Tag: Ontario

In Crosslinx v. Ontario Infrastructure, 2021 ONSC 4364, Mr. Justice Markus Koehnen limited costs awarded to successful Applicants due to their failure to accept Respondents’ offer to discontinue Applicants’ court application and return to the parties’ dispute resolution process, thereby skipping certain steps.  While he acknowledged the potential difficulty in comparing non-pecuniary elements in offers to settle against eventual court orders, Koehnen J. limited cost recovery to $92,119.92 rather than the $430,000.00 sought because Respondents’ offer, if accepted, “would have led to both a negotiation and a final determination of the issues in a much faster timeframe than is possible under my order”. 

On an appeal of an arbitration award, Mr. Justice Frederick L. Myers in Her Majesty the Queen in Right of Ontario (Minister of Government and Consumer Services) v. Royal & Sun Alliance Insurance Company of Canada, 2021 ONSC 3922 raised the application of the Legislation Act, 2006, SO 2006, c 21, Sch F which neither party had argued in the arbitration and, having invited and heard argument, held that it governed and served to reverse the interpretation of a key term in the arbitration. Myers J. also noted that he followed Ontario precedent that Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 applied to appeals in statutory arbitrations but he limited the scope of that precedent, adding that it “cannot to be taken as standing for a broader proposition that Vavilov applies generally to all appeals from commercial arbitrations in Ontario”.

In Ghods Builders Inc. et al. v. Sedona Place Co-Ownership Inc. et al., 2021 ONSC 1938, Madam Justice Jasmine T. Akbarali demonstrated the Ontario court’s assistance to parties disputing land subject to an option agreement by (i) granting Defendants’ application to stay the action, (ii) referring the parties to arbitration to resolve the option agreement dispute, (iii) issuing a certificate of pending litigation against the land disputed in the arbitration and (iv) enjoining any interference with a public hearing involving Plaintiffs’ development plans regarding the disputed land. Akbarali J. preserved the opportunity for the arbitrator to resolve the merits of the parties’ dispute involving their option agreement and the local planning tribunal process which would consider Plaintiffs’ development plan regarding the land subject to arbitration.

In Carleton Condominium v. Poirier, 2021 ONSC 3778, Mr. Justice Paul B. Kane refused to convert Applicant’s application into an action despite Respondents’ submissions that Applicant had not engaged in mediation and arbitration before commencing the application.  An application would proceed on a record comprised of affidavit and cross-examination evidence whereas an action would lead to a hearing with viva voce witnesses and more extensive pre-trial procedural steps. Even though some of Applicant’s relief appeared to qualify as a disagreement for which the Condominium Act, 1998, SO 1998, c 19 imposed mediation and arbitration, Kane J. determined that (i) the “substance” of the application involved breaches of the legislation for which mediation and arbitration were not imposed and (ii) Applicant’s reliance on those breaches was not “to avoid mediation and arbitration”. 

In Bogue v. Miracle, 2021 ONCA 278, Ontario’s Court of Appeal remitted back to the applications judge an order appointing a receiver because the record did not provide the Court with a record relevant to argument that the order contravened exemptions from seizure provided in the Indian Act, R.S.C. 1985, c. 1-5. The order issued pursuant to section 101 of Ontario’s Courts of Justice Act, RSO 1990, c C.43 and upon application by the attorney for the successful arbitration party ACM who had signed a contingency agreement with that attorney as part of his retainer to represent ACM in the arbitration. The attorney sought the appointment of a receiver to “realize upon the debt for his benefit and [ACM]’s other creditors”.

In Kumer v. MTCC No. 775, 2021 ONSC 1181, Madam Justice Audrey P. Ramsay determined that a correctness standard applied to appeals of arbitration awards rendered under the Condominium Act, 1998, SO 1998, c 19.Ramsay J. observed that neither party argued Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 and she accepted the guidance set out in (i) 90 George Street Ltd. v. Ottawa-Carleton Standard, 2015 ONSC 336 which noted that “arbitration pursuant to the Condominium Act is distinguishable and very different from the arbitration of a commercial dispute” and (ii) Metropolitan Toronto Condominium Corporation No. 590 v. The Registered Owners and Mortgagees of Metropolitan Toronto Condominium Corporation No. 590, 2020 ONCA 471 which remarked that a condominium declaration is “a special form of contract, the structure of which is prescribed by statute. It must adhere to certain statutory requirements”.  Both decisions distinguished Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 (CanLII), [2014] 2 SCR 633 because it concerned commercial arbitration. Ramsay J. agreed with the Court of Appeal’s comments in 2020 that “while a declaration under the Condominium Act could be characterized as a contract, [it] is not the type of private contract negotiated between two parties, to which the comments in Sattva were directed. A declaration is a special form of contract, the structure of which is prescribed by statute. It must adhere to certain statutory requirements”.

In Mensula Bancorp Inc. v. Halton Condominium Corporation No. 137, 2021 ONSC 2575, Madam Justice Marie-Andrée Vermette set aside an award in which the arbitrator, unsatisfied with the interpretation given by the “plain language” of a condominium declaration, “purported to deal with and correct what he thought were errors and inconsistencies”.  Doing so “crossed the line between interpretation and correction/amendment” and decided a matter beyond the scope of the agreement to arbitrate, justifying Vermette J.’s intervention under section 46(1)3 of the Arbitration Act, 1991, SO 1991, c 17.  Because a condominium declaration is “the equivalent of the constitution of a condominium corporation” and, registered, impacts current and prospective condominium owners, section 109 of the Condominium Act, 1998, SO 1998, c 19 reserves jurisdiction to the Superior Court to correct alleged errors and inconsistencies. The parties also reiterated that jurisdiction in their agreement to arbitrate which itself appeared in their applicable documents by virtue of that same legislation.

Despite section 7(1) of the Arbitration Act, 1991, SO 1991, c 17 requiring that a stay application be brought by the party which did not commence the court proceeding, Mr. Justice Christopher de Sa in Deluxe Windoors Manufacturing Inc. v. Bruhm, 2021 ONSC 3616, accepted that the parties’ agreement to arbitrate authorized either party to apply for stay.  Ostensibly authorized to apply to stay its own action, Plaintiffs’ own activity in the action nonetheless prompted de Sa J. to follow Lansens v. Onbelay Automotive Coatings Corp., 2006 CanLII 51177 (ON SC) which dismissed a stay application because defendant seeking the stay had taken several steps in the action before applying for a stay. Regarding Plaintiffs’ application for a stay, de Sa J. stated that “I agree with the Defendant that the Plaintiffs have acted no differently than the defendants in Lansens, in fact they did not simply respond, they initiated this claim”.

In Leon v. Dealnet Capital Corp., 2021 ONSC 3636, Master Barbara McAfee declined to exercise her discretion under section 7(2) of the Arbitration Act, 1991, SO 1991, c 17 to refuse a stay.  She dismissed the senior executive’s reliance on Uber Technologies Inc. v. Heller, 2020 SCC 16 to invalidate the agreement to arbitrate contained in the employment agreement, noting that the governing law preserved the executive’s right to file an Employment Standards Act, 2000 S.O. 2000, c.41 complaint.  Master McAfee also disagreed that (i) the Business Corporations Act, RSO 1990, c B.16 oppression claim, contained in employer’s counterclaim, was not arbitrable or (ii) the employer had attorned by filing a defense and counterclaim or applied for a stay with “undue” delay. Master McAfee confirmed there was no evidence that employer or its current counsel “noticed” the agreement to arbitrate contained in the employment agreement until later in the action.