Tag: Ontario

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”

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”

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”

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”

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”

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”

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”

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”

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”

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”