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Canada / 05 May 2014 / Canada, Court of Queen’s Bench of Manitoba / Brentwood Plastics Inc. v. Topsyn Flexible Packaging Ltd. / CI 12-01-79146
Country Canada Court Canada, Court of Queen’s Bench of Manitoba Date 05 May 2014 Parties Brentwood Plastics Inc. v. Topsyn Flexible Packaging Ltd. Case number CI 12-01-79146 Applicable NYC Provisions II | IV Source 2014 MBQB 97 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5420&opac_view=6 Attachment (1)
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Country Canada Court Canada, Supreme Court of British Columbia Date 07 March 2014 Parties Assam Company India Limited v. Canoro Resources Ltd. Case number S127853 Applicable NYC Provisions IV | V | V(1) | V(1)(b) | V(1)(d) | V(2) | V(2)(b) Source 2014 BCSC 370 | online: CanLII
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3656&opac_view=6 Attachment (1)
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Country Canada Court Canada, Supreme Court of British Columbia Date 01 October 2013 Parties CE International Resources Holdings LLC v. Yeap Soon Sit, S.A., Minerals Ltd. Partnership and Tantalum Technology Inc. Case number S126437 Applicable NYC Provisions IV | V Source 2013 BCSC 1804 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5419&opac_view=6 Attachment (1)
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Country Canada Court Canada, Cour supérieure du Québec Date 19 August 2013 Parties Bombardier Inc. v. The General Directorate for Defense Armaments and Investments of the Hellenic Ministry of National Defense, New TT Hellenic Postbank S.A. and National Bank Of Canada Case number 500-17-078501-130 Source 2013 QCCS 6892 | online: CanLII
Languages French Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5418&opac_view=6 Attachment (1)
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Country Canada Court Canada, Supreme Court of British Columbia Date 22 July 2013 Parties Sociedade-de-Fomento Industrial Private Limited v. Pakistan Steel Mills Corporation (Private) Limited Case number S112686 Source 2013 BCSC 1304 | online: CanLII
Languages English reversed by : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5416&opac_view=6 Attachment (1)
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Country Canada Court Canada, Ontario Superior Court of Justice Date 17 June 2013 Parties Ontario First Nations Limited Partnership v. Ontario Lottery and Gaming Corporation and Her Majesty the Queen in Right of Ontario Case number CV-12-461369 Source 2013 ONSC 4166 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5415&opac_view=6 Attachment (1)
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Country Canada Court Canada, Supreme Court of Nova Scotia Date 14 June 2013 Parties Rusk Renovations Inc. v. Robert Dunsworth, Ingrid Dunsworth, and Europa Stairways Inc. Case number Hfx No. 389841 Applicable NYC Provisions II | II(1) | III | IV | IV(1) | V | V(1) | V(1)(a) | V(1)(b) | V(1)(d) | V(1)(e) Source 2013 NSSC 179 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5414&opac_view=6 Attachment (1)
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Country Canada Court Canada, Cour d’appel du Québec Date 29 February 2012 Parties Nearctic Nickel Mines Inc. and Ungava Minerals Exploration Inc. v. Canadian Royalties Inc. Source 2012 QCCA 385 | online: CanLII
Languages English Summary Ungava Minerals Exploration Inc. (“Ungava”) and Nearctic Nickel Mines Inc. (“Neartic”) entered into an agreement with Canadian Royalties Inc. (“CRI”), which included an arbitration agreement providing for arbitration in accordance with the Centre d’arbitrage commercial national et international du Québec. A dispute arose and a sole arbitrator rendered an award ordering, inter alia, specific performance of the agreement by Ungava and Nearctic. CRI presented a motion for homologation before the Cour supérieur du Québec (Quebec Superior Court), which was granted. Ungava and Nearctic appealed, seeking an annulment of the award on the grounds that the arbitrator had exceeded his jurisdiction by rendering conclusions of an injunctive nature, rewriting the contract and ignoring certain contractual provisions. The Cour d’appel du Québec (Quebec Court of Appeal) dismissed the appeal, concluding that the sole arbitrator had not exceeded his jurisdiction. Though it did not directly apply the NYC in reaching its decision, it considered that the philosophy governing the court’s involvement in the arbitral process may be traced to foreign legal sources such as the NYC, which reflects the commercial world’s willingness to promote private dispute resolution. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=962&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Appeal for Ontario Date 04 October 2011 Parties United Mexican States v. Cargill, Inc. Case number C52737 Applicable NYC Provisions V | V(1) | V(1)(a) | V(1)(c) Source 107 O.R. (3d) 528, 2011 ONCA 622 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5413&opac_view=6 Attachment (1)
