Tag: Ontario

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.

Continue reading “Ontario – court denies tenant relief from forfeiture where tenant disregards arbitration – #376”

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”.

Continue reading “Ontario – exceptional case grants appeal court jurisdiction over single judge’s decision mistakenly denying leave to appeal – #373”

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”

In Borschel v. Borschel, 2020 ONSC 4395, Mr. Justice Lorne Sossin issued an anti-suit injunction restraining a party to arbitration awards subject to Ontario law from pursuing parallel proceedings in a U.S. jurisdiction.  Sossin J. also dismissed arguments challenging enforcement of the awards based on legislative provisions requiring parties to sign any agreement reached as part of the court process. Sossin J. held that the provisions did not serve to invalidate awards which had issued on consent and where consent of the parties had been communicated by counsel.

Continue reading “Ontario – anti-suit injunction restrains party bound by Ontario arbitration award from pursuing parallel U.S. litigation – #368”

In HQIC and Circlemed Inc. v. Hamdani, 2020 ONSC 3403, Madam Justice Cynthia Petersen considered allegations made by clients against their former counsel of record in an arbitration and the negotiations which resolved the arbitration. Though her reasons focus on whether the record was sufficient/appropriate to allow her to grant summary judgment (no, it was not), Petersen J.’s analysis disclosed certain risks inherent for counsel in commercial arbitration when (i) stepping into a new brief and (ii) responding post-resolution to a client’s alleged dissatisfaction over the conduct and settlement of the arbitration.  The record also highlights the opportunities for preliminary skirmishing created by inserting procedural options into an agreement to arbitrate which can be triggered merely by how either party frames its action.

Continue reading “Ontario – professional negligence claims stem in part from arbitration agreement’s procedural options – #364”

In awarding costs on a substantial indemnity basis in Ndrive v. Zhou, 2020 ONSC 4568, Mr. Justice John R. McCarthy drew attention to a defendant’s conduct which “unnecessarily extended and complicated” Mareva injunction proceedings in which arbitral award funds were the “core of the dispute between the parties”.  McCarthy J. underlined the importance of Mareva injunctions as a tool in civil litigation “to address the problem posed when a defendant utilizes the time lag between a claim being prosecuted and a plaintiff’s attainment and execution upon a judgment to divest itself of assets which would otherwise be available to satisfy that judgment in whole or in part”.  Also, see notes regarding an arbitrator’s jurisdiction under the Arbitration Act, 1991, SO 1991, c 17 to issue ex parte preservation orders against arbitral parties and an arbitrator’s lack of jurisdiction to issue Mareva injunctions against non-parties.

Continue reading “Ontario – Mareva injunction and increased costs ordered where arbitral award funds were core of dispute – #363”