In Desert Properties Inc. v. G&T Martini Holdings Ltd, 2024 BCCA 320, the Court rejected challenges to a liability award and an interest award in disputes stemming from a major property development. The Court dismissed applications for leave to appeal and cross-appeal for failure to demonstrate extricable errors of law in the liability award. The Court also ruled there was insufficient merit in a proposed appeal from a BCSC decision which had declined to set aside the interest award. Both parties have kept the B.C. courts busy with multiple challenges to these arbitral awards, generating three Case Comments in recent months. It can be argued that the Court’s mode of analysing extricable errors of law for the purposes of appeal has changed (perhaps ever so slightly) since its decision in Escape 101 Ventures Inc. v. March of Dimes Canada, 2022 BCCA 294, in which it found that misapprehensions of evidence that go the core of the outcome of a case are extricable errors of law.
Continue reading “B.C. – Court adopts award-centric review for questions of law – #869”Manitoba – Court denies stay in favour of arbitration for several (suspect) reasons – #868
In Bains and 10031670 Manitoba Ltd. v. Tworek et al, 2024 MBKB 111, the Court dismissed a motion to stay two court proceedings in favour of arbitration. In doing so, the Court ran afoul of some settled principles in Canadian (and international) arbitration law. These include interpreting the scope of the arbitration agreements, the test for a stay of proceedings in favour of arbitration, the separability presumption and concerns over inefficiency and multiplicity of proceedings where the dispute concerns both signatories and non-signatories to the arbitration agreement.
Continue reading “Manitoba – Court denies stay in favour of arbitration for several (suspect) reasons – #868”Alberta – Arbitrator’s issuance of award without all evidence was an error of law – #867
In Giacchetta v Beck, 2024 ABKB 481 (CanLII) (“Giacchetta”), the Court held, in the context of an arbitration conducted under Alberta’s Arbitration Act, RSA 2000 c A-43 (the “Act”), that it is an error of law for an arbitrator not to consider all the evidence. Here, the arbitrator stated that he had rendered his award without considering all the evidence and said that, “there may have been an obligation on my part to have requested a copy once I realized that I did not have it…”. This resulted in a finding that the arbitrator’s reasons were insufficient, which also amounted to an error in law.
Continue reading “Alberta – Arbitrator’s issuance of award without all evidence was an error of law – #867”B.C. – Stay of action fails where party first brought motion to strike – #866
Montaigne Group Ltd. v St. Alcuin College for the Liberal Arts Society, 2024 BCSC 1465 concerns the issue of whether the Court should grant a stay of domestic proceedings in favour of arbitration after the defendant who sought the stay, St. Alcuin, first brought a motion before the court to strike the claims. Because this involved seeking substantive relief from the Court, it held that the defendant had attorned to the Court’s jurisdiction and waived its right to arbitration and also taken steps that rendered the arbitration clause inoperative. Therefore, the stay of proceedings was denied under section 7(2) of the Arbitration Act, S.B.C. 2020, c. 2.
Continue reading “B.C. – Stay of action fails where party first brought motion to strike – #866”Ontario – Alleged error in applying the law not a jurisdiction issue – #865
In Clayton v. Canada (Attorney General), 2024 ONCA 581, the Court dismissed an appeal from an order dismissing an application to set aside an arbitral award made under Chapter 11 of NAFTA (“the Award”). The appellants sought to set aside the award on the grounds that the tribunal exceeded its jurisdiction and that the award violated public policy. The Court rejected both arguments. In the underlying arbitration, which was bifurcated into liability and damages hearings, the tribunal found that the respondent had breached the relevant NAFTA provisions, but that the appellants did not establish that the breach caused the damages sought. The appellants applied to the Ontario Superior Court to set aside the Award, arguing that the tribunal exceeded its jurisdiction by not properly applying the law, and that the Award violated public policy because it was “so unreasonable as to be unenforceable”. The Superior Court dismissed the application. The Court of Appeal dismissed the appeal. Challenges to arbitral awards on jurisdictional grounds are restricted to “true jurisdictional questions”, and there is a very high burden to set aside an award for public policy reasons.
Continue reading “Ontario – Alleged error in applying the law not a jurisdiction issue – #865”Québec – Parties May Agree Upon an Arbitral Appeal Mechanism – #864
In McLaren Automotive Incorporated c. 9727272 Canada Inc (unreported, rendered on August 2, 2024 in File no. 540-17-015649-328), the Superior Court of Quebec confirmed that parties may agree upon an arbitral appeal mechanism, despite article 648 of the Code of Civil Procedure (“CCP”), which states the only recourse against a final award is homologation or annulment. In this case, an arbitration appeal panel appointed by the parties overturned the decision of the arbitrator, in which he denied having jurisdiction over the dispute. The Claimant then applied to the Superior Court of Quebec, requesting the homologation of the arbitrator’s decision and the annulment of the appeal panel’s decision. In this first decision addressing the validity of an arbitral appeal process, the Court confirmed the validity and jurisdiction of the appeal panel and concluded that the existence and the decision of the appeal panel was valid, considering both the relevant articles of the CCP and the UNCITRAL Model Law on International Commercial Arbitration (the “Model Law”).