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Country Canada Court Canada, Federal Court of Canada Date 12 September 2011 Parties T. Co. Metals LLC v. The Vessel “Federal EMS”, Canada Moon Shipping Co. Ltd. and Fednav International Ltd. Case number T-1613-08 Source 2011 FC 1067 | online: CanLII
Languages English Summary In 2008, T. Co. Metals LLC (“T. Co”) initiated an action against Canada Moon Shipping Co. (“Canada Moon”) and Fednav International Ltd. (“Fednav”) for damages to T. Co’s cargo while travelling from Brazil to Canada on board the Federal Ems, a ship belonging to Canada Moon. To transport the cargo, Fednav had signed a charter party with Companhia Siderurgica Paulista – COSIPA (“COSIPA”) which contained an arbitration clause providing for the resolution of disputes by three arbitrators in New York. After T. Co. initiated proceedings at the Federal Court of Canada against Fednav and Canada Moon, both filed a claim against COSIPA in the Federal Court. COSIPA then filed a motion seeking a stay of the claim in favour of arbitration in New York, relying on the arbitration clause in the charter party. The motion was dismissed by a prothonotary of the Federal Court, who found that a charter party constituted a “contract for the carriage of goods by water” as listed under Section 46 of the Marine Liability Act (“the Act”) and that, as a result, the jurisdiction of the Federal Court could not be ousted. COSIPA appealed. The Federal Court allowed the appeal and set aside the action. When debating whether “contract for the carriage of goods by water” in Section 46 of the Act was to be interpreted as including charter parties, the Federal Court held that Canada was aware of its international obligations, including its support for international arbitration agreements pursuant to the NYC, when it enacted the Act. For this reason, it considered that the term should be interpreted narrowly so as to allow the arbitration clause from the charter party to be given effect. reverses : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=897&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Appeal for Ontario Date 20 July 2011 Parties Her Majesty the Queen in Right of Ontario v. Imperial Tobacco Canada Limited and The Ontario Flue-Cured Tobacco Growers’ Marketing Board Case number C52576 Applicable NYC Provisions II | II(3) Source 2011 ONCA 525 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5412&opac_view=6 Attachment (1)
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Country Canada Court Canada, Queen's Bench for Saskatchewan Date 24 June 2011 Parties Subway Franchise Systems of Canada Ltd. v. Cora Laich Applicable NYC Provisions IV | V Source 2011 SKQB 249 | online: CanLII
Languages English Summary The Respondent and Subway Franchise Systems of Canada Ltd. (“Subway”) entered into a franchise agreement (“the Agreement”), which contained an arbitration clause referring all disputes arising under the Agreement to arbitration by a sole arbitrator in Bridgeport, Connecticut. A dispute arose and Subway terminated the Agreement and obtained a favourable arbitral award. It then sought enforcement in Saskatchewan. The Respondent Cora Laich argued that the application for enforcement should be dismissed because she had been incapacitated and unable to attend the arbitration hearing, and that the award was penal in nature and its enforcement would be contrary to public policy. The Saskatchewan Court of Queen’s Bench dismissed the application on the grounds that enforcement of the award would offend public policy. The Court of Queen’s Bench found that Subway had met the requirements necessary to obtain recognition of the award under the UNCITRAL Model Law on International Commercial Arbitration (the “UNCITRAL Model Law”). The Court considered that because the Respondent had been able to take part in the arbitration hearing via telephone, she had not been incapacitated. It found, however, that Subway had never fully terminated the Agreement and that even during the arbitral proceedings, the parties had maintained their working relationship, with the Respondent remitting royalties to Subway. On this basis, it considered that because Subway did not actually suffer damages, enforcing the award would amount to “double recovery” and would violate public policy within the meaning of Articles 34 and 36 of the UNCITRAL Model Law, which the Court considered were derived from Article V NYC. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=898&opac_view=6 Attachment (1)
