B.C. – court assists arbitration with subpoenas, subject to respect of implied undertaking of confidentiality – #470

In Octaform Inc. v Leung, 2021 BCSC 761, Mr. Justice Gordon C. Weatherill granted petitions under section 27 of the International Commercial Arbitration Act, RSBC 1996, c 233 and issued subpoenas to compel non-party witnesses to attend an ongoing arbitration. Observing that an “arbitration tribunal has the authority to control its own process, including the power to adopt its own rules and procedures for taking evidence that meet the needs of the particular case”, he added that “[i]t is not the role of this court to second guess the suitability of the processes adopted by the tribunal”.  Weatherill J. had adjourned an initial hearing on the petitions to issue subpoenas to non-parties, judging the petitions to be premature.  Provided with additional information since then, Weatherill J. confirmed the arbitrator’s determinations for approving the non-party witnesses’ attendance satisfied the court and warranted assistance.  Weatherill J. issued additional terms to the witnesses’ attendance requiring the petitioner’s undertaking (i) not to use the evidence obtained anywhere else but with the court’s consent and (ii) to reimburse “respective reasonable legal expenses incurred in respect of their preparation for and attendance as a witness at the Arbitration”.  The undertaking to restrict use mirrored in some respects the terms developed for the implied undertaking of confidentiality set out in Lac d’Amiante du Québec Ltée v. 2858-0702 Québec Inc., 2001 SCC 51 (CanLII), [2001] 2 SCR 743

At the request of Octaform Inc. (“Octaform”), Weatherill J. revisited two (2) petitions under section 27 of B.C.’s International Commercial Arbitration Act, RSBC 1996, c 233 to compel non-party witnesses to attend an ongoing arbitration.  He had initially dealt with the petitions in an initial order to which he refers at para. 2 of his reasons.  See the earlier Arbitration Matters note “B.C. – court adjourns its assistance to issue subpoenas approved in international commercial arbitration – #416” regarding Octaform Inc. v Leung, 2021 BCSC 73

Following his earlier, January 15, 2021 order, referred to by Weatherill J. in his reasons as the Ruling, the arbitrator issued a January 27, 2021 procedural order in which, Weatherill J. observed the arbitrator “determined, on his own volition, that it would be impractical in the circumstances to direct that [L] and [C] provide witness statements and that their evidence at the Arbitration should be entirely viva voce”.  Weatherill J. further noted that the arbitrator “directed a process” by which the witnesses would be “requested to commit to voluntarily appearing at the Arbitration as well as a process by which a determination would be made as to whether they were adverse to Octaform”.

The parties exchanged on the terms of the arbitrator’s January 27, 2021 order (“Procedural Order no. 25”), including a request for clarification, a challenge to the request for clarification and argument that Weatherill J.’s January 15, 2021 Ruling governed conduct of the non-party witness’ involvement.  Further to those exchanges, the arbitrator communicated with counsel for the parties and counsel for the non-party witnesses and required that Octaform serve the latter counsel with Octaform’s application materials seeking clarification of the Procedural Order no. 25.

Counsel for the non-party witnesses responded on February 19, 2021 and Weatherill J. summarized their submissions as follows:

(i) the Arbitrator had no authority to issue his Procedural Order No. 25;

(ii) that Octaform was required to abide by the Ruling regardless of whether doing so was impractical; and

(iii) that it was improper for the Arbitrator to issue further reasons for his Procedural Order No. 25”.

Weatherill J. next summarized a February  25, 2021 procedural order (“Procedural Order no. 27”) issued by the arbitrator in which he set out:

(i) the background to the dispute regarding the attendance of [L], and [C] as witnesses;

(ii) the Ruling;

(iii) the respective positions of the arbitration parties, [L], and [C], regarding Procedural Order No. 25;

(iv) his analysis of those positions including his legal analysis; and

(v) why [L]’s and [C]’s evidence was both relevant and material to his ability to determine the issues before him in the arbitration.

