Ontario – new disputes either beyond or no longer subject to abandoned submission agreement

In 1230455 Ontario Ltd. v. 150 Katimavik Inc., 2019 ONSC 2481, Madam Justice Michelle O’Bonswain declined to order the parties to arbitration due to the scope of the submission to agreement and its abandonment.  O’Bonswain J. held that (i) one part of their new dispute did not fall within their initial submission to arbitration and (ii) the other part of their dispute did fall within the agreement but the parties had abandoned arbitration.

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New Brunswick – justice of the court serves as statutory arbitrator in land expropriation dispute

In McMackin v. Village of Salisbury, 2019 NBQB 99, Mr. Justice George S. Rideout served as arbitrator under the provisions of the Expropriation Act, RSNB 1973, c E-14 to resolve a dispute between a land owner and a municipality in New Brunswick following the latter’s expropriation of part of the land.   Despite its “arbitration” label, the process set out in the legislation and Rideout J.’s reasons appears indistinguishable from a court proceeding.  Without more information, the “arbitration” set out in the legislation does not qualify as an ‘alternative’ to dispute resolution offered by the court.

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Ontario – unsuccessful attempt by new counsel to enjoin further arbitration after partial award

In Lobanova v. Grynyshyn, 2019 ONSC 3064, Mr. Justice Frederick L. Myers dismissed an attempt by new counsel to enjoin the arbitrator from completing the arbitration and deciding isolated monetary issues intentionally left unresolved by an earlier, partial award.  Myers J. stated that access to the courts is not a “do-over” once the arbitral “main event” concludes.  Despite appointing new counsel, a change in strategy and new arguments cannot excuse positions taken earlier in the arbitration or contradict evidence already adduced.  Myers J. discouraged challenges to discretionary procedural orders, especially fully reasoned ones, including challenges which prevent the court from having a full case if and when an appeal was authorized.

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Alberta – arbitrator’s findings in award have no probative value or binding effect if award set aside

In Flock Estate v. Flock, 2019 ABCA 194, Alberta’s Court of Appeal overturned a chambers judge’s order which had allowed an arbitral party to reuse material from an arbitration in which the final award had been set aside.  Such an award was “ineffectual”, reflected only the “personal opinions” of the arbitrator and had no probative value.  Once set aside, the award did not serve to “crystallize” the interests of the parties or serve to create any issue estoppel.

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B.C. – incorporation by reference of arbitration agreement a question intent not category of contract

In MRC Total Build Ltd. v. F&M Installations Ltd., 2019 BCSC 765, Madam Justice Shelley C. Fitzpatrick determined that it was arguable that parties to one contract intended to incorporate by reference the arbitration provisions set out in another contract.  Relying on the actual wording of the contract between the parties, Fitzpatrick J. identified the court’s role as discerning the intention of the parties. She resisted applying a technical rule to interpreting contracts or categorizing contracts into one type or another as a proxy for intention.  Once the court finds that it is arguable that such an intention exists, and absent the arbitration agreement being incapable of being performed, the court must refer the matter to the arbitrator for determination.

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