Matthew Joseph Latella

The moving parties sought to set aside two international arbitral awards under Article 34 of the UNCITRAL Model Law, alleging inability to present their case, excess of jurisdiction, and inadequate reasons.

The court found a procedural fairness breach where the arbitrator made a proper-party finding without submissions, but held the issue was not material in context because separate findings eliminated personal liability on other grounds.

The court rejected the jurisdiction and insufficiency-of-reasons challenges, emphasizing the narrow scope of intervention and deference to international arbitral awards.

Exercising discretion under Article 34, the court declined to order a new arbitration.

The application was dismissed.

The moving parties sought to quash the responding party's appeal of an order validating service of an application record.

The responding party, a foreign state, argued the order was final because it determined substantive rights regarding state sovereignty and the Hague Convention.

The Court of Appeal held that the order validating service was procedural and interlocutory, as it did not finally dispose of the dispute or deprive the responding party of substantive defences.

The motion was granted and the appeal was quashed.

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.

The Court of Appeal for Ontario allowed an appeal concerning an international commercial arbitration award.

The application judge had set aside the award due to a reasonable apprehension of bias by the arbitrator, who had accepted a second, unrelated arbitration engagement from the appellants' counsel without disclosure to the respondents.

The Court of Appeal held that the application judge erred by applying a subjective test for disclosure and bias, rather than the objective test mandated by the UNCITRAL Model Law.

The Court found no breach of the arbitrator's legal duty to disclose and no reasonable apprehension of bias, as the second arbitration involved no common parties or overlapping issues, and the arbitrator was not aware of the parties' subjective disclosure expectations.

The matter was remitted to the Superior Court to address other grounds for attacking the award.

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 moving parties (respondents in the main application) brought a motion to dismiss an application to set aside an arbitral award for lack of jurisdiction.

The responding parties (applicants in the main application) sought to set aside the award on the basis of a reasonable apprehension of bias, as the arbitrator had been retained by the moving parties' counsel in an unrelated matter.

The moving parties argued that under Articles 12 and 13 of the Model Law, the responding parties were required to submit their challenge to the arbitrator first, since the arbitration was still extant regarding costs and interest.

The court dismissed the motion, finding that the arbitrator was functus officio regarding the final award on the merits, and the responding parties were entitled to seek recourse under Article 34 of the Model Law.

The Plaintiff, a numbered corporation, sought summary judgment for HST payment on a property sale to the Defendant, Lucia Pessoa Park, amounting to $364,000.

The Defendant brought a cross-motion for summary judgment regarding municipal development fees owed by the Plaintiff.

The court dismissed the Plaintiff's claim for HST, finding the sale was exempt as a used residential unit under the Excise Tax Act, and that even if HST were payable, the Plaintiff was deemed to have collected it due to a statutory declaration.

The court granted the Defendant's cross-motion for development fees, which the Plaintiff had conceded.

The appellant appealed an order of the Superior Court of Justice dated October 20, 2017.

The Court of Appeal found no error in the motion judge's reasons and dismissed the appeal.

Costs were awarded to the respondent in the sum of $15,000 on a partial indemnity basis inclusive of disbursements and HST.

The appellants, holding foreign arbitral awards against the Kyrgyz Republic, sought declarations that the Republic owned shares in Centerra Gold Inc. registered to Kyrgyzaltyn JSC, a state-owned corporation.

The applications judge dismissed the applications, finding no evidence of a transfer of rights, express trust, or resulting trust.

The Court of Appeal upheld the decision, confirming that the governing agreement unambiguously established Kyrgyzaltyn as the beneficial owner of the shares and that the presumption of resulting trust was rebutted by the evidence of intention.

The appellants, out-of-province franchisors, appealed a motion judge's decision dismissing their challenge to the Ontario Superior Court's jurisdiction to hear an action brought by eight Saab dealerships, five of which were located outside Ontario.

The Court of Appeal upheld the motion judge's finding of jurisdiction simpliciter based on the appellants carrying on business in Ontario, noting that joining the out-of-province plaintiffs promoted commercial efficiency.

The Court also upheld the motion judge's forum non conveniens analysis and costs award.

The appeal was dismissed.

This costs endorsement follows the dismissal of applications by Belokon, Entes, Sistem, and Stans (the "Applicants") to recognize and enforce arbitral awards against the Kyrgyz Republic (the "Republic"), and to declare an exigible ownership interest of the Republic in Centerra Gold Inc. shares held by Kyrgyzaltyn JSC.

The Republic and Kyrgyzaltyn (the "Respondents") sought costs.

The court awarded costs on a partial indemnity basis, rejecting claims for full or substantial indemnity.

It also determined that costs should be payable on a several, not joint and several, basis due to the unrelated nature of the Applicants and the court-directed common issue hearing.

The court limited the costs award to the common issue hearing, excluding prior jurisdiction motions or general recognition application costs, and considered previous compensation for materials.