The lengthy excerpt from that Procedural Order no. 27 included at para. 10 of Weatherill J.’s reasons included the following para. 73.

73. In the view of the Claimant, the decision to adjourn the Petitions was decided on the basis of the court’s understanding that the Tribunal had directed that all evidence would be heard by way of written evidence in chief.  Therefore [sic], because the witnesses had not yet refused to “voluntarily attend” the hearing, given their offer to consider providing written evidence, the Petitions were held to be premature.  It is the Claimant’s right to bring another application before Justice Weatherill if they wish to do so, because he has indicated he would hear such an application, and he will make the decision either to issue subpoenas or not”.

Immediately after that excerpt, Weatherill J. closed his review of the procedural orders with the following comments.

[11] Octaform’s view, as expressed in paragraph 73 of Procedural Order No. 27, is an accurate reflection of my understanding at the time of the Ruling.  The Ruling was not an attempt to impose a process by which evidence would be taken at the Arbitration.  Rather, it was intended to ensure the process that had been directed by the Arbitrator by way of Procedural Order No. 4 for the taking of evidence was followed”.

Analysis by Weatherill J. – At paras 12-25, Weatherill J. confirmed (i) the fundamental principles of an arbitrator’s control over the arbitral process and the court’s role in assisting the arbitrator and (ii) their application to the circumstances before him.

An arbitration tribunal has the authority to control its own process, including the power to adopt its own rules and procedures for taking evidence that meet the needs of the particular case: Jardine Lloyd Thompson Canada Inc. v. Western Oil Sands Inc. 2006 ABCA 18 at paras. 25–28; ICAA, s. 19.  It is not the role of this court to second guess the suitability of the processes adopted by the tribunal”.

Weatherill J. identified section 27 of the ICAA as a source for the arbitrator to seek the court’s assistance in taking evidence.  He referred back to an earlier procedural order (“Procedural Order no. 21”) in which the arbitrator had given Octaform approval to “take whatever steps are legally available to obtain the testimony of [L] and [C] at the hearing”.

Referring to the text of section 27, Weatherill J. pointed out that a grant of the court’s assistance was not obligatory and that the court “must first examine the reason for the request and be satisfied that it is reasonable and in accordance with the practices of this court”.  See Jardine Lloyd Thompson Canada Inc. v. Western Oil Sands Inc. para. 46.

Weatherill J. noted that, in his Ruling he adjourned the subpoena petition hearing because the record raised concerns for him that the arbitrator’s approval “was given prematurely” based on: [L] had expressed his willingness to provide a written statement in compliance with Procedural Order No. 4; and, there had been no communication with [C] whatsoever regarding her participation as a witness in the Arbitration.

[17] Since the Ruling, the Arbitrator has made it clear that it is not practical to follow Procedural Order No. 4 in the cases of [L] and [C] and that his intention in issuing Procedural Order Nos. 21 and 23 was to implement a different process for the taking of their evidence.  I was not alive to that intention at the time I issued the Ruling”.

Counsel for the non-party witnesses L and C submitted their objections to the manner in which the arbitrator had proceeded and Weatherill J. set those out at paras 8-19 and dismissed them.

[20] The Arbitrator is well versed in the overarching facts of the dispute between the parties and has had the benefit of having heard the evidence of several of Octaform’s witnesses.  He has concluded that the evidence of [L] and [C] is relevant, material, and necessary for him to be able to justly determine the issues he must decide.  The Arbitrator has also concluded that it be impractical for them to give their evidence other than viva voce.  His conclusions were carefully reasoned and this court is in no position to second guess them.

[21] The Arbitrator has determined that [L] and [C] should attend the arbitration hearing in person and give viva voce evidence as part of Octaform’s case.  Rule 12-5(29) of the Supreme Court Civil Rules [BC Reg 168/2009] provides that the court may permit a party to cross-examine a witness, either generally or with respect to one or more issues.  At some stage there will be a determination as to whether one or both of [L] and [C] is an adverse or hostile witness and the extent to which Octaform will be entitled to cross-examine them.  That determination is appropriately for the Arbitrator”.

