In 1852998 Ontario Limited v. HCC No. 227, 2021 ONSC 21, Mr. Justice Andrew J. Goodman denied leave to appeal on a question of law, holding that the arbitrator’s determinations of a condominium rule’s validity and compliance with the Condominium Act, 1998, SO 1998, c 19 rested on findings of fact concerning uses of the units generally and the historical interpretation of the declaration by the corporation. The arbitrator’s findings of fact also involved whether the condominium’s vote on setting aside the rule was valid and resulted in a valid rule prohibiting Appellants’ retail sale of cannabis products. Despite denying leave, Goodman J. used his “equitable prerogative” to modify the delays in the Amended Award , extending the time for performance and thereby allowing the arbitral party subject to the orders sufficient time to exhaust its inventory.
Continue reading “Ontario – findings of fact which established legal obligations also prevent raising question of law – #439”Ontario – court enforces Model Law prohibition of appeals where arbitral tribunal decides jurisdiction as preliminary question – #427
On application by Respondents, Ontario’s Court of Appeal in United Mexican States v. Burr, 2021 ONCA 64 quashed the appeal of a decision in first instance dismissing a challenge to a tribunal’s preliminary decision on jurisdiction. Despite counsel’s agreement that a party could “ride both horses” and rely on both articles 16 and 34 of the UNCITRAL Model Law on International Commercial Arbitration, adopted by the United Nations Commission on International Trade Law on June 21, 1985, as amended on July 7, 2006 when challenging an arbitral tribunal’s decision on jurisdiction, the Court limited its decision to prohibiting those appeals wherein a party’s jurisdictional decision was determined as a preliminary question under article 16(3) and not in the award on the merits.
Continue reading “Ontario – court enforces Model Law prohibition of appeals where arbitral tribunal decides jurisdiction as preliminary question – #427”Ontario – “trite law” that settlement agreements are contracts subject to general law of contract – #426
Following the guidance set out in Bawitko Investments Ltd. v. Kernels Popcorn Ltd., 1991 CanLII 2734 (ON CA), Mr. Justice W. Daniel Newton in Rockwater Construction Inc. v. Coppin et al, 2020 ONSC 7956 held that a settlement failed to qualify as a binding contract. Newton J. observed that it is “trite law that settlement agreements are contracts subject to the general law of contract” and that contract interpretation principles apply equally to deadlines in agreements. Significant post-settlement disagreements over key provisions demonstrated to Newton J. that neither party had initially contemplated or agreed on all essential terms. Newton J. held that waiver of timelines in a settlement “would require clear evidence that both parties agreed that there would be no deadline for completing” the disputed steps. Despite a settlement clause requiring mediation in case of disagreement over the settlement, Newton J. determined that it was “pointless” to require the parties to return to mediation.
Continue reading “Ontario – “trite law” that settlement agreements are contracts subject to general law of contract – #426”Ontario – awards are neither “suggestions” nor “invitation to further negotiation” – #424
In van Rhijn v. van Rhijn, 2020 ONSC 8032, Madam Justice Lene Madsen reminded an arbitral party that awards were neither “suggestions” nor “an invitation to further negotiation”. Arbitration awards “spoke from when they were made”, creating obligations which required the party’s compliance, “whether he agreed with those terms or not”. The parties submitted their dispute to a med-arb process before the same neutral who, after having issued two (2) awards advised the parties of his withdrawal. Despite his withdrawal, the arbitrator retained jurisdiction to issue a costs award which he did issue after his withdrawal and after having invited costs submissions in one award released just prior to withdrawing.
Continue reading “Ontario – awards are neither “suggestions” nor “invitation to further negotiation” – #424”Ontario – leave denied to commence derivative action subject in part to arbitration – #421
In Hevey v. Wonderland Commercial, et al., 2021 ONSC 540, Mr. Justice Spencer Nicholson refused leave to commence a derivative action in which part of the dispute was subject to arbitration before an accountant. Each of the parties to the proposed derivative action indicated they had “made every effort to nominate an accountant to arbitrate pursuant to the Settlement Agreement and that the other side was non-cooperative in the process”. Nicholson J. determined that the parties’ contract provided a mechanism for dealing with the dispute and, despite “superficial attempts to comply”, the parties could remit the matter to arbitration. Bringing an action in respect of that part of the dispute “does not appear necessary”.
