B.C. – application to cancel certificate of pending litigation granted despite stay of litigation for arbitration

In 1077708 BC Ltd. v. Agri-Grow Farm Services Ltd., 2019 BCSC 977, Madam Justice Catherine Murray granted Defendants’ application to cancel and remove a Certificate of Pending Litigation despite a stay of litigation granted by consent on broad terms.  Murray J. noted that Plaintiff provided no authority requiring Defendants to first apply to lift the stay. She added that she saw “no logic or merit” in that requirement and held that Plaintiff was not prejudiced by having the court consider the application.

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Alberta – court has no jurisdiction to extend statutory time limit in which to seek leave to appeal award

Alberta’s Court of Appeal in Allen v. Renouf, 2019 ABCA 250 upheld a chambers judge’s decision to dismiss an application for leave to appeal on the basis that the court had no jurisdiction to extend a statutory time limit set out in the Arbitration Act, RSA 2000, c A-43.  The arbitrator’s reserve of jurisdiction to issue a costs award did not suspend or add to that time period to challenge the earlier award on the merits.  Case law also distinguishes calculating delays based on the ‘date of the decision’ and the ‘making of the decision’ and should apply with equal merit to delays applicable to arbitration awards.

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Québec – arbitration imposed by statute remains consensual if opportunity available to renounce

In Boisvert v. Selvaggi, 2019 QCCS 1673, Mr. Justice Kirkland Casgrain dismissed an attempt at judicial review of an award issuing from arbitration imposed by statute.  Relying on the reasoning and result in Conseil d’arbitrage des comptes des avocats du Barreau du Québec v. Marquis, 2011 QCCA 133, Casgrain J. held that such arbitrations remain consensual if the legislation allows opportunity to renounce to its application.  Being consensual, such arbitrations were subject not to judicial review but to annulment proceedings based on limited grounds familiar to practitioners practising international commercial arbitration.

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Québec – inexperienced, first-time franchisee remains consumer when contracting, arbitration clause inapplicable

In Najah v. Desatrais, 2019 QCCQ 3143, Mr. Justice François Lebel held that an individual who contracts with the goal of becoming merchant is, at that time, a consumer within the meaning of Québec’s Québec’s Consumer Protection Act, CQLR c P-40.1 (“CPA”). As a result, the arbitration clause in the first-time franchisee’s contract did not apply because it restricted his right to go to court.

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Ontario – length/brevity of reasons in award not equal to reasonableness/insufficiency

In Peralta v. Peralta, 2019 ONSC 2854, (unreported, May 7, 2019, Court file no. CV-18-26994), Mr. Justice Thomas J. Carey held that lengthy reasons do not equal reasonable and correct reasons any more than brief ones are equated with insufficiency.  In his own brief reasons upholding a final award on the standard of reasonableness, Carey J. echoed earlier judicial observation that losing in arbitration itself does not equate to unfair or unequal treatment. The challenged result was an outcome open to the arbitrator, within his expertise and supported by clear, concise and reasonable reasons.

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