Timothy M. Lowman

Following the dismissal of an application to enforce a letter rogatory from a U.S. court against a non-party, the court determined the issue of costs.

The respondent successfully resisted the application by demonstrating it had searched its records and that the request was overly broad and premature.

The court found the respondent acted reasonably and did not thwart a legitimate inquiry.

Costs were awarded to the respondent on a partial indemnity scale, fixed at $32,053.03.

The applicant applied for an order to resolve an insurance policy dispute by arbitration at JAMS offices in Toronto.

The respondent argued that the arbitration should be conducted under the English Arbitration Act and that the applicant had not properly commenced the arbitration.

The court found that its jurisdiction to intervene only arises if there is a failure of the parties to agree on the appointment procedure.

Since the applicant had not followed the agreed procedure by making a proper written request and appointing its arbitrator, the court declined to intervene and dismissed the application.