ADR/Mediation Services - SCJ

This is an appeal from a commercial arbitration award that found a metal purchase and sale agreement between Franco-Nevada and Taseko had been frustrated due to the denial of federal environmental approvals for a gold mine project.

The Superior Court of Justice, applying a reasonableness standard of review, found the arbitrator's conclusion unreasonable.

The court held that the arbitrator misapplied the test for frustration by failing to properly consider foreseeability and by misinterpreting the contract as project- and timeline-specific, despite provisions allowing for changes and a long term.

The appeal was granted, overturning the frustration finding.

A motion for a sealing order for confidential information was also granted.

The applicants, Toronto District School Board and Simcoe County District School Board, sought leave to appeal an arbitration decision that dismissed their claim for a share of a guarantee fund upon terminating their membership in the Ontario School Boards’ Insurance Exchange (OSBIE).

The court granted leave to appeal, determining that the interpretation of the standard form Reciprocal Insurance Exchange Agreement constituted a question of law, which is subject to correctness review and of precedential value, thus satisfying the criteria for granting leave under the Arbitration Act.

Elke Kasanda, as Estate Trustee, sought directions for a trial of various issues, including the removal of co-trustees Helmut Sartarelli and D. Scott Murray, and disclosure of legal records from Murray concerning the deceased's estate planning and business sale.

The court dismissed the motion for disclosure of Murray's records, citing solicitor-client privilege and lack of evidence for waiver or exception.

The court adjourned the balance of the motion for directions, granting Elke leave to bring a separate motion to remove Helmut and Murray as Estate trustees, noting that such a motion does not require the same evidentiary threshold as a motion for directions under Rule 75.06.

Mediation was ordered, with costs to be borne by the Estate.

The applicant appealed two arbitration awards concerning family law matters, challenging the arbitrator's originating jurisdiction and whether he exceeded his authority.

The court held that the arbitrator had originating jurisdiction based on the parties' separation agreement and minutes of settlement, despite the absence of a separate prescribed family arbitration agreement, but noted that such awards are not enforceable without regulatory compliance.

The appeal regarding children's expenses was dismissed, upholding the arbitrator's decision.

However, the appeal concerning the Forest Hill property expenses was allowed, as the arbitrator exceeded his jurisdiction on that issue because the agreement to arbitrate it was not in writing as required by the separation agreement.

The plaintiff moved for summary judgment to enforce a foreign arbitration award.

The defendant raised multiple genuine issues requiring trial, including the validity of the arbitration, set-off, scope of arbitration, and identity of the contracting party.

The court dismissed the motion, emphasizing the cautions against partial summary judgment articulated in Hryniak and Butera, noting the risk of inconsistent findings, delay, increased costs, and wasted judicial resources, as the motion would not dispose of the entire action and many issues would remain for trial.

The defendants brought a motion to stay the plaintiffs' proceeding in favour of arbitration, citing arbitration clauses in enrollment and license agreements.

The court dismissed the motion, finding the arbitration clauses ambiguous and contradictory with exclusive jurisdiction clauses.

The court also determined that the individual defendants and the Canadian Association of Correactology were not parties to the arbitration agreements.

Furthermore, the plaintiffs' allegations of a fraudulent scheme, misrepresentation, and breaches of the Arthur Wishart Act and Private Career Colleges Act fell outside the scope of the arbitration clauses and raised serious public policy concerns regarding the legality of the defendants' business, making a stay inappropriate and a partial stay unreasonable due to intertwined issues.

The defendant Canadian Hydro Developers (CHD) brought a motion to enforce Minutes of Settlement and sought a declaration on the property valuation date.

The plaintiff, Paul Thompson, opposed, arguing misapprehension of facts and that his former counsel acted without instructions regarding the valuation date.

The court enforced the main settlement but exercised its discretion to set aside counsel's agreement on the June 2014 valuation date, finding it unreasonable and entered into without the plaintiff's instructions, leading to clear injustice.

