Tag: Ontario

In Optiva Inc. v, Tbaytel, 2021 ONSC 2929, Mr. Justice W. Daniel Newton dismissed a post-award challenge to an arbitrator’s initial decision to proceed by way of summary judgment absent defendant’s consent.  Newton J. determined that section 26 of Ontario’s Arbitration Act, 1991, SO 1991, c 17 describes hearings for “presentation of evidence” and “oral argument” but expresses no requirement for oral evidence.  As the parties proceeded by affidavit, after cross-examination, and with oral argument, Newton J. held that arbitrator’s process had met requirement to “hold a hearing” as requested by defendant.  Newton J also held that summary judgment should be available in arbitration for the same reasons as those given in Hryniak v. Mauldin, 2014 SCC 7 (CanLII), [2014] 1 SCR 87 provided the process “(1) allows the arbitrator to make the necessary findings of fact; (2) allows the arbitrator to apply the law to the facts; and (3) is a proportionate, more expeditious and less expensive means to achieve a just result”.

Continue reading “Ontario – arbitrator has jurisdiction to hear summary judgment despite party’s objection provided process complies with Hryniak – #474”

In CUSO International v. Pan American Development Foundation, 2021 ONSC 3101, Mr. Justice Calum MacLeod relied on forum non conveniens principles to resolve an application to stay Ontario litigation pending the outcome of litigation in Colombia.  Despite a complex matrix of documents and contracts to which the litigants were not all parties, MacLeod J. urged the litigants to consider a submission agreement to arbitrate.  Though that complexity and lack of privity often serve as lines of first resistance for a litigant objecting to arbitration, MacLeod J. relied on both as his prompts.

Continue reading “Ontario – complex contractual matrix and lack of privity prompts court to propose arbitration – #471”

Mr. Justice Edward M. Morgan in Kore Meals LLC v. Freshii Development LLC, 2021 ONSC 2896 included a forum non conveniens-type analysis to grant a stay, including whether the forum and venue identified in the agreement to arbitrate were unfair or impractical for a party.  Morgan J. favoured competence-competence and referred the parties to arbitration administered by the American Arbitration Association, confirming that neither knew where the AAA was located and both informed him that arbitration was likely conducted online because they “presume so since the pandemic has moved most proceedings of this nature to a digital forum”. “If hearings are held by videoconference, documents filed in digital form, and witnesses examined from remote locations, what is left of any challenge based on the unfairness or impracticality of any given forum? To ask the question is to answer it”.  Morgan J. observed that “[i]t is by now an obvious point, but it bears repeating that a digital-based adjudicative system with a videoconference hearing is as distant and as nearby as the World Wide Web. With this in mind, the considerable legal learning that has gone into contests of competing forums over the years is now all but obsolete. Judges cannot say forum non conveniens we hardly knew you, but they can now say farewell to what was until recently a familiar doctrinal presence in the courthouse”.  Morgan J. added “what is true for forum non conveniens is equally true for the access to justice approach to the arbitration question. Chicago and Toronto are all on the same cyber street. They are accessed in the identical way with a voice command or the click of a finger. No one venue is more or less unfair or impractical than another”.  Morgan J. also included a party’s co-defendant parent in the referral despite being non-party to the agreement to arbitrate.

Continue reading “Ontario – court all but drafts pandemic obituary for forum non conveniens as factor in fairness of arbitration venue – #469”

In Wang v. Mattamy Corporation, 2021 ONSC 2635, Ontario’s Divisional Court in brief reasons refused to vary or set aside a judge’s decision in Wang v. Mattamy Corporation, 2020 ONSC 7012 to dismiss an appeal from a Master’s order granting a stay of their litigation in favour of arbitration. In determining that Applicants had failed to demonstrate an error of law or palpable and overriding error of fact, the Court agreed that section 7(6) of Ontario’s Arbitration Act, 1991, SO 1991, c 17 is “a complete bar to the appeal” which provides that is no appeal from a decision of the court staying an action on the basis of an arbitration clause. For an opposite result in first instance on an appeal of a Master’s decision based on interpretation/application of Alberta rules of court and legislation, see the Arbitration Matters note “Alberta – court rules permitting appeal of Master’s stay decision consistent with section 7(6) of Arbitration Act – #412” regarding Agrium, Inc v. Colt Engineering Corporation, 2020 ABQB 807.

Continue reading “Ontario – no appeal from Master’s order to stay litigation in favour of arbitration – #468”

In Kingston Automation Technology Inc. v. Montebello Packaging, 2021 ONSC 2684, Mr. Justice Graeme Mew dismissed an application to stay an award pending other applications to appeal that award and to set it aside.  Addressing one of applicant’s grounds which raised a jurisdictional issue involving whether all claims granted were within the scope of the agreement to arbitrate.  Mew J. noted that the applicant now objecting to those claims being added was the party which had added them.  Mew J. held that applicant had agreed to their inclusion, had not objected within the delays at the onset of the arbitration, only raising the objection “rather late in the game”. Mew J. also refused to order a stay of the arbitration which remained ongoing.  Applicant had made no application to stay to the arbitrator and Mew J. concluded he had no basis on which to intervene.  Mew J. acknowledged the potential for “wasted time and expense” but such could be compensated in an award for costs and “it is not, in any event, a basis for displacing the kompetenz-kompetenz principle by interfering with the arbitrator’s management of the arbitration”.

