Ontario – enforcing award’s remedy excludes substituting court’s own remedy – #411

In Abittan v. Wilcox, 2020 ONSC 6836, Mr. Justice Frederick L. Myers reiterated the “consequences” of agreeing to submit disputes to arbitration, limiting his involvement by “[i]gnoring the merits of the Arbitrator’s decisions, as I must, and considering only the nature and form of remedy granted”. Enforcing the award which ordered one party to pay the other the costs of the arbitration, Myers J. explained that section 50(7) of the Arbitration Act, 1991, SO 1991, c 17 did not authorize him to change the remedy ordered in an award. Doing so would not be enforcing an award but substituting the court’s award for that of the arbitrator.

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Ontario – exceptions to solicitor-client and settlement privileges arise in post-settlement dispute – #410

In Laliberté v. Monteith, 2021 ONSC 14, Madam Justice Sandra Nishikawa ordered Respondent to answer questions and to provide his lawyer’s complete file. First, she determined that Respondent had waived solicitor-client privilege over exchanges relating to a disputed, negotiated settlement.  Though Respondent’s pleadings were “carefully drafted to avoid putting the Respondent’s state of mind, and any legal advice that might have had an impact on his state of mind, at issue”, Respondent’s denials did put in issue his state of mind and his reliance on legal advice in not disclosing facts material to Applicant’s decision to enter into the settlement. Second, Nishikawa J. further held that the record justified applying an exception to settlement privilege, namely where “a party perverts the purpose of a settlement negotiation and attempts to use it to mislead the other party into changing its position”.

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B.C. – commercial dispute “foundationally different” from investor-state claim – #409

In lululemon athletica canada inc. v. Industrial Color Productions Inc., 2021 BCSC 15, Mr. Justice Gordon S. Funt determined that a standard of reasonableness applied to the court’s review of jurisdictional challenges in consensual arbitration.  He distinguished Mexico v. Cargill, Incorporated, 2011 ONCA 622, stating that “[a] dispute involving two commercial parties over the termination of a private contract is, without more, foundationally different than a claim for damages against a country under NAFTA engaging international multilateral trade agreement or treaty interpretation principles”.  Also, Funt J. dismissed the requirement for a more express or “paint by numbers” treatment of a party’s jurisdictional argument, stating that “the parties’ expectations as to the completeness of the arbitrator’s reasons is less than those of parties engaged in commercial litigation before a judge”.

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Québec – no second opinion on issue determined by award issued by physician arbitrator – #408

In Rivain v. La Capitale assureur de l’administration publique Inc. (La Capitale, assurances et services financiers), 2020 QCCS 3936, Mr. Justice Christian Immer declined to order parties to re-arbitrate an issue determined by a physician arbitrator under an insurance policy.  That policy submitted medical disputes to arbitration before a physician and subjected awards to the typical three (3) post-award options available to arbitral parties: compliance, homologation, annulment. Immer J. did determine that the policy anticipated a 4th option, namely a subsequent arbitration before another medical specialist if the 1st arbitrator determined that the medical dispute fell within that other medical speciality.  Immer J. also noted that, despite the complexity of the facts, a court was better placed to determine the jurisdictional issue, rather than defer to a first determination by the arbitrator, as the request to refer the parties to arbitration raised principally a question of law.

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B.C. – errors interpreting and applying the law eligible for appeal on questions of law but not for set aside – #407

In Spirit Bay Developments v. Scala Developments, 2020 BCSC 1839, Mr. Justice Robert Johnston granted leave to appeal for three (3) questions of law which he determined had arguable merit but dismissed the application to set aside the award.  A pair of questions involved misinterpretation and application of applicable case precedents and a third arose from the “arguably defective” pleading made by the party resisting appeal of the award. Refusing to set aside the award on the basis of legal error, Johnston J. noted that the alleged error of law would be determined on appeal. “Additionally, the parties clothed the arbitrator with the power to decide their dispute, and that includes the power to be wrong in interpreting and applying the law”.

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