David I.W. Hamer

The respondent to an application for recognition and enforcement of a foreign arbitral award moved to adjourn enforcement pending the outcome of an annulment proceeding in the originating jurisdiction.

The court considered Articles 35 and 36 of the UNCITRAL Model Law incorporated into the International Commercial Arbitration Act.

Applying the balance of convenience approach developed in Canadian jurisprudence, the court held that only an "issue to be tried" was required and that the possibility of the award being set aside justified a temporary adjournment.

However, given the low likelihood of success in the annulment proceeding and the validity of the award, the court exercised its discretion to require partial security as a condition of the adjournment.

The plaintiff was injured in a skiing accident and subsequently underwent spinal surgery performed by the defendant.

During the surgery, an instrument slipped, causing further nerve damage.

The defendant informed the plaintiff of the surgical accident the following day.

The plaintiff commenced an action against the ski resort but did not sue the defendant until nearly five years later, after receiving an expert report from the ski resort's counsel suggesting the defendant breached the standard of care.

The defendant moved for summary judgment on the basis that the action was statute-barred.

The court granted the motion, finding that the plaintiff failed to exercise due diligence in investigating the surgical accident, and the claim was discoverable well before the receipt of the expert report.