Top Arbitration Cases Of 2022: Optiva v. Tbaytel

Ontario Court of Appeal upholds arbitrator's $4.39M award and validates use of summary judgment-like procedures in domestic arbitrations

Facts

Optiva sold an $8.5M software package to Tbaytel. A dispute arose resulting in Tbaytel terminating the contract and the parties referring their disputes to arbitration under the Arbitration Act, 1991 (the "Act"). A further agreement on the arbitration procedure was negotiated and agreed by the parties. It described the powers of the arbitrator, including the power to decide all motions and determine all procedural matters. However, no explicit reference to "summary judgment" was included in this agreement.

Tbaytel elected to bring a motion for "summary judgment" on the basis that the executives of Optiva had made admissions that established the material facts for its claim. The arbitrator permitted Tbaytel to proceed with a summary judgment motion, despite Optiva's "concerns" with that procedure. Optiva made