Tag: B.C.

[: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]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]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]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]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]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]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]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]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]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[:]”