Thomas G. Heintzman, O.C., Q.C., FCIArb

Tort And Fraud Claims Fall Within Arbitration Agreement: Ontario Court Of Appeal

In Haas v. Gunasekaram, 2016 ONCA 744, the Ontario Court of Appeal recently held that claims in tort and fraud, and resulting claims to set aside the agreement between the parties, were within the jurisdiction of the arbitral tribunal under an arbitration agreement. Accordingly, the court action between the parties was stayed. This decision is […]

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Standard Form Contracts Are To Be Reviewed On A Standard Of Correctness: Supreme Court Of Canada

In, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co, 2016 SCC 37, the Supreme Court of Canada has held that the interpretation of a standard form contract is a matter of law alone, and not a matter of mixed fact and law. Accordingly, it is not sufficient for a judge to arrive at a reasonable […]

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Is A “No Oral Variation” Clause In A Contract Binding?

Summary In MWB Business Exchange Centres Ltd v Rock Advertising Ltd [2016] EWCA Civ 553 and Globe Motors Inc v. TRW Lucas Varity Electric Steering Ltd. [2016] EWCA CIV 396, the English Court of Appeal has recently held that a contractual provision stating that the contract may only be amended by a written document signed […]

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Can An Arbitral Tribunal Summons The Decision-Makers Of A Public Authority?

When a contract dispute between a public authority and a private party proceeds to arbitration, can the private party inquire into the process or reasoning that led to public authority’s decision in question? For instance, if the public authority decides to terminate a construction contract, or to award a tender to one bidder, can an […]

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An Opt-In “May Arbitrate” Clause Is Enforceable, But Only If Triggered: Privy Council

One of the ongoing issues in Canadian arbitration law is whether an “opt in” arbitration clause is enforceable as a mandatory submission to arbitration. Under such a clause, one party “may” serve a notice of arbitration, and if that party does so, then arbitration shall ensue. Some Canadian court decisions, particularly older ones, held that […]

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Alberta Court Issues Wide-Ranging Judgment on Settlement and Mediation of Arbitrations

In Pinder v. Woodrow, the Alberta Court of Queen’s Bench recently issued a judgment addressing a number of arbitration and mediation issues. The judgment arose from a settlement that in turn arose from a mediation conducted during the course of the arbitral hearing. As a result, the court dealt with a number of issues that […]

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The Supreme Court Of Canada Proclaims 10 Rules For The Interpretation Of Contracts And The Review Of Arbitration Awards

The Supreme Court of Canada’s recent decision in Sattva Capital Corp. v. Creston Moly Corp. is a remarkable document. It is more than a judicial decision. It is literally a textbook or checklist for the interpretation of contracts and the review of arbitration decisions. Background First, the context. Creston agreed to pay Sattva a finder’s […]

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English Courts Enforce An Obligation To Mediate And Negotiate

The articles on this site have often alerted the readers to the hidden dangers of mediation and negotiation clauses in construction contracts. The principle danger is that these sorts of clauses may be unenforceable, for two reasons. The wording of the particular clause may be drafted in such a way as to create no enforceable […]

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Can An Entire Agreements Clause Make A Party To An Agreement Also A Party To Another Agreement?

In construction projects, there will often be several agreements between the various participants. Those agreements may contain “entire agreement” clauses to ensure that the parties are bound only by the terms of the agreement they sign. But could the entire agreement clause have the opposite effect if it refers to one of the other agreements? […]

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What Authority Does The Court Have To Interfere With Decisions Of Arbitrators?

This article will discuss the attitude of Canadian courts toward reviewing arbitral decisions.  The decisions of Canadian judges reflect the legislative regime in the provincial Arbitration Acts which mandates a starkly different approach toward final arbitral awards as opposed to interlocutory decisions (that is, decisions made by the tribunal during the proceeding, and not the […]

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