Allyson M. Fischer

This appeal addressed the standard of proof for establishing the existence of an arbitration agreement when seeking a stay of court proceedings under the International Commercial Arbitration Act, 2017.

The appellant argued for a balance of probabilities standard, while the motion judge applied an "arguable case" standard.

The Court of Appeal affirmed that, consistent with the Supreme Court of Canada's decision in Peace River Hydro Partners v. Petrowest Corp., the "arguable case" standard applies to the technical prerequisites for a mandatory stay, including the existence of an arbitration agreement.

The Court found no palpable and overriding error in the motion judge's conclusion that an arbitration agreement was arguably in existence based on the evidence.

The appeal was dismissed, and the stay of proceedings in favour of arbitration was upheld.

JH Whittaker & Sons Limited (Whittaker's) brought a motion to stay an action commenced by Husky Food Importers & Distributors Ltd. (Husky) and to refer Husky's claims to arbitration in New Zealand.

The motion was brought pursuant to the International Commercial Arbitration Act, 2017 and the UNCITRAL Model Law.

Husky argued that no valid arbitration agreement existed or that it was inoperative due to an inconsistency with a non-exclusive jurisdiction clause.

Applying the Haas framework, the court found it arguable that an arbitration agreement existed and that the dispute fell within its scope.

The court determined that the alleged inconsistency was not apparent and that the interpretation of the contract required a thorough review of the factual matrix, which is best left to the arbitrator.

The court also rejected the argument that a multiplicity of proceedings (arbitration against Whittaker's and litigation against another defendant) was a reason to refuse the stay, as the Model Law's stay provision is mandatory.

The motion to stay the action and refer it to arbitration was granted.

This endorsement addresses the issue of costs following a trial where Arctic Spas Oakville Inc. (ASOI) was awarded damages against Blue Falls Manufacturing Ltd. The court awarded ASOI partial indemnity costs of $450,000, all inclusive, from Blue Falls.

The court denied ASOI's claim for substantial indemnity costs, finding the defendants' conduct, while lengthening the proceeding, did not meet the "reprehensible" standard.

The court also rejected Blue Falls' argument that Rule 49.10(2) (offer to settle) applied to limit ASOI's costs, determining that ASOI's recovery at trial, including pre-judgment interest and reasonable costs up to the offer date, exceeded the defendants' all-inclusive offer.

Costs were not awarded between the other plaintiffs and defendants due to evenly divided success.

During a trial regarding allegedly false warranty claims, the court made two evidentiary rulings.

First, the court found the plaintiffs breached the rule in Browne v. Dunn by failing to cross-examine a defence witness on evidence later adduced from customer witnesses to impeach him.

The court admitted the evidence but reserved the right to draw an adverse inference or adjust its weight.

Second, the court granted the defendants leave under Rule 53.08 to use an undisclosed document to cross-examine a plaintiff's witness, on the condition that the defendants recall their own witness to be cross-examined on the document.

During a trial, the defendants sought an order under Rule 53.02 of the Rules of Civil Procedure to tender the evidence of a software company representative by affidavit.

The plaintiffs objected, arguing the evidence was contentious and required cross-examination.

The court dismissed the request, finding the defendants failed to establish the evidence was uncontentious and noting the witness was available to testify virtually.

During a trial, the plaintiffs sought to admit an Industry Canada document into evidence under the public documents exception to the hearsay rule.

The defendants objected, arguing the document did not fit the statutory or common law categories of public documents.

The court dismissed the objection and admitted the document, finding it satisfied the four-part test for the public documents exception as it was prepared by a public official discharging a public duty, intended as a permanent record, and available for public inspection.

The plaintiff, General Motors of Canada Company, sought an injunction to restrain the defendants, including Unifor Canada and several individuals, from obstructing access to its headquarters.

The defendants had established a blockade following GM's announcement of a plant closure.

The court applied the three-part test for injunctive relief in labour disputes, finding that while GM established a prima facie case of nuisance, it failed to demonstrate irreparable harm not compensable by damages.

The court also considered the balance of convenience, acknowledging the significant impact of GM's decisions on autoworkers' livelihoods.

Ultimately, the court declined to exercise its discretion to grant the injunction.

The plaintiff employer sued two former salespeople and their new employer for breach of fiduciary duty and breach of confidence after the employees resigned and began soliciting the plaintiff's customers.

The defendants brought a motion for summary judgment to dismiss the action.

The court found that the former employees were ordinary salespeople with no managerial power or discretion, and therefore were not fiduciary employees.

The court also found no evidence that the employees misappropriated or misused any confidential information.

The motion for summary judgment was granted and the action was dismissed.

The parties sought costs following three segments of the discovery process, including motions for undertakings and refusals.

