B.C. Archives - Arbitration Matters

May 26, 2023May 26, 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, 2023May 19, 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 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 25, 2023April 21, 2023

B.C. – No power to stay arbitration under Model Law – #731

In Johnston v Octaform Inc., 2023 BCSC 311, Justice Giaschi refused to stay an arbitration, finding he had no authority to do so under the International Commercial Arbitration Act, R.S.B.C. 1996, c. 233 [ICAA]. In so doing, he distinguished case law in which courts exercised inherent jurisdiction to stay domestic arbitration proceedings in various circumstances.

April 12, 2023April 10, 2023

B.C. – Court of Appeal finds extricable error in contract interpretation (again) – #728

In Mann v. Grewal, 2023 BCCA 88, the BC Court of Appeal upheld the judgment below (1) finding an extricable error of law in the sole arbitrator’s interpretation of a settlement agreement, and (2) amending the award rather than remitting it to the arbitrator. The Arbitrator’s error of law was that he failed to interpret the agreement at the center of the dispute and – in effect – re-wrote the parties’ agreement.

April 11, 2023April 10, 2023

B.C. – Arbitrator’s findings binding in subsequent court proceeding – #727

In his judgment from the trial in Betts v. Zienowicz, 2023 BCSC 328, Justice Macintosh considered, as a preliminary matter, the admissibility of findings of fact made in an earlier arbitration between the same individual parties and regarding the same issues. As no appeal had been taken from the Arbitrator’s award and given the deference owed to arbitral findings, Justice Macintosh adopted the facts as found by the Arbitrator in considering the issues before him. He then went on to find in favour of the plaintiffs, as had the Arbitrator.

April 10, 2023April 4, 2023

BC – Court determines arbitrator jurisdiction, exercising exception to competence-competence – #726

In Isagenix International LLC v. Harris, 2023 BCCA 96, Justice Griffin, for the British Columbia Court of Appeal, upheld an order dismissing the Appellant’s application made pursuant to section 8 of the International Commercial Arbitration Act, RSBC 1996, c 233 (the “ICCA”) for a stay of proceedings in favour of arbitration. In particular, she rejected the Appellant’s argument that the chambers justice had misapplied the principle of competence-competence by deciding the question about whether the underlying negligence claim fell within the scope of the arbitration clause, rather than referring the jurisdictional matter to the arbitrator. Justice Griffin found that the chambers justice did not err in law because he came within one of the well-established exceptions to the competence-competence rule.

March 29, 2023March 24, 2023

B.C. – Non-participation in arbitration leads to procedural complexity – #724

In UMS Solutions, Inc. v Cornell, 2023 BCSC 214, Justice Morellato refused to dismiss a B.C. action seeking to enforce a New York judgment, which confirmed an arbitration award, on the basis of delay. This procedurally tangled, still unfolding dispute, first saw UMS Solutions, Inc. (“UMS”) succeed in arbitration claims in New York against a B.C. resident, Brad Cornell (“Cornell”), for purported breaches of a representation agreement (“Agreement”). Cornell elected not to participate in the New York arbitration. UMS next converted the arbitral award into a New York court judgment. Cornell failed in his attempt to have the judgment set aside in New York. UMS then commenced a B.C. action on the New York judgment. Justice Morellato denied there was inordinate delay in the B.C. action and permitted UMS’s claim to continue.

March 27, 2023March 27, 2023

B.C. – The sensitive issue of adverse credibility findings and requests for accommodation – #722

Campbell v The Bloom Group, 2023 BCCA 84 raises a point of procedural fairness of interest to all decision makers: the importance of being mindful that adverse credibility findings not be influenced by requests for witness accommodation made either for disability or analogous reasons. Here, in obiter, the Court of Appeal noted that, as the Arbitrator had not erred in his negative credibility findings based on the many other reasons he found to disbelieve the Appellant’s evidence, it was unnecessary for him to comment on the fact that he also doubted the truthfulness of the Appellant’s evidence as to her need for accommodation based on disability. Decision makers should try to avoid even the appearance of adverse credibility findings being based on generalities or accommodations sought.

March 13, 2023March 10, 2023

B.C. – Question of statutory interpretation raises extricable error of law – #718

In Insurance Corporation of British Columbia v EB, 2023 BCSC, Justice Crossin heard an application to set aside an award and both an application for leave to appeal an arbitral award and the appeal, but dismissed the appeal on its merits. The Applicant had correctly identified two extricable errors of law: interpretation of a statute; and whether the test set out in case law had been properly applied. However, he found that the Arbitrator made no legal error. He also dismissed the set aside application because the Arbitrator made no “arbitral error” by exceeding her jurisdiction.