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Canada / 06 March 2003 / Canada, Supreme Court of British Columbia / Eddie Javor v. Luke Francoeur / L022829
Country Canada Court Canada, Supreme Court of British Columbia Date 06 March 2003 Parties Eddie Javor v. Luke Francoeur Case number L022829 Applicable NYC Provisions II | II(2) | III | IV | IV(1) | IV(1)(b) | V | V(2) | V(2)(a) | V(2)(b) Source 2003 BCSC 350 | online: CanLII
Languages English Summary The Claimant, Javor, entered into an agreement with Fusion-Crete Products Inc. (“Fusion-Crete”) containing a clause providing for arbitration pursuant to the Rules of the American Arbitration Association. During the course of the arbitration, the arbitrator made a finding that the Respondent, Francoeur, was the alter-ego of Fusion-Crete and ordered the addition of Francoeur as a party to the proceedings and eventually held Francoeur personally liable for damages awarded against Fusion-Crete. Javor sought enforcement before the Supreme Court of British Columbia. Francoeur opposed enforcement on the grounds that (i) the British Columbia Foreign Arbitral Awards Act (“FAAA”), which has as its Schedule and implements the NYC, and the International Commercial Arbitration Act (“ICAA”), which implements the UNCITRAL Model Law on International Commercial Arbitration (the “UNCITRAL Model Law”), did not apply to “non-parties” to the agreement; (ii) the arbitral procedure was not in accordance with the parties’ agreement; (iii) the subject-matter of the dispute was not capable of settlement by arbitration under the laws of British Columbia and the award should therefore not be enforced pursuant to Article V(2)(a) FAAA (which mirrors Article V(2)(a) NYC) and the ICAA; and (iv) the recognition of the award was contrary to public policy pursuant to Article V(2)(b) of the FAAA (which mirrors Article V(2)(b) NYC) and the ICAA. The Supreme Court of British Columbia denied the application to enforce the award. It considered that Javor was required to show that the arbitration award it sought to enforce fell clearly within the provisions of the FAAA or the ICAA. Referring to Articles II, III, IV and V of the FAAA (which mirror Articles II, III, IV and V NYC), and Sections 2(1) and 7(1) of the ICCA, the Court noted the overall similarity between the two statutes, and that they were identically worded in several instances. The Court considered that the existence of an arbitration agreement is the common foundation upon which each of the statutes rests, and that their obvious goal was to allow enforcement of an award against a party signatory to the agreement. On this basis, the Court concluded that it is the intention of both the FAAA and the ICAA to limit enforcement of awards to the parties to the arbitration agreement, and that because Francoeur was not a named party or signatory to the agreement, an award for costs could not be enforced against him. The Court rejected Javor’s argument that the lack of the definition of a “party” in the FAAA entailed that awards could be enforced against persons procedurally added as parties during arbitration. It noted that Article II(2) of the FAAA (which mirrors Article II(2) NYC) referred to an arbitration agreement “signed by the parties” and that the requirement under Article IV(1)(b) FAAA (which mirrors Article IV(1)(b) NYC) to supply an original or certified copy of the arbitration agreement appeared to be directed to the ability of the court to verify the signatory parties and the existence of an arbitration clause within that agreement. The Court accepted Francoeur’s defence to enforcement based on Article V(1)(d) of the FAAA (which mirrors Article V(1)(d) NYC), considering that the agreement of the parties did not provide for the involvement of Francoeur in the arbitration and therefore the procedure employed by the arbitrator was inconsistent with the arbitration agreement. The Court also exercised its discretion to accept Francoeur’s defense to enforcement based on Article V(2)(a) of the FAAA (which mirrors Article V(2)(a) NYC), considering that because Francoeur was not a proper party to the arbitration clause, pursuant to British Columbia law the claim against him for personal liability could not properly have been a subject of the arbitration, but would rather be a matter for judicial determination. Finally, the Court declined to reach a decision concerning Francoeur’s objection that the enforcement of the award would violate public policy pursuant to Article V(2)(b) of the FAAA (which mirrors Article V(2)(b) NYC), considering that it had not been able to gauge sufficiently the strength of the evidence that led the arbitrator to find that Francoeur was the alter ego of Fusion-Crete. affirmed by : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=957&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Appeal of Manitoba Date 11 December 2002 Parties Sheldon Proctor v. Leon Schellenberg Case number AI02-30-05317 Applicable NYC Provisions II | II(2) | IV | IV(1) | IV(1)(b) | V Source 2002 MBCA 170 | online: CanLII
