Interim Measures Archives - Arbitration Matters

February 16, 2023February 10, 2023

B.C. – Court upholds pre-judgment garnishing order despite arbitration clause – #712

In Care Tops International Limited v. PPN Limited Partnership, 2022 BCSC 2252, Master Robertson of the BC Supreme Court refused to set aside a pre-judgment garnishing order because the Plaintiff failed to draw the Court’s attention to a mandatory arbitration clause during the ex parte application granting that order. Master Robertson found that this omission was not material because it would have had no impact on the outcome; the arbitral proceedings had not yet commenced. As such, she did not have to determine if the Court, or an arbitral tribunal, was better placed to determine the interim relief.

November 10, 2022November 3, 2022

Québec – No enforcement of award against alter egos – #681

In a much-anticipated decision, the Québec Court of Appeal overturned Justice Pinsonneault’s first instance decision and quashed the seizure before judgment by garnishment taken against a subsidiary and non-party to an arbitration to answer for the debt of the parent pursuant to an arbitral award. Justice Pinsonneault’s decision was discussed in a previous case note concerning CC/Devas (Mauritius) Ltd. v. Republic of India, 2022 QCCS 7. In Air India, Ltd. v. CC/Devas (Mauritius) Ltd., 2022 QCCA 1264, the Court of Appeal unanimously granted the appeal of the parent, ruling that a foreign award cannot be enforced against a third party’s assets unless it is proven: (1) that the third party is the debtor’s alter ego; and (2) that the third party was used in order to conceal fraud, abuse of right or a violation of a public order rule by the debtor. The Court of Appeal ruled that the applicable criteria for the enforcement of a foreign award against the shareholder of a condemned party were the same as the applicable criteria to lift the corporate veil, as codified at section 317 CCQ. Here, those criteria were not met, and the court did not lift the corporate veil.

August 29, 2022August 29, 2022

Ontario – Failure to pay award does not justify security for costs – #653

In Amelin Resources, Inc. v. Victory Energy Operations LLC, 2022 ONSC 4514, Associate Justice C. Wiebe dismissed a motion for security for costs under Rule 56.01(1)(d) of the Ontario Rules of Civil Procedure, finding that Victory, the Defendant/Moving Party, did not meet its onus of showing that there was “good reason to believe” that Amelin, the Plaintiff/Responding Party, had insufficient assets to pay the Victory’s costs in Ontario. Amelin’s failure to pay amounts granted to Victory under an arbitration award and U.S. Court order did not suffice.

July 5, 2022July 5, 2022

Québec – Court prevents “improper attempt to circumvent” final ICC award – #634

In Eurobank Ergasias v. Bombardier inc., 2022 QCCA 802, a majority of the Québec Court of Appeal (Mainville and Baudouin, JJ.A.): (1) confirmed the homologation of an ICC Arbitral Tribunal Final Award (“Final Award”); (2) confirmed the trial judge’s decision that a Québec bank did not have to pay under a Letter of Counter-Guarantee that was called upon, the purpose of which was the evasion of the binding ICC arbitration process; and (3) overturned the trial judge’s decision to direct the Hellenic Ministry of National Defence (“HMOD”), a branch of the Greek government, to comply with the Final Award because HMOD was not an entity domiciled in Québec and homologation is for the purpose of rendering the Final Award legally binding in Québec, not in Greece.

March 30, 2022March 28, 2022

Ontario – Opportunity to clarify how arbitration interfaces with registering land interests – #599

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.

January 31, 2022May 4, 2022

Québec – Enforcement of foreign award against alter egos – #578

In CC/Devas (Mauritius) Ltd. v. Republic of India, 2022 QCCS 7, Justice Pinsonnault was seized with several questions with respect to two seizures before judgment by garnishment, which were authorized within the context of an application for recognition and enforcement of arbitral awards rendered outside of Québec. What makes this situation of interest is the fact that the seizures before judgment involved assets (money) owned by third parties who were not defendants to the arbitration or named in the awards for which recognition is sought (still pending). They are not implicated at all in the facts alleged in the dispute leading to these awards and they are not targeted in the awards either. Nonetheless, Justice Pinsonnault concluded that the allegations against these third-party corporations (fully owned by the respondent, Republic of India) were sufficient to cause him to confirm the seizure against one of them, although with a revised scope. The seizure against the other corporation was dismissed for other reasons related to the State Immunity Act. The application for recognition and enforcement of the awards remains pending.

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.

October 14, 2021May 4, 2022

Ontario – Court denies stay of order authorizing CCAA sale process despite ongoing arbitration – #542

In Urbancorp Toronto Management Inc. (Re) 2021 ONCA 613, Justice Miller refused to grant a stay pending appeal of an order in a CCAA proceeding authorizing the sale of an interest in a property development. The moving party unsuccessfully argued that the sale should be postponed until the conclusion of an ongoing parallel arbitration, the outcome of which would materially impact the value of the interest. If the sale process was not postponed, the moving party argued, the ongoing arbitration would chill the sale process and it would be impossible to know if a higher sale price could be achieved. Justice Miller held that he could not substitute his own evaluation of the efficacy of the sale process over that of the lower court judge, who had dismissed as speculative the argument that the sale process would suffer a chilling effect.