In Sokolov v. The World Anti-Doping Agency, 2020 ONSC 704, Mr. Justice Mario D. Faieta granted summary judgment on a jurisdictional issue, dismissing a tort claim made by athletes denied entry to the 2016 Olympic Games in Rio. Faieta J. held that the athletes sought to litigate the same factual matrix which they had unsuccessfully arbitrated before the Court of Arbitration for Sport and that the “essential character” of the dispute was within the scope of the arbitration agreements. Though he considered the arbitration agreements to be more like arbitration imposed by statute or adhesion contracts, he expressly considered the impact on international sports if he signalled a willingness of domestic courts to resolve matters otherwise reserved for more specialized tribunals.
Continue reading “Ontario – Olympic athletes cannot relitigate sports arbitration dispute as tort action – #280”Ontario – agreement to arbitrate disputes involving “construction, meaning or effect” does not cover “enforcement” – #278
In Illumina Holdings Inc. v. Brand Alliance Inc. et al, 2020 ONSC 1053, Mr. Justice Cory A. Gilmore gave effect to an agreement to arbitrate disputes involving “construction, meaning or effect” of an agreement and refused to stay litigation based on enforcement of the agreement. Gilmore J. held that the claims involved “a straightforward contract case” and that breach of an enforceable agreement was not the same as the meaning of that agreement. Demonstrating the courts’ own readiness and flexibility to provide resolution of disputes, Gilmore J. then went on to determine that the disputes did not warrant a trial and issued orders on the merits of the claims made.
Continue reading “Ontario – agreement to arbitrate disputes involving “construction, meaning or effect” does not cover “enforcement” – #278″Ontario – majority shareholder referring contract interpretation to arbitration is not oppressive conduct – #275
In Richcraft Homes Ltd. v. Urbandale Corporation et al., 2020 ONSC 411, Mr. Justice Robert J. Smith dismissed a minority shareholder’s action which alleged oppression based on a majority shareholder requesting a legal opinion favourable to its interests and then submitting the interpretation to arbitration. Smith J. held that any party to a commercial agreement, including a majority shareholder, is entitled to seek a legal opinion concerning interpretation its rights under a contract and, instead of acting illicitly on any interpretation, refer interpretation of the contract to arbitration.
Continue reading “Ontario – majority shareholder referring contract interpretation to arbitration is not oppressive conduct – #275”Ontario – reliance on theories not pleaded/argued are errors and have ripple effects throughout award – #274
In Tall Ships Landing Devt. Inc. v. City of Brockville, 2019 ONSC 6597, Madam Justice Sally Gomery held that deference for arbitrators and discretion over procedural matters do not displace the imperatives of fairness and reliability which underpin arbitration. Despite a standard of reasonableness applicable to commercial arbitration awards, reliance on a legal theory not advanced or argued by the parties is an error of law and leads to conclusions outside the arbitrator’s mandate. Errors early in the award undermined later, otherwise reasonable determinations made in the same award but which rested on those earlier determinations. Rather than vary, set aside or remit the awards with directions, Gomery J. solicited submissions to determine the appropriate remedy at a future hearing.
Continue reading “Ontario – reliance on theories not pleaded/argued are errors and have ripple effects throughout award – #274”Ontario – court revisits/reverses prior decision which allowed new evidence on post-award jurisdictional challenge – #272
In The Russia Federation v. Luxtona Limited, 2019 ONSC 7558, Mr. Justice Michael A. Penny held that a party to a challenge of an arbitral tribunal’s jurisdiction under articles 16 and 34 of the UNCITRAL Model Law on International Arbitration may not file fresh evidence as of right. A party must obtain leave to do so by providing a “reasonable explanation” for why new evidence is necessary, including why that evidence was not, or could not have been, put before the tribunal in the first place. Abiding by the Mexico v. Cargill, Incorporated, 2011 ONCA 622 approach restricting courts to a “review” and not a trial de novo, Penny J. held that competence-competence was best served by requiring parties to put their “best foot forward” before the arbitral tribunal and not re-try the jurisdictional issue with additional evidence informed by hindsight.