Continue reading “Ontario – leave denied to commence derivative action subject in part to arbitration – #421”Ontario – raising arbitration in defence helps demonstrate defendant did not waive arbitration – #414
In Elgin Mills v. Farhanian, 2020 ONSC 6435, Master Karen E. Jolley granted an application for a stay, holding that a defendant does not attorn to the court process by filing a defence wherein it specifically raises the arbitration provision. Master Jolley followed the precedent set by ABN Ambro Bank Canada v. Krupp Mak Maschihnenbau GmbH, 1996 CanLII 12449 (ON SCDC) which held that reference to arbitration in a defence may be treated as a request to arbitrate, “were one needed“. She further held that defendant’s delayed application for a stay, coupled with light activity in the litigation, did not justify refusing stay and that the work in the litigation could be repurposed for an arbitration.
Continue reading “Ontario – raising arbitration in defence helps demonstrate defendant did not waive arbitration – #414”Ontario – enforcing award’s remedy excludes substituting court’s own remedy – #411
In Abittan v. Wilcox, 2020 ONSC 6836, Mr. Justice Frederick L. Myers reiterated the “consequences” of agreeing to submit disputes to arbitration, limiting his involvement by “[i]gnoring the merits of the Arbitrator’s decisions, as I must, and considering only the nature and form of remedy granted”. Enforcing the award which ordered one party to pay the other the costs of the arbitration, Myers J. explained that section 50(7) of the Arbitration Act, 1991, SO 1991, c 17 did not authorize him to change the remedy ordered in an award. Doing so would not be enforcing an award but substituting the court’s award for that of the arbitrator.
Continue reading “Ontario – enforcing award’s remedy excludes substituting court’s own remedy – #411”Ontario – exceptions to solicitor-client and settlement privileges arise in post-settlement dispute – #410
In Laliberté v. Monteith, 2021 ONSC 14, Madam Justice Sandra Nishikawa ordered Respondent to answer questions and to provide his lawyer’s complete file. First, she determined that Respondent had waived solicitor-client privilege over exchanges relating to a disputed, negotiated settlement. Though Respondent’s pleadings were “carefully drafted to avoid putting the Respondent’s state of mind, and any legal advice that might have had an impact on his state of mind, at issue”, Respondent’s denials did put in issue his state of mind and his reliance on legal advice in not disclosing facts material to Applicant’s decision to enter into the settlement. Second, Nishikawa J. further held that the record justified applying an exception to settlement privilege, namely where “a party perverts the purpose of a settlement negotiation and attempts to use it to mislead the other party into changing its position”.
Continue reading “Ontario – exceptions to solicitor-client and settlement privileges arise in post-settlement dispute – #410”Ontario – omission to stipulate language of arbitration and then require bilingual arbitrator creates delays – #406
In Hodder v. Eouanzoui, 2020 ONSC 7905, Mr. Justice Robert N. Beaudoin asserted jurisdiction under section 16(3) of Arbitration Act, 1991, SO 1991, c 17 to appoint a substitute arbitrator in an administered arbitration where neither the parties’ agreement to arbitrate nor the administering institution’s rules provided a process to appoint a substitute. The institution temporarily lacked a sufficient number of bilingual arbitrators on its roster and, during that period, Applicant applied to the court for assistance. The requirement that the arbitrator be bilingual did not appear in the agreement to arbitrate, arising after service of the notice to arbitrate, and appeared to result by consensus, combining the parties’ respective positions on the appropriate language of the arbitration. When confirming his orders, Beaudoin J. also formalized the bilingual status of the arbitration.
Continue reading “Ontario – omission to stipulate language of arbitration and then require bilingual arbitrator creates delays – #406”Ontario – mediator appointed as arbitrator for disputes involving settlement negotiated during later arbitration – #403
Following an unsuccessful mediation phase before a mediator regarding disputes under a 2011 agreement, the parties in The Corporation of the Township of South Stormont v. The Kraft Heinz Company, 2020 ONSC 7641 engaged in arbitration before another professional during which the parties negotiated a 2017 settlement and agreed to arbitrate disputes before the mediator. When disputes arose over the settlement, one party sought to resume the earlier arbitration but to appoint a new arbitrator. The other party resisted, arguing that they had agreed to submit disputes regarding the settlement to the mediator. Mr. Justice James E. McNamara held that the dispute was not under the main 2011 agreement but fell within the express terms of the 2017 settlement. The dispute resolution in the parties’ settlement arguably constituted a med-arb agreement.
Continue reading “Ontario – mediator appointed as arbitrator for disputes involving settlement negotiated during later arbitration – #403”