ADR/Mediation Services - ONCA

The Court of Appeal for Ontario dismissed the appeal by Jagtar Dhaliwal and Voxx Sports Inc. from a Superior Court decision upholding an arbitrator’s refusal to recuse himself for bias.

The appellants alleged both a reasonable apprehension of bias and actual bias, based on the arbitrator’s prior involvement with respondents’ counsel and comments about the veracity of Mr. Dhaliwal’s affidavit.

The Court found no merit in either claim, holding that the arbitrator’s conduct did not give rise to a reasonable apprehension of bias and that adverse credibility findings do not, on their own, establish actual bias.

The appeal was dismissed with costs to the respondents.

The Court of Appeal for Ontario dismissed an appeal by Denver Davis from two orders: one staying a proposed class action against Amazon in favour of arbitration, and the other dismissing the motion for certification of the class action.

The class action alleged Amazon was liable for breach of employment contracts, breach of good faith, unjust enrichment, and negligence, and sought damages on behalf of approximately 73,000 delivery workers.

The court held that the motion judge did not err in finding that Amazon was not a common employer of the delivery associates (DAs) employed by third-party logistics companies, and that the requirements for certification were not met.

The appeal was dismissed and costs awarded to the respondents.

The Court of Appeal for Ontario heard a motion to quash a motion for leave to appeal from a Superior Court decision.

The Superior Court had dismissed an application to review an arbitrator's jurisdiction decision, finding the responding parties had waived their right to object.

The Court of Appeal determined it lacked jurisdiction to hear an appeal from the application judge's order, citing s. 17(9) of the Arbitration Act, 1991, which explicitly states there is no appeal from a court's decision on a preliminary question of an arbitrator's jurisdiction.

The court found the arbitrator's jurisdiction ruling was indeed a preliminary question, despite its timing.

Consequently, the motion for leave to appeal was quashed, and costs were awarded to the moving parties.

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 Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC) brought a motion for leave to intervene as a friend of the court in an appeal concerning the test for procedural unfairness under the Model Law in international commercial arbitration.

The underlying appeal involved an arbitral claim by Vento Motorcycles Inc. against the United Mexican States under NAFTA, where Vento alleged denial of procedural fairness.

CIPPIC proposed an alternative "material" procedural fairness violation test.

The Court of Appeal dismissed CIPPIC's motion for leave to intervene, finding that CIPPIC did not sufficiently link its expertise to the issue, the case was a private dispute between sophisticated parties, and CIPPIC's proposed arguments risked expanding the scope of the appeal without providing a useful contribution.

The appellants sought to stay an action in favour of arbitration, arguing that two share purchase agreements contained arbitration clauses.

The motion judge refused to stay the action, finding that one of the agreements (National Trade Agreement) never existed due to lack of incorporation and consideration, thus no arbitration agreement.

The Court of Appeal dismissed the appeal, affirming that where an agreement is void ab initio (never existed), the arbitration clause within it also does not exist and cannot survive under s. 17(2) of the Arbitration Act.

The Court also found the motion judge correctly limited his analysis to the National Trade Agreement.

This is an appeal from a Superior Court order upholding an arbitral award of $29.2 million in favour of All Communications Network of Canada, Co. (ACN) against Planet Energy Corp. (Planet).

Planet sought to set aside the award, arguing it was unable to present its case due to denied discovery rights and that the award violated public policy by contravening the Energy Consumer Protection Act, 2010 (ECPA).

The Court of Appeal dismissed the appeal, finding that the application judge applied the correct standard of review and that Planet failed to demonstrate a breach of procedural fairness or that the award offended public policy.

This appeal addressed the standard of proof for establishing the existence of an arbitration agreement when seeking a stay of court proceedings under the International Commercial Arbitration Act, 2017.

The appellant argued for a balance of probabilities standard, while the motion judge applied an "arguable case" standard.

The Court of Appeal affirmed that, consistent with the Supreme Court of Canada's decision in Peace River Hydro Partners v. Petrowest Corp., the "arguable case" standard applies to the technical prerequisites for a mandatory stay, including the existence of an arbitration agreement.

The Court found no palpable and overriding error in the motion judge's conclusion that an arbitration agreement was arguably in existence based on the evidence.

The appeal was dismissed, and the stay of proceedings in favour of arbitration was upheld.

The appellant, Knights of Columbus, brought a motion to file a five-page reply factum in an appeal concerning the dismissal of their motion to stay an action in favour of arbitration.

The respondent, Neil Goberdhan, did not oppose the motion but sought conditions, including permission to file a sur-reply factum.

The motion judge dismissed the request for a reply factum, emphasizing that the Rules of Civil Procedure do not generally provide for such filings in civil appeals, except for leave to appeal motions, and that oral argument is the appropriate stage to clarify issues.

The court found the case was not exceptional enough to justify a reply factum and dismissed the motion without costs.

The applicant sought an extension of time to set aside a prior order that had denied him an extension of time to seek leave to appeal two Superior Court costs decisions.

The applicant cited ignorance of proper procedures, a mistaken belief about COVID-19 suspensions, and unhelpful legal counsel as reasons for the delay.

The respondents did not participate in the motion.

The court, applying the factors for granting an extension of time, acknowledged the applicant's explanation for delay but found significant prejudice to the unrepresented respondents due to the elapsed time and potential for further costs.

Furthermore, the court determined that the underlying costs issue, stemming from an arbitration where the applicant failed to claim full costs, lacked sufficient merit for an appeal, as parties are expected to present their entire claim, including costs, during arbitration.

Consequently, the motion for an extension of time was dismissed.

This is an appeal from an order dismissing a motion to stay an application in favour of arbitration.

