[:en]In Applied Industrial Technologies, LP v. Sirois, 2018 ABQB 818, Mr. Justice J.T. Eamon distinguished between expert determination and arbitration, holding that, unlike arbitration, the scope of an expert’s mandate and the court’s review depended on contractual interpretation without the benefit of a statutory framework or well-established practices available in arbitration. Despite the challenges, Eamon J. provided a detailed analysis useful in future cases regarding an expert’s ability to decide questions of mixed fact and law and the applicable standard of review. Continue reading “[:en]Alberta – expert determination allows expert to decide questions of mixed fact and law – #121[:]”
[:en]Alberta – court applies its “unique” legislation to stay arbitration, prevent manifestly unfair/unequal treatment – #112[:]
[:en]Combining Alberta’s “unique” Arbitration Act, RSA 2000, c A-43, and its Judicature Act, RSA 2000, c J-2, Mr. Justice John D. Rooke, Associate Chief Justice, in Canadian Natural Resources Limited v. Flatiron Constructors Canada Limited, 2018 ABQB 613, granted a stay of the parties’ arbitration but only until further order of the court. Rooke ACJ determined that the circumstances triggered the application of the Arbitration Act’s section 6(c) authorization to intervene in order to prevent “manifestly unfair or unequal treatment of a party to an arbitration agreement”. In granting the order, Rooke ACJ acknowledged that other jurisdictions might not provide the same order as Alberta’s legislation and that legislation different from Alberta’s was “not helpful”. Continue reading “[:en]Alberta – court applies its “unique” legislation to stay arbitration, prevent manifestly unfair/unequal treatment – #112[:]”
[:en]Alberta – Court of Appeal discourages serial challenges, notes certain litigation environments make experienced arbitrators bias-resistant – #109[:]
[:en]In Driscoll v. Hautz, 2018 ABCA 272, Mr. Justice Frans Slatter discouraged serial challenges to arbitration awards and distinguished dissatisfaction with an award from valid grounds justifying a court’s intervention. Slatter J.A. also reassured litigants that arbitrators experienced in family law disputes, like judges, could resist falling into bias if ever exposed to “exaggerated or extravagant allegations of misconduct”. In the underlying arbitration, the arbitrator had merely recorded mention of an isolated pair of exchanges made and gave no indication of having been influenced by either of the allegations. Continue reading “[:en]Alberta – Court of Appeal discourages serial challenges, notes certain litigation environments make experienced arbitrators bias-resistant – #109[:]”
[:en]Alberta – Court of Appeal blocks attempts to create shortcuts on challenges to arbitration awards – #106[:]
[:en]In Anand v. Anand, 2018 ABCA 259, Mr. Justice Brian O’Ferrall identified a series of dead ends for arbitral parties expecting shortcuts to the Court of Appeal from Court of Queen’s Bench decisions issuing from the “Remedies” chapter of Alberta’s Arbitration Act, RSA 2000, c A-43. A series of applications strained to persuade O’Ferrall J.A. to involve the Court of Appeal prematurely in existing court challenges to an arbitration award. O’Ferrall J.A. dismissed all of them, identifying the Court’s lack of jurisdiction, unless and until the Court of Queen’s Bench had completed its own statutorily-granted appeal role under any one of sections 44, 45, 47 and 49. The Court of Appeal had a role as an appellate court and not an alternative court sought by the unsatisfied arbitral party.
