ONTARIO – Referral to arbitration and stay of action – UNCITRAL Model Law Art. 8(1) and ICAA, 2017 s.9 – Waiver of a party’s right to arbitrate requires full knowledge of rights and an unequivocal, conscious intention to abandon them. A party to an arbitration agreement does not waive its right to arbitration or render the arbitration agreement inoperative by failing to respond to emails proposing arbitration.

ONTARIO – Arbitration - Where the Arbitrator was “functus officio” with respect to the Final Award, the court refused a motion to dismiss an application to set aside an arbitrator’s final award that alleged bias. Allegations of arbitrator bias can be raised as a ground to set aside an award pursuant to Article 34 of the Model Law, if the bias amounts to the parties not being treated equally.

ONTARIO – Business Law – Entire agreement clause cannot preclude a defence of fraudulent misrepresentation. The existence of opportunities to discover the truth does not deprive the victim of its right to avoid a contract based on a fraudulent misrepresentation. Even if a party was afforded an opportunity to investigate a misrepresentation, that does not deprive the party of the right to avoid a contract obtained by misrepresentation.

CANADA – Enforceability of arbitration agreement – Section 15 of the BC Arbitration Act does not require a court to stay a civil claim brought by a court-appointed receiver in every case where the claim is subject to a valid arbitration agreement. Where arbitration would compromise the orderly and efficient conduct of a court-ordered receivership, an otherwise valid arbitration agreement may be inoperative and unenforceable. The Court’s analysis as to whether to stay an action in favour of arbitration is fact-specific.

ONTARIO – Dispute Resolution Clause - Where a class action plaintiff agreed by “click through” to an online merchant’s Conditions of Use that provided for all disputes to be resolved by arbitration according to U.S. Federal law and prohibited class actions, the Court stayed the action in favour of arbitration on the basis that the clause was not void, inoperative or incapable of performance. The online merchant’s subsequent changes to its dispute resolution clause to permit actions in courts in the Plaintiff’s provinces of residence was argued by the parties but did not change the Court’s decision to stay the action.

ONTARIO – Duty of Good Faith and Honest Performance of Contract – Even where a Court finds a breach of the organizing principle of good faith and honest performance of a contract, the claimant must still prove its damages. Where the claimant failed to tender any evidence that it suffered a loss arising from the defendant’s breach, the Court refused to award any damages. The Court distinguished between evidentiary issues in proving damages, which may allow the Court to draw inferences as to quantum, and a failure to tender any evidence as to damages.