[:en]In allowing an appeal on a question of law, Mr. Justice Mark T. MacEwan in Greater Vancouver Sewerage and Drainage District v. Wastech Services Ltd., 2018 BCSC 605, ruled that the doctrine of good faith cannot fill gaps left by parties in their contracts. One party’s exercise of its contractual rights can deny the other party’s contractual expectations but will not breach the duty of good faith if their contract contains no express or implied terms to safeguard those expectations. MacEwan J. held that sophisticated parties do leave gaps in their agreements which either might regret even if the situation is “highly unlikely”. Continue reading “[:en]B.C. – court identifies limits to duty of good faith to meet party’s contractual expectations – #062[:]”
[:en]N.L – municipality has authority to agree to arbitration but not to impose it as a condition of regulatory approval – #061[:]
[:en]In 10718 Nfld. Inc. v. St. John’s (City), 2018 NLSC 82, Madam Justice Frances J. Knickle of the Newfoundland and Labrador Supreme Court determined that the City of St. John’s (the “City”), as a creature of statute, had no authority under its enabling legislation to require that parties agree to mandatory arbitration as a condition for the City’s regulatory approval of the grant of a contract. Continue reading “[:en]N.L – municipality has authority to agree to arbitration but not to impose it as a condition of regulatory approval – #061[:]”
[:en]Ontario – arbitral tribunal’s evidentiary record on jurisdiction challenge is not ignored but also does not confine court – #060[:]
[:en]In The Russian Federation v. Luxtona Limited, 2018 ONSC 2419, Mr. Justice Sean F. Dunphy asserted the court’s autonomy vis-à-vis the arbitral tribunal’s evidentiary record when hearing a challenge to that tribunal’s preliminary award on jurisdiction. In the context of a dispute over the admissibility of evidence which had not been before the arbitral tribunal, Dunphy J. determined that a court was neither limited to the tribunal’s findings of fact nor confined by the record relied on by the tribunal to reach its conclusions. Continue reading “[:en]Ontario – arbitral tribunal’s evidentiary record on jurisdiction challenge is not ignored but also does not confine court – #060[:]”
[:en]B.C. – parties cannot waive application of International Commercial Arbitration Act because its application is mandatory – #059[:]
[:en]The B.C. Supreme Court in McHenry Software Inc. v. ARAS 360 Incorporated, 2018 BCSC 586 held that parties could not waive the application of B.C.’s International Commercial Arbitration Act, RSBC 1996, c 233 (“ICAA”) because its application was mandatory. In addition, despite the parties having conducted their entire arbitration according to the Arbitration Act, RSBC 1996, c 55 (“Arbitration Act”), Madam Justice Loryl D. Russell also determined that the party seeking to rely on the ICAA, and its more limited appeal provisions, could not be estopped from doing so as the ICAA was enacted for a public purpose. Continue reading “[:en]B.C. – parties cannot waive application of International Commercial Arbitration Act because its application is mandatory – #059[:]”
[:en]Alberta – legislative rule “unique” to Alberta applied to refuse leave to appeal extricable question of law in multimillion dollar dispute – #058[:]
[:en]In KBR Industrial Canada Co v. Air Liquide Global E&C Solutions Canada LP, 2018 ABQB 257, Alberta’s Court of Queen’s Bench refused leave to appeal a final award by application of the “unique” section 44(3) of Alberta’s Arbitration Act, RSA 2000, c A-43 which stipulates that a party may not appeal a question of law which the parties expressly referred to the arbitral tribunal for decision. In denying leave to appeal, Madam Justice Ritu Khullar added that, in the alternative, if she were mistaken, then that question did not meet the threshold set by section 44(2.1). The latter limits leave to appeal on a question of law only if the court is satisfied that (a) the importance to the parties of the matters at stake in the arbitration justifies an appeal, and (b) the determination of the question of law at issue will significantly affect the rights of the parties. Continue reading “[:en]Alberta – legislative rule “unique” to Alberta applied to refuse leave to appeal extricable question of law in multimillion dollar dispute – #058[:]”
