British Columbia – Court sets aside arbitrator’s decision for breach of procedural fairness – #615

In Bedwell Bay Construction v. Ball, 2022 BCSC 559, Justice Giaschi granted a judicial review application to set aside an interim decision of an arbitrator (the “Arbitrator”) of the Residential Tenancy Branch (the “RTB”) and to remit the matter back to the RTB for redetermination de novo before a different arbitrator. In doing so, the Court accepted the petitioner’s argument that the arbitrator did not act fairly when it required the petitioner to present its case first (even though it did not have the burden of proof), and denied it the right to cross-examine and to provide reply evidence and submissions. The Court held that this amounted to breaches of the rules of natural justice and procedural fairness. These findings have relevance to commercial arbitrations.

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Ontario – Uber arbitration, and class action waiver not certified as common issue – #612

In Heller v. Uber Technologies Inc., 2022 ONSC 1997, Justice Perell dismissed a motion to certify as a common issue the enforceability of an Arbitration and Class Action Waiver Clause in the Uber standard form services agreement that members of the class signed. As a result, this issue will not be determined at a common issues trial. Class action members who did not exercise their right to opt out of the clause are still class members and may be able to negate the operation of the waiver at individual issues trials if the class action gets that far.

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B.C. – Appeal of award granted; arbitrator re-wrote parties’ contract – #611

In Grewal v Mann, 2022 BCSC 555, Justice Iyer allowed the plaintiff’s appeal of an arbitral award dated May 15, 2020, made pursuant to s. 31 of the former British Columbia Arbitration Act, RSBC 1996, c. 55. That provision permitted an appeal from an arbitral award to be brought before the Supreme Court if leave to appeal was granted. Justice Iyer held that the “reasonableness” standard of review applies to appeals of arbitral awards, while acknowledging that the appropriate standard of review is still undecided at the appellate level.  She allowed the appeal and amended the award to provide that disputed funds held in trust were to be released to the plaintiff. She found that the arbitrator had not interpreted the parties Agreement, but rather had written an entirely new one.

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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.

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B.C. – Court recognizes/enforces Swiss award, rejecting public policy defence – #597

In Enrroxs Energy and Mining Group v Saddad, 2022 BCSC 285, Justice Crerar granted a petition to enforce a foreign arbitral award under the International Commercial Arbitration Act, RSBC 1996, c 233 (ICAA) and the Foreign Arbitral Awards Act, RSBC 1996, c 154 (FAAA). He rejected the respondent’s attempts to resist enforcement based on the public policy ground in subparagraph 36(1)(b)(ii) of the ICAA and art. V(2)(b) of the FAAA. Justice Crerar also rejected the respondent’s request to stay execution pending a valuation of certain assets that the petitioner had seized, which the responded complained could result in double recovery.

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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. 

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