Alberta Archives - Arbitration Matters

February 24, 2025February 24, 2025

Alberta – Arbitration agreement did not bind non-signatory beneficiary under container contract – #896

In Husky Oil Operations Limited v Technip Stone & Webster Process Technology Inc, 2024 ABCA 369, the Court found that a non-signatory beneficiary under a contract was not bound by an arbitration agreement contained in it. The Court found the arbitration agreement did not contain the “clear and explicit language” it deemed necessary to bind the non-signatory.

February 7, 2025February 10, 2025

Alberta – Court rejects Ontario approach to stays of enforcement – #892

In Inter Pipeline Ltd v Teine Energy Ltd, 2024 ABKB 740 (“Inter Pipeline”), the Court set out the three-part test a party must meet to obtain a stay of enforcement of a domestic arbitration award in Alberta, rejecting as “not principled” the two-part test that applies in Ontario. The Court also addressed the argument that refusing a sealing order in these circumstances would put a chill on challenges to arbitral awards.

December 20, 2024December 13, 2024

Alberta – Arbitrator’s Resignation does not terminate arbitration – #882

In Belanger v Pokol, 2024 ABKB 646, the Court dismissed an application by a party to the dispute to “be released from arbitration.” The Applicant argued that the resignation of the arbitrator following allegations of reasonable apprehension of bias effectively terminated the arbitration. The Court found that since the arbitration agreement provided for the appointment of a substitute arbitrator in the event of the arbitrator’s resignation, the arbitration was not terminated, and the parties were bound to continue. He ordered the parties to attempt to agree on a new arbitrator, failing which either party could apply to the Court to have one appointed.

November 20, 2024November 15, 2024

Ontario – Court endorses pre-hearing disclosure from non-parties to assist arbitration – #876

In Royal and Sunalliance Insurance v Ontario Provincial Police, 2024 ONSC 5505, the Court interpreted section 29(4) of Ontario’s Arbitration Act, 1991 (the “Act”) to allow courts to order non-party disclosure before an arbitration hearing. Section 29(4) states, “[o]n the application of a party or of the arbitral tribunal, the court may make orders and give directions with respect to the taking of evidence for an arbitration as if it were a court proceeding.” The Court’s order permits pre-hearing “discovery” of a non-party to the arbitration, as opposed to the taking of evidence at a hearing. The case sets out some considerations that may be relevant to future applications under this provision of the Act. This case highlights the need for parties seeking non-party disclosure in arbitration to carefully review the applicable legislation and frame requests for Court assistance accordingly.

October 9, 2024October 11, 2024

Alberta – Arbitrator’s issuance of award without all evidence was an error of law – #867

In Giacchetta v Beck, 2024 ABKB 481 (CanLII) (“Giacchetta”), the Court held, in the context of an arbitration conducted under Alberta’s Arbitration Act, RSA 2000 c A-43 (the “Act”), that it is an error of law for an arbitrator not to consider all the evidence. Here, the arbitrator stated that he had rendered his award without considering all the evidence and said that, “there may have been an obligation on my part to have requested a copy once I realized that I did not have it…”. This resulted in a finding that the arbitrator’s reasons were insufficient, which also amounted to an error in law.

September 13, 2024September 9, 2024

Alberta – Statutory Framework of Arbitral Appeals Clarified – Leave or No Leave? – #862

In Sivitilli v PesoRama Inc, 2024 ABCA 249, a single justice of the Alberta Court of Appeal set out and clarified the statutory framework for appeals to the Court of Appeal arising from challenges to arbitrations made on the basis that: (1) the arbitration agreement is invalid (s. 47 of the Arbitration Act); or (2) that court intervention is needed to prevent unfair or unequal treatment of a party to an arbitration agreement (s. 6(c)). The appeal route to the Court of Appeal for challenges brought pursuant to s. 47 of the Arbitration Act, RSA 2000, c A-43, which includes allegations that the arbitration agreement is invalid, expressly requires leave of the Court of Appeal. The appeal route for challenges to arbitrations made pursuant to s. 6, such as allegations that court intervention is needed to prevent unfair or unequal treatment of a party, are not addressed in the Arbitration Act, and therefore decisions of the first instance court are subject to a general right of appeal under the Alberta Rules of Court. No permission is required to appeal a decision under s. 6.