The valuation date was determined to be the date appraisals are conducted.

The appellant appealed a series of arbitration awards concerning parenting issues for the parties' four-year-old child, E. The awards included E's registration on the Korean Family Registry, the requirement to hire a transfer facilitator for child exchanges, and the arbitrator's costs decision.

The court also addressed preliminary motions for fresh evidence.

The appeal was dismissed in its entirety, with the court upholding the arbitrator's decisions, finding no palpable and overriding errors of fact or errors in principle.

The fresh evidence motions were largely dismissed, applying the Palmer test, due to issues of hearsay, reliability, and statutory prohibition.

The Applicants, ICP and JCP, each sought the appointment of an arbitrator under the Arbitrations Act, 1991, for disputes arising from a share offer and acceptance.

The court addressed whether the arbitrations should be consolidated, the appropriate size of the arbitration panel (single vs. three arbitrators), and the composition of the panel, including issues of res judicata regarding a prior ruling on panel size and reasonable apprehension of bias concerning a nominated arbitrator.

The court determined that separate arbitrations were required for QSA and PSA disputes, that a three-member panel was intended by the QSA, and appointed Mr. Ferrier and Mr. Scott to the QSA panel, rejecting Mr. Cunningham due to apprehension of bias.

The defendants moved to enforce Minutes of Settlement, which the plaintiffs resisted, arguing the settlement was at an end due to non-compliance with a 30-day payment clause.

The court found that the 30-day clause applied only to the initial settlement option, not to the alternative options triggered by a negative tax opinion.

The court determined that the defendants' election to pay the full settlement amount within a reasonable time was valid, and that the plaintiffs' resistance stemmed from "settlement remorse." The motion to enforce the settlement was granted.

The plaintiff, Eyelet Investment Corp., sought a court declaration that an arbitration initiated by the defendants (purchasers of residential properties) was invalid, arguing that the vendors had not participated in the arbitration process.

The defendants had initiated arbitration claiming termination of agreements of purchase and sale due to Eyelet's alleged failure to provide notice of non-waivable early termination conditions (ETCs) under the Tarion addendum, seeking a refund of deposits.

The court considered whether the arbitration agreement applied to the dispute and whether to defer to the arbitrator's jurisdiction.

The court found that the arbitration agreement applied broadly to the dispute, including related tort claims, and affirmed the principle of competence-competence, deferring the matter to arbitration.

This case conference endorsement outlines procedural progress in a complex, multi-party construction litigation involving Carillion Construction Inc., the City of Toronto, and NORR Limited, among others.

The court addressed the schedule for executive discoveries, ruling that they must proceed as planned, contrary to the City's submission.

It also confirmed the mediation schedule for March-April 2019, involving various claimants and insurers.

Further directions were given regarding documentary production by subcontractors and the City's amended third-party claim against Metrolinx, setting deadlines for Metrolinx's response or motion.

The plaintiff, a construction manager, moved for an order to compel the appointment of an expert to determine if project delays constituted a "material change in scope" under the contract, which would entitle them to additional compensation beyond a fee cap.

The court dismissed the motion, finding that delay itself was not a change in scope as defined by the contract, but rather a consequence.

The court also held that the specific dispute regarding materiality had not yet crystallized, rendering the motion premature, and declined to grant leave under the Construction Lien Act in the current circumstances.

The defendant brought a motion seeking to apply the doctrine of res judicata to an arbitral award rendered under Sharia Law in Qom, Iran, which had addressed a dispute over the distribution of proceeds from a jointly owned property in Lebanon.

The plaintiffs, who initiated the Ontario proceedings, argued the arbitration was merely advisory.

The court found that the arbitration was a binding judicial decision by a competent jurisdiction, meeting the preconditions for issue estoppel.

It dismissed the plaintiffs' statement of claim, concluding that the dispute had been finally resolved by the arbitrator and that the International Commercial Arbitration Act's time limits for challenging an award had passed, with no "real unfairness" warranting setting it aside.

