Newfoundland and Labrador – city lacks authority to impose arbitration unrelated to legislation’s purpose/intent

In St. John’s (City) v. 10718 Nfld. Inc., 2019 NLCA 41, Newfoundland and Labrador’s Court of Appeal upheld a first instance decision declaring that the City of St. John’s (the “City”) cannot require mandatory arbitration in an agreement as a term of approval of development as doing so is acting beyond its beyond its jurisdiction under its enabling legislation. See the earlier Arbitration Matters note “Newfoundland and Labrador court holds that a municipality has authority to agree to arbitration but not to impose it as a condition of regulatory approval

Continue reading “Newfoundland and Labrador – city lacks authority to impose arbitration unrelated to legislation’s purpose/intent”

Newfoundland and Labrador – ‘legislative language to the contrary’ provides option of court proceedings or arbitration

In Dewey v. Corner Brook Pulp and Paper Limited, 2019 NLCA 14, Newfoundland and Labrador’s Court f Appeal held that the applications judge had erred in ordering a stay of a proposed class action when he found that the dispute could only be resolved by mandatory arbitration.  Based on its interpretation of the legislation first introduced in 1915 and amended subsequently, the Court held that the legislation, from the onset and despite amendments, provided for the option of arbitration or court proceedings.  The Court identified the result as an exception, based on “legislative language to the contrary”, to courts enforcing mandatory arbitration.

Continue reading “Newfoundland and Labrador – ‘legislative language to the contrary’ provides option of court proceedings or arbitration”

Newfoundland and Labrador – reciprocal enforcement of court judgment enforcing awards not opportunity for collateral attack of awards

In Shoppers Drug Mart Inc. v. Retirement Home Specialists Inc., 2019 NLSC 44, Mr. Justice Robert P. Stack upheld an ex parte Newfoundland and Labrador court decision registering as its own judgment an earlier Ontario court decision enforcing awards.  In dismissing defendants’ contestation as a collateral attack on the awards, Stack J. listed alternative procedural steps which might have provided plausible opportunity to challenge the awards.  Stack J. underlined the limited role of the Ontario court enforcing an arbitration award under its Arbitration Act, 1991, SO 1991, c 17, and the Newfoundland and Labrador court providing reciprocal enforcement of another province’s court judgments under the Reciprocal Enforcement of Judgments Act, RSNL 1990, c R-4.

Continue reading “Newfoundland and Labrador – reciprocal enforcement of court judgment enforcing awards not opportunity for collateral attack of awards”

Newfoundland and Labrador – “shall” is not “must” and can be directory rather than mandatory

In Labrador-Island Link Limited Partnership v. General Cable Company, 2019 NLSC 6, Madam Justice Gillian D. Butler examined the sufficiency of steps taken in a dispute resolution process to determine whether steps served as mandatory conditions precedent which a party had to complete prior to commencing litigation. In doing so, Butler J. provides remarkable guidance to arbitration practitioners grappling with identical issues in their arbitration clauses. Her efforts to distinguish between “shall” and “must” were informed by Plaintiff’s good faith in attempting to complete the work contemplated in the contracts and by the severe implication of an expired limitation period. Continue reading “Newfoundland and Labrador – “shall” is not “must” and can be directory rather than mandatory”

Newfoundland and Labrador court renews ex parte order in service of court’s deference to arbitration

Mr. Justice Carl R. Thompson in Astaldi Canada Inc. v. Muskrat Falls Corporation, 2018 NLSC 229 demonstrated Newfoundland and Labrador’s Supreme Courts’ support of arbitration by renewing ex parte interim relief so that a Board of Arbitration constituted following a recent court decision could undertake and complete its own determination of its jurisdiction and, if accepted, issue its own interim relief sought in the Notice of Arbitration.  Thompson J. subjected the term of his own order to the occurrence of a later procedural step in the arbitration. His decision recognized that the courts can act quickly, repeatedly and in coordination to preserve to arbitral parties the value of the bargain they made to resolve their disputes, including urgent ones, by arbitration. Continue reading “Newfoundland and Labrador court renews ex parte order in service of court’s deference to arbitration”