Owen Bourns

The appellant, Coliseum Inc., appealed a Superior Court decision that overturned an arbitrator's award in its favour regarding a commercial lease dispute with the City of Ottawa.

The dispute centered on the interpretation of Minutes of Settlement concerning the provision of an alternative site following the termination of Coliseum's lease at Frank Clair Stadium.

The Court of Appeal held that it had no jurisdiction to review the application judge's decision to grant leave to appeal the arbitral award.

However, the Court found that the application judge erred by substituting her own interpretation of the Minutes of Settlement, as the arbitrator's interpretation was reasonable and owed deference.

The appeal was allowed, and the arbitrator's award of $2,240,000 in damages was reinstated.

The appellants appealed a decision finding that the respondent insurance company did not have a duty to defend them in a defamation action arising from an internet video.

The application judge had concluded that the substance of the claim did not implicate the appellants as employees acting in the course of their employment.

The Court of Appeal allowed the appeal, finding that the application judge failed to consider cross-claims and third-party claims, which established a mere possibility that the appellants were acting in the course of their employment.

The plaintiff, a municipal councillor, brought an action for defamation against other councillors based on statements made during a council meeting.

The defendants moved to strike the allegations, arguing their statements were protected by absolute privilege.

The motion judge held that absolute privilege does not apply to municipal councillors, who instead enjoy qualified privilege.

The Court of Appeal dismissed the appeal, confirming that Canadian law applies qualified privilege to municipal council speech and declining to extend absolute privilege without a full evidentiary record demonstrating its necessity.

The applicants sought a declaration that their insurer had a duty to defend them in a defamation action arising from a video posted online.

They argued that, as employees of the named insured organization, the claim potentially fell within the commercial liability policy covering personal injury and advertising injury.

The court held that the duty to defend must be determined primarily from the Statement of Claim and that extrinsic evidence may only be considered in limited circumstances to clarify the substance of the pleadings.

The pleadings alleged only that the applicants posted a defamatory video and contained no facts suggesting the conduct occurred in the course of employment with the insured organization.

As there was no “mere possibility” that the claim fell within policy coverage, the insurer had no duty to defend.

The City of Ottawa appealed an arbitration award that found it breached a 2004 Minutes of Settlement with Coliseum Inc. regarding the relocation of Coliseum's dome operations from Frank Clair Stadium.

The arbitrator had awarded Coliseum $2,240,000 in damages.

The Superior Court of Justice granted leave to appeal, finding the arbitrator made extricable errors of law in interpreting the settlement agreement and in applying the doctrines of waiver and promissory estoppel.

Applying a reasonableness standard of review, the court held the arbitrator's interpretation was unreasonable and inconsistent with the facts.

The appeal was allowed and the arbitration award was set aside.

The respondents were completely successful on an appeal, an application for judicial review, and an application to set aside an arbitrator's decision.

They sought partial indemnity costs of $22,651 plus disbursements and HST.

The applicants argued the amount was disproportionate and opposed joint and several liability.

The court fixed costs at $20,000 plus $1,000 in disbursements plus HST, payable jointly and severally by the applicants, noting the complexity of the proceedings and the arbitrator's finding that the applicants had committed the tort of deceit together.

The applicants sought to appeal and judicially review an arbitrator's decision finding them personally liable for the tort of deceit in a real estate venture.

They argued the arbitrator lacked jurisdiction over them personally as they had not signed the arbitration agreement in their personal capacities.

The Divisional Court dismissed the applications, finding the applicants had agreed to arbitration by their conduct, including obtaining a prior court order referring the claims to arbitration, and had waived any jurisdictional objections by participating without complaint.

The court also held that judicial review is unavailable for private commercial arbitrations and that the arbitration agreement's 'final and binding' clause precluded any appeal.