In Hotel Georgia Development Ltd. v The Owners, Strata Plan EPS849, 2021 BCSC 1236, Madam Justice Heather MacNaughton held that the arbitrator committed no breach of natural justice by inviting submissions on a new issue which he introduced but then declined to rely on out of fairness to Respondent. “Where an arbitrator considers an approach to an issue that has not been raised by either party, natural justice requires the arbitrator to give the parties an opportunity to comment on the approach. The fact that a party does not make sufficient use, if any, of the opportunity given by the arbitrator is not a breach of natural justice and, accordingly, not a basis for setting aside an arbitral award”. MacNaughton J. observed that the arbitrator had signalled a gap in Claimant’s evidence and sought submissions on his ability to make a quantum meruit award. Despite having invited submissions and effectively granted Claimant an opportunity to compensate for its evidentiary gap, the arbitrator elected not to reproduce the responding submissions in the award. “It would be clearly unfair and prejudicial to the Respondent to have a new legal basis for recovery of common law damages at this stage and I exercise my discretion against pursuing that analysis”.
Continue reading “B.C. – no breach of natural justice where arbitrator invites submissions on new issue but declines to incorporate them in award – #508”Québec – request for conciliation under statutory dispute resolution process qualifies as demand for arbitration – #507
In Therrien Couture Joli-Coeur v. Chouinard, 2021 QCCQ 4944, Mr. Justice Enrico Forlini dismissed Client’s challenges against homologation of an award which issued in favour of the Law Firm, determining that Client’s request for conciliation had initiated arbitration of Law Firm’s accounts. Though Client and Law Firm had no written agreement to arbitrate, the dispute resolution process set out in the Regulation respecting the conciliation and arbitration procedure for the accounts of advocates, CQLR c B-1, r 17 qualified as a consensual process and Client’s conciliation request effectively initiated the arbitration. In regard to the alleged breach of natural justice by Law Firm’s delivery of documents the day of the hearing, Forlini J. held that Client could not object to a procedure which had been determined by the Council well in advance of the hearing and in regard to which Client did not object or request an adjournment of the hearing.
Continue reading “Québec – request for conciliation under statutory dispute resolution process qualifies as demand for arbitration – #507”B.C. – court issues sealing orders to avoid “defeating parties’ reasonable expectations of privacy in an ongoing arbitration” – #506
In Stewart v. Stewart, 2021 BCSC 1212, Mr. Chief Justice Christopher E. Hinkson issued sealing orders to protect materials filed (i) in a pending arbitration agreed to as part of the settlement of earlier court litigation and (ii) in court when the parties returned to court post-settlement to dispute compliance with the initial settlement. Applying the two (2) part test developed for publication bans in Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC) and applied to confidentiality orders in Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, Hinkson C.J. determined that “disclosure of this information would be likely to undermine the public policy in this jurisdiction of encouraging arbitrations by defeating the parties’ reasonable expectations of privacy in an on-going arbitration”. Hinkson C.J. limited his orders to specific documents and affidavit passages filed either in the ongoing arbitration or in court and referenced the confidentiality provisions in BCICAC’s (now VanIAC) former Revised Domestic Commercial Arbitration Rules of Procedure which applied to the arbitration.
Continue reading “B.C. – court issues sealing orders to avoid “defeating parties’ reasonable expectations of privacy in an ongoing arbitration” – #506”Alberta – dispute requiring expert evidence and expeditious resolution prompts court to propose arbitration – #505
In Canadian Consulting Engineers Inc v. Brazeau (County), 2021 ABQB 464, Master W. Scott Schlosser declined to proceed by way of summary judgment because “this dispute is not now capable of being resolved in a fair and just way on the existing record” and required the assistance of expert opinion witnesses. Master Schlosser observed that plaintiff made “no pretense of applying for a summary determination in the course of an ordinary lawsuit” and that its “strategy appears to have been to prepare this case for Summary Judgment directly”. Having observed plaintiff’s “very ambitious path taken” and desire to “seek expeditious resolution” and having qualified the dispute as unsuitable for summary judgment due to the expert evidence required, Master Schlosser did prompt the parties to engage in the arbitration still available in their contract and, when doing so, to retain “an expert arbitrator”.
Continue reading “Alberta – dispute requiring expert evidence and expeditious resolution prompts court to propose arbitration – #505”Ontario – offer by unsuccessful parties to engage in streamlined dispute resolution justifies reduced costs award – #504
In Crosslinx v. Ontario Infrastructure, 2021 ONSC 4364, Mr. Justice Markus Koehnen limited costs awarded to successful Applicants due to their failure to accept Respondents’ offer to discontinue Applicants’ court application and return to the parties’ dispute resolution process, thereby skipping certain steps. While he acknowledged the potential difficulty in comparing non-pecuniary elements in offers to settle against eventual court orders, Koehnen J. limited cost recovery to $92,119.92 rather than the $430,000.00 sought because Respondents’ offer, if accepted, “would have led to both a negotiation and a final determination of the issues in a much faster timeframe than is possible under my order”.
