In Panasonic Eco Solutions Canada Inc. v. XL Specialty Insurance Company, 2020 ONSC 1502, Mr. Justice Markus Koehnen granted in part an arbitral defendant’s application to enforce its insurer’s duty to defend. That duty also included the right under the policy to select and add new counsel in the arbitration to defend that portion of the claims made by the third party in the arbitration. The insured and insurer were bound by the allegations of fact made in the arbitration and not the legal characterization made by the third party about those facts.
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For those interested in just how Canadian courts organize procedural hearings and maintain the public nature of those hearings in the new normal, read the brief endorsement issued April 1, 2020 by Mr. Justice David L. Corbett in Nation Rise v. Minister of the Environment, 2020 CanLII 25863 (ON SCDC). The details involve a virtual hearing scheduled for April 17, 2020 using Zoom technology organized through Arbitration Place.
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In Ontario First Nations (2008) Limited Partnership v. Ontario Lottery And Gaming Corporation, 2020 ONSC 1516, Mr. Justice Glenn A. Hainey held that Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 does not refer to either Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 (CanLII), [2014] 2 SCR 633 or Teal Cedar Products Ltd. v. British Columbia, 2017 SCC 32 (CanLII), [2017] 1 SCR 688 and that it is not reasonable to conclude that the Supreme Court meant to overrule its own decisions without making any reference to them or to the area of law to which they relate.
Continue reading “Ontario – Vavilov does not overrule Teal Cedar or Sattva Capital – #302”Ontario – summary judgment enforces settlement issuing from arbitration – #299
In Furniture.com Inc. v. Leon’s Furniture Ltd., 2019 ONSC 7451, Madam Justice Sandra Nishikawa granted summary judgment for breach of a settlement entered into after arbitration began. Nishikawa J.’s decision was the latest in a sequence of different dispute resolution options undertaken by the parties – arbitration, court application for leave to appeal an award, private settlement and summary judgment to enforce settlement. Nishikawa’s reasons also demonstrate that resolution went ahead despite defendant’s evidentiary objections and other ongoing dispute resolution in the U.S.
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In Allstate Insurance Company v. Her Majesty the Queen, 2020 ONSC 830, Madam Justice Breese Davies held that Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 altered judicial intervention on appeals from insurance arbitration mandated by legislation. Davies J. held that legislation which includes a statutory appeal mechanism signals legislative intent that courts are to perform an appellate function in respect of the administrative decision and apply appellate standards of review. Davies J. distinguished between appeals of statutory arbitrations and private commercial arbitrations, the latter being seen as autonomous, self-contained process in which courts should “generally” not intervene.
Continue reading “Ontario – Vavilov standard applies to statutory insurance arbitration but not private commercial arbitration – #298”Ontario – litigation stayed to permit arbitrator to determine jurisdiction and issues subject to arbitration – #295
In a pair of decisions, Deco Homes (Richmond Hill) Inc. v. Mao, 2019 ONSC 6223 and Deco Homes (Richmond Hill) Inc. v. Li, 2019 ONSC 7501, Mr. Justice Lorne Sossin acknowledged overlap of buyers’ claims subject to statutory arbitration and vendor’s claims for breach of contract not covered by arbitration. Respectful of competence-competence, Sossin J. stayed the actions to allow an arbitrator to make a first determination, reasoning that vendor’s claims could not be resolved without recourse to questions that lay within the agreement’s exclusive scope. To identify the dispute, he included vendor’s claims and those raised by each buyer.
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Ontario’s Court of Appeal in Glen Schnarr & Associates Inc. v. Vector (Georgetown) Limited, 2019 ONCA 1012 asserted jurisdiction to decide a claim’s viability rather than defer the decision to an arbitrator as mandated by section 7(1) of the Arbitration Act, 1991, SO 1991, c 17 and Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34 (CanLII), [2007] 2 SCR 801. A court may pre-empt an arbitrator’s competence-competence to determine jurisdiction if it can decide that an applicable limitation period has expired. This approach is presented as a second exception, independent to the “superficial consideration of the documentary evidence in the record” for questions of law or mixed fact and law. The approach addresses viability of claims and not the interplay of the arbitration agreement and the dispute.
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In his January 24, 2020 reasons Paul Sun v. Duc-Tho Ma, 2020 ONSC 505, Mr. Justice Calum MacLeod accommodated a litigant whose ability to attend in court in Ontario was constrained by now-familiar government measures to control the coronavirus. Those measures impacted travel and communication for the litigant located in China, obliging the litigant to participate by conference call to finalize the terms of a November 2019 trial decision. Despite flexibility in accommodating for the coronavirus, Macleod J. declined to engage further in requests made for intervention. He emphasized the “very narrow” scope of his intervention due to an earlier Superior Court determination that other disputes between the parties were subject to exclusive resolution by arbitration in Taipei.
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In P and A Holdings Inc. v. Kim, 2020 ONSC 546, Mr. Justice Paul R. Sweeny dismissed Defendant’s attempt to pause the litigation pending arbitration and, instead, granted summary judgment in Plaintiff’s favour. Sweeny J. acknowledged that the promissory note, on which the court litigation was based, had been mentioned in a unanimous shareholders agreement which was subject to arbitration. Despite that mention, (i) failure to pay on the note was not addressed as an obligation between the shareholders and (ii) the shareholders agreement provided no mechanism for recovery on the note.
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In Paulpillai v. Yusuf, 2020 ONSC 851, Madam Justice Judy A. Fowler Byrne refused to stay litigation despite no challenge being made to the validity of the arbitration agreement. Rather, she held that the parties requesting the stay had not only omitted to bring a motion to stay but had waived the benefit of the agreement by having taken significant steps in the litigation to date.
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