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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Federal – no need to serve non-participating arbitral party with materials regarding post-recognition enforcement procedures

In Heddle Marine Service (NL) Inc. v. Kydy Sea (Ship), 2019 FC 1140, Mr. Justice Peter G. Pamel relieved a third party from serving a losing, non-participating arbitral party with court materials related to post-recognition enforcement measures instituted by the successful arbitral party.   The case offers a rare view into post-recognition skirmishes between an arbitral party and a third party competing over assets subject to judicial sale authorized as part of award enforcement.  The facts also confirm that the arbitration process – from award to execution on assets – will proceed whether a duly-notified arbitral party participates or not.

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Ontario – confidentiality of arbitration raised as shield to disclosing information relevant to litigation

In Vanalt Electrical Construction, Inc. v. Ozz Electric Inc., 2019 ONSC 5893, Defendant alleged that confidentiality of an arbitration involving it and others prevented it from providing Plaintiff with information/documents relevant and probative to quantifying a key claim it made against Plaintiff.  Instead of forcing an issue on the confidentiality, Master Michael Philip McGraw ordered Defendant to re-attend a final time for discovery at which time it could satisfy Plaintiff’s entitlement to clarity and evidence.

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B.C. – broad interpretation of carve out in arbitration clause risks nullifying agreement to arbitrate

In Clayworth v. Octaform Systems Inc., 2019 BCCA 354, Madam Justice Lauri Ann Fenlon granted a stay of non-injunctive proceedings in first instance, acknowledging that Appellant had met the “low threshold” of “some merit” in her appeal.  The issues on appeal concerned whether an exception in an arbitration agreement should be interpreted broadly enough to encompass claims brought in court or is the correct question is whether those court claims are clearly beyond the scope of the mandatory arbitration clause.  The appeal will also resolve when does a court risk reading an exclusion clause so broadly that it nullifies the arbitration clause.

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Ontario – entity invoking arbitration agreement must first demonstrate representative’s authority to act

Before addressing the merits of a challenge to the court’s jurisdiction, Madam Justice Bernadette Dietrich in Jamrock Broadcasting Corporation v. The Estate of Fitzroy Gordon, 2019 ONSC 5732 had to first make a preliminary determination regarding a representative’s purported authority to bind the corporation which made the challenge.  Despite a series of gaps in governance and non-compliance with applicable corporate law and shareholder agreements, Dietrich J. did find that the representative had de facto authority and could hire counsel and instruct on the corporation’s objection to jurisdiction based on an arbitration agreement.

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