Canada’s Supreme Court in TELUS Communications Inc. v. Wellman, 2019 SCC 19 held that section 7(5) of Ontario’s Arbitration Act, 1991, SO 1991, c 17 does not give courts discretion to refuse to stay claims dealt with by an otherwise valid arbitration agreement. Though Ontario’s Consumer Protection Act, 2002, SO 2002, c 30, Sch A invalidates arbitration agreements to the extent they prevent consumers from pursuing claims in court, that policy choice does not extend to non-consumers who remain bound by their agreements to arbitrate. Courts are to interpret legislation and not re-write it.
Continue reading “Supreme Court – cumbersome task of sorting of consumer/non-consumer claimants does not authorize courts to re-cast arbitral legislation – #185”Ontario – once court finds arbitrator acted within jurisdiction, it cannot consider merits in exercise of that jurisdiction – #184
Ontario’s Court of Appeal held in Alectra Utilities Corporation v. Solar Power Network Inc., 2019 ONCA 254 that, under section 46(1)3 of the Arbitration Act, 1991, SO 1991, c 17, once a court satisfies itself that an arbitrator had jurisdiction to resolve a particular dispute, absent a right of appeal, the court has no authority to delve into the merits of the award and review its for reasonableness. The Court held that a jurisdictional question must be answered correctly but “neither requires nor authorizes review of the substance of an arbitrator’s award”.
Continue reading “Ontario – once court finds arbitrator acted within jurisdiction, it cannot consider merits in exercise of that jurisdiction – #184”Ontario – unpaid expert and arbitrator denied status as creditors of court order omitting their mention as beneficiaries – #182
In Miracle v. Maracle, 2019 ONCA 238, the Ontario Court of Appeal upheld the unreported September 10, 2018 decision by Mr. Justice Patrick Hurley denying an unpaid expert and unpaid arbitrator leave to be added as parties to post-arbitration litigation. In doing so, Hurley J. left open the possibility that the result could have been different had an earlier court order, recognizing and enforcing the arbitration award, mentioned personally the expert and arbitrator as beneficiaries of the orders for payment of arbitration costs incurred by the prevailing arbitral party. Hurley J.’s comments also serve to guide arbitration counsel in drafting dispositive sections for recognition and enforcement applications.
Continue reading “Ontario – unpaid expert and arbitrator denied status as creditors of court order omitting their mention as beneficiaries – #182”Ontario – stay application dismissed without prejudice to re-apply after pleadings close – #180
Having relieved Defendant from a partial default judgment, Mr. Justice Andrew A. Sanfilippo in Natural Energy Systems Inc. v. Hallett, 2019 ONSC 1372 dismissed Defendant’s application for a stay but without substantive determination and without prejudice to Defendant’s opportunity to re-apply after the close of pleadings. In doing so, Sanfilippo J. implicitly authorized Defendant to take further steps in the litigation without any deemed waiver of right to invoke arbitration agreement at a later date and to do so even if the arbitration agreement covered only half of the claims made in the court litigation.
Continue reading “Ontario – stay application dismissed without prejudice to re-apply after pleadings close – #180”Ontario – arbitrator appointment procedure in franchise agreement risks “absurd and likely unfair result” – #178
In Eggiman v. Martin, 2019 ONSC 1388, Mr. Justice Wolfram Tausendfreund exercised his discretion to refuse a partial stay because the claims subject to arbitration were based on closely related facts and issues in dispute and a partial stay would likely bifurcate the claims, leading to a multiplicity of proceedings. In addition, Tausendfreund J. considered that the right of a franchisor to appoint the arbitrator for a dispute between franchisee and sub-franchisees would lead to “the absurd and likely unfair result of allowing [that party] to either appoint the arbitrator or effect control and/or direct the arbitration of this dispute”.
Continue reading “Ontario – arbitrator appointment procedure in franchise agreement risks “absurd and likely unfair result” – #178”Ontario – court passes on stay because hockey contract’s arbitration agreement not in play – #175
Presented with disputes stemming from the same, key fact, Mr. Justice James A. Ramsay in Niagara Ice Dogs Hockey Club Inc. v. Ontario Major Junior Hockey League, 2019 ONSC 1713 refused to enjoin a hockey league from holding a disciplinary hearing for a hockey club in favour of that same club’s arbitration with one of its players. In doing so, Ramsay J. demonstrated that the same fact can trigger separate sets of rights and obligations between the club, the player and the league as well lead to different dispute resolution processes.
Continue reading “Ontario – court passes on stay because hockey contract’s arbitration agreement not in play – #175”Ontario – notice requirement satisfied where form of notice reasonably calculated to inform of arbitral proceedings and opportunity to respond – #173
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[:]”