Federal CA – Arbitrator/Adjudicator expressing “tentative views” in pre-adjudication mediation to foster settlement not indicative of bias – #515

In Fono v. Canada Mortgage and Housing Corporation, 2021 FCA 125, the Federal Court of Appeal heard a second-level appeal of a prothonotary’s decision to strike out parts of the appellant’s notice of application for judicial review and affidavit on the basis that they contained settlement privileged information, specifically, evaluative statements allegedly made by the labour adjudicator in a pre-hearing mediation, which the appellant argued demonstrated bias. The FCA found the Federal Court judge made no error in upholding the prothonotary’s decision, specifically noting that the impugned statements did not demonstrate bias merely because the labour adjudicator expressed tentative views on offers made and positions taken in the dispute with a view to fostering settlement.

Continue reading “Federal CA – Arbitrator/Adjudicator expressing “tentative views” in pre-adjudication mediation to foster settlement not indicative of bias – #515”

Federal – arbitral party’s post-recognition intentions not a ground to refuse recognition – #475

In Treaty Land Entitlement Committee Inc. v. Canada (Indigenous and Northern Affairs), 2021 FC 329, Mr. Justice Sébastien Grammond dismissed Canada’s submissions that he refuse registration of an award because (i) applicant had not explained how it intended to enforce the award and (ii) enforcement measures would not be available against the Crown.  Grammond J. rejected them as “contrary to the philosophy underpinning” the Commercial Arbitration Act, RSC 1985, c 17 (2nd suppl) (“Code”), stating that recognition of an arbitral award may be obtained “as of right”.  Grammond J. noted that “the reasons for which a court may refuse to homologate or annul an arbitration award are exhaustively set out” in article 36 of the Code and non-disclosure of applicant’s intentions with respect to enforcement is not one of those grounds.  As for post-recognition enforcement issues, Grammond J. commented that “I need not speculate about the immunities Canada could raise if the applicants attempted to enforce the award”.

Continue reading “Federal – arbitral party’s post-recognition intentions not a ground to refuse recognition – #475”

Federal – court declines to intervene regarding counsel’s alleged conflict of interest in investor-state arbitration – #398

In Geophysical Service Incorporated v. Canada (Attorney General), 2020 FC 984,  Madam Justice Martine St-Louis declined to intervene in a decision by Canada’s legal representative refusing to remove a member from the legal team representing Canada in an investor-state arbitration.  St-Louis J. held that (i) the staffing decision did not qualify as a public decision made by an entity subject to judicial review under the Federal Courts Act, RSC 1985, c F-7 and (ii) Applicants had not demonstrated the arbitral tribunal’s lack of jurisdiction to deal with the issue.  Applicants raised concerns regarding an individual newly assigned to the legal team representing Canada in the arbitration.  Applicants alleged a conflict based on that individual’s recent, prior employment relationship with the third-party funder with which Applicants had signed an agreement regarding its investor-state claim against Canada. Though St-Louis J. declined to intervene, in obiter she considered “there is little unambiguous evidence that [the individual] received information that would cause a conflict of interests”.

Continue reading “Federal – court declines to intervene regarding counsel’s alleged conflict of interest in investor-state arbitration – #398”

Federal – successful offer in all-or-nothing final offer arbitration can include agreement to arbitrate – #392

In Canadian National Railway Company v. Gibraltar Mines Ltd., 2020 FC 1034, Mr. Justice Michael D. Manson held that, in final offer arbitration, the absence of reasons in a decision qualified the decision as reasonable and correct.  Though one party objected to the other’s final offer including an agreement to arbitrate, Manson J. held that the arbitrator had to accept either offer “in its entirety” based on which offer the arbitrator considered more reasonable.  Final offer arbitration’s “all-or-nothing” approach prevents an arbitrator from extracting reasonable terms from one offer for inclusion in the other and the Canada Transportation Act, SC 1996, c 10 prohibited the arbitrator from explaining the choice made.

Continue reading “Federal – successful offer in all-or-nothing final offer arbitration can include agreement to arbitrate – #392”

Federal – appointing authority’s breach of appointment provisions raise no reasonable apprehension of bias – #382

In Grey v. Whitefish Lake First Nation, 2020 FC 949, Madam Justice Cecily Y. Strickland dismissed challenges to an arbitrator’s decision, applying correctness as the standard of review for questions of procedural fairness, including those which encompass issues of bias.  Despite the appointing authority’s breach of the “clear and unambiguous” regulations for appointing the arbitrator, the breach was not raised on appeal and did not affect the procedural fairness of the arbitration.   The arbitrator’s previous appointment did not give rise to a reasonable apprehension of bias.

Continue reading “Federal – appointing authority’s breach of appointment provisions raise no reasonable apprehension of bias – #382”

Federal – final offer arbitration characterized as “an intentionally high risk form of arbitration” – #260

Madam Justice Ann Marie McDonald in Canadian National Railway Company v. Gibraltar Mines Ltd, 2019 FC 1650 demonstrated that the “unique nature” of final offer arbitration distinguished it from “ordinary commercial arbitration” and informed expectations of procedural fairness.  The dissatisfied party objected to the administering institution’s decision to dismiss a preliminary application but provide reasons only after the arbitration concluded.  McDonald J. held that the decision was not part of the FOA process under challenge and did not affect the fairness of the process. McDonald J. also issued a permanent order declaring certain documents, created for the arbitration, to remain confidential.

Continue reading “Federal – final offer arbitration characterized as “an intentionally high risk form of arbitration” – #260”