Tag: Ontario

In dismissing appellant’s claims that the trial judge erred in interpreting a common form of insurance contract used in the construction industry, the Court of Appeal in Sky Clean Energy Ltd. (Sky Solar (Canada) Ltd.) v. Economical Mutual Insurance Company, 2020 ONCA 558 noted that the litigants had agreed that findings of fact made in an arbitration award would bind the trial judge.  Though plaintiff had unsuccessfully challenged that same award and defendant had not been a party to the arbitration, both accepted not to relitigate the findings of fact when litigating their own dispute regarding those facts.

Continue reading “Ontario – trial judge and appeal court rely on litigants’ agreement to repurpose arbitral award findings of fact – #402”

In Converaidem, Inc. v. Mulcahy, 2020 ONSC 6747, Madam Justice Breese Davies dismissed an attempt to appeal interim procedural orders.  One section of the parties’ agreement to arbitrate described rulings on procedural matters as “awards” and a later section allowed the parties to appeal “awards” on a question of law. Davies J. held that, as a general rule, the same word will be presumed to bear the same meaning throughout a contract but that the presumption of consistent expression may not apply if the resulting meaning is absurd or commercially unreasonable. Her reading of the various sections, individually and together, supported her conclusion that allowing appeals of the challenged procedural orders, despite being termed “awards”, would be commercially unreasonable.

Continue reading “Ontario – interpreting agreement to allow appeal of procedural orders is commercially unreasonable – #395”

In Wang v. Mattamy Corporation, 2020 ONSC 7012, Mr. Justice Michael A. Penny dismissed Plaintiffs’ application to extend the delay in which to appeal a Master’s decision staying their action in favour of arbitration. As part of his decision making, he had to determine the merits of their proposed appeal.  Based on section 7(6) of Ontario’s Arbitration Act, 1991, SO 1991, c 17 which prohibits appeals of decisions under section 7, he held that the Master’s decision “falls squarely” within section 7 and “it is not appropriate for the court to engage in an analysis of the Master’s decision because any review of it is precluded” by section 7(6).

Continue reading “Ontario – application to extend time to file appeal denied because review of stay decision precluded – #394”

In Way v. Schembri, 2020 ONCA 691, Ontario’s Court of Appeal set aside a decision granting summary judgment which, among other determinations, had held that it was “commercially unreasonable” to consider that arbitration was suitable to resolve disputes over an ambiguous non-competition clause.  As part of his reasoning, the judge in first instance had observed that one party’s “suggestion that the answer to the ambiguities and lack of details in [non-competition clause] would be resolved by an arbitrator is commercially unreasonable and something that no businessperson would agree to”.  The Court of Appeal disagreed, noting that “[g]iven the presence of arbitration provisions in countless business agreements, it cannot be that their existence alone is commercially unreasonable”.

Continue reading “Ontario – resort to arbitration commercially reasonable to resolve ambiguous non-compete clause – #393”

In George v. Wang, 2020 ONSC 6175, Mr. Justice James F. Diamond dismissed a defendant’s challenged to the court’s jurisdiction, determining that defendant had effectively waived the application by conduct in court. Having participated in case conferences and motions, including seeking relief on separate cross-motions, Diamond J. determined that defendant had effectively waived the application of the otherwise-valid agreement to arbitrate.  Diamond J. also underlined that the court’s jurisdiction arose from plaintiff’s application as originating document and not from an earlier court order in the action.

Continue reading “Ontario – court’s jurisdiction “not an elastic concept” – it either has or has not jurisdiction – #389”

In Toronto Standard Condominium Corporation No. 1628 v. Toronto Standard Condominium Corporation No. 1636, 2020 ONCA 612, Ontario’s Court of Appeal delivered a masterclass in judicial reasoning/drafting.  It set out the role of judicial interpretation of statutes, observed how a wrong interpretation is never right, set out its approach to overruling its own precedents, acknowledged new guidance given in TELUS Communications Inc. v. Wellman, 2019 SCC 19 (CanLII), [2019] 2 SCR 144 on section 7(5) of Arbitration Act, 1991, SO 1991, c 17 but distinguished its impact from the Court of Appeal’s well-accepted reasoning in Huras v. Primerica Financial Services Ltd., 2000 CanLII 16892 (ON CA) on section 7(6)’s application.  Reasserting its interpretation on section 7(6), the Court held that it did have jurisdiction to hear an appeal of a motion judge’s decision purporting to exercise discretion under section 7(5) to deny a stay. On the merits of the appeal, the Court then applied the Supreme Court’s interpretation which overturned the Court of Appeal’s interpretation on section 7(5).

