Tag: Alberta

In Flock Estate v. Flock, 2019 ABCA 194, Alberta’s Court of Appeal overturned a chambers judge’s order which had allowed an arbitral party to reuse material from an arbitration in which the final award had been set aside.  Such an award was “ineffectual”, reflected only the “personal opinions” of the arbitrator and had no probative value.  Once set aside, the award did not serve to “crystallize” the interests of the parties or serve to create any issue estoppel.

Continue reading “Alberta – arbitrator’s findings in award have no probative value or binding effect if award set aside – #195”

In Alberta (Municipal Affairs) v. Alberta (Information and Privacy Commissioner), 2019 ABQB 274, Mr. Justice Steven N. Mandziuk examined records relating to arbitration proceedings in regard to which one party claimed solicitor-client privilege. Mandziuk J. demonstrated the process that will apply to such records if and when brought before the court.  His reasons set out the appropriate test for determining whether privilege exists, the practical manner in which the court will receive those records and how the courts must consider them on a document-by-document basis.

Continue reading “Alberta – records subject to solicitor-client privilege and involving arbitration proceedings subjected to court review – #192”

In Fath v. Quadrant Construction Ltd, 2019 ABQB 151, defendant petitioned to stay litigation against it only after the limitation period expired in which plaintiff could initiate mandatory arbitration.  Master W. Scott Schlosser noted that a court lost its supervisory jurisdiction to stay if arbitration was no longer viable because its jurisdiction was over the arbitration and not the lawsuit.  Acknowledging that granting  a stay effectively barred plaintiff’s claim against defendant and faced with a divided approach in the case law, Master Schlosser opted to consider the exceptions to stay set in Section 7(2) of the Arbitration Act, RSA 2000, c A-43.  As an alternative, he also considered defendant’s waiver and attornment as further sources of the court’s jurisdiction to preserve the litigation.

Continue reading “Alberta – even after limitation period expires to initiate arbitration, court applies exceptions to deny stay – #171”

[:en]In Weir-Jones Technical Services Incorporated v. Purolator Courier Ltd, 2019 ABCA 49, Alberta’s Court of Appeal held that an arbitral party’s uncertainty about which claims were covered by arbitration did not delay commencement of the applicable limitation period. A party’s reliance on the potential success of other procedures amounts at most to an error of law is irrelevant to calculating the start of a limitation period. “Discovery relates to the facts, not the applicable law or any assurance of success.”  In a lengthy footnote to concurring reasons, Mr. Justice Thomas W. Wakeling also commented on how the cost of litigation drove litigants towards other procedural solutions such as summary judgment and arbitration. Continue reading “[:en]Alberta – uncertainty over which claims covered by arbitration does not delay commencement of limitation period – #162[:]”

[:en]In Edmonton (City) v. Amec Foster Wheeler Americas Limited, 2019 ABQB 24, Master W. Scott Schlosser resisted a plaintiff’s attempt to narrow the arbitration clause to cover only contractual claims and allow its litigation in tort to escape a stay. Acknowledging plaintiff’s resourceful argument, Master Schlosser still held that the overlap between particulars of negligence and contract was too great and permitting plaintiff to choose tort over contract would allow it to escape the consequences of its own arbitration agreement. Continue reading “[:en]Alberta – concurrent liability in tort and contract possible but insufficient to avoid agreement to arbitrate – #159[:]”

[:en]In Boardwalk REIT Properties Holdings Ltd v. Condominium Corp No 0822896, 2019 ABQB 40, Mr. Justice Grant S. Dunlop reserved his decision on costs and invited the parties to refer to any proposals to arbitrate provided as a dispute resolution option. In doing so, Dunlop J. signalled to litigants the court’s willingness to adjust its own award of court costs by considering if either of the parties had proposed to engage in arbitration as authorized by the legislation applicable to their dispute. Continue reading “[:en]Alberta – willingness to undertake legislated arbitration option may impact court costs – #156[:]”

[:en]In Prestige Granite & Marble Inc v. Maillot Homes Inc, 2018 ABQB 1040, Madam Justice Michele H. Hollins reversed a Master’s order granting summary judgment on the basis that court rules allowed parties to present new evidence on appeal of the order and, in doing so, “amplified” their case sufficiently to justify a trial on the merits. Hollins J. suggested that the parties consider “private arbitration” in lieu of continuing in court should settlement fail. The suggestion likely reflects the court’s perception that arbitration would provide a more suitable resolution of the issues still in dispute and would avoid the layers of appeals and compensate for the delays associated with amplifying one’s position. Continue reading “[:en]Alberta – court reverses summary judgment order, refers parties to trial, suggests parties consider arbitration – #151[:]”

[:en]In Zerr v. Thermal Systems KWC Ltd, 2018 ABQB 1008, Master in Chambers A.R. Robertson found no application for a lease’s “oblique” dispute resolution clause which did not deal with contractual entitlements in the lease and provided no process to resolve the dispute. In considering the clause and disputes stemming from either “complexity” or “inconsistent wording” in the parties’ contracts, Master Robertson provided confirmation that clear drafting can both pre-empt disputes and solve them if and when they do arise. Continue reading “[:en]Alberta – “oblique” dispute resolution clause overlooks dispute, provides no resolution process – #144[:]”

[:en]In TransAlta Generation Partnership v. Balancing Pool, 2018 ABQB 932, Mr. Justice Paul R. Jeffrey held that a creature of statute with duties under a statutory contract between two other parties had the right to initiate arbitration if neither of the main two parties to the contract chose to do so. The decision extended recognition further than earlier decisions in which the right to initiate arbitration appeared limited to joining an existing arbitration between the main contracting two parties. Continue reading “[:en]Alberta – third party to statutory contract can initiate arbitration disputing fact triggering its obligations – #140[:]”

[:en]In Japan Canada Oil Sands Limited v. Toyo Engineering Canada Ltd, 2018 ABQB 844, Madam Justice Barbara E.C. Romaine held that she had jurisdiction under section 8(1) of Alberta’s International Commercial Arbitration Act, RSA 2000, c I-5 to order the consolidation of an international commercial arbitration and a domestic arbitration involving the three parties even though one of the parties had not consented to consolidation. Romaine J. further held that, in light of the parties’ own contracts and in the circumstances, she ordered consolidation but left identifying the parties as Claimant(s) or Respondent(s) to the arbitrator to be appointed by ADR Institute of Canada Inc. (“ADRIC”). In her analysis, Romaine J. distinguished between consent to arbitrate and consolidation, characterizing the later as a procedural issue. Continue reading “[:en]Alberta – court consolidates international and domestic arbitrations without consent of all parties – #124[:]”