Continue reading “Ontario – offer by unsuccessful parties to engage in streamlined dispute resolution justifies reduced costs award – #504”B.C. – arbitration remains mandatory despite option given to only one party to waive arbitration – #503
In Malcolm Drilling Company Inc. v. The Graham-Aecon Joint Venture, 2021 BCSC 1136, Madam Justice Shelley C. Fitzpatrick issued a stay of proceedings despite plaintiff’s objection that only defendant had a peremptory right to refuse arbitration in response to plaintiff’s request to arbitrate. Fitzpatrick J. held that arbitration was mandatory if (i) either party requested it and (ii) arbitration was requested by plaintiff and defendant did not exercise its peremptory right to “waive” arbitration. Fitzpatrick J. also cautioned against an uncritical application of the “dated” approach to jurisdictional issues taken by decisions released prior to Seidel v. TELUS Communications Inc., 2011 SCC 15 (CanLII), [2011] 1 SCR 531, noting that “the persuasiveness of those decisions must be viewed with some skepticism given the more modern approach to arbitration”.
Continue reading “B.C. – arbitration remains mandatory despite option given to only one party to waive arbitration – #503”Ontario – on appeal, court raises legislation neither party pleaded in arbitration, reversing arbitrator’s definition of key term – #502
On an appeal of an arbitration award, Mr. Justice Frederick L. Myers in Her Majesty the Queen in Right of Ontario (Minister of Government and Consumer Services) v. Royal & Sun Alliance Insurance Company of Canada, 2021 ONSC 3922 raised the application of the Legislation Act, 2006, SO 2006, c 21, Sch F which neither party had argued in the arbitration and, having invited and heard argument, held that it governed and served to reverse the interpretation of a key term in the arbitration. Myers J. also noted that he followed Ontario precedent that Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 applied to appeals in statutory arbitrations but he limited the scope of that precedent, adding that it “cannot to be taken as standing for a broader proposition that Vavilov applies generally to all appeals from commercial arbitrations in Ontario”.
Continue reading “Ontario – on appeal, court raises legislation neither party pleaded in arbitration, reversing arbitrator’s definition of key term – #502”Québec – addition of potential claim to existing court action deemed abusive when arbitration of claim not completed – #501
In Raymond Chabot Administrateur provisoire Inc. du plan le garantie La Garantie Abritat Inc. v. 7053428 Canada Inc., 2021 QCCS 1039, Madam Justice Dominique Poulin qualified as abusive an attempt by Plaintiff to add a second claim to its existing court proceeding despite that claim still being subject to a pending arbitration. Plaintiff argued that its approach favoured efficiency by merely adding a second claim which it argued was related to a first claim already confirmed by prior arbitration and the object of the existing court proceeding. Poulin J. held that Plaintiff could not add a claim which remained uncertain and indeterminate and which Plaintiff had not yet paid, thereby lacking legal standing. Poulin J. reminded Plaintiff that the notice of arbitration served to interrupt prescription (limitation). Despite Defendants’ claim for damages for the abuse of procedure, Poulin J. ordered no damages, observing that Plaintiff’s approach stemmed from either a misunderstanding of its rights or a motivation to facilitate the process and not to abuse it.
Continue reading “Québec – addition of potential claim to existing court action deemed abusive when arbitration of claim not completed – #501”Ontario – court assists parties with stay of action, referral to arbitration, certificate against land and injunction regarding public hearing – #500
In Ghods Builders Inc. et al. v. Sedona Place Co-Ownership Inc. et al., 2021 ONSC 1938, Madam Justice Jasmine T. Akbarali demonstrated the Ontario court’s assistance to parties disputing land subject to an option agreement by (i) granting Defendants’ application to stay the action, (ii) referring the parties to arbitration to resolve the option agreement dispute, (iii) issuing a certificate of pending litigation against the land disputed in the arbitration and (iv) enjoining any interference with a public hearing involving Plaintiffs’ development plans regarding the disputed land. Akbarali J. preserved the opportunity for the arbitrator to resolve the merits of the parties’ dispute involving their option agreement and the local planning tribunal process which would consider Plaintiffs’ development plan regarding the land subject to arbitration.
Continue reading “Ontario – court assists parties with stay of action, referral to arbitration, certificate against land and injunction regarding public hearing – #500”Québec – residence of arbitrator in same region as parties not a criteria for deciding neutrality – #499
In Madysta Constructions Ltée v. Maskicom Inc., 2021 QCCS 2101, Mr. Justice Jocelyn Geoffroy dismissed as unfounded and subjective the concern voiced by defendant that plaintiff’s proposed arbitrator resided in the same region of the province as the parties and the municipalities involved in the dispute. [informal translation] ‘If such a criteria regarding the residence of an arbitrator or a judge was retained, virtually no arbitrator or judge could sit in a judicial district in which they lived because it is generally in that same district in which the parties they will hear also reside’. Geoffroy J. also dismissed defendant’s concern that plaintiff’s counsel had alone contacted the arbitrator prior to proposing him. Geoffroy J. reproduced the brief response from the arbitrator which confirmed his acceptance of the nomination and the absence of conflict.
Continue reading “Québec – residence of arbitrator in same region as parties not a criteria for deciding neutrality – #499”