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Country Canada Court Canada, Cour du Québec Date 21 March 2011 Parties T.I.G. Assembly Inc. v. Multi-Assemblage Inc. Case number 500-22-175962-102 Source 2011 QCCQ 2125 | online: CanLII
Languages French Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5411&opac_view=6 Attachment (1)
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Country Canada Court Canada, Supreme Court of Canada Date 18 March 2011 Parties Michelle Seidel v. Telus Communications Inc. Case number 33154 Applicable NYC Provisions II | II(3) Source 2011 SCC 15, [2011] 1 S.C.R. 531 | online: CanLII
Languages English Summary Michelle Seidel entered into a written cellular service contract with TELUS Communications, Inc. (“TELUS”), a cellular phone provider. The standard contract form contained a mediation and arbitration clause that included a waiver of any right to commence or participate in a class action suit against TELUS. Seidel initiated a claim against TELUS in the British Columbia Supreme Court in 2005 under the Business Practices and Consumer Protection Act (“BPCPA”). When she sought to have her claim certified as a class action, TELUS applied for a stay of all proceedings on the basis of the arbitration clause. The trial judge found that TELUS' application was premature because the certification application had not been decided, and denied the stay. TELUS appealed the decision, arguing that the case followed by the British Columbia Supreme Court, the 2004 British Columbia Court of Appeal decision MacKinnon v. Instaloans Financial Solution Centres (“MacKinnon CA”), had been overruled by the 2007 Supreme Court of Canada decisions, Dell Computer Corp. v. Union des consommateurs (“Dell”) and Rogers Wireless Inc. v. Muroff, which both ruled that a class action is a procedural vehicle that does not modify the substantive rights created by an arbitration clause. The British Columbia Court of Appeal allowed the appeal and stayed Seidel’s action. Seidel appealed to the Supreme Court of Canada. The Supreme Court of Canada reversed the Court of Appeal in a 5-4 decision, holding that Seidel's class action could go forward. The Court based its ruling upon a finding that the enactment of the BPCPA manifested a legislative intent to prohibit any contractual waiver of "rights, benefits or protections" provided therein and that the remedies offered by private arbitration are different in scope and quality than those offered under the BPCPA. Consequently, the Court held that Seidel’s claims relying on the BPCPA could go forward, while any others would be subject to binding arbitration. The dissenting opinion argued that British Columbia's legislature had manifested its intent to honor arbitration clauses, absent a clear legislative statement to the contrary, by adopting the NYC into domestic legislation. It noted that the requirement of deference to the arbitrator’s jurisdiction is related directly to the role of the court that must, in considering an application for a stay of proceedings, determine whether the agreement is “void, inoperative or incapable of being performed” pursuant to Article II(3) NYC. The Court recognized that the general rule is that arbitrators should be the first to consider challenges to their jurisdiction, and therefore the expressions “void”, “inoperative” and “incapable of being performed” should be interpreted narrowly. It stated that courts should be mindful to avoid an interpretation that makes it possible to sidestep the competence-competence principle and turns the Convention’s “inoperative” exception into a back door for a party wanting to “escape” the agreement. affirms : reverses : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=555&opac_view=6 Attachment (1)
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Country Canada Court Canada, Federal Court of Canada Date 10 March 2011 Parties T. Co. Metals LLC v. The Vessel “Federal EMS”, Canada Moon Shipping Co. Ltd. and Fednav International Ltd. Case number T-1613-08 Source 2011 FC 291 | online: CanLII
Languages English reversed by : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5928&opac_view=6 Attachment (2)
