In Bosa Properties (Sovereign) Inc. v. The Owners, Strata Plan EPS2461, 2020 BCSC 1357, Madam Justice Neena Sharma reiterated that the “standard to interfere” with an arbitration award is “very high” because “people who choose commercial arbitration have elected to resolve their disputes in a forum that is speedy and final, without the intervention of the courts”. Sharma J. observed that one of the purposes of the standard “is to discourage appeals to the court”, referring to earlier Ed Bulley Ventures Ltd. v. Eton-West Construction Inc., 2002 BCSC 826 which held that “[i]f leave were granted too readily, one of the beneficial and distinguishing features of arbitration (its finality) would be lost”.
Continue reading “B.C. – “standard to interfere” with awards is “very high” to protect “speedy and final” resolution – #379”B.C. – court’s own “alternate and free” dispute resolution procedures co-exist with private mediation-arbitration – #374
In Otte v. Otte, 2020 BCSC 1408, Mr. John J. Steeves refused to eliminate the court’s own judicial case conference (“JCC”) in favour of enforcing the parties’ contractual agreement to mediate-arbitrate. Observing that the court’s own JCC served as an “alternate and free procedure”, Steeves J. refused to relieve the parties from participating in that procedure, reasoning that parties can “use both, either or neither of arbitration-mediation or a JCC”.
Continue reading “B.C. – court’s own “alternate and free” dispute resolution procedures co-exist with private mediation-arbitration – #374”B.C. – from litigation to settlement to mediation to repudiation back to litigation on settlement – #372
In Park v. Mitchell, 2020 BCSC 1147, Mr. Justice Robert Johnston dealt with probate issues reserved exclusively to the courts but, in doing so, recorded how parties can move from court litigation, to negotiated settlement, to mediation agreement, to repudiation and back again, attempting to resolve their disputes. His reasons illustrate how court-ordered cross-examination in litigation can lead to information disclosure and/or meetings which occasion negotiated settlements. Those settlements may require mediation which generate agreements but, once repudiated, require the parties to return to their earlier settlement and then to court to enforce that settlement. The dispute resolution sequence prompted Johnston J. to question whether a litigant could enforce a settlement in probate proceedings or be obliged to sue on the settlement in a separate action.
Continue reading “B.C. – from litigation to settlement to mediation to repudiation back to litigation on settlement – #372”B.C. – settlement privilege applies to arbitration and justifies refusal of access to information request – #356
In White Rock (City) (Re), 2020 BCIPC 25, Ian C. Davis, Adjudicator with the B.C. Information and Privacy Commissioner, held that common law settlement privilege applied to access to information requests, despite omission to include express mention of that privilege as a ground to resist disclosure, and that the privilege applied to arbitration. Dismissing argument that arbitration was not a “litigious dispute”, Adjudicator Davis also held that settlement privilege is jointly held between parties to settlement negotiations and concluded that procedural fairness required that he consider the other arbitral party’s submissions on settlement privilege even if that other arbitral party was not a party to the access request.
Continue reading “B.C. – settlement privilege applies to arbitration and justifies refusal of access to information request – #356”B.C. – failure to disclose existence of arbitration over only material asset alleged to breach securities legislation – #350
In Arian Resources Corp. (Re), 2020 BCSECCOM 89, an alleged failure to disclose arbitration prompted B.C.’s Securities Commission to issue a notice advising that a hearing would be held at which the Executive Director would tender evidence, make submissions and apply for orders under the Securities Act, RSBC 1996, c 418 for failure to disclose material changes. The notice does not purport to assert determinations of fault or sanction but does remind that, despite the role and availability of confidentiality in arbitration, arbitration parties may still be required to share sufficient, timely information on arbitrations involving them and involving material change.
Continue reading “B.C. – failure to disclose existence of arbitration over only material asset alleged to breach securities legislation – #350”B.C. – precedents acknowledged for parties to constitute sitting judge as private tribunal without appeal – #349
In Gourlay v. Crystal Mountain Resorts Ltd., 2020 BCCA 191, B.C.’s Court of Appeal acknowledged precedents in which litigants constituted a judge/panel of judges as arbitrator(s) but, on the facts, held that no such agreement existed in the action. Such an agreement, if established, also entailed consequences, familiar to arbitration, such as an inability to appeal unsatisfactory orders. The Court’s reasons omit the Court’s own consideration of whether consent to have a judge sit as arbitrator could validly be given or enforced. Rather, it limited its reasons to acknowledging that it had been done in the past but that the agreement in the case did not support its application.
