[:en]In Labrador-Island Link Limited Partnership v. General Cable Company, 2019 NLSC 6, Madam Justice Gillian D. Butler examined the sufficiency of steps taken in a dispute resolution process to determine whether steps served as mandatory conditions precedent which a party had to complete prior to commencing litigation. In doing so, Butler J. provides remarkable guidance to arbitration practitioners grappling with identical issues in their arbitration clauses. Her efforts to distinguish between “shall” and “must” were informed by Plaintiff’s good faith in attempting to complete the work contemplated in the contracts and by the severe implication of an expired limitation period. Continue reading “[:en]N.L. – “shall” is not “must” and can be directory rather than mandatory – #165[:]”
[:en]N.L. – court renews ex parte order in service of court’s deference to arbitration – #134[:]
[:en]Mr. Justice Carl R. Thompson in Astaldi Canada Inc. v. Muskrat Falls Corporation, 2018 NLSC 229 demonstrated Newfoundland and Labrador’s Supreme Courts’ support of arbitration by renewing ex parte interim relief so that a Board of Arbitration constituted following a recent court decision could undertake and complete its own determination of its jurisdiction and, if accepted, issue its own interim relief sought in the Notice of Arbitration. Thompson J. subjected the term of his own order to the occurrence of a later procedural step in the arbitration. His decision recognized that the courts can act quickly, repeatedly and in coordination to preserve to arbitral parties the value of the bargain they made to resolve their disputes, including urgent ones, by arbitration. Continue reading “[:en]N.L. – court renews ex parte order in service of court’s deference to arbitration – #134[:]”
[:en]N.L. – court endorses principle of separability of arbitration agreement despite omission in legislation – #131[:]
[:en]In Muskrat Falls Corporation v. Astaldi Canada Inc., 2018 NLSC 210, Mr. Justice James P. Adams reiterated the Newfoundland and Labrador Supreme Court’s endorsement of the principle of separability despite the absence of an express provision in the Arbitration Act, RSNL 1990, c A-14. Adams J. accepted that the parties’ arbitration provisions continued despite claims that their principal contract may be inoperative, unenforceable or terminated. Adams J. held that the party resisting arbitration failed to discharge its onus to satisfy him that he should depart from the general rule that questions of jurisdiction must first be referred to the arbitrator. Continue reading “[:en]N.L. – court endorses principle of separability of arbitration agreement despite omission in legislation – #131[:]”
[:en]N.L – municipality has authority to agree to arbitration but not to impose it as a condition of regulatory approval – #061[:]
[:en]In 10718 Nfld. Inc. v. St. John’s (City), 2018 NLSC 82, Madam Justice Frances J. Knickle of the Newfoundland and Labrador Supreme Court determined that the City of St. John’s (the “City”), as a creature of statute, had no authority under its enabling legislation to require that parties agree to mandatory arbitration as a condition for the City’s regulatory approval of the grant of a contract. Continue reading “[:en]N.L – municipality has authority to agree to arbitration but not to impose it as a condition of regulatory approval – #061[:]”
[:en]N.L. – court stay bifurcates litigation in favour of statute-imposed arbitration of resource – #041[:]
[:en]The Supreme Court of Newfoundland and Labrador, Trial Division in Dewey v. Kruger Inc., 2017 CanLII 85310 agreed to stay part of a proposed class action in favour of mandatory arbitration imposed by legislation dating back to 1927. In doing so, the court acknowledged the while both class actions and arbitrations have advantages, (a) possible bifurcation of proceedings is not a determining factor to deny referring parties to arbitration and (b) if a legislature intends to exclude arbitration of a particular type of dispute, it must do so explicitly. Continue reading “[:en]N.L. – court stay bifurcates litigation in favour of statute-imposed arbitration of resource – #041[:]”
[:en]N.L. – court tests UNCITRAL Model Law as substitute for court review of award – #003[:]
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The Newfoundland and Labrador Supreme Court, Trial Division, provided a precedent-setting analysis of arbitration parties’ ability to contract out of legislated court review of a commercial arbitration award. At the same time, Mr. Justice Robert P. Stack in his August 30, 2017 reasoning in Newfoundland and Labrador v. ExxonMobil Canada Properties, 2017 CanLII 56724, also tested the UNCITRAL Model Law on International Commercial Arbitrations, 1985, U.N. Doc. A/40/17 (1985, Ann. I) (“UNCITRAL Model Law”) as a substitute for that review. Continue reading “[:en]N.L. – court tests UNCITRAL Model Law as substitute for court review of award – #003[:]”