Ontario – findings of fact which established legal obligations also prevent raising question of law – #439

In 1852998 Ontario Limited v. HCC No. 227, 2021 ONSC 21, Mr. Justice Andrew J. Goodman denied leave to appeal on a question of law, holding that the arbitrator’s determinations of a condominium rule’s validity and compliance with the Condominium Act, 1998, SO 1998, c 19 rested on findings of fact concerning uses of the units generally and the historical interpretation of the declaration by the corporation. The arbitrator’s findings of fact also involved whether the condominium’s vote on setting aside the rule was valid and resulted in a valid rule prohibiting Appellants’ retail sale of cannabis products. Despite denying leave, Goodman J. used his “equitable prerogative” to modify the delays in the Amended Award , extending the time for performance and thereby allowing the arbitral party subject to the orders sufficient time to exhaust its inventory.

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Québec – alleged abuse of procedure in court prior to referral to arbitration is subject to court sanction not arbitration – #438

Despite the brevity of her decision, Madam Justice Carole Therrien in Dupont v. Langlois, 2021 QCCS 136 underscored a key distinction between the court’s oversight triggered by parties litigating before the court despite a binding agreements to arbitrate.  Though Plaintiff voluntarily discontinued his action following Defendant’s application to decline jurisdiction, Therrien J. held that Defendant’s claim for abuse of procedure pursuant to articles 51-56 of the Code of Civil Procedure, CQLR c C-25.0 was made before Plaintiff’s discontinuance and in the context of management of the litigation.  Acknowledging that the action stemmed from a dispute involving the contract, Therrien J. determined that the alleged procedural abuse by Plaintiff took place in the context of a judicial procedure before the Superior Court and it is the court which had the authority to sanction abuse, if need be.

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Saskatchewan – ‘only logical to modernize’ New York Convention ‘agreement in writing’ to include text/ e-mail exchange – #437

In Parrish & Heimbecker Ltd. v. TSM Winny AG Ltd., 2020 SKQB 348, Mr. Justice Richard W. Elson held that the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) mention of an “agreement in writing” in the definition of an agreement to arbitration was “inclusive” and imposed no formal requirement that an “agreement in writing” needed to be signed. “Given the absence of text and email messages in 1958, when the New York Convention was created, I think it only logical for the Court to modernize these words and find that the reference to “telegrams” should include other similar forms of electronic communication, such as facsimile, text and email messages”.  Though applicant’s submissions referred to but produced no certified copies of the agreement to arbitrate or award, Elson J. adjourned the application for recognition and enforcement to allow applicant to file the certified copies. When recognizing and enforcing the appellate arbitral tribunal’s award issuing from an administered arbitration, Elson J. further recognized there was “little doubt” that the appeal panel “premised its analysis on a basis that was not part of either the notice of appeal or the respective arguments it received” but concluded that doing so did not justify a dismissal of the application. “I accept that it was unfortunate for the Appeals Committee to have addressed the question in the manner it did, without giving the parties an opportunity to address the point” but that the appeal panel “clearly believed it was entitled to act as it did”.

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Québec – litigants’ membership in professional association binds them to arbitrate disputes – #436

In brief reasons, Mr. Justice Éric Couture in Diamond Diamond Real Estate Inc. v. Londono Realty Group Inc., 2021 QCCQ 176 dismissed an action for payment of commissions, holding that the litigants’ membership in a real estate association included bylaws submitting their dispute to mandatory arbitration.  The dispute resolution bylaw also stipulated that disputes subject to arbitration under the membership bylaw must be submitted within one (1) year from the date of the transaction.  As the action concerned an October 2016 transaction, Couture J. dismissed the action rather than stay it or refer the parties to arbitration. The facts serve as a sample situation in which parties are bound to arbitrate (i) by virtue of their membership in an association rather than having negotiated a contract and included an agreement to arbitrate and (ii) within a time frame shorter than applicable prescription/limitation periods.

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B.C. – expert determination not conducted in accordance with dispute resolution process may be error in law – #435

In Grewal v. Mann, 2021 BCSC 220, the parties disputed the impact of a property valuation which issued from an expert determination process established in their settlement agreement. Mr. Justice Peter H. Edelmann granted leave to appeal on three (3) grounds which he determined raised extricable questions of law: (i) the arbitrator allowed his focus on the overall factual matrix to overwhelm the words of the settlement and selected a property valuation method “directly at odds” with Petitioner’s ownership of the property and a date agreed to by the parties; (ii) while mistake or error on the part of an expert determination is not by itself sufficient to invalidate the valuation, the mistake may show that the expert’s determination did not comply with the contract; (iii) there was no evidence before the arbitrator that the parties challenged the valuation and that it is “well-established that it is an error of law to make a finding of fact for which there is no evidence”.

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Québec – precedents on attornment re-read in light of newer rules requiring compliance to judicial contract – #434

In Bergeron v. 2528-1023 Québec inc., 2021 QCCS 539, Mr. Justice Babak Barin underlined (i) the importance of alternative dispute resolution and (ii) the principles applicable to submission/attornment to the court’s jurisdiction.  Barin J. first drew attention to the primacy given by Code of Civil Procedure, CQLR c C-25.01 to alternative dispute resolution and then commented on the general principles and particular factual elements related to parties attorning to a court’s jurisdiction. Barin J. reconsidered earlier case law which issued before recent court rules updates which now oblige litigants, at the onset of the litigation, to identify their intention to raise declinatory exceptions. His comments suggest that earlier case law must be re-read in light of newer rules requiring parties to commit earlier and clearly to their procedural decisions and to abide by their “judicial contract”. Barin J.’s comments on attornment may assist litigants to determine whether a party has or has not waived the benefit of their agreement to arbitrate. 

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