[: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[:]”
[:en]B.C. – court determines arbitrator’s key procedural decisions respected procedural fairness – #076[:]
[:en]In PHS Community Services Society v. Swait, 2018 BCSC 824, Madam Justice Neena Sharma analysed three key procedural decisions common to commercial arbitration and considered whether they qualified as breaches of procedural fairness. Though fact-specific, her analysis of each lends itself as a guide for similar procedural skirmishing in commercial arbitration for both counsel and arbitrators. Continue reading “[:en]B.C. – court determines arbitrator’s key procedural decisions respected procedural fairness – #076[:]”
[:en]B.C. – arbitral party files counter claim for breach of undertaking to arbitrate and confidentiality triggered by other party instituting litigation – #073[:]
[:en]In B & L Holdings Inc. v. SNFW Fitness BC Ltd., 2018 BCSC 849, Mr. Justice Leonard Marchand dealt with a request for an adjournment and, in doing so, gave insight into a seldom discussed by-product of litigation involving arbitration. Marchand J.’s summary of the procedural history included a note that the defendant parties bound by arbitration with one of the plaintiffs filed a counter claim for damages related to plaintiff’s decision to go to public court rather than confidential arbitration. Continue reading “[:en]B.C. – arbitral party files counter claim for breach of undertaking to arbitrate and confidentiality triggered by other party instituting litigation – #073[:]”
[:en]B.C. – arbitral termination order is not a final award and non-parties cannot maintain earlier stay of litigation – #064[:]
[:en]In Tresoro Mining Corporation v. Mercer Gold Corp. (B.C.), 2018 BCCA 160, the B.C. Court of Appeal determined that an arbitration tribunal’s order to terminate arbitration for non-payment of the tribunal’s fees is not a final award and does not determine the merits of the dispute. That order cannot be used by non-parties to the arbitration to preserve an earlier stay of court litigation benefiting them. The Court determined that it would be an injustice to maintain a stay of litigation and allowed the litigation can proceed against the non-parties. Continue reading “[:en]B.C. – arbitral termination order is not a final award and non-parties cannot maintain earlier stay of litigation – #064[:]”
[:en]B.C. – ex parte communications on procedural matters create reasonable apprehension of bias and grant judicial review of award – #063[:]
[:en]The B.C. Court of Appeal in Hunt v. The Owners, Strata Plan LMS 2556, 2018 BCCA 159 held that ex parte communications between one of the parties and the arbitrators on procedural matters would create a reasonable apprehension of bias, leading an informed person to believe that the arbitrators would likely not decide the matter fairly. Ruling that the test for a reasonable apprehension of bias required no proof of actual bias or that the communications changed the award, the Court granted the appeal from the chambers’ judge’s decision in Hunt v. The Owners, Strata Plan LMS 2556, 2017 BCSC 786 which initially dismissed a judicial review application. Continue reading “[:en]B.C. – ex parte communications on procedural matters create reasonable apprehension of bias and grant judicial review of award – #063[:]”
[:en]B.C. – court identifies limits to duty of good faith to meet party’s contractual expectations – #062[:]
[:en]In allowing an appeal on a question of law, Mr. Justice Mark T. MacEwan in Greater Vancouver Sewerage and Drainage District v. Wastech Services Ltd., 2018 BCSC 605, ruled that the doctrine of good faith cannot fill gaps left by parties in their contracts. One party’s exercise of its contractual rights can deny the other party’s contractual expectations but will not breach the duty of good faith if their contract contains no express or implied terms to safeguard those expectations. MacEwan J. held that sophisticated parties do leave gaps in their agreements which either might regret even if the situation is “highly unlikely”. Continue reading “[:en]B.C. – court identifies limits to duty of good faith to meet party’s contractual expectations – #062[:]”
[:en]B.C. – parties cannot waive application of International Commercial Arbitration Act because its application is mandatory – #059[:]
[:en]The B.C. Supreme Court in McHenry Software Inc. v. ARAS 360 Incorporated, 2018 BCSC 586 held that parties could not waive the application of B.C.’s International Commercial Arbitration Act, RSBC 1996, c 233 (“ICAA”) because its application was mandatory. In addition, despite the parties having conducted their entire arbitration according to the Arbitration Act, RSBC 1996, c 55 (“Arbitration Act”), Madam Justice Loryl D. Russell also determined that the party seeking to rely on the ICAA, and its more limited appeal provisions, could not be estopped from doing so as the ICAA was enacted for a public purpose. Continue reading “[:en]B.C. – parties cannot waive application of International Commercial Arbitration Act because its application is mandatory – #059[:]”
[:en]B.C. – court applies ‘arguable case’ test to stay action based on arbitration clause external to contract – #034[:]
[:en]The B.C. Supreme Court determined that an applicant for a stay of proceedings under section 8 of B.C.’s International Commercial Arbitration Act, RSBC 1996, c 233 need only meet an arguable case when establishing whether section 8 could support a stay in favour of arbitration. Mr. Justice Warren B. Milman in Sum Trade Corp. v. Agricom International Inc., 2017 BCSC 2213 determined that both parties had valid arguments to make which went beyond pure questions of law or superficial considerations of documentary evidence and were best determined by an arbitrator with industry expertise. Continue reading “[:en]B.C. – court applies ‘arguable case’ test to stay action based on arbitration clause external to contract – #034[:]”
[:en]B.C. – court reverses arbitrator, ruling arbitrator has no jurisdiction due to parties’ settlement – #032[:]
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In Lithium One Homes Ltd. v. Abakhan & Associates Inc., 2017 BCSC 2189, B.C.’s Supreme Court granted an appeal of an arbitrator’s decision by which he had decided he had jurisdiction. Mr. Justice Ronald S. Tindale determined that the parties had signed a settlement which released each party from all disputes arising out of the contract containing their arbitration agreement. Tindale held that the arbitrator failed to give sufficient reasons why he decided he had jurisdiction and, in reviewing the facts, Tindale J. concluded that without a dispute between the parties, the arbitrator lacked jurisdiction because of the settlement. Continue reading “[:en]B.C. – court reverses arbitrator, ruling arbitrator has no jurisdiction due to parties’ settlement – #032[:]”
[:en]B.C. – Defendants take one procedural step too many and cannot stay court action – #028[:]
[:en]In Pixhug Media Inc. v. Steeves, 2017 BCSC 2171, Mr. Justice Paul J. Pearlman determined that Defendants can successfully contest interim measures obtained by a Plaintiff, including cross-examination on affidavit, document requests and a request security for costs related to the interim measures without risk of being precluded from obtaining the stay. Defendants could not, however, take any steps which invoked the assistance of the court or advanced the litigation before applying for a stay. Continue reading “[:en]B.C. – Defendants take one procedural step too many and cannot stay court action – #028[:]”