Ontario – exceptional case grants appeal court jurisdiction over single judge’s decision mistakenly denying leave to appeal – #373

In McEwen (Re), 2020 ONCA 511, Ontario’s Court of Appeal repurposed an exception, developed in its  1996 decision involving leave to appeal an arbitration award, which permitted a three (3) member panel to review the decision of a single judge denying leave to appeal.  McEwen (Re) involved a panel’s jurisdiction under Ontario’s Courts of Justice Act, RSO 1990, c C.43 to review the decision of a single judge denying leave to appeal under the Bankruptcy and Insolvency Act, RSC 1985, c B-3. The Court’s reasons highlighted the distinction between (i) leave to appeal decisions which mistakenly decline jurisdiction and (ii) leave to appeal decisions which decide the merits of the application for leave to appeal. Only the former qualify for the exception to “apparently absolute rule”.

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B.C. – from litigation to settlement to mediation to repudiation back to litigation on settlement – #372

In Park v. Mitchell, 2020 BCSC 1147, Mr. Justice Robert Johnston dealt with probate issues reserved exclusively to the courts but, in doing so, recorded how parties can move from court litigation, to negotiated settlement, to mediation agreement, to repudiation and back again, attempting to resolve their disputes.  His reasons illustrate how court-ordered cross-examination in litigation can lead to information disclosure and/or meetings which occasion negotiated settlements. Those settlements may require mediation which generate agreements but, once repudiated, require the parties to return to their earlier settlement and then to court to enforce that settlement.  The dispute resolution sequence prompted Johnston J. to question whether a litigant could enforce a settlement in probate proceedings or be obliged to sue on the settlement in a separate action.

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Alberta – stay application lacks evidence required to demonstrate overlap/status of duplicative proceedings – #371

To decide whether to exercise her discretion to stay duplicative proceedings involving administrative action taken in two (2) provinces, Madam Justice Susan L. Bercov in Mema v. Chartered Professional Accountants of Alberta, 2020 ABQB 486 drew on principles stated in UCANU Manufacturing Corp v. Calgary (City), 2015 ABCA 22 which considered whether to issue a stay when the duplicative proceedings involved a court action and an arbitration.  Bercov J. declined to exercise her discretion due to applicant’s failure to meet his evidentiary burden to establish the overlap and status of the duplicative proceedings. Her comments on applicant’s evidence help guide arbitration practitioners invoking overlap with arbitration.  The note also lists recent Alberta cases applying those principles to stays involving arbitration.

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Ontario – arbitrator’s interpretation of settlement raises extricable question of law and jurisdictional issue – #370

In Camerman v. Busch Painting Limited et al., 2020 ONSC 5260, Mr. Justice Paul B. Schabas both varied and set aside a portion of an award due to the arbitrator’s contractual interpretation of the scope of issues subject to arbitration under a settlement.  Schabas J. determined that the parties, by their settlement, had “reset the dial” between them and the award breached the scope of disputes subject to arbitration.  The arbitrator’s award relied on his interpretation of the settlement and exceeded the terms of the settlement.  That interpretation raised an extricable question of law identified by Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, qualifying that issue for leave to appeal under section 45(1) of Ontario’s Arbitration Act, 1991, SO 1991, c 17. Schabas J. also held that the same facts demonstrated a jurisdictional error covered by section 46(1)3 and an order setting aside the same portion of the award.

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Newfoundland and Labrador – agreement to arbitrate renewal option’s financial terms ensures lease is enforceable – #369

In Copper Stop Limited v. Parkland Fuel Corporation, 2020 NLSC 114, Madam Justice Kendra J. Goulding had to resolve a lease dispute which arose when the lessee sought to exercise an option to renew but for which the lease provided no specific term governing the method or time within which to exercise that option.  Despite lessor’s argument that the lease was enforceable, Goulding J. held that the option to renew was enforceable as the financial terms of the renewal option were capable of being made definite through imposition by the arbitrator.  The ability to arbitrate if negotiations failed made the lease’s renewal option more than just “an agreement to agree

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