[: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[:]”
[:en]Ontario – court accepts both parties’ waiver of arbitration but notes impact on test for injunction – #085[:]
[: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[:]”