Appeal Archives - Arbitration Matters

December 5, 2023December 1, 2023

Québec – Final Award on arbitrator’s own jurisdiction: what recourse(s)? – #797

In ADREQ (CSD) Estrie c. Centre intégré universitaire de santé et des services sociaux de l’Estrie – CHUS, 2023 QCCA 1315, the Court of Appeal granted leave to appeal a Superior Court decision dismissing an application for annulment of an arbitration award. The first instance Judge ruled that despite the fact that the arbitrator heard the whole case on the merits and decided in the final award that he had no jurisdiction, the award could not be contested under the annulment provisions of the Code of Civil Procedure (sec. 648), but rather must be challenged under the provisions concerning an arbitrator’s ruling on their own jurisdiction (sec. 632). Because of the potential overlap between these provisions and because of the limited jurisprudence on their application, the Court of Appeal deemed that it was a subject of interest for the Court and granted the leave.

November 8, 2023November 3, 2023

Manitoba – Awards set aside after arbitrator re-wrote parties’ bargain – #790

In Buffalo Point First Nation and Buffalo Point Development Corp Ltd v Buffalo Point Cottage Owners Association, Inc, 2023 MBKB 141, the Court confirmed its earlier decision on the motion for leave to appeal, in which it held that the correctness standard of appeal in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (“Vavilov”) applies to review of private arbitration awards appealed under provincial arbitration legislation. The Court held that the arbitrator had erred because he exceeded the jurisdiction granted to him under the parties’ agreement. First, the arbitrator exceeded the jurisdiction to “implement” or “clarify” a Consent Award which the parties had entered into following an earlier dispute. Second, the arbitrator’s award constituted “a significant rewrite of the bargain (…) by introducing new concepts alien to the negotiated bargain”.

November 6, 2023November 3, 2023

Ontario – Appeals combined where stay of proceedings impacts class certification – #788

In Davis v Amazon Canada Fulfillment Services, ULC, 2023 ONCA 634 the Court combined two appeals initiated in two different courts arising from a single decision that concerned two interrelated motions. One was an appeal of a stay of proceedings in favour of arbitration granted pursuant to s. 7 of the Arbitration Act, 1991, S.O. 1991, c. 17 (“Arbitration Act”) and the other was an appeal of a decision denying class certification. The Plaintiff appealed the decision denying class certification to the Divisional Court, as required by the then applicable version of the class proceedings legislation [Class Proceedings Act, 1992, S.O. 1992, c 6 (“CPA”)] and appealed the stay decision to the Court of Appeal. The Plaintiff then applied to the Court of Appeal to transfer the class certification appeal from the Divisional Court to the Court of Appeal and join it to the stay appeal. The Court granted the application. It concluded that to do so was in the interests of the administration of justice. The Court found that, as some of the proposed class members (although not the representative plaintiff) were alleged to be subject to arbitration agreements, “the appeal of the stay decision goes directly to who may be class members and is completely premised on certification being under consideration” (para. 14). The Court was of the view this finding weighed strongly in favour of the appeals being combined “so that they can be managed, sequenced, considered, and decided taking into account and specifying the effect a decision in one may have on the other” (para. 13).

October 27, 2023October 30, 2023

Ontario – Court defines arbitral record where arbitration not recorded – #787

In Reed v. Cooper-Gordon Ltd. et al, 2023 ONSC 5261, the Court granted in part the plaintiff’s motion for leave to appeal an employment and shareholder related arbitral award on a question of law under s. 45 of the Arbitration Act, 1991. The plaintiff’s claims were originally raised by way of action, then proceeded by arbitration. The plaintiff/claimant in the arbitration claimed, among other things, that the arbitrator had wrongly determined the notice period for pay in lieu of notice, overlooked certain claims for unpaid bonuses and RRSP contributions, and incorrectly valued his shares in the underlying arbitration relating to his exit from the defendant. The Court held that the arbitrator’s error in computing the notice period and his lack of reasons relating to certain claims justified granting leave to appeal. The Court denied leave on the remaining issues. Because the parties had not recorded the arbitration, the record was limited to pleadings filed in the Superior Court of Justice that defined the issues for arbitration, the parties’ arbitration agreement, the Arbitration Award and Costs Award, the shareholders’ agreement and the parties’ Partial Minutes of Settlement on a particular issue.

October 23, 2023October 30, 2023

Manitoba – Procedural choices made for efficiency bind losing parties – #783

With what the Respondent must hope is the final chapter of a long and expensive saga, in Christie Building Holding Company, Limited v Shelter Canadian Properties Limited, 2023 MBCA 76 (CanLII), the Court of Appeal confirmed parties must live with the consequences of their decisions on how to conduct the arbitration. The parties agreed to forego obtaining transcripts of the arbitration and the formalities of entering thousands of documents as exhibits (only five were formally marked as such). C lost the arbitration and clearly regretted its agreement to limit the evidentiary record. The nature of the “record” was at the heart of the Applicant C’s two trips to the Manitoba Queen’s Bench, one to the King’s Bench, and two to the Court of Appeal. C was unsuccessful at every turn. In the end, the Court of Appeal did not agree the lower court had mistakenly declined jurisdiction by rejecting C’s attempt to recreate the record by adducing affidavit evidence of what was formally before the arbitrator. In the circumstances, the Court held the “record” would consist of the two awards and accompanying reasons, the pleadings, and the five marked exhibits.