The plaintiff claimed misappropriation by a former employee who started a competing business, while the defendant counterclaimed for wrongful dismissal.

The Master awarded partial indemnity costs to the plaintiff for its successful refusals motion, partial indemnity costs to the defendants for their refusals motion (deferring expert costs to the trial judge), and ordered costs in the cause for both parties regarding a third motion involving aborted discoveries.

The Defendant successfully moved to set aside a default judgment obtained by the Plaintiff.

This endorsement addresses the Defendant's claim for substantial indemnity costs.

The Plaintiff, self-represented, opposed the costs, citing impecuniosity and discontinuance of the action.

The court considered factors under the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, emphasizing proportionality.

Despite the Plaintiff's unreasonable conduct and refusal to settle, the court found the Defendant's claimed legal fees excessive for a straightforward motion.

The court awarded the Defendant $8,000 in costs on a substantial indemnity basis.

The defendants brought a motion for security for costs under r. 56.01(1)(d) and (e) of the Rules of Civil Procedure, alleging the corporate plaintiffs lacked sufficient assets in Ontario and that the action was frivolous and vexatious.

During the lengthy motion, additional affidavit evidence from the plaintiffs’ accountant later demonstrated that the plaintiffs’ financial circumstances had improved, leading the defendants to withdraw the security for costs motion.

The remaining issue concerned costs of the motion.

The court held the defendants were justified in bringing the motion based on the initial lack of financial disclosure and the plaintiffs’ poor financial condition at the outset.

Costs of $15,000 were awarded to the defendants, partly because the court had granted the plaintiffs an indulgence by admitting late affidavit evidence.

Following the dismissal of a plaintiff’s motion for an interlocutory injunction, the court addressed costs.

The successful defendants sought partial indemnity costs up to the date of a settlement offer and substantial indemnity costs thereafter, while the plaintiff argued that costs should be in the cause because the underlying action remained unresolved.

The court held that settlement discussions related to the action as a whole and did not justify substantial indemnity costs for the motion.

Because the motion was self‑contained and dismissed in its entirety, the defendants were entitled to costs on a partial indemnity basis.

The court reduced the defendants’ claimed fees to an amount comparable to the plaintiff’s own costs estimate and awarded a global costs figure.

The plaintiff employer sought an interlocutory injunction against former employees and their new company alleging misappropriation of confidential information, breach of fiduciary duty, and breach of non‑solicitation clauses in employment agreements.

The court considered the test for interlocutory injunctions under RJR‑MacDonald and whether stronger proof was required in employment and restrictive covenant contexts.

The motion failed because the alleged confidential information consisted largely of generic consulting practices and there was no credible evidence that proprietary information had been taken or misused.

The alleged client and employee solicitations were disputed, unclear under the wording of the agreements, and occurred more than a year earlier, with no evidence of ongoing harm.

As the plaintiff failed to demonstrate irreparable harm or a clear breach of enforceable covenants, injunctive relief was denied.

The employer sought an interlocutory injunction restricting picketing during a lawful strike at one of its warehouse facilities.

The union’s picketing activities caused substantial delays for vehicles entering and exiting several warehouse locations, effectively disrupting operations despite remaining largely peaceful.

The court applied the interlocutory injunction framework from RJR‑MacDonald and considered the special context of labour disputes and the balance between property access rights and constitutionally protected expressive activity in picketing.

The court held that while employers are entitled to access their property, labour picketing may justify some degree of inconvenience and delay as part of the economic dynamics of a strike.

An injunction was granted permitting continued picketing but limiting the extent of delays in accessing the employer’s facilities.

Two wrongful dismissal actions settled at mediation, but the employer delayed payment of the agreed settlement funds beyond the customary 30‑day period.

The plaintiffs prepared a motion for judgment to enforce the settlements after repeated unanswered inquiries about payment.

The court rejected the employer’s argument that the motion was premature and criticized the allegation that opposing counsel breached professional conduct rules.

Finding that the defendant’s tardiness necessitated the motion preparation, the court awarded costs to compensate the plaintiffs for legal expenses incurred.

Following settlement of a security for costs motion by consent order requiring the corporate plaintiffs to post security into court, the court was asked to determine costs of the motion.

The plaintiffs argued the motion was unnecessary because they had offered undertakings from partners and allegedly accepted settlement proposals involving promissory notes.

The court held that a costs endorsement should not determine the merits of the underlying motion and applied the test of whether the moving parties’ position was clearly unreasonable.

It found the defendants reasonably proceeded with the motion, as the sufficiency of the undertakings and the existence of a concluded settlement were not self‑evident and the plaintiffs failed to provide timely details.

The moving parties, having obtained substantially the relief sought through the consent order, were awarded partial indemnity costs.