In Mills v Thompson, 2022 ONSC 1525, Justice Charney, sitting as an Ontario Divisional Court judge, quashed an appeal of the decision of a Superior Court judge denying leave to appeal an arbitral award. The question before him was, “whether a party requires leave to appeal from a decision denying leave to appeal [an arbitral award on a question of law] or may appeal a denial of leave to appeal as of right”. Justice Charney confirmed recent Ontario Court of Appeal jurisprudence holding that a decision of the Superior Court of Justice granting or denying leave to appeal an arbitral award is an interlocutory order in respect of which leave to appeal is required under s. 19(1) of the Ontario Courts of Justice Act, R.S.O., 1990, c. 43, as amended. Any other conclusion would defeat the purpose of the appeal provision in the Ontario Arbitration Act, 1991, S.O. 1991, c. 17, s. 45, which is intended to minimize judicial interference in arbitration. It would be incongruous to allow an appeal of a denial of leave decision as of right, when no such right is provided with respect to an appeal of the correctness of the award itself. The Appellant had not sought leave of the Divisional Court to appeal. Justice Charney quashed the appeal.
Continue reading “Ontario – Order denying leave to appeal award interlocutory, leave to appeal required – #602”B.C. – Arbitration clause covered contract not tort claims – #600
In Harris v Isagenix International, 2022 BCSC 268, Justice Branch dismissed the defendants’ motion to stay a personal injury action in favour of arbitration, despite an arbitration clause in the parties’ contract. The plaintiff sought damages for personal injuries arising from her use of the defendants’ wellness products. She asserted that the defendants were negligent in the design, manufacture, distribution, marketing and supply of these products (“the Products”). She also relied upon the Business Practices and Consumer Protection Act, S.B.C. 2004, c. 2 (“BPCPA”). The plaintiff was not only a consumer but also sold the products as part of the defendant’s marketing program. She signed two contracts as a result of which she became a “Preferred Customer” of the Products and, later, an “Associate” entitled to sell the products. She placed orders for the Products for herself while she was a “Preferred Customer” and for herself and others as an “Associate”. Therefore, she “wore two hats”. Justice Branch found that the arbitration clause in the applicable contract covered only potential contract claims, not tort claims. The plaintiff’s action was allowed to proceed.
Continue reading “B.C. – Arbitration clause covered contract not tort claims – #600”B.C. – Arbitrator’s Analysis Must not let Factual Matrix Overwhelm Text of Contract – #588
In Grewal v. Mann, 2022 BCCA 30, the British Columbia Court of Appeal dismissed an appeal of an order granting leave to appeal an arbitral award. In doing so, the Court of Appeal confirmed the bounds of contractual interpretation, including the principle that the analysis must remain grounded in the text of the contract.
Continue reading “B.C. – Arbitrator’s Analysis Must not let Factual Matrix Overwhelm Text of Contract – #588”Alberta –No appeal of decision refusing leave to appeal arbitration award, despite s. 48 of Alberta Arbitration Act – #583
In 719491 Alberta Inc v Canada Life Assurance Company, 2021 ABCA 419, a three-member panel of the Court of Appeal of Alberta denied the applicant’s requests (i) for permission to appeal the chambers judge’s order refusing leave to appeal the arbitration award (the “Leave to Appeal Request”)and (ii) for permission to appeal the chambers judge’s dismissal of its application to set aside the award (the “Set Aside Request”). As a preliminary matter on the Leave to Appeal Request, the applicant asked the Court to reconsider its previous decision in Sherwin-Williams Company v. Walls Alive (Edmonton) Ltd., 2003 ABCA 191(“Sherwin-Williams”), which held that leave to appeal decisions are not appealable to the Court of Appeal under s. 48 of Alberta’s Arbitration Act, RSA 2000, c A-43 (the “Arbitration Act”). Section 48 provides, in relevant part, that an appeal from the decision of the Court of Queen’s Bench on an appeal of an award (s. 44) may be made to the Court of Appeal with leave. However, based on the case law on the test for leave to reconsider a previous decision, which includes whether the decision has some “obvious, demonstrable flaw,” the Court denied leave and ruled that it did not have jurisdiction to hear the Leave to Appeal Request. The Court similarly rejected the applicant’s Set Aside Request based on the finding that the chambers judge did not err in holding that the arbitrator did not exceed his jurisdiction.
Continue reading “Alberta –No appeal of decision refusing leave to appeal arbitration award, despite s. 48 of Alberta Arbitration Act – #583”B.C. – Appeal court considering arbitrator’s alleged error of law where law changed post-award – #579
In Clemina Hydro Power Limited Partnership v British Columbia Hydro and Power Authority, 2022 BCSC 25, Justice Carol J. Ross denied the petitioners’ application for leave to appeal an arbitral award arising out of two energy purchase agreements. Justice Ross found the petitioners failed to identify an extricable legal error in the arbitrator’s contract interpretation exercise. She also held that, in any event, the petitioners’ appeal had been rendered moot. One issue Justice Ross addressed was what the appellate court should do with an alleged error of law where the law has changed between the initial decision and the appeal.
