Tag: B.C.

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”

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”

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”

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”

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”

In No. 20 CR Ventures Ltd. v Andrex Developments (1985) Ltd., 2019 BCSC 405, Mr. Justice John J. Steeves distinguished the requirements for establishing oppression and deadlock and, having concluded that deadlock existed, issued a series of orders leading to the liquidation of the corporation.  Despite having initially included an agreement to arbitrate deadlock, the shareholders opted to pursue their disagreement in court. For a recent case considering whether arbitration is an appropriate format to operate a business, see the Arbitration Matters note “Québec – arbitration not appropriate to conduct business or resolve operating disagreements”. 

Continue reading “B.C. – shareholders waive arbitration to resolve management deadlock – #179”

[: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]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.’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]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[:]”