Continue reading “Ontario – court invokes kompetenz-kompetenz to refuse stay of ongoing arbitration pending appeal/set aside – #464”

Despite extensive rights of appeal provided in BP’s and D’s agreement to arbitrate, Mr. Justice William S. Chalmers in Bergmanis v. Diamond, 2021 ONSC 2375 held that their agreement did not apply to non-party witnesses who successfully applied to the arbitrator under sections 29 and 30 of the Arbitration Act, 1991, SO 1991, c 17 to quash summonses issued by the arbitrator.  Unsatisfied with the arbitrator’s decision to quash summonses, claimant appealed but without seeking leave.  Chalmers J. held that the successful non-parties did not attorn by applying to the arbitrator to quash the summonses and therefor the general provisions for appeal under the legislation applied. Relying Ontario First Nations (2008) Limited Partnership v. Ontario Lottery And Gaming Corporation, 2020 ONSC 1516, Chalmers J. held that Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 did not modify the standard of review.  Chalmers. J. further held that a legal principle as important a solicitor-client privilege is not a question of legal importance to the legal system as a whole if neither of the parties disputes the legal principle.

Continue reading “Ontario – non-party witnesses applying to arbitrator to quash summonses do not attorn to jurisdiction – #462”

In Parc-IX Limited v. The Manufacturer’s Life Insurance Company, 2021 ONSC 1252, Mr. Justice Markus Koehnen distinguished between an objection to jurisdiction and an appeal because one does not agree with answer made within that jurisdiction.  “Jurisdiction is determined not by asking whether the arbitrator made a correct decision but by asking whether the arbitrator had authority to make the inquiry he made”. Koehnen J. recharacterized Applicant’s challenge to the award. “What [Applicant] really complains about here is not the arbitrator’s jurisdiction to make the inquiry but the arbitrator’s answer to the inquiry.  That, however, is beyond the purview of a jurisdictional review”.  Koehnen J. also dismissed Applicant’s attempt to impose an arbitrator’s exercise of discretion in a costs award issued in 1990 on another arbitrator’s exercise of his discretion in 2020. Koehnen J. held that the 1990 determination was based on the exercise of discretion applied to circumstances of that case and it would be an improper exercise of discretion to determine costs in 2020 simply by applying the result arrived at in 1990.  Koehnen J. also noted differing treatments of Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 but supported applying the correctness standard to a review of an arbitrator’s award for reasons set out at para. 72 of Ontario First Nations (2008) Limited Partnership v. Ontario Lottery and Gaming Corporation.

Continue reading “Ontario – jurisdiction involves whether arbitrator has authority to make inquiry, not the answer to the inquiry – #458”

In a class proceeding,  Mr. Justice Benjamin T. Glustein in Kaplan v. PayPal CA Limited, 2021 ONSC 1981 approved a settlement agreement as a “fair and reasonable and in the best interests of the Class Members”, noting that the settlement had been achieved by involving “a senior and highly-regarded lawyer and mediator” to resolve the claims.  When evaluating the proposed settlement against the criteria set out in Robinson v. Medtronic, Inc., 2020 ONSC 1688, Glustein J. supported his own approval of the settlement terms with inter alia references to the terms being recommended and supported by the experienced mediator.

Continue reading “Ontario – experienced mediator’s involvement in/support of class proceeding settlement contributes to court approval of settlement – #453”

In Beaule v. Manufacturers Life Insurance Company, 2021 ONSC 1876, Mr. Justice James F. Diamond dismissed defendant’s application to decline jurisdiction on the basis of forum non conveniens.  As part of his analysis of the presumptive connecting factors identified in Club Resorts Ltd. v. Van Breda, 2012 SCC 17 (CanLII), [2012] 1 SCR 572, Diamond J. also considered that Ontario, unlike Québec, imposed mandatory mediation.  Diamond J. determined that depriving plaintiff of the mandatory mediation could quantify as a loss of juridical advantage and “slightly favours Ontario”.

Continue reading “Ontario – Ontario courts’ mandatory mediation “slightly favours Ontario” in forum non conveniens analysis – #452”

When imputing income to spouses to determine temporary spousal support, Mr. Justice David A. Jarvis in G. v. S., 2021 ONSC 1625 commented on the complexity of the financial transactions included in the information on which the parties asked him to rely.  After detailing those transactions, which appeared to involve companies owned by the husband or with/by one or more of his family members.  Jarvis J. determined the spousal support and completed his task.  Jarvis J. then closed his reasons by first disclaiming any “proxy” for the Canada Revenue Agency but then observing that “consideration might be given to mediation/arbitration” where there appears to be “unusual financial transactions whether those are family expenses funded through a myriad of related corporate entities … or bundles of “gifted” neatly-bound cash hidden in a bedroom closet in excess of $100,000”.

Continue reading “Ontario – court urges parties consider mediation/arbitration for “unusual financial transactions” – #450”