[:en]B.C.’s Court of Appeal in South Coast British Columbia Transportation Authority v. BMT Fleet Technology Ltd., 2018 BCCA 468 refused to accept that a a single notice to arbitrate against three (3) different parties under four (4) separate contracts was merely a curable irregularity. Instead, the Court declared that the notice was a nullity, having breached the essence of the parties’ respective consents to arbitrate through a pre-determined, private process and could not be salvaged by a subsequent court order declaring it be valid. Continue reading “[:en]B.C. – single notice to arbitrate breaching consent/privacy of parties cannot be regularized by court – #143[:]”
[:en]B.C. – proper sequence for leave to appeal analysis applied to reverse result of appeal – #142[:]
[:en]In Richmont Mines Inc. v. Teck Resources Limited, 2018 BCCA 452, the B.C. Court of Appeal reversed an applications judge’s decision granting leave to appeal an arbitral award on a question of law due to the judge’s failure to follow the analytical framework established by Sattva Capital Corp. v. Creston Moly Corp., [2014] 2 SCR 633, 2014 SCC 53 and Teal Cedar Products Ltd. v. British Columbia, [2017] 1 SCR 688, 2017 SCC 32. The Court determined that the judge had reversed the analysis when he first determined the substantive issue of the correctness of the arbitrator’s decision and then, having agreed with the applicant, held that the applicant had identified an extricable question of law to appeal. By reversing the analysis back to its correct sequence, the Court reversed the result and refused leave to appeal. The Court also concluded its reasons with references to broad observations about the different approaches courts take to appeals of arbitral awards and trial decisions. Continue reading “[:en]B.C. – proper sequence for leave to appeal analysis applied to reverse result of appeal – #142[:]”
[:en]Ontario – non-parties’ cannot resile from consent to earlier court order joining them to arbitration – #141[:]
[:en]In Chemical Vapour Metal Refining Inc., et al v. Terekhov, 2018 ONSC 7037, Mr. Justice Glenn A. Hainey denied a post-award challenge by non-parties to an arbitration agreement to revisit their earlier consent to a court order joining them to arbitration. Hainey J. determined that the non-parties had consented to be joined to an arbitration that would determine a range of claims including oppression, fraudulent conveyance and alter ego liability. Having consented to that order, they could not later, on a leave to appeal application, argue that the award should be set aside due to an excess of jurisdiction. Their consent also enlarged the scope of the issues initially submitted to arbitration by the parties to the contract. Continue reading “[:en]Ontario – non-parties’ cannot resile from consent to earlier court order joining them to arbitration – #141[:]”
[:en]Alberta – third party to statutory contract can initiate arbitration disputing fact triggering its obligations – #140[:]
[:en]In TransAlta Generation Partnership v. Balancing Pool, 2018 ABQB 932, Mr. Justice Paul R. Jeffrey held that a creature of statute with duties under a statutory contract between two other parties had the right to initiate arbitration if neither of the main two parties to the contract chose to do so. The decision extended recognition further than earlier decisions in which the right to initiate arbitration appeared limited to joining an existing arbitration between the main contracting two parties. Continue reading “[:en]Alberta – third party to statutory contract can initiate arbitration disputing fact triggering its obligations – #140[:]”
[:en]Québec – industry association’s arbitration bylaw binds only members, allows litigation against non-members – #139[:]
[:en]In Hypotheca Courtier hypothécaire SSM Inc. v. Re/Max Imagine Inc., 2018 QCCQ 7956, Mr. Justice J. Sébastien Vaillancourt of the Court of Québec summarily dismissed a defendant’s objection to his jurisdiction, holding that the clear wording of an arbitration bylaw adopted by the Québec Federation of Real Estate Boards (the “Federation”) bound only its members. Members were still free to initiate court proceedings against non-members for disputes otherwise covered by the arbitration procedure. The detailed arbitration procedure also stated that any decisions issuing from the arbitration procedure were not to serve as precedents. Continue reading “[:en]Québec – industry association’s arbitration bylaw binds only members, allows litigation against non-members – #139[:]”