Continue reading “Ontario – appeal court reaffirms jurisdiction for appeal of stay decision where decision holds arbitration agreement does not apply – #385”

In Paulpillai Estate v. Yusuf, 2020 ONCA 655, Ontario’s Court of Appeal held that it lacked jurisdiction to hear an appeal of a motion judge’s order regarding a stay in favour of arbitration.  No formal motion had been made to refer the dispute to arbitration, the motion judge’s dispositive order was silent on the issue of arbitration and any comments on waiver of arbitration were merely obiter.  Even assuming that an order might have been made, the Court held it lacked jurisdiction because section 7(6) of the Arbitration Act, 1991, SO 1991, c 17 stipulated no appeal lay from a decision under section 7. For a more in-depth look at how and whether section 7(6) applies to limit appeals, see the equally recent Court of Appeal decision in Toronto Standard Condominium Corporation No. 1628 v. Toronto Standard Condominium Corporation No. 1636, 2020 ONCA 612 and the related Arbitration Matters note “Appeal court reaffirms jurisdiction for appeal of stay decision where decision holds arbitration agreement does not apply“.

Continue reading “Ontario – no appeal lies from an order refusing a stay whether order was made or not – #384”

In Hunt’s Transport Limited v. Eagle Street Industrial GP Inc., 2020 ONSC 5768, Mr. Justice David A. Broad refused to exercise his discretion to grant a commercial tenant relief from forfeiture given tenant’s refusal to abide by its obligation to continue performance during arbitration of its disputes with the landlord.  Broad J. held that tenant’s conduct qualified as “wilful” self-help and justified the court in holding tenant to its obligations pending resolution of issues exclusively reserved for arbitration.  Tenant’s unilateral decision to withhold payments, prior to their determination exclusively reserved in the lease to the arbitrator, played a key role in Broad J.’s reasons.

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In McEwen (Re), 2020 ONCA 511, Ontario’s Court of Appeal repurposed an exception, developed in its  1996 decision involving leave to appeal an arbitration award, which permitted a three (3) member panel to review the decision of a single judge denying leave to appeal.  McEwen (Re) involved a panel’s jurisdiction under Ontario’s Courts of Justice Act, RSO 1990, c C.43 to review the decision of a single judge denying leave to appeal under the Bankruptcy and Insolvency Act, RSC 1985, c B-3. The Court’s reasons highlighted the distinction between (i) leave to appeal decisions which mistakenly decline jurisdiction and (ii) leave to appeal decisions which decide the merits of the application for leave to appeal. Only the former qualifies for the exception to “apparently absolute rule”.

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In Camerman v. Busch Painting Limited et al., 2020 ONSC 5260, Mr. Justice Paul B. Schabas both varied and set aside a portion of an award due to the arbitrator’s contractual interpretation of the scope of issues subject to arbitration under a settlement.  Schabas J. determined that the parties, by their settlement, had “reset the dial” between them and the award breached the scope of disputes subject to arbitration.  The arbitrator’s award relied on his interpretation of the settlement and exceeded the terms of the settlement.  That interpretation raised an extricable question of law identified by Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, qualifying that issue for leave to appeal under section 45(1) of Ontario’s Arbitration Act, 1991, SO 1991, c 17. Schabas J. also held that the same facts demonstrated a jurisdictional error covered by section 46(1)3 and an order setting aside the same portion of the award.

Continue reading “Ontario – arbitrator’s interpretation of settlement raises extricable question of law and jurisdictional issue – #370”