ADR/Mediation Services

This is an appeal from a commercial arbitration award that found a metal purchase and sale agreement between Franco-Nevada and Taseko had been frustrated due to the denial of federal environmental approvals for a gold mine project.

The Superior Court of Justice, applying a reasonableness standard of review, found the arbitrator's conclusion unreasonable.

The court held that the arbitrator misapplied the test for frustration by failing to properly consider foreseeability and by misinterpreting the contract as project- and timeline-specific, despite provisions allowing for changes and a long term.

The appeal was granted, overturning the frustration finding.

A motion for a sealing order for confidential information was also granted.

The appellant, Knights of Columbus, brought a motion to file a five-page reply factum in an appeal concerning the dismissal of their motion to stay an action in favour of arbitration.

The respondent, Neil Goberdhan, did not oppose the motion but sought conditions, including permission to file a sur-reply factum.

The motion judge dismissed the request for a reply factum, emphasizing that the Rules of Civil Procedure do not generally provide for such filings in civil appeals, except for leave to appeal motions, and that oral argument is the appropriate stage to clarify issues.

The court found the case was not exceptional enough to justify a reply factum and dismissed the motion without costs.

This is an appeal from a Superior Court decision that denied leave to appeal an arbitration award exceeding $100 million.

The central issue was whether the arbitration agreement precluded appeals on questions of law, specifically interpreting phrases like "finally settled" and "final and binding" in the context of the Arbitration Act, 1991 and ICC Rules.

The Court of Appeal upheld the application judge's finding that the arbitration agreement precluded appeals, thereby confirming that leave to appeal was not available.

The court also addressed and dismissed a motion to quash the appeal, clarifying the narrow circumstances under which a denial of leave to appeal by a Superior Court judge can be appealed to the Court of Appeal.

This is a costs endorsement following a motion by The Canada Soccer Association Incorporated (Canada Soccer) for an interim stay of an arbitral award and a cross-motion by Association de Soccer de Brossard (ASB) to enforce the award.

The court had previously dismissed Canada Soccer's motion and granted ASB's cross-motion.

In this endorsement, ASB sought substantial indemnity costs, while Canada Soccer argued for its own costs due to alleged bad faith by ASB or deferral of costs to the application judge.

The court found no evidence of bad faith by ASB and declined to defer costs.

It awarded ASB partial indemnity costs up to the date of its Rule 49.10 offer to settle and substantial indemnity costs thereafter, totaling $65,367.25, to be paid within 30 days.

The applicants, Toronto District School Board and Simcoe County District School Board, sought leave to appeal an arbitration decision that dismissed their claim for a share of a guarantee fund upon terminating their membership in the Ontario School Boards’ Insurance Exchange (OSBIE).

The court granted leave to appeal, determining that the interpretation of the standard form Reciprocal Insurance Exchange Agreement constituted a question of law, which is subject to correctness review and of precedential value, thus satisfying the criteria for granting leave under the Arbitration Act.

The appellant brought a motion for leave to appeal an arbitration award.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the respondent in the fixed amount of $3,300.

The applicants sought to set aside two international arbitral awards, alleging reasonable apprehension of bias, exceeding jurisdiction, and inadequate reasons by the arbitrator.

The core issue was the arbitrator's failure to disclose a concurrent retainer from the respondents' counsel while the arbitration was ongoing.

The court found a reasonable apprehension of bias, emphasizing the importance of arbitrator impartiality and the specific context of the parties' pre-appointment concerns regarding relationships with counsel.

The awards were set aside, and a new arbitration was ordered.

The applicant sought recognition and enforcement of a foreign arbitral award from the Shenzhen Court of International Arbitration against the respondents, totaling over $120 million.

The respondents opposed on grounds of improper notice and inability to present their defense, and also moved to admit fresh evidence regarding a related U.S. enforcement proceeding.

The court dismissed the fresh evidence motion, finding it not sufficiently probative.

On the main application, the court found that the respondents did not receive proper notice of the arbitration proceedings and were unable to present their case, despite prior Chinese court decisions deeming service sufficient.

Consequently, the application for recognition and enforcement of the foreign arbitral award was dismissed.

The applicant, Derek Van Doorn, brought a motion under section 10 of the Arbitration Act, 1991, seeking the court's appointment of an arbitrator to resolve an underlying law firm partnership dispute with the respondent, Loopstra Nixon LLP.

The partnership agreement mandated arbitration but lacked a procedure for arbitrator appointment.

