B.C. Archives - Page 3 of 16 - Arbitration Matters

April 11, 2023April 10, 2023

B.C. – Arbitrator’s findings binding in subsequent court proceeding – #727

In his judgment from the trial in Betts v. Zienowicz, 2023 BCSC 328, Justice Macintosh considered, as a preliminary matter, the admissibility of findings of fact made in an earlier arbitration between the same individual parties and regarding the same issues. As no appeal had been taken from the Arbitrator’s award and given the deference owed to arbitral findings, Justice Macintosh adopted the facts as found by the Arbitrator in considering the issues before him. He then went on to find in favour of the plaintiffs, as had the Arbitrator.

April 10, 2023April 4, 2023

BC – Court determines arbitrator jurisdiction, exercising exception to competence-competence – #726

In Isagenix International LLC v. Harris, 2023 BCCA 96, Justice Griffin, for the British Columbia Court of Appeal, upheld an order dismissing the Appellant’s application made pursuant to section 8 of the International Commercial Arbitration Act, RSBC 1996, c 233 (the “ICCA”) for a stay of proceedings in favour of arbitration. In particular, she rejected the Appellant’s argument that the chambers justice had misapplied the principle of competence-competence by deciding the question about whether the underlying negligence claim fell within the scope of the arbitration clause, rather than referring the jurisdictional matter to the arbitrator. Justice Griffin found that the chambers justice did not err in law because he came within one of the well-established exceptions to the competence-competence rule.

March 29, 2023March 24, 2023

B.C. – Non-participation in arbitration leads to procedural complexity – #724

In UMS Solutions, Inc. v Cornell, 2023 BCSC 214, Justice Morellato refused to dismiss a B.C. action seeking to enforce a New York judgment, which confirmed an arbitration award, on the basis of delay. This procedurally tangled, still unfolding dispute, first saw UMS Solutions, Inc. (“UMS”) succeed in arbitration claims in New York against a B.C. resident, Brad Cornell (“Cornell”), for purported breaches of a representation agreement (“Agreement”). Cornell elected not to participate in the New York arbitration. UMS next converted the arbitral award into a New York court judgment. Cornell failed in his attempt to have the judgment set aside in New York. UMS then commenced a B.C. action on the New York judgment. Justice Morellato denied there was inordinate delay in the B.C. action and permitted UMS’s claim to continue.

March 27, 2023March 27, 2023

B.C. – The sensitive issue of adverse credibility findings and requests for accommodation – #722

Campbell v The Bloom Group, 2023 BCCA 84 raises a point of procedural fairness of interest to all decision makers: the importance of being mindful that adverse credibility findings not be influenced by requests for witness accommodation made either for disability or analogous reasons. Here, in obiter, the Court of Appeal noted that, as the Arbitrator had not erred in his negative credibility findings based on the many other reasons he found to disbelieve the Appellant’s evidence, it was unnecessary for him to comment on the fact that he also doubted the truthfulness of the Appellant’s evidence as to her need for accommodation based on disability. Decision makers should try to avoid even the appearance of adverse credibility findings being based on generalities or accommodations sought.

March 13, 2023March 10, 2023

B.C. – Question of statutory interpretation raises extricable error of law – #718

In Insurance Corporation of British Columbia v EB, 2023 BCSC, Justice Crossin heard an application to set aside an award and both an application for leave to appeal an arbitral award and the appeal, but dismissed the appeal on its merits. The Applicant had correctly identified two extricable errors of law: interpretation of a statute; and whether the test set out in case law had been properly applied. However, he found that the Arbitrator made no legal error. He also dismissed the set aside application because the Arbitrator made no “arbitral error” by exceeding her jurisdiction.

February 28, 2023February 23, 2023

B.C. – When findings of fact become errors of law – #715

In A.L. Sims and Son Ltd. v. British Columbia (Transportation and Infrastructure), 2022 BCCA 440, Justice Dickson held that a material misapprehension of evidence going to the core of the outcome of an arbitral award can amount to an extricable legal error on which a party can seek leave to appeal from the arbitral award. Sound familiar?

February 27, 2023February 23, 2023

B.C. – Recent shift towards competence-competence in arbitration clause interpretation? – #714

In 3-Sigma Consulting Inc. v Ostara Nutrient Recovery Technologies Inc, 2023 BCSC 100. Justice Matthews granted a stay of proceedings, finding that the, “arguable case standard provides room for a judge to dismiss a stay application when there is no nexus between the claims and the matters reserved for arbitration, while referring to the arbitrator any legitimate question of the scope of the arbitration jurisdiction” relying upon Clayworth v. Octaform Systems Inc., 2020 BCCA 117 at para. 30. Here there was such a nexus, so the matter was referred to the arbitrator to decide jurisdiction.

February 17, 2023February 10, 2023

B.C. – Appeal requires legal errors to affect outcome – #713

In Spirit Bay Developments Limited Partnership v. Scala Developments Consultants Ltd., 2022 BCCA 407 (“Spirit Bay”) the Court affirmed the principle that courts should be reluctant to intrude in arbitral proceedings – even in cases where the award contains unhelpful discursions into irrelevant legal principles and legal errors that don’t affect the outcome.

February 16, 2023February 10, 2023

B.C. – Court upholds pre-judgment garnishing order despite arbitration clause – #712

In Care Tops International Limited v. PPN Limited Partnership, 2022 BCSC 2252, Master Robertson of the BC Supreme Court refused to set aside a pre-judgment garnishing order because the Plaintiff failed to draw the Court’s attention to a mandatory arbitration clause during the ex parte application granting that order. Master Robertson found that this omission was not material because it would have had no impact on the outcome; the arbitral proceedings had not yet commenced. As such, she did not have to determine if the Court, or an arbitral tribunal, was better placed to determine the interim relief.

October 12, 2022October 13, 2022

B.C. – Leave to appeal granted on question of law of public importance – #670

In The Graham-Aecon Joint Venture v. Malcolm Drilling Company Inc., 2022 BCCA 319, the Applicants (The Graham-Aecon Joint Venture and related entities) sought leave to appeal an arbitral award where the underlying dispute turned on the proper interpretation of section 8(d) of the Limitation Act, S.B.C. 2012 c. 13. That provision states that a claim is “discovered” “on the first day on which the person “knew or reasonably ought to have known…that, having regard to the nature of the injury, loss or damages, a court proceeding would have been an appropriate means to see to remedy the injury or loss”. Based on his interpretation of section 8(d), the Arbitrator had found that the claim was not time-barred. On application for leave to appeal, even though the Arbitrator’s reasons were “careful and thorough” Justice Voith decided to exercise his discretion to grant leave. He found the question of the proper interpretation of section 8(d) met the requirements of the Arbitration Act, S.B.C. 2020, c.2 for leave as it was a question of law that ‘cannot be dismissed through a preliminary examination’ and was of public or general importance as it had received little previous judicial attention.