B.C. – anti-suit injunction based on contract enjoins party from pursuing arbitration administered outside Canada

In a novel decision, B.C.’s Court of Appeal Li v. Rao, 2019 BCCA 264 upheld an anti-suit injunction preventing a party from taking further steps in a pending arbitration administered beyond the court’s jurisdiction.  Exercising its in personam jurisdiction over the party, the Court enforced that party’s agreement not to take further steps in its arbitration.  The Court held that an injunction based on contract did not engage the jurisdiction of the foreign tribunal or raise issues of comity but did involve an assessment of the conduct of a party and whether to enforce a promise it made.

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Ontario – amendment to pleading in court cannot include claim subject to arbitration

In Paul Sun v. Duc-Tho Ma, 2019 ONSC 4586, Master Alexandre Kaufman denied leave to amend Defendant’s counterclaim because, inter alia, the proposed claim was subject to arbitration.  Despite mandatory wording in the applicable Rules of Civil Procedure, RRO 1990, Reg 194 that a court shall grant leave to amend at any stage of an action, Master Kaufman held that a claim subject to arbitration effectively did not meet ‘a basic threshold of legal soundness’ and was ‘not tenable in law’.

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Québec – court orders parties to agree on arbitrator from plaintiff’s list rather than appoint one itself

Relying on his inherent powers and without reference to the provisions applicable to arbitration, Mr. Justice Jocelyn Geoffroy in 9338-3941 Québec inc. v. 9356-2379 Québec inc., 2019 QCCS 4226 ordered the parties (i) to appoint an arbitrator from a list of five (5) sent earlier by Plaintiff rather than appoint one himself and (ii) to complete their arbitration by year’s end.  Geoffroy J. also issued a safeguard order for payment of commercial rent owing going forward but refrained from dealing with past months, stating that retroactive payments were within the arbitrator’s jurisdiction.

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Alberta – court orders which advanced arbitration set aside due to irregular service outside of jurisdiction

In Acciona Infrastructure Canada Inc v. Posco Daewoo Corporation, 2019 ABCA 241, Alberta’s Court of Appeal set aside ex parte orders which validated ex juris service, appointed arbitrators and consolidated arbitrations due to Plaintiff’s non-compliance with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters and service ex juris under Alberta Rules of Court, Alta Reg 124/2010.  Acknowledging Plaintiff’s frustration with Defendant’s procedural responses and the practical effect of adding to the delays, the Court declined to retroactively validate irregular service due to significant deficiencies in service.

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Ontario – court revives litigation dismissed on consent when parties do not proceed with arbitration

In Mishukov v. Fatoullaeva, 2019 ONSC 5550, Mr. Justice Grant R. Dow revived litigation which had been dismissed on consent by a court order in favour of arbitration.  Despite having agreed to submit to arbitration, the parties never completed the arbitration in the agreed upon time frame and Defendants claimed that the arbitration could no longer proceed, Applying equitable estoppel, Dow J. determinined that a party which chooses to treat its agreement as subsisting cannot later claim non-performance.  Dow J. held that a consent order dismissing an action was not a judicial determination of the dispute but only elevated the parties’ consent.

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