Stephen Armstrong

JH Whittaker & Sons Limited (Whittaker's) brought a motion to stay an action commenced by Husky Food Importers & Distributors Ltd. (Husky) and to refer Husky's claims to arbitration in New Zealand.

The motion was brought pursuant to the International Commercial Arbitration Act, 2017 and the UNCITRAL Model Law.

Husky argued that no valid arbitration agreement existed or that it was inoperative due to an inconsistency with a non-exclusive jurisdiction clause.

Applying the Haas framework, the court found it arguable that an arbitration agreement existed and that the dispute fell within its scope.

The court determined that the alleged inconsistency was not apparent and that the interpretation of the contract required a thorough review of the factual matrix, which is best left to the arbitrator.

The court also rejected the argument that a multiplicity of proceedings (arbitration against Whittaker's and litigation against another defendant) was a reason to refuse the stay, as the Model Law's stay provision is mandatory.

The motion to stay the action and refer it to arbitration was granted.

The applicant sought to overturn an arbitrator's decision assuming jurisdiction over a business dispute between co-tenants of a real estate development project.

The parties were deadlocked on whether the project should include a hotel component.

The arbitrator found he had jurisdiction under a broad arbitration clause.

The Superior Court of Justice held that the dispute was a non-legal business decision that did not arise under the agreement, as the agreement required unanimous decision-making and did not provide a standard of review for this type of dispute.

The court set aside the arbitrator's decision, finding he lacked jurisdiction.

The Canadian Civil Liberties Association (CCLA) brought a motion for leave to intervene as a friend of the Court in an application challenging the constitutionality of amendments to the Election Finances Act.

The respondents opposed the intervention, arguing the CCLA would not provide a distinct perspective from the applicants.

The court granted the motion, finding that the CCLA's expertise in civil liberties and its broader policy perspective on the balance between free speech and fair elections would provide a useful and distinct contribution without causing prejudice or delaying the proceedings.