In van Rhijn v. van Rhijn, 2020 ONSC 8032, Madam Justice Lene Madsen reminded an arbitral party that awards were neither “suggestions” nor “an invitation to further negotiation”. Arbitration awards “spoke from when they were made”, creating obligations which required the party’s compliance, “whether he agreed with those terms or not”. The parties submitted their dispute to a med-arb process before the same neutral who, after having issued two (2) awards advised the parties of his withdrawal. Despite his withdrawal, the arbitrator retained jurisdiction to issue a costs award which he did issue after his withdrawal and after having invited costs submissions in one award released just prior to withdrawing.
Continue reading “Ontario – awards are neither “suggestions” nor “invitation to further negotiation” – #424”Saskatchewan – terms of reference “supersede” earlier agreement on leave to appeal question of law – #423
In Turpie Farms Ltd. v. 613168 Saskatchewan Ltd., 2020 SKQB 345, Mr. Justice Neil Robertson applied the last of four (4) agreements to arbitrate addressing the parties’ right to appeal on a question of law. Robertson J. held that the last-signed terms of reference signed by parties’ counsel “superseded” the parties’ earlier agreement and allowed an appeal as of right on a question of law. Though respondent disputed whether the numerous grounds raised a question of law, Robertson J. deferred that issue to the judge hearing the appeal, reasoning that “since leave to appeal is not required, I am not called upon to decide whether the proposed grounds are proper questions of law”.
Continue reading “Saskatchewan – terms of reference “supersede” earlier agreement on leave to appeal question of law – #423”P.E.I. – set aside application invoking arbitral misconduct is neither a judicial review nor an appeal – #422
In Charlottetown Equities Ltd. v. Charlottetown Airport Authority Inc., 2020 PESC 41, Madam Justice Nancy L. Key dismissed a set aside application which alleged arbitral misconduct. Stating that an applicant must support its allegation of bias by evidence, Key J. reminded that “the threshold for a finding of bias is high and suspicion is not enough”. Key J. confirmed that a set aside invoking misconduct constituted neither a judicial review nor an appeal and stressed that she must base her review on the record as a whole. The record included two (2) e-mails exchanged between the party appointed arbitrators which Key J. described as “vital” to her decision. Those e-mails formed part of the record on which the Chair had based his decision and, having been referenced by the Chair in his reasons, allowed Key J. to qualify the Chair’s reasons as sufficient. Key J. determined that applicant had agreed to the process by which the arbitration panel’s terms of reference had been drafted and, having contributed to and approved of those terms, could not afterwards allege that a panel member showed bias by drafting those terms.
Continue reading “P.E.I. – set aside application invoking arbitral misconduct is neither a judicial review nor an appeal – #422”Ontario – leave denied to commence derivative action subject in part to arbitration – #421
In Hevey v. Wonderland Commercial, et al., 2021 ONSC 540, Mr. Justice Spencer Nicholson refused leave to commence a derivative action in which part of the dispute was subject to arbitration before an accountant. Each of the parties to the proposed derivative action indicated they had “made every effort to nominate an accountant to arbitrate pursuant to the Settlement Agreement and that the other side was non-cooperative in the process”. Nicholson J. determined that the parties’ contract provided a mechanism for dealing with the dispute and, despite “superficial attempts to comply”, the parties could remit the matter to arbitration. Bringing an action in respect of that part of the dispute “does not appear necessary”.
Continue reading “Ontario – leave denied to commence derivative action subject in part to arbitration – #421”Supreme Court – for those SCC justices willing to consider it, Vavilov applies to private commercial arbitration where legislation provides for appeal – #420
Canada’s Supreme Court in Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District, 2021 SCC 7 offered to clarify a contracting party’s duty to exercise in good faith a discretion granted to it by contract and recognized in Bhasin v. Hrynew, 2014 SCC 71. In dismissing the appeal from Greater Vancouver Sewerage and Drainage District v. Wastech Services Ltd., 2019 BCCA 66, the Supreme Court upheld a decision in first instance to set aside a private, commercial arbitration award. The appeal presented an opportunity for the Supreme Court to consider the effect, if any, of Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 on the standard of review principles applicable to appeals of commercial arbitration awards set out in Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 and Teal Cedar Products Ltd. v. British Columbia, 2017 SCC 32.
Regarding that opportunity, six justices preferred to “leave [it] to another day” while the other three chose to embrace it, considering that to “leave this undecided is to invite conflict and confusion”. The six reasoned that they did not have the benefit of submissions on that question or the assistance of reasons on point from the courts below and that, in any event, the appeal’s outcome did not depend on identifying whether the proper standard of review was correctness or reasonableness.
Three justices acknowledged “important differences between commercial arbitration and administrative decision‑making” but declared that such differences do not affect the standard of review where legislation provides for a right of appeal. Drawing on Vavilov which explained that “a legislative choice to enact a statutory right of appeal signals an intention to ascribe an appellate role to reviewing courts”, the three held that Vavilov had “displaced” the reasoning in Sattva and Teal Cedar. “Concluding otherwise would undermine the coherence of Vavilov and the principles expressed therein”. The three limited the scope of their determination. “Our conclusion on this point is limited to the specific statutory provision at issue. In every case, the question is one of legislative intention, as reflected in the language of the statute”.
Independent of the above, the six justices also expressly agreed with B.C.’s Attorney General that, when granting leave to appeal, courts should “simply and precisely” state questions of law upon which they grant leave in order to prosecute appeals efficiently. The six observed that the “complicated formulation of the first question of law” made it difficult for the courts below to provide a direct and effective answer.