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Edgar Sexton / Looking Out and Looking In: Reconciling Domestic and Internationalist Considerations in the Enforcement and Review of Arbitration Awards in Canada / 27(2) Arbitration International 211 (2011) - 2011
Author(s) Edgar Sexton Source 27(2) Arbitration International 211 (2011) Subject(s) B. Articles on the recognition and enforcement of arbitral awards in specific countries and regions (including book chapters) Jurisdictions Canada Worldcat Number Worldcat : 868058381 
ISBN 978-3-642-04885-2 Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=2963&opac_view=6
Country Canada Court Canada, Cour d’appel du Québec Date 10 December 2010 Parties Michel Rhéaume and Michel Rhéaume Investissement Ltée v. Société d’Investissement l’Excellence Inc. and Daniel Riopel and Antoine Ponce Source 2010 QCCA 2269 | online: CanLII
Languages English Summary Rhéaume was to sell his interest in several insurance companies, including that of the respondent, Société d’Investissement l’Excellence Inc. (“Excellence”), to Ponce and Riopel. The parties submitted certain questions related to the purchase to arbitration. Two of the three arbitrators were actually directors of Excellence, the control of which Mr. Rhéaume was to sell to Ponce and Riopel. During a meeting of the Board of Directors of Excellence, at which Rhéaume, Ponce and Riopel were present, a discussion was initiated with respect to the proposed transaction and the members present in the meeting discussed the on-going arbitration. An award was rendered in Québec. Michel Réaume challenged the homologation of the award, which, nonetheless was granted by the Cour supérieur du Québec (Quebec Superior Court). Mr. Rhéaume sought before the Cour d’Appel du Québec (Quebec Court of Appeal) to have the award annulled due to an alleged violation of the obligation of deliberative secrecy. The Cour d’appel dismissed the appeal without directly applying the NYC. However, the Cour d’appel took into account prior decisions and published commentaries referring to the NYC in order to reach its conclusion that an automatic annulment of an award where there had been a flaw in the arbitral procedure was incompatible with the deference that courts should accord to arbitral awards. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=961&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Appeal of Newfoundland and Labrador Date 22 October 2010 Parties M. J. Oppenheim v. Midnight Marine Limited and Miller Shipping Limited Case number 10/07 Applicable NYC Provisions II | II(1) | II(3) Source 2010 NLCA 64 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5410&opac_view=6 Attachment (1)
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Country Canada Court Canada, Supreme Court of Canada Date 20 May 2010 Parties Yugraneft Corporation v. Rexx Management Corporation Applicable NYC Provisions III | V | V(2) | V(2)(b) Source 2010 SCC 19, [2010] 1 S.C.R. 649 | online: CanLII
Languages English Summary The Yugraneft Corporation (“Yugraneft”) and Rexx Management (“Rexx”) concluded a supply agreement containing an arbitration clause providing for the resolution of all disputes by a panel of three arbitrators in Moscow under the rules of the Russian International Commercial Arbitration Court (“ICAC”). A dispute arose between the parties. Yugraneft obtained a favourable award and brought an application for enforcement in Alberta. Rexx sought the dismissal of the application on the grounds that the application was time-barred because it was not brought within the two-year limitation under Section 3(1)(a) of the Alberta Limitations Act (the “Limitations Act”), and that enforcing the award would be contrary to public policy in Alberta pursuant to Article V(2)(b) NYC as the arbitral tribunal had refused to hear and deliberate on one of Rexx’s key arguments regarding the illegal takeover of Yugraneft. Yugraneft applied to the Alberta Court of Queen's Bench for recognition and enforcement of the award. The Court found that the claim was time-barred pursuant to the two-year limitation under Section 3(1) of the Alberta Limitations Act (the "Limitations Act"). Yugraneft appealed to the Alberta Court of Appeal, which affirmed the lower court judgment. Yugraneft appealed to the Supreme Court of Canada, arguing that a foreign arbitral award possesses all the characteristics of a judgment because it is an adjudication of a legal dispute, and is therefore subject to the ten-year limitation under Section 11 applying to “judgments.” The Supreme Court of Canada dismissed Yugraneft's appeal and held that time limitations could apply to the recognition and