Alberta – parties can agree to be bound by coin flips, Ouija boards and bespoke judicial resolution processes – #397

In Keeder v. AlGendy, 2020 ABCA 420, Madam Justice Jolaine Antonio denied leave to appeal consent orders which issued from a binding judicial dispute resolution process by which the parties had agreed to either resolve the issue themselves or be bound by the determination of the judge presiding the process. Antonio J.A. held the parties to their contract, applying precedent which held that such decisions are imposed on the parties as a result of their contract rather than the court’s authority. If the settlement falls apart, the parties must sue on their contract.  Though the judge issues a determination, the decision is imposed as a result of their contract and not the court’s authority.

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Québec – court refers parties to arbitration but grants adjournment permitting parties to agree on arbitrator – #396

In Proservin Inc. v. Investissements Toro Inc., 2020 QCCS 3561, Mr. Justice Stéphane Lacoste demonstrated the Québec courts’ ready support of arbitration and their practical approach to assisting parties to appoint their own arbitrators.  Citing the applicable legislative provisions in Code of Civil Procedure, CQLR c C-25.01 and principles issuing from key cases, Lacoste J. readily dismissed objections to the court referring the parties to arbitration. Having granted the application to nominate, Lacoste J. nonetheless granted the parties an adjournment to a specific date prior to which they were ordered to exchange on the nomination and informed that, failing agreement, he would resume the hearing and nominate an arbitrator from the competing choices.

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Ontario – interpreting agreement to allow appeal of procedural orders is commercially unreasonable – #395

In Converaidem, Inc. v. Mulcahy, 2020 ONSC 6747, Madam Justice Breese Davies dismissed an attempt to appeal interim procedural orders.  One section of the parties’ agreement to arbitrate described rulings on procedural matters as “awards” and a later section allowed the parties to appeal “awards” on a question of law. Davies J. held that, as a general rule, the same word will be presumed to bear the same meaning throughout a contract but that the presumption of consistent expression may not apply if the resulting meaning is absurd or commercially unreasonable. Her reading of the various sections, individually and together, supported her conclusion that allowing appeals of the challenged procedural orders, despite being termed “awards”, would be commercially unreasonable.

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Ontario – application to extend time to file appeal denied because review of stay decision precluded – #394

In Wang v. Mattamy Corporation, 2020 ONSC 7012, Mr. Justice Michael A. Penny dismissed Plaintiffs’ application to extend the delay in which to appeal a Master’s decision staying their action in favour of arbitration. As part of his decision making, he had to determine the merits of their proposed appeal.  Based on section 7(6) of Ontario’s Arbitration Act, 1991, SO 1991, c 17 which prohibits appeals of decisions under section 7, he held that the Master’s decision “falls squarely” within section 7 and “it is not appropriate for the court to engage in an analysis of the Master’s decision because any review of it is precluded” by section 7(6).

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Ontario – resort to arbitration commercially reasonable to resolve ambiguous non-compete clause – #393

In Way v. Schembri, 2020 ONCA 691, Ontario’s Court of Appeal set aside a decision granting summary judgment which, among other determinations, had held that it was “commercially unreasonable” to consider that arbitration was suitable to resolve disputes over an ambiguous non-competition clause.  As part of his reasoning, the judge in first instance had observed that one party’s “suggestion that the answer to the ambiguities and lack of details in [non-competition clause] would be resolved by an arbitrator is commercially unreasonable and something that no businessperson would agree to”.  The Court of Apepal disagreed, noting that “[g]iven the presence of arbitration provisions in countless business agreements, it cannot be that their existence alone is commercially unreasonable”.

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