Kylie de Chastelain

The court considered whether service of an application record on the Republic of Argentina in a proceeding to enforce a U.S. judgment had to comply with the Hague Convention or could be validly effected through diplomatic channels under the State Immunity Act.

The court held that the State Immunity Act provides three non-hierarchical, alternative methods for service on a foreign state, and that service through diplomatic channels was valid.

The Republic’s motion for a declaration that it had not been duly served was dismissed, and costs were awarded to the applicants.

This costs endorsement addresses the aftermath of Remington Georgetown Inc.'s unsuccessful attempt to set aside an arbitration decision under the Ontario New Home Warranties Plan Act.

The court finds that both the set-aside application and a related Rule 14 application lacked merit, and that the respondent, Tarion Warranty Corporation, is entitled to full indemnity costs.

The court relies on the broad indemnity provision in the parties' Vendor Agreement and established case law regarding costs thrown away.

The endorsement also criticizes the applicant's unfounded allegations of arbitrator bias and concludes that the applicant must pay $212,000 in costs.

The court dismissed Remington Georgetown Inc.'s application to set aside an arbitration award under the Ontario New Home Warranties Plan Act.

The applicant, a residential developer, challenged the arbitrator’s decision on four grounds: excess of jurisdiction, procedural unfairness, bias, and failure to provide reasons.

The court found no merit in any of the grounds, holding that the arbitrator acted within her jurisdiction, provided adequate reasons, and that the applicant’s complaints were attempts to appeal the merits of the decision, which is not permitted under the Act or the arbitration agreement.

The court also addressed the admissibility of affidavit evidence and provided directions for costs submissions.

This costs endorsement follows the court’s decision on an application regarding the enforcement of an agreed procedure in a Share Purchase Agreement between CLEAResult Canada Inc. and the respondents.

The court granted the application, allowing the appointed Independent Auditor to proceed with the expert adjudication of the Reverse Earn-Out Calculation.

The parties had agreed that the wholly successful party would be paid $60,000 in costs.

However, due to a lack of clarity in the applicants’ position regarding the auditor’s mandate, the court reduced the costs award to $45,000, to be paid by the respondents.

The applicants sought to enforce a Share Purchase Agreement (SPA) provision requiring an Independent Auditor (BDO) to determine a "Reverse Earn-Out Calculation." The respondents argued that other disputes under the SPA needed court adjudication first, claiming BDO lacked necessary information and that the applicants breached earn-out covenants.

The court held that the expert adjudication by BDO should proceed expeditiously as agreed in the SPA, as it is a distinct process from the respondents' claims for breach of covenants, which can be pursued in a separate action for indemnity.

The court clarified BDO's mandate is limited to financial determination, not factual investigation of covenant breaches, and dismissed the respondents' attempt to have the court direct BDO on information use.