In Rubner v. Rubner, 2019 ONSC 4110, Mr. Justice Laurence A. Pattillo dismissed party M’s application to appoint an arbitrator, determining that the evidence failed to demonstrate that party M and party J had entered into a binding settlement agreement. Consistent with that determination, he also granted party J’s application to set aside party M’s notice to arbitrate because, in the absence of a settlement, there was no agreement to arbitrate. The case is a less common instance of a court determining on “a superficial examination of the evidence” that the principal contract was non-existent and, with it, the agreement to arbitrate.
Continue reading “Ontario – no binding settlement agreement means no binding agreement to arbitrate settlement dispute – #228”Ontario – summary judgment motion opportunity for arbitrator to determine issues in favour of respondent – #227
In Canada Bread v. Mallot Creek, 2019 ONSC 2578, Madam Justice Bernadette Dietrich upheld an arbitrator’s decision to dismiss one party’s motion for summary judgment but then also make a final determination of a key issue in favour of the other party. Dietrich J. determined that, if the sufficiency of the record permits the arbitrator to decide the motion, it is “axiomatic” that the arbitrator resolve the issue raised by the motion in favour of either party. The parties selected the mediator to serve as arbitrator for their settlement agreement should a dispute arise in the interpretation of the settlement.
Continue reading “Ontario – summary judgment motion opportunity for arbitrator to determine issues in favour of respondent – #227”Ontario – non-parties to arbitration agree arbitrator’s findings of facts binding for facts common to their litigation – #223
In Sky Solar (Canada) Ltd. v. Economical Mutual Insurance Company, 2019 ONSC 4165, Mr. Justice Peter J. Cavanagh issued detailed trial reasons relying on key findings of fact made in arbitration involving only plaintiff. Defendants in the court litigation – an insurer of respondent in the arbitration and respondent’s insurance broker – agreed with plaintiff that those facts were binding and would not be relitigated. Plaintiff had been unsuccessful in the arbitration but still agreed to re-purpose those findings for use by Cavanagh J. in determining liability against the non-parties. The agreement demonstrates that non-parties – and unsuccessful arbitral parties – need not expect different findings if the same evidence is presented to a new decision maker.
Continue reading “Ontario – non-parties to arbitration agree arbitrator’s findings of facts binding for facts common to their litigation – #223”Ontario – “agree to be bound” less effective than “final and binding” in excluding appeal – #218
In Diorite Securities v. Trevali, 2019 ONSC 4225, Mr. Justice Laurence A. Pattillo held that determining whether parties intended to exclude a right of appeal required analysis of both the actual wording in their agreement and the circumstances surrounding its negotiation. The application for leave to appeal involved an agreement entered into before Ontario’s Arbitration Act, 1991, SO 1991, c 17, a time at which no appeal was provided on even questions of law. The 1990 agreement required Pattillo J. to consider whether the parties’ wording disclosed an intention to allow or deny appeals on a question of law and whether the award contained a “rare” extricable question of law.
Continue reading “Ontario – “agree to be bound” less effective than “final and binding” in excluding appeal – #218”Ontario – administering institution granted leave to intervene in challenge to appellate arbitral award – #214
In Re/Max All-Stars Realty Inc. v. Real One Realty Inc., 2019 ONSC 4956, Master Michael P. McGraw granted leave to an real estate industry association to intervene in a challenge to an award issuing from a process it administered. Master McGraw held that the association was uniquely placed to make a useful contribution to the determination of the issue regarding the history/purposes of the arbitration rules prohibiting court litigation and how interpretation of those prohibitions may affect other arbitral provisions. Contrast this reasoning/result with HZPC Americas v. Skye View Farms, 2018 PESC 47 (CanLII) which determined that an arbitral institution would not contribute anything useful to an appeal involving excess of jurisdiction of the institution’s arbitration rules. See the Arbitration Matters note “P.E.I. – arbitral institution denied leave to intervene in jurisdiction-based challenge to arbitral award”.
Continue reading “Ontario – administering institution granted leave to intervene in challenge to appellate arbitral award – #214”Ontario – no forgiving liability or forgetting facts when counsel apologizes in court on client’s behalf – #212
In Pollard Windows Inc. v. 1736106 Ontario Inc., 2019 ONSC 4859, Ontario’s Divisional Court held a litigant to submissions made by its counsel in court, determining that the provisions of Ontario’s Apology Act, 2009, SO 2009, c 3 did not serve to exclude the apology and admission of liability. Because the Apology Act expressly stipulates that it applies to arbitration, the Court’s reasons regarding the combined effect of counsel’s ostensible authority and the characteristics of an apology apply to arbitration as well.
Continue reading “Ontario – no forgiving liability or forgetting facts when counsel apologizes in court on client’s behalf – #212”Ontario – pleading to action insufficient to qualify as waiver to request stay – #209
In Khomovych v. Bomar 2 Inc. o/a Colony Park Homes, 2019 ONSC 3982, Madam Justice Mary E. Vallee stayed the action despite Defendant having pleaded to it and Plaintiff’s request for an adjournment so that it could present its motion for summary judgment under section 7(2)5 of Ontario’s Arbitration Act, 1991, SO 1991, c 17. Vallee J. determined that the parties were bound to undertake arbitration imposed by legislation applicable to new home warranties.
Continue reading “Ontario – pleading to action insufficient to qualify as waiver to request stay – #209”Ontario – court’s willingness to continue in obiter and determine key issue in appeal treated as decision on merits – #208
In BGOI Films Inc. v. 108 Media Corporation, 2019 ONCA 539, the Ontario Court of Appeal quashed attempts to appeal a decision which denied leave to appeal an award and then a decision which recognized and enforced the award. In reasons best described as brief, the Court held that no appeal lies from a refusal to grant leave when that refusal is based on the merits. Having dismissed that appeal, no grounds remained to give the court jurisdiction to refuse to recognize and enforce the award and the second appeal no longer had a basis.
Continue reading “Ontario – court’s willingness to continue in obiter and determine key issue in appeal treated as decision on merits – #208”Ontario – length/brevity of reasons in award not equal to reasonableness/insufficiency – #202
In Peralta v. Peralta, 2019 ONSC 2854, (unreported, May 7, 2019, Court file no. CV-18-26994), Mr. Justice Thomas J. Carey held that lengthy reasons do not equal reasonable and correct reasons any more than brief ones are equated with insufficiency. In his own brief reasons upholding a final award on the standard of reasonableness, Carey J. echoed earlier judicial observation that losing in arbitration itself does not equate to unfair or unequal treatment. The challenged result was an outcome open to the arbitrator, within his expertise and supported by clear, concise and reasonable reasons.
Continue reading “Ontario – length/brevity of reasons in award not equal to reasonableness/insufficiency – #202”Ontario – arbitral award given no weight in court when litigant not party to the arbitration – #200
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”