Appeal Archives - Page 3 of 9 - Arbitration Matters

June 21, 2023June 23, 2023

Ontario – Courts must decide arbitral jurisdiction de novo – #748

In Russian Federation v. Luxtona Limited, 2023 ONCA 393, the Ontario Court of Appeal held that in an application to Ontario courts under the UNCITRAL Model Law on International Commercial Arbitration (the “Model Law”), being Schedule 2 to the International Commercial Arbitration Act, 2017, c. 2, Sched. 5, for the court to decide whether an arbitral tribunal had jurisdiction, the court must decide the jurisdictional question de novo. In other words, there is no deference owed to the arbitral tribunal on the question of that tribunal’s jurisdiction. The Court reached this conclusion after considering the strong international consensus to that effect, and reaffirmed the “uniformity principle”, which holds that it is “strongly desirable” for Ontario’s international arbitration regime to be interpreted coherently with that of other countries.

June 19, 2023June 20, 2023

Ontario – Appeal allowed where arbitration agreement “invalid”; Arbitration Act not engaged – #746

In Goberdhan v Knights of Columbus, 2023 ONCA 327 , the Ontario Court of Appeal dismissed an appeal of an order dismissing the Defendant’s/Appellant’s motion for a stay of proceedings in favour of arbitration. The motion judge found that the contracts containing the arbitration agreements were invalid for lack of consideration. He therefore refused the stay pursuant to s. 7(2)2 of the Ontario Arbitration Act, 1991 SO 1991, c 17. The Plaintiff/Respondent argued that no appeal was permitted under s. 7(6), which prohibits an appeal of a stay decision. The Court of Appeal disagreed and found that because the contracts and the arbitration clauses were invalid, the Arbitration Act,1991, was not engaged and there was no prohibition on appeal. The appeal was dismissed on its merits.

June 7, 2023June 5, 2023

B.C. – High bar to arbitrate amended claims after attornment – #744

In Hawthorn v Hawrish, 2023 BCCA 182, the BC Court of Appeal addressed the often-difficult question of “who decides” key issues where arbitration agreements and court proceedings collide. The appeal concerned an amended notice of civil claim, which the defendants – who had already attorned to the court in respect of the original notice of civil claim – applied to stay in favor of arbitration. The core question was whether the amendments added new claims. The Court of Appeal affirmed the lower court’s refusal to refer the question first to arbitration, and the conclusion that the amendments were not new.

June 5, 2023June 5, 2023

Ontario – No hearing de novo in case of challenge to procedural fairness – #742

In All Communications Networks of Canada v. Planet Energy Corp., 2023 ONCA 319, the Court dismissed the appeal of a judgment upholding an arbitral award in favour of Respondent All Communications Networks of Canada (“ACN”) in the amount of $29,259,787 and made an order enforcing the award. In first instance, Planet Energy Corp. (“Planet”) sought to set aside the arbitral award based on the failure of due process, arguing: (1) that it was not given the opportunity to present its case; and (2) that the Arbitrator’s ruling violated public policy. Before the Court of Appeal, Appellant Planet raised the additional argument that the first instance judge failed to apply the right standard of review. Planet argued that a de novo hearing was required to examine properly the arguments raised against the arbitral award. The Court of Appeal dismissed Planet’s arguments and confirmed that a party seeking to set aside an arbitral award based on a failure of due process must prove that the Arbitrator’s conduct is serious enough to dismiss the application to enforce the award under the law of the enforcing State (here, Ontario). The Court of Appeal also confirmed that a party seeking to set aside an award based on a violation of public policy shall demonstrate that the award offends Ontario’s principles of justice and fairness in a fundamental way.

May 26, 2023June 20, 2023

B.C. –Issue estoppel may bind tribunal to prior arbitration award – #741

In Kingsgate Property Ltd. v Vancouver School District No. 39, 2023 BCSC 560, Justice Stephens granted leave to appeal from an arbitral award in a rent renewal dispute, in which the Arbitral Tribunal elected not to follow the interpretation of a key contractual provision from an arbitral award rendered decades earlier. In both rental renewal disputes, a key issue was a market value provision in a long-term lease of property. Justice Stephens found that the proper interpretation of a previous arbitral award and whether the Arbitral Tribunal properly applied the doctrine of issue estoppel raised questions of law. The leave grant decision will permit further court consideration of interesting and novel questions concerning the application of the doctrine of issue estoppel in an arbitration context.

