Ontario – though authorized, plaintiffs fail to justify stay of their own action after taking too many steps – #491

Despite section 7(1) of the Arbitration Act, 1991, SO 1991, c 17 requiring that a stay application be brought by the party which did not commence the court proceeding, Mr. Justice Christopher de Sa in Deluxe Windoors Manufacturing Inc. v. Bruhm, 2021 ONSC 3616, accepted that the parties’ agreement to arbitrate authorized either party to apply for stay.  Ostensibly authorized to apply to stay its own action, Plaintiffs’ own activity in the action nonetheless prompted de Sa J. to follow Lansens v. Onbelay Automotive Coatings Corp., 2006 CanLII 51177 (ON SC) which dismissed a stay application because defendant seeking the stay had taken several steps in the action before applying for a stay. Regarding Plaintiffs’ application for a stay, de Sa J. stated that “I agree with the Defendant that the Plaintiffs have acted no differently than the defendants in Lansens, in fact they did not simply respond, they initiated this claim”.

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Ontario – agreement to arbitrate not unconscionable where governing law preserves executive’s Employment Standards Act rights – #490

In Leon v. Dealnet Capital Corp., 2021 ONSC 3636, Master Barbara McAfee declined to exercise her discretion under section 7(2) of the Arbitration Act, 1991, SO 1991, c 17 to refuse a stay.  She dismissed the senior executive’s reliance on Uber Technologies Inc. v. Heller, 2020 SCC 16 to invalidate the agreement to arbitrate contained in the employment agreement, noting that the governing law preserved the executive’s right to file an Employment Standards Act, 2000 S.O. 2000, c.41 complaint.  Master McAfee also disagreed that (i) the Business Corporations Act, RSO 1990, c B.16 oppression claim, contained in employer’s counterclaim, was not arbitrable or (ii) the employer had attorned by filing a defense and counterclaim or applied for a stay with “undue” delay. Master McAfee confirmed there was no evidence that employer or its current counsel “noticed” the agreement to arbitrate contained in the employment agreement until later in the action.

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Alberta – Arbitration Act does not incorporate court’s powers in Rules of Court to extend delays – #489

In Mailer v. Mailer, 2021 ABQB 423, Mr. Justice Michael J. Lema confirmed he had no authority to extend the delay in which to file an application for leave to appeal an arbitration award, noting that the “Arbitration Act [RSA 2000, c A-43] does not provide for extensions of the s. 46 deadlines, whether directly or indirectly e.g. by incorporating the extension powers in the [Alberta Rules of Court, Alta Reg 124/2010]”.  The party seeking to challenge the award had filed an appeal as of right within the thirty (30) day delay but did not seek leave within that delay. The parties had agreed that their award “shall be subject to an appeal only on question of law in accordance with s. 44(2) of the Arbitration Act” and Lema J. held that their addition of the phrase “in accordance with s. 44(2)” changed the meaning of the first eleven (11) words, imposing a leave requirement.  Though the party appealed in the relevant delay, he failed to comply with the requirements of section 44(2) to seek leave and Lema J. lacked authority to remedy that procedural decision.

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Québec – court denies leave to challenge interim trial level decisions involving role of arbitration award in litigation – #488

In SNC-Lavalin inc. v. Arcelormittal Exploitation minière Canada, 2021 QCCA 849, Madam Justice Christine Baudouin dismissed two (2) applications for leave to appeal interim decisions involving the role an arbitration award played in court.  That award involved some, but not all, of the parties to litigation initiated by A. S and B as non-parties to that award between A and M argued that the judge had unduly limited the scope of the award. Baudouin J.A. disagreed, holding that the opposite prevailed. Subject to what the evidence might eventually establish and limiting her comments to her view of the record, Baudouin J.A. remarked that (i) S and B gave the award a scope which exceeded its conclusions and (ii) the issue addressed in the award was not A’s sole source of recourse against S and B.  Regarding M’s application as party to the award and involved in the court litigation by way of B’s recursory claim against M, Baudouin J.A. did not accept that B’s recursory action was a collateral attack on that award and noted that the inconveniences inherent in a trial do not qualify for leave under article 31 of Code of Civil Procedure, CQLR c C-25.01.

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B.C. – appeal court declines to re-assess success in appeal of award where court remits valuation matter to arbitrator – #487

In Nolin v. Ramirez, 2021 BCCA 191, B.C.’s Court of Appeal declined to modify a costs award issued in first instance, reiterating its deference to such discretionary orders.  The Court did acknowledge that it could modify a costs award “without undue deference to the views of the trial judge” if the Court on appeal had modified the amount granted in first instance for the merits of the dispute and where “the amount or nature of the award was a factor in the costs award below”.  Because the judge in first instance had remitted a valuation matter to the arbitrator, the Court held that “[t]here are still issues outstanding that have been referred to the arbitrator, and without a final decision with respect to those issues, it is difficult to assess substantial success”.

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Manitoba – ‘reckless’ and ’unfounded’ allegations against S counsel regarding arbitration record justify personal costs order against C counsel – #486

In Christie Building Holding Company, Limited v. Shelter Canadian Properties Limited, 2021 MBQB 101, Mr. Chief Justice Glenn D. Joyal dismissed attempts to reopen an earlier hearing in which he determined what constituted the record from the arbitration for the purpose of leave to appeal applications and any eventual appeal.  To do so, Joyal C.J. reviewed the evolution of the procedural decisions contemplated in the arbitration, offering insights into how to document such decisions and whether excessive flexibility actually generates uncertainty even for those involved in the arbitration.  In dismissing attempts by C’s counsel to ground C’s relief on allegations of fraud or facts arising or discovered after the initial court order, Joyal C.J. characterized the allegations made by C’s counsel against S’s counsel as “reckless and unfounded”, “an abuse of this Court’s process” and “unprofessional and inappropriate”.  Such allegations made personally against S’s counsel justified a reasonable solicitor-costs order against C’s counsel personally.

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