ONTARIO – Arbitration – Application to set aside arbitral award under Arbitration Act, 1991, s. 46(1)6. –Where an arbitration agreement provides that the arbitral award is final without right of appeal even as to questions of law, the ambit of the Court’s right to set aside the award is limited to ensuring that both parties were treated equally and were given a right to present their case and respond. The Court will not review the correctness or reasonableness of the arbitral award.
Continue readingCase #088D – Mattamy (Downsview) Limited v. KSV Restructuring Inc. (Urbancorp)
ONTARIO – Arbitration – Set aside application pursuant to s. 46 of the Arbitration Act, 1991. Arbitrator had jurisdiction to raise the new issue. However, the Arbitrator’s refusal to allow a party to present evidence in respect of the new issue and their exclusion of certain evidence amounted to procedural unfairness that offended the principles of natural justice. An arbitrator does not have inherent jurisdiction.
Continue readingCase #087D – Tianjin Dinghui Hongjun Equity Investment Partnership v Du et al.
ONTARIO – Recognition and Enforcement of Foreign Award – Recognition and enforcement of a foreign arbitral award refused pursuant to ICAA (Model Law) where contractual notice and stepped dispute resolution provisions not followed. The Model Law defers to the contractual means of delivery or service when specified and this is not considered a violation of due process.
Continue readingCase #086E – Taseko Mines Limited v. Franco-Nevada Corporation
ONTARIO – Arbitration – Standard of Review – The standard of review on an appeal from an arbitral award on a question of law or a mixed question of fact and law is reasonableness. The reasonableness standard is highly deferential to the arbitrator, but the arbitrator is required to decide disputes in accordance with binding precedent and it must reveal that the decision was not based on an irrational chain of analysis.
Continue readingCase #085E – Baffinland Iron Mines LP v. Tower-EBC G.P./S.E.N.C.
ONTARIO – Arbitration – Arbitration Act, 1991, S.O. 1991, c. 17, ss. 45(1) and (2)– Where an arbitration agreement provides that the arbitration “finally settles” all issues, there is no basis for the Court to grant leave to appeal from the arbitral award, even on questions of law.
Continue readingCase #084M – Van Doorn v. Loopstra Nixon, 2023 ONSC 1782
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.
Continue readingCase #083M – Orion Travel Insurance Co. v. CMN Global Inc. 2023 ONSC 1527
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.
Continue readingCase #082D – Greta Energy Inc. v. Pembina Pipeline Corporation
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.
Continue readingCase #081D – Husky Food Importers & Distributors v. JH Whittaker & Sons Limited
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.
Continue readingCase #080E – Bad Gremlin LLC v. Grusd
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.
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