Ontario Archives - Page 13 of 32 - Arbitration Matters

February 15, 2022May 4, 2022

Ontario – Statute gives unintended economic incentives to avoid mandatory arbitration – #585

In Metropolitan Toronto Condominium Corporation No. 1171 v Rebeiro, 2022 ONSC 503, Justice Myers granted a stay of an application brought by a condominium corporation to require the respondent unit holder to comply with the condominium by-laws and rules, and ordered the dispute to go to mediation and arbitration. Justice Myers found that the condominium corporation had deliberately framed its relief to avoid the provisions of the Ontario Condominium Act, 1998, S.O. 1998, c. 19, which require mediation and arbitration pursuant to the Ontario Arbitration Act, 1991, S.O. 1991, c. 17, if certain relief is sought. Significantly, he found that the Act provides economic incentives to the condominium corporation to seek relief from the courts rather than to go mediation and arbitration. First, the Act states that if the condominium corporation wins damages or costs in court, its full legal costs can be added to the owner’s common expenses. Second, it allows the condominium corporation to demand payment of ongoing legal costs, such as for lawyers letters, in the midst of the dispute. If the unit holder refuses to pay, the condominium corporation may file a lien against the unit, which escalates the existing dispute and creates a new one.

February 2, 2022May 4, 2022

Ontario – It’s not cricket: Ontario court emphasizes arbitral awards must include reasons – #580

In Alberta Cricket Association v. Alberta Cricket Council, 2021 ONSC 8451, Justice Perell took the rare step of setting aside an arbitral award for failing to state the reasons on which it was based. Justice Perell found that the arbitrator of a sports-related dispute had failed to deliver adequate reasons and so he set aside the award and directed a new arbitration to be conducted before a different arbitrator.

January 18, 2022May 4, 2022

Ontario – tolling agreement from arbitration overcomes limitation defence at pleadings amendment stage – #574

In Vale Canada Limited v. Solway Investment Group Limited et al, 2021 ONSC 7562, Justice Koehnen considered, in the context of a motion to amend a Statement of Claim, the impact of a tolling agreement made in respect of claims made in arbitrations that had been commenced and concluded five years previous. In a decision that canvasses the law on the interaction of motions to strike and motions to amend, Justice Koehnen ultimately permitted the amendments, without prejudice to the defendants to plead a limitation defence and to bring a motion to strike.

January 12, 2022May 4, 2022

Ontario – Fresh evidence test the same on set aside applications on fairness grounds and judicial review applications – #572

In Vento Motorcycles Inc. v United Mexican States, 2021 ONSC 7913, Justice Vermette set out the test for when fresh evidence may be adduced to support a set aside application on lack of fairness or natural justice grounds. The test is the same as that which applies on a judicial review; the record is restricted to what was before the decision-maker, except where there are natural justice or fairness issues raised that cannot be proven by reference to the existing record and that could not have been raised before the decision-maker.

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 21, 2021May 4, 2022

John’s 2021 Top Pick: Ontario – China Yantai Friction Co. Ltd. v. Novalex Inc., 2021 ONSC 3571 and 7714 – #566

My top pick for 2021 stands for the proposition that a foreign award creditor will not be ordered to post security for costs simply by virtue of being a non-resident seeking to recognize and enforce an arbitral award. In China Yantai Friction Co. Ltd. v. Novalex Inc., 2021 ONSC 3571, a three-person panel of the Divisional Court of the Ontario Superior Court of Justice (the “Divisional Court”) granted leave to appeal two interlocutory orders, including the order requiring the foreign award creditor China Yantai Friction Co. Ltd. (“Friction”) to post security for costs in the amount of $76,376.71. This case is important because it provides support for Ontario as an “arbitration-friendly” jurisdiction, and, as the Divisional Court noted, “[13] … it speaks to the response of Canadian courts to international comity and our relationship to the courts of other countries.”

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 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 26, 2021May 4, 2022

Ontario – Motion to quash appeal dismissed in light of conflicting policy implications – #558

In considering whether to grant a motion to quash an appeal in Leon v. Dealnet, 2021 ONSC 7192, Justice Kristjanson of the Ontario Divisional Court was faced with two conflicting policy concerns: respect for and giving effect to arbitration agreements and protecting vulnerable workers by ensuring that the arbitration agreement did not constitute a contracting out of an employee’s statutory rights