Aaron Rubinoff

The defendants brought a motion to disqualify the plaintiffs' counsel and their law firm on the basis of a conflict of interest.

The defendant, Marc Lewis, had previously retained the same law firm for an employment matter with a former employer.

The court applied the MacDonald Estate test and found that the previous retainer was not sufficiently related to the current malfeasance action, and no relevant confidential information was imparted.

Furthermore, the law firm had implemented an ethical wall.

The motion to disqualify counsel was dismissed.

The City of Brockville appealed an application judge's order that set aside three arbitral awards and appointed a new arbitrator.

The Court of Appeal found that the application judge erred by characterizing questions of mixed fact and law as extricable questions of law and by misapplying procedural fairness principles under the Arbitration Act, 1991.

The Court emphasized the narrow basis for setting aside arbitral awards and the caution required in extricating questions of law from contractual interpretation.

The appeal was allowed, reinstating the arbitrator's original awards.

This costs endorsement follows the dismissal of applications by Belokon, Entes, Sistem, and Stans (the "Applicants") to recognize and enforce arbitral awards against the Kyrgyz Republic (the "Republic"), and to declare an exigible ownership interest of the Republic in Centerra Gold Inc. shares held by Kyrgyzaltyn JSC.

The Republic and Kyrgyzaltyn (the "Respondents") sought costs.

The court awarded costs on a partial indemnity basis, rejecting claims for full or substantial indemnity.

It also determined that costs should be payable on a several, not joint and several, basis due to the unrelated nature of the Applicants and the court-directed common issue hearing.

The court limited the costs award to the common issue hearing, excluding prior jurisdiction motions or general recognition application costs, and considered previous compensation for materials.

The applicants sought a declaration that the Kyrgyz Republic held an exigible ownership interest in shares of Centerra Gold Inc. registered in the name of its wholly-owned subsidiary, Kyrgyzaltyn JSC, to enforce arbitral awards.

The court dismissed the applications, finding that the Agreement on New Terms (ANT) unambiguously established Kyrgyzaltyn JSC as the beneficial owner of the shares, not the Republic.

The court rejected arguments based on contract interpretation under New York law and trust principles under Canadian law, emphasizing the separate legal personality of the subsidiary and the lack of evidence for an ownership interest or trust.

The applicant brought a motion to strike an affidavit filed by a respondent in an application to recognize and enforce a foreign arbitral award under the International Commercial Arbitration Act.

The affidavit alleged that the applicant had engaged in money laundering and other criminal activity relating to the investment that was the subject of the arbitration.

The court held that the affidavit attempted to relitigate issues already determined by the arbitral tribunal and would improperly create a “trial within a trial” on the merits of the award.

Because recognition and enforcement proceedings under the UNCITRAL Model Law permit only narrow defences, the affidavit was clearly irrelevant and scandalous.

The affidavit was struck, though it could remain in the record solely as part of the Paris annulment proceedings.