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 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.
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