Ontario Archives - Page 9 of 32 - Arbitration Matters

November 21, 2022November 22, 2022

Ontario – Defendant to stayed action may commence arbitration – #684

In Star Woodworking Ltd. v. Improve Inc., 2022 ONSC 5827, the defendant condominium corporation sought an order that the Court appoint an arbitrator to hear and resolve the plaintiffs’ claims against it. The plaintiffs had originally commenced actions in the Ontario Superior Court of Justice, and a number of claims were stayed as they were required to be brought in arbitration pursuant to the Condominium Act, 1998, SO 1998, c 19, and the Arbitration Act, 1991, SO 1991, c 17. Justice Myers rejected the plaintiffs’ argument that they could not be forced to be claimants in an arbitration if they did not wish to do so. Justice Myers held that the arbitration was properly commenced pursuant to section 23 of the Arbitration Act, 1991.

November 8, 2022November 15, 2022

Ontario – Foreign award enforcement upheld on appeal despite previous attornment to court – #679

In Wang v. Luo, 2022 ONSC 5544, Justice LeMay, sitting as an Ontario Divisional Court judge, upheld the enforcement of a foreign arbitral award rendered under the auspices of the China International Economic and Trade Arbitration Commission (“CIETAC”). He rejected the Appellant’s arguments that the Superior Court of Justice erred in enforcing the award, including an argument that enforcement was improper given the Respondent’s previous attempt to pursue its claim before the Ontario Small Claims Court.

October 25, 2022April 5, 2023

Ontario – Domestic arbitration statutes can supplement industry-specific arbitration schemes – #675

In Neuhaus Management Ltd v. Huang, 2022 ONSC 5548, the Ontario Divisional Court (Firestone RSJ, Stewart, and Akhtar JJ.) examined how Ontario’s domestic arbitration statute can be incorporated into and be read together with an industry-specific statutory arbitration scheme, the Ontario New Home Warranties Plan Act, R.S.O.1990, c.O.31 (the “Ontario New Home Warranties Act”).

October 25, 2022October 25, 2022

Ontario – Limitations defence not a matter of arbitral jurisdiction – #674

In Cruickshank Construction Ltd. v The Corporation of the City of Kingston, 2022 ONSC 5704, Justice Myers allowed an application to appoint an arbitrator, providing his views on the method for that appointment. He also dismissed the Respondent’s cross-application for a declaration that the notice of arbitration was limitation-barred and that the Applicant had not complied with preconditions to arbitration in the parties’ agreement. Justice Myers held that there was no basis in the Ontario Arbitration Act, 1991, SO 1991, c 17 (“Arbitration Act”) to permit the court to grant the cross-application and the grounds raised were not matters of arbitral jurisdiction.

October 20, 2022October 20, 2022

Ontario – Does an appeal of a costs award require leave? – #672

In Schickedanz v Wagema Holdings Ltd., 2022 ONSC 5315, Justice Ramsay dismissed the motion by Wagema Holdings Ltd (Respondent on appeal) to quash Appellant Schickedanz’s appeal of a costs award. Wagema argued that leave was required under s. 133(b) of the Ontario Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”) and so the appeal was also out of time. Justice Ramsay was not persuaded that Wagema would prevail when the issue was determined by the appeal judge. First, the parties’ arbitration agreement contained a broad appeal process, without a leave requirement for costs appeals. Second, there is nothing in s. 45 of the Ontario Arbitration Act, 1991, S.O. 1991, c. 17 that requires leave to appeal a costs award or imports the leave requirement set out in the general costs appeal provision in s. 113(b) of the CJA. Third, the parties could contract out of the appeal provisions in s. 45 of the Arbitration Act pursuant to s. 3. Imposing a leave requirement to appeal a costs award would amount to judicial interference with the parties’ right to contract, which was recognized by the Supreme Court of Canada in TELUS Communications Inc. v. Wellman, 2019 SCC 19. Ultimately, it would be up to the judge hearing the appeal to decide whether leave was required and, if so, whether the appeal was out of time and whether the appeal had merit.

