Author: adcaza

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    Faces Magazine has announced its 2020 Ottawa Awards finalists and both Caza Saikaley LLP and Jeff Saikaley have been listed for Favourite Law Firm and Favourite Lawyer, respectively.

    Voting ends on January 23rd. Please vote for Caza Saikaley LLP and Jeff Saikaley!

    https://facesmag.ca/awards/#/gallery?group=333284

    The awards will be handed out on January 24th at the Brookstreet Hotel.

     

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    By James Plotkin

    In 108 Media Corporation v. BGOI Films Inc., 2019 ONSC 880, the Ontario Superior Court of Justice re-affirmed the predominant line of case law in Ontario holding that when parties insert the words “final and binding” into an arbitration agreement, they intend to preclude an appeal under section 45 of the Arbitration Act, 1991, S.O. 1991, c. 17, either as of right or with leave.

    108 Media involved a “sales agency agreement” (SAA) wherein the Applicant, a film and television distributor, agreed to act as sales agent for the Respondent, who produces “low-budget horror films”. The SAA contained an arbitration clause that, among other things, stated the arbitrator’s determination shall be “final and binding”:

    Should there be a disagreement or a dispute between the parties hereto with respect to this Agreement or the interpretation thereof, the same shall be referred to a single arbitrator, selected jointly by the parties, and the determination of such arbitrator shall be final and binding upon the parties hereto. (Emphasis added)

    Relying on several decisions, including the Ontario Court of Appeal’s 1988 decision in Yorkville North Development Ltd. v. North York, 1988 CanLII 4701 (ON CA), the Court held that the words “final and binding” would have no meaning if they did not preclude an appeal.

    Interestingly, Yorkville North Developments was decided three years before the Arbitration Act, a verbatim adoption of the Uniform Law Conference of Canada’s Uniform Arbitration Act (adopted in Alberta, Saskatchewan, Manitoba, Ontario and New Brunswick), came into force. Ontario’s previous domestic arbitration legislation did not provide for appeals, which calls the Court of Appeal’s reasoning into question since parties evidently did not intend to exclude something (i.e. appeals) that did not exist in the law at the time.

    It also fails to take account of the reason why this language is generally found in arbitration clauses. This reason is largely historical and has to do with the old recognition and enforcement regime in international arbitration before the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards came into play over 50 years ago. Under most international arbitration legislation, including that in force in Ontario, there is no right of appeal. Rather, this language was historically included in arbitration agreements to avoid the need for what was called “double exequateur”, a requirement that an award to be homologated/recognized at both the seat of arbitration and the enforcement jurisdiction. The New York Convention has done away with that requirement, but the boilerplate “final and binding” language remains in many arbitration agreements, both international and domestic, as a matter of course.

    There remains a contrary line of cases that say the words “final and binding” are insufficient on their own to indicate the parties’ intention to exclude appeals (see: Denison Mines Ltd. v. Ontario Hydro (2002), 2002 CanLII 20161 (ON CA); Peters v. D’Antonio, 2016 ONSC 7141). This remains the minority view in Ontario, however.

    Despite not resting on the most solid doctrinal footing, it appears the prevailing view in Ontario is that “final and binding” means no appeal, for now.

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    We are proud to announce that Marc Sauvé will receive the County of Carleton Law Association’s Regional Senior Judge award on March 7, 2019.

    The RSJ Award is described as follows:

    Regional Senior Justice Award

    The Regional Senior Justice (RSJ) Award honours a lawyer in practice ten years or less who has made an outstanding contribution as a litigator or as a solicitor within the profession through their excellence as a professional, as well as outside the profession by making an outstanding contribution to the community. The RSJ Award will be awarded only to a member or former member of the County of Carleton Law Association.

    For a full list of our Regional Senior Justice Award recipients, please click here

    Congratulations to Marc and all of the other recipients!

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    We are proud to announce that Ronald F. Caza will receive the Key to the City in 2019.

    The Key to the City is described as follows:

    The Key to the City is the City’s highest and most prestigious honour. 

    The Key to the City is bestowed upon distinguished persons and honoured guests of the City of Ottawa. The practice of presenting a key to an individual may be traced back to medieval times, when admission into a city was hampered by many legal restrictions, as well as by walls and locked gates. The key symbolized free entry. By the middle 1800’s, it became customary to give a Key to the City as a symbol of the City’s intention that the recipient was free to come and go at will.

    Mayor Jim Watson announced this year’s recipients during his State of the City address:

    Finally, I’m pleased to announce that I will be recognizing the accomplishments of distinguished individuals this year by presenting the Key to the City to:

    • Author, lawyer and political activist Maureen McTeer;
    • Olympic gold medalist and decorated figure skater Patrick Chan – who was born in Ottawa;
    • Sue Garvey, the Executive Director of Cornerstone Housing for Women;
    • former Premier Dalton McGuinty – Ontario’s only Premier to represent Ottawa in the Legislature;
    • et le pionnier de la communauté franco-ontarienne d’Ottawa – Ronald Caza.

    Congratulations to Ron and all of the other recipients!

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    The Supreme Court of Canada will soon revisit the Dunsmuir framework for the standard of review applicable to administrative action in the trio of appeals (Canada (Minister of Citizenship and Immigration) v. Vavilov (37784), Bell Canada et al. v. Canada (Attorney General) (37896) and National Football League et al.  v. Canada (Attorney General) (37897))

    Alyssa Tomkins and James Plotkin represent The Samuelson-Glushko Canadian Internet Privacy and Public Interest Clinic (CIPPIC), which was granted leave to intervene on all three appeals.

    Here are CIPPIC’s written submissions to the Court: file: https://www.scc-csc.ca/WebDocuments-DocumentsWeb/37748/FM260_Intervener_Samuelson-Glushko-Canadian-Internet-Policy-and-Public-Interest-Clinic.pdf

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    Our own James Plotkin was interviewed recently on the lawsuits commenced by movie rights holders against thousands of Canadians for alleged illegal download of content such as movies and TV shows.

    https://www.vice.com/fr_ca/article/zm5bwa/les-poursuites-pour-telechargements-illegaux-sont-en-hausse-au-canada

    https://torrentfreak.com/movie-outfits-are-quietly-targeting-canadian-file-sharers-in-court-180904/

    https://m.huffingtonpost.ca/2018/09/07/canadians-sued-file-sharing_a_23520421/

    https://business.financialpost.com/telecom/media/massive-infringement-movie-rights-holders-are-suing-illegal-downloaders-and-winning

    https://ottawacitizen.com/telecom/media/massive-infringement-movie-rights-holders-are-suing-illegal-downloaders-and-winning/wcm/9fd319c5-903d-4956-bc8a-4972f8f4dfa7

    https://vancouversun.com/telecom/media/massive-infringement-movie-rights-holders-are-suing-illegal-downloaders-and-winning/wcm/168751a6-bcc0-48af-ad5d-95f296724123

    https://business.financialpost.com/telecom/top-court-makes-it-more-expensive-to-sue-online-movie-pirates

    Radio interview:

    https://soundcloud.com/user-965676831/jim-harrison-show-james-plotkin-sept-11?

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    Dialogue with the President of the Administrative Tribunal of the Organization of American States, Michel Bastarache, on the importance of his work for the OAS in implementing best practices and the highest international standards of operation in order to close any gap between what is done and what it is said should be done.

    The OAS Administrative Tribunal is composed of six judges elected by the General Assembly of the Organization to serve in a strictly personal capacity for terms of six years, with the possibility of being reelected. Michel Bastarache has been serving as the President since December, 2015.

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