In Alanen v. Elliott, 2019 ABCA 290, Madam Justice Elizabeth Hughes reiterated that the Court of Appeal had no jurisdiction to grant permission to appeal an arbitration award “outright”, its jurisdiction limited to appeals of Court of Queen’s Bench decisions under sections 44, 45 and 47 of Alberta’s Arbitration Act, RSA 2000, c A-43. By declining to deal with the initial appeal from an interim costs award, the chambers judge had issued no decision subject to the Court of Appeal’s jurisdiction under that legislation. The reasons also illustrate the role of interim costs to ensure that arbitration process moves forward while treating parties equally and fairly and giving parties opportunity to present their case and respond to the other party’s.
Continue reading “Alberta – decision illustrates role of interim costs to ensure arbitration process moves forward – #220”Saskatchewan – litigants’ autonomy to consent to drop dead orders not contrary to public policy – #219
In Gustafson v. Future Four Agro Inc., 2019 SKCA 68, Saskatchewan’s Court of Appeal upheld the litigants’ agreement to dismiss a party’s Statement of Defence and Counterclaim for failure to complete an agreed-upon procedural step by the date set. The Court held that such agreements are “Contracts” which can be enforced by a consent order and do not constitute contracting out of legislation designed to protect the public interest. The reasoning can apply by analogy to procedural agreements made and enforced in arbitration.
Continue reading “Saskatchewan – litigants’ autonomy to consent to drop dead orders not contrary to public policy – #219”Ontario – “agree to be bound” less effective than “final and binding” in excluding appeal – #218
In Diorite Securities v. Trevali, 2019 ONSC 4225, Mr. Justice Laurence A. Pattillo held that determining whether parties intended to exclude a right of appeal required analysis of both the actual wording in their agreement and the circumstances surrounding its negotiation. The application for leave to appeal involved an agreement entered into before Ontario’s Arbitration Act, 1991, SO 1991, c 17, a time at which no appeal was provided on even questions of law. The 1990 agreement required Pattillo J. to consider whether the parties’ wording disclosed an intention to allow or deny appeals on a question of law and whether the award contained a “rare” extricable question of law.
Continue reading “Ontario – “agree to be bound” less effective than “final and binding” in excluding appeal – #218”B.C. – agreement to accept summary reasons is not acceptance of insufficient reasons – #217
Despite the parties’ agreement that the arbitrator provide only summary reasons, Mr. Justice J. Christopher Grauer in Nolin v. Ramirez, 2019 BCSC 934 determined that the arbitrator’s brief reasons were insufficient to withstand review on a standard of reasonableness. Grauer J. held that even summary reasons require more than just a conclusion. Because he lacked jurisdiction to substitute his own decision for that of the arbitrator and, in the event, could not say that the arbitrator had gotten the issues wrong, he remitted the issues to the arbitrator for reconsideration.
Continue reading “B.C. – agreement to accept summary reasons is not acceptance of insufficient reasons – #217”Manitoba – willingness to arbitrate must be reciprocated and not just “most efficient” – #216
In considering interim measures sought in shareholder oppression litigation, Madam Justice Candace Grammond in Gershkovich et al. v. Sapozhnik et al., 2019 MBQB 115 declined to order the parties to undertake arbitration. Despite Respondents’ willingness to have the shareholder dispute decided in, what Respondents believed was, “the most efficient manner”, Grammond J. noted that Respondents did not allege the court lacked jurisdiction or the parties were bound by a pre-existing agreement to arbitrate. Grammond J. did confirm that she would hear the oppression remedy unless the parties consented to arbitration and Respondents applied to compel arbitration.
Continue reading “Manitoba – willingness to arbitrate must be reciprocated and not just “most efficient” – #216”Alberta – creature of statute, non-party can initiate arbitration where same legislation imposes its obligations and arbitration – #215
In TransAlta Generation Partnership v. Balancing Pool, 2019 ABCA 318, the Alberta Court of Appeal upheld dismissal of a challenge to arbitration initiated by an entity which was created by legislation but was not party to contracts stemming from the legislation. The Court determined that the statutory scheme which created the non-party did not limit its right to dispute its significant financial obligations to compensate the contracting parties in certain disputes. The Court’s handling of the implied exclusion rule lends itself to other legislative schemes created in the public interest.
Continue reading “Alberta – creature of statute, non-party can initiate arbitration where same legislation imposes its obligations and arbitration – #215”Ontario – administering institution granted leave to intervene in challenge to appellate arbitral award – #214
In Re/Max All-Stars Realty Inc. v. Real One Realty Inc., 2019 ONSC 4956, Master Michael P. McGraw granted leave to an real estate industry association to intervene in a challenge to an award issuing from a process it administered. Master McGraw held that the association was uniquely placed to make a useful contribution to the determination of the issue regarding the history/purposes of the arbitration rules prohibiting court litigation and how interpretation of those prohibitions may affect other arbitral provisions. Contrast this reasoning/result with HZPC Americas v. Skye View Farms, 2018 PESC 47 (CanLII) which determined that an arbitral institution would not contribute anything useful to an appeal involving excess of jurisdiction of the institution’s arbitration rules. See the Arbitration Matters note “P.E.I. – arbitral institution denied leave to intervene in jurisdiction-based challenge to arbitral award”.
Continue reading “Ontario – administering institution granted leave to intervene in challenge to appellate arbitral award – #214”Saskatchewan – arbitrator’s mentions of “in my experience” insignificant and raise no question of law – #213
In Graham Design Builders LP v. Black & McDonald Limited, 2019 SKQB 161, Mr. Justice G.M. Currie denied leave to appeal on a question of law because the arbitrator’s repeat mention of “in my experience” did not qualify as taking arbitral notice of a practice in the relevant market. Rather, the remarks were “mere passing comments” which did not affect the award based on the factual matrix in evidence and relevant contractual provisions. In a subsidiary analysis, Currie J. did accept that, had one of the challenges qualified as a question of law, he would have considered it important enough to grant leave to appeal by applying a $1 million threshold he identified as ‘significant’ in his one of his earlier decisions.
Continue reading “Saskatchewan – arbitrator’s mentions of “in my experience” insignificant and raise no question of law – #213”Ontario – no forgiving liability or forgetting facts when counsel apologizes in court on client’s behalf – #212
In Pollard Windows Inc. v. 1736106 Ontario Inc., 2019 ONSC 4859, Ontario’s Divisional Court held a litigant to submissions made by its counsel in court, determining that the provisions of Ontario’s Apology Act, 2009, SO 2009, c 3 did not serve to exclude the apology and admission of liability. Because the Apology Act expressly stipulates that it applies to arbitration, the Court’s reasons regarding the combined effect of counsel’s ostensible authority and the characteristics of an apology apply to arbitration as well.
Continue reading “Ontario – no forgiving liability or forgetting facts when counsel apologizes in court on client’s behalf – #212”Alberta – couple unable to litigate property dispute they agreed to delegate to parents – #211
In Mahajan v. Mahajan, 2019 ABQB 495, Mr. Justice Michael J. Lema stayed a divorce proceeding to provide time for the couple’s four (4) parents to resolve a property dispute delegated to them by the couple in their post-separation agreement. Lema J. held that no uncertainty existed regarding who would resolve the dispute but only uncertainty as to how they would do so.
Continue reading “Alberta – couple unable to litigate property dispute they agreed to delegate to parents – #211”