[:en]In Loan Away Inc. v. Western Live Assurance Company, 2019 ONSC 657, Madam Justice Harriet E. Sachs issued a costs order stemming from her earlier decision in Loan Away Inc. v. Western Life Assurance Company, 2018 ONSC 7229 in which she stayed plaintiff’s litigation in favour of arbitration and refused to consolidate that arbitration with an ongoing one between defendant and a third party. Despite respondents’ claims for costs on a substantial indemnity, Sachs J. ordered costs on a less-than partial indemnity basis. She observed that the motions were important and of “more than average complexity” but required modest written materials and evidence and less than a day to argue. Continue reading “[:en]Ontario – overlap of facts insufficient to justify consolidation without consent of all parties – #161[:]”
[:en]Ontario – standard of correctness applies to arbitrator’s decision on solicitor-client privilege – #155[:]
[:en]In Saskatchewan v. Cricket, 2019 ONSC 18, Mr. Justice Peter Bawden considered challenges to evidentiary decisions taken by the arbitrator regarding solicitor-client privilege, hearsay and the impact of a prior but quashed arbitral award between the same parties. In dismissing each challenge, Bawden J. provided helpful albeit brief guidance on how to deal with similar post-award challenges. Continue reading “[:en]Ontario – standard of correctness applies to arbitrator’s decision on solicitor-client privilege – #155[:]”
[:en]Ontario – jurisdiction challenge must be raised early as preliminary objection, not as defence at merits stage – #154[:]
[:en]In FCA Canada Inc. v. Reid-Lamontagne, 2019 ONSC 364, Madam Justice Nancy J. Spies refused an application to set aside a final award challenged on the basis of an excess of jurisdiction, holding that the applicant had failed to raise the objection in a timely fashion. Though the applicant argued that it had raised the objection, Spies J. determined that it had done so as a substantive defence later on at the merits stage and not as a preliminary objection earlier on in the process. Continue reading “[:en]Ontario – jurisdiction challenge must be raised early as preliminary objection, not as defence at merits stage – #154[:]”
[:en]Ontario – court rejects re-using arbitral awards against non-parties despite litigants’ flexibility – #153[:]
[:en]In Restoule v. Canada (Attorney General), 2018 ONSC 7701, Madam Justice Patricia C. Hennessy dismissed an attempt to re-use arbitral awards as evidence against litigants who were not parties to the related arbitrations. Despite a collaborative, flexible approach by the litigants to presenting sprawling, complex facts necessitating the use of extensive primary and secondary documentary sources as well as expert and community leaders testimony providing historical context, Hennessy J. drew limits to that collaborative flexibility and underscored the limited role arbitral awards play beyond the parties who, by contract, agreed to submit to and be bound by arbitration. Continue reading “[:en]Ontario – court rejects re-using arbitral awards against non-parties despite litigants’ flexibility – #153[:]”
[:en]Ontario – leave to appeal on question of law waived when both parties fully argue issues in court – #149[:]
[:en]In O’Connell v. Awada, 2019 ONSC 273, Mr. Justice Stanley Kershman allowed Appellant to present his appeal on two (2) questions of law even though he had not sought or obtained leave to do so. Kershman J. held that, because both parties fully pleaded the issues regarding the questions of law, he waived the requirement for leave despite Respondent’s objections. Kershman J. also provided comment on the extent to which arbitrators ought to comment on evidence and demonstrate that they have heard the evidence. Continue reading “[:en]Ontario – leave to appeal on question of law waived when both parties fully argue issues in court – #149[:]”
[:en]Ontario – determination of exceptions to mandatory stay are for court to make and not arbitrator – #148[:]
[:en]Ontario’s Court of Appeal in Heller v. Uber Technologies Inc., 2019 ONCA 1 determined that the arbitration agreements contained in service agreements between drivers and Uber qualified as illegal contracting out of Ontario’s Employment Standards Act, 2000, SO 2000, c 41 (“ESA”), and that the arbitration agreements were unconscionable and invalid. In doing so, the Court provided new guidance for drafting arbitration clauses applicable to non-employment contracts and to their enforceability. Continue reading “[:en]Ontario – determination of exceptions to mandatory stay are for court to make and not arbitrator – #148[:]”
[:en]Ontario – stay of litigation requires active arbitration and significant overlap of issues – #147[:]
[:en]In ATS Automation Tooling Systems Inc v. Chubb Insurance Company of Canada, 2018 ONSC 6139, Master Donald E. Short refused a stay of litigation involving a non-party to overseas arbitration because that arbitration was only “invoked” but not instituted and the issues in both proceedings were not inextricably linked. In doing so, Master Short provided the non-party with its opportunity to present a summary judgment motion in the litigation rather than await the outcome of an arbitration involving other parties, covering different issues and still awaiting formal commencement. Continue reading “[:en]Ontario – stay of litigation requires active arbitration and significant overlap of issues – #147[:]”
[:en]Ontario – non-parties’ cannot resile from consent to earlier court order joining them to arbitration – #141[:]
[: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[:]”