In Nolin v. Ramirez, 2020 BCCA 274, B.C.’s Court of Appeal set aside part of an arbitration award which rested on the arbitrator’s dismissal of a party’s evidence as suspicious in one context and reliance on it in another. The handling of the evidence was so inconsistent that the Court found it “impossible to understand how the arbitrator came to his conclusion” on the related issues and the arbitrator provided no justification in the summary reasons agreed to by the parties. Without more explanation in the brief reasons and unable to reconcile the findings and conclusions, the Court set aside that portion of the award related to the handling of that evidence.
Continue reading “B.C. – court qualifies parties’ agreement to require only summary reasons as “penny-wise and pound-foolish” – #381”B.C. – award’s short-form reference to party insufficient to refuse recognition and enforcement – #380
Despite ambiguity in the award’s use of a “short-form reference” to refer to the winning party, B.C.’s Court of Appeal in Macdonald Realty Ltd. v. Metro Edge Holdings Ltd., 2020 BCCA 272 declined to refer the parties back to the arbitration panel to clarify the name as doing so would be an “unnecessary expense to the parties and would not change the result”. The Court held that, despite the variation in the legal name, the award and decision in first instance validly identified the winning party. The Court also readily dismissed post-award challenges, in first instance and on appeal, limited to contesting the facts in dispute. The court reminded challengers that such an approach is misdirected given that an application to recognize and enforce an award is not a hearing on merits of the arbitrated dispute.
Continue reading “B.C. – award’s short-form reference to party insufficient to refuse recognition and enforcement – #380”B.C. – “standard to interfere” with awards is “very high” to protect “speedy and final” resolution – #379
In Bosa Properties (Sovereign) Inc. v. The Owners, Strata Plan EPS2461, 2020 BCSC 1357, Madam Justice Neena Sharma reiterated that the “standard to interfere” with an arbitration award is “very high” because “people who choose commercial arbitration have elected to resolve their disputes in a forum that is speedy and final, without the intervention of the courts”. Sharma J. observed that one of the purposes of the standard “is to discourage appeals to the court”, referring to earlier Ed Bulley Ventures Ltd. v. Eton-West Construction Inc., 2002 BCSC 826 which held that “[i]f leave were granted too readily, one of the beneficial and distinguishing features of arbitration (its finality) would be lost”.
Continue reading “B.C. – “standard to interfere” with awards is “very high” to protect “speedy and final” resolution – #379”Alberta – court acknowledges litigants’ commercial interest in arbitration as alternative to court litigation – #378
In Hannam v. Medicine Hat School District No. 76, 2020 ABCA 343, Alberta’s Court of Appeal assessed the practical significance of its earlier five (5) judge panel decision in Weir-Jones Technical Services Incorporated v Purolator Courier Ltd, 2019 ABCA 49 which considered the benefits of summary judgment set out in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 SCR 87. In doing so, the majority and dissent both commented on the promised benefits of arbitration in contrast to court litigation. The present note highlights those passages to illustrate contemporary comments by the courts.
Continue reading “Alberta – court acknowledges litigants’ commercial interest in arbitration as alternative to court litigation – #378”Alberta – unambiguous wording on arbitration costs in standard contract does not merit court intervention – #377
In K-Rite Construction Ltd v. Enigma Ventures Inc, 2020 ABQB 566, Madam Justice Donna L. Shelley dismissed challenges to a costs award, holding that awarding costs is discretionary and generally will be a question of mixed fact and law. Shelley J. held that, absent some form of improper consideration, arbitrators have full discretion as to costs, may not be bound by traditional rules regarding the award of costs and using their discretion does not amount to an error of law. Shelley J. also dismissed Applicants’ challenges to the arbitration agreement’s costs provisions contained in an industry-specific contract. Despite the potential importance that standard forms may arguably have in an industry, unambiguous wording does not merit the court’s intervention.
