In Tianjin v. Xu, 2019 ONSC 628, Mr. Justice Laurence A. Pattillo dismissed objections to recognition and enforcement based on allegations that respondent did not receive notice and that arbitration did not qualify as “international”. In doing so, Pattillo J. determined that using the form of notice adopted by the arbitral institution administering the arbitration satisfied the “proper notice” requirement. To determine what constitutes “proper notice”, he also referred to and adopted as “a reasonable standard” the standard developed by U.S. authorities listed at para. 31 of his reasons. Pattillo J. also determined that respondent’s domicile at the time she entered into the arbitration agreement qualified the arbitration as international.
Continue reading “Ontario – notice requirement satisfied where form of notice reasonably calculated to inform of arbitral proceedings and opportunity to respond – #173”Ontario – clause omitting express referral to arbitration still valid enough to stay litigation – #172
Despite less-than clear drafting, the parties’ agreement to have their disputes “settled in accordance with” identified institutional rules was sufficient to remove the court’s jurisdiction in Belnor Engineering Inc. v. Strobic Air Corporation et al., 2019 ONSC 664. Mr. Justice Lorne Sossin also dismissed arguments that the arbitration agreement was invalid because it was unconscionable, noting that (i) no argument was made that applying the institutional rules was unconscionable and (ii) no inequality of bargaining power or practical inaccessibility of arbitration existed to create an unfairness if the action was stayed in favour of arbitration.
Continue reading “Ontario – clause omitting express referral to arbitration still valid enough to stay litigation – #172”[:en]Ontario – claimant unable to arbitrate its dispute unless consolidated with non-existent arbitration – #164[:]
[:en]In Federal Electric (1976) Limited v. McDonald Brothers Construction, 2019 ONSC 496, Madam Justice Michelle O’Bonsawin refused to refer A and B to arbitration because their agreement provided that any of their disputes also relating to a dispute between B and C shall be arbitrated “at the same time in the same proceedings and by the same Arbitration Board as is appointed to resolve the dispute between” B and C. The contract between B and C had no agreement to arbitrate. O’Bonsawin J. also lists and applies the principles applicable to determining whether “best efforts” were made by B to advance its claim against C. Continue reading “[:en]Ontario – claimant unable to arbitrate its dispute unless consolidated with non-existent arbitration – #164[:]”
[:en]Ontario – “final and binding” means “final and binding” – #163[:]
[:en]In 108 Media Corporation v. BGOI Films Inc., 2019 ONSC 880, Mr. Justice Mario D. Faieta applied the “ordinary and grammatical meaning” of the expression “final and binding” to refuse leave to appeal, adding that a party’s subjective view of that expression is irrelevant to interpreting it. Faieta J. further held that where the appeal would only give the parties “a new forum in which to continue their private litigation” without a potential application of the ruling to others, the court will not characterize their dispute as a question of law. Continue reading “[:en]Ontario – “final and binding” means “final and binding” – #163[:]”
[:en]Ontario – overlap of facts insufficient to justify consolidation without consent of all parties – #161[:]
[:en]In Loan Away Inc. v. Western Live Assurance Company, 2019 ONSC 657, Madam Justice Harriet E. Sachs issued a costs order stemming from her earlier decision in Loan Away Inc. v. Western Life Assurance Company, 2018 ONSC 7229 in which she stayed plaintiff’s litigation in favour of arbitration and refused to consolidate that arbitration with an ongoing one between defendant and a third party. Despite respondents’ claims for costs on a substantial indemnity, Sachs J. ordered costs on a less-than partial indemnity basis. She observed that the motions were important and of “more than average complexity” but required modest written materials and evidence and less than a day to argue. Continue reading “[:en]Ontario – overlap of facts insufficient to justify consolidation without consent of all parties – #161[:]”
[:en]Ontario – standard of correctness applies to arbitrator’s decision on solicitor-client privilege – #155[:]
[:en]In Saskatchewan v. Cricket, 2019 ONSC 18, Mr. Justice Peter Bawden considered challenges to evidentiary decisions taken by the arbitrator regarding solicitor-client privilege, hearsay and the impact of a prior but quashed arbitral award between the same parties. In dismissing each challenge, Bawden J. provided helpful albeit brief guidance on how to deal with similar post-award challenges. Continue reading “[:en]Ontario – standard of correctness applies to arbitrator’s decision on solicitor-client privilege – #155[:]”
[:en]Ontario – jurisdiction challenge must be raised early as preliminary objection, not as defence at merits stage – #154[:]
[:en]In FCA Canada Inc. v. Reid-Lamontagne, 2019 ONSC 364, Madam Justice Nancy J. Spies refused an application to set aside a final award challenged on the basis of an excess of jurisdiction, holding that the applicant had failed to raise the objection in a timely fashion. Though the applicant argued that it had raised the objection, Spies J. determined that it had done so as a substantive defence later on at the merits stage and not as a preliminary objection earlier on in the process. Continue reading “[:en]Ontario – jurisdiction challenge must be raised early as preliminary objection, not as defence at merits stage – #154[:]”
[:en]Ontario – court rejects re-using arbitral awards against non-parties despite litigants’ flexibility – #153[:]
[:en]In Restoule v. Canada (Attorney General), 2018 ONSC 7701, Madam Justice Patricia C. Hennessy dismissed an attempt to re-use arbitral awards as evidence against litigants who were not parties to the related arbitrations. Despite a collaborative, flexible approach by the litigants to presenting sprawling, complex facts necessitating the use of extensive primary and secondary documentary sources as well as expert and community leaders testimony providing historical context, Hennessy J. drew limits to that collaborative flexibility and underscored the limited role arbitral awards play beyond the parties who, by contract, agreed to submit to and be bound by arbitration. Continue reading “[:en]Ontario – court rejects re-using arbitral awards against non-parties despite litigants’ flexibility – #153[:]”
[:en]Ontario – leave to appeal on question of law waived when both parties fully argue issues in court – #149[:]
[:en]In O’Connell v. Awada, 2019 ONSC 273, Mr. Justice Stanley Kershman allowed Appellant to present his appeal on two (2) questions of law even though he had not sought or obtained leave to do so. Kershman J. held that, because both parties fully pleaded the issues regarding the questions of law, he waived the requirement for leave despite Respondent’s objections. Kershman J. also provided comment on the extent to which arbitrators ought to comment on evidence and demonstrate that they have heard the evidence. Continue reading “[:en]Ontario – leave to appeal on question of law waived when both parties fully argue issues in court – #149[:]”
[:en]Ontario – determination of exceptions to mandatory stay are for court to make and not arbitrator – #148[:]
[:en]Ontario’s Court of Appeal in Heller v. Uber Technologies Inc., 2019 ONCA 1 determined that the arbitration agreements contained in service agreements between drivers and Uber qualified as illegal contracting out of Ontario’s Employment Standards Act, 2000, SO 2000, c 41 (“ESA”), and that the arbitration agreements were unconscionable and invalid. In doing so, the Court provided new guidance for drafting arbitration clauses applicable to non-employment contracts and to their enforceability. Continue reading “[:en]Ontario – determination of exceptions to mandatory stay are for court to make and not arbitrator – #148[:]”