Continue reading “Supreme Court – for those SCC justices willing to consider it, Vavilov applies to private commercial arbitration where legislation provides for appeal – #420”N.W.T. – Court applies Vavilov to commercial arbitration awards subject to statutory right of appeal – #419
In Northland Utilities (NWT) Limited v. Hay River (Town of), 2021 NWTCA 1, N.W.T.’s Court of Appeal held that Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65’s revised framework applies to commercial arbitration awards reviewed as a result of a statutory right of appeal. “It is difficult to follow the argument that the reliability of Canada as a forum for resolution of local and global business disputes, would be rendered less grounded in the rule of law in a rules-based system of law by employing an appellate review standard”. The Court distinguished appeal wording in the N.W.T.’s domestic arbitration legislation from the former B.C. domestic arbitration legislation considered in Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 (CanLII), [2014] 2 SCR 633 and Teal Cedar Products Ltd. v. British Columbia, 2017 SCC 32 (CanLII), [2017] 1 SCR 688. Vavilov’s omission of any mention of commercial arbitration did not argue for or against its extension. “Silence cuts both ways”. The Court did not comment on whether Vavilov applied to awards arising from contracts which contained no right of appeal and where no statute provided such right. Note: the agreement to arbitrate in issue ought to qualify as a statutory arbitration and not a consensual arbitration as it was not negotiated but imposed under section 91(5) of the Cities, Towns and Villages Act, SNWT 2003, c 22, Sch B.
Continue reading “N.W.T. – Court applies Vavilov to commercial arbitration awards subject to statutory right of appeal – #419”B.C. – T’s responses to F’s mediation efforts justify delayed oppression remedy petition, qualify as component of oppressive conduct – #418
In Gierc Jr. v. Wescon Cedar Products Ltd., 2021 BCSC 23, Madam Justice Catherine Murray determined that Petitioner’s “reasonable efforts to mediate and settle the matter” served two (2) purposes: to rebut Respondents’ allegations of Petitioner’s undue delay to apply for oppression remedy under the Business Corporations Act, SBC 2002, c 57 and to qualify Respondents’ own conduct as oppressive.
Continue reading “B.C. – T’s responses to F’s mediation efforts justify delayed oppression remedy petition, qualify as component of oppressive conduct – #418”N.L. – court’s efforts to case manage procedure and focus dispute overlap with arbitration’s benefits – #417
To assist the parties to reach the merits and perhaps resolve related issues not squarely before the court, Mr. Justice Glen L.C. Noel in Oleynik v. Kachanoski, 2021 NLSC 4 wielded four (4) different procedural tools when adjudicating a procedural dispute: (i) assume case management; (ii) encourage elimination of preliminary procedural initiatives; (iii) ‘direct’ alternative dispute resolution; and, (iv) caution costs. Only (i) and (iv) were within Noel J.’s express jurisdiction to order. Lacking jurisdiction under (ii) to prevent Respondent altogether from presenting its preliminary application or (iii) to impose mediation, Noel J. did expressly urge or “direct” consideration of the options. Noel J.’s efforts reflect the courts’ genuine interest in assisting parties to either reduce or focus their disputes and incur less time and cost. Those efforts overlap with the benefits commonly expected in arbitration and expressly urge litigants to seek out those benefits.
Continue reading “N.L. – court’s efforts to case manage procedure and focus dispute overlap with arbitration’s benefits – #417”B.C. – court adjourns its assistance to issue subpoenas approved in international commercial arbitration – #416
Despite having “no difficulty accepting” the arbitrator’s conclusion that non-party witnesses had testimony “relevant to the issues in the Arbitration and material to its outcome”, Mr. Justice Gordon C. Weatherill in Octaform Inc. v Leung, 2021 BCSC 73 opted to adjourn an arbitral party’s applications to issue subpoenas in assistance of an arbitration conducted under the International Commercial Arbitration Act, RSBC 1996, c 233. Weatherill J. did affirm that arbitrations are “autonomous, self-contained, self-sufficient processes”, did acknowledge that “[i]t is the task of the Arbitrator to determine the truth” and did note that the arbitrator had not varied his initial approval of the subpoenas request after having participated in fourteen (14) days of hearing. Nonetheless, Weatherill J. considered the applications “premature”. He commented on whether one witness had been duly contacted and recorded that the other witness had set conditions on potentially attending. The witnesses did have over three (3) months between service of the October 9, 2020 applications and the January 14, 2021 hearing at which the witnesses were represented and could have addressed any concerns about willingness to participate. Weatherill J. still opted to see whether either witness in the future “unreasonably refuses to provide written evidence in chief and attend the hearing of the Arbitration for viva voce examination in chief, cross-examination and re-examination”. At that future time he advised “I will consider issuing the requested subpoenas”.
Continue reading “B.C. – court adjourns its assistance to issue subpoenas approved in international commercial arbitration – #416”Québec – no legal principle to support applying competence-competence for mediation – #415
In a proposed class action involving claims under an insurance policy for indemnification for business interruption due to COVID-19 measures, Mr. Justice Gary D.D. Morrison in 9369-1426 Québec inc. (Restaurant Bâton Rouge) v. Allianz Global Risks US Insurance Company, 2021 QCCS 47 referred the parties to mediation and arbitration and dismissed the application for authorization. While Québec law did not state that parties to an insurance contract can submit their disputes to arbitration, it also does not stipulate that they cannot. The Code of Civil Procedure, CQLR c C-25.01’s class action provisions are procedural and do not modify substantive law or create jurisdiction for the courts over disputes which parties have lawfully excluded. Having relied in part on proportionality to refer the parties, Morrison J. declined to comment on whether his order would “require each individual insured to proceed by way of the lengthy and costly dispute resolution process, which may discourage many from exercising their rights”. Morrison J. also held that competence-competence does not arise in referral to mediation “as there exists no legal principle in support of such an approach”.
Continue reading “Québec – no legal principle to support applying competence-competence for mediation – #415”