Domestic Archives - Page 16 of 21

February 25, 2022May 4, 2022

BC- Decision not to make a decision on jurisdiction grounds, not a “decision” barred by “no appeal” provision – #587

In Terrace Community Forest LLP v Skeena Sawmills Ltd., 2022 BCCA 37, the Court of Appeal for British Columbia started its reasons with, “this appeal is about the meaning of the word or. It is also about the goals of legislated regimes and the role of courts in protecting the interests of non-parties to arbitration proceedings”. Section. 29(4) of the B.C. Arbitration Act, S.B.C. 2020, c. 2 provides that a subpoena issued by an arbitrator to a non-party can be set aside on an application “to the arbitral tribunal or the Supreme Court”. The parties to this court application disputed whether the word “or” was inclusive (A or B or both) or exclusive (A or B, but not both). The Court of Appeal agreed with the judge below, Justice Milman, that “or” is to be given an exclusive meaning. Because the non-party asked the arbitrator to set aside the subpoena first, the court had no jurisdiction under s. 29(4). Therefore, Justice Milman declined to apply s. 29, and an appeal of his decision was not prohibited under s. 29(10). The appeal was dismissed.

February 16, 2022May 4, 2022

Ontario – Court overturns decision, “deciding the matter” of jurisdiction de novo – #586

In Electek Power Services Inc. v. Greenfield Energy Centre Limited Partnership, 2022 ONSC 894, Justice Perell set aside a preliminary jurisdiction decision rendered by a three-person arbitral tribunal. The tribunal found that the parties had agreed to arbitrate their dispute. The matter came before the court as an application under section 17(8) of the Arbitration Act, 1991, S.O. 1991, c. 17, which provides that the court may “decide the matter” of a jurisdictional objection where the arbitral tribunal rules on the objection as a preliminary question. Following the approach set out by the Divisional Court in The Russian Federation v. Luxtona Limited, 2021 ONSC 4604 (Lisa’s 2021 Top Pick: Ontario – Russian Federation v. Luxtona Limited (Part 1) – #564), Justice Perell held that he was required to “decide the matter” of whether the parties agreed to arbitrate on a de novo basis. He explicitly rejected the submission that administrative law or appellate standards of review have any relevance in an application to the court to “decide the matter” of whether parties agreed to arbitrate their dispute.

February 15, 2022May 4, 2022

Ontario – Statute gives unintended economic incentives to avoid mandatory arbitration – #585

In Metropolitan Toronto Condominium Corporation No. 1171 v Rebeiro, 2022 ONSC 503, Justice Myers granted a stay of an application brought by a condominium corporation to require the respondent unit holder to comply with the condominium by-laws and rules, and ordered the dispute to go to mediation and arbitration. Justice Myers found that the condominium corporation had deliberately framed its relief to avoid the provisions of the Ontario Condominium Act, 1998, S.O. 1998, c. 19, which require mediation and arbitration pursuant to the Ontario Arbitration Act, 1991, S.O. 1991, c. 17, if certain relief is sought. Significantly, he found that the Act provides economic incentives to the condominium corporation to seek relief from the courts rather than to go mediation and arbitration. First, the Act states that if the condominium corporation wins damages or costs in court, its full legal costs can be added to the owner’s common expenses. Second, it allows the condominium corporation to demand payment of ongoing legal costs, such as for lawyers letters, in the midst of the dispute. If the unit holder refuses to pay, the condominium corporation may file a lien against the unit, which escalates the existing dispute and creates a new one.

February 15, 2022May 4, 2022

B.C. – No breach of dispute resolution clause, no damages where party refused communication to resolve dispute – #584

In JM Bay Properties Inc. v Tung Cheng Yuen Buddhist Association, 2022 BCSC 81, Justice Walker found that a contract’s dispute resolution clause which provided that “parties shall make all reasonable efforts to resolve their dispute by amicable negotiations and agree to provide, without prejudice, frank, candid and timely disclosure of relevant facts, information and documents to facilitate these negotiations” was not breached in circumstances where a party decided not to engage in any further communication with the other party to resolve a dispute between them. Justice Walker noted that the party alleging breach did not raise its complaint about the dispute resolution clause at the time of the contract’s termination. Finally, he held that even if the party were in breach, the party alleging the breach failed to establish that it had suffered any damages.

