Alberta Archives - Page 3 of 10 - Arbitration Matters

August 11, 2022August 11, 2022

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.

July 29, 2022August 2, 2022

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.

July 15, 2022July 14, 2022

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.

July 5, 2022July 5, 2022

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.

June 23, 2022June 20, 2022

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.”

June 6, 2022May 27, 2022

Alberta – Appeal process under s. 44(2) of the Arbitration Act clarified – #623

In Esfahani v. Samimi, 2022 ABCA 178, the Court of Appeal for Alberta set out the procedure to be undertaken by the Court of Queen’s Bench when an arbitral award is appealed under s. 44(2) of the Arbitration Act, RSA 2000, c A-43. It states that if the arbitration agreement does not provide that the parties may appeal an award to the court on a question of law, a party may, with the permission of the court, appeal an award to the court on a question of law. The Court of Appeal held that the procedure is as follows: (a) an appeal does not exist unless permission to appeal is granted; (b) if parties do not make the required election in their arbitration agreement, permission to appeal is required and will be granted on questions of law only, subject to s 44(3) of the Arbitration Act (which provides that a party may not appeal an award to the court on a question of law that the parties expressly referred to the arbitral tribunal for decision); and (c) an application for permission to appeal must be heard and decided first, and separately, not contemporaneously with the appeal of the arbitral award.

March 1, 2022May 4, 2022

Alberta – Previous arbitral award did not create res judicata for regulator – #589

In TransAlta Corporation v Alberta (Utilities Commission), 2022 ABCA 37, TransAlta Corporation (“TransAlta”) argued on appeal that the Alberta Utilities Commission (“AUC”) erred in law when it refused TransAlta’s application to decide, as a preliminary matter, that certain issues were rendered res judicata by a previous arbitral award arising out of a dispute between TransAlta and a legislated entity called the “Balancing Pool”. The majority of the Court of Appeal dismissed the appeal as: (1) the AUC decision was an interlocutory ruling in an unfinished proceeding and the AUC may ultimately agree with the arbitral award; and (2) the AUC did not err when it refused to apply res judicata as a preliminary matter as it was making a decision in a different statutory context than the arbitral tribunal.

February 11, 2022May 4, 2022

Alberta –No appeal of decision refusing leave to appeal arbitration award, despite s. 48 of Alberta Arbitration Act – #583

In 719491 Alberta Inc v Canada Life Assurance Company, 2021 ABCA 419, a three-member panel of the Court of Appeal of Alberta denied the applicant’s requests (i) for permission to appeal the chambers judge’s order refusing leave to appeal the arbitration award (the “Leave to Appeal Request”)and (ii) for permission to appeal the chambers judge’s dismissal of its application to set aside the award (the “Set Aside Request”). As a preliminary matter on the Leave to Appeal Request, the applicant asked the Court to reconsider its previous decision in Sherwin-Williams Company v. Walls Alive (Edmonton) Ltd., 2003 ABCA 191(“Sherwin-Williams”), which held that leave to appeal decisions are not appealable to the Court of Appeal under s. 48 of Alberta’s Arbitration Act, RSA 2000, c A-43 (the “Arbitration Act”). Section 48 provides, in relevant part, that an appeal from the decision of the Court of Queen’s Bench on an appeal of an award (s. 44) may be made to the Court of Appeal with leave. However, based on the case law on the test for leave to reconsider a previous decision, which includes whether the decision has some “obvious, demonstrable flaw,” the Court denied leave and ruled that it did not have jurisdiction to hear the Leave to Appeal Request. The Court similarly rejected the applicant’s Set Aside Request based on the finding that the chambers judge did not err in holding that the arbitrator did not exceed his jurisdiction.

October 22, 2021May 4, 2022

Alberta – Award was “abbreviated” to save time and costs – #544

In Alvarez v Alvarez, 2021 ABQB 717, Justice Malik denied leave to appeal an arbitrator’s award on a question of law pursuant to section 44(2) of the Arbitration Act, RSA 2000, c. A-43. He found that no question of law was raised. However, the case raises issues concerning s. 44(1) of the Act, which allows a party to ask the tribunal to “correct typographical errors, errors of calculation and similar errors in the award” and s. 40, which permits a party to ask the tribunal to “explain any matter” in the award. The arbitrator issued an Award, and later at the request of the applicant, a Corrected Award, which included a “nominal correction”. It also addressed the applicant’s requests for correction, but made no changes to the Award. Before Justice Malik, the applicant argued (unsuccessfully) that the Award and Corrected Award contained errors of law. Justice Malik noted that the, “[a]rbitrator acknowledged that the Award was abbreviated to save time and costs, that just because he had not set out every fact or argument did not mean he had not considered them, and that a party could request additional reasons should they wish to pay the additional cost.” The applicant argued on the application for leave to appeal that the arbitrator had not explained his Award sufficiently. The decision does not indicate whether the parties requested an abbreviated award to save time and costs. The Award was issued 8 months after the close of hearings.

August 5, 2021May 4, 2022

Alberta – Court finds that submissions of counsel and opinions and ruling of arbitrator in a quashed arbitration inadmissible – #516

In Flock Estate v. Flock, 2019 ABCA 194, the Alberta Court of Appeal (Mr. Justice Frans Slatter, Madam Justice Myra Bielby and Mr. Justice Thomas W. Wakeling) overturned the chambers justice’s decision to admit affidavit evidence referring to a related arbitration in respect of which the award was ultimately quashed and found to be a nullity. The Court found there was a distinction on the one hand between—the arbitrator’s opinion and ruling about what should happen in that case (which is not evidence of anything other than his personal opinion) and counsel’s submissions (which is not evidence but argument)—and on the other hand, actual evidence put before the arbitrator. The former held no probative value and was inadmissible. With respect to the latter, the Court held that the sworn testimony given by the parties during the arbitration ”might” be admissible, but that the related exhibits were presumptively inadmissible.