Tag: Alberta

In Aldred Estate (Re), 2020 ABQB 469, Mr. Justice Craig M. Jones held that a court’s discretion to refuse a stay under section 7(2) of the Arbitration Act, RSA 2000, c A-43 was limited to specific circumstances and a potential for inefficiency did not empower courts to disregard a statutory imperative. Despite challenges to the validity of the arbitration agreement, a court may grant the stay and allow the arbitrator to determine allegations of invalidity. Jones J. dismissed as “insupportable” the argument that the Arbitration Act did not apply if a party challenged the validity of agreement to arbitrate. Referring to sections 7(2)(b) and section 17(3), Jones J. held that these provisions would make no sense if an invalid arbitration agreement rendered the Arbitration Act inapplicable.

Continue reading “Alberta – challenge to validity of agreement to arbitrate cannot evade application of Arbitration Act – #367”

In FortisAlberta Inc v. Alberta (Utilities Commission), 2020 ABCA 271, Mr. Justice Jack Watson refused leave to appeal from a regulator’s decision that it lacked jurisdiction over costs otherwise subject to arbitration. Watson J. held that a “harmonious reading” of legislation governing the regulatory environment created jurisdiction for both regulator and arbitration tribunals.  He resisted appellant’s alleged efforts to “confect” a “solemnly commercial sounding term” to bring the dispute within the regulator’s jurisdiction.  Watson J. also determined that any alleged limitations in the arbitration process were insufficient to empower the regulator to “effectively override” the parties’ contracts.  As appellate gatekeeper, Watson J. concluded that a full panel was unlikely to find the claim of inadequacy of arbitration anything more than just a claim supported only by appellant’s own say so.

Continue reading “Alberta – alleged limitations of arbitration unproven/insufficient to grant jurisdiction to regulator – #362”

In Clark v. Unterschultz, 2020 ABQB 423, Madam Justice June M. Ross agreed to revisit her earlier decision in Clark v. Unterschultz, 2020 ABQB 338 which allowed an appeal in part, limited to the arbitrator having not provided adequate reasons for a lump sum award.  In her follow up decision, Ross J. dismissed Applicant’s application under Alberta Rules of Court, Alta Reg 124/2010 as a “second kick at the can”, holding that any remedy Applicant may have lay with the Court of Appeal. Ross J. did agree to reframe her earlier order and, exercising her own options under the Arbitration Act, RSA 2000, c A-43, provided directions to the arbitrator. In doing so, Ross J. gave the arbitrator much broader scope than that which may have been read into her earlier decision and expressly confirmed his discretion to determine the procedure warranted to exercise that authority.

Continue reading “Alberta – arbitration act informs court rules allowing court to clarify its order allowing appeal of award – #357”

In Pearson v. Pearson, 2020 ABCA 260, Alberta’s Court of Appeal distinguished between discretion to grant/refuse an adjournment and discretion which raises issues of procedural fairness. Deference is owed “generally” to the former, provided discretion is exercised judicially and sufficient weight given to all relevant considerations.  The latter raises the question of whether due process was followed and attracts no deference.  Despite disagreement whether a party had counsel of record and that party’s choice not to be ‘present’, the Court held that the party seeking adjournment suffered no prejudice because all the conditions in section 49 of the Arbitration Act, RSA 2000, c A-43 were ‘present’ and “there was no reason to think the outcome would have been different had an adjournment been granted”.

Continue reading “Alberta – refusal to adjourn hearing respects due process if recognition/enforcement conditions present – #351”

In Sandhu v. Siri Guru Nanak Sikh Gurdwara of Alberta, 2020 ABQB 359, Mr. Justice Michael J. Lema concluded that, despite no express mention in the applicable rules, the court has authority to direct remote questioning on affidavits despite a party’s resistance.  In his reasons, Lema J. referred to Alberta case law from 2000 and Ontario case law from 2009 which clearly supported the use of videoconferencing for cross-examination on affidavit as “a normal process” in modern international litigation or arbitration.  Lema J. also cited from the May 1, 2020 decision in Arconti v. Smith, 2020 ONSC 2782 authorizing videoconferencing because “It’s 2020”. Lema J.’s reasons include extensive references to key cases discussing the evolution of technology while acknowledging concerns for irritants and mischief.

