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”Ontario – sometimes only a single reasonable answer exists under reasonableness standard – #256
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.
Continue reading “Ontario – court declines to defer costs determination but orders information sent to non-party/arbitrator in related arbitration – #255”Ontario – “very clear” that Court of Appeal lacks jurisdiction to hear appeal of order granting/refusing stay – #252
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”