Languages English Summary The Respondent opened a trading account with First Options of Chicago (“First Options”), a brokerage house, and signed, among other documents, an Arbitration Agreement containing a reference to First Options. First Options did not sign the Arbitration Agreement. The Respondent’s account was then transferred to E. D. & F. Man International, Inc. (“Man International”). The Respondent continued to use the account until it was closed due to differences between the Respondent and the Applicant, who had been the Respondent’s broker during the duration of the account and who demanded that the Respondent pay the deficit in his account at the time it was closed. The Respondent replied by sending the Arbitration Agreement to the Applicant’s counsel. The Respondent’s trading account was subsequently assigned to the Applicant by Man International. The Applicant commenced arbitration proceedings in Illinois and obtained a favourable award against the Respondent, who did not participate in the proceeding. The Applicant obtained enforcement of the award before the Court of Queen’s Bench of Manitoba. The Respondent appealed, arguing that the Applicant had failed to satisfy Article IV(1)(b) NYC by failing to supply the court with an “agreement in writing” as referred to in Article II(2) NYC. The Court of Appeal of Manitoba upheld the decision of the lower court granting enforcement. It considered that an “agreement in writing” under Article II(2) NYC can take various forms and the term must be given a functional and pragmatic interpretation. In this case, after the Applicant made its demand for arbitration, the Respondent had replied by faxing a copy of the Arbitration Agreement to the Applicant, whose counsel accepted the document. The Court of Appeal considered that this met the requirements of Article II(2) NYC and that it was unnecessary to decide on the other questions raised. affirms : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=903&opac_view=6 Attachment (1)
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Country Canada Court Canada, Ontario Superior Court of Justice Date 08 October 2002 Parties United Laboratories, Inc. v. Abraham and others Case number 99-CV-178058 Source 62 O.R. (3d) 26, [2002] O.J. No. 3985 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5396&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Queen’s Bench of Manitoba Date 22 April 2002 Parties Sheldon Proctor v. Leon Schellenberg Case number CI 01-01-23778 Applicable NYC Provisions I | I(1) | II | II(2) | IV | IV(1) | V | V(1) | V(2) | V(2)(a) | VI Source 2002 MBQB 135 | online: CanLII
Languages English affirmed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5395&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Appeal for Ontario Date 29 August 2001 Parties Society of Lloyd’s v. Meinzer, Saunders, Smart and Stringer Case number C34005-C34008 Source 55 O.R. (3d) 688, [2001] O.J. No. 3403 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5394&opac_view=6 Attachment (1)
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Country Canada Court Canada, Supreme Court of Prince Edward Island Date 23 March 2001 Parties Grow Biz International Inc. v. D.L.T. Holdings Inc. and Debbie Tanton Case number GSC-17431 Source 2001 PESCTD 27 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5393&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Queen’s Bench of Manitoba Date 30 June 2000 Parties Cangene Corporation v. Octapharma AG Case number CI 00-01-17044 Applicable NYC Provisions II | II(3) Source 2000 MBQB 111 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5392&opac_view=6 Attachment (1)
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Cecil Branson / The Enforcement of International Commercial Arbitration Agreements in Canada / 16(1) Arbitration International 19 (2000) - 2000
Author(s) Cecil Branson Source 16(1) Arbitration International 19 (2000) 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 : 772676056 
ISBN 978-3-642-04885-2 Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=2961&opac_view=6
Country Canada Court Canada, Federal Court of Canada Date 05 November 1999 Parties Frontier International Shipping Corporation v. The Owners and All Others Interested in the Ship “Tavros” and Passport Maritime S.A. Case number T-1640-99 Applicable NYC Provisions II Source 179 FTR 98 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5391&opac_view=6 Attachment (1)
