Saskatchewan – Waiver of arbitration in joint venture agreement read strictly – #576

In Beauchamp v Beauchamp, 2021 SKCA 148, the Saskatchewan Court of Appeal dismissed an appeal from a case management judge’s decision, which provided for how farming operations would be conducted for the following year, on an interim basis, until a dispute involving a Joint Venture Agreement (“JVA”) governing those operations was finally resolved. The appellant alleged that the judge misinterpreted his waiver of the right to arbitrate contained in the JVA. This waiver was provided on three occasions, in his agreement to put matters to the case management judge for the sake of expediency and urgency and in two written briefs, each using slightly different language. In these, the appellant agreed: 1) the case management judge could “make an order providing for how this grain farm is [to be] operated for the 2021 to 2022 crop year”; 2) he “will waive his reliance on the arbitration clause if” the judge was distributing the farming equipment or dividing the farming operation on an interim basis, but would not waive these rights if the judge were to order the entirety of the farming operation be divided exclusively among the only the other parties in the dispute; and 3) he “will waive his reliance on the arbitration clause if the Court’s authority to distribute the equipment of New Age Farms on an interim basis is an issue to the extent necessary to effect the dividing of the farm operation.” The Court of Appeal found that because the case management judge did not order the farming operation be exclusively undertaken by the other parties, and directed on an interim basis only how farming operations were to proceed, the judge did not violate the terms of the waiver. Indeed the case management judge had expressly held that the jurisdiction issue raised by the appellant needed to be resolved before the underlying litigation could proceed.

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BC – Arbitrator’s decision set aside for lack of procedural fairness – #575

In Cyrenne v YWCA Metro Vancouver, 2021 BCSC 2406, Justice Baird of the British Columbia Supreme Court set aside a statutory arbitrator’s decision to grant an Order of Possession in a residential tenancies dispute under the Residential Tenancy Act, SBC 2002, c 78 (the “RTA”). He found that the hearing lacked procedural fairness because the arbitrator failed: (i) to judicially consider an adjournment request (dismissing it out of hand); and (ii) to give the tenant a reasonable opportunity to fully present her case (e.g. cutting her off in the middle of her submissions after a “time limit” had expired). Although the Arbitration Act, SBC 2020, c 2 does not apply to RTA disputes, it is illustrative of what procedural fairness dictates in relation to fair hearings.

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Ontario – tolling agreement from arbitration overcomes limitation defence at pleadings amendment stage – #574

In Vale Canada Limited v. Solway Investment Group Limited et al, 2021 ONSC 7562, Justice Koehnen considered, in the context of a motion to amend a Statement of Claim,  the impact of a tolling agreement made in respect of claims made in arbitrations that had been commenced and concluded five years previous. In a decision that canvasses the law on the interaction of motions to strike and motions to amend, Justice Koehnen ultimately permitted the amendments, without prejudice to the defendants to plead a limitation defence and to bring a motion to strike.

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New Brunswick – Arbitrator reading professional standards into valuation clause not extricable error of law – #573

In 619818 N.B. Inc. v. 656991 N.B. Inc., 2021 NBQB 269, Justice Ferguson of the New Brunswick Court of Queen’s Bench denied an application for leave to appeal an arbitral award. In so doing, he distinguished questions of mixed fact and law from pure questions of law arising from an arbitrator’s contract interpretation exercise.

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Ontario – Fresh evidence test the same on set aside applications on fairness grounds and judicial review applications – #572

In Vento Motorcycles Inc. v United Mexican States, 2021 ONSC 7913, Justice Vermette set out the test for when fresh evidence may be adduced to support a set aside application on lack of fairness or natural justice grounds. The test is the same as that which applies on a judicial review;  the record is restricted to what was before the decision-maker, except where there are natural justice or fairness issues raised that cannot be proven by reference to the existing record and that could not have been raised before the decision-maker.

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Myriam’s 2021 Top Pick: B.C. – lululemon athletica inc. v. Industrial Color Productions Inc. – #571

Famed Canadian athletic wear company lululemon athletica generated a noteworthy court decision this year, which has nothing to do with the controversy surrounding the sartorial choices it has made in designing Team Canada’s (very red!) uniform for the Beijing Olympics. Rather, the case adds to the significant number of decisions rendered of late in which the courts have grappled with their role – and the tests they must apply – when an application to set aside an international arbitral award comes before them under the UNCITRAL Model Law on International Commercial Arbitration (for a deep dive on this topic, see Lisa’s top pick, Russian Federation v. Luxtona Limited).

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