Jurisdiction Issues Archives - Page 5 of 9

November 18, 2022November 23, 2022

Federal – Amazon purchasers’ class-action competition claims referred to arbitration – #683

In Difederico v. Amazon.com, Inc., 2022 FC 1256, Justice Furlanetto of the Federal Court granted Defendants’ motion to refer to arbitration claims asserted under section 45 of the Competition Act, RSC 1985, c C-34 (the “Competition Act”) by a proposed class representative plaintiff. Of interest to arbitration observers, the judgment considered the circumstances which qualify as “commercial legal relationships” within the meaning of the United Nations Foreign Arbitral Awards Convention Act, RSC 1985, c 16 (2nd sup) (“UNFAACA”), the statute which implements the New York Convention into the federal law of Canada. The New York Convention, Article II(3), requires a court of a contracting State, at the request of a party, to refer claims covered by an arbitration agreement to arbitration, unless the arbitration agreement is null and void, inoperative, or incapable of being performed. This case also features detailed analysis of the access-to-justice exception to the competence-competence principle recognized in Uber Technologies, Inc. v. Heller, 2020 SCC 16 (“Uber”).

November 9, 2022November 4, 2022

Québec – Court dismisses application challenging arbitral tribunal’s joinder of non-signatory – #680

In Newtech Waste Solutions inc. c. Asselin, 2022 QCCS 3537, Justice Bellavance dismissed an application challenging an arbitral tribunal’s jurisdictional decision to join a non-signatory corporation to an arbitration. Justice Bellavance validated the tribunal’s application of jurisprudence on joinder of non-signatories to arbitrations seated in Québec. Although the non-signatory was a stranger to the arbitration agreement, the arbitral tribunal found, and Justice Bellavance agreed, that it was appropriate to join it based on a prima facie showing that the corporation was one of the parties’ alter ego.

November 7, 2022March 8, 2023

Québec – Fragmentation of shareholders dispute stayed pending appeal on jurisdiction – #678

In Istanboulian v Kalajian, 2022 QCCA 1259, Justice Cournoyer granted leave to appeal from a judgment of the Québec Superior Court, which had referred part of a claim to arbitration. He found that the judgment under appeal caused irremediable injury to the Applicants by possibly preventing them from being heard in the appropriate forum and that it was in the interest of justice to immediately get to the bottom of the jurisdictional issue.

October 25, 2022April 5, 2023

Ontario – Domestic arbitration statutes can supplement industry-specific arbitration schemes – #675

In Neuhaus Management Ltd v. Huang, 2022 ONSC 5548, the Ontario Divisional Court (Firestone RSJ, Stewart, and Akhtar JJ.) examined how Ontario’s domestic arbitration statute can be incorporated into and be read together with an industry-specific statutory arbitration scheme, the Ontario New Home Warranties Plan Act, R.S.O.1990, c.O.31 (the “Ontario New Home Warranties Act”).

October 25, 2022October 25, 2022

Ontario – Limitations defence not a matter of arbitral jurisdiction – #674

In Cruickshank Construction Ltd. v The Corporation of the City of Kingston, 2022 ONSC 5704, Justice Myers allowed an application to appoint an arbitrator, providing his views on the method for that appointment. He also dismissed the Respondent’s cross-application for a declaration that the notice of arbitration was limitation-barred and that the Applicant had not complied with preconditions to arbitration in the parties’ agreement. Justice Myers held that there was no basis in the Ontario Arbitration Act, 1991, SO 1991, c 17 (“Arbitration Act”) to permit the court to grant the cross-application and the grounds raised were not matters of arbitral jurisdiction.

October 24, 2022January 10, 2023

Quebec – The broad powers of an arbitrator as “amiable composer” – #673

In Investissements immobiliers MB inc. c. SMP Direct inc., 2022 QCCS 3315, Justice Godbout affirmed the broad jurisdiction that an arbitrator has to grant remedies in oppression claims, especially when empowered as an ‘amiable composer’. An ‘amiable composer’ may make a binding decision based on equity (rather than law) and without procedural formalities. It is a role that has its roots in civil law (“amiable compositeur”).

