Ontario – raising arbitration in defence helps demonstrate defendant did not waive arbitration – #414

In Elgin Mills v. Farhanian, 2020 ONSC 6435, Master Karen E. Jolley granted an application for a stay, holding that a defendant does not attorn to the court process by filing a defence wherein it specifically raises the arbitration provision.  Master Jolley followed the precedent set by ABN Ambro Bank Canada v. Krupp Mak Maschihnenbau GmbH, 1996 CanLII 12449 (ON SCDC) which held that reference to arbitration in a defence may be treated as a request to arbitrate, “were one needed“.  She further held that defendant’s delayed application for a stay, coupled with light activity in the litigation, did not justify refusing stay and that the work in the litigation could be repurposed for an arbitration.

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Ontario – enforcing award’s remedy excludes substituting court’s own remedy – #411

In Abittan v. Wilcox, 2020 ONSC 6836, Mr. Justice Frederick L. Myers reiterated the “consequences” of agreeing to submit disputes to arbitration, limiting his involvement by “[i]gnoring the merits of the Arbitrator’s decisions, as I must, and considering only the nature and form of remedy granted”. Enforcing the award which ordered one party to pay the other the costs of the arbitration, Myers J. explained that section 50(7) of the Arbitration Act, 1991, SO 1991, c 17 did not authorize him to change the remedy ordered in an award. Doing so would not be enforcing an award but substituting the court’s award for that of the arbitrator.

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Ontario – exceptions to solicitor-client and settlement privileges arise in post-settlement dispute – #410

In Laliberté v. Monteith, 2021 ONSC 14, Madam Justice Sandra Nishikawa ordered Respondent to answer questions and to provide his lawyer’s complete file. First, she determined that Respondent had waived solicitor-client privilege over exchanges relating to a disputed, negotiated settlement.  Though Respondent’s pleadings were “carefully drafted to avoid putting the Respondent’s state of mind, and any legal advice that might have had an impact on his state of mind, at issue”, Respondent’s denials did put in issue his state of mind and his reliance on legal advice in not disclosing facts material to Applicant’s decision to enter into the settlement. Second, Nishikawa J. further held that the record justified applying an exception to settlement privilege, namely where “a party perverts the purpose of a settlement negotiation and attempts to use it to mislead the other party into changing its position”.

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Ontario – omission to stipulate language of arbitration and then require bilingual arbitrator creates delays – #406

In Hodder v. Eouanzoui, 2020 ONSC 7905, Mr. Justice Robert N. Beaudoin asserted jurisdiction under section 16(3) of Arbitration Act, 1991, SO 1991, c 17 to appoint a substitute arbitrator in an administered arbitration where neither the parties’ agreement to arbitrate nor the administering institution’s rules provided a process to appoint a substitute. The institution temporarily lacked a sufficient number of bilingual arbitrators on its roster and, during that period, Applicant applied to the court for assistance.  The requirement that the arbitrator be bilingual did not appear in the agreement to arbitrate, arising after service of the notice to arbitrate, and appeared to result by consensus, combining the parties’ respective positions on the appropriate language of the arbitration. When confirming his orders, Beaudoin J. also formalized the bilingual status of the arbitration.

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Ontario – mediator appointed as arbitrator for disputes involving settlement negotiated during later arbitration – #403

Following an unsuccessful mediation phase before a mediator regarding disputes under a 2011 agreement, the parties in The Corporation of the Township of South Stormont v. The Kraft Heinz Company, 2020 ONSC 7641 engaged in arbitration before another professional during which the parties negotiated a 2017 settlement and agreed to arbitrate disputes before the mediator.  When disputes arose over the settlement, one party sought to resume the earlier arbitration but to appoint a new arbitrator.  The other party resisted, arguing that they had agreed to submit disputes regarding the settlement to the mediator. Mr. Justice James E. McNamara held that the dispute was not under the main 2011 agreement but fell within the express terms of the 2017 settlement. The dispute resolution in the parties’ settlement arguably constituted a med-arb agreement.

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