Nova Scotia – Self-inflicted compliance issues no basis to object to arbitration – #604

In Install-A-Floor Limited v. The Roy Building Limited, 2022 NSSC 67, the applicant, Floors Plus, sought an order appointing an arbitrator pursuant to the dispute resolution provision of its contract with the respondent, the Roy. The respondent opposed the application on two grounds: (1) the applicant lost its right to pursue arbitration as the limitation period had expired; and (2) the applicant did not adhere to certain contractual requirements and as such was disentitled to apply for the appointment of an arbitrator. Justice Norton granted the relief sought and ordered the arbitrator be appointed pursuant to the parties’ contract. On the evidence before him, Justice Norton found that the arbitration was commenced in compliance with the applicable limitation period. He also found that there was nothing in the parties’ contract to indicate that the respondent was relieved of its contractual obligations to participate in the dispute resolution process, and further, that the respondent could not rely on compliance issues created by its own conduct to object to arbitration. 

Continue reading “Nova Scotia – Self-inflicted compliance issues no basis to object to arbitration – #604”

Nova Scotia – absent summary judgment motion, stay declined if there is arguable case for summary judgment – #480

Despite the absence of a motion for summary judgment, in VistaCare Communications Services of Canada Inc. v. Verge Technologies Inc., 2021 NSSC 161, Madam Justice Mona Lynch declined a stay under section 9(2)(e) of the Commercial Arbitration Act, SNS 1999, c 5 because the party resisting the stay “has satisfied me that there is an arguable case for summary judgment”. Lynch J. determined that whether a matter is a proper one for summary judgment (i) “does not mean deciding whether summary judgment would be granted as doing so would be too high a bar to meet” or (ii) “cannot be only whether summary judgment will be sought as that bar is too lowLynch J. held that “[w]here there is no summary judgment motion with the stay motion, the proper test should be whether there is an arguable case for summary judgment”.

Continue reading “Nova Scotia – absent summary judgment motion, stay declined if there is arguable case for summary judgment – #480”

Nova Scotia – court refuses to appoint arbitrator because notice to arbitrate not acted upon had expired – #386

In Site 2020 Incorporated v. Campbell, 2020 NSSC 305, Mr. Justice Jamie S. Campbell declared invalid a notice of arbitration subject to strict time limits set by the parties’ own agreement to arbitrate. Because the parties had not acted upon the notice to arbitrate in the time agreed upon, he dismissed claimant’s request to appoint an arbitrator for the otherwise ongoing dispute.  Campbell J. also dismissed respondent’s request to have the court resolve the parties’ dispute, determining that the dispute was subject to the agreement to arbitrate.  The facts did not mention that any limitation period applied yet and Campbell J. urged the parties to either arbitrate or negotiate.

Continue reading “Nova Scotia – court refuses to appoint arbitrator because notice to arbitrate not acted upon had expired – #386”

Nova Scotia – umpire owes duty of procedural fairness, breaches it when deviating from own procedure – #321

In New Dawn Enterprises Limited v. Northbridge General Insurance Corporation, 2020 NSSC 150, Mr. Justice Joshua M. Arnold agreed that an umpire’s failure (i) to share information obtained and relied on or (ii) to give a party the opportunity to respond breached the principle of audi alteram partem. Acknowledging that an umpire does not conduct an arbitration or provide an adjudicative process, Arnold J. determined that the umpire’s exercise of discretion in choosing his own procedure had created legitimate expectations and that, by deviating from that procedure, breached the duty of fairness.

Continue reading “Nova Scotia – umpire owes duty of procedural fairness, breaches it when deviating from own procedure – #321”

Nova Scotia – “battle of the forms” doctrine fails to resolve whose agreement binds parties to arbitrate – #166

Faced with competing claims regarding whose documents constituted the parties’ agreement, Madam Justice M. Heather Robertson in LED Roadway Lighting Ltd. v. Alltrade Industrial Contractors Inc., 2019 NSSC 62 found no clear intention to incorporate either party’s arbitration clause. Instead, Robertson J. decided to favour Defendant’s suggestion and stayed the litigation pending the outcome of arbitration between the parties. Though she found no agreement to arbitrate, she also determined that there was no objection to arbitration either. Continue reading “Nova Scotia – “battle of the forms” doctrine fails to resolve whose agreement binds parties to arbitrate – #166”

Nova Scotia – Court of Appeal sceptical that litigants suffer irreparable harm if obliged to litigate instead of arbitrate – #089

Nova Scotia’s Court of Appeal in Clyde Bergemann Canada Ltd. v. Lorneville Mechanical Contractors Ltd., 2018 NSCA 14 upheld a chambers judge’s decision granting a plaintiff a stay of its own litigation.  The Court held that a stay and an interlocutory injunction are remedies of the same nature and, absent different rules set out in particular legislation, are governed by the same rules.  Though section 9(1) Nova Scotia’s Commercial Arbitration Act, SNS 1999, c 5 did not authorize a stay in the circumstances, the Court accepted the chambers judges’ use of section 9(2) as a guideline in determining whether to exercise her discretion under section 41(e) the Judicature Act, RSNS 1989, c 240.  In its review of the chambers judge’s reasoning on irreparable damage, the Court also observed that claims of  litigation’s alleged disadvantages should be supported by evidence. Continue reading “Nova Scotia – Court of Appeal sceptical that litigants suffer irreparable harm if obliged to litigate instead of arbitrate – #089”