In Canadian Consulting Engineers Inc v. Brazeau (County), 2021 ABQB 464, Master W. Scott Schlosser declined to proceed by way of summary judgment because “this dispute is not now capable of being resolved in a fair and just way on the existing record” and required the assistance of expert opinion witnesses. Master Schlosser observed that plaintiff made “no pretense of applying for a summary determination in the course of an ordinary lawsuit” and that its “strategy appears to have been to prepare this case for Summary Judgment directly”. Having observed plaintiff’s “very ambitious path taken” and desire to “seek expeditious resolution” and having qualified the dispute as unsuitable for summary judgment due to the expert evidence required, Master Schlosser did prompt the parties to engage in the arbitration still available in their contract and, when doing so, to retain “an expert arbitrator”.
Continue reading “Alberta – dispute requiring expert evidence and expeditious resolution prompts court to propose arbitration – #505”Alberta – allocation of lien security to subcontractors adjourned pending arbitration between owners and general contractor – #492
In Avli BRC Developments Inc v. BMP Construction Management Ltd, 2021 ABQB 412, Master Andrew R. Robertson Q.C. adjourned an application for costs claimed against security provided further to an order under Alberta’s Builders’ Lien Act, RSA 2000, c B-7, holding that he could not determine and allocate amounts owing to subcontractors or related costs until a pending arbitration decided the amounts owing between the building owners and the general contractor.
Continue reading “Alberta – allocation of lien security to subcontractors adjourned pending arbitration between owners and general contractor – #492”Alberta – Arbitration Act does not incorporate court’s powers in Rules of Court to extend delays – #489
In Mailer v. Mailer, 2021 ABQB 423, Mr. Justice Michael J. Lema confirmed he had no authority to extend the delay in which to file an application for leave to appeal an arbitration award, noting that the “Arbitration Act [RSA 2000, c A-43] does not provide for extensions of the s. 46 deadlines, whether directly or indirectly e.g. by incorporating the extension powers in the [Alberta Rules of Court, Alta Reg 124/2010]”. The party seeking to challenge the award had filed an appeal as of right within the thirty (30) day delay but did not seek leave within that delay. The parties had agreed that their award “shall be subject to an appeal only on question of law in accordance with s. 44(2) of the Arbitration Act” and Lema J. held that their addition of the phrase “in accordance with s. 44(2)” changed the meaning of the first eleven (11) words, imposing a leave requirement. Though the party appealed in the relevant delay, he failed to comply with the requirements of section 44(2) to seek leave and Lema J. lacked authority to remedy that procedural decision.
Continue reading “Alberta – Arbitration Act does not incorporate court’s powers in Rules of Court to extend delays – #489”Alberta – absent summary judgment motion, stay granted because summary judgment exemption is premature – #481
In Melcor Reit Limited Partnership (Melcor Reit GP Inc) v. TDL Group Corp (Tim Hortons), 2021 ABQB 379, Master W. Scott Schlosser stayed a proceeding because plaintiff’s reliance on the summary judgment exemption in section 7(2)(e) of Alberta’s Arbitration Act, RSA 2000, c A-43 was “at the very least premature”. Master Schlosser held that a party resisting referral to arbitration under section 7(2)(e) must have first filed a summary judgment application and, until doing so, the exemption was not in issue. Master Schlosser also contrasted the state of summary judgment principles applicable when the Arbitration Act was first introduced and the current status of those principles following Hryniak v. Mauldin, 2014 SCC 7 (CanLII), [2014] 1 SCR 87. He noted that “[s]omething now suitable for Summary Judgment is quite different from what might have been suitable when Section 7(2)(e) of the Arbitration Act was passed into law” and “[a]n expansive reading of summary disposition is likely much wider than what was originally intended by the Act”.
Continue reading “Alberta – absent summary judgment motion, stay granted because summary judgment exemption is premature – #481”Alberta – binding valuation of shares not arbitrable, limits claims in litigation over overlapping issues – #472
To resolve the scope of an earlier share valuation and subsequent arbitration unsuccessfully challenging that valuation and their impact on current litigation, Madam Justice Susan E. Richardson in Lischuk v. K-Jay Electric Ltd, 2021 ABQB 280 explored five (5) key legal principles: estoppel by convention, res judicata, issue estoppel, cause of action estoppel and abuse of process by litigation. The parties disputed (i) termination of L’s employment contract with employer K and (ii) valuation of shares held by L’s holding company 997 under a shareholder’s agreement between 997 and employer K. L argued that a reasonable notice period after thirty-five (35) years of employment would extend the date at which his shares would be valued but 997’s contract submitted valuation of the shares as of the date of the termination. Richardson J.’s comments underline (a) the importance of drafting parallel contracts which speak to each other in the event of dispute, (b) the consequences of privity of contract and (c) the binding effect of decisions which the parties agreed would have binding effect.
