Tag: B.C.

In Gormac Developments Ltd. v. Teal Cedar Products Ltd., 2020 BCSC 712, Madam Justice Elizabeth McDonald cautioned that great care be taken to distinguish between arguing that (i) a legal test has been altered in the course of its application and (ii) application of the legal test should have resulted in a different outcome. McDonald J. also acknowledged the need for caution when determining questions of law given that questions of mixed fact and law “by definition, involve aspects of law”.  In addition, an arbitrator is not required to refer to every submission, statutory provision or piece of jurisprudence in the award, there being no requirement to make specific findings on each constituent element for the award to be reasonable.

Continue reading “B.C. – questions of mixed fact and law by definition involve aspects of law – #316”

In Clayworth v. Octaform Systems Inc., 2020 BCCA 117, B.C.’s Court of Appeal held that interpretation of the scope of an agreement to arbitrate is a question of mixed fact and law, not a question of law.  As such, the courts are to apply the “arguable case” test whereby jurisdictional issues relating to the scope of the arbitration agreement are to be resolved in first instance by the arbitrator. The Court also emphasized the distinction between a stay and a dismissal. A stay simply holds proceedings in abeyance until the arbitrator completes the work which the parties agreed should be arbitrated. If the arbitrator determines the dispute is not one referred to arbitration or there are matters which remain unresolved after arbitration, a stay could be lifted upon application.

Continue reading “B.C. – a stay is not a dismissal – #315”

In Z v. M, 2020 BCSC 568, Mr. Justice Leonard S. Marchand declined to enforce in B.C. costs awards which issued from an arbitration conducted in Alberta under Arbitration Act, RSA 2000, c A-43.  Instead, he directed the applicant to obtain first an order from the courts in Alberta recognizing and enforcing those awards and then apply to the B.C. courts under B.C.’s Court Order Enforcement Act, RSBC 1996, c 78.  By express provision in their arbitration legislation, some other provinces do away with this two-step process and B.C. will do so also in its soon-to-be-in-force updated legislation.

Continue reading “B.C. – pending update to B.C. legislation, enforcing Alberta arbitral awards in B.C. subject to two-step process – #310”

In Houm Services Inc. v. Lettuce Eatery Development Inc., 2020 BCSC 430, Madam Justice Heather MacNaughton stayed claims filed by plaintiff against defendant and its employees, pending resolution of claims which did fall within the agreement to arbitrate.  She held that the agreement was valid and compliant with B.C.’s Franchises Act, SBC 2015, c 35 and any further relief, beyond the scope of the agreement to arbitrate, could be pursued in court after arbitration despite any “procedural complexity” or delays.  She also issued an order under the Supreme Court Act, RSBC 1996, c 443 prohibiting plaintiff and its representative from instituting further legal proceedings against defendant and/or its employees without leave of the court.

Continue reading “B.C. – stay issued despite procedural complexity, further legal proceedings prohibited without leave – #301”

In AtriCure, Inc. v. Meng, 2020 BCSC 341, Mr. Justice Dennis K. Hori recognized the courts’ willingness to consider whether a litigant qualifies as a non-signatory party to an agreement to arbitrate but held that the applicant seeking the stay filed no evidence justifying such a status.  The case also documented a series of contracts signed between plaintiff and overseas corporations controlled by a single individual but for which plaintiff agreed to a variety of different substantive laws and dispute resolution processes.

Continue reading “B.C. – applicant claiming status as non-signatory party to arbitration clause fails to meet evidentiary burden – #289”

Though arbitrators should give reasons for departing from the “normal” costs rule, Madam Justice Lisa A. Warren in Goel v. Sangha, 2019 BCSC 1916 held that it does not follow that arbitrators must provide reasons for not departing from the normal rule.  Warren J. also held that an arbitrator cannot be faulted for following a process adopted by agreement of the parties and that, on appeal, absent further evidence, the court had no role in revisiting an arbitrator’s finding that such an agreement existed in fact.

Continue reading “B.C. – no need to give reasons when not departing from normal rule on costs – #287”

In Williams v. Amazon.com, Inc., 2020 BCSC 300, Madam Justice Karen Horsman stayed a proposed class proceeding for non-consumer claims seeking damages under Canada’s Competition Act, RSC 1985, c C-34 based on a standard form contract which submitted those claims to arbitration administered in the U.S. and subject to U.S. laws.  Respecting competence-competence, Horsman J. recognized several issues affecting jurisdiction but deferred them to the arbitrator.  She acknowledged the “real prospect” that a U.S. arbitrator (i) could decide that such claims were not available under U.S. substantive law and (ii) might lack jurisdiction to award the claimed damages but those were not sufficient to hold that the arbitration agreement was void, inoperative or incapable of performance.  In addition, Horsman J. held that the agreement to arbitrate overcame any unconscionability concerns raised in Heller v. Uber Technologies Inc., 2019 ONCA 1.

Continue reading “B.C. – stay granted despite anticipation that arbitrator applying U.S. law might not be able to grant claims – #283”

In A-Teck Appraisals Ltd. v. Constandinou, 2020 BCSC 135, Madam Justice Mary A. Humphries expressly noted but declined to follow the reasoning in Heller v. Uber Technologies Inc., 2019 ONCA 1 (leave to appeal granted Uber Technologies Inc., et al. v. David Heller, 2019 CanLII 45261 (SCC), under advisement following the November 6, 2019 hearing).  Recognizing the Ontario Court of Appeal as a persuasive authority whose judgments merit respect, Humphries J. held it was “not obvious” that its reasoning applied to B.C. legislation and the unfairness informing that result did not arise on the facts before her.  She refused to void an arbitration agreement in an employment contract and, in doing so, granted a stay.

Continue reading “B.C. – court acknowledges but declines to follow reasoning in Heller v. Uber Technologies Inc. – #271”

In Milner v. Clean Harbors Industrial Services Canada, Inc., 2020 BCSC 68, Mr. Justice Anthony Saunders dismissed argument by a late-filing petitioner that the title “Partial Award” (i) created “inherent uncertainty” and (ii) justified calculating time to seek leave to appeal from the later, final award.  Saunders J. held that the title “Partial Award” was not ambiguous and petitioner demonstrated no confusion as to his rights determined under that award.  Saunders J. held that, of all the factors applicable to exercising his discretion to extend that time, the interests of justice subsumed the others and did not favour petitioner.

Continue reading “B.C. – period in which to appeal partial award runs from date of that award, not the later, final award – #263”

The fact that evidence of fraud existed at the time of hearing might justify its rejection as ‘new’ evidence on a post-decision challenge but cannot justify rejecting it as evidence of fraud. In McCallum v. Mooney, 2019 BCSC 1938, Madam Justice Nitya Iyer granted a defendant’s application to set aside a default decision, even after having unsuccessfully challenged it by internal appeal, due to claimant allegedly withholding a key document during the initial hearing on the merits.

Continue reading “B.C. – evidence of fraud need not be ‘new’ to be admissible on post-decision challenge – #261”