On January 29, 2021, Canada and the European Union (EU) adopted four decisions related to the investor-state dispute resolution body established under the Canada-EU Comprehensive Economic and Trade Agreement (CETA) which move the parties one step closer to a fully fledged "investment court" system for the adjudication of investor-state disputes.
Read moreWinner Takes All: B.C. Court Confirms Indemnification Costs as the Normal Rule in Commercial Arbitrations
In domestic and international commercial arbitrations, it is common for successful parties to be awarded their actual reasonable legal fees and disbursements. The legislation governing domestic commercial arbitrations in British Columbia permits arbitrators to exercise their discretion to award such costs.
The Supreme Court of British Columbia discussed the law applicable to indemnification cost awards in its recent decision in Allard v. The University of British Columbia. In Allard, the successful party to an arbitration had sought – and been awarded – its actual reasonable costs. In awarding these costs, the arbitrator rejected an argument that indemnity costs represent “elevated” costs in the arbitration context, noting:
Read moreArbitration clauses and class actions: the cross-border dialogue continues in light of recent SCC and SCOTUS jurisprudence
The policy rationales that underpin enforcing arbitration agreements may potentially be at odds with those underpinning the class actions regime (see our previous posts here and here). These policy rationales collide when confronting the question of whether plaintiffs can waive their right to participate in a class action through a mandatory arbitration clause and, if so, when this is permissible. Canada and the United States continue to have different approaches to the question of who decides whether a dispute is arbitrable – the arbitrator or the court? With respect to enforcement in the class action context, courts in the United States tend to enforce arbitration clauses such that class actions are precluded. However, in Canada an arbitration clause that acts as a barrier to dispute resolution may be unenforceable and precluded by certain legislation.
Read moreWinner Takes All: B.C. Court Confirms Indemnification Costs as the Normal Rule in Commercial Arbitrations
In domestic and international commercial arbitrations, it is common for successful parties to be awarded their actual reasonable legal fees and disbursements. The legislation governing domestic commercial arbitrations in British Columbia permits arbitrators to exercise their discretion to award such costs.
The Supreme Court of British Columbia discussed the law applicable to indemnification cost awards in its recent decision in Allard v. The University of British Columbia. In Allard, the successful party to an arbitration had sought – and been awarded – its actual reasonable costs. In awarding these costs, the arbitrator rejected an argument that indemnity costs represent “elevated” costs in the arbitration context, noting:
Read moreCanada Line union issues 72-hour strike notice
The union representing approximately 180 workers on SkyTrain Canada Line issued a 72-hour strike notice to the employer late Friday afternoon.
BC Government and Service Employees’ Union (BCGEU) states this decision warning of labour action was made after four days of mediation last week, and several months of negotiations in which no major progress was made on wage parity with CUPE 7000 workers on the SkyTrain Expo and Millennium lines, operated by TransLink subsidiary BC Rapid Transit Company (BCRTC).
Read moreArbitrator upholds mandatory employee COVID testing
In a recent unreported labour arbitration award, Caressant Care Nursing & Retirement Homes and Christian Labour Association of Canada, the arbitrator, Dana Randall, upheld the decision that the employer’s mandatory COVID-19 testing policy was a reasonable exercise of management rights.
The case concerns an employer, a retirement home located in Woodstock, Ontario, which provides rental accommodation with care and services to residents who can live independently in a residence while receiving support. The home is provincially regulated by the Retirement Homes Regulatory Authority under the Retirement Homes Act, 2010 and employs staff to provide laundry services to residents of an adjacent nursing home.
Read moreMandatory Arbitration Clauses Are No Longer Presumptively Enforceable
Last year, we reported on how Canadian courts will uphold mandatory arbitration clauses in some cases, depending on how the plaintiffs are classified.
In 2019, the Supreme Court of Canada held in TELUS Communications Inc. v Wellman that a mandatory arbitration clause found in telephone service contracts prevented a proposed class of business customers from advancing a class action proceeding against TELUS, but the same clause did not preclude a class action of consumers from bringing forward their claim. Mandatory arbitration clauses were only generally unenforceable against consumers under Ontario's Consumer Protection Act, 2002, and that other types of parties to an agreement, such as business customers, are held to the strict terms of a mandatory arbitration clause.
Read moreWe're not going back to business as usual
The coronavirus has demonstrated the shocking fragility of the justice system in a way I expect none of us would have foreseen at the close of 2019. Who would’ve thought that we’d wake up one day to find that months of hearings, conferences and trials, some of which had been scheduled years ago, had been administratively adjourned sine die? Or that there would be applications of critical personal and financial importance to our clients that the courts would refuse to hear because their subject matter was not among those listed in a sweeping procedural order issued sua sponte?