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Country Canada Court Canada, Ontario Superior Court of Justice Date 22 September 1999 Parties Corporacion Transnacional de Inversiones, S.A. de C.V. v. STET International, S.p.A. and others Applicable NYC Provisions V Source 45 OR (3d) 183 | online: CanLII
Languages English Summary The Applicants were four Mexican companies, and referred to interchangeably by their acronyms, DOMOS, CINCO, COTISA and CITEL. The Respondents, together referred to as STET International S.p.A. (“STET”), entered into a share subscription agreement with COTISA, which contained a clause providing for arbitration by a three-person arbitral tribunal pursuant to the Arbitration Rules of the International Chamber of Commerce (“ICC”) in Ottawa and the application of Mexican law. A dispute arose and STET initiated arbitration. The arbitral tribunal found that it had jurisdiction in respect of the four applicants, after which COTISA withdrew from the proceeding. The arbitral tribunal then issued interim and final awards, finding that all four applicants were jointly and severally liable to compensate STET for losses incurred by the breach of the share subscription agreement. The Applicants applied to set aside the award pursuant to the Ontario International Commercial Arbitration Act (the “ICAA”), which attaches the UNCITRAL Model Law on International Commercial Arbitration (the “UNCITRAL Model Law”) as a schedule. The Applicants argued that the award was in conflict with the public policy of Ontario and that they had been denied equality of treatment and an opportunity to present their case because the arbitral tribunal had failed to order disclosure of certain relevant documents. The Applicants further argued that the tribunal was without jurisdiction with respect to three of the Applicants who had not signed the arbitration agreement. STET counter-applied for an order enforcing the award. The Ontario Superior Court of Justice denied the application to set aside and enforced the award. It noted that the grounds for challenging an award under the UNCITRAL Model Law were derived from Article V NYC, and that authorities relating to Article V NYC were applicable to the corresponding provisions of the UNCITRAL Model Law. The Court accepted a general rule of interpretation that the grounds for refusal of enforcement are to be interpreted narrowly, and that in particular, the public policy ground should apply only where enforcement would violate Ontario’s most basic and explicit principles of justice and fairness, or where there was evidence of intolerable ignorance or corruption on the part of the arbitral tribunal. Referring to the Report of the UNCITRAL’s 18th session, it noted that the term “public policy” under the NYC covered fundamental principles of justice in its substantive as well as procedural aspects, and that notions of fairness and justice significantly overlap with the issues over the inability to present one’s case. The Court concluded that in the present case, where COTISA had refused to participate in the arbitration proceeding, inter alia, by refusing to participate in the signing of a confidentiality agreement and by withdrawing when the final hearing had commenced, it had deliberately forfeited the opportunity to be heard. The Court dismissed the other grounds for setting aside for reasons unrelated to the NYC. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=956&opac_view=6 Attachment (1)
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Country Canada Court Canada, Supreme Court of British Columbia Date 11 May 1998 Parties Canadian National Railway Company v. Southern Railway Of British Columbia Ltd. Case number C972706 Source online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5923&opac_view=6 Attachment (1)
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Country Canada Court Canada, Supreme Court of British Columbia Date 24 March 1997 Parties Food Services of America, Inc. v. Pan Pacific Specialties Ltd. Case number A970243 Source online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5922&opac_view=6 Attachment (1)
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Country Canada Court Canada, Queen's Bench for Saskatchewan Date 01 October 1996 Parties Schiff Food Products, Inc. v. Naber Seed & Grain Co. Ltd. Case number QB 148/96 JCM Source online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5921&opac_view=6 Attachment (1)
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Country Canada Court Canada, Ontario Court (General Division) Date 07 May 1996 Parties ABN Amro Bank Canada v. Krupp Mak Maschinenbau GmbH Case number 92-CQ-29496A Source online: CanLII
Languages English see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5651&opac_view=6 Attachment (1)
