In Hannam v. Medicine Hat School District No. 76, 2020 ABCA 343, Alberta’s Court of Appeal assessed the practical significance of its earlier five (5) judge panel decision in Weir-Jones Technical Services Incorporated v Purolator Courier Ltd, 2019 ABCA 49 which considered the benefits of summary judgment set out in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 SCR 87. In doing so, the majority and dissent both commented on the promised benefits of arbitration in contrast to court litigation. The present note highlights those passages to illustrate contemporary comments by the courts.
Continue reading “Alberta – court acknowledges litigants’ commercial interest in arbitration as alternative to court litigation – #378”Alberta – unambiguous wording on arbitration costs in standard contract does not merit court intervention – #377
In K-Rite Construction Ltd v. Enigma Ventures Inc, 2020 ABQB 566, Madam Justice Donna L. Shelley dismissed challenges to a costs award, holding that awarding costs is discretionary and generally will be a question of mixed fact and law. Shelley J. held that, absent some form of improper consideration, arbitrators have full discretion as to costs, may not be bound by traditional rules regarding the award of costs and using their discretion does not amount to an error of law. Shelley J. also dismissed Applicants’ challenges to the arbitration agreement’s costs provisions contained in an industry-specific contract. Despite the potential importance that standard forms may arguably have in an industry, unambiguous wording does not merit the court’s intervention.
Continue reading “Alberta – unambiguous wording on arbitration costs in standard contract does not merit court intervention – #377”Ontario – court denies tenant relief from forfeiture where tenant disregards arbitration – #376
In Hunt’s Transport Limited v. Eagle Street Industrial GP Inc., 2020 ONSC 5768, Mr. Justice David A. Broad refused to exercise his discretion to grant a commercial tenant relief from forfeiture given tenant’s refusal to abide by its obligation to continue performance during arbitration of its disputes with the landlord. Broad J. held that tenant’s conduct qualified as “wilful” self-help and justified the court in holding tenant to its obligations pending resolution of issues exclusively reserved for arbitration. Tenant’s unilateral decision to withhold payments, prior to their determination exclusively reserved in the lease to the arbitrator, played a key role in Broad J.’s reasons.
Continue reading “Ontario – court denies tenant relief from forfeiture where tenant disregards arbitration – #376”Québec – court relies on post-trial arbitration award to determine value under dispute at trial – #375
In Langlois v. Langlois, 2020 QCCS 2959, Mr. Justice Éric Hardy endorsed the court’s reliance on an arbitration award, which issued after a trial decision, to determine the amount of the value under dispute in court at trial. Hardy J. accepted that the court could use the award to calculate court costs according to a court tariff. The court trial had ordered a buyback of Plaintiffs’ shares due to oppression but also ordered the parties to engage in arbitration to determine the narrower issue of share valuation, as agreed to in their shareholders agreement.
Continue reading “Québec – court relies on post-trial arbitration award to determine value under dispute at trial – #375”B.C. – court’s own “alternate and free” dispute resolution procedures co-exist with private mediation-arbitration – #374
In Otte v. Otte, 2020 BCSC 1408, Mr. John J. Steeves refused to eliminate the court’s own judicial case conference (“JCC”) in favour of enforcing the parties’ contractual agreement to mediate-arbitrate. Observing that the court’s own JCC served as an “alternate and free procedure”, Steeves J. refused to relieve the parties from participating in that procedure, reasoning that parties can “use both, either or neither of arbitration-mediation or a JCC”.
Continue reading “B.C. – court’s own “alternate and free” dispute resolution procedures co-exist with private mediation-arbitration – #374”Ontario – exceptional case grants appeal court jurisdiction over single judge’s decision mistakenly denying leave to appeal – #373
In McEwen (Re), 2020 ONCA 511, Ontario’s Court of Appeal repurposed an exception, developed in its 1996 decision involving leave to appeal an arbitration award, which permitted a three (3) member panel to review the decision of a single judge denying leave to appeal. McEwen (Re) involved a panel’s jurisdiction under Ontario’s Courts of Justice Act, RSO 1990, c C.43 to review the decision of a single judge denying leave to appeal under the Bankruptcy and Insolvency Act, RSC 1985, c B-3. The Court’s reasons highlighted the distinction between (i) leave to appeal decisions which mistakenly decline jurisdiction and (ii) leave to appeal decisions which decide the merits of the application for leave to appeal. Only the former qualifies for the exception to “apparently absolute rule”.
