ADR/Mediation Services

The applicants, Steven Bulut and 1091369 Ontario Inc., sought leave to appeal an arbitral award granting Marko N. Bulut a 50% constructive trust interest in real property.

The court declined to grant leave, finding no error of law in the arbitrator’s application of the law of constructive trust, unjust enrichment, limitation periods, or issue estoppel/abuse of process.

The court also declined to recognize the award under s. 50 of the Arbitration Act at this time, as no application for such relief was before the court and certain matters remained outstanding before the arbitrator.

The appellant, Binance Holdings Limited, appealed a motion judge's order dismissing its motion for a stay of proceedings in favour of arbitration.

The underlying dispute involved a proposed class action by purchasers of cryptocurrency derivatives against Binance for alleged violations of the Ontario Securities Act.

The motion judge had found the arbitration clause void due to public policy and unconscionability, and that exceptions to the competence-competence principle applied, allowing the court to decide the validity of the arbitration clause.

The Court of Appeal dismissed the appeal, affirming the motion judge's decision that the arbitration clause was inaccessible and unconscionable, effectively insulating Binance from meaningful challenge, and that the court properly exercised jurisdiction over the validity of the arbitration agreement.

The Applicant condominium sought an order appointing an arbitrator and confirming the arbitrator's jurisdiction over issues in its Fresh as Amended Notice of Arbitration.

The Respondent developer sought to quash the notice, arguing repudiation of a prior agreement to appoint a specific arbitrator and that a third party (Gooderham) should be involved due to new matters.

The court granted the Applicant's request to appoint the agreed-upon arbitrator, finding no repudiation.

However, the court deferred the determination of the arbitrator's jurisdiction, mandate, and whether the third party should be joined to the arbitrator himself, consistent with the principle that arbitrators can rule on their own jurisdiction.

The applicant brought a motion to strike the respondent's affidavits, arguing they contained inadmissible hearsay, opinion, argument, and constituted "fresh evidence" without leave.

The court emphasized the strict rules of evidence for affidavits, noting a troubling trend of non-compliance.

The court struck several paragraphs for inadmissible hearsay due to failure to specify sources and belief, and for inadmissible opinion and argument from lay witnesses.

The court rejected the "fresh evidence" argument, clarifying that the tests for fresh evidence do not apply to evidence filed before the main application hearing.

Leave to amend was granted for some struck paragraphs where deficiencies could be cured, but denied for others, particularly those containing opinion evidence from unqualified affiants.

No costs were awarded due to divided success and unreasonable positions taken by both parties.

Mattamy (Downsview) Limited sought to set aside an arbitration award under s. 46 of the Arbitration Act, 1991, arguing the arbitrator exceeded jurisdiction and committed procedural unfairness by refusing to admit relevant evidence.

The court found the arbitrator did not exceed jurisdiction as the "New Issue" fell within the broad scope of the arbitration.

However, the court found procedural unfairness and a failure of natural justice due to the arbitrator's refusal to admit the "REALPAC Handbook" evidence, which was relevant to the "New Issue" he himself raised, especially given the respondents did not object and no formal motion was allowed.

The court emphasized that procedural fairness is an independent right, and its denial invalidates the decision regardless of the likely outcome.

This motion concerned an application by Tower-EBC G.P./S.E.N.C. (TEBC) to enforce two arbitral awards (a Partial Final Award on liability and damages, and a Final Award on costs) against Baffinland Iron Mines Corporation and Baffinland Iron Mines LP (BIM).

BIM raised several defenses, including a pending application to set aside or appeal the awards, which had previously been dismissed by the court.

The court granted TEBC's application to enforce both awards, confirming the awarded amounts for damages and costs, with a condition regarding the transfer of equipment title and excluding "applicable taxes" as not provided for in the original arbitral awards.

Pre-judgment interest was maintained as per the Tribunal's award.

The defendants brought a motion seeking to enforce an arbitration clause, dismiss or stay the action, or alternatively, for summary judgment on limitation period grounds or to determine no cause of action against the individual defendant.

The court dismissed the motion, finding that the defendants had unduly delayed in bringing the motion and that the limitation period for commencing arbitration had not expired when the action was initiated.

The court also determined that the intentional tort claim against the individual defendant fell outside the scope of the arbitration agreement.

The applicant husband initiated parallel divorce proceedings in Tennessee, prompting the respondent wife to seek an anti-suit injunction and enforcement of prior Ontario arbitration awards.

The court found the Ontario arbitration awards valid and enforceable, rejecting the applicant's arguments to set them aside based on statutory provisions or alleged lack of consent.

The court also granted the anti-suit injunction, determining Ontario remained the appropriate forum with the closest connection to the divorce application and parties, and that no injustice would result from preventing the Tennessee action.

The appellant, a condominium corporation, sought to appeal a motion judge's decision staying its action in favour of arbitration.

The respondents moved to quash the appeal on the basis that it was barred by section 7(6) of the Arbitration Act, 1991.

The Court of Appeal allowed the motion to quash, finding that the appeal was statutorily barred.

The court rejected the appellant's arguments that it was denied natural justice and that the pith and substance of its claim was an oppression remedy under the Condominium Act that could not be precluded by arbitration clauses.

The court found that the motion judge correctly applied the test for determining whether claims fell within the scope of arbitration clauses and that the arbitrator could determine its own jurisdiction.

The appellants sought to appeal a motion judge's decision dismissing their motion to stay an action in favour of arbitration.