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Country Canada Court Canada, Ontario Superior Court of Justice Date 01 February 1996 Parties Carter and others v. McLaughlin and others Case number 95375/95 Applicable NYC Provisions I | I(3) Source 27 O.R. (3d) 792, [1996] O.J. No. 328 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5390&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Appeal for British Columbia Date 04 July 1995 Parties The City of Prince George v. A.L. Sims & Sons Ltd. & McElhanney Engineering Services Ltd. Applicable NYC Provisions II | II(3) Source online: CanLII
Languages English Summary A.L. Sims (“Sims”) entered into a construction contract with The City of Prince George containing an arbitration clause. The City of Prince George nominated McElhanney Engineering Services Ltd. (“McElhanney”) as a consultant to manage the contract, pursuant to contract that did not contain an arbitration clause. The construction was delayed, and The City of Prince George sued both Sims and McElhanney for breach of contract and damages. Sims submitted a motion to stay the action in favour of arbitration. The first instance court found that the proceeding should not be stayed, ruling that (i) the arbitration clause was inoperative because there were multiple parties and interrelated motions which were not all subject to an arbitration clause, and (ii) the court could exercise residual statutory jurisdiction to refuse the stay where there was a risk of multiple proceedings and inconsistent results. Sims appealed. The Court of Appeal for British Columbia reversed the first instance decision and referred the matter to arbitration. It cited extensive case law and doctrine from Canada and England for the proposition that the mere judicial inconvenience of adjudicating multiple claims with multiple parties would not render the arbitration clause “inoperative” within the meaning of Article II(3) NYC, and did not bar parties from invoking an arbitration clause that binds them. The Court of Appeal also rejected the lower court’s exercise of its residual jurisdiction. It considered that a court would have residual discretion to refuse a stay only when a party clearly established that it was not privy to an arbitration agreement. It reasoned that in the present case, it was arguable that McElhanney was indeed a party to the arbitration agreement, and therefore the stay should be granted and the issue should be resolved in the arbitration. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=551&opac_view=6 Attachment (1)
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Country Canada Court Canada, Ontario Court (General Division) Date 07 June 1995 Parties ABN Amro Bank Canada v. Krupp Mak Maschinenbau GmbH Case number 92-CQ-29496 Source online: CanLII
Languages English see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5920&opac_view=6 Attachment (1)
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Country Canada Court Canada, Ontario Superior Court of Justice Date 23 December 1994 Parties ABN Amro Bank Canada v. Krupp MaK Maschinenbau GmbH and others Case number 92-CQ-29496 Source 21 O.R. (3d) 511, [1994] O.J. No. 3044 | online: CanLII
Languages English see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5389&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Appeal for Saskatchewan Date 25 November 1994 Parties BWV Investments Limited, and Saskferco Products Ing., et al. and Uhde GmbH Applicable NYC Provisions II | II(3) Source 119 DLR (4th) 577, [1995] 2 WWR 1 (SK CA) | online: CanLII
Languages English Summary BWV Investments Limited ("BVW") entered into a subcontract with Uhde GmbH ("UHDE"), the contractor, and another subcontractor Saskferco Products Ing. ("Saskferco"). The subcontract contained an agreement providing for arbitration pursuant to the Arbitration Rules of the United Nations Commission for International Commercial Law (“UNCITRAL Rules”). A dispute arose and BWV filed a builder's lien against the project and sued Saskferco and UHDE under the Saskatchewan Builders' Lien Act ("BLA"). UHDE submitted a motion requesting that the claim be referred to arbitration in accordance with the arbitration agreement in the subcontract. The chambers judge denied the motion, finding that the arbitration clause was null and void under Article 8(1) of the UNCITRAL Model Law on International Commercial Arbitration (the “UNCITRAL Model Law”), which was incorporated within the Saskatchewan International Commercial Arbitration Act. The chambers judge recognized that the dispute between UHDE and BWV would ordinarily be resolved under the BLA, and that ordering arbitration would infringe rights provided under the BLA. He also considered the presence of the several third-party lienholders who were granted rights under the BLA but, in his opinion, would "lose" these rights if arbitration were ordered. UDHE