Arbitrators and Bias
December 21, 2023 By Brian Babcock One ground to object to the selection of a decision maker- be they judge, be they arbitrator – is “a reasonable apprehension of bias. When it comes to judges, this is a very high standard to meet, as judicial resources are scarce, and courts hate “judge shopping”. Or maybe […]
Mining Arbitrations Can Be Frustrating
December 14, 2023 By Nick Melchiorre Courts in Ontario will usually defer to arbitrators and are reluctant to second guess their decisions. We have written about this before. ISSUE Where does the court draw the line? Courts will act to ensure that arbitrators apply the correct law, especially on arbitrations under the Arbitration Act 1991 […]
Oppression Remedies, Equity and Arbitration
November 3, 2023 By Brian Babcock Courts continue to defer jurisdiction to arbitrators where parties have agreed to arbitrate. THE ISSUE How far will a court defer where the dispute contains issues beyond claims of breach of contract? THE CASE A recent example at the Superior Court level is Spasiw et al. v. Quality Green […]
It is Your Contract: Arbitration Clauses and Appeal Rights
August 14, 2023 By Nick Melchiorre Arbitration agreements are often overlooked in the drafting and negotiation of contracts. Sure, the agreement may contain an arbitration clause, but frequently, they are added by the lawyers and given little, if any, scrutiny by the parties. THE ISSUE As with any provision in your commercial contract, the arbitration […]
Too Much to Ask Revisited
July 24, 2023 By Brian Babcock THE ISSUE There is a reason why most of our case comment articles feature cases from the Ontario Court of Appeal or even the Supreme Court of Canada. Decisions of the Superior Court of Justice, as much as they can be interesting and informative, are subject to being overturned […]
Should the mediator propose creative solutions?
January 20, 2023 By Brian Babcock There is no single simple answer to this FAQ. Mediation is rightly popular because in most disputes, the best result is one the parties agree to themselves. This applies especially to situations where the objective is about more than “who will pay how much?” But what happens if you […]
The Business Judgment Rule and Arbitration
November 15, 2022 By Brian Babcock THE ISSUE Courts do not generally have jurisdiction to decide upon matters of business judgment. This is referred to as non-justiciability. Because an arbitration clause creates “private law” between the parties, a clear and specific clause awarding jurisdiction to an arbitrator over matters of business judgment may be enforceable. […]
Non-Solicitation and Appealing from Arbitrations
November 15, 2022 By Brian Babcock THE ISSUE Unless a submission to arbitration provides otherwise, the Arbitration Act, 1991 only mandates a right to apply for leave to appeal on questions of law. The application of the law to facts is not a question of law. For leave to appeal to be granted, the issue […]
A Sticky Wicket about Cricket
May 30, 2022 By Brian Babcock An arbitrator’s award must include reasons which explain clearly how the decision was made. This principle was reviewed and reinforced in the Ontario Superior Court decision of Alberta Cricket Association v. Alberta Cricket Council. The case involved a dispute between two groups competing to be designated as the Provincial […]
Taking Arbitration Clauses Seriously
May 13, 2022 By Brian Babcock Until now, arbitration clauses in your commercial contract have likely been one of those “boilerplate” provisions tucked away deep into the document, drafted by a lawyer but largely ignored by the clients. If you have not been giving the arbitration clause serious thought until now, it is time to […]