Stephanie Clark, Author at Arbitration Matters

November 8, 2023November 3, 2023

Manitoba – Awards set aside after arbitrator re-wrote parties’ bargain – #790

In Buffalo Point First Nation and Buffalo Point Development Corp Ltd v Buffalo Point Cottage Owners Association, Inc, 2023 MBKB 141, the Court confirmed its earlier decision on the motion for leave to appeal, in which it held that the correctness standard of appeal in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (“Vavilov”) applies to review of private arbitration awards appealed under provincial arbitration legislation. The Court held that the arbitrator had erred because he exceeded the jurisdiction granted to him under the parties’ agreement. First, the arbitrator exceeded the jurisdiction to “implement” or “clarify” a Consent Award which the parties had entered into following an earlier dispute. Second, the arbitrator’s award constituted “a significant rewrite of the bargain (…) by introducing new concepts alien to the negotiated bargain”.

September 11, 2023September 8, 2023

Québec – Arbitration counsel not disqualified, despite opposing party paying underlying transaction fees – #771

In Glen Eagle Resources Inc. c. GEM Global Yield, 2023 QCCS 3144, the Court determined that a law firm was not disqualified from acting as counsel in annulment and enforcement proceedings when it acted for one party, but a portion of the legal fees were paid by the opposing party in the transaction giving rise to arbitration. But it raises a potential red flag for counsel.

July 6, 2023June 29, 2023

Ontario – No contracting out of the Model Law – #752

In EDE Capital Inc. v Guan, 2023 ONSC 3273, Justice Vermette dismissed a set-aside application on the basis that the applicant had failed to make out a breach of procedural fairness or lack of jurisdiction. In doing so, Justice Vermette also held that the applicable legislation in this case was the Model Law, despite the fact that the parties’ arbitration agreement referred to the domestic arbitration act.