Alberta – Why arbitration needs the courts – and vice versa – #650

In Benke v Loblaw Companies Limited, 2022 ABQB 461, Justice Feasby called for a “culture change” in the courts to “create an environment promoting timely and affordable access to the civil justice system” (quoting Justice Karakatsanis in Hyrniak v Mauldin, 2014 SCC 7 at para. 2) to avoid a “large-scale exodus” from the courts to arbitration. He took an expansive view of the court’s power to decide a case by summary trial as one way to move away from the conventional trial and solve the problem. He also commented on why we should not want all commercial disputes to be decided by arbitration.

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Alberta – SCC Wastech decision applies to exercise of arbitrator’s discretion to resign – #647

In SZ v JZ, 2022 ABQB 493 Justice Marion agreed to hear an application for urgent relief, despite the Respondent’s position that he had no jurisdiction. The Respondent argued that the parties were engaged in arbitration until the Arbitrator resigned unilaterally; however, the parties’ arbitration agreement continued to be enforceable. Justice Marion disagreed. He found that the Alberta Arbitration Act, RSA 2000, c A-43 (Arbitration Act) and the arbitration agreement (to which the Arbitrator was a party) allowed the Arbitrator to resign and that because the parties agreed to arbitration only before the specific Arbitrator appointed, upon his resignation, the arbitration terminated. However, the Arbitrator was required to exercise his discretion to resign reasonably and in good faith, including in a manner that was consistent with the purposes for which the discretion was provided in the contract,  in accordance with the Supreme Court of Canada decision in Wastech Services Ltd v Greater Vancouver Sewage and Drainage District, 2021 SCC 7. There was no suggestion that he had not done so.

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Alberta – Extra hurdle for appeals under s. 44(3) of Alberta Arbitration Act – #642

In Schreiner v Vistas at Callaghan Ltd, 2022 ABQB 472, Justice Davidson dismissed an application for leave to appeal an arbitral award, in part, on the basis that the issue raised by the applicant was a matter “squarely before the arbitrator” and was decided by her. Section 44(3) of the Alberta Arbitration Act, RSA 2000, c A-43 provides that no appeal lies on a question of law expressly referred to the arbitrator.

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Alberta – Preliminary “ruling” on jurisdiction not an “award” – #637

In Brazeau (County) v Drayton Valley (Town), 2022 ABQB 443, Justice Davidson considered the timeliness of an application for judicial review of both an arbitrator’s preliminary ruling on jurisdiction and the final award. The issues raised on the application are relevant beyond the statutory tribunal regime under the Municipal Government Act, RSA 2000, c M-26 (the “MGA”) and have broader significance. Of most interest is: (1) Justice Davidson’s determination that the limitation period for a challenge to an award begins to run only once there has been compliance with the statutory formalities of an award, including the requirement that it be signed; and (2) Justice Davidson’s conclusion that an application for ”judicial review” of an arbitrator’s preliminary jurisdiction “ruling” must be made within 30 days after it is released, and cannot be challenged as part of a review of the final award, even if it is sent to the parties again as an attachment to the final award. It is not part of the final award.

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Alberta – No set aside for document disclosure complaints – #633

In ENMAX Energy Corporation v. TransAlta Generation Partnership et al, 2022 ABCA 206, the Alberta Court of Appeal (Paperny, Rowbotham, and Strekaf, JJA) upheld the chambers justice’s decision to refuse to set aside an arbitral award (the “Award”) under section 45(1)(f) of the Alberta Arbitration Act, RSA 2000, c A-43 (the “Act“). It agreed that the (“Tribunal”) document disclosure rulings of the arbitral tribunal (“Tribunal”) in relation to a narrow sub-issue did not prevent the Appellants from making their case, nor did it result in manifest unfairness. Among other things, the Court of Appeal found that the Tribunal did not foreclose the possibility of further document production, but that it was the Appellants who opted not to apply for the records whose absence they now complained about. The Court also held that, when viewed in context, the Tribunal relied on other evidence to reach its conclusion and the absence of the records sought by the Appellants did not preclude them from presenting their case.

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Alberta – Appeal/set aside not designed to “save the parties from themselves” – #631

In Singh v Modgill, 2022 ABQB 369, Justice Feasby denied the Applicants’ application to set aside and for permission to appeal an arbitral award pursuant to sections 44(2) and 45 of the Alberta Arbitration Act, RSA 2000, c A-43. On the eve of trial and after 15 years of litigation, the parties submitted their dispute to a mediation-arbitration process. The process was set out in a written agreement and provided that there would be no oral hearing and that the arbitrator was required to deliver an award within 5 days. Justice Feasby described this process as “quick and dirty”; the parties “designed a process that prioritized expediency”. The principle of party autonomy allowed the parties to choose a process that was a “departure from the norms of natural justice” and the Applicants could not now complain. He expressed the view that “the arbitrator was stuck with the process designed by the parties” and that now that the Applicants had received an unfavourable decision from the arbitrator, they had “buyer’s remorse”. An appeal or set aside application was not designed to “save the parties from themselves.

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