October 6, 2022October 13, 2022

Ontario – No oral hearing required even if one party requests it – #667

Optiva Inc. v Tbaytel, 2022 ONCA 646, raises two issues of interest to arbitration law. First, the Appellant (Optiva) made a jurisdictional objection to the arbitrator’s ruling allowing the Respondent (Tbaytel) to bring a motion for summary judgment. The arbitrator then issued a procedural order in which he ruled that he had jurisdiction. After hearing the motion, the arbitrator issued a partial award on the merits, which was in favour of Tbaytel. Optiva applied to the Ontario Superior Court of Justice to “decide the matter” of the arbitrator’s jurisdiction and to set aside the partial award, both pursuant to s.17 (rulings and objections re jurisdiction) of the Ontario Arbitration Act, 1991, S.O. 1991, c. 17 (the “Act”). However, the application judge found that Optiva had failed to bring its application on time and dismissed it. Pursuant to s. 17(8), it was required to do so within 30 days of the arbitrator’s jurisdiction ruling, not after the issuance of the partial award on the merits. The Ontario Court of Appeal agreed with the application judge and dismissed Optiva’s appeal, but for different reasons. The application judge erred in finding that Optiva was out of time to ask the Court to “decide the matter” because the preliminary ruling was not jurisdictional. Relying upon Inforica Inc. v. CGI Information Systems and Management Consultants Inc., 2009 ONCA 642, the ruling that the matter could proceed by summary judgment was procedural, not a ruling on the arbitrator’s “own jurisdiction”; therefore, s. 17 was not engaged. However, the appeal was dismissed because the arbitrator was entitled to decide matters of procedure, both under the Act and under the parties’ arbitration agreement, and did so. Second, the Court of Appeal held that s. 26(1) of the Act does not require an oral evidentiary hearing, even if one party requests it.

September 29, 2022September 29, 2022

Ontario – No appeal lies from preliminary jurisdictional decision – #666

In Iris Technologies Inc. v. Rogers Communications Canada Inc., 2022 ONCA 634, the Ontario Court of Appeal quashed a motion for leave to appeal from the lower court’s decision in which it was asked to “decide the matter” of arbitral jurisdiction under the Ontario Arbitration Act, 1991. The Court of Appeal confirmed its earlier decision, United Mexican States v. Burr, 2021 ONCA 64, made under the Ontario International Commercial Arbitration Act, 2017. The Court also made it clear that no appeal lies from lower court decisions which “decide the matter” of arbitral jurisdiction when the question comes before the court as a preliminary issue before the final award is rendered.

September 15, 2022September 9, 2022

Ontario – Action abuse of process – even against new defendant – where issues already arbitrated – #661

In Doria v Warner Bros. Entertainment Canada Inc. et al., 2022 ONSC 4454, Justice Koehnen granted the Defendants’ motion to strike the Plaintiff’s Statement of Claim pursuant to Rule 21.1(3)(d) of the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194 on the ground that it was an abuse of process because it sought to relitigate issues that were previously decided by an arbitrator. The Plaintiff argued that s. 139 of the Ontario Courts of Justice Act. R.S.O. 1990, c. C.43, allowed him to bring a subsequent proceeding for the same or similar relief against a person who was jointly liable and who was not bound by a previous judgment. Justice Koehnen found that s. 139 did not apply these circumstances, where the Plaintiff had a full opportunity to have his entire claim adjudicated in the arbitration, was awarded judgment, and had fully collected on the judgment. The Plaintiff’s complaint was that the arbitrator did not grant him his full damages. The fact that the Defendants were not parties to the arbitration and therefore not bound by the award was irrelevant.

September 14, 2022September 9, 2022

Ontario – Court of Appeal upholds “single proceeding” insolvency model over recourse to arbitration – #660

In Mundo Media Ltd. (Re), 2022 ONCA 607, Court of Appeal for Ontario Justice Julie Thorburn dismissed a motion for leave to appeal a decision denying a motion to stay a receiver’s court proceeding. The Appellant/Moving Party sought the stay on the basis of an international arbitration agreement. Justice Thorburn found no reversible error in the motion judge’s choice to apply the “single proceeding model”, applicable in insolvency proceedings, with the effect that the Appellant/Moving Party, one of the insolvent company’s debtors, could not require the receiver to arbitrate its claim rather than litigate it. Together with the Superior Court’s decision below, this decision provides important guidance on the interplay between arbitration agreements and claims advanced in the bankruptcy and insolvency context.

August 29, 2022August 29, 2022

Ontario – Arbitrator to determine jurisdiction/validity of arbitration clause in employment dispute – #654

In Irwin v. Protiviti, 2022 ONCA 533, the Ontario Court of Appeal confirmed that, unless the question is one of pure law or is a question of mixed fact and law requiring only a superficial review of the evidence, questions about the jurisdiction of an arbitrator are to be arbitrated. This includes whether an arbitration clause in an arbitration contract is void for unconscionability, or for inconsistency with the Employment Standards Act, 2000, S. O. 2000, c. 41 (“ESA”) or the Human Rights Code, R.S.O. 1990, c. H. 19 (“the Code”).