appealed. The Court of Appeal for Saskatchewan reversed the first instance judgment, stayed the court proceedings and referred the matter to arbitration. The Court of Appeal reviewed case law from a number of jurisdictions and found a growing tendency to give effect to arbitration agreements and to hold parties to their contractual intentions. It noted while there were relatively fewer Canadian cases in interpreting the UNCITRAL Model Law and the NYC, a similar trend was emerging in Canadian jurisprudence. The Court considered that Article II(3) NYC and Article 8(1) of the UNICTRAL Model Law require that where a valid arbitration agreement exists, a dispute must be referred to arbitration. The Court concluded that although the BLA provides alternative mechanisms for resolving the underlying dispute between the parties, it was not inconsistent with the parties' arbitration agreement and could not render it null and void. With regard to other sub-subcontractors of BWV who had also filed builder's liens against the project, the Court found that, as there was no evidence that the sub-subcontracts incorporated the arbitration agreement, the sub-subcontractors were “third parties” with regard to the dispute between BWV, Saskferco and UHDE. The Court of Appeal ordered that the actions by sub-subcontractors be stayed pending the arbitration between BWV, UDHE and Saskfero in order to avoid the problem of multiple concurrent proceedings. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=576&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Queen's Bench of Alberta Date 12 August 1994 Parties Borowski v. Heinrich Fiedler Perforiertechnik GmbH Applicable NYC Provisions II | II(1) Source 158 AR 213, [1994] 10 WWR 623 (AB QB) | online: CanLII
Languages English Summary Borowski was employed by Heinrich Fiedler Perforiertechnik GmbH (“Fiedler”). Borowski’s employment contract was terminated, and he sued for damages in lieu of notice and for loss of wages and benefits. Fiedler claimed that the Alberta courts did not have jurisdiction and the dispute should be referred to an arbitration tribunal, since the employment contract contained an arbitration clause which provided for arbitration in Georgia in accordance with the rules of the American Arbitration Association. The Alberta Court of Queen’s Bench stayed the claim for damages in lieu of notice and directed the same to be referred to arbitration, while allowing the claim for benefits, unpaid wages and expenses to proceed in the Court. The Court considered whether employment disputes could be submitted to arbitration in accordance with the provisions of the Alberta International Commercial Arbitration Act (“ICAA”), pursuant to which both the NYC and the UNCITRAL Model Law on International Commercial Arbitration (the “UNCITRAL Model Law”) applied in Alberta. The Court noted that Section 2(2) of the ICAA provides that in Alberta the NYC applies “only in respect of differences arising out of commercial relationships, whether contractual or not.” It also noted that the Government of Canada, when acceding to the NYC, declared that it would apply the NYC “only to differences arising out of legal relationships, whether contractual or not, that were considered commercial under the laws of Canada, except in the case of the Province of Quebec, where the law did not provide for such limitation.” The Court considered that the parties’ agreement was a contract of employment giving rise to the status of master and servant, and not the type of relationship that one could consider to be a “commercial” legal relationship to which the NYC would apply, and therefore the claim for benefits, unpaid wages and expenses would have to proceed in the Court. It noted, however, that Fiedler had admitted that it owed Borowski for past wages and benefits and considered that because it was an implicit requirement in any arbitration agreement that there be some difference or dispute between the parties and there was no dispute on this matter that could be referred to arbitration. The Court considered that the wording of Article II(1) NYC, which expressly links the application of the arbitration agreement to the existence of a dispute, supported this finding. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=401&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Appeal for Ontario Date 25 April 1994 Parties Automatic Systems Inc. v. Bracknell Corporation Applicable NYC Provisions II | II(3) Source [1994] OJ No 828 | online: CanLII
