ONTARIO – Arbitration – Limited scope of judicial review under s. 45(2) and 46 of the Arbitration Act, 1991, S.O. 1991, c. 17 (“AA”) – Where an Arbitrator made extensive factual findings in a complicated contract dispute arising from a construction project and made no errors on extricable questions of law, the Arbitrator’s Awards were immune from appeal. Judicial review of arbitral awards under s. 45(2) is limited to questions of law. The application judge erred by deciding that the Arbitrator made extricable errors of law in the arbitral awards.

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ONTARIO – Oppression Remedy – Interim injunctive Relief – Where there were serious issues to be tried as to self-dealing and financial irregularities by the CEO, director and 25% shareholder of a restaurant franchise business and where the business was at risk of insolvency, the Court held that the test for injunctive relief was met and the risk of financial collapse and potential insolvency constituted irreparable harm.

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ONTARIO – Arbitration – Court’s right to interfere with an arbitrator’s award under s. 46(1)3 of the Arbitration Act, 1991, S.O. 1991, c. 17 (the “Act”) is limited to whether the arbitrator had jurisdiction to decide the matter. Where the application judge finds that an arbitrator had jurisdiction to interpret an agreement, and did so, the role of the court under s. 46(1)3 of the Act is at an end, and it is irrelevant whether the interpretation was correct or reasonable.

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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.

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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.

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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.

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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.

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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.

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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.

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ONTARIO – Arbitration – Where an arbitrator has broad powers to hear all motions and to determine the procedure to be followed in a commercial arbitration between sophisticated parties, the arbitrator has jurisdiction to determine the matter by way of a summary judgment motion. The advantages flowing from a properly invoked summary judgment process have equal application in the arbitration and the civil trial context.

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