Ontario – no appeal lies from an order refusing a stay whether order was made or not – #384

In Paulpillai Estate v. Yusuf, 2020 ONCA 655, Ontario’s Court of Appeal held that it lacked jurisdiction to hear an appeal of a motion judge’s order regarding a stay in favour of arbitration.  No formal motion had been made to refer the dispute to arbitration, the motion judge’s dispositive order was silent on the issue of arbitration and any comments on waiver of arbitration were merely obiter.  Even assuming that an order might have been made, the Court held it lacked jurisdiction because section 7(6) of the Arbitration Act, 1991, SO 1991, c 17 stipulated no appeal lay from a decision under section 7. For a more in-depth look at how and whether section 7(6) applies to limit appeals, see the equally recent Court of Appeal decision in Toronto Standard Condominium Corporation No. 1628 v. Toronto Standard Condominium Corporation No. 1636, 2020 ONCA 612.

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Québec – agreement giving one party privileged position to designate arbitrator subject to “blue-pencil” severance – #383

In Caron v. 7834101 Canada inc. (Triviom à Charlemagne), 2020 QCCS 2859, Mr. Justice Stéphane Lacoste severed a portion of an agreement to arbitrate which violated the rule against placing one party in a privileged position with respect to the designation of the arbitrator.  Rather than declare null the entire agreement to arbitrate, as had an earlier court when faced with the same agreement, Lacoste J. struck the provision, likening the relief to the “blue-pencil” severance explained and applied in Shafron v. KRG Insurance Brokers (Western) Inc., 2009 SCC 6 (CanLII), [2009] 1 SCR 157.  To do so, Lacoste J. combined articles 2641 and 1438 of the Civil Code of Québec, CQLR c CCQ-1991 and, having done so, referred the parties to arbitration.

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Federal – appointing authority’s breach of appointment provisions raise no reasonable apprehension of bias – #382

In Grey v. Whitefish Lake First Nation, 2020 FC 949, Madam Justice Cecily Y. Strickland dismissed challenges to an arbitrator’s decision, applying correctness as the standard of review for questions of procedural fairness, including those which encompass issues of bias.  Despite the appointing authority’s breach of the “clear and unambiguous” regulations for appointing the arbitrator, the breach was not raised on appeal and did not affect the procedural fairness of the arbitration.   The arbitrator’s previous appointment did not give rise to a reasonable apprehension of bias.

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B.C. – court qualifies parties’ agreement to require only summary reasons as “penny-wise and pound-foolish” – #381

In Nolin v. Ramirez, 2020 BCCA 274, B.C.’s Court of Appeal set aside part of an arbitration award which rested on the arbitrator’s dismissal of a party’s evidence as suspicious in one context and reliance on it in another.  The handling of the evidence was so inconsistent that the Court found it “impossible to understand how the arbitrator came to his conclusion” on the related issues and the arbitrator provided no justification in the summary reasons agreed to by the parties.  Without more explanation in the brief reasons and unable to reconcile the findings and conclusions, the Court set aside that portion of the award related to the handling of that evidence.

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B.C. – award’s short-form reference to party insufficient to refuse recognition and enforcement – #380

Despite ambiguity in the award’s use of a “short-form reference” to refer to the winning party, B.C.’s Court of Appeal in Macdonald Realty Ltd. v. Metro Edge Holdings Ltd., 2020 BCCA 272 declined to refer the parties back to the arbitration panel to clarify the name as doing so would be an “unnecessary expense to the parties and would not change the result”. The Court held that, despite the variation in the legal name, the award and decision in first instance validly identified the winning party. The Court also readily dismissed post-award challenges, in first instance and on appeal, limited to contesting the facts in dispute. The court reminded challengers that such an approach is misdirected given that an application to recognize and enforce an award is not a hearing on merits of the arbitrated dispute.  

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