February 11, 2022May 4, 2022

Alberta –No appeal of decision refusing leave to appeal arbitration award, despite s. 48 of Alberta Arbitration Act – #583

In 719491 Alberta Inc v Canada Life Assurance Company, 2021 ABCA 419, a three-member panel of the Court of Appeal of Alberta denied the applicant’s requests (i) for permission to appeal the chambers judge’s order refusing leave to appeal the arbitration award (the “Leave to Appeal Request”)and (ii) for permission to appeal the chambers judge’s dismissal of its application to set aside the award (the “Set Aside Request”). As a preliminary matter on the Leave to Appeal Request, the applicant asked the Court to reconsider its previous decision in Sherwin-Williams Company v. Walls Alive (Edmonton) Ltd., 2003 ABCA 191(“Sherwin-Williams”), which held that leave to appeal decisions are not appealable to the Court of Appeal under s. 48 of Alberta’s Arbitration Act, RSA 2000, c A-43 (the “Arbitration Act”). Section 48 provides, in relevant part, that an appeal from the decision of the Court of Queen’s Bench on an appeal of an award (s. 44) may be made to the Court of Appeal with leave. However, based on the case law on the test for leave to reconsider a previous decision, which includes whether the decision has some “obvious, demonstrable flaw,” the Court denied leave and ruled that it did not have jurisdiction to hear the Leave to Appeal Request. The Court similarly rejected the applicant’s Set Aside Request based on the finding that the chambers judge did not err in holding that the arbitrator did not exceed his jurisdiction.

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 2, 2022May 4, 2022

Ontario – It’s not cricket: Ontario court emphasizes arbitral awards must include reasons – #580

In Alberta Cricket Association v. Alberta Cricket Council, 2021 ONSC 8451, Justice Perell took the rare step of setting aside an arbitral award for failing to state the reasons on which it was based. Justice Perell found that the arbitrator of a sports-related dispute had failed to deliver adequate reasons and so he set aside the award and directed a new arbitration to be conducted before a different arbitrator.

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 20, 2022May 4, 2022

Saskatchewan – Waiver of arbitration in joint venture agreement read strictly – #576

In Beauchamp v Beauchamp, 2021 SKCA 148, the Saskatchewan Court of Appeal dismissed an appeal from a case management judge’s decision, which provided for how farming operations would be conducted for the following year, on an interim basis, until a dispute involving a Joint Venture Agreement (“JVA”) governing those operations was finally resolved. The appellant alleged that the judge misinterpreted his waiver of the right to arbitrate contained in the JVA. This waiver was provided on three occasions, in his agreement to put matters to the case management judge for the sake of expediency and urgency and in two written briefs, each using slightly different language. In these, the appellant agreed: 1) the case management judge could “make an order providing for how this grain farm is [to be] operated for the 2021 to 2022 crop year”; 2) he “will waive his reliance on the arbitration clause if” the judge was distributing the farming equipment or dividing the farming operation on an interim basis, but would not waive these rights if the judge were to order the entirety of the farming operation be divided exclusively among the only the other parties in the dispute; and 3) he “will waive his reliance on the arbitration clause if the Court’s authority to distribute the equipment of New Age Farms on an interim basis is an issue to the extent necessary to effect the dividing of the farm operation.” The Court of Appeal found that because the case management judge did not order the farming operation be exclusively undertaken by the other parties, and directed on an interim basis only how farming operations were to proceed, the judge did not violate the terms of the waiver. Indeed the case management judge had expressly held that the jurisdiction issue raised by the appellant needed to be resolved before the underlying litigation could proceed.

January 18, 2022May 4, 2022

Ontario – tolling agreement from arbitration overcomes limitation defence at pleadings amendment stage – #574

In Vale Canada Limited v. Solway Investment Group Limited et al, 2021 ONSC 7562, Justice Koehnen considered, in the context of a motion to amend a Statement of Claim, the impact of a tolling agreement made in respect of claims made in arbitrations that had been commenced and concluded five years previous. In a decision that canvasses the law on the interaction of motions to strike and motions to amend, Justice Koehnen ultimately permitted the amendments, without prejudice to the defendants to plead a limitation defence and to bring a motion to strike.