Continue reading “Ontario – court revisits/reverses prior decision which allowed new evidence on post-award jurisdictional challenge – #272”Ontario – facts determine jurisdiction and not the characterization of those facts – #270
In Stegenga v. Economical Mutual Insurance Company, 2019 ONCA 615, the Ontario Court of Appeal held that the nature and subject matter of a dispute, assessed on the facts giving rise to it, determine jurisdiction. The legal characterization of a cause of action does not determine whether a claim falls within the jurisdiction of the court or an alternative dispute process created by legislation. Though an insured raised an independent cause of action of alleged bad faith in the handling of statutory benefits and sought remedies which the statutory tribunal could not grant, litigation was barred. The legislation used broad phrase of “in respect of” to link “dispute” and “entitlement” and captured the facts alleged.
Continue reading “Ontario – facts determine jurisdiction and not the characterization of those facts – #270”Ontario – non-parties seek injunction to stop private arbitration from proceeding – #269
In City of Toronto v. Resource Productivity & Recovery Authority, 2020 ONSC 599, Madam Justice Katherine E. Swinton dismissed an attempt by non-parties to enjoin a private arbitration from proceeding. Though one of the arbitral parties exercised duties under Ontario legislation, the dispute stemmed from a bilateral agreement and involved no exercise of statutory power of decision subject to judicial review. Swinton J. observed that the non-parties argued the arbitrator lacked authority but neither of the arbitral parties challenged the arbitrator’s jurisdiction.
Continue reading “Ontario – non-parties seek injunction to stop private arbitration from proceeding – #269”Ontario – “sophisticated corporate consumer” expected to review external undertaking to arbitrate – #268
In Hydro Hawkesbury v. ABB Inc., 2020 ONCA 53, the Ontario Court of Appeal enforced an undertaking to arbitrate despite the undertaking being contained in terms which had not been specifically brought to the resisting party’s attention or provided in materials exchanged. Those terms were readily available and specifically referred to in documents creating the contractual relationship and a “fairly sophisticated corporate consumer” doing business with a foreign supplier in international markets would reasonably be expected to expect and to review the terms. Also, in first instance, the applications judge also accepted that the application to stay was timely despite being filed well after the defence.
Continue reading “Ontario – “sophisticated corporate consumer” expected to review external undertaking to arbitrate – #268”Ontario – consumer contract arbitration clauses resist unconscionability/undue influence challenges – #266
Master Karen E. Jolley in Evans v. Mattamy Homes Limited, 2019 ONSC 3883 and Master Robert A. Muir in Wang v. Mattamy Corporation, 2019 ONSC 6675 each dismissed Plaintiffs’ attempts to resist application of an arbitration agreement based on arguments that the agreements were invalid due to unconscionability and undue influence. Both concluded that Plaintiffs failed to demonstrate any of the elements required to invalidate the agreements. Any alleged pressure was market driven, due more to Plaintiffs vying to purchase a property from a finite number being sold by Defendant and subject to ongoing sales efforts to other prospective purchasers.
Continue reading “Ontario – consumer contract arbitration clauses resist unconscionability/undue influence challenges – #266”Ontario – decision maker’s position in judicial hierarchy justifies no reason for different review standard – #262
In ATS Automation Tooling Systems Inc. v. Chubb Insurance Co., 2019 ONSC 5073, Madam Justice Sandra Nishikawa upheld a Master’s decision to dismiss plaintiffs’ motion to stay their own litigation. The facts did not confirm that the arbitration was active and, as of the date of the appeal hearing, arbitration had not been formalized and the limitation period in which to do so had expired. Nishikawa J. agreed with earlier case law there was “no compelling reason for adopting differing standards of review on appeal depending solely on the place in the judicial hierarchy occupied by the decision maker whose decision is under appeal”.
Continue reading “Ontario – decision maker’s position in judicial hierarchy justifies no reason for different review standard – #262”