Tag: Alberta

In Agrium, Inc. v. Colt Engineering Corporation, 2020 ABQB 53, Master J.T. Prowse held that he had discretion to refuse a stay in favour of mandatory arbitration and could do so on the basis of unfairness to plaintiff stemming from the applicants’ participation in court proceedings.  That participation, though minimum, coupled with two (2) years of delay, lead Master Prowse to conclude that it would be unfair to plaintiff to allow defendants to “go back on their choice to participate in this litigation”.

In Prairie Roadbuilders Limited v. Flatiron-Dragados-Aecon-Lafarge, A Joint Venture, 2019 ABQB 934, Mr. Justice James T. Eamon held that interpretation of an industry standard form contract promised no precedential value due to extensive negotiated changes which had resulted in an “awkward hybrid” and that resolution of the parties’ dispute depended on key portions drafted by the parties.  Eamon J. comments also on the role of “boilerplate” and further held that the issues submitted to the arbitrator qualified as discrete questions of law and, having already been referred to and determined in arbitration, could not be re-submitted on appeal to the court under section 44(3) of Alberta’s Arbitration Act, RSA 2000, c A-43.

In Obcorp Holdings Inc v. Mammoet Canada Western Ltd, 2019 ABQB 960, Master B.W. Summers stayed litigation in favour of Defendants who, in “particularly unique” circumstances, had already pleaded to the action but did so unaware of the arbitration clause.  Based on uncontradicted evidence, Defendants had acted promptly upon learning of the arbitration clause included in an updated version of their contract communicated by Plaintiff during the document discovery phase and had proposed that the few court pleadings be used to frame the issues in arbitration.

In Trainor v. Fundstream Inc, 2019 ABQB 800, Madam Justice Alice Woolley declined to refer the parties to arbitration, holding that the employment contract was neither void ab initio or invalid but simply did not apply to the resulting legal relationship between the parties.  The employment contract provided for services “within” a province but were actually performed “without”, in another province. As a result, the arbitration agreement did not apply to the termination because the services did not relate to the otherwise valid but unperformed original employment contract.

In Acciona Infrastructure Canada Inc v. Posco Daewoo Corporation, 2019 ABCA 241, Alberta’s Court of Appeal set aside ex parte orders which validated ex juris service, appointed arbitrators and consolidated arbitrations due to Plaintiff’s non-compliance with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters and service ex juris under Alberta Rules of Court, Alta Reg 124/2010.  Acknowledging Plaintiff’s frustration with Defendant’s procedural responses and the practical effect of adding to the delays, the Court declined to retroactively validate irregular service due to significant deficiencies in service.

In Alanen v. Elliott, 2019 ABCA 290, Madam Justice Elizabeth Hughes reiterated that the Court of Appeal had no jurisdiction to grant permission to appeal an arbitration award “outright”, its jurisdiction limited to appeals of Court of Queen’s Bench decisions under sections 44, 45 and 47 of Alberta’s Arbitration Act, RSA 2000, c A-43.  By declining to deal with the initial appeal from an interim costs award, the chambers judge had issued no decision subject to the Court of Appeal’s jurisdiction under that legislation.  The reasons also illustrate the role of interim costs to ensure that arbitration process moves forward while treating parties equally and fairly and giving parties opportunity to present their case and respond to the other party’s.

In TransAlta Generation Partnership v. Balancing Pool, 2019 ABCA 318, the Alberta Court of Appeal upheld dismissal of a challenge to arbitration initiated by an entity which was created by legislation but was not party to contracts stemming from the legislation.  The Court determined that the statutory scheme which created the non-party did not limit its right to dispute its significant financial obligations to compensate the contracting parties in certain disputes.  The Court’s handling of the implied exclusion rule lends itself to other legislative schemes created in the public interest.

In Mahajan v. Mahajan, 2019 ABQB 495, Mr. Justice Michael J. Lema stayed a divorce proceeding to provide time for the couple’s four (4) parents to resolve a property dispute delegated to them by the couple in their post-separation agreement.  Lema J. held that no uncertainty existed regarding who would resolve the dispute but only uncertainty as to how they would do so. 

Alberta’s Court of Appeal in Allen v. Renouf, 2019 ABCA 250 upheld a chambers judge’s decision to dismiss an application for leave to appeal on the basis that the court had no jurisdiction to extend a statutory time limit set out in the Arbitration Act, RSA 2000, c A-43.  The arbitrator’s reserve of jurisdiction to issue a costs award did not suspend or add to that time period to challenge the earlier award on the merits.  Case law also distinguishes calculating delays based on the ‘date of the decision’ and the ‘making of the decision’ and should apply with equal merit to delays applicable to arbitration awards.