Continue reading “[:en]Alberta – Court of Appeal blocks attempts to create shortcuts on challenges to arbitration awards – #106[:]”
[:en]Alberta – court favours deference to arbitration, holds parties to promise to arbitrate despite inefficiencies created for other litigants – #101[:]
[:en]In Macdonald v. Burke, 2018 ABQB 534, Mr. Justice William A. Tilleman forcefully demonstrated the evolution of the court’s diminished discretion to grant a stay of litigation, tracking changes to Alberta’s Arbitration Act, RSA 2000, c A-43’s section 7(1) from the earlier, permissive “may” to the current, mandatory “shall”. He acknowledged that the change in wording to section 7(1) now restricted his discretion to those five (5) circumstances listed in section 7(2) and that none of the latter applied on the facts. Despite overlapping facts and issues in the various disputes, he remained unpersuaded that he should exercise his separate, remaining discretion under section 7(5) to allow the court litigation to continue in parallel to the arbitration. Continue reading “[:en]Alberta – court favours deference to arbitration, holds parties to promise to arbitrate despite inefficiencies created for other litigants – #101[:]”
[:en]Alberta – court gives drafting advice for key-person retention and incentive agreements available in arbitration – #098[:]
[:en]Ostensibly an employment law dispute, Palmer v. Acciona Infrastructures, 2018 ABQB 462 shines rare light into back-office arrangements for large claim commercial arbitrations and how to retain and incentivize individuals necessary to manage a party’s case. In analysing claims made by an executive following termination of his employment, Madam Justice Janice R. Ashcroft’s dutifully provides many employment law updates and statements such as what constitutes a valid resignation and how an employer’s notice can and ought to be given. The reasons also deliver essential drafting points for commercial arbitration practitioners negotiating with individuals tapped to lead a party to success. Continue reading “[:en]Alberta – court gives drafting advice for key-person retention and incentive agreements available in arbitration – #098[:]”
[:en]Alberta – court dismisses second attempt to challenge award for breach of natural justice – #088[:]
[:en]Madam Justice Kim D. Nixon in Driscoll v. Hautz, 2018 ABQB 426 refused leave to an arbitral party seeking to challenge a final award for alleged bias. Having lost a first application for leave to appeal a final award under under Alberta’s Arbitration Act, RSA 2000, c A-43, the party sought to raise new facts regarding bias to challenge the award. On the second application, the party claimed that those facts were still timely because they fell within an earlier allegation of breach of natural justice. Nixon J. dismissed the second attempt as being out of time, barred by the doctrine of res judicata and not evidence of a reasonable apprehension of bias. Continue reading “[:en]Alberta – court dismisses second attempt to challenge award for breach of natural justice – #088[:]”
[:en]Alberta – Court of Appeal acknowledges lack of authority to extend time to appeal – #083[:]
[:en]Alberta’s Court of Appeal in Funk v. Funk, 2018 ABCA 210 dismissed an application to extend the time to appeal an arbitration award because the appeal had no reasonable chance of success. The Court held, among other things, that it did not have authority to extend the time period to appeal set out in the Arbitration Act, RSA 2000, c A-43 and that any remedy to challenge the award ought to be heard by arbitration as the parties had agreed. Continue reading “[:en]Alberta – Court of Appeal acknowledges lack of authority to extend time to appeal – #083[:]”
[:en]Alberta – signature of submission agreement qualifies as commencement of arbitration – #082[:]
[:en]In brief reasons, Alberta’s Court of Appeal in Inter Pipeline Ltd v Rural Road Construction Ltd, 2018 ABCA 184 upheld Madam Justice C. Dario’s decision in Inter Pipeline Ltd v Rural Road Construction Ltd, 2017 ABQB 811 to consider parties’ signature of a post-dispute submission agreement as sufficient to serve as notice of commencement of arbitration. The Court was careful, if not emphatic, to note that the “conclusions are based on the unique facts of this case and on those specific facts there is clear evidentiary basis to support the chambers judge’s findings”. Continue reading “[:en]Alberta – signature of submission agreement qualifies as commencement of arbitration – #082[:]”
[:en]Alberta – court gives effect to parties’ agreement for recovery of costs for court litigation to enforce award – #077[:]
[:en]In Extreme Excavating & Backhoe Services Ltd v. Scott, 2018 ABQB 414, Mr. Justice Wayne N. Renke gave effect to the parties’ agreement allowing one party to recover costs on a solicitor-client basis but for only the court litigation identified in the agreement. That party successfully defended an appeal of an award and successfully applied to enforce that same award. He was limited to recovering costs according to the court’s tariff on the appeal of the award but allowed recovery on solicitor-client basis, subject to an assessment, for its enforcement. The result underlines the importance of identifying which post-award litigation will merit a more robust cost-recovery, if any, and using the necessary wording to give effect to that recovery. Continue reading “[:en]Alberta – court gives effect to parties’ agreement for recovery of costs for court litigation to enforce award – #077[:]”