Ontario – experienced mediator’s involvement in/support of class proceeding settlement contributes to court approval of settlement – #453

In a class proceeding,  Mr. Justice Benjamin T. Glustein in Kaplan v. PayPal CA Limited, 2021 ONSC 1981 approved a settlement agreement as a “fair and reasonable and in the best interests of the Class Members”, noting that the settlement had been achieved by involving “a senior and highly-regarded lawyer and mediator” to resolve the claims.  When evaluating the proposed settlement against the criteria set out in Robinson v. Medtronic, Inc., 2020 ONSC 1688, Glustein J. supported his own approval of the settlement terms with inter alia references to the terms being recommended and supported by the experienced mediator.

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Ontario – Ontario courts’ mandatory mediation “slightly favours Ontario” in forum non conveniens analysis – #452

In Beaule v. Manufacturers Life Insurance Company, 2021 ONSC 1876, Mr. Justice James F. Diamond dismissed defendant’s application to decline jurisdiction on the basis of forum non conveniens.  As part of his analysis of the presumptive connecting factors identified in Club Resorts Ltd. v. Van Breda, 2012 SCC 17 (CanLII), [2012] 1 SCR 572, Diamond J. also considered that Ontario, unlike Québec, imposed mandatory mediation.  Diamond J. determined that depriving plaintiff of the mandatory mediation could quantify as a loss of juridical advantage and “slightly favours Ontario”.

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Québec – arbitrator has jurisdiction/obligation to decide recusal even absent express grant of authority to do so – #451

In Syndicat des employés du CISSSMO, section locale 3247 v. Murray, 2021 QCCS 459, Madam Justice Suzanne Courchesne annulled an award rendered by a physician arbitrator appointed by a third party pursuant to a process set out in the parties’ agreement to arbitrate but who, despite demands to recuse himself, issued a decision on the merits of the dispute without addressing the demands for recusal. The parties’ agreement omitted any express mention of the physician arbitrator’s authority to recuse himself or any grant of such authority to another.  Courchesne J. observed that the physician arbitrator, performing a quasi-judicial function, was subject to the impartiality and independence obligation and rules of procedural fairness and had both the jurisdiction and obligation to decide first on the grounds of his recusal.  Courchesne J. held that the parties ought to have instructed the physician arbitrator on the rules governing a motion for recusal but did not. Despite that omission, by refusing to decide on the motion for recusal or by implicitly dismissing it without reasons, the physician arbitrator omitted to exercise his jurisdiction and breached the rules of procedural fairness.  Courchesne J. annulled the award and ordered the parties to resume the arbitration before another physician arbitrator.

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Ontario – court urges parties consider mediation/arbitration for “unusual financial transactions” – #450

When imputing income to spouses to determine temporary spousal support, Mr. Justice David A. Jarvis in G. v. S., 2021 ONSC 1625 commented on the complexity of the financial transactions included in the information on which the parties asked him to rely.  After detailing those transactions, which appeared to involve companies owned by the husband or with/by one or more of his family members.  Jarvis J. determined the spousal support and completed his task.  Jarvis J. then closed his reasons by first disclaiming any “proxy” for the Canada Revenue Agency but then observing that “consideration might be given to mediation/arbitration” where there appears to be “unusual financial transactions whether those are family expenses funded through a myriad of related corporate entities … or bundles of “gifted” neatly-bound cash hidden in a bedroom closet in excess of $100,000”.

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Québec – challenge rejected to court’s authority to issue injunctive relief before arbitrator appointed – #449

In Bouchard v. Gouin, 2021 QCCS 781, Mr. Justice Jocelyn Pilote dismissed a defendant’s jurisdictional challenge to the Superior Court’s authority to issue injunctive relief in light of a valid agreement to arbitrate.  Acknowledging that neither party challenged the validity of the agreement to arbitrate and mindful of the deference owed by courts to the jurisdiction given to an arbitrator by parties, Pilote J. held that defendant’s interpretation of article 623 Code of Civil Procedure, CQLR c C-25.01, which confirmed a court’s authority to issue provisional measures before or during arbitration, would remove all substance from that article.  In the dispute before him, the parties had not yet named an arbitrator and respondent’s delay in which to propose an arbitrator had not yet expired.

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Ontario – venue change application for arbitrator appointment application an inappropriate, misuse of court resources – read #448

In Toronto District School Board v. Roofmart Ontario Inc., 2021 ONSC 1688, Mr. Justice Frederick L. Myers dismissed R’s application under Rule 13.1.02 of Ontario’s Rules of Civil Procedure, RRO 1990, Reg 194 to change venue from Brampton to Toronto for the adjudication of SB’s application to appoint an arbitrator under section 10 of the Arbitration Act, 1991, SO 1991, c 17.  Though he acknowledged that the parties’ underlying dispute was “wholly Toronto-based”, Myers J. observed that “the question of who arbitrates has no natural connection to any venue”.  Noting that a Brampton-assigned judge had already seized himself of SB’s application to appoint an arbitrator and scheduled an upcoming hearing to decide that application, Myers J. disagreed with R’s attempt to task another judge to hear SB’s application. “Any judge of this court is equally capable of hearing this matter quickly and making a decision on the identity of the arbitrator”.

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