Continue reading “B.C. – Appeal court considering arbitrator’s alleged error of law where law changed post-award – #579”Saskatchewan – Waiver of arbitration in joint venture agreement read strictly – #576
In Beauchamp v Beauchamp, 2021 SKCA 148, the Saskatchewan Court of Appeal dismissed an appeal from a case management judge’s decision, which provided for how farming operations would be conducted for the following year, on an interim basis, until a dispute involving a Joint Venture Agreement (“JVA”) governing those operations was finally resolved. The appellant alleged that the judge misinterpreted his waiver of the right to arbitrate contained in the JVA. This waiver was provided on three occasions, in his agreement to put matters to the case management judge for the sake of expediency and urgency and in two written briefs, each using slightly different language. In these, the appellant agreed: 1) the case management judge could “make an order providing for how this grain farm is [to be] operated for the 2021 to 2022 crop year”; 2) he “will waive his reliance on the arbitration clause if” the judge was distributing the farming equipment or dividing the farming operation on an interim basis, but would not waive these rights if the judge were to order the entirety of the farming operation be divided exclusively among the only the other parties in the dispute; and 3) he “will waive his reliance on the arbitration clause if the Court’s authority to distribute the equipment of New Age Farms on an interim basis is an issue to the extent necessary to effect the dividing of the farm operation.” The Court of Appeal found that because the case management judge did not order the farming operation be exclusively undertaken by the other parties, and directed on an interim basis only how farming operations were to proceed, the judge did not violate the terms of the waiver. Indeed the case management judge had expressly held that the jurisdiction issue raised by the appellant needed to be resolved before the underlying litigation could proceed.
Continue reading “Saskatchewan – Waiver of arbitration in joint venture agreement read strictly – #576”New Brunswick – Arbitrator reading professional standards into valuation clause not extricable error of law – #573
In 619818 N.B. Inc. v. 656991 N.B. Inc., 2021 NBQB 269, Justice Ferguson of the New Brunswick Court of Queen’s Bench denied an application for leave to appeal an arbitral award. In so doing, he distinguished questions of mixed fact and law from pure questions of law arising from an arbitrator’s contract interpretation exercise.
Continue reading “New Brunswick – Arbitrator reading professional standards into valuation clause not extricable error of law – #573”Laura’s 2021 Top Pick: B.C. – Spirit Bay Developments Limited Partnership v. Scala Developments Consultants Ltd. – #569
Spirit Bay Developments Limited Partnership v Scala Developments Consultants Ltd., 2021 BCSC 1415, is part of a series of cases that leave an important question undetermined at the end of 2021: what is Vavilov’s impact on commercial arbitration appeals? Although on its own Spirit Bay is not the most significant case of the year, the impact of the Vavilov on commercial arbitration appeals will be studied with interest by arbitration practitioners in 2022 and is an important aspect of arbitration jurisprudence in 2021.
Continue reading “Laura’s 2021 Top Pick: B.C. – Spirit Bay Developments Limited Partnership v. Scala Developments Consultants Ltd. – #569”Julie’s 2021 Top Pick: B.C. – Allard v The University of British Columbia – #567
Costs results in domestic commercial arbitrations are often based on, or consistent with, the norms of international commercial arbitration and can differ greatly from what is expected based on standard litigation practice. This can be an unpleasant surprise for counsel and their clients who are unfamiliar with this. In Allard v The University of British Columbia Justice Douglas confirmed that the “starting point” for an award of costs in domestic commercial arbitration is that the winner is entitled to its reasonable legal fees and disbursements, or what is referred to in litigation practice as “solicitor client costs” or “indemnity costs” and not “party party” costs, which many litigators would expect. There are, of course, exceptions to this “normal rule” for assessing costs. Alberta’s Arbitration Act, RSA 2000, c A-43 perhaps provides one, as is discussed below.
Continue reading “Julie’s 2021 Top Pick: B.C. – Allard v The University of British Columbia – #567”James’s 2021 Top Pick: B.C. – Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District – #565
My top pick for 2021 is Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District, 2021 SCC 7 [Wastech]. For most, Wastech’s primary importance relates to the common law duty of good faith in the exercise of contractual discretion. But for arbitration aficionados, another key aspect is what the Supreme Court of Canada’s concurring Justices said, and what the majority Justices declined to say, about the standard of review applicable to appeals from arbitral awards.
Continue reading “James’s 2021 Top Pick: B.C. – Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District – #565”