The applicants sought a declaration that the Kyrgyz Republic held an exigible ownership interest in shares of Centerra Gold Inc. registered in the name of its wholly-owned subsidiary, Kyrgyzaltyn JSC, to enforce arbitral awards.

The court dismissed the applications, finding that the Agreement on New Terms (ANT) unambiguously established Kyrgyzaltyn JSC as the beneficial owner of the shares, not the Republic.

The court rejected arguments based on contract interpretation under New York law and trust principles under Canadian law, emphasizing the separate legal personality of the subsidiary and the lack of evidence for an ownership interest or trust.

This costs endorsement addresses the plaintiffs' request for partial indemnity costs following their successful resistance of a motion brought by the defendants.

The court found the plaintiffs' claim for $50,130.33, inclusive of fees, disbursements, and HST, to be reasonable, considering the complexity and importance of the underlying motion.

The court rejected the defendants' arguments to deny costs, including those related to the conduct of the first motion judge and the plaintiffs' affidavit evidence, emphasizing that the defendants' motion was successfully resisted.

The defendants moved to set aside service ex juris, dismiss for want of jurisdiction, or stay the action on the basis of forum non conveniens in a franchise dispute.

The plaintiffs sought a declaration of valid rescission of Saab Dealer Sales and Service Agreements under the Arthur Wishart Act (Ontario) and Alberta Franchises Act, and damages for statutory misrepresentation or breach of contract.

The court found a real and substantial connection to Ontario because the defendant franchisor carried on active business in the province.

The court also determined that California was not a clearly more appropriate forum, considering factors such as the residence of plaintiffs, location of witnesses, governing law, and the avoidance of proving Ontario law in a foreign jurisdiction.

The motion was dismissed.

The moving parties sought leave to appeal an interlocutory order striking out an affidavit filed in opposition to an application to recognize and enforce a foreign arbitral award.

The motion judge had struck the affidavit on the basis that it was clearly irrelevant and scandalous.

The court dismissed the motion for leave to appeal, finding no conflicting decisions on matters of principle and no good reason to doubt the correctness of the motion judge's order.

The defendants appealed a motion judge's decision dismissing their motion to stay or dismiss the action for lack of jurisdiction or forum non conveniens.

The Court of Appeal allowed the appeal, finding that the motion judge's conduct gave rise to a reasonable apprehension of bias.

The motion judge had adjourned the motion on his own initiative to help the plaintiffs, dismissed the motion without hearing oral argument on key issues, made unwarranted findings of abuse of process, repeatedly criticized the defendants' counsel, and released delayed reasons that appeared to be an after-the-fact justification for his decision.

A new hearing before a different judge was ordered.

The applicant, a Chartered Professional Accountant, sought judicial review to quash the respondent's decisions to investigate him and issue allegations of professional misconduct for failing to cooperate.

The applicant argued the respondent exceeded its jurisdiction and breached natural justice by refusing to identify the complainant.

The Divisional Court dismissed the application, finding it premature to intervene before the administrative process concluded and holding that the applicant had a duty to cooperate with the investigation.

Following a successful motion by the respondent to set aside a Mareva injunction, the court determined the appropriate scale and quantum of costs.

The respondent sought substantial indemnity costs of $138,144.10, while the applicant argued for partial indemnity costs of $55,000.

The court found no conduct justifying substantial indemnity costs and awarded partial indemnity costs fixed at $75,000 for fees plus disbursements, considering the complexity and the large amount at stake.

The applicant brought a motion to strike an affidavit filed by a respondent in an application to recognize and enforce a foreign arbitral award under the International Commercial Arbitration Act.

The affidavit alleged that the applicant had engaged in money laundering and other criminal activity relating to the investment that was the subject of the arbitration.

The court held that the affidavit attempted to relitigate issues already determined by the arbitral tribunal and would improperly create a “trial within a trial” on the merits of the award.

Because recognition and enforcement proceedings under the UNCITRAL Model Law permit only narrow defences, the affidavit was clearly irrelevant and scandalous.

The affidavit was struck, though it could remain in the record solely as part of the Paris annulment proceedings.

A state-owned corporation moved to set aside or vary a Mareva injunction freezing shares and dividends of a Canadian mining company in aid of enforcing a foreign arbitral award against a sovereign state.

The moving party argued the injunction should be set aside for lack of full and frank disclosure and because subsequent appellate decisions undermined the factual basis relied upon to establish that the state beneficially owned the frozen shares.

The court held the applicant had exercised reasonable diligence and did not breach the duty of full and frank disclosure.

However, later appellate decisions overturning related rulings significantly weakened the evidentiary basis supporting the injunction.

The court ordered the Mareva injunction set aside at a future date, varied it immediately to reduce the amount of frozen assets, and permitted the award creditor time to bring a new motion on notice.