October 6, 2022October 13, 2022

Ontario – No oral hearing required even if one party requests it – #667

Optiva Inc. v Tbaytel, 2022 ONCA 646, raises two issues of interest to arbitration law. First, the Appellant (Optiva) made a jurisdictional objection to the arbitrator’s ruling allowing the Respondent (Tbaytel) to bring a motion for summary judgment. The arbitrator then issued a procedural order in which he ruled that he had jurisdiction. After hearing the motion, the arbitrator issued a partial award on the merits, which was in favour of Tbaytel. Optiva applied to the Ontario Superior Court of Justice to “decide the matter” of the arbitrator’s jurisdiction and to set aside the partial award, both pursuant to s.17 (rulings and objections re jurisdiction) of the Ontario Arbitration Act, 1991, S.O. 1991, c. 17 (the “Act”). However, the application judge found that Optiva had failed to bring its application on time and dismissed it. Pursuant to s. 17(8), it was required to do so within 30 days of the arbitrator’s jurisdiction ruling, not after the issuance of the partial award on the merits. The Ontario Court of Appeal agreed with the application judge and dismissed Optiva’s appeal, but for different reasons. The application judge erred in finding that Optiva was out of time to ask the Court to “decide the matter” because the preliminary ruling was not jurisdictional. Relying upon Inforica Inc. v. CGI Information Systems and Management Consultants Inc., 2009 ONCA 642, the ruling that the matter could proceed by summary judgment was procedural, not a ruling on the arbitrator’s “own jurisdiction”; therefore, s. 17 was not engaged. However, the appeal was dismissed because the arbitrator was entitled to decide matters of procedure, both under the Act and under the parties’ arbitration agreement, and did so. Second, the Court of Appeal held that s. 26(1) of the Act does not require an oral evidentiary hearing, even if one party requests it.

September 29, 2022September 29, 2022

Ontario – No appeal lies from preliminary jurisdictional decision – #666

In Iris Technologies Inc. v. Rogers Communications Canada Inc., 2022 ONCA 634, the Ontario Court of Appeal quashed a motion for leave to appeal from the lower court’s decision in which it was asked to “decide the matter” of arbitral jurisdiction under the Ontario Arbitration Act, 1991. The Court of Appeal confirmed its earlier decision, United Mexican States v. Burr, 2021 ONCA 64, made under the Ontario International Commercial Arbitration Act, 2017. The Court also made it clear that no appeal lies from lower court decisions which “decide the matter” of arbitral jurisdiction when the question comes before the court as a preliminary issue before the final award is rendered.

September 26, 2022September 26, 2022

Alberta – Court reviews preliminary jurisdictional award for correctness de novo – #663

In Ong v Fedoruk, 2022 ABQB 557, Justice Bourque confirmed that under subsection 17(9) of the Alberta Arbitration Act(“the Act“), the court reviews preliminary jurisdictional awards in domestic arbitrations for correctness on a de novo basis. In doing so, Ong aligned the standard of review and procedure in Alberta with the decision of the Ontario Divisional Court in The Russian Federation v. Luxtona Limited, 2021 ONSC 4604 (“Luxtona”), a case decided under the comparable provision of Ontario’s International Commercial Arbitration Act, 2017, SO 2017, c 2, Sch 5 (“ICAA”), which implements the UNCITRAL Model Law on International Commercial Arbitration (“Model Law”). However, it diverged from Ace Bermuda Insurance Ltd. v Allianz Insurance Company of Canada, 2005 ABQB 975 (“Ace Bermuda”), an international case which applied a review standard of “reasonableness, deference & respect” under Alberta’s International Commercial Arbitration Act, RSA 2000, c I-5, which also implements the Model Law. That case as a precedent may now be in doubt, considering the trend in Canadian and other Model Law jurisdictions in favor of non-deferential review of preliminary jurisdictional decisions of arbitral tribunals.

August 29, 2022August 29, 2022

Ontario – Arbitrator to determine jurisdiction/validity of arbitration clause in employment dispute – #654

In Irwin v. Protiviti, 2022 ONCA 533, the Ontario Court of Appeal confirmed that, unless the question is one of pure law or is a question of mixed fact and law requiring only a superficial review of the evidence, questions about the jurisdiction of an arbitrator are to be arbitrated. This includes whether an arbitration clause in an arbitration contract is void for unconscionability, or for inconsistency with the Employment Standards Act, 2000, S. O. 2000, c. 41 (“ESA”) or the Human Rights Code, R.S.O. 1990, c. H. 19 (“the Code”).