The respondents raised a jurisdictional objection based on section 7(6) of the Arbitration Act, 1991, which provides that there is no appeal from the court's decision on a motion to stay.

The Court of Appeal held that section 7(6) precludes any appeal from a decision on a motion to stay, whether granting or refusing the stay, and therefore dismissed the appeal on jurisdictional grounds without reviewing the motion judge's analysis.

The Court of Appeal for Ontario heard motions to quash two appeals brought by 108 Media Corporation from decisions of an application judge.

The first appeal concerned a refusal to grant leave to appeal from an arbitral award under section 45(1) of the Arbitration Act.

The second appeal concerned a decision recognizing and enforcing the arbitral award dated December 11, 2017.

The court found that no appeal lies from a refusal to grant leave to appeal on the merits and that section 50(3) of the Arbitration Act deprives a judge of jurisdiction to refuse to enforce an arbitral award except in certain circumstances not present here.

Both appeals were quashed and costs were awarded to BGOI Films Inc. on a higher scale due to the appellant's dilatory litigation strategy.

The applicants sought an urgent interlocutory injunction or stay to prohibit an arbitrator from hearing further proceedings related to HST issues, pending the determination of an application for leave to appeal the arbitrator's award.

The court dismissed the motion, finding that the applicants failed to establish a serious issue to be tried, irreparable harm, or that the balance of convenience favored granting the injunction.

The court emphasized deference to the arbitrator's scheduling decisions and the limited scope for judicial intervention in arbitration matters, particularly when a party attempts to re-litigate issues or change positions taken during the arbitration.

The appellant brought a proposed class action on behalf of Uber food delivery drivers, claiming they were employees entitled to protections under the Employment Standards Act, 2000 (ESA).

The service agreement required arbitration in the Netherlands under ICC Rules.

The motion judge granted a stay in favour of arbitration.

The Court of Appeal allowed the appeal, finding the arbitration clause invalid on two independent grounds: (1) it constituted illegal contracting out of an employment standard (the complaint investigation process under s. 96 of the ESA), contrary to s. 5(1) of the ESA; and (2) it was unconscionable at common law due to prohibitive costs (US$14,500 upfront), significant inequality of bargaining power, and the absence of independent legal advice.

The court held that validity of arbitration agreements is a matter for the court to determine under s. 7(2) of the Arbitration Act, 1991, not the arbitrator.

The respondent/appellant (Mr. Petersoo) appealed an arbitration award concerning custody, mobility, and imputed income, and a costs award.

He argued procedural unfairness regarding late notice of mobility issues, misapprehension of evidence, reliance on inadmissible evidence, and failure to consider children's views and the maximum contact principle.

The court found fundamental procedural unfairness in the arbitration regarding parenting issues due to lack of proper notice on mobility, setting aside that part of the award.

The court upheld the financial issues award, finding no error of law in the arbitrator's imputation of income due to Mr. Petersoo's disclosure failings.

Leave to appeal the costs award was denied as it involved questions of fact, not law.

The parenting issues were remitted for a new arbitration before a different arbitrator, and interim parenting arrangements were ordered, increasing Mr. Petersoo's parenting time.

The appellant appealed an arbitration award concerning spousal support, life insurance, and medical benefits.

The arbitrator had conducted a de novo review of the separation agreement's support provisions, leading to a step-down and eventual termination of spousal support.

The appellant argued the arbitrator erred in interpreting the scope of the review and in exercising discretion.

The court dismissed the appeal, finding the arbitrator correctly interpreted the separation agreement as allowing a de novo review and did not make palpable and overriding errors in her discretionary decisions regarding support and costs.

Motion to extend time to seek leave to appeal from a Superior Court decision confirming an arbitral award.

The moving parties' counsel missed the 15-day deadline by 7 days due to mistakenly believing the deadline was 30 days.

The respondent conceded the delay was caused by counsel error with no prejudice, but argued the proposed appeal lacked merit.

The court found arguable merit in the procedural fairness issue regarding the arbitrator's refusal to arbitrate disputes involving one of the moving parties without inviting submissions.

The motion was allowed, granting the moving parties 10 days to file a motion for leave to appeal, with costs fixed in their favour.

York Condominium Corporation No. 201 (YCC 201) sought leave to appeal an arbitration award and to have it set aside.

The arbitration concerned disputes among three condominium corporations regarding their obligations to fund a shared recreation complex under a shared facilities agreement (SFA).

The Arbitrator had ruled that the SFA did not require audited financial statements or compliance with the Ontario Business Corporations Act (OBCA) as preconditions for monthly operating expense payments.

The court found that YCC 201's grounds for appeal raised questions of mixed fact and law, not pure questions of law, and were therefore not appealable under s. 45(1) of the Arbitration Act, 1991.

Alternatively, the Arbitrator's interpretation of the SFA was deemed reasonable.

The application to set aside the award, based on allegations of unfair treatment due to the Arbitrator's procedural rulings, was also dismissed, as the rulings merely determined the scope of an arbitration phase and did not preclude YCC 201 from raising issues later.

The court issued a costs endorsement following a successful motion by the respondents to stay the applicant's oppression relief application due to an arbitration clause in a Unanimous Shareholders' Agreement.

Despite the respondents' success on the stay motion, the court denied costs to both parties.

The court found both parties blameworthy for initiating litigation without invoking the arbitration clause, but deemed the respondents' conduct more blameworthy for unilaterally terminating the applicant's employment and excluding him from the business in breach of the USA before seeking protection of the arbitration clause.