Continue reading “B.C. – precedents acknowledged for parties to constitute sitting judge as private tribunal without appeal – #349”B.C. – upcoming legislation overrides determination that summary assessment of costs is arbitral error – #348
In Appleton & Associates v. Branch MacMaster LLP, 2020 BCCA 187, B.C.’s Court of Appeal held that a court’s discretion to refuse to set aside an award under section 30(1) of the Arbitration Act, RSBC 1996, c 55 upon a finding of arbitral error is “constrained by the parameters” in section 30(2). The arbitral error consisted of making a summary assessment to determine costs. However, going forward, section 50(2)(d) of B.C.’s new Arbitration Act (Bill 7 – 2020: Arbitration Act), in effect September 1, 2020, expressly authorizes an arbitrator to summarily determine the amount of costs. In debating whether to set aside or remit the award, the Court observed that it is doubtful that a party can constrain the court’s discretion under section 30(1) to set aside the award or remit by limiting the requested relief to only one of the remedies.
Continue reading “B.C. – upcoming legislation overrides determination that summary assessment of costs is arbitral error – #348”B.C. – alleged breach of unclear settlement agreement requires lengthy trial to discern rights/obligations – #343
Following 18 days of proof and hearing, Mr. Justice J. Christopher Grauer in Great Corner Stone Ltd. v. Vancouver Cabinets Inc., 2020 BCSC 107 puzzled through a “bewildering” set of initial contracts and a “poorly drafted” settlement agreement purporting to “reset” the relationship. Grauer J. struggled to identify what the mediate resolved, concluding that the settlement agreement “does not offer much guidance”. Overall, Grauer J. held that discerning what rights and obligations were placed on the parties “was not a problem of ambiguity, but rather one of inexpert drafting and lack of clarity”.
Continue reading “B.C. – alleged breach of unclear settlement agreement requires lengthy trial to discern rights/obligations – #343”B.C. – Hells Angels’ mediation is not unlawful even if subject matter may involve alleged unlawful activity – #337
In British Columbia (Director of Civil Forfeiture) v. Angel Acres Recreation and Festival Property Ltd., 2020 BCSC 880, Mr. Justice Barry M. Davies determined that mediation of disputes by or between Hells Angels’ members/chapters is not an unlawful activity under B.C.’s Civil Forfeiture Act, SBC 2005, c 29 even if the subject matter of the disputes may involve unlawful activity. In refusing to grant forfeiture of clubhouses used by the Hells Angels, Davies J. determined that use of the clubhouses as venues to resolve disputes did not constitute the use of property to engage in unlawful activity. He agreed that the Director of Civil Forfeiture had proven that mediation of disputes among Hells Angels’ members/chapters plays a role in ensuring relative harmony within the Hells Angels so that internal discord is kept to a minimum but disagreed that the Director had proven that “resolving these disputes maintains the Hells Angels brand so that members and associates of the club continue to benefit from the opportunity to monetize the brand through criminal means”.
Continue reading “B.C. – Hells Angels’ mediation is not unlawful even if subject matter may involve alleged unlawful activity – #337”B.C. – application for stay required for court to consider role of arbitration at certification stage – #333
Tasked with deciding whether or not to certify an action as a class proceeding, Madam Justice Veronica Jackson in Matthews v. La Capitale Civil Service Mutual, 2020 BCSC 787 declined to consider whether to stay the proceedings on the basis of mandatory arbitration agreements contained in several of the agreements. Despite contesting certification, Jackson J. noted that Defendants had not filed an application for a stay under section 15 of the Arbitration Act, RSBC 1996, c 55 and therefore the issues “were not squarely before me and were not argued on this application”. “At this time”, she could not conclude arbitration of disputes involving potential class members was required. See the earlier Arbitration Matters note “Stay granted despite anticipation that arbitrator applying U.S. law might not be able to grant claims”.
Continue reading “B.C. – application for stay required for court to consider role of arbitration at certification stage – #333”