ONTARIO – Arbitration – Court Appointment of Arbitrator – Where the arbitration agreement provides no procedure for appointing the arbitral tribunal, the court has the jurisdiction under section 10(1)(a) of the Arbitrations Act, 1991 to make the appointment. Where there are several qualified candidates, the court’s task is to select the arbitrator that is best qualified by profession or occupation to decide the issues given the issues in dispute and the factual matrix in which they arose. Relative adjudicative experience is often a decisive factor.

ONTARIO – Arbitration – Right to Be Heard – Where the parties were afforded equal opportunities to present their cases, and data relied on by an expert was relied on by both parties in their submissions despite not being marked as an exhibit, the right to be heard was satisfied.

ONTARIO – Corporations – Right of first refusal in an asset sale and the duty of good faith and honest performance. Allocating price in a manner to discourage the exercise of a right of first refusal in an asset sale is not a breach of the duty of good faith and honest performance. The relationship between the holder of the right of first refusal and a third party is competitive, and parties are entitled to act in their self-interest.

ONTARIO – Arbitration – Application for Stay – The analytical framework and standard of proof for a stay application has changed. Once the party seeking the stay has shown that the technical requirements establish that there is an arguable case that an arbitration agreement exists, the party seeking to avoid the stay must establish on a balance of probabilities that one of the statutory exceptions to a mandatory stay of proceedings exists.

ONTARIO – Mareva Injunction–Anton Piller Order – Sealing Order – An ex parte order for an interlocutory injunction to restrain the disposition of Canadian assets and the destruction of documents was granted in aid of a pending New York action, claiming damages for fraudulent inducement where the defendant had moved to Canada, had assets in Canada, had admitted to fraud and there was evidence of fabrication and destruction of documents. There was a genuine risk that the assets would be moved out of the reach of the Court and that documents would be destroyed if the orders were not made.

ONTARIO – Arbitration – Arbitration Act, 1991, s. 46 – Arbitrator’s refusal to allow amendment of pleadings to permit a claim for negligent misrepresentation just days before the pre-emptory hearing of the arbitration was not unfair or unequal treatment and was not a basis to set aside the arbitrator’s award.