New Brunswick – Awaiting response to arbitrate extends time for JR of decision – #719

In New Brunswick Lotteries and Gaming Corporation v Madawaska First Nation, 2023 NBCA 1, the Court of Appeal of New Brunswick (“NBCA”) per Justices Drapeau, French, and LeBlond,  upheld the application judge’s decision that the appellant’s response that it would consider arbitration was not a decision that started the limitation period for bringing a judicial review application. 

The respondent Madawaska First Nation (“Madawaska”) brought an application for judicial review challenging the decision of the New Brunswick Lotteries and Gaming Corporation’s (“Gaming Corporation”) to not share with the first nation the profits from “video gaming devices” used at the casino on its reserve. On October 7, 2019, the Gaming Corporation advised Madawaska that it would not share profit from gaming devices used in casinos because they were not “video gaming devices” within the meaning of s. 24 of the Gaming Control Act (the “October 2019 letter”). The next day, Madawaska requested a meeting with the Gaming Corporation to discuss profit-sharing and the possibility of arbitration pursuant to the parties’ gaming agreement if a resolution could not be reached. The Gaming Corporation responded that the request would be raised at its December 5th Board meeting.  On December 21, 2019, the Gaming Corporation reported that its decision remain unchanged and that a meeting would be unnecessary. The Gaming Corporation, however, did not address Madawaska’s request to arbitrate. Following some additional correspondence, the Gaming Corporation reiterated its position in a letter dated January 15, 2020, in which it stated that, pursuant to the parties’ gaming agreement, arbitration could only be commenced upon the joint agreement of the parties. The Gaming Corporation did not agree.  The letter concluded that any further communication should be directed to the Office of the Attorney General (the “January 2020 decision”). 

Madawaska filed an application for judicial review of the January 2020 decision. Under Rule 69.03 of New Brunswick’s Court Rules, an applicant has three months to commence an application for judicial review. The Gaming Corporation brought a motion to dismiss the application because it was not started within three months of the October 2019 letter. As the NBCA stated: 

“[90] The crux of the issue before the application judge then centered on the effect of the Gaming Corporation’s undertaking [in its October 2019 letter] that its Board would consider Madawaska’s request to meet to discuss profit-sharing and, if necessary, arbitration.” 

The application judge found that the October 2019 letter did not commence the three-month time period because the Gaming Corporation’s “undertaking” that it would consider meeting and the need for arbitration meant that the decision was not final. The NBCA thus upheld this factual determination and dismissed this ground of appeal. The limitation period did not start to run until the January 2020 decision and the application was not out of time.

Contributor’s Notes

There is significant jurisprudence on the thorny subject of when a limitation period commences and when it expires where the parties agree to resolve their disputes by arbitration, rather than in the courts.  For other Case Notes on limitation issues, see Case Notes: Ontario – Court of Appeal upholds arbitrator’s decision to “blue pencil” mediation clause having impact on limitation period – #057; Alberta – uncertainty over which claims covered by arbitration does not delay commencement of limitation period – #162; Alberta – even after limitation period expires to initiate arbitration, court applies exceptions to deny stay – #171; Ontario – expired limitation period pre-empts need to decide stay application – #291; Alberta – court rules permitting appeal of Master’s stay decision consistent with section 7(6) of Arbitration Act – #412; Ontario – Start of limitation period determined by interpretation of stepped arbitration clause – #592.