[:en]Ontario – Court of Appeal upholds arbitrator’s decision to “blue pencil” mediation clause having impact on limitation period – #057[:]
[:en]Ontario’s Court of Appeal in PQ Licensing S.A. v. LPQ Central Canada Inc., 2018 ONCA 331 upheld an arbitrator’s decision on a preliminary issue involving the application of a limitation period. The Court of Appeal agreed with the Superior Court which had held that it was reasonable for the arbitrator to sever the mention of “in Delaware” in a mediation clause because that stipulation violated remedial legislation applicable to franchising. The balance of the mediation clause remained valid. Completing the mediation was a condition precedent to triggering the date at which one of the parties could “discover” its claim and delayed triggering the two-year limitation period in Ontario’s Limitations Act, 2002, SO 2002, c 24, Sch B. (“Limitations Act”). Continue reading “[:en]Ontario – Court of Appeal upholds arbitrator’s decision to “blue pencil” mediation clause having impact on limitation period – #057[:]”
[:en]Ontario – court assists arbitration by holding party to its agreement to appoint arbitrator – #056[:]
[:en]The Ontario Superior Court in Overberg v. Aerospace, 2018 ONSC 1720 exercised its jurisdiction under section 6 Arbitration Act, 1991, SO 1991, c 17 to intervene in a private commercial arbitration and enforce respondent’s agreement to accept and confirm the arbitrator nominated by claimants. In doing so, the court assisted the conduct of the arbitration and ensured that the arbitration was conducted according to the parties’ agreement. Continue reading “[:en]Ontario – court assists arbitration by holding party to its agreement to appoint arbitrator – #056[:]”
[:en]Québec – court considers challenge on arbitrator’s procedural irregularities and jurisdiction to issue safeguard orders – #055[:]
[:en]In deciding competing applications to homologate and to annul two arbitral awards and an interim safeguard oder, the Québec Superior Court in Hachette Distribution Services (Canada) Inc. v. 2295822 Canada Inc., 2018 QCCS 1213 set out the standard of review applicable to alleged procedural defects committed during an arbitration and the extent to which an arbitral tribunal can issue orders having an injunctive effect. Continue reading “[:en]Québec – court considers challenge on arbitrator’s procedural irregularities and jurisdiction to issue safeguard orders – #055[:]”
[:en]Saskatchewan – Court of Appeal rules appeal right on court’s jurisdiction not displaced by Arbitration Act – #054[:]
[:en]The Saskatchewan Court of Appeal distinguished appeals under Saskatchewan’s The Arbitration Act, 1992, SS 1992, c A-24.1 (“AA”) from appeals under Saskatchewan’s The Court of Appeal Rules, Sask Gaz April 18, 1997 (“Appeal Rules”). In Saskatchewan v. Capitol Steel Corporation, 2018 SKCA 3, the Court held that a chambers judge’s decision that he had no jurisdiction under the AA was a decision subject to appeal under the Appeal Rules. Continue reading “[:en]Saskatchewan – Court of Appeal rules appeal right on court’s jurisdiction not displaced by Arbitration Act – #054[:]”
[:en]Alberta – Court of Appeal reiterates policy underlying lack of appeals in arbitration matters absent agreement – #053[:]
[:en]An application for leave gave the Court of Appeal in Rusnak v. Canyon Spring Master Builder Inc, 2018 ABCA 2 an opportunity to reiterate the policy behind the lack of an appeal. Applicants sought to appeal a special chambers judge’s refusal to grant them leave to appeal a final award. In refusing leave, the Court of Appeal stated that the lack of an appeal was based on a policy decision which favoured streamlining the dispute resolution process. Continue reading “[:en]Alberta – Court of Appeal reiterates policy underlying lack of appeals in arbitration matters absent agreement – #053[:]”