Cheryl Labiris

The responding parties brought an application seeking declaratory relief regarding the moving parties' alleged failure to retain an operator for a light rail transit project.

The moving parties brought a motion to stay the application in favour of arbitration, relying on a dispute resolution clause in prior Minutes of Settlement.

The court granted the stay, applying the competence-competence principle and finding that the moving parties established an arguable case that the dispute fell within the arbitration agreement.

The court also found no undue delay by the moving parties in seeking the stay.

This is a costs endorsement from the Court of Appeal for Ontario, following an appeal where the lower court's judgment and costs order were set aside and the application remitted for rehearing.

The parties were unable to agree on the disposition of the original application costs.

The Court of Appeal determined that the fairest approach was to leave the issue of the application costs to the trier of fact on the rehearing, whether before a Superior Court judge or in an arbitral process.

Appeal costs had previously been awarded to the appellants.

This is an appeal concerning the interpretation of a complex project agreement for the Eglinton Crosstown LRT in the context of the COVID-19 pandemic.

The application judge had found that a specific contractual provision (s. 62.1(c)) requiring a "Variation Enquiry" was triggered by an internal email from the Crown agencies to their own staff, which was never sent to the consortium.

The Court of Appeal found that the application judge made a palpable and overriding error in concluding that this internal email constituted notification to the consortium.

The appeal was allowed, the original judgment set aside, and the application remitted to the Superior Court for a rehearing to consider other arguments, including good faith and the indivisibility of the Crown, which the application judge had not addressed.