Ontario Archives - Page 10 of 32 - Arbitration Matters

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 15, 2022September 9, 2022

Ontario – Action abuse of process – even against new defendant – where issues already arbitrated – #661

In Doria v Warner Bros. Entertainment Canada Inc. et al., 2022 ONSC 4454, Justice Koehnen granted the Defendants’ motion to strike the Plaintiff’s Statement of Claim pursuant to Rule 21.1(3)(d) of the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194 on the ground that it was an abuse of process because it sought to relitigate issues that were previously decided by an arbitrator. The Plaintiff argued that s. 139 of the Ontario Courts of Justice Act. R.S.O. 1990, c. C.43, allowed him to bring a subsequent proceeding for the same or similar relief against a person who was jointly liable and who was not bound by a previous judgment. Justice Koehnen found that s. 139 did not apply these circumstances, where the Plaintiff had a full opportunity to have his entire claim adjudicated in the arbitration, was awarded judgment, and had fully collected on the judgment. The Plaintiff’s complaint was that the arbitrator did not grant him his full damages. The fact that the Defendants were not parties to the arbitration and therefore not bound by the award was irrelevant.

September 14, 2022September 9, 2022

Ontario – Court of Appeal upholds “single proceeding” insolvency model over recourse to arbitration – #660

In Mundo Media Ltd. (Re), 2022 ONCA 607, Court of Appeal for Ontario Justice Julie Thorburn dismissed a motion for leave to appeal a decision denying a motion to stay a receiver’s court proceeding. The Appellant/Moving Party sought the stay on the basis of an international arbitration agreement. Justice Thorburn found no reversible error in the motion judge’s choice to apply the “single proceeding model”, applicable in insolvency proceedings, with the effect that the Appellant/Moving Party, one of the insolvent company’s debtors, could not require the receiver to arbitrate its claim rather than litigate it. Together with the Superior Court’s decision below, this decision provides important guidance on the interplay between arbitration agreements and claims advanced in the bankruptcy and insolvency context.

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”).

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.

August 26, 2022August 19, 2022

Ontario – Arbitrator resignation did not terminate arbitration – #652

In Kubecka v Novakovic, 2022 ONSC 4503, Justice Pinto determined that, on the wording of the parties’ arbitration agreement, the parties had agreed that the arbitration was not terminated and their dispute returned to the jurisdiction of the courts – even when the arbitrator resigned. He appointed a replacement arbitrator on the application of one of the parties.

August 11, 2022August 11, 2022

Ontario – Stay Granted where Competing Arguable Interpretations of Scope of Arbitration Agreement – #648

In Biancucci v Buttarazzi, 2022 ONSC 4054, Justice Myers followed the analytical framework for a stay application under s. 7 of the Arbitration Act, 1991, S.O. 1991, c. 17 (the “Act”) as set out in Haas v. Gunasekaram, 2016 ONCA 744. The arbitration agreement at issue was contained in a settlement agreement, and interconnected litigation and arbitration taking place over a decade made analysis of the scope of the arbitration agreement complex. Ultimately, Justice Myers confirmed that there were competing arguable interpretations of scope and granted the stay, leaving jurisdiction to be ultimately determined by the arbitral panel.

July 29, 2022August 2, 2022

Ontario: Stay ordered as promissory note captured by separate arbitration agreement – #643

In Pioneer Cannabis Corp. v. 2715615 Ontario Inc., 2022 ONSC 3998, the Plaintiff’s action was stayed pursuant to s. 7(1) of Ontario’s Arbitration Act, 1991 (the “Act “) and the parties’ arbitration agreement found in their “Master Cannabis Agreement” (the “MCA”). The Plaintiff Pioneer Cannabis Corp (“Pioneer”) commenced an action alleging that the Defendants 2715615 Ontario Inc and Mr. Sangha owed money pursuant to a promissory note. The parties had entered into a number of agreements relating to cannabis retail consulting and brand licensing services including the MCA, a Retail Services Authorization Agreement (the “RSAA”), and a promissory note. On its motion to stay, the Defendants argued that the Plaintiff’s claim fell within the arbitration clause in the MCA. The Plaintiff, however, argued since its claim wass based solely on the promissory note, which should be viewed as a standalone instrument, it fell outside the scope of the arbitration clause. Associate Justice Robinson disagreed with Pioneer, found the arbitration agreement covered the promissory note, and granted the stay. As outlined below, in reaching his conclusion, Associate Justice Robinson applied the five-part test established by the Court of Appeal for Ontario in Haas v Gunasekaram, 2016 ONCA 744 (“Haas”)at paragraph 17 to determine whether an action should be stayed in favour of arbitration (the “Haas Test”).

July 21, 2022July 25, 2022

Ontario – Arbitration clause not consideration; provides only detriment to contracting party – #641

In Goberdhan v Knights of Columbus, 2022 ONSC 3788, Justice Harris dismissed the Defendant’s motion to stay the Plaintiff’s wrongful dismissal action in favour of arbitration. The parties signed three employment contracts over a period of 8 years; the last two each contained a mandatory arbitration clause. The Plaintiff argued that there was no consideration for the second and third contracts, so he was entitled to sue. The Defendant argued that the arbitration clause itself was consideration and that a stay should be ordered because it was “arguable” that the dispute fell within the terms of the arbitration agreement. Justice Harris rejected the Defendant’s argument. He found that the last two contracts lacked consideration because there was no benefit flowing to the Plaintiff; essentially, he gave up his right to sue, which was a detriment, and gave him nothing in return. Therefore, because the main contract failed for lack of consideration, so too did the arbitration clause.

July 5, 2022July 5, 2022

Ontario – Motion to “compel” participation in arbitration dismissed, despite arbitration clause – #635

In Black & McDonald v. Eiffage Innovative Canada Inc., 2022 ONSC 1855, Justice Dow was faced with two motions: (1) the defendants’ motion to stay the Ontario action on the basis of forum non conveniens; and (2) the plaintiff’s motion to “compel” the defendants to participate in arbitration as a result of an arbitration clause contained in the relevant contract. Justice Dow granted the stay on the ground that British Columbia was the proper forum, but declined to “compel” the defendants to participate in arbitration. He found that whether the arbitrator had jurisdiction over the dispute was to be determined by the arbitrator at first instance and that any failure on the part of the defendants to participate in an arbitration would have consequences for them in that proceeding.