Manitoba Archives - Arbitration Matters

February 16, 2024February 20, 2024

Manitoba – Court of Appeal quashes appeal of decision declaring clause invalid – #816

In Pokornik v. SkipTheDishes Restaurant Services Inc., 2024 MBCA 3, the Court dealt with a perennial issue—stays of arbitration in the class proceeding context. The decision has a few interesting takeaways, both arbitration-related and not, including one about the competence-competence principle. It also raises the thorny issue of when a stay motion decision may be appealed under section 7(6) of Manitoba’s domestic arbitration statute.

October 23, 2023October 30, 2023

Manitoba – Procedural choices made for efficiency bind losing parties – #783

With what the Respondent must hope is the final chapter of a long and expensive saga, in Christie Building Holding Company, Limited v Shelter Canadian Properties Limited, 2023 MBCA 76 (CanLII), the Court of Appeal confirmed parties must live with the consequences of their decisions on how to conduct the arbitration. The parties agreed to forego obtaining transcripts of the arbitration and the formalities of entering thousands of documents as exhibits (only five were formally marked as such). C lost the arbitration and clearly regretted its agreement to limit the evidentiary record. The nature of the “record” was at the heart of the Applicant C’s two trips to the Manitoba Queen’s Bench, one to the King’s Bench, and two to the Court of Appeal. C was unsuccessful at every turn. In the end, the Court of Appeal did not agree the lower court had mistakenly declined jurisdiction by rejecting C’s attempt to recreate the record by adducing affidavit evidence of what was formally before the arbitrator. In the circumstances, the Court held the “record” would consist of the two awards and accompanying reasons, the pleadings, and the five marked exhibits.

July 5, 2023June 29, 2023

Manitoba – Limited record magnified difficulty of appeal of award – #751

In Benkie v. Nichol, 2023 MBKB 82, the Court dismissed an appeal of an arbitral award rendered in a family law dispute. The appeal record contained significant “gaps,” because evidence that was received before the arbitrator, and was considered by her in arriving at her award, was not before the appeal court. This important evidence included a transcript of the cross-examinations of witnesses at the hearing. There was no recording made of the hearing, which was what the parties agreed to as the process. This lack of information was “highly consequential to the disposition of the appeal’. The Court did not accept the wife’s argument that the Arbitrator erred in making a finding that was not supported by the evidence because the record did not contain all the evidence. The issues this case raises is relevant to commercial arbitration

February 13, 2023February 10, 2023

Manitoba – Vavilov inapplicable to arbitration appeals – #709

In Christie Building Holding Company, Limited v. Shelter Canadian Properties Limited, 2022 MBKB 239, Christie Building Holding Company, Limited (“Christie”), applied for leave to appeal two arbitral awards under section 44 of the Manitoba Arbitration Act, CCSM c. A120. Christie asserted six separate grounds for leave to appeal, one of which consisted of four alleged errors of contractual interpretation. It also argued that a portion of the main award should be set aside because: the respondent did not comply with the Arbitration Agreement on issues of document production; that it was not given a fair opportunity to examine parties; and the arbitrator relied on case law not cited by the parties. Chief Justice Joyal dismissed all applications. In holding that none of Christie’s arguments for leave to appeal gave rise to a question of law of arguable merit, he considered the applicable standard of review. He found that “the standard of review on which the merits of this appeal would have to be judged, assuming leave was granted, is reasonableness. Until the Supreme Court of Canada has answered the question of what effect, if any, Vavilov has on Teal Cedar and Sattva, those authorities remain good law and are binding on this court” (paragraph 95). He also stated that if the applicable standard of review was, in fact, correctness, he would have still denied leave as the incomplete record from the arbitration compromised his ability to conduct a meaningful review, even for the narrow purpose of assessing leave. He held it would, therefore, be “unfair to grant leave and proceed with an appeal when a proper and meaningful review would ultimately be impossible” (paragraph 102). This case summary will focus on the analysis of the applicable standard of review.

October 11, 2022October 7, 2022

Manitoba – Arbitration Agreement Invalid due to Unconscionability and no Consideration – #669

In Pokornik v. SkipTheDishes Restaurant Services Inc., 2022 MBKB 178, Justice Chartier considered the principles arising from Uber Technologies Inc. v. Heller, 2020 SCC 16 (CanLII) (“Uber”) in a contract of adhesion between a restaurant delivery corporation, SkipTheDishes, and one of its individual couriers. Justice Chartier found that there was no arbitration agreement; SkipTheDishes asserted that the courier was bound to a new agreement with an arbitration agreement that only became effective after she sued. Had he found otherwise, Justice Chartier would have found the agreement to be invalid due to unconscionability and a lack of consideration. These findings were despite efforts by SkipTheDishes to address some of the concerns that animated the Supreme Court of Canada’s decision in Uber.