Continue reading “Ontario – exceptional case grants appeal court jurisdiction over single judge’s decision mistakenly denying leave to appeal – #373”B.C. – from litigation to settlement to mediation to repudiation back to litigation on settlement – #372
In Park v. Mitchell, 2020 BCSC 1147, Mr. Justice Robert Johnston dealt with probate issues reserved exclusively to the courts but, in doing so, recorded how parties can move from court litigation, to negotiated settlement, to mediation agreement, to repudiation and back again, attempting to resolve their disputes. His reasons illustrate how court-ordered cross-examination in litigation can lead to information disclosure and/or meetings which occasion negotiated settlements. Those settlements may require mediation which generate agreements but, once repudiated, require the parties to return to their earlier settlement and then to court to enforce that settlement. The dispute resolution sequence prompted Johnston J. to question whether a litigant could enforce a settlement in probate proceedings or be obliged to sue on the settlement in a separate action.
Continue reading “B.C. – from litigation to settlement to mediation to repudiation back to litigation on settlement – #372”Alberta – stay application lacks evidence required to demonstrate overlap/status of duplicative proceedings – #371
To decide whether to exercise her discretion to stay duplicative proceedings involving administrative action taken in two (2) provinces, Madam Justice Susan L. Bercov in Mema v. Chartered Professional Accountants of Alberta, 2020 ABQB 486 drew on principles stated in UCANU Manufacturing Corp v. Calgary (City), 2015 ABCA 22 which considered whether to issue a stay when the duplicative proceedings involved a court action and an arbitration. Bercov J. declined to exercise her discretion due to applicant’s failure to meet his evidentiary burden to establish the overlap and status of the duplicative proceedings. Her comments on applicant’s evidence help guide arbitration practitioners invoking overlap with arbitration. The note also lists recent Alberta cases applying those principles to stays involving arbitration.
Continue reading “Alberta – stay application lacks evidence required to demonstrate overlap/status of duplicative proceedings – #371”Ontario – arbitrator’s interpretation of settlement raises extricable question of law and jurisdictional issue – #370
In Camerman v. Busch Painting Limited et al., 2020 ONSC 5260, Mr. Justice Paul B. Schabas both varied and set aside a portion of an award due to the arbitrator’s contractual interpretation of the scope of issues subject to arbitration under a settlement. Schabas J. determined that the parties, by their settlement, had “reset the dial” between them and the award breached the scope of disputes subject to arbitration. The arbitrator’s award relied on his interpretation of the settlement and exceeded the terms of the settlement. That interpretation raised an extricable question of law identified by Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, qualifying that issue for leave to appeal under section 45(1) of Ontario’s Arbitration Act, 1991, SO 1991, c 17. Schabas J. also held that the same facts demonstrated a jurisdictional error covered by section 46(1)3 and an order setting aside the same portion of the award.
Continue reading “Ontario – arbitrator’s interpretation of settlement raises extricable question of law and jurisdictional issue – #370”N.L. – agreement to arbitrate renewal option’s financial terms ensures lease is enforceable – #369
In Copper Stop Limited v. Parkland Fuel Corporation, 2020 NLSC 114, Madam Justice Kendra J. Goulding had to resolve a lease dispute which arose when the lessee sought to exercise an option to renew but for which the lease provided no specific term governing the method or time within which to exercise that option. Despite lessor’s argument that the lease was enforceable, Goulding J. held that the option to renew was enforceable as the financial terms of the renewal option were capable of being made definite through imposition by the arbitrator. The ability to arbitrate if negotiations failed made the lease’s renewal option more than just “an agreement to agree”.
Continue reading “N.L. – agreement to arbitrate renewal option’s financial terms ensures lease is enforceable – #369”