Author: James Plotkin

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James’s 2021 Top Pick: B.C. – Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District – #565

My top pick for 2021 is Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District, 2021 SCC 7 [Wastech]. For most, Wastech’s primary importance relates to the common law duty of good faith in the exercise of contractual discretion. But for arbitration aficionados, another key aspect is what the Supreme Court of Canada’s concurring Justices said, and what the majority Justices declined to say, about the standard of review applicable to appeals from arbitral awards.

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Newfoundland and Labrador – Labour Arbitrator’s Collective Agreement Interpretation Passes Vavilov Reasonableness Muster – #559

In Pennecon Maintenance Services Limited v. Fish, Food & Allied Workers, 2021 NLSC 141, Justice Knickle ruled that a labour arbitrator reasonably interpreted a collective agreement in light of the precepts laid down in both Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 [Vavilov] and Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 [Sattva]. Although arising from an application for judicial review, Justice Knickle’s analysis provides relevant insights applicable to private arbitration disputes as they relate to contract interpretation.

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B.C. – Stay of portion of counterclaim not “improper bifurcation”; arbitration agreement bifurcated disputes – #540

In Mazzei Electric Ltd. v Western Canadian Construction Company Ltd., 2021 BCSC 1873, the Plaintiff applied to stay a portion of the counterclaim brought by the Defendant, on the basis that it  was covered by the parties’ arbitration agreemeement. Justice W.A. Baker granted the stay while permitting the remainder of the counterclaim to proceed. In reaching her decision, she interpreted and applied a detailed and industry-specific dispute resolution clause, which allowed the parties to commence court proceedings to preserve a lien right. Justice Baker found that the Plaintiff’s lien action did not prevent it from seeking to have the Defendant’s counterclaim on other issues in dispute stayed in favour of arbitration.

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Ontario – Court refers part of dispute to arbitration despite concluding dividing the issues was “unreasonable” in the circumstances – #520

In Star Woodworking Ltd. v. Improve Inc., 2021 ONSC 4940, Justice F.L. Myers of the Ontario Superior Court of Justice concluded he was required to refer to arbitration parts of a multi-action litigation even though dividing the issues and parties was, in the Court’s view, unreasonable in the circumstances. In granting the stay, Justice Myers followed the Supreme Court of Canada’s holding in TELUS Communications Inc. v. Wellman, 2019 SCC 19 (Wellman) to the effect that unless a party establishes one of the bases for refusing a stay under subsection 7(2) of the Arbitration Act, 1991, the Court lacks discretion to refuse the partial stay motion under subsection 7(5). He stayed portions of two of the joined actions on certain issues as against one of the Defendants but allowed them to continue on the remaining issues as against the other Defendants.

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Federal CA – Arbitrator/Adjudicator expressing “tentative views” in pre-adjudication mediation to foster settlement not indicative of bias – #515

In Fono v. Canada Mortgage and Housing Corporation, 2021 FCA 125, the Federal Court of Appeal heard a second-level appeal of a prothonotary’s decision to strike out parts of the appellant’s notice of application for judicial review and affidavit on the basis that they contained settlement privileged information, specifically, evaluative statements allegedly made by the labour adjudicator in a pre-hearing mediation, which the appellant argued demonstrated bias. The FCA found the Federal Court judge made no error in upholding the prothonotary’s decision, specifically noting that the impugned statements did not demonstrate bias merely because the labour adjudicator expressed tentative views on offers made and positions taken in the dispute with a view to fostering settlement.

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