Continue reading “Alberta – binding valuation of shares not arbitrable, limits claims in litigation over overlapping issues – #472”Alberta – leave to appeal refused when ICC tribunal follows own procedure to bar late-raised ‘arguably complete’ defence – #463
Though she acknowledged that a particular notice provision in the parties’ subcontract “would arguably provide a complete defence”, Madam Justice Johnna C. Kubik in TR Canada Inc v. Cahill Industrial Limited, 2021 ABQB 274 held that the arbitral tribunal committed no breach of procedural fairness or rule of natural justice when it barred a party from relying on that provision for its defence. Kubik J. held that the ICC Rules of Arbitration “empower the tribunal to establish the process by which the dispute will be presented and heard, including with respect to the timing for filing pleadings, the hearing of evidence and the timing of submissions”. Dismissing leave to appeal the ICC tribunal’s award under section 44 of the Arbitration Act, RSA 2000, c A-43, Kubik J. held that the tribunal had “applied its own procedural rules to the record of proceedings, and exercised its discretion, within the powers conferred on it, to bar the defence raised”. Kubik J. accepted that the tribunal was authorized to concluded that failure to plead the notice provisions was “prejudicial to the other party, depriving it of the opportunity to advance responsive evidence and argument.
Continue reading “Alberta – leave to appeal refused when ICC tribunal follows own procedure to bar late-raised ‘arguably complete’ defence – #463”Alberta – “surrounding circumstances” for contract interpretation exclude subjective intentions – #460
In 719491 Alberta Inc. v. The Canada Life Assurance Company, 2021 ABQB 226, Mr. Justice W. Patrick Sullivan dismissed attempts to identify an error of law based on the arbitrator’s handling of surrounding circumstances known at the time of contract formation. Sullivan J. agreed that contract interpretation required reading the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with those surrounding circumstances but disagreed that “surrounding circumstances” included the parties’ subjective intentions. The latter cannot serve to add to, detract from, vary or otherwise overwhelm the agreement’s written words. In obiter, Sullivan J. also endorsed the concurring three (3)’s approach in Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District, 2021 SCC 7 to apply Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 to appeals of commercial arbitration awards.
Continue reading “Alberta – “surrounding circumstances” for contract interpretation exclude subjective intentions – #460”Alberta – arbitrator’s breach of procedural fairness in costs award leads to set aside of award on merits – #455
In Ostergaard v. Uhl, 2020 ABQB 789, Madam Justice Sandra L. Hunt McDonald set aside an award on the merits and its corresponding costs award after determining that the costs award involved a breach of procedural fairness stemming from how the arbitrator determined costs. Recognizing that arbitral tribunals have “extended leeway” to determine their own procedure under section 20 of the Arbitration Act, RSA 2000, c A-43 in order to “ensure, in part, a workable ‘fit’ to address both the needs of the parties before them and the specific issues in play”, Hunt McDonald J. observed that such leeway “does not provide the ability to disregard the rules of natural justice”. Due to “a flood” or “onslaught” of submissions by A following the award on the merits, the arbitrator acknowledged significant inconsistencies involving how he calculated certain inputs “going to the very heart of the contractual dispute” and decided that procedurally their revisions would only be accounted for as an offset to the costs award. In doing so, Hunt McDonald J. held that the arbitrator constructed a process procedurally unfair to A and his costs methodology bestowed a relative advantage upon R to the detriment of A.
Continue reading “Alberta – arbitrator’s breach of procedural fairness in costs award leads to set aside of award on merits – #455”Alberta – appeal court suggests parties arbitrate lingering dispute over chambers decision if lacking clarity – #454
In MEG Energy Corp v Canexus Corporation, 2021 ABCA 101, the Court of Appeal upheld a chambers judge’s analytical approach to determining ownership of disputed equipment but disagreed with his reliance on unsworn and insufficient evidence when applying the approach. The Court left it to the parties to consider whether the chambers judge’s reasons provided “sufficient clarity” to determine ownership but, if not, (i) directed them to either return to the chambers judge or (ii) suggested they determine the issue by arbitration as set out in their contract.
Continue reading “Alberta – appeal court suggests parties arbitrate lingering dispute over chambers decision if lacking clarity – #454”Alberta – issue not “expressly” referred to arbitrator may not preclude appeal but still live enough to signal overlooked opportunity to plead – #429
Preferring the “narrow interpretation” of section 44(3) of the Arbitration Act, RSA 2000, c A-43, Madam Justice Shaina Leonard in Athan Homes Inc v. Phan, 2021 ABQB 119 determined that the fundamental breach issue had not “expressly” been submitted to the arbitrator for decision and section 44(3) did not preclude leave to appeal. Applicant did succeed in identifying a question law but Leonard J. determined that its appeal had no merit. Leonard J. also dismissed Applicant’s alternative application to set aside the award due to alleged lack of opportunity to plead on the issue of fundamental breach. Though she had determined that fundamental breach had not been referred “expressly” to the arbitrator for the purpose of section 44(3), Leonard J. also determined that the issue was before the arbitrator for the purpose of natural justice. Omitted from the parties’ Joint Memorandum list of issues submitted to the arbitrator, the fundamental breach issue was present in the pleadings and Respondents’ written argument. Applicant’s choice not to make submissions on the issue did not result in a lack of opportunity to be heard.
Continue reading “Alberta – issue not “expressly” referred to arbitrator may not preclude appeal but still live enough to signal overlooked opportunity to plead – #429”