Ontario – tests for adequacy of reasons and for remitting awards considered and applied

Mr. Justice David L. Edwards in Wang v. Takhar, 2019 ONSC 5535 determined that an agreement to arbitrate, contained in a more recent contract, applied to the parties’ relationship established prior to that contract and did not eliminate appeals on questions of law.  The challenged award lacked adequate reasons on only a single issue and, applying the principles for remitting awards, Edwards J. remitted the issue back to the arbitrator with specific questions as well as authority to re-open the evidence if need be. 

In his follow up decision on costs in Wang v. Takhar, 2019 ONSC 6237, and after having considered the parties’ submissions, Edwards J. ordered no costs.  Appellant was successful but only on a single issue narrower than the appeal framed initially and Respondent was successful in having the issue remitted back to the arbitrator.

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P.E.I. – arbitral institution denied opportunity to contribute on key issues raised by challenge to award

In HZPC Americas v. Skye View Farms & Ano, 2019 PECA 25, the P.E.I. Court of Appeal upheld a motions judge’s discretionary decision denying an arbitral institution leave to intervene in a challenge to an award.  Limiting its review to whether the decision was reasonable on those grounds raised in appeal, the Court did not itself express its own view of key issues which had prompted the arbitral institution’s involvement. For more background on the parties involved and issues in first instance, see the Arbitration Matters note “Arbitral institution denied leave to intervene in jurisdiction-based challenge to arbitral award”.

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Québec – $1 million suretyship ordered for stay of Canadian enforcement pending U.S. annulment

In Lakah v. UBS, 2019 QCCA 1869, the Québec Court of Appeal denied leave to appeal a Superior Court decision ordering an arbitral party, resisting recognition and enforcement in Canada of an award made in the U.S., to post $1 million as suretyship in Canada pending U.S. annulment proceedings.  The Superior Court acknowledged that a stay should be granted only exceptionally “because it impedes one of the key goals of arbitration, which is to avoid protracted litigation”. In the circumstances, the grounds alleged in the U.S. annulment proceedings “appeared serious” on their face and merited a stay of the Canadian recognition and enforcement proceedings but, in light of the $150 million ordered in the challenged arbitral award, a suretyship of $1 million was “relatively modest”.

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Alberta – contract and arbitration agreement both valid but inapplicable when parties effectively carry on different relationship

In Trainor v. Fundstream Inc, 2019 ABQB 800, Madam Justice Alice Woolley declined to refer the parties to arbitration, holding that the employment contract was neither void ab initio or invalid but simply did not apply to the resulting legal relationship between the parties.  The employment contract provided for services “within” a province but were actually performed “without”, in another province. As a result, the arbitration agreement did not apply to the termination because the services did not relate to the otherwise valid but unperformed original employment contract.

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B.C. – unlike agreement to arbitrate, class action waiver not effective to resist class action certification

In Pearce v. 4 Pillars Consulting Group Inc., 2019 BCSC 1851, Mr. Justice Andrew P.A. Mayer declined to allow a class action waiver to override the mandatory provisions of B.C.’s Class Proceedings Act, RSBC 1996, c 50.  In contrast to cases enforcing parties’ agreements to arbitrate and thereby resist class action certification, Mayer J. determined that the waiver’s only purpose was to avoid a class action.  Though B.C. legislation did not prohibit such waivers, Mayer J. determined that the omission did not thereby constitute a legislative choice permitting class action waivers.  He had no judicial discretion once the mandatory requirements for class action certification were met.

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N.W.T. – parties do not create standard form contract when their lawyers do not “reinvent the wheel”

Mr. Justice Andrew M. Mahar in Northland Utilities (NWT) Ltd. v. Town of Hay River, 2019 NWTSC 31 remarked that parties do not hire lawyers to “reinvent the wheel” each time they engage in commercial activity and, in doing so, do not thereby make their contract a standard form contract.  Despite omitting to characterize the issues as questions of law, mixed fact and law or fact and despite holding that the standard of review was reasonableness, Mahar J. did determine that the arbitrator’s analyses were not only reasonable but correct. 

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