The applicant, Best Theratronics Limited, sought leave to appeal to the Divisional Court from an interlocutory order denying an injunction that would compel the respondent, Canadian Nuclear Laboratories Limited (CNL), to continue supplying irradiated cobalt.

The motion judge had applied the three-part test for injunctions, finding a serious issue to be tried but concluding that irreparable harm was not substantiated and the balance of convenience favoured CNL due to the applicant's substantial payment arrears.

The court, applying Rule 62.02(4) of the Rules of Civil Procedure, found no conflicting decisions on the issues pertaining to injunctions in supply agreements and no good reason to doubt the correctness of the motion judge's discretionary order.

The court also noted the applicant's failure to expedite the pending arbitration.

Consequently, the motion for leave to appeal was dismissed.

Advantage Engineering Inc. sued Polaris Industries Inc. for breach of a Master Supply Agreement and unjust enrichment.

Polaris moved to dismiss or stay the action and refer the dispute to arbitration in Minneapolis, Minnesota, as per an arbitration clause in the agreement.

Advantage argued the agreement was nullified by breach, its claims were outside the agreement, the clause was inoperative due to a key witness's inability to travel, and Polaris's delay.

The court found the arbitration agreement valid and enforceable under the International Commercial Arbitration Act, applying the competence-competence principle.

The court dismissed Advantage's arguments, including the claim that the witness's travel restrictions rendered the clause inoperative, and granted Polaris's motion, staying the action and referring the dispute to arbitration.

Following a global private mediation resolving claims arising from a motor vehicle accident, the plaintiff executed Minutes of Settlement and full and final releases settling long‑term disability and tort claims with two insurers.

Several weeks later the plaintiff attempted to resile from the settlements, asserting she had been fatigued, in pain, and under stress during mediation.

The insurers moved for judgment enforcing the settlements.

The court held that a change of heart or “buyer’s remorse” is not a valid basis to set aside a settlement and found no evidence of duress, incapacity, lack of authority, or unconscionability.

The settlements were therefore enforced and judgment granted in accordance with their terms.

Two condominium corporations disputed responsibility for utility costs associated with shared cooling towers located on the respondent’s property but servicing the applicant’s building.

The applicant sought a stay of a Superior Court action commenced by the respondent and requested that the dispute proceed through mediation and arbitration pursuant to a Shared Facilities Agreement and s.132 of the Condominium Act, 1998.

The court held that the agreement and statute required disputes between condominium corporations concerning shared facilities to proceed through mediation and arbitration.

The respondent’s argument that the matter should remain in court due to an unjust enrichment claim was rejected, as arbitral tribunals may grant equitable remedies under the Arbitration Act, 1991.

The court stayed the Toronto action and directed the parties to follow the contractual and statutory dispute resolution process.

Following a successful application compelling arbitration and appointment of an arbitrator, the court determined the appropriate costs award.

The moving parties sought substantial indemnity costs relying on a Rule 49 offer to settle.

The court held the offer lacked a meaningful element of compromise and therefore did not justify substantial indemnity costs under Rule 49.10.

Considering the complexity of the proceeding, the parties’ conduct, and the time reasonably required, the court reduced counsel’s claimed hours and awarded costs on a partial indemnity basis.

The applicant brought a motion seeking an order requiring the respondent to participate in arbitration pursuant to a mediation–arbitration agreement addressing parenting access issues concerning the parties’ child.

The respondent sought to strike or stay the motion on the basis that the applicant was in substantial arrears of child support under a prior Georgia judgment and had failed to comply with other obligations under that order.

The court held that the mediation–arbitration agreement constituted a binding contract entered into with independent legal advice and that the parties were required to comply with its terms.

The alleged breaches of the Georgia judgment were properly addressed in separate proceedings under the Interjurisdictional Support Orders Act and did not justify refusing enforcement of the arbitration agreement.

The respondent’s motion to strike or stay was dismissed and the applicant’s motion compelling arbitration was granted.