The court considered three candidates proposed by the parties and ultimately appointed The Honourable Frank J.C. Newbould, K.C., finding him to be the best candidate given his extensive adjudicative and arbitral experience, particularly in law firm partnership disputes.

The Applicant sought to set aside an arbitration award concerning the sale of a jointly owned property, arguing the arbitrator lacked jurisdiction to invalidate prior court orders granting her a right of first refusal.

The Respondent sought dismissal, arguing the prior orders were not final and the arbitrator acted within scope.

The court found the arbitrator correctly determined he lacked jurisdiction to enforce court orders, but erred in concluding he could invalidate them or direct a sale without formal agreement.

The court set aside the portion of the award requiring the property's sale and the reimbursement of expenses, upholding the Applicant's right of first refusal.

This is an appeal of an arbitration award concerning the beneficial ownership of shares in a company.

The arbitrator had found that an email created an express trust, granting the respondent 50% of the applicant's personal shares.

The court granted leave to appeal, finding that the arbitrator erred in law by allowing the email to overwhelm the terms of a formal trust agreement.

The court varied the arbitrator's decision, ruling that only the formal Burwell Family Trust existed and the email did not create a separate express trust for the personal shares.

The court upheld the arbitrator's jurisdiction regarding the scope of the arbitration and his decision on the Limitations Act.

The issue of proprietary estoppel was remitted back to the arbitrator for determination and final disposition.

The applicant sought to set aside an arbitral award and a costs award, and for leave to appeal, under sections 45 and 46(1)6 of the Arbitration Act, 1991.

The application alleged procedural unfairness, exceeding jurisdiction by the arbitrator, and insufficient/non-independent reasons.

The court dismissed the application, finding that the arbitration process was fair, the parties had ample opportunity to present their cases, the arbitrator did not exceed jurisdiction by not conducting a mediation (as the parties had moved to adjudication), and the reasons for the award were adequate and independent.

The Canadian Soccer Association (Canada Soccer) moved for an interim stay of an arbitral award that ordered it to grant Association de Soccer de Brossard (ASB) a National Youth Club License.

ASB brought a cross-motion to enforce the arbitral award.

The court dismissed Canada Soccer's motion, finding no serious issue to be tried as its grounds for setting aside the award related to the merits of the arbitrator's decision, not procedural fairness.

The court also found no irreparable harm to Canada Soccer and that the balance of convenience strongly favoured ASB.

ASB's cross-motion to enforce the arbitral award was granted.

The defendants, Costco entities, brought a motion to stay an action initiated by TicketOps Corporation, alleging breach of contract, negligent misrepresentation, and conversion of intellectual property.

The motion was based on arbitration clauses in agreements between the parties.

The plaintiff argued that the claims primarily related to platforms not covered by the arbitration clauses.

Applying the Haas v. Gunasekaram framework, the court found that the defendants had arguably demonstrated that the arbitration agreements applied to all platforms in dispute.

The plaintiff failed to prove that the arbitration provisions were clearly inoperative or unconscionable.

Consequently, the court stayed the action in favour of arbitration, acknowledging the potential for fragmented adjudication due to multiple arbitral forums.

The appellant sought to overturn a motion judge's finding that a settlement was reached in mediation and the subsequent granting of partial summary judgment.

The Court of Appeal affirmed the motion judge's decision, finding no palpable and overriding error or error in principle.

The appellate court agreed that substantial evidence supported the existence of a settlement agreement, despite the absence of written minutes, and upheld the appropriateness of partial summary judgment given the limited remaining issues.

The appeal was dismissed.

This is a costs endorsement following a successful motion by Infinitus (defendant) to stay an action brought by Justmark (plaintiff) due to an arbitration clause.

The court also addressed costs for earlier motions dismissed by consent, where Infinitus Innovations (a related entity) was involved.

The court fixed partial indemnity costs for Infinitus Innovations for the January motions at $35,000 and for Infinitus for the stay motion at $19,500.

The court rejected Justmark's arguments to defer costs to arbitration or for substantial indemnity costs, emphasizing that substantial indemnity is reserved for rare cases of sanctionable behavior.

This is a costs endorsement following an appeal decision where the Court of Appeal allowed the appeal, restored an arbitrator's award, and awarded costs of the appeal to the appellant.

The court set aside the application judge's original costs order and awarded costs of the proceedings before the application judge to the appellant, Halton Condominium Corporation No. 137, in the sum of $8,083.33, inclusive of disbursements and applicable taxes.

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.