In G.E.X.R. v. Shantz Station and Parrish & Heimbecker, 2019 ONSC 1914, Madam Justice Catrina D. Braid declined to give evidentiary weight in her court to an arbitral award to which one of the litigants before her was not a party. While open to giving arbitral awards some weight in certain circumstances, the plaintiff’s absence from the arbitration was sufficient to disregard the award. Braid J. also commented on whether an adverse inference should be drawn if neither party called a key witness from the arbitral proceedings.
Continue reading “Ontario – arbitral award given no weight in court when litigant not party to the arbitration – #200”Ontario – new disputes either beyond or no longer subject to abandoned submission agreement – #198
In 1230455 Ontario Ltd. v. 150 Katimavik Inc., 2019 ONSC 2481, Madam Justice Michelle O’Bonswain declined to order the parties to arbitration due to the scope of the submission to agreement and its abandonment. O’Bonswain J. held that (i) one part of their new dispute did not fall within their initial submission to arbitration and (ii) the other part of their dispute did fall within the agreement but the parties had abandoned arbitration.
Continue reading “Ontario – new disputes either beyond or no longer subject to abandoned submission agreement – #198”Ontario – unsuccessful attempt by new counsel to enjoin further arbitration after partial award – #196
In Lobanova v. Grynyshyn, 2019 ONSC 3064, Mr. Justice Frederick L. Myers dismissed an attempt by new counsel to enjoin the arbitrator from completing the arbitration and deciding isolated monetary issues intentionally left unresolved by an earlier, partial award. Myers J. stated that access to the courts is not a “do-over” once the arbitral “main event” concludes. Despite appointing new counsel, a change in strategy and new arguments cannot excuse positions taken earlier in the arbitration or contradict evidence already adduced. Myers J. discouraged challenges to discretionary procedural orders, especially fully reasoned ones, including challenges which prevent the court from having a full case if and when an appeal was authorized.
Continue reading “Ontario – unsuccessful attempt by new counsel to enjoin further arbitration after partial award – #196”Ontario – overlapping cost applications result in denial of most of costs claimed – #191
In Iqbal v. Mansoor, 2019 ONCA 110, Ontario’s Court of Appeal declined to hear an appeal of a costs order, holding that appellant had refused to seek the required leave to appeal such an order. Regarding the substance of appellant’s claim, the Court observed how the Superior Court had already dealt with costs in an earlier order. The various reasons in the sequence of decisions identify opportunities for arbitral parties to either reserve or clarify the issue of costs incurred up to each phase of their dispute resolution.
Continue reading “Ontario – overlapping cost applications result in denial of most of costs claimed – #191”Supreme Court – cumbersome task of sorting of consumer/non-consumer claimants does not authorize courts to re-cast arbitral legislation – #185
Canada’s Supreme Court in TELUS Communications Inc. v. Wellman, 2019 SCC 19 held that section 7(5) of Ontario’s Arbitration Act, 1991, SO 1991, c 17 does not give courts discretion to refuse to stay claims dealt with by an otherwise valid arbitration agreement. Though Ontario’s Consumer Protection Act, 2002, SO 2002, c 30, Sch A invalidates arbitration agreements to the extent they prevent consumers from pursuing claims in court, that policy choice does not extend to non-consumers who remain bound by their agreements to arbitrate. Courts are to interpret legislation and not re-write it.
Continue reading “Supreme Court – cumbersome task of sorting of consumer/non-consumer claimants does not authorize courts to re-cast arbitral legislation – #185”Ontario – once court finds arbitrator acted within jurisdiction, it cannot consider merits in exercise of that jurisdiction – #184
Ontario’s Court of Appeal held in Alectra Utilities Corporation v. Solar Power Network Inc., 2019 ONCA 254 that, under section 46(1)3 of the Arbitration Act, 1991, SO 1991, c 17, once a court satisfies itself that an arbitrator had jurisdiction to resolve a particular dispute, absent a right of appeal, the court has no authority to delve into the merits of the award and review its for reasonableness. The Court held that a jurisdictional question must be answered correctly but “neither requires nor authorizes review of the substance of an arbitrator’s award”.
Continue reading “Ontario – once court finds arbitrator acted within jurisdiction, it cannot consider merits in exercise of that jurisdiction – #184”Ontario – unpaid expert and arbitrator denied status as creditors of court order omitting their mention as beneficiaries – #182
In Miracle v. Maracle, 2019 ONCA 238, the Ontario Court of Appeal upheld the unreported September 10, 2018 decision by Mr. Justice Patrick Hurley denying an unpaid expert and unpaid arbitrator leave to be added as parties to post-arbitration litigation. In doing so, Hurley J. left open the possibility that the result could have been different had an earlier court order, recognizing and enforcing the arbitration award, mentioned personally the expert and arbitrator as beneficiaries of the orders for payment of arbitration costs incurred by the prevailing arbitral party. Hurley J.’s comments also serve to guide arbitration counsel in drafting dispositive sections for recognition and enforcement applications.
Continue reading “Ontario – unpaid expert and arbitrator denied status as creditors of court order omitting their mention as beneficiaries – #182”Ontario – stay application dismissed without prejudice to re-apply after pleadings close – #180
Having relieved Defendant from a partial default judgment, Mr. Justice Andrew A. Sanfilippo in Natural Energy Systems Inc. v. Hallett, 2019 ONSC 1372 dismissed Defendant’s application for a stay but without substantive determination and without prejudice to Defendant’s opportunity to re-apply after the close of pleadings. In doing so, Sanfilippo J. implicitly authorized Defendant to take further steps in the litigation without any deemed waiver of right to invoke arbitration agreement at a later date and to do so even if the arbitration agreement covered only half of the claims made in the court litigation.
Continue reading “Ontario – stay application dismissed without prejudice to re-apply after pleadings close – #180”Ontario – arbitrator appointment procedure in franchise agreement risks “absurd and likely unfair result” – #178
In Eggiman v. Martin, 2019 ONSC 1388, Mr. Justice Wolfram Tausendfreund exercised his discretion to refuse a partial stay because the claims subject to arbitration were based on closely related facts and issues in dispute and a partial stay would likely bifurcate the claims, leading to a multiplicity of proceedings. In addition, Tausendfreund J. considered that the right of a franchisor to appoint the arbitrator for a dispute between franchisee and sub-franchisees would lead to “the absurd and likely unfair result of allowing [that party] to either appoint the arbitrator or effect control and/or direct the arbitration of this dispute”.
Continue reading “Ontario – arbitrator appointment procedure in franchise agreement risks “absurd and likely unfair result” – #178”Ontario – court passes on stay because hockey contract’s arbitration agreement not in play – #175
Presented with disputes stemming from the same, key fact, Mr. Justice James A. Ramsay in Niagara Ice Dogs Hockey Club Inc. v. Ontario Major Junior Hockey League, 2019 ONSC 1713 refused to enjoin a hockey league from holding a disciplinary hearing for a hockey club in favour of that same club’s arbitration with one of its players. In doing so, Ramsay J. demonstrated that the same fact can trigger separate sets of rights and obligations between the club, the player and the league as well lead to different dispute resolution processes.
Continue reading “Ontario – court passes on stay because hockey contract’s arbitration agreement not in play – #175”