Languages English Summary Automatic Systems Inc. (“Automatic”) entered into a contract to supply and install a conveyor system at a Chrysler plant in Ontario. It subcontracted part of the work to Bracknell Corporation (“Bracknell”). The subcontract provided that any claims arising under it would be submitted to arbitration in Missouri under Missouri law. A dispute arose and Bracknell registered a lien claim against Automatic under the Ontario Construction Lien Act (“CLA”), and commenced an action against Automatic in provincial court to enforce the lien. Rather than participating in the court action, Automatic initiated arbitration proceedings against Bracknell. Bracknell declined to arbitrate and Automatic brought an application before the Ontario Superior Court for an order staying the action and referring the parties to arbitration. The application was dismissed on the grounds that an agreement to submit an Ontario lien claim to arbitration was unenforceable since the CLA only made provision for domestic arbitration. Automatic appealed. The Court of Appeal for Ontario allowed the appeal and granted an order to stay Bracknell’s court action against Automatic. It noted that by adopting the International Commercial Arbitration Act (the “ICAA”) in 1988, the Ontario legislature had shown that it supported international arbitration. The ICAA included the UNCITRAL Model Law on International Commercial Arbitration (the “UNCITRAL Model Law”) as a schedule, which was based on the NYC and in particular Article II(3) NYC. The Court of Appeal also noted that the NYC was approved and declared to have the force of law in Canada by the enactment of the United Nations Foreign Arbitral Awards Convention Act in 1986. The Court of Appeal considered that the purpose of the NYC and legislation based on it, was to ensure the respect for the parties’ method of resolving disputes, in a forum of their choice and according to the rules that they had chosen, and that Ontario courts had recognized that the predictability in the enforcement of dispute resolution provisions is an indispensable precondition to any international business transaction, and facilitates international trade. Referring to Article 8(1) of the UNCITRAL Model Law, it noted that the court was limited to refusing a stay in favour of arbitration in three specific situations, namely, where it found the agreement to arbitrate to be null and void, inoperative or incapable of being performed. The Court of Appeal found that Bracknell had failed to show any grounds as to why the arbitration agreement should not be enforced. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=955&opac_view=6 Attachment (1)
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Country Canada Court Canada, Ontario Superior Court of Justice Date 01 October 1992 Parties Canada Packers Inc. and others v. Terra Nova Tankers Inc. and others Case number 92-CQ-22196 Applicable NYC Provisions I | I(3) Source 11 O.R. (3d) 382, [1992] O.J. No. 2035 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5388&opac_view=6 Attachment (1)
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Country Canada Court Canada, Ontario Court (General Division) Date 13 February 1992 Parties Schreter v. Gasmac Applicable NYC Provisions V | V(2) | V(2)(b) Source [1992] O.J. No. 257 | online: CanLII
Languages English Summary In 1987, Schreter entered into a sales contract with Gasmac Inc. (“Gasmac”) which contained an arbitration clause providing for the resolution of all disputes arising under the contract through arbitration in Atlanta, Georgia, under the rules of the American Arbitration Association. Schreter initiated arbitration proceedings against Gasmac in 1989 for breach of contract and obtained a favourable award. Schreter applied to enforce the award in Ontario. Gasmac opposed the enforcement, claiming that the arbitrator’s award granting accelerated damages violated public policy in Ontario. The Ontario Court granted enforcement of the award, finding that its enforcement would not violate public policy. Although its decision was based on the UNCITRAL Model Law on International Commercial Arbitration (the “UNCITRAL Model Law”), it referred to the scope of the “public policy” exception under Article V(2)(b) NYC. The Court reasoned that the purpose of imposing the public policy of a province or state on foreign awards was to safeguard against the enforcement of an award which offended fundamental notions and principles of justice. The Court noted that this could not warrant the reopening of the merits of an arbitral decision and that such an action could bring the enforcement procedure of the UNCITRAL Model Law into disrepute. The Court found that in the present case, Gasmac had had a full hearing and made arguments during the arbitral proceedings, and that the award of accelerated damages would not violate public policy in Ontario. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=904&opac_view=6 Attachment (1)