[:en]Ontario – courts not bound by arbitration agreement’s stipulated standard of review on appeal – #138[:]
[:en]Unlike the parties’ agreement on the applicable law, the seat and the language, the court is not bound by the parties’ agreement on the standard of review for the appeal of an arbitral award. In Northbridge v. Intact Insurance., 2018 ONSC 7131, Mr. Justice James F. Diamond reiterated the decision in The Dominion of Canada General Insurance Company v. Unifund Assurance Company, 2018 ONCA 303 that an appellate standard of review is a legal issue to be determined by the courts and not by the parties themselves. It appears that, in doing so, Diamond J. extended the Court of Appeal’s reasoning by expressly setting aside a stipulation agreed to by the parties in their arbitration agreement, before the dispute arose and before the court proceedings were initiated. Continue reading “[:en]Ontario – courts not bound by arbitration agreement’s stipulated standard of review on appeal – #138[:]”
[:en]Québec – court dismisses rare challenge by successful arbitral party and challenge based on arbitral precedent – #137[:]
[:en]In PriceWaterhouseCoopers Inc. v. Chamberland, 2018 QCCS 4948, Mr. Justice Bernard Tremblay dismissed a successful arbitral party’s attempt to challenge an arbitral award on the basis that the arbitrator’s reasoning was not consistent with the majority line of reasoning in the subject matter. The arbitral party filed into court several prior arbitral awards involving other parties to support its unsuccessful argument that arbitral precedent justified the court’s intervention. Continue reading “[:en]Québec – court dismisses rare challenge by successful arbitral party and challenge based on arbitral precedent – #137[:]”
[:en]B.C. – arbitration agreement not inoperative simply because arbitral party’s litigation intertwines non-parties – #136[:]
[:en]In Ts’kw’aylaxw First Nation v. Graymont Western Canada Inc. (2018) BCSC 2101, Mr. Justice Gordon C. Weatherill held that, under section 15(2) of B.C.’s Arbitration Act, RSBC 1996, c 55, an arbitration agreement is not inoperative simply because a plaintiff advances intertwining claims against multiple defendants including non-parties to the arbitration agreement. Weatherill J. also reiterated that section 15 does not give the court any residual discretion to refuse a stay against one defendant on the basis that another defendant is a non-party to the arbitration agreement. Continue reading “[:en]B.C. – arbitration agreement not inoperative simply because arbitral party’s litigation intertwines non-parties – #136[:]”
[:en]B.C. – no special rules of procedure exist for self-represented arbitral parties – #135[:]
[:en]In Meszaros v. 464235 B.C. Ltd., 2018 BCSC 2033, Madam Justice Linda A. Loo dismissed a self-represented arbitral party’s attempt to set aside a final award based on arbitral error involving alleged failure to observe the rules of natural justice. The alleged arbitral errors were rather the results of decisions taken by the self-represented party to ignore the arbitrator’s directions and the party’s obligations under the Domestic Commercial Arbitration Rules of Procedure applicable to the arbitration administered by the British Columbia International Commercial Arbitration Centre. It is not the arbitrator’s function or duty to tell parties how to prove their cases or, after the close of the case and closing arguments, to inform a party that it had holes or weaknesses in its case. Continue reading “[:en]B.C. – no special rules of procedure exist for self-represented arbitral parties – #135[:]”
[:en]N.L. – court renews ex parte order in service of court’s deference to arbitration – #134[:]
[:en]Mr. Justice Carl R. Thompson in Astaldi Canada Inc. v. Muskrat Falls Corporation, 2018 NLSC 229 demonstrated Newfoundland and Labrador’s Supreme Courts’ support of arbitration by renewing ex parte interim relief so that a Board of Arbitration constituted following a recent court decision could undertake and complete its own determination of its jurisdiction and, if accepted, issue its own interim relief sought in the Notice of Arbitration. Thompson J. subjected the term of his own order to the occurrence of a later procedural step in the arbitration. His decision recognized that the courts can act quickly, repeatedly and in coordination to preserve to arbitral parties the value of the bargain they made to resolve their disputes, including urgent ones, by arbitration. Continue reading “[:en]N.L. – court renews ex parte order in service of court’s deference to arbitration – #134[:]”