Ontario – length/brevity of reasons in award not equal to reasonableness/insufficiency

In Peralta v. Peralta, 2019 ONSC 2854, (unreported, May 7, 2019, Court file no. CV-18-26994), Mr. Justice Thomas J. Carey held that lengthy reasons do not equal reasonable and correct reasons any more than brief ones are equated with insufficiency.  In his own brief reasons upholding a final award on the standard of reasonableness, Carey J. echoed earlier judicial observation that losing in arbitration itself does not equate to unfair or unequal treatment. The challenged result was an outcome open to the arbitrator, within his expertise and supported by clear, concise and reasonable reasons.

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Ontario – arbitral award given no weight in court when litigant not party to the arbitration

In G.E.X.R. v. Shantz Station and Parrish & Heimbecker, 2019 ONSC 1914, Madam Justice Catrina D. Braid declined to give evidentiary weight in her court to an arbitral award to which one of the litigants before her was not a party.  While open to giving arbitral awards some weight in certain circumstances, the plaintiff’s absence from the arbitration was sufficient to disregard the award.  Baird J. also commented on whether an adverse inference should be drawn if neither party called a key witness from the arbitral proceedings.

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Ontario – new disputes either beyond or no longer subject to abandoned submission agreement

In 1230455 Ontario Ltd. v. 150 Katimavik Inc., 2019 ONSC 2481, Madam Justice Michelle O’Bonswain declined to order the parties to arbitration due to the scope of the submission to agreement and its abandonment.  O’Bonswain J. held that (i) one part of their new dispute did not fall within their initial submission to arbitration and (ii) the other part of their dispute did fall within the agreement but the parties had abandoned arbitration.

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Ontario – unsuccessful attempt by new counsel to enjoin further arbitration after partial award

In Lobanova v. Grynyshyn, 2019 ONSC 3064, Mr. Justice Frederick L. Myers dismissed an attempt by new counsel to enjoin the arbitrator from completing the arbitration and deciding isolated monetary issues intentionally left unresolved by an earlier, partial award.  Myers J. stated that access to the courts is not a “do-over” once the arbitral “main event” concludes.  Despite appointing new counsel, a change in strategy and new arguments cannot excuse positions taken earlier in the arbitration or contradict evidence already adduced.  Myers J. discouraged challenges to discretionary procedural orders, especially fully reasoned ones, including challenges which prevent the court from having a full case if and when an appeal was authorized.

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Ontario – overlapping cost applications result in denial of most of costs claimed

In Iqbal v. Mansoor, 2019 ONCA 110, Ontario’s Court of Appeal declined to hear an appeal of a costs order, holding that appellant had refused to seek the required leave to appeal such an order.  Regarding the substance of appellant’s claim, the Court observed how the Superior Court had already dealt with costs in an earlier order.  The various reasons in the sequence of decisions identify opportunities for arbitral parties to either reserve or clarify the issue of costs incurred up to each phase of their dispute resolution.

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