Read moreIn brief: arbitration formalities in Canada
In Canada, arbitration law is legislated at the federal, provincial and territorial levels. In the common law jurisdictions, domestic arbitration and international arbitration are governed by separate statutes. Domestic arbitration is governed by a statute entitled either the Arbitration Act (British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, New Brunswick, Prince Edward Island, Yukon, Northwest Territory, and Nunavut) or the Commercial Arbitration Act (Nova Scotia). In all cases, the statutes adopt aspects of the UNCITRAL Model Law but incorporate it to different extents. In these jurisdictions, international arbitration is governed by an International Commercial Arbitration Act, which is based on the Model Law. Federally, the Commercial Arbitration Act applies to limited federal activities and is based on the Model Law. In Quebec, arbitration is governed by the Civil Code of Quebec and the Quebec Code of Civil Procedure.
Read moreMandatory COVID-19 Testing Policy Deemed Reasonable in Retirement Home
In a recent unreported labour arbitration award, Caressant Care Nursing & Retirement Homes and Christian Labour Association of Canada, Arbitrator Dana Randall confirmed that the employer’s mandatory COVID-19 testing policy was a reasonable exercise of management rights.
Read moreIn brief: enforcing and challenging arbitral awards in Canada
Does the arbitral tribunal have the power to correct or interpret an award on its own or at the parties’ initiative? What time limits apply?
Mistakes can be corrected consistently with the Model Law (ie, within 30 days of the parties’ receipt of the award, unless the parties have agreed on an alternative period), and certain domestic acts (for example, in Ontario, an arbitral tribunal may, on its own initiative within 30 days after making an award or at a party’s request made within 30 days after receiving the award) including any clerical, typographical or computational errors, or to correct an injustice caused by an oversight on the part of the arbitral tribunal. Reconsideration of substantive matters is not permitted.
Read moreOntario, Canada: Arbitrator Upholds Mandatory Employee COVID Testing
In Christian Labour Association of Canada v. Caressant Care Nursing & Retirement Homes (D. Randall), a union filed a group grievance on behalf of a number of its members working at an Ontario retirement home to challenge the reasonableness of a policy imposing bi-weekly COVID testing on all staff. In a December 9, 2020 decision, the arbitrator dismissed the grievance on the basis that the policy is reasonable when the privacy intrusion is weighed against the objective of preventing the spread of COVID in the retirement home.
Read moreEmployee COVID-19 Testing Policy Upheld
In a recent arbitral decision by Arbitrator Dana Randall, the Christian Labour Association of Canada (the “CLAC”) challenged a COVID-19 employee testing policy of the employer, Caressant Care Nursing & Retirement Homes (the “Employer”).
Read moreWinnipeg firefighters seek binding arbitration
The union representing Winnipeg firefighters wants its next collective agreement to be set through binding arbitration, which some fear may not spark the best deal for the city and its taxpayers.
Alex Forrest, president of the United Fire Fighters of Winnipeg, confirmed the request was made to the Manitoba government. He declined further comment Monday, noting labour talks are already underway.
Read moreArbitrator Upholds Employer’s Right to Impose Mandatory COVID Testing on Employees
Everyone in society has been affected in different ways by the COVID-19 pandemic. Employers in particular have faced difficult challenges and have been required, in many cases almost immediately, to make decisions that potentially impact employees’ privacy and other rights while attempting to ensure that the health and safety of their employees, their clients and those that they provide services to, are adequately protected. A common question that has arisen over the last few months for employers is simply this – can they require their employees to take a COVID test as a condition of working in order to satisfy their employer they can safely attend the workplace?
Read moreMediation Series: To Mediate or Not to Mediate? Mandatory?
Whether or not to mediate an estate dispute in Ontario is an easy question to answer if the dispute arises in Toronto, Ottawa, or Essex County (Windsor area). Pursuant to Rule 75.1.02(1)(a) of the Rules of Civil Procedure,[1] estate disputes are subject to mandatory mediation in those areas unless such requirement is waived by the Court.
Read moreNova Scotia’s eCourt platform is first online judicial dispute resolution service in Canada
Nova Scotia’s eCourt recently launched online dispute resolution pilot program enables counsel for both parties and the judge to communicate in real time.
The pilot program, which went live in July, aims to allow those with simple family legal issues, such as divorce, child custody, spousal support or child support, to more simply, safely, easily and affordably access the courts to resolve these matters, stated the news release from the Nova Scotia government.
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