[:en]In Campbell Construction Ltd. v. Abstract Construction Inc., 2019 BCSC 113, Madam Justice Jennifer M.I. Duncan held that ongoing dissatisfaction without particulars of a claim or the intention to start a claim are insufficient to qualify as notice to the other party. Notice is useless unless it gives enough information to the recipient to know what is in issue, the monetary effect and what the recipient can or has to do. Lack of notice deprives the recipient of the opportunity to consider its position and to negotiate under the contract or otherwise to resolve the problem. Continue reading “[:en]B.C. – grumblings insufficient to constitute notice to trigger arbitration – #158[:]”
[:en]B.C. – arbitrator’s decision on costs qualifies as an award enforceable as judgment/order of the court – #150[:]
[:en]In Sangha v. Goel, 2018 BCSC 2267, Mr. Chief Justice Christopher E. Hinkson qualified a costs award as an “award” under B.C.’s Arbitration Act, RSBC 1996, c 55. The costs award issued as a distinct award following a partial award by the arbitrator and was based on a summary presentation of evidence based on an initial agreement by the parties but from which Respondents later unsuccessfully attempted to resile. Hinkson C.J. held that the delays and costs borne by Petitioners were significant reasons for granting Petitioners leave to enforce the award on arbitral costs but also refused to grant Petitioners their court costs due to their occasioning use of one (1) hour more than the time reserved because of same day filing of motion materials. Continue reading “[:en]B.C. – arbitrator’s decision on costs qualifies as an award enforceable as judgment/order of the court – #150[:]”
[:en]B.C. – single notice to arbitrate breaching consent/privacy of parties cannot be regularized by court – #143[:]
[:en]B.C.’s Court of Appeal in South Coast British Columbia Transportation Authority v. BMT Fleet Technology Ltd., 2018 BCCA 468 refused to accept that a a single notice to arbitrate against three (3) different parties under four (4) separate contracts was merely a curable irregularity. Instead, the Court declared that the notice was a nullity, having breached the essence of the parties’ respective consents to arbitrate through a pre-determined, private process and could not be salvaged by a subsequent court order declaring it be valid. Continue reading “[:en]B.C. – single notice to arbitrate breaching consent/privacy of parties cannot be regularized by court – #143[:]”
[:en]B.C. – proper sequence for leave to appeal analysis applied to reverse result of appeal – #142[:]
[:en]In Richmont Mines Inc. v. Teck Resources Limited, 2018 BCCA 452, the B.C. Court of Appeal reversed an applications judge’s decision granting leave to appeal an arbitral award on a question of law due to the judge’s failure to follow the analytical framework established by Sattva Capital Corp. v. Creston Moly Corp., [2014] 2 SCR 633, 2014 SCC 53 and Teal Cedar Products Ltd. v. British Columbia, [2017] 1 SCR 688, 2017 SCC 32. The Court determined that the judge had reversed the analysis when he first determined the substantive issue of the correctness of the arbitrator’s decision and then, having agreed with the applicant, held that the applicant had identified an extricable question of law to appeal. By reversing the analysis back to its correct sequence, the Court reversed the result and refused leave to appeal. The Court also concluded its reasons with references to broad observations about the different approaches courts take to appeals of arbitral awards and trial decisions. Continue reading “[:en]B.C. – proper sequence for leave to appeal analysis applied to reverse result of appeal – #142[:]”
[:en]B.C. – arbitration agreement not inoperative simply because arbitral party’s litigation intertwines non-parties – #136[:]
[:en]In Ts’kw’aylaxw First Nation v. Graymont Western Canada Inc. (2018) BCSC 2101, Mr. Justice Gordon C. Weatherill held that, under section 15(2) of B.C.’s Arbitration Act, RSBC 1996, c 55, an arbitration agreement is not inoperative simply because a plaintiff advances intertwining claims against multiple defendants including non-parties to the arbitration agreement. Weatherill J. also reiterated that section 15 does not give the court any residual discretion to refuse a stay against one defendant on the basis that another defendant is a non-party to the arbitration agreement. Continue reading “[:en]B.C. – arbitration agreement not inoperative simply because arbitral party’s litigation intertwines non-parties – #136[:]”
[:en]B.C. – no special rules of procedure exist for self-represented arbitral parties – #135[:]
