Ontario – court revives litigation dismissed on consent when parties do not proceed with arbitration

In Mishukov v. Fatoullaeva, 2019 ONSC 5550, Mr. Justice Grant R. Dow revived litigation which had been dismissed on consent by a court order in favour of arbitration.  Despite having agreed to submit to arbitration, the parties never completed the arbitration in the agreed upon time frame and Defendants claimed that the arbitration could no longer proceed, Applying equitable estoppel, Dow J. determinined that a party which chooses to treat its agreement as subsisting cannot later claim non-performance.  Dow J. held that a consent order dismissing an action was not a judicial determination of the dispute but only elevated the parties’ consent.

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Ontario – court adopts baseball arbitration to resolve disputes in document discovery plan

In Sullivan v. Northwood Media Inc., 2019 ONSC 9, Master Donald E. Short provided litigants with a novel approach to resolving disputes over discovery plans, a procedural step imposed by Ontario’s Rules of Civil Procedure, RRO 1990, Reg 194.  Expressly adopting the approach of “baseball style” arbitration, Master Short required that the litigants complete their discussions in light of detailed observations he provided in his reasons and, failing agreement, return to court with their respective proposals as to the most practical and reasonable approach.  Absent the most unusual circumstances, the court would not “split the difference” but choose one of the competing alternatives.

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Ontario – no binding settlement agreement means no binding agreement to arbitrate settlement dispute

In Rubner v. Rubner, 2019 ONSC 4110, Mr. Justice Laurence A. Pattillo dismissed party M’s application to appoint an arbitrator, determining that the evidence failed to demonstrate that party M and party J had entered into a binding settlement agreement.  Consistent with that determination, he also granted party J’s application to set aside party M’s notice to arbitrate because, in the absence of a settlement, there was no agreement to arbitrate.  The case is a less common instance of a court determining on “a superficial examination of the evidence” that the principal contract was non-existent and, with it, the agreement to arbitrate.

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Ontario – summary judgment motion opportunity for arbitrator to determine issues in favour of respondent

In Canada Bread v. Mallot Creek, 2019 ONSC 2578, Madam Justice Bernadette Dietrich upheld an arbitrator’s decision to dismiss one party’s motion for summary judgment but then also make a final determination of a key issue in favour of the other party.  Dietrich J. determined that, if the sufficiency of the record permits the arbitrator to decide the motion, it is “axiomatic” that the arbitrator resolve the issue raised by the motion in favour of either party.  The parties selected the mediator to serve as arbitrator for their settlement agreement should a dispute arise in the interpretation of the settlement.

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Ontario – non-parties to arbitration agree arbitrator’s findings of facts binding for facts common to their litigation

In Sky Solar (Canada) Ltd. v. Economical Mutual Insurance Company, 2019 ONSC 4165, Mr. Justice Peter J. Cavanagh issued detailed trial reasons relying on key findings of fact made in arbitration involving only plaintiff.  Defendants in the court litigation – an insurer of respondent in the arbitration and respondent’s insurance broker – agreed with plaintiff that those facts were binding and would not be relitigated. Plaintiff had been unsuccessful in the arbitration but still agreed to re-purpose those findings for use by Cavanagh J. in determining liability against the non-parties. The agreement demonstrates that non-parties – and unsuccessful arbitral parties – need not expect different findings if the same evidence is presented to a new decision maker. 

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