B.C. Archives - Page 7 of 17 - Arbitration Matters

February 3, 2022October 19, 2022

B.C. – Claims against non-party to arbitration agreement stayed with claims against parties – #581

In Goel v Dhaliwal, 2021 BCSC 2382, Justice MacDonald dismissed as premature a motion to lift a stay of court proceedings in favour of arbitration for the limited purpose of allowing the plaintiffs to file an amended Statement of Claim with respect to claims against a defendant who was not a party to the arbitration. The parties did not agree on whether these claims were new or not. The arbitration had not yet concluded and the proposed amendments appeared to raise issues that overlapped with those which were before the arbitrator. Justice MacDonald found that the extent of the overlap, if any, would be clearer after the arbitration was concluded. In addition, the plaintiffs had also brought an application for judicial review of a Partial Final Award issued by the arbitrator which had not yet been disposed of. Justice MacDonald found that it was not clear whether the plaintiffs would pursue the amendments if they were successful on the judicial review application.

February 1, 2022May 4, 2022

B.C. – Appeal court considering arbitrator’s alleged error of law where law changed post-award – #579

In Clemina Hydro Power Limited Partnership v British Columbia Hydro and Power Authority, 2022 BCSC 25, Justice Carol J. Ross denied the petitioners’ application for leave to appeal an arbitral award arising out of two energy purchase agreements. Justice Ross found the petitioners failed to identify an extricable legal error in the arbitrator’s contract interpretation exercise. She also held that, in any event, the petitioners’ appeal had been rendered moot. One issue Justice Ross addressed was what the appellate court should do with an alleged error of law where the law has changed between the initial decision and the appeal.

January 19, 2022May 4, 2022

BC – Arbitrator’s decision set aside for lack of procedural fairness – #575

In Cyrenne v YWCA Metro Vancouver, 2021 BCSC 2406, Justice Baird of the British Columbia Supreme Court set aside a statutory arbitrator’s decision to grant an Order of Possession in a residential tenancies dispute under the Residential Tenancy Act, SBC 2002, c 78 (the “RTA”). He found that the hearing lacked procedural fairness because the arbitrator failed: (i) to judicially consider an adjournment request (dismissing it out of hand); and (ii) to give the tenant a reasonable opportunity to fully present her case (e.g. cutting her off in the middle of her submissions after a “time limit” had expired). Although the Arbitration Act, SBC 2020, c 2 does not apply to RTA disputes, it is illustrative of what procedural fairness dictates in relation to fair hearings.

January 7, 2022May 4, 2022

Myriam’s 2021 Top Pick: B.C. – lululemon athletica inc. v. Industrial Color Productions Inc. – #571

Famed Canadian athletic wear company lululemon athletica generated a noteworthy court decision this year, which has nothing to do with the controversy surrounding the sartorial choices it has made in designing Team Canada’s (very red!) uniform for the Beijing Olympics. Rather, the case adds to the significant number of decisions rendered of late in which the courts have grappled with their role – and the tests they must apply – when an application to set aside an international arbitral award comes before them under the UNCITRAL Model Law on International Commercial Arbitration (for a deep dive on this topic, see Lisa’s top pick, Russian Federation v. Luxtona Limited).

January 5, 2022May 4, 2022

Laura’s 2021 Top Pick: B.C. – Spirit Bay Developments Limited Partnership v. Scala Developments Consultants Ltd. – #569

Spirit Bay Developments Limited Partnership v Scala Developments Consultants Ltd., 2021 BCSC 1415, is part of a series of cases that leave an important question undetermined at the end of 2021: what is Vavilov’s impact on commercial arbitration appeals? Although on its own Spirit Bay is not the most significant case of the year, the impact of the Vavilov on commercial arbitration appeals will be studied with interest by arbitration practitioners in 2022 and is an important aspect of arbitration jurisprudence in 2021.

December 22, 2021May 4, 2022

Julie’s 2021 Top Pick: B.C. – Allard v The University of British Columbia – #567

Costs results in domestic commercial arbitrations are often based on, or consistent with, the norms of international commercial arbitration and can differ greatly from what is expected based on standard litigation practice. This can be an unpleasant surprise for counsel and their clients who are unfamiliar with this. In Allard v The University of British Columbia Justice Douglas confirmed that the “starting point” for an award of costs in domestic commercial arbitration is that the winner is entitled to its reasonable legal fees and disbursements, or what is referred to in litigation practice as “solicitor client costs” or “indemnity costs” and not “party party” costs, which many litigators would expect. There are, of course, exceptions to this “normal rule” for assessing costs. Alberta’s Arbitration Act, RSA 2000, c A-43 perhaps provides one, as is discussed below.

December 20, 2021May 4, 2022

James’s 2021 Top Pick: B.C. – Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District – #565

My top pick for 2021 is Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District, 2021 SCC 7 [Wastech]. For most, Wastech’s primary importance relates to the common law duty of good faith in the exercise of contractual discretion. But for arbitration aficionados, another key aspect is what the Supreme Court of Canada’s concurring Justices said, and what the majority Justices declined to say, about the standard of review applicable to appeals from arbitral awards.

December 8, 2021May 4, 2022

BC – Stay granted where two relevant agreements, only one having arbitration clause – #562

In Canadian Pacific Railway Company v Canadian National Railway Company, 2021 BCSC, Justice Iyer ordered a stay of an action in favour of arbitration in circumstances in which she found that it was arguable that the parties’ dispute fell within two contracts between the parties – one that contained a mandatory arbitration clause and one that did not. Which agreement governed the dispute was an issue for the arbitrator to decide.

December 6, 2021May 4, 2022

BC – Franchisor addresses Uber arbitration agreement flaws to obtain stay of proceedings – #560

In Kang v Advanced Fresh Concepts Franchise Corp., 2021 BCPC 262, Small Claims Court Judge S. Archer granted a motion to stay an action in favour of arbitration under either section 8 of the International Commercial Arbitration Act, R.S.B.C. 1996 c.233 or, in the alternative, section 7 of the B.C. Arbitration Act, S.B.C. 2020, c.2. Judge Archer concluded that the international Act applied because the parties, at the time of their agreement, had their places of business in different countries, but that it didn’t matter because the test for a stay was essentially the same. Moreover, she distinguished the facts from those in Uber Technologies Inc. v Heller, 2020 SCC 16; the arbitration agreement was not unconscionable because the income earned by the claimant franchisee was “significant” as compared with the cost to commence an arbitration under the ICDR Rules.

November 23, 2021May 4, 2022

BC – correctness standard of review applies on set aside applications on jurisdiction grounds – #555

In lululemon athletica canada inc. v Industrial Color Productions Inc., 2021 BCCA 428, Justice Marchand, for the British Columbia Court of Appeal, dismissed lululemon’s appeal of the chambers judge’s dismissal of its application to set aside the arbitrator’s award made in favour of Industrial Color Productions (“ICP”). The issue was whether the arbitrator had acted outside his jurisdiction in awarding ICP damages that lululemon argued were never claimed in the pleading. Justice Marchand found that the chambers judge had applied the wrong standard of review – the standard of review is correctness and United Mexican States v Cargill, 2011 ONCA 622 remains the leading case on the standard of review for set aside applications on matters of jurisdiction. Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 and Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 were not helpful in this context. However, Justice Marchand found that the chambers judge’s decision to dismiss the set aside application was correct; the arbitrator did not stray outside the scope of the submission to arbitration when the impugned pleading was read generously.