enforcement of foreign arbitral awards even though they are not mentioned in Article V NYC, which sets out an exhaustive list of grounds for refusal to enforce the award. The Court referred to Article III NYC, which stipulates that recognition and enforcement shall be “in accordance with the rules of procedure of the territory where the award is relied upon” and considered that the “rules of procedure” of the jurisdiction in which enforcement is sought should apply, insofar as they do not conflict with the express requirements of the NYC. The Court found that limitation periods constitute procedural rules for the purpose of the NYC and that Article III NYC allows Contracting States to subject the recognition of arbitral awards to a time limit. In reaching this conclusion, it considered (i) that the NYC, and in particular Article III, should be construed in a manner that takes into account the fact that it was intended to interface with a variety of legal traditions; (ii) a study indicating that at least 53 Contracting States, including both common law and civil law States, subject (or would be likely to subject, should the issue arise) the recognition and enforcement of foreign arbitral awards to some kind of time limit; and (iii) that leading scholars in the field take it for granted that Article III NYC permits the application of local time limits. In determining what limitation period, if any, to which Alberta law subjects the recognition and enforcement of foreign arbitral awards, the Court upheld the lower courts’ finding that a foreign arbitral award is not a “judgment” and that a two-year limitation period should apply. According to the Court, only if the conditions for discoverability are met will the limitation period begin to run and thus a claim must be brought within two years after the claimant first became aware of the “injury”. The Court found that in this case, the injury corresponded to Rexx's failure to comply with the arbitral award, which was rendered on 6 September 2002, and therefore the three-month period to commence an annulment action expired on 6 December 2002 and the action commenced by Yugraneft in January 2006 was time-barred. The court did not rule on Rexx's objections based on Article V(2)(b) NYC. affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=554&opac_view=6 Attachment (1)
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Country Canada Court Canada, Supreme Court of British Columbia Date 25 March 2010 Parties Wires Jolley LLP v. Peter Wong Case number S098700 Source 2010 BCSC 391 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5927&opac_view=6 Attachment (1)
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Author(s) Alain Prujiner Source 2010 (4) Les Cahiers de l'Arbitrage (The Paris Journal of International Arbitration) 1107 Subject(s) B. Articles on the recognition and enforcement of arbitral awards in specific countries and regions (including book chapters) Jurisdictions Canada Worldcat Number Worldcat : 801419815 Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5978&opac_view=6
Country Canada Court Canada, Queen's Bench for Saskatchewan Date 05 May 2009 Parties West Plains Company v. Northwest Organic Community Mills Co-operative Ltd. Applicable NYC Provisions I | III | V Source 2009 SKQB 162 | online: CanLII
Languages English Summary West Plains Company (“West Plains”) and Northwest Organic Community Mills Co-Operative Ltd. (“Northwest Organic”) entered into a purchase contract containing a clause that referred disputes to arbitration at the United States National Grain and Feed Association (“NGFA”). A dispute arose between the parties and West Plains commenced NGFA arbitration. Northwest Organic did not participate in the arbitration. The arbitral tribunal issued a default judgment in favor of West Plains. West Plains then sought enforcement of the award in Saskatchewan pursuant to Article III NYC and Article 35 of the Model Law. Northwest Organic did not participate in the enforcement proceedings. The Saskatchewan Court of Queen's Bench upheld the request for enforcement. It noted that the Saskatchewan Legislature adopted the NYC by the enactment of the 1996 Enforcement of Foreign Arbitral Awards Act (“FAAA”), and adopted the UNCITRAL Model Law on International Commercial Arbitration (the “UNCITRAL Model Law”) by the enactment of the International Commercial Arbitration Act (“ICAA”). According to the Court, the purpose of both statutes was to require that arbitration awards made in accordance with arbitration rules agreed to by the parties would be universally recognized and