This procedurally tangled, still unfolding dispute, first saw UMS Solutions, Inc. (“UMS”) succeed in arbitration claims in New York against a B.C. resident, Brad Cornell (“Cornell”), for purported breaches of a representation agreement (“Agreement”). Cornell elected not to participate in the New York arbitration. UMS next converted the arbitral award into a New York court judgment. Cornell failed in his attempt to have the judgment set aside in New York. UMS then commenced a B.C. action on the New York judgment. Justice Morellato denied there was inordinate delay in the B.C. action and permitted UMS’s claim to continue.

March 28, 2023March 31, 2023

Ontario – Deferential approach on set-aside application for want of procedural fairness – #723

In Aquanta Group Inc. v. Lightbox Enterprises Ltd., 2023 ONSC 971, Justice Akbarali dismissed an application to set aside an arbitral award on procedural fairness grounds under paragraph 46(1) 6 of the Ontario Arbitration Act, 1991 [the “Act”]. This decision showcases the margin of manoeuver arbitrators enjoy on discretionary procedural decisions.

March 16, 2023March 10, 2023

Ontario – What does “unable to present his case” mean? – #721

In Costco Wholesale Corporation v. TicketOps Corporation, 2023 ONSC 573, Justice Vermette enforced international arbitral awards rendered in an arbitration seated in Washington State. In doing so, she decided not to enforce a US judgment that enforced the arbitral awards. She rejected the respondent’s arguments that (a) the awards were not for a definite and discernable amount, (b) it had been unable to present its case, and (c) recognising and enforcing the awards would be contrary to Ontario public policy. (And by the way: being Facebook “friends” does not give rise to a reasonable apprehension of bias.)

February 14, 2023March 17, 2023

Québec – Court rejects foreign state immunity to award enforcement – #710

In CC/Devas (Mauritius) Ltd v. Republic of India, 2022 QCCS 4785, Justice Pinsonnault rejected the Republic of India’s effort to invoke state immunity in response to an application seeking the recognition and enforcement of two investment treaty awards. He found that the Plaintiffs had met their burden to prove that (1) the commercial activities exception applied, and (2) India had waived state immunity to enforcement proceedings.

November 22, 2022November 18, 2022

Alberta – Arbitral award enforced despite Russian sanctions – #685

In Angophora Holdings Limited v. Ovsyankin, 2022 ABKB 711, Justice Romaine dismissed an application by an arbitral award debtor to stay enforcement of the award issued in favour of a party indirectly owned and controlled by Russian bank Gazprombank JSC, which is an entity subject to Russian sanctions.