Tag: Ontario

[: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’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]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]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]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]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]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]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]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]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[:]”