October 13, 2023November 2, 2023

Québec – Arbitrator’s ruling on jurisdiction not an award – even if evidence heard – #782

In ADREQ (CSD) Estrie c. Lavoie, 2023 QCCS 3372 [ADREQ], the Court found that under the principle of competence-competence, unless only questions of law are engaged, an arbitrator retains the right to make determinations as to its own jurisdiction at first instance. The competence-competence principle dictates that arbitrators are competent to determine their own jurisdiction. A jurisdictional decision does not become an “award”, even though the arbitrator heard evidence relating to the substance of the dispute before deciding that he lacked jurisdiction.

October 1, 2023October 1, 2023

B.C. – Court articulates principles on fixing conditions in leave applications – #778

In Kingsgate Property Ltd. v The Board of Education of School District No. 39, 2023 BCSC 1266, the Court considered the text, context and purpose of s. 31(3) of the (former) Arbitration Act R.S.B.C. 1996 c. 55 (the “Arbitration Act”). (Comparable language appears in s. 59(5) of the current B.C. domestic Act.) That section allowed a court to attach such conditions to an order granting leave to appeal an arbitration award as it considers just. The Court determined that s. 31(3) empowered the Court to impose conditions on granting leave to appeal that will prevent miscarriages of justice. Here, the Court made two such orders sought by the petitioner Kingsgate Property Ltd. (the “Tenant”). Firstly, the Court settled the terms of security with respect to the Tenant’s appeal of an award made in a rent review arbitration (the “Award”). Secondly, the Court ordered a stay of the Award and a default notice the Board of Education of School District No. 39 School Board (the “Landlord ”) had issued for arrears of rent (the “Default Notice”).

September 12, 2023October 23, 2023

B.C. – Arbitration clause in contract of adhesion not unconscionable/against public policy – #772

In Williams v. Amazon.com Inc., 2023 BCCA 314 the Court upheld a partial stay of a proposed class action in favour of arbitration. It found that the Chambers Judge did not err when she concluded that an arbitration clause that formed part of a contract of adhesion was not unconscionable or against public policy. In doing so, the Court distinguished the case from the Supreme Court of Canada decision in Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37 (“Ledcor”) on the issue of the applicable standard of review. In Ledcor, the Supreme Court determined that correctness standard applies when reviewing the interpretation of standard form contracts. Here, the British Columbia Court of Appeal found that a deferential standard was applicable because of the highly contextual and fact specific analysis required for determining unconscionability/public policy issues. The fact that a contract of adhesion was involved did not change that conclusion. The Court also distinguished this case from the Supreme Court of Canada decision in Uber Technologies Inc. v. Heller, 2020 SCC 16 (“Uber”), where the Supreme Court found an arbitration clause in a contract of adhesion invalid on the basis of unconscionability and, in concurring reasons, as against public policy. The Court distinguished Uber because of, among other things, the “profound” differences that it noted in the two cases between the arbitration clauses at issue and the vulnerability of the plaintiffs.

August 17, 2023August 11, 2023

Québec – No evidence permitted in support of annulment application – #765

In Glen Eagle Resources Inc. v. Gem Yield Bahamas Ltd, 2023 QCCA 686, the Court of Appeal dismissed Appellant’s application for leave to appeal the Superior Court’s decision dismissing Appellant’s request to adduce evidence in support of its application for annulment of an arbitral award. The lower court dismissed Appellant’s request to have a witness testify in support of its argument that the contract containing the arbitration clause was void. Appellant argued that the nullity of the contract would lead to the conclusion that the arbitrator had no jurisdiction. Respondent, which applied for homologation of the award, argued that the lower court had no jurisdiction to hear evidence on the merits of the arbitration on an application to annul the award and that, in any event, the arbitration clause was a separate contract, not affected by the nullity of the contract in which it was included. Following the Superior Court’s decision, the hearing before it was suspended until the Court of Appeal’s decision on the matter.

August 15, 2023August 14, 2023

B.C. – No unfairness for procedural irregularity, no jurisdiction to review facts – #763

In Anins v. Anins, 2022 BCCA 441 (leave to appeal refused 2023 CanLII 64855 (SCC)), the Court of Appeal for British Columbia upheld a lower court decision dismissing a petition to set aside a family arbitral award based on errors of law and procedural unfairness. The Court of Appeal agreed with the B.C. Supreme Court that the Arbitrator did not cause any unfairness in failing to make a procedural direction in writing, nor were his reasons insufficient for omitting reference to certain statutory provisions. The Court of Appeal also agreed that the appellant’s grounds for appeal on the merits raised pure questions of fact. These were not appealable under B.C.’s then-applicable domestic arbitration statute.