ONTARIO – Arbitration – Application to Set Aside Arbitral Award – In a set aside application pursuant to Article 34(2)(a)(ii) of the Model Law for reasons of fairness, the conduct of the tribunal must be sufficiently serious to offend our basic notions of morality and justice and Ontario Law on damages.

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ONTARIO – Shareholder Disputes – Oppression Remedy – On an application for relief from oppression by the founder and senior employee of a small corporation, who had been removed as an employee and director of the corporation before all of his shares vested, the Court should focus on whether the respondents’ conduct was equitable, fair and reasonable in the circumstances of the case. Where an application judge considered only whether the respondents’ conduct was lawful, an error of law occurred, and the dismissal of the oppression application was set aside on appeal. The Court of Appeal remitted the case back to the Superior Court for trial on the merits.

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ONTARIO – Arbitration – Application to enforce two UK arbitral awards pursuant to the International Commercial Arbitration Act, 2017 – The grounds for refusing to enforce an arbitral award on the basis of unfairness are narrowly construed. Where the UK High Court had dismissed an application to set aside the arbitral awards on the same grounds as raised before the Ontario court, the elements issue estoppel were met and the Respondent’s objection to recognition and enforcement was denied.

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ONTARIO – Arbitration – Leave to Appeal – There are limited avenues of appeal from an arbitral award under section 45(1) of the Arbitrations Act, 1991. That section only applies where the arbitration agreement does not deal with appeals on questions of law. Leave shall only be granted if the court is satisfied that the matters at stake are of such importance to the parties to justify an appeal, and that the determination of the question of law will significantly affect the rights of the parties.

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ONTARIO – Arbitration – Appointment of Arbitrator – Where there is an agreement on the essential terms of an arbitrator’s appointment, it need not be incorporated into a formal executed document to be binding. Repudiation of an agreement to appoint an arbitrator is not established unless a reasonable person would conclude that a party no longer intended to be bound by that agreement.

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ONTARIO – Contract Interpretation – It is an error of law to decide that an agreement was reached based on the subjective intention of one side of the bargain. Interpretation of contract requires the court to read the contract as a whole, giving the words their ordinary and grammatical meaning consistent with the surrounding circumstances at the time the contract was formed. The court is not to consider the subjective intentions of the parties. The interpretive process should consist only of objective evidence of the background facts at the time of the execution of the contract.

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ONTARIO – Corporations – Unjust enrichment – Without a benefit that enriched the defendant, and which can be restored to the plaintiff in specie or in money, no recovery lies for unjust enrichment.

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ONTARIO – Limitation Periods – Real Estate – The 10-year limitation period in s. 4 of the Real Property Limitations Act, (“RPLA”) does not apply to an action to declare a fraudulent conveyance of real property void as against creditors under s.2 of the Fraudulent Conveyances Act (“FCA”).The two-year limitation period from the date the claim was discovered under s. 4 of the Limitations Act, 2002 applies. ONCA’s decision in Anisman v. Drabinsky, 2021 ONCA 120 was wrongly decided.

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ONTARIO – Duty of Good Faith and Honest Performance of Contract – Even where a Court finds a breach of the duty of good faith and honest performance of a contract, the claimant must prove that it suffered damages. There is no presumption of damages upon a finding of a breach of duty of honest performance. The ONCA 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.

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BRITISH COLUMBIA – Arbitration – Application to Stay Proceedings – Under s. 8(1) of the International Commercial Arbitration Act, the party applying for a stay has the onus of establishing an arguable case that the prerequisites for a stay have been met. Where those prerequisites are met, under s. 8(2) of the ICAA, the party opposing the stay has the onus of showing that the arbitration agreement was void, inoperative or incapable of being performed.

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