In Balfour v. Tarasenko, 2019 BCSC 2212, knowledge of a pending but unfinished arbitration qualified as one of the facts relevant to a declaration under B.C.’s Fraudulent Conveyance Act, RSBC 1996, c 163 to void a land transfer made during the arbitration and before the final award issued. Though hampered by an incomplete evidentiary record presented by self-represented litigants, Mr. Justice Dennis K. Hori did identify the land transfer as having the effect of delaying, hindering or defeating creditors.
Continue reading “B.C. – land transfer made during arbitration later voided as fraudulent attempt to defeat creditors – #258”B.C. – court asserts inherent jurisdiction under insolvency legislation to override arbitration clauses – #254
In Petrowest Corporation v. Peace River Hydro Partners, 2019 BCSC 2221, Madam Justice Nitya Iyer held that mandatory terms of B.C.’s Arbitration Act, RSBC 1996, c 55 do not prevent courts from exercising their inherent jurisdiction to refuse to stay court proceedings where provisions of the Bankruptcy and Insolvency Act, RSC 1985, c B-3 apply. Iyer J. lists a number of factors to consider when exercising that jurisdiction. The reasons and result mark an innovation in how courts balance respect of party autonomy endorsed by arbitral legislation with interests recognized in other legislation. Iyer J. also held that a trustee in bankruptcy is a party to an arbitration agreement when the trustee institutes litigation to enforce the terms of the main contract in which the arbitration agreement appears.
Continue reading “B.C. – court asserts inherent jurisdiction under insolvency legislation to override arbitration clauses – #254”B.C. – Court of Appeal provides summary of principles applicable in appeals of arbitration awards – #248
In MSI Methylation Sciences, Inc. v. Quark Venture Inc., 2019 BCCA 448, B.C.’s Court of Appeal upheld an award, agreeing with the chambers judge that the arbitrator had not breached natural justice by allegedly failing to give the losing party an opportunity to address a theory of damages used in the award. The Court held that the alleged error did not raise a distinction of sufficient substance to render the arbitration process unfair. The Court also provided a summary of principles applicable in appeals of arbitration awards. For more on the issues in first instance, see the earlier Arbitration Matters note “B.C. – no arbitral error where arbitrator seeks assistance on legal principles raised in, but beyond, parties’ authorities.
Continue reading “B.C. – Court of Appeal provides summary of principles applicable in appeals of arbitration awards – #248”B.C. – unlike agreement to arbitrate, class action waiver not effective to resist class action certification – #241
In Pearce v. 4 Pillars Consulting Group Inc., 2019 BCSC 1851, Mr. Justice Andrew P.A. Mayer declined to allow a class action waiver to override the mandatory provisions of B.C.’s Class Proceedings Act, RSBC 1996, c 50. In contrast to cases enforcing parties’ agreements to arbitrate and thereby resist class action certification, Mayer J. determined that the waiver’s only purpose was to avoid a class action. Though B.C. legislation did not prohibit such waivers, Mayer J. determined that the omission did not thereby constitute a legislative choice permitting class action waivers. He had no judicial discretion once the mandatory requirements for class action certification were met.
Continue reading “B.C. – unlike agreement to arbitrate, class action waiver not effective to resist class action certification – #241”B.C. – broad interpretation of carve out in arbitration clause risks nullifying agreement to arbitrate – #237
In Clayworth v. Octaform Systems Inc., 2019 BCCA 354, Madam Justice Lauri Ann Fenlon granted a stay of non-injunctive proceedings in first instance, acknowledging that Appellant had met the “low threshold” of “some merit” in her appeal. The issues on appeal concerned whether an exception in an arbitration agreement should be interpreted broadly enough to encompass claims brought in court or is the correct question is whether those court claims are clearly beyond the scope of the mandatory arbitration clause. The appeal will also resolve when does a court risk reading an exclusion clause so broadly that it nullifies the arbitration clause.
Continue reading “B.C. – broad interpretation of carve out in arbitration clause risks nullifying agreement to arbitrate – #237”B.C. – anti-suit injunction based on contract enjoins party from pursuing arbitration administered outside Canada – #235
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”