Michael A. Valo

The applicants sought to remove the sole arbitrator in a complex construction arbitration, alleging his extensive questioning of witnesses created a reasonable apprehension of bias.

The court found it had jurisdiction to hear the application under the Arbitration Act, 1991, and that the application was not out of time.

However, the court dismissed the application on the merits, finding that the arbitrator's interventions were a legitimate exercise of his truth-seeking function and subject matter expertise, and did not demonstrate bias or pre-judgment.

The appellant appealed the dismissal of its application for judgment against the respondent for $7,451,662.65 under a settlement agreement.

The parties had contracted for construction of the western portion of the Eglinton Crosstown Tunnel.

The respondent was required to obtain third-party liability insurance, with the appellant as an additional insured.

The appellant was responsible for paying 100% of deductibles for third-party claims.

After substantial performance, the parties settled outstanding contract disputes with mutual releases that included a clause preserving rights and obligations regarding insurance policies.

The respondent withheld $6.4 million from the final settlement payment, claiming it was due for outstanding deductible claims.

The appellant argued the settlement released it from deductible obligations.

The motion judge dismissed the application, finding the release did not release the appellant from its deductible obligations.

The Court of Appeal upheld this decision, finding the release language clearly preserved all rights and obligations relating to insurance policies, including deductible payment obligations.

The applicant sought judgment for $7.45 million pursuant to a settlement agreement.

The respondent claimed a right of set-off for insurance deductibles under the construction contract's owner-controlled insurance policies.

The applicant argued that a release executed as part of the settlement extinguished the respondent's right to claim the deductibles.

The court interpreted the release in its factual matrix and concluded it was limited to the five specific disputes settled, and did not terminate the applicant's ongoing obligation to pay deductibles under the continuing contract.

The application was dismissed.

The appellant, a contractor, challenged an international commercial arbitral award arising from a US$258 million pipeline construction project in Madagascar.

The appellant sought to set aside portions of the award on grounds of lack of jurisdiction over counterclaims, failure to exercise jurisdiction over prolongation costs, denial of procedural fairness regarding retention monies, hydro seeding costs, and costs awards, and violation of public policy regarding alleged double recovery from forfeiture of tranche payments and liquidated damages.

The application judge dismissed all claims.

On appeal, the court upheld the dismissal, finding that the tribunal had jurisdiction to hear the counterclaims, that the prolongation costs claim was addressed by the tribunal, that procedural fairness was afforded on all issues, and that the award did not violate public policy.

The applicant sought to set aside an international commercial arbitration award under the International Commercial Arbitration Act.

The arbitration involved a dispute over the construction of a pipeline in Madagascar.

The applicant argued the arbitral tribunal exceeded its jurisdiction, denied the applicant the right to present its case, and made findings contrary to Ontario public policy.

The Superior Court of Justice dismissed the application, finding no jurisdictional errors, no denial of procedural fairness, and no double recovery that would offend public policy.

The court also noted it would have exercised its discretion to uphold the award even if minor procedural errors had occurred.