Tag: Ontario

In The United Mexican States v. Burr, 2020 ONSC 2376, Madam Justice Bernadette Dietrich accepted that legal submissions by parties to the North America Free Trade Agreement Between the Government of Canada, the Government of Mexico and the Government of the United States, 17 December 1992, Can TS 1994 No 2 can qualify as “subsequent practice” under article 31(3) of the Vienna Convention on the Law of Treaties Can TS 1980 No 37 but that the facts fell short of meeting the standard in Mexico v. Cargill, Incorporated, 2011 ONCA 622 of a “clear, well-understood, agreed common position”.  Dietrich J. also distinguished between an objection to jurisdiction which relates to the authority of a tribunal to hear a dispute and an objection to admissibility which refers to the characteristics of the claim, determining that she had jurisdiction to review the former but not the latter.  She dismissed a challenge to an award on jurisdiction in which the tribunal found that investors had properly given notice of their intention to arbitrate by filing powers of attorneys authorizing legal counsel to initiate arbitration and to act on their behalf.  Dietrich J. held that non-compliance with the formal requirements of Articles 1119 did not vitiate the state’s consent to arbitrate under Article 1122(1).

update – August 18, 2020 Notice of Appeal filed August 24, 2020 by The United Mexican States. See notes for grounds of appeal.

Continue reading “Ontario – states’ legal submissions can qualify as “subsequent practice” in investor-state arbitration – #360”

In Magotiaux v. Stanton, 2020 ONSC 4049, Madam Justice Jennifer Mackinnon denied to stay court proceedings, having determined that the parties’ otherwise detailed agreement to arbitrate was subject to, but did not comply with all of, certain formal requirements required by the Family Law Act, RSO 1990, c F.3 and the Family Arbitration, O Reg 134/07, the sole regulation made to the Arbitration Act, 1991, SO 1991, c 17. Mackinnon J. recognized that courts can imply terms into a contract following the approach in Pacific Hotels Ltd. v. Bank of Montreal, 1987 CanLII 55 (SCC) but, where legislation has mandated express terms, courts cannot imply terms to produce a binding agreement to arbitrate compliant with that legislation. 

Continue reading “Ontario – courts cannot imply terms which legislation requires be express to have valid arbitration agreement – #354”

In Hristovski v. Hristovski, 2020 ONSC 4021, Madam Justice Francine Van Melle held she had no jurisdiction to hear an appeal of an arbitrator’s pre-merits hearing denial of further document disclosure. Despite use of the term “award” to title the decision, Van Melle J. determined that the denial was an interim procedural order. Unlike an award which disposes of disputes between parties, the order was not eligible for appeal, being “immune from review” under the Arbitration Act, 1991, SO 1991, c 17.  Van Melle J.’s reasons do not assert that interim decisions cannot later be challenged when appealing the final award if an interim decision impacts on the result. As neither party argued whether leave had to be sought/obtained, Van Melle J. made no comment on the issue.

Continue reading “Ontario – interim procedural orders “immune from review” during arbitration even when titled “award” – #353”

In Cricket Canada v. Alberta Cricket Council, 2020 ONSC 3776, Mr. Justice Markus Koehnen upheld an arbitrator’s determination that she had jurisdiction over both the complainant and the dispute, consistent with not only the applicable dispute resolution rules but also the administering institution’s enabling legislation.  Koehnen J. held that the arbitrator had not taken it upon herself the power to determine membership in a private corporation, had not undertaken any corporate reorganization or attempted any unjustified removal of a right to self-determine membership.  Rather, the arbitrator was correct in her determination that claimant’s status and the nature of the dispute fell within her jurisdiction and that of the administering institution which adopted the dispute resolution rules.

Continue reading “Ontario – arbitrator determines complainant’s status as member of respondent and eligible to arbitrate dispute – #346”

Still seized of the appointment process following his earlier decision to refer the parties to arbitration, Mr. Justice Jonathan Dawe in King Valley Estates Inc. v. Wong et al., 2020 ONSC 3950 accepted to grant Defendants’ application to appoint a candidate initially proposed, but now resisted, by Plaintiff.  Despite months of opportunity and diligent efforts by Defendants, the parties returned before Dawe J. each proposing that the other’s candidate be named. Both candidates were “eminently qualified”, acceptable to both parties and not under “any disqualifying conflict”.  Due to advantages perceived by Plaintiff’s candidate’s lower rate and cap on fees, Dawe J. expressed readiness to appoint that candidate at Defendants’ request subject to (i) re-confirmation of his interest and (ii) a schedule acceptable to Defendants.

Continue reading “Ontario – each party argues to have the other party’s candidate appointed arbitrator instead of their own – #345”

In Travelers Insurance Company of Canada v. CAA Insurance Company, 2020 ONCA 382, Ontario’s Court of Appeal set aside an award which issued following a statutory arbitration because the Ontario statute did not apply to the defendant.  The Court questioned how did Ontario statutory accident benefits for a Nunavut accident come to be arbitrated under Ontario’s Insurance Act, RSO 1990, c I.8 if that legislation’s priority rules only apply if both insurers are subject to those rules.  The Court identified as a “serious” error the arbitrator’s determination that the Insurance Act applied to the defendant insurer.  Despite that error, the Court is silent on (i) how/when parties can consent by contract to submit to statutory arbitration under a statute which does not apply to one of them and (ii) why apply the standard of review applicable to statutory arbitrations, recently restated in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, to an appeal from a consensual arbitration.

Continue reading “Ontario – Appeal Court questions why arbitrate under a statute if statute does not apply to both parties – #341”

In 1515474 Ontario Inc. v. Soocellus Ontario Inc., 2020 ONSC 270, Ontario’s Divisional Court upheld an order granting a shareholder control of the conduct of ongoing dispute resolution.  Post-sale of G’s shares in F Co., G retained non-voting shares in F Co. with a right to receive net proceeds in F Co.’s litigation so long as G provided litigation funding and met other financial terms.  F Co.’s eventual decisions to reduce activity in the litigation, to seek an end to it and to mediate so as to “accept the best reasonable offer we are able to negotiate” combined to qualify as oppression justifying the grant of litigation control. The order sought to rectify for breach of G’s reasonable expectations created by the sale of G’s shares in a company engaged in litigation but, unlike other oppression remedies, limited the grant of control to the conduct of litigation and not overall operations of F Co.

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In Stans Energy Corp. (Re), 2019 CanLII 36437 (ON SEC), the Ontario Securities Commission granted an exemption to a filer from filing two (2) litigation funding agreements despite the documents qualifying as material contracts under Ontario’s 51-102 – Continuous Disclosure Obligations.  To issue the exemption, the Securities Commission relied on (i) prior disclosure of key information, (ii) privilege and confidentiality issues which would be violated if further disclosure was made as well as (iii) not compromising the filer’s relationship with the funders.

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In Deschenes v. Lalonde, 2020 ONCA 304, Ontario’s Court of Appeal upheld rescission of a settlement on the basis of Defendant’s innocent misrepresentation regarding a fact material to Plaintiff’s decision to settle.  Defendant’s actual or constructive knowledge that the representation was false was unnecessary.  The Court distinguished rescission based on innocent misrepresentation from rescission based on unilateral mistake. Despite the strong presumption favouring finality of settlements, the Court reiterated that the ways to “upset” a settlement are the same as those applicable to other contracts, including fraud, misrepresentation, duress, undue influence, unconscionability, or mutual or unilateral mistake.

Continue reading “Ontario – settlement rescinded based on innocent misrepresentation of material fact unknown to Defendant – #332”