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Country Canada Court Canada, Ontario Superior Court of Justice Date 30 January 1992 Parties Kanto Yakin Kogyo Kabushiki-Kaisha v. Can-Eng Manufacturing Ltd. Case number 27,547/91 Applicable NYC Provisions IV Source 7 O.R. (3d) 779, [1992] O.J. No. 198 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5387&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Appeal of Alberta Date 16 January 1992 Parties Kaverit Steel v. Kone Corp. Applicable NYC Provisions I | I(3) | II | II(1) | II(2) Source 1992 ABCA 7 | online: CanLII
Languages English Summary Kaverit Steel and Crane (“Kaverit Steel”) was a licensee and distributor of crane equipment and parts under written agreements with Kone Corporation (“Kone”), each of which included clauses for the resolution of all disputes by arbitration in Stockholm, Sweden, under the rules of the International Chamber of Commerce (“ICC”). A dispute arose and Kaverit Steel initiated court proceedings against Kone. Kone brought an application to the Alberta Court of Queen’s Bench to stay the action and refer the matter to arbitration, which was dismissed on the grounds that some of the issues in the action fell outside the scope of the arbitration clause, and that some parties to the action were not parties to the arbitration agreements. Kone appealed. The Court of Appeal of Alberta reversed the judgment refusing to stay the action and referred Kaverit’s claims in contract, and some of its claims in tort, to arbitration. The Court of Appeal accepted the lower court’s finding that Kaverit had raised some claims directed at third parties to the arbitration agreement, and that such parties could not be compelled to arbitrate without consenting to do so. It noted that the Alberta International Commercial Arbitration Act (the “ICAA”) adopts the test under Article II(1) NYC, which provides that the NYC applies only to “an agreement in writing under which the parties undertake to submit to arbitration” and that Article II(2) NYC clarifies that “parties” are the parties signatory to the agreement by stating that the term “‘agreement in writing’ shall include an arbitral clause in a contract signed by the parties.” The Court of Appeal considered that the mere fact that a claim sounds in tort does not exclude its arbitrability. It confirmed this reasoning by looking to Section 2 of the ICAA, which limits its scope to “differences arising out of commercial relationships, whether contractual or not”, and to Article I(3) NYC, which leaves signatory states to decide whether the NYC applies only to contractual differences or all types of differences. The Court of Appeal found that in the case before it, because the parties had agreed to arbitrate disputes “arising out of or in connection with” their contract, extra-contractual claims could also fall within the scope of that clause if either the claimant or defendant relied on the existence of the contractual obligation as a necessary element to create or defeat the claim. It held that even if referring some of the parties’ disputes to arbitration could pose a risk of multiple and contradictory findings, Article II(3) NYC directed courts of signatory states to hold parties to their agreement to arbitrate unless such an agreement was “null and void, inoperative or incapable of being performed.” reverses : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=954&opac_view=6 Attachment (1)
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Country Canada Court Canada, Cour d’appel du Québec Date 06 December 1991 Parties Ville de La Sarre v. Gabriel Aubé Inc. Case number 200-09-000589-918 Applicable NYC Provisions II | II(3) Source [1992] RDJ 273 | online: CanLII
Languages French Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5386&opac_view=6 Attachment (1)
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Country Canada Court Canada, Supreme Court of British Columbia Date 13 September 1991 Parties Brian Harper v. Kvaerner Fjellstrand Shipping A.S. Case number C914875 Applicable NYC Provisions II | II(3) Source online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5385&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Queen's Bench of New Brunswick Date 19 August 1991 Parties M.A. Industries, Inc. v. Maritime Battery Ltd. Case number F/M/48/91 Applicable NYC Provisions I | I(3) | II | II(1) | II(2) | III | IV | V | XIV Source 118 NBR (2d) 127 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5384&opac_view=6 Attachment (1)
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Country Canada Court Canada, Supreme Court of British Columbia Date 28 June 1991 Parties Albert A. Roy and Edward G. Belcher v. Donald E. Boyce, Ronald M. Jones, Peter M. McDonald and John J. Brown Case number CWC 91 217 Source online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5650&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDF
