To address a scheduling issue in court, Mr. Justice Marvin Kurz in Haaksma v. Taylor, 2020 ONSC 2656 relied on rules of professional conduct which expressly stipulate that a lawyer’s duty of candour in ex parte proceedings applies not just to courts but also to arbitrators, mediators and others who resolve disputes, regardless of their function or the informality of their procedures. Kurz J. emphasized that an exchange can qualify as ex parte even if the other party is aware of the exchange but, due to circumstances, cannot adequately respond or make submissions due, for example, to insufficient notice. The duty of candour requires lawyers to take particular care to be accurate, candid and comprehensive in presenting a client’s case so as to ensure that the decision-maker is not misled.
Continue reading “Ontario – lawyer’s duty of candour not limited to appearances in court, extends also to arbitration – #314”Ontario – agreement to either litigate or arbitrate in another country justifies stay – #312
In Best Theratronics Ltd. v. The ICICI Bank of Canada, 2020 ONSC 2246, Mr. Justice Robert Riopelle stayed litigation in favour of the parties’ agreement to litigate or arbitrate in South Korea but refrained from determining the role or mandatory nature of the agreement to arbitrate. Riopelle J. determined only that the courts of Ontario had no jurisdiction and omitted commenting on the primacy of litigation or arbitration in the parties’ agreement. By his omission, he deferred those issues for the parties to argue, if need be, at a later date before the courts in South Korea.
Continue reading “Ontario – agreement to either litigate or arbitrate in another country justifies stay – #312”Ontario – fundamental differences between party-appointed arbitrator and court-appointed referee – #311
Despite their “superficial similarities”, Mr. Justice Ian F. Leach in Belanger v. Harwood et al., 2020 ONSC 1883 identified fundamental differences between an arbitrator and a referee. An arbitrator, appointed by parties, engages in “an autonomous, self-contained and self-sufficient process, presumptively immune from judicial intervention … operating outside the court system” whereas a referee, appointed by the court, works “within the court system, and presumptively subject to the court’s supervision, control and substantive disagreement”. Leach J. also determined that the parties had clearly subjected any third party decision making to a condition precedent which had not yet been realized and the undertaking to engage in that process was “neither binding nor enforceable”.
Continue reading “Ontario – fundamental differences between party-appointed arbitrator and court-appointed referee – #311”Ontario – insurer’s duty to defend in arbitration includes right to select/add new counsel and control defence – #308
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.
Continue reading “Ontario – insurer’s duty to defend in arbitration includes right to select/add new counsel and control defence – #308”Ontario – Zoom technology for court hearing to accommodate 500 members of the public – #306
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.
Continue reading “Ontario – Zoom technology for court hearing to accommodate 500 members of the public – #306”Ontario – Vavilov does not overrule Teal Cedar or Sattva Capital – #302
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.
Continue reading “Ontario – summary judgment enforces settlement issuing from arbitration – #299”Ontario – Vavilov standard applies to statutory insurance arbitration but not private commercial arbitration – #298
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.
Continue reading “Ontario – litigation stayed to permit arbitrator to determine jurisdiction and issues subject to arbitration – #295”Ontario – expired limitation period pre-empts need to decide stay application – #291
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.
Continue reading “Ontario – expired limitation period pre-empts need to decide stay application – #291”