In a novel decision, B.C.’s Court of Appeal Li v. Rao, 2019 BCCA 264 upheld an anti-suit injunction preventing a party from taking further steps in a pending arbitration administered beyond the court’s jurisdiction. Exercising its in personam jurisdiction over the party, the Court enforced that party’s agreement not to take further steps in its arbitration. The Court held that an injunction based on contract did not engage the jurisdiction of the foreign tribunal or raise issues of comity but did involve an assessment of the conduct of a party and whether to enforce a promise it made.
Continue reading “B.C. – anti-suit injunction based on contract enjoins party from pursuing arbitration administered outside Canada – #235”B.C. – no special rules for self-represented parties in arbitration beyond natural justice – #225
In 0941187 B.C. Ltd. v 0927613 B.C. Ltd., 2019 BCSC 1649, Mr. Justice Gregory T.W. Bowden dismissed a litigant’s attempt to dispute claims on the basis of an alleged estoppel arising from an earlier arbitral award. Bowden J.’s brief treatment of the estoppel argument underlines that awards only resolve the issues submitted in the arbitration in which the awards was made. The decision also refers back to an earlier decision of the Court of Appeal, involving the same parties, which held that, despite some latitude, no special rules apply for self-represented arbitral parties beyond basic natural justice requirements of an impartial arbitrator, notice, an opportunity to tender evidence, make representations and to respond to the other side’s case.
Continue reading “B.C. – no special rules for self-represented parties in arbitration beyond natural justice – #225”B.C. – refusal to grant access to details of counsel billing qualified as denial of natural justice in costs award – #221
In 0718698 B.C. Ltd. v. Ogopogo Beach Resorts Ltd., 2019 BCSC 1503, Mr. Justice S. Dev Dley remitted a costs awards back to the arbitrator so that the party ordered to pay 75% of actual legal fees would have a meaningful opportunity to challenge the other party’s counsel’s accounts. Failure to order disclosure of counsel’s accounts qualified as a denial of natural justice because it prevented the party from undertaking an informed analysis of whether the fees were reasonable.
Continue reading “B.C. – refusal to grant access to details of counsel billing qualified as denial of natural justice in costs award – #221”B.C. – agreement to accept summary reasons is not acceptance of insufficient reasons – #217
Despite the parties’ agreement that the arbitrator provide only summary reasons, Mr. Justice J. Christopher Grauer in Nolin v. Ramirez, 2019 BCSC 934 determined that the arbitrator’s brief reasons were insufficient to withstand review on a standard of reasonableness. Grauer J. held that even summary reasons require more than just a conclusion. Because he lacked jurisdiction to substitute his own decision for that of the arbitrator and, in the event, could not say that the arbitrator had gotten the issues wrong, he remitted the issues to the arbitrator for reconsideration.
Continue reading “B.C. – agreement to accept summary reasons is not acceptance of insufficient reasons – #217”B.C. – application to cancel certificate of pending litigation granted despite stay of litigation for arbitration – #206
In 1077708 BC Ltd. v. Agri-Grow Farm Services Ltd., 2019 BCSC 977, Madam Justice Catherine Murray granted Defendants’ application to cancel and remove a Certificate of Pending Litigation despite a stay of litigation granted by consent on broad terms. Murray J. noted that Plaintiff provided no authority requiring Defendants to first apply to lift the stay. She added that she saw “no logic or merit” in that requirement and held that Plaintiff was not prejudiced by having the court consider the application.
Continue reading “B.C. – application to cancel certificate of pending litigation granted despite stay of litigation for arbitration – #206”B.C. – incorporation by reference of arbitration agreement a question of intent not category of contract – #194
In MRC Total Build Ltd. v. F&M Installations Ltd., 2019 BCSC 765, Madam Justice Shelley C. Fitzpatrick determined that it was arguable that parties to one contract intended to incorporate by reference the arbitration provisions set out in another contract. Relying on the actual wording of the contract between the parties, Fitzpatrick J. identified the court’s role as discerning the intention of the parties. She resisted applying a technical rule to interpreting contracts or categorizing contracts into one type or another as a proxy for intention. Once the court finds that it is arguable that such an intention exists, and absent the arbitration agreement being incapable of being performed, the court must refer the matter to the arbitrator for determination.
Continue reading “B.C. – incorporation by reference of arbitration agreement a question of intent not category of contract – #194”B.C. – consent of parties to re-open formal order yields to functus officio – #193
In Leonard v. The Manufacturers Life Insurance Company, 2019 BCSC 598, Mr. Justice J. Christopher Grauer dismissed an application, made on consent of the parties, to certify a class proceeding under B.C.’s Class Proceedings Act, RSBC 1996, c 50 in which the court had already dismissed a prior, unsuccessful application for certification. Despite arising in a class action context, Grauer J.’s reasons offer insights regarding how applications on consent to re-open final awards could apply in arbitrations undertaken pursuant to statute and for which appeals are limited to questions of law. A key authority cited by Grauer J. stated that an order cannot be revisited even with consent of the parties because “consent cannot clothe the arbitrator with jurisdiction he [or she] does not have”.
Continue reading “B.C. – consent of parties to re-open formal order yields to functus officio – #193”B.C. – no abuse of court process by either litigant simply by seeking or resisting arbitration – #187
In Grewal v. Mann, 2019 BCSC 433, Mr. Justice Dennis Hori held that neither party was entitled to special costs following one party’s decision to file an action in court and the other party’s decision to apply for a stay of proceedings. In a dispute familiar to courts across Canada, both parties disputed the role of arbitration but, as Hori J. held, each appeared to genuinely pursue their legal remedies and in doing so did not commit any abuse of the court’s process.
Continue reading “B.C. – no abuse of court process by either litigant simply by seeking or resisting arbitration – #187”B.C. – no arbitral error where arbitrator seeks assistance on legal principles raised in, but beyond, parties’ authorities – #183
In MSI Methylation Sciences, Inc. v. Quark Ventures Inc., 2019 BCSC 440, Madam Justice Elaine J. Adair dismissed claims that the arbitrator had committed arbitral error due to breach of natural justice by allegedly (i) deciding the dispute on authorities not submitted by either party and (ii) adopting his own theory of damages not advanced by either party. Adair J. held that the legal principles were not obscure legal points raised for the first time, created by the arbitrator or divorced from the cases and argument submitted by the parties. Adair J. also held that the arbitrator did not commit arbitral error by not referring to each of a party’s submissions or seeking assistance beyond authorities submitted.
Continue reading “B.C. – no arbitral error where arbitrator seeks assistance on legal principles raised in, but beyond, parties’ authorities – #183”B.C. – corporation unsuccessfully uses indoor management rule and alleged forgery to challenge arbitration result – #181
In Sun Wave Forest Products Ltd. v Prince Rupert (City), 2019 BCSC 415, Mr. Justice Neill Brown dismissed a challenge to arbitration activity based on the challenger’s allegations that the arbitration stemmed from forgery, fraud and a lack of authority. In lengthy reasons, Brown J. discussed the evidentiary burden required to establish forgery and fraud in civil matters and the role of the indoor management rule in binding negotiations.
Continue reading “B.C. – corporation unsuccessfully uses indoor management rule and alleged forgery to challenge arbitration result – #181”