The dispute concerns a cost-sharing agreement between condominium corporations regarding common expenses.

The motion judge found the essence of the claim was oppressive conduct, which he believed was not arbitrable.

The Court of Appeal reversed, holding that the core dispute was the interpretation and application of the reciprocal agreement, which contained a broad arbitration clause.

Citing recent Supreme Court of Canada jurisprudence, the Court emphasized that courts should not refuse to stay claims covered by a valid arbitration agreement and that oppression claims under the Condominium Act, 1998, are not exclusively for the Superior Court and can be arbitrated.

The appeal was allowed, and the application was stayed as it related to the issues between the two main condominium corporations.

The United Mexican States appealed a Superior Court of Justice decision that affirmed an arbitral tribunal's jurisdiction in a claim brought by Burr et al. under the North American Free Trade Agreement.

The arbitral tribunal had bifurcated proceedings into jurisdiction and merits phases, ruling it had jurisdiction over most claims.

Mexico's application to the Superior Court to set aside this jurisdictional ruling was dismissed.

Burr et al. moved to quash Mexico's appeal to the Court of Appeal.

The Court of Appeal granted the motion to quash, holding that the arbitral tribunal's ruling was a preliminary question of jurisdiction under Article 16(3) of the UNCITRAL Model Law on International Commercial Arbitration.

This article stipulates that a Superior Court's decision on such a preliminary jurisdictional ruling is 'subject to no appeal'.

The Court found that Mexico had not substantively pursued arguments under Article 34, which would permit an appeal, before the application judge.

The appellant, a condominium corporation, sought to appeal a motion judge's decision staying its action in favour of arbitration.

The respondents moved to quash the appeal on the basis that it was barred by section 7(6) of the Arbitration Act, 1991.

The Court of Appeal allowed the motion to quash, finding that the appeal was statutorily barred.

The court rejected the appellant's arguments that it was denied natural justice and that the pith and substance of its claim was an oppression remedy under the Condominium Act that could not be precluded by arbitration clauses.

The court found that the motion judge correctly applied the test for determining whether claims fell within the scope of arbitration clauses and that the arbitrator could determine its own jurisdiction.

The appellants sought to appeal a motion judge's decision dismissing their motion to stay an action in favour of arbitration.

The respondents raised a jurisdictional objection based on section 7(6) of the Arbitration Act, 1991, which provides that there is no appeal from the court's decision on a motion to stay.

The Court of Appeal held that section 7(6) precludes any appeal from a decision on a motion to stay, whether granting or refusing the stay, and therefore dismissed the appeal on jurisdictional grounds without reviewing the motion judge's analysis.

The Court of Appeal for Ontario heard motions to quash two appeals brought by 108 Media Corporation from decisions of an application judge.

The first appeal concerned a refusal to grant leave to appeal from an arbitral award under section 45(1) of the Arbitration Act.

The second appeal concerned a decision recognizing and enforcing the arbitral award dated December 11, 2017.

The court found that no appeal lies from a refusal to grant leave to appeal on the merits and that section 50(3) of the Arbitration Act deprives a judge of jurisdiction to refuse to enforce an arbitral award except in certain circumstances not present here.

Both appeals were quashed and costs were awarded to BGOI Films Inc. on a higher scale due to the appellant's dilatory litigation strategy.

The applicant sought a stay of execution of the Court of Appeal's order pending disposition of its application for leave to appeal to the Supreme Court of Canada.

The Court of Appeal had reinstated an arbitrator's multi-million-dollar damages award against the applicant for breach of a purchasing and management agreement relating to solar energy projects.

The applicant argued that the arbitrator exceeded his jurisdiction by awarding damages for lost profits.

The motion judge dismissed the stay application, finding that while the applicant met the threshold for a serious issue to be tried, the balance of convenience strongly favoured denial of the stay given the respondent's severe liquidity problems and existential risks if the stay was granted, as opposed to the applicant's substantial financial resources.

An appeal concerning when an international commercial arbitration award becomes "binding" on the parties for purposes of judicial recognition and enforcement under the UNCITRAL Model Law.

The appellants obtained an arbitration award from a rabbinical court in New York for significantly less than sought.

After unsuccessfully applying to set aside the award, they sought recognition and enforcement.

The respondents opposed on the ground that the award had not yet become binding because they intended to pursue further issues before the arbitral tribunal.

The application judge dismissed the recognition application.

The Court of Appeal allowed the appeal, holding that the award was binding and should be recognized and enforced.

The court clarified that the potential jurisdiction of the arbitrator to entertain new issues about post-award events does not affect the binding nature of the award.

Motion to extend time to seek leave to appeal from a Superior Court decision confirming an arbitral award.

The moving parties' counsel missed the 15-day deadline by 7 days due to mistakenly believing the deadline was 30 days.

The respondent conceded the delay was caused by counsel error with no prejudice, but argued the proposed appeal lacked merit.

The court found arguable merit in the procedural fairness issue regarding the arbitrator's refusal to arbitrate disputes involving one of the moving parties without inviting submissions.

The motion was allowed, granting the moving parties 10 days to file a motion for leave to appeal, with costs fixed in their favour.

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 appellants appealed a trial judgment upholding a Sharia Law-based arbitration award rendered in Iran regarding a property dispute between brothers.

The trial judge found that the appellants had clearly agreed to be bound by the arbitrator's judgment, all four conditions for a binding Sharia Law ruling had been met, and the appellants were estopped from relitigating the same issues in Ontario.

The appellants argued the International Commercial Arbitration Act should apply, but the trial judge found the application was out of time and, in any event, there was no unfairness in the arbitral proceeding.

The Court of Appeal upheld the trial judgment, finding no error and deferring to the trial judge's factual findings.