enforceable by the courts of participating jurisdictions. The Court considered that the proceedings giving rise to the award arose from a contractual relationship which was commercial in nature, as contemplated by Article I NYC. It was also satisfied that the contract between the parties constituted an agreement in writing within the meaning of NYC and that the parties undertook to submit disputes to arbitration by the NGFA. The Court also noted that the procedural requirements for enforcement had been satisfied, as West Plains had filed a certified copy of the arbitration agreement and a certified copy of the contract. The Court considered that there were no grounds for non-enforcement based on Article V. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=577&opac_view=6 Attachment (1)
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Country Canada Court Canada, Cour d’appel du Québec Date 04 May 2009 Parties Bombardier Transportation v. SMC Pneumatics (UK) Ltd. Case number 500-09-017986-076 Applicable NYC Provisions II | II(3) Source 2009 QCCA 861 | online: CanLII
Languages French Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5409&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Appeal for Ontario Date 29 April 2009 Parties Jean Estate v. Wires Jolley LLP Case number C48730 Source 96 OR (3d) 171, 2009 ONCA 339 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5408&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Appeal for British Columbia Date 13 March 2009 Parties MacKinnon and Parsons v. National Money Mart Company Applicable NYC Provisions II | II(3) Source 2009 BCCA 103 | online: CanLII
Languages English Summary Kurt MacKinnon (“MacKinnon”) entered into multiple “Fast Cash Advance” loan agreements with National Money Mart Company (“Money Mart”), each containing a clause referring all disputes to arbitration in accordance with the British Columbia Commercial Arbitration Act. MacKinnon, and others who received similar loans, commenced an action against Money Mart alleging that the cheque cashing fees applied by Money Mart upon repayment of the loans constituted illegal interest and were prohibited by the Criminal Code. Money Mart requested that the dispute be referred to arbitration but MacKinnon refused. Two years after the initiation of court proceedings by MacKinnon, Louise Parsons (“Parsons”) commenced a similar proceding against Money Mart, and the two actions were merged. In 2004, a case management judge ordered the consolidated action be certified as a class action proceeding and thereby dismissed Money Mart’s motions to stay the action in favour of arbitration. These orders were appealed by Money Mart in the same year. The British Columbia Court of Appeal upheld the case management judge’s ruling in its decision (“MacKinnon CA”). Money Mart then applied to the Court of Appeal to overturn MacKinnon CA, arguing that the 2007 Quebec rulings of the Supreme Court of Canada in Dell Computer Corp. v. Union des consommateurs (“Dell”) and Rogers Wireless v. Muroff (“Rogers”) had changed the law by ruling that a class action is a procedural vehicle that does not modify the substantive rights created by an arbitration clause. The Court of Appeal held that the rulings in Dell and Rogers, which involved class action proceedings in Quebec, should both apply in British Columbia. It noted that the international and domestic arbitration legislation of both Quebec and British Columbia were based on the NYC and the UNCITRAL Model Law on International Commercial Arbitration (the UNCITRAL “Model Law”) and were therefore not materially different from each other. For example, in Dell the Supreme Court observed that Article 940(1) of the Quebec Code of Civil Procedure “incorporated the essence” of Article II(3) NYC and that all six of the arbitration provisions in the Quebec Code of Civil Procedure could be traced to either the NYC or the UNCITRAL Model Law. They were therefore to be interpreted in a manner consistent with both. In British Columbia, the Foreign Arbitral Awards Act also adopts the NYC in full as a schedule, and Art. 15(2) of the Act closely mirrors the wording of Article II(3) NYC. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=900&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Appeal for British Columbia Date 13 March 2009 Parties Michelle Seidel v. Telus Communications Inc. Case number CA036299 Source 2009 BCCA 104 | online: CanLII
