Arbitration Matters

February 15, 2023February 10, 2023

Saskatchewan – Tribunal to decide whether arbitration clause is unconscionable – #711

In Singer Enterprises Inc. v. Parrish & Heinbecker, Ltd., 2022 SKKB 268, Justice Currie found, based on the principles of competence-competence, that an arbitral tribunal has the jurisdiction to determine whether an arbitration clause is unconscionable and improvident, because such a determination is not a question of law alone and requires a review of the facts. He stayed the plaintiff’s action pending that determination by the tribunal in an arbitration already commenced by the defendant.

February 14, 2023March 17, 2023

Québec – Court rejects foreign state immunity to award enforcement – #710

In CC/Devas (Mauritius) Ltd v. Republic of India, 2022 QCCS 4785, Justice Pinsonnault rejected the Republic of India’s effort to invoke state immunity in response to an application seeking the recognition and enforcement of two investment treaty awards. He found that the Plaintiffs had met their burden to prove that (1) the commercial activities exception applied, and (2) India had waived state immunity to enforcement proceedings.

February 13, 2023February 10, 2023

Manitoba – Vavilov inapplicable to arbitration appeals – #709

In Christie Building Holding Company, Limited v. Shelter Canadian Properties Limited, 2022 MBKB 239, Christie Building Holding Company, Limited (“Christie”), applied for leave to appeal two arbitral awards under section 44 of the Manitoba Arbitration Act, CCSM c. A120. Christie asserted six separate grounds for leave to appeal, one of which consisted of four alleged errors of contractual interpretation. It also argued that a portion of the main award should be set aside because: the respondent did not comply with the Arbitration Agreement on issues of document production; that it was not given a fair opportunity to examine parties; and the arbitrator relied on case law not cited by the parties. Chief Justice Joyal dismissed all applications. In holding that none of Christie’s arguments for leave to appeal gave rise to a question of law of arguable merit, he considered the applicable standard of review. He found that “the standard of review on which the merits of this appeal would have to be judged, assuming leave was granted, is reasonableness. Until the Supreme Court of Canada has answered the question of what effect, if any, Vavilov has on Teal Cedar and Sattva, those authorities remain good law and are binding on this court” (paragraph 95). He also stated that if the applicable standard of review was, in fact, correctness, he would have still denied leave as the incomplete record from the arbitration compromised his ability to conduct a meaningful review, even for the narrow purpose of assessing leave. He held it would, therefore, be “unfair to grant leave and proceed with an appeal when a proper and meaningful review would ultimately be impossible” (paragraph 102). This case summary will focus on the analysis of the applicable standard of review.

February 2, 2023February 9, 2023

Ontario – ‘Parochial’ perspective on expert determination rejected – #708

In KMH Cardiology Centres Incorporated v Lambardar Inc., 2022 ONSC 7139, Justice Myers referred a dispute for expert determination pursuant to the parties’ agreement. He concluded that the parties intended the dispute to be determined by an expert, and not arbitration, even though it required the expert to engage in the exercise of contractual interpretation and not simply a mathematical calculation.

February 1, 2023January 26, 2023

Ontario – Set-aside application can’t bootstrap appeal– #707

In Tall Ships Development Inc. v. Brockville (City), 2022 ONCA 861, a unanimous Ontario Court of Appeal found the Superior Court committed multiple errors in its review of three arbitral awards under s. 45 and s. 46 of the Arbitration Act, 1991, S.O. 1991, c. 17 (AA). The Court saw no extricable errors of law capable of appeal, only unreviewable findings of mixed fact and law. The Court also identified no breaches of procedural fairness justifying a set aside of the awards. The decision provides important instructions for curial review of arbitral awards, including:

January 31, 2023January 26, 2023

Alberta – Power to prevent “manifestly unfair treatment” not power to stay arbitration – #706

In IBI Group Architects (Canada) Inc. v Edmonton (City), 2022 CarswellAlta 1805, the applicants, IBI Group Architects (Canada) Inc. and a related party (“IBI”), applied to stay an arbitration commenced by the City of Edmonton in favour of court proceedings. Although there is no express power to stay arbitrations under the Alberta Arbitration Act, RSA 2000, c A-43(“the Act”), the application was brought under subsection 6(c) which provides “[n]o court may intervene in matters governed by this Act, except for the following purposes as provided by this Act…(c) to prevent manifestly unfair or unequal treatment of a party to an arbitration agreement”. Previously, the Alberta Court of Appeal held in New Era Nutrition Inc. v Balance Bar Company, 2004 ABCA 280 (“New Era”), that courts could use subsection 6(c) to provide a remedy to cure unfairness arising from matters not covered by the specific language of the Act and that it could be used to allow “a party, faced with both a statement of claim and a notice to arbitrate, to apply to stay the arbitration on the basis that the matters in the two proceedings overlap and cannot be reasonably separated” in order to avoid unfairness (para. 43). IBI argued, among other things, that it needed the full participation and evidence of non-parties to the arbitration clause to defend itself and so if it were forced to arbitrate it would be unable to meet the case against it, which was manifestly unfair and so the arbitration should be stayed. Justice Dunlop, delivering his decision from the bench, refused the application to stay the arbitration as he determined that he had no jurisdiction to do so under the Act. He concluded that New Era “was no longer good law” in Alberta as the case had been considered and expressly overruled by the Supreme Court of Canada in TELUS Communications Inc. v. Wellman, 2019 SCC 19 (CanLII), [2019] 2 SCR 144 (“Telus v Wellman”).

January 30, 2023January 27, 2023

Alberta – Alberta never bound by Sattva and Teal Cedar – #705

In Esfahani v Samimi, 2022 ABKB 795, the parties’ marriage broke down and they agreed that certain issues would be decided by way of arbitration and other matters by litigation. The Arbitrator issued an award, which Husband appealed and sought to set aside pursuant to s. 44(1) (appeals) of the Alberta Arbitration Act, RSA 2000, c A-43, but not s. 45 (set asides) of the Act. Ultimately, Justice Marion dismissed the appeal and declined to set aside the award, but varied and remitted certain issues back to the Arbitrator. This Case Note focusses on the following two issues:

January 16, 2023March 13, 2023

Myriam’s 2022 Hot Topic: Procedural Fairness in International Arbitration – #704

“Out here, due process is a bullet”, said John Wayne’s Col. Kirby in The Green Berets.

Due process. Procedural fairness. Natural justice. Audi alteram partem. These are all different ways of formulating one of the bedrock principles of “civilized” dispute resolution processes, which distinguishes such processes from the guerrilla justice dispensed on the battlefield. Parties must be treated fairly and equally. Parties must be given the opportunity to present their case. The process – taken as a whole – must be fair.

January 16, 2023March 13, 2023

Liz’s 2022 Hot Topic: Treatment of arbitration agreements in 2022 – #703

My hot topic for 2022 is the treatment of arbitration agreements by the courts. Frequently, challenges to arbitral jurisdiction and appeals are brought on the basis of the scope and enforceability of an arbitration agreement. A review of a number of cases within the last year indicates a trend that a strongly, and often broadly drafted agreements are frequently the difference between a successful and unsuccessful court challenge. This case note will review a number of notable cases we have seen this past year.

January 16, 2023March 13, 2023

Timothy’s 2022 Hot Topic – At the crossroads of class actions and arbitration – #702

For this year’s “hot topics” post, I have chosen to spotlight an enduring subject: the policy conflict that can arise between arbitration and consumer class actions. The heat comes from developments in 2022 which suggest a fresh look (or two!) at how to reconcile pro-arbitration international legal commitments and policy objectives with consumer protection and class action laws.