Tag: Ontario

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”

In Toronto District School Board v. Roofmart Ontario Inc., 2021 ONSC 1688, Mr. Justice Frederick L. Myers dismissed R’s application under Rule 13.1.02 of Ontario’s Rules of Civil Procedure, RRO 1990, Reg 194 to change venue from Brampton to Toronto for the adjudication of SB’s application to appoint an arbitrator under section 10 of the Arbitration Act, 1991, SO 1991, c 17.  Though he acknowledged that the parties’ underlying dispute was “wholly Toronto-based”, Myers J. observed that “the question of who arbitrates has no natural connection to any venue”.  Noting that a Brampton-assigned judge had already seized himself of SB’s application to appoint an arbitrator and scheduled an upcoming hearing to decide that application, Myers J. disagreed with R’s attempt to task another judge to hear SB’s application. “Any judge of this court is equally capable of hearing this matter quickly and making a decision on the identity of the arbitrator”.

Continue reading “Ontario – venue change application for arbitrator appointment application an inappropriate, misuse of court resources – read #448”

In Zenith Aluminum Systems Ltd. v. 2335945 Ontario Inc., 2021 ONSC 1128, Mr. Justice Benjamin T. Glustein dismissed attempts to limit the court’s jurisdiction to stay execution of final arbitral awards to only those circumstances set out in section 50(5) Arbitration Act, 1991, SO 1991, c 17. Glustein J. held that section 50(5) does not preclude a stay of execution under section 106 of the Courts of Justice Act, R.S.O. 1990, c. C. 43.  Glustein J. refused, however, to accept that Rule 20.08 of the Rules of Civil Procedure, RRO 1990, Reg. 194 authorized courts to stay execution of final awards. Glustein J. observed that Rule 20.08 limited its application to summary judgments and, on the record before him, the final awards “are treated as final judgments”, issued by an arbitrator who the parties “asked to conduct the trial” of their dispute.

Continue reading “Ontario – Arbitration Act does not preclude court staying execution of final award under Courts of Justice Act – #444”

In Gelman v. 1529439 Ontario, 2021 ONSC 424, Madam Justice Bernadette Dietrich denied a successful litigant’s claim for pre-litigation costs, following the rule set out in Greenlight Capital, Inc. v. Stronach (2008), 2008 CanLII 34359 (ON SCDC), 91 O.R. (3d) 241 (Div. Ct.).  In doing so, Dietrich J. resurfaced 90 George Street Ltd. v. Ottawa-Carleton Standard, 2015 ONSC 336 in which pre-litigation costs for mediation were awarded in an arbitration and upheld on a post-award challenge.  Those costs related to mediation imposed by the Condominium Act, 1998, SO 1998, c 19 which requires parties to mediate budget disagreements before undertaking arbitration and, as such, did not represent an exercise of discretion by the parties prior to commencing arbitration.

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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.

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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.

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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”