July 2, 2024July 2, 2024

Alberta – Arbitrator not functus for issuing consent award after party denied settlement – #844

In Caroll v Caroll, 2024 ABKB 227, the Court found that the Arbitrator was not functus officio for issuing a Consent Award after a settlement was reached in a med-arb process. One party denied the settlement but argued that, in any event, the Arbitrator’s jurisdiction was over after the settlement agreement and it was improper to “crystallize” the agreement into the Award. The Court dismissed this argument and found that there was a settlement. And the process was not unfair. The Arbitrator did not “conflate” the mediation and arbitration phases of the proceeding by terminating the proceeding after the settlement agreement rather than proceeding to arbitration once one party denied the settlement.

March 25, 2024March 22, 2024

Alberta – A potential expansion of the exceptions to the competence-competence principle? – #823

In Orica Canada Inc v ARVOS GmbH, 2024 ABKB 97, the Court applied, and possibly expanded, the exception to the competence-competence principle that allows a Court to resolve a jurisdictional claim if there is a real prospect that referring the issue to arbitration would mean that it is never resolved. The Court also determined that, in an action between two parties without an arbitration agreement, where the defendant raises claims against a third party subject to an arbitration agreement, those third party claims cannot be included in the action and must be determined by arbitration, even if they are related to the issues between the plaintiff and defendant in the main action. However, any third party claims that are not subject to the arbitration agreement can proceed in the action.

November 22, 2023November 22, 2023

Alberta – “Admissions” made by party in arbitration did not bind it in action – #795

In Paramount Resources Ltd. v Chubb Insurance Company of Canada, 2023 ABKB 627, Paramount, an oil and gas company, sued its insurers as a result of their denial of coverage with respect to an incident involving environmental contamination following a leak in a pipeline carrying natural gas condensate. The insurers asserted that the leak was “detected” outside the period required for coverage under the policy. This action proceeded in parallel with an arbitration between Paramount and its co-owner and operator of the pipeline, over whether Paramount was required to share in the remediation costs. Paramount settled the arbitration, paying less than the amount claimed by the operator. In the action, Paramount sought damages from the insurers in an amount equal to the settlement payment. The insurers defended, in part, on the basis that Paramount had made admissions in the arbitration which were fatal to its action against the insurers. The court rejected those arguments. First, Paramount was entitled to make alternative arguments in the arbitration. Second, there was a risk of inconsistent results in the two proceedings, including on whether there was coverage under the policies, which was important context. Third, Paramount was fully transparent in its strategy and the insurers did not rely upon Paramount’s “admissions”. Finally, Paramount’s “admissions of fact” as to when the leak was “detected” in the arbitration were issues of mixed fact and law in the action because they turned on the interpretation of the words “detected” and “discover” under the policy. The court found that the settlement was reasonable and awarded Paramount damages equal to the settlement amount for the insurers’ breach of contract.

November 7, 2023November 3, 2023

Alberta – Non-signatory principal bound by its agent’s arbitration agreement – #789

In LAPP Corporation v. Alberta, 2023 ABKB 566, the Court overruled the arbitrator’s decision in which he found that he had no jurisdiction over the Government of Alberta. In a de novo hearing pursuant to s. 17(9) of the Alberta Arbitration Act, R.S.O. 2000, c. A-43, the Court concluded that Alberta was bound by the arbitration agreement included in an Investment Management Agreement (IMA) between three Alberta public pension plans (Funds) and Alberta Investment Management Corporation (AIMCo). AIMCo is a fully state-owned investment management services provider created by the Alberta Investment Management Corporation Act. The Act specifically provides in Section 3(1) that AIMCo “is for all purposes an agent of the Crown in right of Alberta and may exercise its power and perform its duties and functions only as an agent of the Crown in right of Alberta.” Considering the broad and all-inclusive scope of the provision, the Court found that, while acting within its powers, AIMCo was always acting as Alberta’s agent and never on its own behalf. Alberta, as disclosed principal, was bound by an agreement made by its agent, even though it was not a party to the arbitration agreement.