[:en]In Meszaros v. 464235 B.C. Ltd., 2018 BCSC 2033, Madam Justice Linda A. Loo dismissed a self-represented arbitral party’s attempt to set aside a final award based on arbitral error involving alleged failure to observe the rules of natural justice. The alleged arbitral errors were rather the results of decisions taken by the self-represented party to ignore the arbitrator’s directions and the party’s obligations under the Domestic Commercial Arbitration Rules of Procedure applicable to the arbitration administered by the British Columbia International Commercial Arbitration Centre. It is not the arbitrator’s function or duty to tell parties how to prove their cases or, after the close of the case and closing arguments, to inform a party that it had holes or weaknesses in its case. Continue reading “[:en]B.C. – no special rules of procedure exist for self-represented arbitral parties – #135[:]”
[:en]B.C. – arbitral party required to repurpose prior arbitral discovery for use in court litigation – #132[:]
[:en]In Moneywise Financial Inc., v. Key Life WCF Financial Inc., 2018 BCSC 1789, Mr. Justice Trevor C. Armstrong granted part of Plaintiff’s application for document discovery by ordering that a Defendant examine a prior arbitration document disclosure and provide Plaintiff copies of any documents in its possession to satisfy a category of documents sought by Plaintiff in later court litigation. The initial arbitration dealt with a dispute over unpaid instalments of the sale price and the subsequent court litigation concerned ownership of assets divested by a Defendant. Despite the gap in disputes and the addition of three other parties to the court litigation uninvolved in the arbitration, Armstrong J. ordered that disclosure of the arbitration bundles serve their new purpose in the court litigation. Continue reading “[:en]B.C. – arbitral party required to repurpose prior arbitral discovery for use in court litigation – #132[:]”
[:en]B.C. – Court of Appeal reasserts need for only an “arguable case” to justify stay of proceedings – #125[:]
[:en]In Sum Trade Corp. v. Agricom International Inc., 2018 BCCA 379, the B.C. Court of Appeal upheld a stay of court litigation in favour of arbitration, reiterating that, unless a party “clearly” establishes that it is not a party to an arbitration agreement, then the other party seeking a stay need only have an “arguable case” that the prerequisites under section 8(2) of B.C.’s International Commercial Arbitration Act, RSBC 1996, c 233 have been met. The Court noted that, over the years, the prima facie or “arguable case” analysis had been extended from cases involving the validity of arbitration clauses to cases concerning the applicability of such clauses. The Court also cautioned that earlier judicial comments regarding arbitration must be read in light of the increased deference now applied by the courts. Continue reading “[:en]B.C. – Court of Appeal reasserts need for only an “arguable case” to justify stay of proceedings – #125[:]”
[:en]B.C. – arbitration parties cautioned to present their full case or risk post-award issue estoppel – #107[:]
[:en]In Fortinet Technologies (Canada) ULC v. Bell Canada, 2018 BCCA 277, the B.C. Court of Appeal cautioned arbitration parties not to “hold back arguments” or change their position afterwards when challenging the resulting award in court. The Court held that “issues” can be decided either explicitly and implicitly by awards and that (a) issue estoppel prevents a party in the post-award period from raising an issue it failed to raise or overlooked during the arbitration and (b) abuse of process prevents a party from taking a position inconsistent with that taken during the arbitration. Continue reading “[:en]B.C. – arbitration parties cautioned to present their full case or risk post-award issue estoppel – #107[:]”
[:en]B.C. – case reflects versatile advocacy effective in preserving opportunity to arbitrate dispute – #093[:]
[:en]Asian Concepts Franchising Corporation (Re), 2018 BCSC 1022 serves as fresh reminder that effective arbitration practitioners must navigate well-beyond the safe harbours of their own practice area. Practitioners must also venture into court litigation and appreciate the impact of specialized legislation such as the Bankruptcy and Insolvency Act, RSC 1985, c B-3 (“BIA”) and the Arthur Wishart Act (Franchise Disclosure), 2000, SO 2000, c 3 (“Wishart Act”) to ensure that developments outside their arbitration do not compromise resolution of the dispute being arbitrated. The versatility of that advocacy rewards by preserving the claim underlying the arbitration. Continue reading “[:en]B.C. – case reflects versatile advocacy effective in preserving opportunity to arbitrate dispute – #093[:]”