Ontario court enforces award after arbitrator required to untangle a cluster of less common procedural challenges

In Fuego Digital Media Inc. v. DAC Group (Holdings) Limited, 2018 ONSC 2897, Madam Justice Julianne Parfett considered and dismissed challenges to a final award based on an alleged denial of natural justice and on an alleged excess of jurisdiction.  The reasons demonstrate key procedural difficulties encountered in complex IT arbitration and the variety of solutions applied by arbitrators to resolve those difficulties and provide the parties with an enforceable final award.   The procedural history demonstrates how to deal with a bundle of less common issues such as adjournments to obtain financing and new legal counsel, non-payment of fees leading to dismissal of counterclaim, new evidence, draft awards provided by parties and injunctive relief against the officers and directors of corporate entities. Continue reading “Ontario court enforces award after arbitrator required to untangle a cluster of less common procedural challenges”

Ontario court applies limits and deference in judicial review of appeal from statutory arbitration

In its judicial review of an administrative appeal from a statutory arbitration decision, Ontario’s Divisional Court in Belair Direct Insurance Company v. Green, 2018 ONSC 2782, asserted the limited scope granted for that appeal.  By quashing and upholding parts of that appeal decision, Mr. Justice Frederick L. Myers, writing for the court, reiterated the limited role facts can play on an appeal limited to a question of law and the deference the court has for decisions taken on questions of law. Continue reading “Ontario court applies limits and deference in judicial review of appeal from statutory arbitration”

Ontario court grants temporary stay of litigation, endorsing arbitration as tandem support to court litigation process

Master Robert A. Muir in Coco Paving Inc. v. Durham (Municipality), 2018 ONSC 2849 used the court’s own case management powers under section 106 of the Courts of Justice Act, RSO 1990, c C.43 to temporarily stay five (5) court files in favour of ongoing arbitration to advance the litigation.  The arbitration process would resolve issues key to the litigation and thereby add efficiencies to the litigation process. The reasoning and the result in support of a temporary stay reflects the court’s belief that arbitration is not only an either-or alternative to litigation but can qualify as tandem support. Continue reading “Ontario court grants temporary stay of litigation, endorsing arbitration as tandem support to court litigation process”

Federal court dismisses jurisdictional challenge to NAFTA tribunal majority’s consideration of domestic law

In Canada (Attorney General) v. Clayton, 2018 FC 436, Madam Justice Anne L. Mactavish held that a NAFTA tribunal majority’s consideration of domestic law was either a factual finding or part of the factual matrix on which the majority considered the host state’s breach of customary international law.  In considering the domestic legal framework and the host state’s non-compliance with that law as facts on which it could determine whether investors had received unequal treatment without justification, Mactavish J. held that the majority had stayed within the scope of the submission to arbitration and did not exceed its jurisdiction.  Continue reading “Federal court dismisses jurisdictional challenge to NAFTA tribunal majority’s consideration of domestic law”

Québec courts vigilant regarding merchants’ reliance on arbitration clauses in consumer contracts

A pair of recent cases in Court of Québec demonstrate merchants’ persistence in inserting mandatory arbitration clauses into their contracts with consumers and the court’s corresponding vigilance in guarding against violation of Québec’s public order consumer legislation regarding mandatory arbitration.  Despite defendants’ reliance on those arbitration clauses as part of their defenses in court, Mr. Justice Daniel Bourgeois in Poirier v. RSH Travel Ltd.(CheapOair.ca), 2018 QCCQ 2753 and Mr. Justice Jean Hudon in Gauthier v. Détection thermique JD Québec inc., 2018 QCCQ 2198 demonstrated how the courts make brief work of defendants’ reliance on mandatory arbitration clauses in consumer contracts. Continue reading “Québec courts vigilant regarding merchants’ reliance on arbitration clauses in consumer contracts”