B.C. – period in which to appeal partial award runs from date of that award, not the later, final award – #263

In Milner v. Clean Harbors Industrial Services Canada, Inc., 2020 BCSC 68, Mr. Justice Anthony Saunders dismissed argument by a late-filing petitioner that the title “Partial Award” (i) created “inherent uncertainty” and (ii) justified calculating time to seek leave to appeal from the later, final award.  Saunders J. held that the title “Partial Award” was not ambiguous and petitioner demonstrated no confusion as to his rights determined under that award.  Saunders J. held that, of all the factors applicable to exercising his discretion to extend that time, the interests of justice subsumed the others and did not favour petitioner.

Mr. Douglas J. Milner (“Mr. Milner”) and Clean Harbors Industrial Services Canada Inc. (“CH”) signed a November 14, 2014 share purchase agreement (“SPA”) by which Mr. Milner sold to CH all his shares in Grizzco Cap Services Inc. (“Grizzco”).  The SPA contained an arbitration clause by which the parties agreed to submit to arbitration certain disputes over the purchase price.

Over the course of the arbitration, the arbitrator issued three (3) separate awards:

(i) June 30, 2016 – jurisdiction and application by Mr. Milner to add parties;

(ii) February 9, 2018 – adjustments to purchase price; and,

(iii) April 20, 2018 – reasonable fees and expenses award to CH, to be assessed under section 11(3) of B.C.’s Arbitration Act, RSBC 1996, c 55, plus interest on a sum ordered under the February 9, 2018 award.

Saunders J. at para. 4 identified the subject of the proposed appeal as being that addressed in (ii) and added that both (i) and (ii) were styled as a “Partial Award” whereas (iii) was styled as a “Final Award”.

Mr. Milner sought leave to appeal the Partial Award under the Arbitration Act, arguing that the arbitrator had committed errors of law in the February 9, 2018 award which both the arbitrator and Saunders J. identified as the “Partial Award”. Mr. Milner applied for leave on May 17, 2018, within 60 days of the Final Award but 97 days after the Partial Award.

CH challenged that leave be granted. Its first objection was that Mr. Milner had applied too late for leave and was time-barred. CH also argued that the questions submitted by Mr. Milner raised were questions of mixed fact and law.

Saunders J. considered CH’s first challenge by examining sections 42 and 43 of the Arbitration Act which, respectively, set a 60 day limit within which leave must be sought and confirmed the court’s authority to extend that time limit.

Mr. Milner disputed whether the Partial Award triggered the 60 day limit because the title of that award created uncertainty.  Saunders J. disagreed, holding that the Partial Award qualified as an “award” under section 1 of the Arbitration Act.

[16] Milner submits that the 60-day filing period ought not to be treated as running from the date of the Partial Award, because of the inherent uncertainty created by the award having been styled as such. It is submitted that to require Milner to have filed separate appeals in respect of the Partial Award and the Final Award would have led to the undesirable result of there being a multiplicity of proceedings. With it being certain that a “final” award would be issued at a later date, Milner submits that time should begin to run only once the Final Award was issued.

[17] At para. 6 of his decision, the arbitrator explained his decision to style the award as a Partial Award as being because of the need to reserve jurisdiction in order to determine costs and interest. Further, in summarizing the Award granted he set out, at paragraph 176, a schedule for the parties to deliver written submissions respecting interest and costs, and he stated that he would then, following receipt, proceed to determine those issues. The arbitrator concluded:

177. I reserve my jurisdiction to decide all matters in dispute that have not been determined by this Partial Award, including all matters relating to interest and costs.

The Partial Award therefore clearly reached a final determination of the issues that it addressed.

[18] From an objective standpoint, there was nothing ambiguous about the decision being styled as a Partial Award. Subjectively, there is no evidence that Milner himself was somehow confused or uncertain as to his rights due to the decision being styled in that manner.