Languages English Summary Michelle Seidel entered into a written cellular service contract with TELUS Communications, Inc. (“TELUS”), a cellular phone provider. The standard contract form contained a mediation and arbitration clause that included a waiver of any right to commence or participate in a class action suit against TELUS. Seidel initiated a claim against TELUS in the British Columbia Supreme Court in 2005 under the Business Practices and Consumer Protection Act (“BPCPA”). When she sought to have her claim certified as a class action, TELUS applied for a stay of all proceedings on the basis of the arbitration clause. The trial judge found that TELUS’ application was premature because the certification application had not been decided, and denied the stay. TELUS appealed the decision. TELUS argued that the case followed by the British Columbia Supreme Court, the 2004 British Columbia Court of Appeal decision MacKinnon v. Instaloans Financial Solution Centres (“MacKinnon CA”), had been overruled by the 2007 Supreme Court of Canada decisions Dell Computer Corp. v. Union des consommateurs (“Dell”) and Rogers Wireless Inc. v. Muroff, which both ruled that a class action is a procedural vehicle that does not modify the substantive rights created by an arbitration clause. The British Columbia Court of Appeal allowed the appeal and stayed Seidel’s action. It held that Dell and Rogers had superseded MacKinnon CA, even though those cases dealt with arbitration clauses and class action proceedings under Quebec law. The Court of Appeal held that the arbitration and class action legislations of both provinces were broadly similar. It noted that one of the few differences between the two arbitration laws is that, unlike Quebec law, the British Columbia Commercial Arbitration Act is not expressly modelled on the NYC. reversed by : reverses : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=899&opac_view=6 Attachment (1)
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Country Canada Court Canada, Ontario Superior Court of Justice Date 03 February 2009 Parties Thaddeus Griffin v. Dell Canada Inc. Case number 07-CV-325223D2 Source online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5407&opac_view=6 Attachment (1)
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Country Canada Court Canada, Cour supérieure du Québec Date 08 December 2008 Parties Holding Tusculum B. V. v. Louis Dreyfus S.A.S. Source 2008 QCCS 5904| online: CanLII
Languages English Summary Holding Tusculum B. V. (“Tusculum”) and Louis Dreyfus S.A.S. (“Dreyfus”) entered into a shareholders’ agreement containing a clause providing for arbitration under the Arbitration Rules of the International Chamber of Commerce (“ICC”). A dispute arose concerning breaches of the shareholders’ agreement. An ICC arbitral tribunal was constituted and Terms of Reference were drawn up indicating that Montreal would be the seat of the arbitration. The arbitral tribunal rendered a partial award and a final award. Dreyfus filed a motion before the Cour supérieure du Québec (Quebec Superior Court) for the partial annulment of the award, invoking Article 946.4(3)(4)(5) of the Code de procédure civil (“CPC”) (which mirrors Article V(1)(b)(c)(d) NYC). Dreyfus also invoked and relied upon Articles 18 and 34(2)(a)(ii) of the 1985 UNCITRAL Model Law on International Commercial Arbitration (“UNCITRAL Model Law”) and Article V(1)(b) NYC. The Cour supérieure granted Dreyfus’ motion in part. It considered that the arbitral tribunal had not respected its mandate by granting a remedy based on its own view of what was fair, rather than respecting the parties’ agreement. The Court considered that by so doing, the tribunal: (i) violated the rule of audi alteram partem; (ii) dealt with a dispute which was not contemplated by the parties and decided matters beyond the scope of the Terms of Reference; (iii) failed to observe applicable arbitration procedure; (iv) rendered an award that was contrary to public policy; and (v) assumed the role amiable compositeurs without the required express consent of the parties. As a general principle, the Cour supérieure considered that the NYC and the UNCITRAL Model Law are recognized sources for considering and interpreting Québec domestic law provisions where matters relating to extra-provincial or international trade were at issue. In particular, with regard to the violation of the rule of audi alterem parte, the Cour supérieure considered that it was a rule of public policy based, inter alia, on Article 946.4(3) CPC and Article V(1)(b) NYC, and that its violation may lead to the annulment of an arbitral award. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=960&opac_view=6 Attachment (2)
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