[:en]Both parties can waive their undertaking to arbitrate but doing so has its own knock-on effects. In Armes and 2331513 Ontario Inc. et al v. Barlett, 2018 ONSC 1396, Mr. Justice R. John Harper accepted that neither party had or wished to undertake arbitration but did consider one party’s waiver as having a role, however slight but worthy of mention, in considering whether that party demonstrated irreparable damage. Continue reading “[:en]Ontario – court accepts both parties’ waiver of arbitration but notes impact on test for injunction – #085[:]”
[:en]Ontario – litigation offers proof of concept that arbitration matters – #081[:]
[:en]In Network Site Services Ltd. v. Town of Oakville, 2018 ONSC 2599, Mr. Justice David A. Broad resolved litigation commenced in early 2012 regarding a road reconstruction project certified to have been substantially performed on September 30, 2011. The parties to the litigation had entered into a detailed set of contracts which identified mediation and arbitration but made neither mandatory. Continue reading “[:en]Ontario – litigation offers proof of concept that arbitration matters – #081[:]”
[:en]Ontario – court declines jurisdiction to determine pending court costs once parties settle through mediation/arbitration – #079[:]
[:en]In Patterson v. Sarafian, 2018 ONSC 274, Mr. Justice David Jarvis had to resolve the court’s jurisdiction to deal with costs of motions reserved, but not decided, when the parties later agreed to mediation/arbitration and settled their disputes. Though the court litigation involved a family law dispute, the result and reasoning can apply to commercial disputes in which court litigants agree to become arbitral parties and subsequently resolve their disputes. The resulting settlements can have the effect, intended or not, of resolving issues left pending from the court litigation. Continue reading “[:en]Ontario – court declines jurisdiction to determine pending court costs once parties settle through mediation/arbitration – #079[:]”
[:en]Ontario – court to consider statutory arbitration as grounds for dismissal of class action – #078[:]
[:en]A pair of interim applications in Ronald Breen Consulting v. CNR, 2018 ONSC 1778 disclose an upcoming opportunity for the Ontario Superior Court to determine whether arbitration imposed by federal statute can justify dismissal of court litigation. In adjudicating applications by Ronald C. Breen Consulting, In Trust (“Plaintiff”) to order Canadian National Railway Company (“CN”) to produce documents and to compel answers on cross-examination, Madam Justice Lynne Leitch noted that CN intended to invoke arbitration provided in Canada Transportation Act. S.C. 1996, c.10 (“CTA”) to obtain dismissal of the litigation filed in court against CN. Continue reading “[:en]Ontario – court to consider statutory arbitration as grounds for dismissal of class action – #078[:]”
[:en]Ontario – final award remitted to arbitrator to rework one term in order to not affect third party – #074[:]
[:en]In Bedard v. Bedard, 2018 ONSC 2220, Mr. Justice David G. Stinson resolved a less common issue of jurisdiction involving dispositive terms of a final award having an impact on a non-party to the arbitration, albeit wholly-controlled by one of the arbitration parties. Stinson J. exercised his authority under section 45(5) of Ontario’s Arbitration Act, 1991 S.O.1991, c. 17 to remit the award to the arbitrator, accompanied by specific directions regarding how to finesse the terms to affect only parties to the arbitration and that such additional work for the arbitrator be subject to prior discussions between the parties on draft language. Continue reading “[:en]Ontario – final award remitted to arbitrator to rework one term in order to not affect third party – #074[:]”
[:en]Ontario – court enforces award after arbitrator required to untangle a cluster of less common procedural challenges – #070[:]
[:en]In Fuego Digital Media Inc. v. DAC Group (Holdings) Limited, 2018 ONSC 2897, Madam Justice Julianne Parfett considered and dismissed challenges to a final award based on an alleged denial of natural justice and on an alleged excess of jurisdiction. The reasons demonstrate key procedural difficulties encountered in complex IT arbitration and the variety of solutions applied by arbitrators to resolve those difficulties and provide the parties with an enforceable final award. The procedural history demonstrates how to deal with a bundle of less common issues such as adjournments to obtain financing and new legal counsel, non-payment of fees leading to dismissal of counterclaim, new evidence, draft awards provided by parties and injunctive relief against the officers and directors of corporate entities. Continue reading “[:en]Ontario – court enforces award after arbitrator required to untangle a cluster of less common procedural challenges – #070[:]”
[:en]Ontario – court applies limits and deference in judicial review of appeal from statutory arbitration – #069[:]
[:en]In its judicial review of an administrative appeal from a statutory arbitration decision, Ontario’s Divisional Court in Belair Direct Insurance Company v. Green, 2018 ONSC 2782, asserted the limited scope granted for that appeal. By quashing and upholding parts of that appeal decision, Mr. Justice Frederick L. Myers, writing for the court, reiterated the limited role facts can play on an appeal limited to a question of law and the deference the court has for decisions taken on questions of law. Continue reading “[:en]Ontario – court applies limits and deference in judicial review of appeal from statutory arbitration – #069[:]”
[:en]Ontario – court grants temporary stay of litigation, endorsing arbitration as tandem support to court litigation process – #068[:]
[:en]Master Robert A. Muir in Coco Paving Inc. v. Durham (Municipality), 2018 ONSC 2849 used the court’s own case management powers under section 106 of the Courts of Justice Act, RSO 1990, c C.43 to temporarily stay five (5) court files in favour of ongoing arbitration to advance the litigation. The arbitration process would resolve issues key to the litigation and thereby add efficiencies to the litigation process. The reasoning and the result in support of a temporary stay reflects the court’s belief that arbitration is not only an either-or alternative to litigation but can qualify as tandem support. Continue reading “[:en]Ontario – court grants temporary stay of litigation, endorsing arbitration as tandem support to court litigation process – #068[:]”
[:en]Ontario – arbitral tribunal’s evidentiary record on jurisdiction challenge is not ignored but also does not confine court – #060[:]
[:en]In The Russian Federation v. Luxtona Limited, 2018 ONSC 2419, Mr. Justice Sean F. Dunphy asserted the court’s autonomy vis-à-vis the arbitral tribunal’s evidentiary record when hearing a challenge to that tribunal’s preliminary award on jurisdiction. In the context of a dispute over the admissibility of evidence which had not been before the arbitral tribunal, Dunphy J. determined that a court was neither limited to the tribunal’s findings of fact nor confined by the record relied on by the tribunal to reach its conclusions. Continue reading “[:en]Ontario – arbitral tribunal’s evidentiary record on jurisdiction challenge is not ignored but also does not confine court – #060[:]”
[:en]Ontario – Court of Appeal upholds arbitrator’s decision to “blue pencil” mediation clause having impact on limitation period – #057[:]
[:en]Ontario’s Court of Appeal in PQ Licensing S.A. v. LPQ Central Canada Inc., 2018 ONCA 331 upheld an arbitrator’s decision on a preliminary issue involving the application of a limitation period. The Court of Appeal agreed with the Superior Court which had held that it was reasonable for the arbitrator to sever the mention of “in Delaware” in a mediation clause because that stipulation violated remedial legislation applicable to franchising. The balance of the mediation clause remained valid. Completing the mediation was a condition precedent to triggering the date at which one of the parties could “discover” its claim and delayed triggering the two-year limitation period in Ontario’s Limitations Act, 2002, SO 2002, c 24, Sch B. (“Limitations Act”). Continue reading “[:en]Ontario – Court of Appeal upholds arbitrator’s decision to “blue pencil” mediation clause having impact on limitation period – #057[:]”