In Ontario (Finance) v. Echelon General Insurance Company, 2019 ONCA 629, the Ontario Court of Appeal held that, even when applying a standard of reasonableness, there are occasions in which there is only a single reasonable answer. The Court also considered the role of accumulated decisions issuing by arbitrators under a statutory process in which the decisions are either published or not confidential and whether those decisions bound other parties in later arbitrations.
Continue reading “Ontario – sometimes only a single reasonable answer exists under reasonableness standard – #256”Ontario – court declines to defer costs determination but orders information sent to non-party/arbitrator in related arbitration – #255
In her post-trial costs decision in G.E.X.R. v. Shantz Station and Parrish & Heimbecker, 2019 ONSC 5192, Madam Justice Catrina D. Braid declined to defer determination of court costs in litigation involving GEXR and P&H until a related, ongoing arbitration between GEXR and CN was complete. Ostensibly to pre-empt any potential for double recovery of costs once the arbitration concluded and determined its costs, she also directed that P&H’s cost submissions filed in the court litigation and her reasons on costs be given (i) to CN which was not a party to the court litigation and (ii) to the arbitrator.
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In Eggiman v. Martin, 2019 ONCA 974, Ontario’s Court of Appeal dismissed an attempt to appeal a motion judge’s decision refusing to stay an action under section 7(1) of Ontario’s Arbitration Act, 1991, SO 1991, c 17. The Court held that section 7(6) was “very clear” that there was no appeal from an order under section 7(1), whether that order grants or refuses the stay, if the arbitration agreement applies to the issue raised in the proceeding. The Court paused to mention that it was not to be seen as agreeing with the analysis engaged in by the motions judge. For the earlier Arbitration Matters note on the decision in first instance, Eggiman v. Martin, 2019 ONSC 1388, see “arbitrator appointment procedure in franchise agreement risks “absurd and likely unfair result””.
Continue reading “Ontario – “very clear” that Court of Appeal lacks jurisdiction to hear appeal of order granting/refusing stay – #252”Ontario – costs of arbitration not recoverable as damages in litigation over breach of settlement arrived at during arbitration – #247
In Arista Homes (Kleinburg) Inc. v. Sarah Igbinedion, 2019 ONSC 7086, Madam Justice Margaret Eberhard held that the costs of an earlier arbitration could not be recovered in subsequent litigation involving breach of a settlement negotiated during that arbitration. Eberhard J. held that such costs had been spoken to by the parties in their settlement and were also not within the discretion of the court to award as costs of the court proceeding alleging breach of the settlement.
Continue reading “Ontario – costs of arbitration not recoverable as damages in litigation over breach of settlement arrived at during arbitration – #247”Ontario – tests for adequacy of reasons and for remitting awards considered and applied – #245
Mr. Justice David L. Edwards in Wang v. Takhar, 2019 ONSC 5535 determined that an agreement to arbitrate, contained in a more recent contract, applied to the parties’ relationship established prior to that contract and did not eliminate appeals on questions of law. The challenged award lacked adequate reasons on only a single issue and, applying the principles for remitting awards, Edwards J. remitted the issue back to the arbitrator with specific questions as well as authority to re-open the evidence if need be.
In his follow up decision on costs in Wang v. Takhar, 2019 ONSC 6237, and after having considered the parties’ submissions, Edwards J. ordered no costs. Appellant was successful but only on a single issue narrower than the appeal framed initially and Respondent was successful in having the issue remitted back to the arbitrator.
Continue reading “Ontario – tests for adequacy of reasons and for remitting awards considered and applied – #245”Ontario – confidentiality of arbitration raised as shield to disclosing information relevant to litigation – #238
In Vanalt Electrical Construction, Inc. v. Ozz Electric Inc., 2019 ONSC 5893, Defendant alleged that confidentiality of an arbitration involving it and others prevented it from providing Plaintiff with information/documents relevant and probative to quantifying a key claim it made against Plaintiff. Instead of forcing an issue on the confidentiality, Master Michael Philip McGraw ordered Defendant to re-attend a final time for discovery at which time it could satisfy Plaintiff’s entitlement to clarity and evidence.
Continue reading “Ontario – confidentiality of arbitration raised as shield to disclosing information relevant to litigation – #238”Ontario – entity invoking arbitration agreement must first demonstrate representative’s authority to act – #236
Before addressing the merits of a challenge to the court’s jurisdiction, Madam Justice Bernadette Dietrich in Jamrock Broadcasting Corporation v. The Estate of Fitzroy Gordon, 2019 ONSC 5732 had to first make a preliminary determination regarding a representative’s purported authority to bind the corporation which made the challenge. Despite a series of gaps in governance and non-compliance with applicable corporate law and shareholder agreements, Dietrich J. did find that the representative had de facto authority and could hire counsel and instruct on the corporation’s objection to jurisdiction based on an arbitration agreement.
Continue reading “Ontario – entity invoking arbitration agreement must first demonstrate representative’s authority to act – #236”Ontario – amendment to pleading in court cannot include claim subject to arbitration – #234
In Paul Sun v. Duc-Tho Ma, 2019 ONSC 4586, Master Alexandre Kaufman denied leave to amend Defendant’s counterclaim because, inter alia, the proposed claim was subject to arbitration. Despite mandatory wording in the applicable Rules of Civil Procedure, RRO 1990, Reg 194 that a court shall grant leave to amend at any stage of an action, Master Kaufman held that a claim subject to arbitration effectively did not meet ‘a basic threshold of legal soundness’ and was ‘not tenable in law’.
Continue reading “Ontario – amendment to pleading in court cannot include claim subject to arbitration – #234”Ontario – court revives litigation dismissed on consent when parties do not proceed with arbitration – #231
In Mishukov v. Fatoullaeva, 2019 ONSC 5550, Mr. Justice Grant R. Dow revived litigation which had been dismissed on consent by a court order in favour of arbitration. Despite having agreed to submit to arbitration, the parties never completed the arbitration in the agreed upon time frame and Defendants claimed that the arbitration could no longer proceed, Applying equitable estoppel, Dow J. determinined that a party which chooses to treat its agreement as subsisting cannot later claim non-performance. Dow J. held that a consent order dismissing an action was not a judicial determination of the dispute but only elevated the parties’ consent.
Continue reading “Ontario – court revives litigation dismissed on consent when parties do not proceed with arbitration – #231”Ontario – court adopts baseball arbitration to resolve disputes in document discovery plan – #230
In Sullivan v. Northwood Media Inc., 2019 ONSC 9, Master Donald E. Short provided litigants with a novel approach to resolving disputes over discovery plans, a procedural step imposed by Ontario’s Rules of Civil Procedure, RRO 1990, Reg 194. Expressly adopting the approach of “baseball style” arbitration, Master Short required that the litigants complete their discussions in light of detailed observations he provided in his reasons and, failing agreement, return to court with their respective proposals as to the most practical and reasonable approach. Absent the most unusual circumstances, the court would not “split the difference” but choose one of the competing alternatives.
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