Tag: Ontario

In 547131 Ontario Limited v. MPI Torgan, 2020 ONSC 3186, Madam Justice Carole J. Brown disagreed that terms submitted by the arbitrator and signed by the parties overwrote the parties’ initial agreement in their main contract regarding appeals of any arbitral award.  The arbitrator’s terms covered conflicts, compensation, the services of an arbitral secretary, cancellation policy, confidentiality, immunity and administration issues. Brown J. identified no indicia that the arbitrator’s terms altered the initial agreement that the award would be “final and binding” and not subject to appeal, even on a question of law with leave of the court.

Continue reading “Ontario – parties’ signature of arbitrator’s terms does not overwrite appeal process in original agreement – #331”

In Lokhandwala v. Khan et. al., 2020 ONSC 3209, Mr. Justice William M. LeMay determined that an offer received for a property qualified as “reasonable” according to a consent order agreed to by the parties in an earlier hearing.  That consent order also included an agreement to arbitrate, if need be, the choice of real estate agent to list the property.  LeMay J.’s reasons illustrate the care needed by parties to disputes when drafting terms to resolve their disputes so that today’s resolution does not inadvertently sow seeds for future, new disputes.  The reasons also include helpful references to case law on judicial notice and the pandemic.

Continue reading “Ontario – consent order prompts agreement to arbitrate to complete it and fresh litigation over vague term – #326”

In Rayman Tiger Inc. v. Unger Tiger Inc., 2020 ONSC 691, Master Michael P. McGraw ordered that an arbitral party, applying for the appointment of an arbitrator, file security for costs related to its application.  Having insufficient assets in Ontario or any reciprocating jurisdiction, the party had to post security in order to engage the court’s assistance for its arbitration.  In ordering $15,000.00 rather than the $37,714.01 sought by respondents, Master McGraw distinguished the complexity of issues and facts of the eventual arbitration from those raised by the narrower application to appoint an arbitrator.

Continue reading “Ontario – applicant seeking court appointment of arbitrator ordered to pay security for costs – #323”

In Wawanesa Mutual Insurance Company v. Renwick, 2020 ONSC 2226, Ontario’s Divisional Court determined that inadequate reasons fell short of their “very important purpose”, namely that “they justify and explain the result so that the losing party knows why they have lost and interested members of the public can satisfy themselves that justice has been done”.  The Court prioritized that purpose, listing it ahead of the more oft-cited purpose of allowing for meaningful review by a court.  Though not all parties prevail in their dispute resolution, they are entitled to know that their evidence and arguments were considered and why they did not prevail. As the Divisional Court added, “[h]owever, this does not mean that the decision maker must refer to every bit of evidence or argument before him. To be adequate, reasons do not have to be long or perfect”.

Continue reading “Ontario – adequate reasons serve to justify/explain result so losing party knows why it lost – #320”

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”

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”

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”.

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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”

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”

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”