[:en]In Chemical Vapour Metal Refining Inc., et al v. Terekhov, 2018 ONSC 7037, Mr. Justice Glenn A. Hainey denied a post-award challenge by non-parties to an arbitration agreement to revisit their earlier consent to a court order joining them to arbitration. Hainey J. determined that the non-parties had consented to be joined to an arbitration that would determine a range of claims including oppression, fraudulent conveyance and alter ego liability. Having consented to that order, they could not later, on a leave to appeal application, argue that the award should be set aside due to an excess of jurisdiction. Their consent also enlarged the scope of the issues initially submitted to arbitration by the parties to the contract. Continue reading “[:en]Ontario – non-parties’ cannot resile from consent to earlier court order joining them to arbitration – #141[:]”
[:en]Ontario – courts not bound by arbitration agreement’s stipulated standard of review on appeal – #138[:]
[:en]Unlike the parties’ agreement on the applicable law, the seat and the language, the court is not bound by the parties’ agreement on the standard of review for the appeal of an arbitral award. In Northbridge v. Intact Insurance., 2018 ONSC 7131, Mr. Justice James F. Diamond reiterated the decision in The Dominion of Canada General Insurance Company v. Unifund Assurance Company, 2018 ONCA 303 that an appellate standard of review is a legal issue to be determined by the courts and not by the parties themselves. It appears that, in doing so, Diamond J. extended the Court of Appeal’s reasoning by expressly setting aside a stipulation agreed to by the parties in their arbitration agreement, before the dispute arose and before the court proceedings were initiated. Continue reading “[:en]Ontario – courts not bound by arbitration agreement’s stipulated standard of review on appeal – #138[:]”
[:en]Ontario – Court of Appeal refuses to appoint arbitrator unless parties fail to do so under their procedure – #133[:]
[:en]In upholding The Walt Disney Company v. American International Reinsurance Company, Ltd., 2018 ONSC 1108, the Ontario Court of Appeal in The Walt Disney Company v. American International Reinsurance Company, Ltd., 2018 ONCA 948 underscored that the courts’ jurisdiction under Ontario’s International Commercial Arbitration Act, 2017, SO 2017, c 2, Sch 5 to intervene in the appointment of arbitrators only arises if there is a failure of the parties’ appointment procedure. One party’s refusal to follow the procedure set out in the arbitration agreement does not give that party standing to apply to the court and allege that the parties are unable to proceed. Appointing an institution to administer an arbitration does not constitute that party’s appointment of its arbitrator in an ad hoc arbitration. Continue reading “[:en]Ontario – Court of Appeal refuses to appoint arbitrator unless parties fail to do so under their procedure – #133[:]”
[:en]Ontario – court opts for practical solution by appointing existing arbitrator to hear additional dispute – #126[:]
[:en]Mr. Justice Glenn A. Hainey in Sears Canada Inc., et al. (Re), 2018 ONSC 5852 ordered that a purchase price dispute between two parties regarding commercial property be resolved by an arbitrator already appointed by the court under the Companies’ Creditors Arrangement Act, RSC 1985, c C-36 (“CCAA”) to resolve two other disputes between the same parties for the same property. Hainey J. gave effect to the parties’ agreement which anticipated that some of their disputes would serve to offset the cash amount determined for the purchase price dispute. Without mention of any arbitration legislation and relying on the parties’ contract and the court’s authority under the CCAA’s section 11 to “make any order that it considers appropriate in the circumstances”, Hainey J. appointed the existing arbitrator to resolve all three (3) disputes because doing so avoided the additional cost and delay of a “piecemeal fashion”.
Continue reading “[:en]Ontario – court opts for practical solution by appointing existing arbitrator to hear additional dispute – #126[:]”
[:en]Ontario – not-for-profit’s arbitration agreement in by-laws not subject to heightened court scrutiny – #122[:]
[:en]In The Campaign for the Inclusion of People who are Deaf and Hard of Hearing v. Canadian Hearing Society, 2018 ONSC 5445, Mr. Justice Herman J. Wilton-Siegel dismissed arguments that a not-for-profit corporation’s status required the courts to be more vigilant in validating their arbitration provisions and held former members of the not-for-profit corporation to the terms of the arbitration provisions in the by-laws applicable before their loss of membership. Wilton-Siegel J. also held that it was well established that parties by private agreement could submit their oppression claims to arbitration. Continue reading “[:en]Ontario – not-for-profit’s arbitration agreement in by-laws not subject to heightened court scrutiny – #122[:]”
[:en]Ontario – costs award in domestic arbitration subject to reasonableness standard – #120[:]
[:en]In reviewing a challenge to a costs award issued in a domestic arbitration, Mr. Justice Peter Bawden in Bilal Syed v. Cricket Canada, 2018 ONSC 5637 held that the standard of review of such costs award under Ontario’s Arbitration Act, 1991, SO 1991, c 17 is on a reasonableness standard. His ability to consider applicant’s challenge the costs portion of the award was enhanced (a) by respondent’s decision to complete the record before the court with substantial materials not offered by applicant and (b) by reference to criteria for costs awards contained in the Canadian Sport Dispute Resolution Code (the “Code”), a robust set of arbitration rules applicable to the dispute issued by the Sport Dispute Resolution Centre of Canada (“Centre”).