(ii) Having determined that the application for leave to appeal fell beyond the 60 day time limit, Saunders J. then considered if he should exercise his discretion under section 43 of the Arbitration Act to extend the time.  He looked to the summary of the five (5) applicable principles given in Patenaude v. Patenaude, 2018 BCSC 286 and considered each against the application made by Mr. Milner.

1. Was there a bona fide intention to appeal within the appeal period: para. 23

Saunders J. held that Mr. Milner provided no evidence of his intention to appeal within the 60 day period.  This factor weighed in CH’s favour.

2. Was respondent informed of appellant’s intention to appeal within the appeal period time frame: para. 23

Saunders J. held that no notice of any intention given to CH. This factor also weighed in CH’s favour.

3. Would respondent be unduly prejudiced by an extension: paras 24-25

CH demonstrated no prejudice other than the potential for prejudice inherent in an appeal.  Saunders J. held that this factor was therefore neutral.  “The absence of undue prejudice, however, does not weigh in the applicant’s favour; it simply means that this factor is neutral”.

4. Is there merit in the appeal: paras 26-31

In this portion of his analysis, Saunders J. addressed CH’s other challenges, namely that Mr. Milner’s application did not raise questions of law but questions of mixed fact and law.

Saunders J. observed that he was not asked to undertake a “searching examination” but did require Mr. Milner as a petitioner to “establish at least that [he] has an arguable case”.  Having examined the key reproaches made by Mr. Milner, Saunders J. concluded that Mr. Milner’s challenges “misstate the nature of contractual interpretation determinations” and reiterated the guidance in Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 (CanLII), [2014] 2 SCR 633, para. 50.

Contractual interpretation involves issues of mixed fact and law as it is an exercise in which the principles of contractual interpretation are applied to the words of the written contract, considered in light of the factual matrix”.

Saunders J. also found no extricable question of law.

From the numerous references in Milner’s submissions to the factual matrix of the parties’ negotiations and post-contract conduct, the parties’ intentions, and their reasonable expectations, the alleged errors in the arbitrator’s decision are manifestly matters of mixed fact and law. The arbitrator’s written decision clearly explains what evidence he finds relevant to his interpretation of the SPA, and what evidence he disregards, and why. These matters are all within the arbitrator’s jurisdiction and his core competence. I do not find Milner has demonstrated an arguable case that an extricable error of law was made. This fourth factor therefore clearly lies in CH’s favour.

5. Is it in the interests of justice that an extension be granted: paras 32

Saunders J. gave this 5th factor pre-eminence, referring back to the priority given to in Patenaude v. Patenaude, adding that it “subsumes the previous four factors, requires a balancing of interests, and is the most important”.

None of the other factors had favoured Mr. Milner and any merit under the 4th factor would be “so weak” that it would be outweighed by Mr. Milner’s failure to demonstrate an intent to appeal within the legislated time period. Saunders J. held that “[n]o one of the first four of these factors is determinative”.  See also Rowan v. Dunwoody & Company, 1999 BCCA 755 para. 20.

In brief reasons at paras 36-38, Saunders J. considered and granted CH’s application to recognize and enforce the Partial Award and the Final Award.

urbitral note – First, despite the result, the reasons do identify facts relevant to a court granting leave and doing so even if the 60 day limit has expired. 

A late-filing petitioner might still be granted leave if it demonstrates (i) a bona fide intention to appeal within that time period and (ii) notice of that intention was given to the other party.  Arbitration counsel representing a party dissatisfied with an award which issues during the arbitration might safeguard that party’s rights by satisfying (i) and (ii).  The reasons do not require that the party also file an application to the court in that period, otherwise the need for an extension would be unnecessary.

Second, the reasons also confirm that a respondent’s failure to demonstrate prejudice should an extension be granted does not, by default, result in that factor being weighed in the petitioner’s benefit.  The factor can be neutral and weigh in neither party’s favour.

Third, the reasons do allow that a title to an award or statements made to reserve jurisdiction for the balance of the arbitration might create “uncertainty” or “confusion” worthy of disqualifying an award as one which triggers the appeal period.