Continue reading “Alberta – unambiguous wording on arbitration costs in standard contract does not merit court intervention – #377”Ontario – court denies tenant relief from forfeiture where tenant disregards arbitration – #376
In Hunt’s Transport Limited v. Eagle Street Industrial GP Inc., 2020 ONSC 5768, Mr. Justice David A. Broad refused to exercise his discretion to grant a commercial tenant relief from forfeiture given tenant’s refusal to abide by its obligation to continue performance during arbitration of its disputes with the landlord. Broad J. held that tenant’s conduct qualified as “wilful” self-help and justified the court in holding tenant to its obligations pending resolution of issues exclusively reserved for arbitration. Tenant’s unilateral decision to withhold payments, prior to their determination exclusively reserved in the lease to the arbitrator, played a key role in Broad J.’s reasons.
Continue reading “Ontario – court denies tenant relief from forfeiture where tenant disregards arbitration – #376”Québec – court relies on post-trial arbitration award to determine value under dispute at trial – #375
In Langlois v. Langlois, 2020 QCCS 2959, Mr. Justice Éric Hardy endorsed the court’s reliance on an arbitration award, which issued after a trial decision, to determine the amount of the value under dispute in court at trial. Hardy J. accepted that the court could use the award to calculate court costs according to a court tariff. The court trial had ordered a buyback of Plaintiffs’ shares due to oppression but also ordered the parties to engage in arbitration to determine the narrower issue of share valuation, as agreed to in their shareholders agreement.
Continue reading “Québec – court relies on post-trial arbitration award to determine value under dispute at trial – #375”B.C. – court’s own “alternate and free” dispute resolution procedures co-exist with private mediation-arbitration – #374
In Otte v. Otte, 2020 BCSC 1408, Mr. John J. Steeves refused to eliminate the court’s own judicial case conference (“JCC”) in favour of enforcing the parties’ contractual agreement to mediate-arbitrate. Observing that the court’s own JCC served as an “alternate and free procedure”, Steeves J. refused to relieve the parties from participating in that procedure, reasoning that parties can “use both, either or neither of arbitration-mediation or a JCC”.
Continue reading “B.C. – court’s own “alternate and free” dispute resolution procedures co-exist with private mediation-arbitration – #374”Ontario – exceptional case grants appeal court jurisdiction over single judge’s decision mistakenly denying leave to appeal – #373
In McEwen (Re), 2020 ONCA 511, Ontario’s Court of Appeal repurposed an exception, developed in its 1996 decision involving leave to appeal an arbitration award, which permitted a three (3) member panel to review the decision of a single judge denying leave to appeal. McEwen (Re) involved a panel’s jurisdiction under Ontario’s Courts of Justice Act, RSO 1990, c C.43 to review the decision of a single judge denying leave to appeal under the Bankruptcy and Insolvency Act, RSC 1985, c B-3. The Court’s reasons highlighted the distinction between (i) leave to appeal decisions which mistakenly decline jurisdiction and (ii) leave to appeal decisions which decide the merits of the application for leave to appeal. Only the former qualifies for the exception to “apparently absolute rule”.
Continue reading “Ontario – exceptional case grants appeal court jurisdiction over single judge’s decision mistakenly denying leave to appeal – #373”B.C. – from litigation to settlement to mediation to repudiation back to litigation on settlement – #372
In Park v. Mitchell, 2020 BCSC 1147, Mr. Justice Robert Johnston dealt with probate issues reserved exclusively to the courts but, in doing so, recorded how parties can move from court litigation, to negotiated settlement, to mediation agreement, to repudiation and back again, attempting to resolve their disputes. His reasons illustrate how court-ordered cross-examination in litigation can lead to information disclosure and/or meetings which occasion negotiated settlements. Those settlements may require mediation which generate agreements but, once repudiated, require the parties to return to their earlier settlement and then to court to enforce that settlement. The dispute resolution sequence prompted Johnston J. to question whether a litigant could enforce a settlement in probate proceedings or be obliged to sue on the settlement in a separate action.
Continue reading “B.C. – from litigation to settlement to mediation to repudiation back to litigation on settlement – #372”