ONTARIO – Where there was no consideration for a contract containing a mandatory arbitration clause, the Court exercised its discretion to refuse to stay the action under s. 7(2) the Arbitration Act, 1991, S.O. 1991, c.17 on the basis that the arbitration clause was invalid. Section 7(1) of the Act applies to cases where the interpretation of the arbitration clause is at issue, not where the clause’s very existence is questioned.
Continue readingCase #049E – Dufferin v. Morrison Hershfield
Application to remove a sole arbitrator of a complex construction dispute due to alleged apprehension of bias dismissed. The Arbitrator was selected for his construction expertise and was permitted to question witnesses and ask questions at any time during the hearing under a procedural order. The arbitrator’s interventions, unlike interventions by a trial judge, were not evidence of bias.
Continue readingCase #048E – Force One Marketing et al. v. Rritual Superfoods
ONTARIO – Forum Non Conveniens -The Ontario Court had jurisdiction to hear a contract dispute on the basis that the Ontario Court has jurisdiction simpliciter over the subject-matter of the contract, even though the defendant did not have a substantial connection with Ontario. A BC forum selection clause in a related agreement was not binding on the plaintiff. The defendant failed to prove that Ontario was not the forum conveniens to hear the dispute.
Continue readingCase #047D – Aquanta Group Inc. v. Lightbox Enterprises Ltd.
ONTARIO – In a second arbitration between the same parties, the Court rejected the claimant’s request to appoint the same arbitrator on the basis that vocal objection to the appointment of a “repeat arbitrator” should be taken seriously and there was no identifiable advantage for the re-appointment.
Continue readingCase #046D – Magna International Inc. v Granite Real Estate Inc.
ONTARIO – Arbitration Agreement valid despite not specifying a “seat”. Court directs the arbitrator to determine the applicable procedural law for the arbitration.
Continue readingCase #045D – 2832402 Ontario Inc. v. 2853463 Ontario Inc.
ONTARIO – Dispute resolution clause in a Share Purchase Agreement was held to be an arbitration agreement not an expert determination even though it does not mention the word arbitration.
Continue readingCase #044E – Ernst & Young Inc. v. Aquino
ONTARIO – In a claim by a trustee under s.96 of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (“BIA”) to recover the fruits of fraud committed by corporate officers before bankruptcy, the common law doctrine of corporate attribution was inapplicable, and the fruits of the fraud were disgorged from the fraudsters.
Continue readingCase #043E – Akelius Canada Ltd. v. 2436196 Ontario Inc.
ONTARIO – Where an innocent purchaser claims damages for the vendor’s breach of a real estate transaction, damages are limited to the actual loss suffered by the purchaser. In the absence of evidence of mitigation, the loss is limited to costs thrown away. The innocent purchaser is not entitled to recover as damages the profit subsequently earned by the breaching vendor on the resale of the property.
Continue readingCase #042E – PCL Constructors v. Johnson Controls
ONTARIO – An arbitration clause implicitly includes the power to award damages unless a contrary intention appears. A commercially unreasonable interpretation of the arbitration clause will not oust the arbitrator’s jurisdiction. Where an arbitration agreement provides that all disputes are subject to arbitration, correctable procedural irregularities do not oust the arbitrator’s jurisdiction.
Continue readingCase #041D – Royal Bank of Canada v. Mundo Media Ltd.
ONTARIO – Court appointed receiver not bound by contractual arbitration agreement requiring the Receiver to arbitrate in New York as such a requirement would be unfair to the debtor’s creditors and inconsistent with the Bankruptcy & Insolvency Act.
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