Jurisdiction Issues Archives - Page 10 of 11

January 7, 2022May 4, 2022

Myriam’s 2021 Top Pick: B.C. – lululemon athletica inc. v. Industrial Color Productions Inc. – #571

Famed Canadian athletic wear company lululemon athletica generated a noteworthy court decision this year, which has nothing to do with the controversy surrounding the sartorial choices it has made in designing Team Canada’s (very red!) uniform for the Beijing Olympics. Rather, the case adds to the significant number of decisions rendered of late in which the courts have grappled with their role – and the tests they must apply – when an application to set aside an international arbitral award comes before them under the UNCITRAL Model Law on International Commercial Arbitration (for a deep dive on this topic, see Lisa’s top pick, Russian Federation v. Luxtona Limited).

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 4, 2022May 4, 2022

Lisa’s 2021 Top Pick: Ontario – Russian Federation v Luxtona Limited (Part 2) – #568

In Part 1 (case update #564), I reviewed the decision of Russian Federation v Luxtona Limited, 2018 ONSC 2419, 2019 ONSC 7558, and 2021 ONSC 4604 on the standard of review to be applied on an application to the court pursuant to Model Law Article 16(3) “to decide the matter” where the tribunal has decided jurisdiction “as a preliminary question” and what evidence is admissible on such an application. In this, Part 2, I discuss the interplay between Articles 16(3) and Art 34(2)(a)(iii). So far as I have been able to determine, this issue does not seem to have been categorically resolved anywhere under the Model Law.

December 16, 2021May 4, 2022

Lisa’s 2021 Top Pick: Ontario – Russian Federation v Luxtona Limited (Part 1) – #564

A review of the 2021 case law shows that the appropriate standard of review of an arbitral award remains uncertain. Russian Federation v Luxtona Limited is interesting because it did not involve an appeal of an arbitral award or a set-aside application, in respect of which there are many court decisions. It considered the standard of review by a court where a tribunal has ruled “as a preliminary question” that it has jurisdiction pursuant to Article 16(3) of the Model Law. It provides that following such a determination by the tribunal, any party may apply to the court to “decide the matter”, which decision shall not be subject to appeal. Comparable provisions also appear in domestic legislation. The question is the role of the reviewing court asked to “decide the matter”. Confusion exists as to whether such a hearing is a “review” or hearing de novo and whether that determination has any bearing upon the standard of review of the arbitral tribunal’s preliminary jurisdiction determination.

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 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.

November 23, 2021May 4, 2022

BC – correctness standard of review applies on set aside applications on jurisdiction grounds – #555

In lululemon athletica canada inc. v Industrial Color Productions Inc., 2021 BCCA 428, Justice Marchand, for the British Columbia Court of Appeal, dismissed lululemon’s appeal of the chambers judge’s dismissal of its application to set aside the arbitrator’s award made in favour of Industrial Color Productions (“ICP”). The issue was whether the arbitrator had acted outside his jurisdiction in awarding ICP damages that lululemon argued were never claimed in the pleading. Justice Marchand found that the chambers judge had applied the wrong standard of review – the standard of review is correctness and United Mexican States v Cargill, 2011 ONCA 622 remains the leading case on the standard of review for set aside applications on matters of jurisdiction. Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 and Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 were not helpful in this context. However, Justice Marchand found that the chambers judge’s decision to dismiss the set aside application was correct; the arbitrator did not stray outside the scope of the submission to arbitration when the impugned pleading was read generously.

November 12, 2021May 4, 2022

Québec – Stay of arbitrator’s decision to add third parties, force them to meet timetable, and refusal to hear them without payment – #553

In Mullen v Nakisa inc., 2021 QCCS 4388, Justice Granosik granted applications to stay an arbitration as against parties who were added as cross-respondents, even though they were not parties to the arbitration agreement, pending judicial review of the arbitrator’s decision to add them. Justice Granosik was concerned that the applicants could be deprived of their right to have a matter determined by a court, and even risked having the arbitration take place in their absence.

November 9, 2021May 4, 2022

Québec – Arbitration clause interpreted liberally; ambiguity resolved using regular contract interpretation principles – #551

In 9369-1426 Québec Inc. DBA Restaurant Bâton Rouge v. Allianz Global Risks US Insurance Company, 2021 QCCA 1594, the parties disagreed about whether the plaintiff could bring a class action to resolve a coverage dispute or whether the dispute was required to go to arbitration. The policy contained both a stepped arbitration clause and a clause that said that the courts in the Court District in which the insured was located shall have exclusive jurisdiction in case of a coverage dispute. The Québec Court of Appeal confirmed that arbitration clauses should be interpreted in a large and liberal manner. If there is ambiguity, the usual principles of contractual interpretation apply without regard to any presumption that ambiguities are to be resolved to preserve a plaintiff’s right to resort to courts. The court found that the proper interpretation of the policy required coverage disputes to be arbitrated.

October 25, 2021May 4, 2022

Québec – Consideration of scope and applicability of arbitration clause – #545

In Dr. Catherine Morin-Houde Dentist Inc. v. Dr. Marie-Ève Costisella Inc., 2021 QCCS 4109, Justice Faullem of the Québec Superior Court reviewed the applicability of an arbitration clause and in doing so set out a number of principles relevant to an understanding of the scope of arbitration clauses and the assessment of arbitral jurisdiction.