Weatherill J. concluded that the arbitrator’s determinations were reasonable and in accordance with the court’s practices and stated that he was satisfied that the court’s assistance was warranted.  He set out further terms at para. 22 as follows:

(i) the arbitrator directs that each of L and C be provided with such documents as the arbitrator deems appropriate prior to their attendance at the hearing;

(ii) Octaform provides its undertaking not to use any evidence obtained pursuant to the subpoenas for any purpose other than in the arbitration without the consent of L and/or C, as the case may be, or without the consent of this court; and,

(iii) Octaform undertakes to reimburse L and C for their respective reasonable legal expenses incurred in respect of their preparation for and attendance as a witness at the arbitration.

Regarding the differing treatment for witnesses resident in B.C. and those non-resident, see paras 23-24 of Weatherill J.’s reasons.

Based on the above, Weatherill J. issued orders pursuant to section 27 of the ICAA that subpoenas be issued to compel L and C to attend the arbitration at the times and in the manner determined by the arbitrator on the terms set out above in his decision.

urbitral notes – First, regarding the undertaking imposed on Octaform as petitioning party for the subpoenas, Weatherill J. required that any use, outside the arbitration, of evidence obtained further to the subpoenas be first submitted for consent of the court.  The latter echoes the restrictions placed on pre-hearing evidence obtained in the civil litigation process and recognized in Lac d’Amiante du Québec Ltée v. 2858-0702 Québec Inc., 2001 SCC 51 (CanLII), [2001] 2 SCR 743

In that case, at para. 77, the Supreme Court required that prior leave be sought from the court before which the evidence was obtained pursuant to its pre-hearing rules of court.  Such leave is not necessary once the evidence is filed in the hearing on the merits.  

In the case before Weatherill J. he was asked to order compliance with evidentiary requests which fell by analogy within the concerns raised in and addressed by Lac d’Amiante.  The difference between the process in para. 77 in Lac d’Amiante and the one before Weatherill J. is that the evidence from L and C would be filed in the merits of the arbitration but, unlike a court and subject to presumably the confidentiality of the arbitration, would not per se be automatically public.  In doing so, Weatherill J. addressed the concerns raised by Lac d’Amiante and retained the court’s role in assisting the process.

[77] The courts must therefore assess the severity of the harm to the parties involved if the rule of confidentiality were to be suspended, as well as the benefits of doing so.  In cases where the harm suffered by the party who disclosed the information seems insignificant, and the benefit to the opposing party seems considerable, the court will be justified in granting leave to use the information.  Before using information, however, the party in question will have to apply for leave, specifying the purposes of using the information and the reasons why it is justified, and both sides will have to be heard on the application.  The court will determine whether the interests of justice in the information being used in the relations between the parties and, where applicable, in respect of other persons, outweigh the right to keep the information confidential.  A number of factors, which cannot be listed exhaustively, will be taken into consideration.  Disclosure of all or part of an examination, or of exhibits produced during an examination, may then be approved, in cases where there is an interest at stake that is important to the justice system or the parties.  This might be the case, for example, where a party wishes to establish in another trial that a witness has given inconsistent versions of the same fact. (For comparison, see Wirth Ltd. v. Acadia Pipe & Supply Corp. (1991), 1991 CanLII 5837 (AB QB), 79 Alta. L.R. (2d) 345 (Q.B.).)”.

The reasoning in other passages in Lac d’Amiante provides further insights into the reasons for the undertaking which includes the court’s interest in preventing use of the evidence to migrate into or create other venues. See in part the following from the headnote to that decision:

The rule of confidentiality seeks to limit the invasion of privacy at the examination on discovery stage by restricting it to what is necessary for the conduct of the proceeding.  The rule acknowledges that if the information is relevant and is not protected by some other privilege, it must be communicated to the adverse party.  However, the rule prohibits that party from using it for purposes other than preparing for the trial and defending his or her interests at trial, or from disclosing it to third parties, without specific leave from the court”.