Continue reading “Alberta – videoconferencing for cross-examination on affidavit authorized, despite objection, because “It’s 2020” – #334”

In Clark v. Unterschultz, 2020 ABQB 338, Madam Justice June M. Ross dismissed a challenge to an award on the merits, holding that one party’s communication of privileged settlement offers after the award and before the costs award were insufficient to meet the high threshold required to find real or perceived bias.  Ross J. determined that a reasonable person, viewing the matter realistically and practically, and knowing that the hearing had concluded and the substantive award had issued, would be unlikely to conclude that the arbitrator would not decide the remaining matters fairly.

Continue reading “Alberta – communication of privileged offers after award but before clarification/costs insufficient to raise bias – #328”

On application by a successful arbitral party, Mr. Justice Brian O’Ferrall in Pacer Holdings Construction Corporation v. Richard Pelletier Holdings Inc, 2020 ABCA 47 lifted a stay imposed by the appeal filed by the losing arbitral party against the order putting it in bankruptcy.  The successful arbitral party challenged certain transactions by the losing arbitral party which “stripped” the latter of all its assets. O’Ferrall J.A. was “not yet convinced” to interpret the Bankruptcy and Insolvency Act, RSC 1985, c B-3 to mean that a “dormant shell” corporation was not a “debtor” or “insolvent person”.  Lifting the stay enabled the trustee to exercise powers ordinary creditors do not have, including collection of information relevant to ordering transferees of property of the bankrupt arbitral party to pay to the difference between the value of the consideration the bankrupt gave and the value transferees received.

Continue reading “Alberta – stay of BIA order lifted, enabling trustee to investigate transactions preventing execution of award – #324”

In HOOPP Realty Inc v. Emery Jamieson LLP, 2020 ABCA 159, Alberta’s Court of Appeal underlined the importance of initiating arbitration instead of litigation when bound by a mandatory arbitration agreement.  In considering appeals from motions for summary disposition of actions filed by a client against two (2) law firms, the Court held that a lawyer’s omission to serve the notice to arbitrate qualified as an “injury” to the client within the meaning of section 1(e) of the Limitations Act, RSA 2000, c L-12.  The Court further held that the current law firm’s knowledge of the omission by the former law firm could be imputed to the client in order to trigger the commencement of the limitation period and that the Limitations Act focused on knowledge of facts and not applicable law or chances of success.

Continue reading “Alberta – decision to initiate litigation rather than mandatory arbitration qualifies as “injury” – #317”

In McKay v. Prowse, 2020 ABCA 131, Alberta’s Court of Appeal upheld the dismissal of Plaintiff’s litigation despite Plaintiff’s genuine but unilateral invitations to mediate or arbitrate, holding that unrequited overtures do not qualify as significant advances in a litigation.  Using jurisdiction confirmed by the Alberta Rules of Court, Alta Reg 124/2010, the Court determined that Plaintiff had failed to take a significant step in three (3) years prior to the application made by Defendant.  The Court cautioned that, absent a standstill agreement or a defendant’s tactics to obstruct, stall or delay, if a defendant fails to accept invitations to engage in alternate dispute resolution mechanisms, plaintiff continues to bear the onus to advance its action or risk having it struck.

Continue reading “Alberta – unilateral offers to mediate/arbitrate fail to resist dismissal of litigation under “drop dead rule” – #304”

In Allen v. Renouf, 2020 ABQB 98, Mr. Justice C. Scott Brooker held that an arbitral party which ignores an opportunity to present its case cannot argue that it was treated manifestly unfairly.  Brooker J. dismissed Applicant’s attempt to challenge a costs award which he categorized as a discretionary decision but equally disagreed with Respondent’s argument that costs were a discrete legal issue expressly submitted to the arbitrator and shielded from appeal under section 44(3) of Alberta’s Arbitration Act, RSA 2000, c A-43. He did acknowledge that costs awards may raise a question of law if the discretion was not exercised judicially.  

Continue reading “Alberta – costs are discretionary, not a discrete legal issue submitted to arbitrator, must be exercised judicially – #281”