Continue reading “Québec – Parties May Agree Upon an Arbitral Appeal Mechanism – #864”Ontario – Arbitrator jurisdiction – dispute arose from Consent Order after earlier arbitration – #863
In The Joseph Lebovic Charitable Foundation, The Dr. Wolf Lebovic Charitable Foundation, the Estate of Joseph Lebovic and Wolf Lebovic v Jewish Foundation of Greater Toronto and Joseph and Wolf Lebovic Jewish Community Campus, 2024 ONSC 4400, the Court upheld the arbitrator’s order that he had jurisdiction over the parties’ dispute that arose after a Consent Order made in an earlier arbitration. The parties’ first dispute fell within the scope of the arbitration clause in their agreement. They settled that dispute and the arbitrator issued a Consent Order that contained a term that referred, “any disputes regarding the matters referred to in this Order” back to him for resolution. A second arbitration did not proceed. The same arbitrator was appointed to decide the issues in dispute in a third arbitration. The respondents in the arbitration (“Lebovic”) argued that the arbitrator did not have jurisdiction because the issues raised were grounded in the Consent Order and not in the agreement that contained the arbitration clause. The arbitrator decided that he had jurisdiction, in part, because: (1) resolving this third dispute would necessarily involve factual consideration of the contract terms, and obligations and conduct of the parties under both the parties’ agreement and the Consent Order; and (2) the issues raised by Lebovic were all grounded in rights and obligations which were initiated by the terms of their agreement. Lebovic maintained their objection and applied to the Court under section 17(8) of the Ontario Arbitration Act, 1991, SO 1991, c. 17, “to decide the matter”. The focus of this case note is the arbitrator’s decision, because the application was decided on the basis of waiver.
Continue reading “Ontario – Arbitrator jurisdiction – dispute arose from Consent Order after earlier arbitration – #863”Alberta – Statutory Framework of Arbitral Appeals Clarified – Leave or No Leave? – #862
In Sivitilli v PesoRama Inc, 2024 ABCA 249, a single justice of the Alberta Court of Appeal set out and clarified the statutory framework for appeals to the Court of Appeal arising from challenges to arbitrations made on the basis that: (1) the arbitration agreement is invalid (s. 47 of the Arbitration Act); or (2) that court intervention is needed to prevent unfair or unequal treatment of a party to an arbitration agreement (s. 6(c)). The appeal route to the Court of Appeal for challenges brought pursuant to s. 47 of the Arbitration Act, RSA 2000, c A-43, which includes allegations that the arbitration agreement is invalid, expressly requires leave of the Court of Appeal. The appeal route for challenges to arbitrations made pursuant to s. 6, such as allegations that court intervention is needed to prevent unfair or unequal treatment of a party, are not addressed in the Arbitration Act, and therefore decisions of the first instance court are subject to a general right of appeal under the Alberta Rules of Court. No permission is required to appeal a decision under s. 6.
Continue reading “Alberta – Statutory Framework of Arbitral Appeals Clarified – Leave or No Leave? – #862”Federal – Arbitrations may be private but may NOT be confidential – #861
In SOS Marine Inc. v. M/V Gentle Seas (Ship), 2024 FC 1042 (CanLII), (“SOS Marine“) the Court rejected arguments that information disclosed in arbitral proceedings should be kept confidential in an unrelated court proceeding involving third parties.
Continue reading “Federal – Arbitrations may be private but may NOT be confidential – #861”Québec – First consideration of test for stay application for annulment application – #860
In ADRAQ (CSD) Laurentides c. Hamelin, 2024 QCCS 2324, the Court dismissed a motion brought pursuant to section 648 CCP to stay an application for annulment of an award to give the arbitrator the opportunity to correct it to eliminate the grounds for annulment. This is the first case to consider section 648 CCP. The Court developed the list of factors to be considered on such a motion. It also ruled that it has broad discretion in deciding a motion for a stay under section 648. In light of the preceding, the Court ruled that the judge deciding the merits of the application for annulment should decide the stay motion. That judge would have a better understanding of the case to determine whether a stay is appropriate considering the allegations, including alleged bias against the arbitrator, which the Court found were serious, and the respondent’s denial of the very existence of any grounds for annulment, leaving no place at this stage, for the arbitrator to correct his award. Therefore, the Court dismissed the respondent’s demand to stay the application for annulment.
Continue reading “Québec – First consideration of test for stay application for annulment application – #860”