Ontario – anti-suit injunction restrains party bound by Ontario arbitration award from pursuing parallel U.S. litigation – #368

In Borschel v. Borschel, 2020 ONSC 4395, Mr. Justice Lorne Sossin issued an anti-suit injunction restraining a party to arbitration awards subject to Ontario law from pursuing parallel proceedings in a U.S. jurisdiction.  Sossin J. also dismissed arguments challenging enforcement of the awards based on legislative provisions requiring parties to sign any agreement reached as part of the court process. Sossin J. held that the provisions did not serve to invalidate awards which had issued on consent and where consent of the parties had been communicated by counsel.

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Alberta – challenge to validity of agreement to arbitrate cannot evade application of Arbitration Act – #367

In Aldred Estate (Re), 2020 ABQB 469, Mr. Justice Craig M. Jones held that a court’s discretion to refuse a stay under section 7(2) of the Arbitration Act, RSA 2000, c A-43 was limited to specific circumstances and a potential for inefficiency did not empower courts to disregard a statutory imperative. Despite challenges to the validity of the arbitration agreement, a court may grant the stay and allow the arbitrator to determine allegations of invalidity. Jones J. dismissed as “insupportable” the argument that the Arbitration Act did not apply if a party challenged the validity of agreement to arbitrate. Referring to sections 7(2)(b) and section 17(3), Jones J. held that these provisions would make no sense if an invalid arbitration agreement rendered the Arbitration Act inapplicable.

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Manitoba – facts raising claim subject to arbitration, but common to judicial review, disregarded – #366

Despite overlap in facts, Mr. Justice James G. Edmond in Ladco Company Limited v. The City of Winnipeg, 2020 MBQB 101 declined to include an alleged breach of contract issue as an issue ancillary to judicial review applications, observing only that, if valid, that alleged breach should be determined by another procedural mechanism such as arbitration provided in the parties’ agreements.  The facts in the record involved both (i) a 2016 exercise of a city’s statutory powers and the constitutionality of a by-law and resolution and (ii) a breach of contract issue arguably subject to an agreement to arbitrate.  Despite acknowledging that certain facts in the record overlapped with issues properly raised for judicial review, Edmond J. held that he would disregard those facts involving breach of contract and would “leave that issue to another day”.

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Québec – court suspends own process, requires parties take arbitration-related steps prior to decision on stay – #365

In Syndicat de la copropriété Clark et Fleury v. Généreux, 2020 QCCS 1835, Mr. Justice Mark Phillips issued a sequence of orders regarding the parties’ to exhaust the steps related to each of their competing dispute resolution procedural approaches.  Without pre-determining either party’s rights either to pursue freshly-filed litigation or to obtain referral to arbitration, Phillips J. suspended his own involvement in a referral application and, during that suspension, imposed steps to complete procedural arguments for/against arbitration in two (2) court files. His orders included ‘recommending’ the parties exercise certain rights in their agreement to arbitrate prior to a later but near-in-time date at which he would resume involvement. Phillips J. limited his involvement to ensuring completion of all steps necessary to (i) the agreement to arbitrate and (ii) contesting the court’s jurisdiction, under reserve of any upcoming decision that the agreement to arbitrate applied to the disputes.

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Ontario – professional negligence claims stem in part from arbitration agreement’s procedural options – #364

In HQIC and Circlemed Inc. v. Hamdani, 2020 ONSC 3403, Madam Justice Cynthia Petersen considered allegations made by clients against their former counsel of record in an arbitration and the negotiations which resolved the arbitration. Though her reasons focus on whether the record was sufficient/appropriate to allow her to grant summary judgment (no, it was not), Petersen J.’s analysis disclosed certain risks inherent for counsel in commercial arbitration when (i) stepping into a new brief and (ii) responding post-resolution to a client’s alleged dissatisfaction over the conduct and settlement of the arbitration.  The record also highlights the opportunities for preliminary skirmishing created by inserting procedural options into an agreement to arbitrate which can be triggered merely by how either party frames its action.

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