Tag: Alberta

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”

In Agrium, Inc v. Colt Engineering Corporation, 2020 ABQB 807, Madam Justice Nancy Dilts held that unsuccessful applicants could appeal to a justice of the court a Master’s decision refusing a stay under section 7(1) of the Arbitration Act, RSA 2000, c A-43.  The legislated right of appeal from a Master’s decision under the Alberta Rules of Court, Alta Reg 124/2010  does not contradict the policy decisions underlying the Arbitration Act. The Court of Queen’s Bench Act, RSA 2000, c C-31 “creates layers of decision making authority” and section 7(6) did not intend to render Master’s decisions on stay applications “unappealable”.  Section 7(6) should “not be read in a manner that would be inconsistent with that legislated right”. Having jurisdiction to hear the appeal, Dilts J. held that she retained jurisdiction under section 7(1) to consider waiver and attornment notwithstanding expiry of a limitation period in which to commence arbitration.

Continue reading “Alberta – court rules permitting appeal of Master’s stay decision consistent with section 7(6) of Arbitration Act – #412”

In Stuve v. Stuve, 2020 ABCA 467, Alberta’s Court of Appeal upheld a chambers judge’s refusal to order the parties to engage in binding arbitration, agreeing that a judge has no jurisdiction to impose private arbitration without consent of the parties or an agreement to that effect. The Court held that “[s]pecific legislative language would be required for the court to have the power to require parties to participate in an extra judicial private process such as arbitration”.  Neither the Alberta Rules of Court, Alta Reg 124/2010 or the Arbitration Act, RSA 2000, c A-43 empowered the judge to do so.  “The parties commenced litigation in the publicly funded courts, and are entitled to access to court processes to resolve their dispute. Citizens have a right to access to the court, which is the public dispute resolution institution”.

Continue reading “Alberta – court has no authority to impose private arbitration absent parties’ consent or an agreement – #405”

In North Pacific Properties Ltd v. Bethel United Churches of Jesus Christ Apostolic of Edmonton, 2020 ABQB 791, Madam Justice Anna Loparco determined that the parties to an existing contract had not entered into a binding agreement to (i) extend a key date for performance or (ii) arbitrate disagreements under that extension.  Loparco J. opened and closed her reasons noting the parties’ lost opportunity to engage in less costly, less protracted dispute resolution. “In the end, this is an unfortunate tale of two well-meaning parties who had no means of resolving their disputes prior to the Closing; the result was protracted and costly litigation.  It highlights the perils of not having a dispute resolution mechanism built into a contract”.

Continue reading “Alberta – protracted costly litigation highlights “perils of not having a dispute resolution mechanism built into a contract” – #400”

In Keeder v. AlGendy, 2020 ABCA 420, Madam Justice Jolaine Antonio denied leave to appeal consent orders which issued from a binding judicial dispute resolution process by which the parties had agreed to either resolve the issue themselves or be bound by the determination of the judge presiding the process. Antonio J.A. held the parties to their contract, applying precedent which held that such decisions are imposed on the parties as a result of their contract rather than the court’s authority. If the settlement falls apart, the parties must sue on their contract.  Though the judge issues a determination, the decision is imposed as a result of their contract and not the court’s authority.

Continue reading “Alberta – parties can agree to be bound by coin flips, Ouija boards and bespoke judicial resolution processes – #397”

In R. v. Brar, 2020 ABCA 398, Alberta’s Court of Appeal analysed the Canada Evidence Act, RSC 1985, c C-5’s application to bank records including video surveillance stills and videos captured at automatic teller machines.  The Court explored the reasoning behind the Canada Evidence Act’s evidentiary rules applicable to records held by financial institutions and requirements for adducing such evidence.  The Canada Evidence Act expressly applies to arbitration and matters within the jurisdiction of Parliament. While the Court’s analysis applied to a criminal proceeding with its heightened standard of ‘beyond a reasonable doubt’, it still serves to guide arbitration practitioners. Subject to any adjustments occasioned by the standard of ‘balance of probabilities’ applicable in civil matters, the Court’s analysis offers arbitration practitioners meaningful insights.

Continue reading “Alberta – evidentiary rules for adducing videos/video stills applicable also in arbitration – #390”

In separate cases, the Court of Appeal in Iyad Al-Qishawi Professional Corporation v. Alexander C. Yeh Professional Corporation, 2020 ABCA 372 and the Court of Queen’s Bench in Soloniuk Estate v. Huyghe, 2020 ABQB 616 each urged the different groups of parties before them to consider mediation as a dispute resolution. Each level of court dutifully undertook and completed the task assigned to it by the parties under the applicable Alberta Rules of Court, Alta Reg 124/2010 and, having done so, paused before closing to urge that the parties consider other forms of dispute resolution.

Continue reading “Alberta – different levels of court urge the parties before them to mediate instead of litigating – #388”

In Hannam v. Medicine Hat School District No. 76, 2020 ABCA 343, Alberta’s Court of Appeal assessed the practical significance of its earlier five (5) judge panel decision in Weir-Jones Technical Services Incorporated v Purolator Courier Ltd, 2019 ABCA 49 which considered the benefits of summary judgment set out in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 SCR 87.  In doing so, the majority and dissent both commented on the promised benefits of arbitration in contrast to court litigation.  The present note highlights those passages to illustrate contemporary comments by the courts.

Continue reading “Alberta – court acknowledges litigants’ commercial interest in arbitration as alternative to court litigation – #378”

In K-Rite Construction Ltd v. Enigma Ventures Inc, 2020 ABQB 566, Madam Justice Donna L. Shelley dismissed challenges to a costs award, holding that awarding costs is discretionary and generally will be a question of mixed fact and law.  Shelley J. held that, absent some form of improper consideration, arbitrators have full discretion as to costs, may not be bound by traditional rules regarding the award of costs and using their discretion does not amount to an error of law.  Shelley J. also dismissed Applicants’ challenges to the arbitration agreement’s costs provisions contained in an industry-specific contract.  Despite the potential importance that standard forms may arguably have in an industry, unambiguous wording does not merit the court’s intervention.

Continue reading “Alberta – unambiguous wording on arbitration costs in standard contract does not merit court intervention – #377”

To decide whether to exercise her discretion to stay duplicative proceedings involving administrative action taken in two (2) provinces, Madam Justice Susan L. Bercov in Mema v. Chartered Professional Accountants of Alberta, 2020 ABQB 486 drew on principles stated in UCANU Manufacturing Corp v. Calgary (City), 2015 ABCA 22 which considered whether to issue a stay when the duplicative proceedings involved a court action and an arbitration.  Bercov J. declined to exercise her discretion due to applicant’s failure to meet his evidentiary burden to establish the overlap and status of the duplicative proceedings. Her comments on applicant’s evidence help guide arbitration practitioners invoking overlap with arbitration.  The note also lists recent Alberta cases applying those principles to stays involving arbitration.

Continue reading “Alberta – stay application lacks evidence required to demonstrate overlap/status of duplicative proceedings – #371”