Manitoba – Procedural choices made for efficiency bind losing parties – #783

With what the Respondent must hope is the final chapter of a long and expensive saga, in Christie Building Holding Company, Limited v Shelter Canadian Properties Limited, 2023 MBCA 76 (CanLII), the Court of Appeal confirmed parties must live with the consequences of their decisions on how to conduct the arbitration. The parties agreed to forego obtaining transcripts of the arbitration and the formalities of entering thousands of documents as exhibits (only five were formally marked as such). C lost the arbitration and clearly regretted its agreement to limit the evidentiary record. The nature of the “record” was at the heart of the Applicant C’s two trips to the Manitoba Queen’s Bench, one to the King’s Bench, and two to the Court of Appeal. C was unsuccessful at every turn. In the end, the Court of Appeal did not agree the lower court had mistakenly declined jurisdiction by rejecting C’s attempt to recreate the record by adducing affidavit evidence of what was formally before the arbitrator. In the circumstances, the Court held the “record” would consist of the two awards and accompanying reasons, the pleadings, and the five marked exhibits.

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