[: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[:]”
[:en]Ontario – costs awarded for late, ‘cavalier’, speculative motion for disclosure of arbitration documents – #103[:]
[:en]Master C. Wiebe in ABCO One Corporation v. Pomerleau Inc., 2018 ONSC 4480 issued a costs decision following ABCO One Corporation’s (“ABCO”) decision to withdraw its motion for production for inspection of transcripts of evidence, document briefs and expert reports filed in an arbitration between Pomerleau Inc. (“Pomerleau”), general contractor, and the Toronto Transit Commission (“TTC”) regarding construction of a street car facility (the “Pomerleau-TTC Arbitration”). Not only did Master Wiebe determine that ABCO’s motion fell well short of demonstrating ‘compelling evidence of necessity’, he also determined that that ABCO failed to bring its motion with diligence and care. The brief reasons do not question the ability to bring such motions but only that they be timely and justified, and seek materials necessary to the applicant’s ability to make its case. Continue reading “[:en]Ontario – costs awarded for late, ‘cavalier’, speculative motion for disclosure of arbitration documents – #103[:]”
[:en]Ontario – court exercises discretion to refuse a stay not sought by defendants – #100[:]
[:en]Enabling Plaintiff to access the court’s own procedural rules to strike pleadings and grant summary judgment, Madam Justice Michelle O’Bonsawin in Hoya Lens Canada Inc. v. 2364141 Ontario Inc., 2018 ONSC 4338 dismissed a motion, not made by Defendants, to stay the litigation in favour of arbitration. Doing so allowed her to confirm her jurisdiction over the parties and proceed to summarily resolve their dispute despite Defendants’ failure or refusal to participate. Her approach sets out a three-step path for other plaintiffs struggling to advance resolution of their dispute despite having earlier agreed to arbitrate. Continue reading “[:en]Ontario – court exercises discretion to refuse a stay not sought by defendants – #100[:]”
[:en]Ontario – award has binding effect despite post-award issues and tribunal’s willingness to consider them – #099[:]
[:en]Ontario’s Court of Appeal in Popack v. Lipszyc, 2018 ONCA 635 explored the meaning of the term “binding” and whether parties’ post-award conduct can delay the moment by which their award becomes binding on them. Absent the parties’ agreement that they can appeal their award on grounds stated by them and available under applicable arbitration legislation, parties resisting the binding nature of the award are constrained to challenge their award within the narrow grounds for refusal of recognition and enforcement set out in the UNCITRAL Model Law on International Commercial Arbitration, adopted by the United Nations Commission on International Trade Law on June 21, 1985, as amended on July 7, 2006, (“Model Law”) and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) (the “New York Convention”). A party’s stated intention to return to the arbitral tribunal to have post-award issues decided and the tribunal’s willingness to consider those issues do not serve together or alone to delay the binding effect of the final award. Continue reading “[:en]Ontario – award has binding effect despite post-award issues and tribunal’s willingness to consider them – #099[:]”
[:en]Ontario – court refuses to accept unilateral revocations of parties’ unwritten agreement to arbitrate – #097[:]
[:en]Madam Justice Carole J. Brown in Zenith Aluminum Systems Limited v. 2335945 Ontario Inc., 2018 ONSC 4199 kept the bar firmly high, tripping claims that parties could unilaterally revoke their earlier unwritten agreement to arbitrate. Despite both parties, at separate moments, asserting that they were no longer bound by their agreement, Brown J. agreed with Claimant who now wanted to continue its arbitration despite having initiated litigation. She held that the parties’ conduct had affirmed their ongoing agreement to arbitrate and dismissed Respondent’s claims that both parties had revoked their agreement. Claimant’s earlier written notice that it withdrew its notice to arbitrate and Respondent’s later change of heart were each insufficient by themselves to serve as revocation. Applying “ordinary rules of contract law“, an arbitration agreement could only be revoked by an agreement of both parties and not unmatched, unilateral revocations. Continue reading “[:en]Ontario – court refuses to accept unilateral revocations of parties’ unwritten agreement to arbitrate – #097[:]”
[:en]Ontario – court’s resistance to re-using findings from earlier adjudications applies in arbitral proceedings – #096[:]
[:en]In Nasir v. Kochmanski, 2018 ONSC 3052, Mr. Justice Peter A. Daley dismissed Plaintiffs’ application for a trial adjournment which they based on, among other grounds, their intention to obtain and use at trial certain negative commentary on Defendant’s expert witness generated in other, earlier court and tribunal proceedings. Daley J.’s reasoning and the authorities referred to apply to the declared use in commercial arbitration of other materials produced for or by tribunal hearings, including arbitrations created by legislation. Prior to seeking to use those materials, arbitral parties must (a) ensure that no legislated prohibition exists regarding subsequent use in a new venue and (b) anticipate that tribunals will be vigilant to exclude admissible materials which are either unhelpful or lack proof of the fuller context in which they issued. Continue reading “[:en]Ontario – court’s resistance to re-using findings from earlier adjudications applies in arbitral proceedings – #096[:]”
[:en]Ontario – court rebuffs critique of commonplace, frequently enforced, understandable arbitration clause – #095[:]
[:en]In V Hazelton Limited v. Perfect Smile Dental Inc., 2018 ONSC 3958, Mr. Justice Edward M. Morgan dismissed a landlord’s objection to an arbitration clause, stating that the wording was clear enough to those familiar with commercial leases. Morgan J.’s comments can lend themselves to other types of contracts, tipping the balance if need be in favour of enforcing clauses that, while falling short of ideal wording, are commonplace, frequently enforced and likely to be understood without trouble by an experienced arbitrator. Continue reading “[:en]Ontario – court rebuffs critique of commonplace, frequently enforced, understandable arbitration clause – #095[:]”
[:en]Ontario – courts must not pre-empt arbitrator decision on jurisdiction by limiting scope of issues in stay order – #086[:]
[:en]In 10313033 Canada Inc. v. 2418973 Ontario Inc. et al., 2018 ONSC 2406, Madam Justice Sally Gomery declined to limit the scope of the issues referred to the arbitrator. She determined that, absent exceptional circumstances, courts must not pre-empt an arbitrator’s ruling on jurisdiction. Following the stay granted, the parties could make their own submissions directly to the arbitrator regarding the issues which could or could not be within the undertaking to arbitrate or which were no longer in dispute following prior court rulings. Continue reading “[:en]Ontario – courts must not pre-empt arbitrator decision on jurisdiction by limiting scope of issues in stay order – #086[:]”