Federal – final offer arbitration characterized as “an intentionally high risk form of arbitration”

Madam Justice Ann Marie McDonald in Canadian National Railway Company v. Gibraltar Mines Ltd, 2019 FC 1650 demonstrated that the “unique nature” of final offer arbitration distinguished it from “ordinary commercial arbitration” and informed expectations of procedural fairness.  The dissatisfied party objected to the administering institution’s decision to dismiss a preliminary application but provide reasons only after the arbitration concluded.  McDonald J. held that the decision was not part of the FOA process under challenge and did not affect the fairness of the process. McDonald J. also issued a permanent order declaring certain documents, created for the arbitration, to remain confidential.

Continue reading “Federal – final offer arbitration characterized as “an intentionally high risk form of arbitration””

Federal – court rules require ship owner as party in admiralty proceedings despite arbitration agreement

In Norstar Shipping and Trading Ltd. v. The Rosy (Ship), 2019 FC 1572, parties to an arbitration disputed the amount of bail to be paid into court to free a ship arrested as security for the claims made in the parties’ arbitration.  The ship’s arrest was authorized by the Federal Courts Rules, SOR/98-106 which further required the seizing party to name its other arbitral party, the ship owner, as a party to the litigation.  Naming the other party did not qualify as waiver of the arbitration agreement and the parties’ argument before Madam Justice E. Susan Elliott was not considered a breach of any confidentiality agreement regarding the arbitration.

Continue reading “Federal – court rules require ship owner as party in admiralty proceedings despite arbitration agreement”

Federal – no need to serve non-participating arbitral party with materials regarding post-recognition enforcement procedures

In Heddle Marine Service (NL) Inc. v. Kydy Sea (Ship), 2019 FC 1140, Mr. Justice Peter G. Pamel relieved a third party from serving a losing, non-participating arbitral party with court materials related to post-recognition enforcement measures instituted by the successful arbitral party.   The case offers a rare view into post-recognition skirmishes between an arbitral party and a third party competing over assets subject to judicial sale authorized as part of award enforcement.  The facts also confirm that the arbitration process – from award to execution on assets – will proceed whether a duly-notified arbitral party participates or not.

Continue reading “Federal – no need to serve non-participating arbitral party with materials regarding post-recognition enforcement procedures”

Federal – confidentiality of arbitration must be re-established independently on appeal to court

In a pair of decisions, the Federal Court in Canadian National Railway Company v. Gibraltar Mines Ltd., 2019 FC 225 and in Canadian National Railway Company v. Gibraltar Mines Ltd., 2019 FC 963 held that there is no general principle that confidentiality of arbitration proceedings carries over to court when a party appeals the arbitral award.  Even if confidentiality was imposed by statute for the purpose of the arbitration, absent specific wording in the statute, confidentiality does not automatically extend into the courts which are open and public.

Continue reading “Federal – confidentiality of arbitration must be re-established independently on appeal to court”

Federal Court of Appeal applies distinction between final offer arbitration and interest arbitration

In Laurentian Pilotage Authority v. Pilotes du Saint-Laurent Central Inc., 2018 FCA 117, the Federal Court of Appeal restored an arbitrator’s choice between two final awards, noting that the lower court’s judicial review had effectively converted the parties’ final offer arbitration into interest arbitration. In restoring the award, the Court refreshed guidelines on conducting final offer arbitration and distinguished it from interest arbitration. The reasons also identify arguments – compelling in principle but unsuccessful on the particular facts – to disqualify final offers which purportedly contain terms and conditions in conflict with legislation or exceed a party’s capacity to contract. Continue reading “Federal Court of Appeal applies distinction between final offer arbitration and interest arbitration”

Federal Court of Appeal notes 1890’s provincial undertakings to arbitrate with other provinces as predecessor to current court rule on jurisdiction

In Alberta v. Canada, 2018 FCA 83, the Federal Court of Appeal analyzed the legislative evolution of section 19 of the Federal Courts Act, RSC 1985, c F-7 to resolve a modern day challenge to the Federal Court’s jurisdiction over a Third Party Claim filed by Canada against Ontario regarding contribution and indemnification in an aboriginal law dispute.  In doing so, the Court drew attention to legislation from the 1890’s which confirmed the provincial undertakings to arbitrate against other provinces.  Those legislated undertakings, like many current private agreements, sought to solve difficult, albeit different, procedural challenges created by court litigation. Continue reading “Federal Court of Appeal notes 1890’s provincial undertakings to arbitrate with other provinces as predecessor to current court rule on jurisdiction”

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”

Federal Court of Appeal quashes garnishment attempt executing arbitral award against third parties

In a pair of decisions, the Federal Court of Appeal reminded litigants of the limits of enforcing arbitral awards.  In Delizia Limited v. Nevsun Resources Ltd., 2017 FCA 187 and Delizia Limited v. Sunridge Gold Corp., 2017 FCA 188 the court upheld two corresponding lower court decisions, Nevsun Resources Ltd. v. Delizia Limited, 2016 FC 393 and Sunridge Gold Corp. v. Delizia Limited, 2016 FC 392, which overturned a Prothonotary’s order of garnishment against non-parties to the arbitration, Delizia Limited v. Eritrea, 2015 FC 33 and Delizia Limited v. Eritrea, 2015 FC 34, when doing so would require the court to pierce multiple corporate veils on the basis of the debtor’s control over them.  Continue reading “Federal Court of Appeal quashes garnishment attempt executing arbitral award against third parties”