Continue reading “[:en]Ontario – costs award in domestic arbitration subject to reasonableness standard – #120[:]”
[:en]Ontario – court defers to arbitrator court’s discretion to release statutory deposit of court costs for lien litigation – #119[:]
[:en]In Man-Shield Construction Inc. et al. v. 1876030 Ontario Inc. et al., 2018 ONSC 5231, Mr. Justice F. Bruce Fitzpatrick deferred to an arbitrator the exercise of the court’s discretion to release monies deposited into court as security for costs in lien litigation under Ontario’s Construction Act, RSO 1990, c C.30. In light of the parties’ submission to arbitration, Fitzpatrick J. held that the discretion to determine the amount of those costs and their release now rested with an arbitrator, despite that the Construction Act expressly granted that discretion to the court. Continue reading “[:en]Ontario – court defers to arbitrator court’s discretion to release statutory deposit of court costs for lien litigation – #119[:]”
[:en]Ontario – court finds no obligation to mediate but also holds parties must have a dispute to require mediation – #118[:]
[:en]In Mera Software v. Intelligent Mechatronic Systems, 2018 ONSC 5208, Mr. Justice Donald J. Gordon determined that the parties’ mention of mediation in their agreement did not impose mediation as a condition precedent but, if it did, he found no dispute. Gordon J. granted summary judgment in favour of plaintiff under Rule 20.04 of Ontario’s Rules of Civil Procedure, RRO 1990, Reg 194 because no “dispute” existed and there was no need to mediate a non-existent dispute. The parties’ contract contained no binding agreement to mediate and their litigation had no disagreement requiring mediation. Continue reading “[:en]Ontario – court finds no obligation to mediate but also holds parties must have a dispute to require mediation – #118[:]”
[:en]Ontario – court’s contractual interpretation confirms arbitrator’s jurisdiction to hear dispute but not award lost profits – #117[:]
[:en]Mr. Justice Herman J. Wilton-Siegel in Alectra Utilities Corporation v. Solar Power Network Inc., 2018 ONSC 4926 determined that addressing jurisdictional issues required contractual interpretation. Recognizing that the former required a correctness standard while the latter required a reasonableness standard, and preferring reasonableness, he deemed it unnecessary to settle on either. His contractual interpretation led him to conclude that the arbitrator was reasonable to assert he had jurisdiction to hear the dispute but unreasonable when he deemed inapplicable a limit on recovery of lost profits. Under section 46(1)3 of Ontario’s Arbitration Act, 1991, SO 1991, c 17, the award’s grant of lost profits qualified as going beyond the scope of the contract and was set aside as “a dispute that the arbitration agreement does not cover or contains a decision on a matter that is beyond the scope of the agreement.” Continue reading “[:en]Ontario – court’s contractual interpretation confirms arbitrator’s jurisdiction to hear dispute but not award lost profits – #117[:]”
[:en]Ontario – court refuses partial summary judgment for recognition and enforcement of award which overlaps alternative breach of contract claim – #111[:]
[:en]Madam Justice Andra Pollak in “Sanokr-Moskva” LLC v. Tradeoil Management Inc., 2018 ONSC 2967 decided that a plaintiff’s principal claims for recognition and enforcement of an international commercial award must be heard on the merits at the same time as plaintiff’s alternative claims for breach of contract. Agreeing that partial summary judgment should be considered a rare procedure reserved for issues that may be readily bifurcated, Pollak J. sent the parties to trial on the merits of both recognition and enforcement and breach of contract. Pollak J.’s caution is of particular relevance to arbitration counsel considering whether to combine, in one court application, claims for recognition and enforcement of arbitration awards and other claims. Continue reading “[:en]Ontario – court refuses partial summary judgment for recognition and enforcement of award which overlaps alternative breach of contract claim – #111[:]”