May 25, 2023June 13, 2023

B.C. – Inadequate reasons on central issue a breach of natural justice – #740

In Bromley v. Getzie, 2023 BCSC 446 (“Bromley”), Justice Brongers remitted an arbitral award to the Arbitrator for reconsideration as a remedy for the arbitrator’s failure to observe the rules of natural justice, pursuant to s. 30 of the (former) British Columbia Arbitration Act, RSBC 1996, c. 55 (the “Act”). Justice Brongers found that the Arbitrator had breached principles of natural justice because he provided inadequate reasons on a “central issue” in dispute between the parties. This is a rare finding, but one which appears to rely, in part, on principles of natural justice as they relate to applications for judicial review in administrative proceedings. Regrettably, scant reasons are provided regarding the decision of Justice Brongers to order remittance of the matter to the arbitrator, rather than to set aside the award, as a remedy for the breach of natural justice.

May 10, 2023May 26, 2023

New Brunswick – When is an appeal not an appeal? – #736

In New Brunswick Highway Corporation v. MRDC Operations Corporation, 2023 NBCA 19, the Court of Appeal of New Brunswick (the “Court”) dismissed the appeal of a decision denying an appeal against an arbitral award. The Court found that the arbitration agreement did not grant the parties an automatic right of appeal, and denied leave to appeal pursuant to section 45 of the Arbitration Act, RSNB 2014, as no extricable questions of law were present. The Court cautioned against finding extricable errors of law in a case such as this involving contractual interpretation of the arbitration agreement. The decision turned on the interpretation of the arbitration agreement, which provided both for an appeal and for no appeal.

May 9, 2023May 5, 2023

B.C. – No error of law where some evidence supports findings of fact – #735

In 1550 Alberni Limited Partnership v. Northwest Community Enterprises Ltd., 2023 BCCA 141, the British Columbia Court of Appeal confirmed the decision of Justice Groves, who refused to grant leave to appeal from an arbitral award that turned largely on the Arbitrator’s interpretation of the parties’ agreement, as modified during the course of its performance. The Court found that the petitioner failed to establish that the proposed appeal raised an extricable question of law – because there was some evidence that supported the findings of fact. In so doing, the Court left the issue of the standard of review of the Arbitrator’s decision following the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, [2019] 4 S.C.R. 653 for another day.

April 27, 2023April 24, 2023

Ontario –Arbitrator erred by allowing surrounding circumstances to overwhelm written agreement – #733

In Burwell v. Wozniak, 2023 ONSC 1685, Justice Jensen of found that the Arbitrator erred in law by allowing a promise in an email to overwhelm the words of a subsequent formal trust agreement. The Court varied the Arbitrator’s decision about the formation of a trust, holding that the Arbitrator’s reliance on surrounding circumstances while downplaying the words of the subsequently formalized agreement, gave rise to an extricable error of law.

April 24, 2023May 1, 2023

Alberta – Former arbitrator, now judge/facilitator in same matter not biased – #730

In Shannon v Shannon, 2023 ABCA 79, the Appellant appealed the final consent order of a judge of the Alberta Court of Queen’s Bench (as it then was), which was made after a Binding Judicial Dispute Resolution (“BJDR”) process under the Alberta Rules of Court, AR 124/2010 and AR 194/202. The parties signed a Resolution Agreement dated February 16, 2021, which disposed of all the issues in dispute and whose terms were incorporated into a consent order. Both parties had counsel during the BJDR process, but not on the appeal. The Appellant challenged the consent order on the bases that: (1) there was a reasonable apprehension of bias on the part of the judge who facilitated the BJDR process because she had previously acted as arbitrator in the same matter before she was appointed to the Bench; and (2) the Appellant was not competent to enter into the Resolution Agreement that led to the consent order, which should be set aside as null and void. The Court of Appeal dismissed the appeal because it found that the Appellant had consented to having the judge who had previously sat as arbitrator facilitate the BJDR process, but also that a reasonable apprehension of bias allegation could not be established – there is a high burden to show that a superior court judge would not disabuse her mind of anything learned on a prior occasion and there is also a strong presumption that a judge will act judicially.