James Cooke

The parties engaged in an international commercial arbitration regarding a contract for the sale of tomatoes.

The arbitrator awarded the respondent $45,516.95 USD.

The applicant sought to set aside the award, initially under the Arbitration Act, and later attempted to rely on a basket clause to seek relief under the International Commercial Arbitration Act (ICAA) after the three-month limitation period expired.

The court held that the applicant could not use a basket clause to assert a new cause of action out of time.

Furthermore, the court found that even if the ICAA applied, the arbitrator's alleged errors in interpreting trade terms did not conflict with the public policy of Ontario.

The application to set aside the award was dismissed, and the cross-application to recognize and enforce the award was granted.

The plaintiff brought a motion to set aside orders dismissing several construction lien and related breach of trust actions for delay under Rule 48.14 of the Rules of Civil Procedure.

The court applied the Reid factors governing relief from dismissal orders under Rule 37.14 and considered whether the delay was adequately explained, whether the missed deadlines were inadvertent, whether the motion was brought promptly, and whether reinstatement would prejudice the defendants.

The court found the litigation delay was extreme and largely attributable to repeated failures by the plaintiff’s former counsel to comply with court‑ordered timelines, coupled with insufficient oversight by the plaintiff.

Although the motion to set aside was brought promptly once the dismissal became known, the delay was not inadvertent and reinstatement would cause real prejudice given the nature of lien and trust claims.

Applying a contextual approach, the court concluded the balance favoured finality and refused to set aside the dismissal orders.