September 27, 2021May 4, 2022

Manitoba – Broad arbitration clause in one agreement required stay of action based on related employment contract – #535

Relying on the growing body of arbitration-friendly jurisprudence from the Supreme Court of Canada and provincial appellate courts, the Manitoba Queens Bench in Wardrop v. Ericsson Canada Inc., 2021 MBQB 183 re-affirmed the importance of the court’s adherence to the stay provisions in s. 7 of The Arbitration Act, C.C.S.M. c. A120 (the “Act”). Justice Rempel held that an action for wrongful dismissal must be stayed. The key issue concerned the plaintiff employee’s entitlement in the severance period to bonuses made available pursuant to an agreement which contained a broad clause in favour of arbitration. That agreement was separate from the written employment agreement which the plaintiff employee alleged was breached and which did not contain an arbitration clause. However, the damages sought by the plaintiff related to the bonuses. Justice Rempel granted the defendant employer’s motion for a stay in light of the broad arbitration clause in one of the agreements. Further, in finding that there was no basis to refuse the stay under s. 7(2) of the Act, Justice Rempel narrowly interpreted the provision permitting a refusal of the stay where the matter was a proper one for summary judgment. The plaintiff employee did not satisfy the court that this exception, or any of the other bases for refusing a stay, was applicable.

June 2, 2021June 2, 2021

Manitoba – ‘reckless’ and ’unfounded’ allegations against S counsel regarding arbitration record justify personal costs order against C counsel – #486

In Christie Building Holding Company, Limited v. Shelter Canadian Properties Limited, 2021 MBQB 101, Mr. Chief Justice Glenn D. Joyal dismissed attempts to reopen an earlier hearing in which he determined what constituted the record from the arbitration for the purpose of leave to appeal applications and any eventual appeal. To do so, Joyal C.J. reviewed the evolution of the procedural decisions contemplated in the arbitration, offering insights into how to document such decisions and whether excessive flexibility actually generates uncertainty even for those involved in the arbitration. In dismissing attempts by C’s counsel to ground C’s relief on allegations of fraud or facts arising or discovered after the initial court order, Joyal C.J. characterized the allegations made by C’s counsel against S’s counsel as “reckless and unfounded”, “an abuse of this Court’s process” and “unprofessional and inappropriate”. Such allegations made personally against S’s counsel justified a reasonable solicitor-costs order against C’s counsel personally.

May 15, 2021May 15, 2021

Manitoba – no meeting of minds to arbitrate due to unsuccessful attempts to access online contractual schedules – #477

In Razar Contracting Services Ltd v. Evoqua Water, 2021 MBQB 69, Mr. Justice David Kroft dismissed an application to stay in favour of arbitration, holding that (i) a bidder’s inability to access an online link to other documents containing an agreement to arbitrate and (ii) absent evidence that such agreement had been brought to the bidder’s attention demonstrated “no meeting of the minds in respective of the agreement to arbitrate”. Kroft J. held he had jurisdiction to determine whether the facts established an agreement to arbitrate within the meaning of article 7(2) of the UNCITRAL Model Law on International Commercial Arbitration (1985). He concluded that “the evidence, viewed objectively, does not establish, on a balance of probabilities, the three elements required for a binding contract: intention to contract; settlement of essential terms; and, sufficiently certain terms”.

April 26, 2021June 27, 2021

Manitoba – applicant for leave to appeal cannot revisit procedural decisions creating limited evidentiary record – #467

In the context of an application for leave to appeal on a question of law, Mr. Chief Justice Glenn D. Joyal in Christie Building Holding Company, Limited v. Shelter Canadian Properties Limited, 2021 MBQB 77, rejected Applicant’s attempt to adduce extensive affidavit material to reconstruct the arbitration’s evidentiary record limited by the parties’ procedural decisions not to (i) have a court reporter attend the hearing and prepare a transcript and (ii) mark documents as exhibits. Respondent argued the decisions were consistent with “the characteristics of commercial arbitration and the need for efficiency, cost effectiveness, confidentiality and finality” and afterwards Applicant could not “tender a selective and disputed evidentiary record” and seek a court’s review of alleged errors of law which necessarily require a complete evidentiary record. Joyal C.J. agreed and limited the record to the awards and reasons, five (5) exhibits and the pleadings. Joyal C.J. declined to assess the impact of Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 but commented that he found “persuasive, certain aspects of the reasons and conclusions set forth” in Cove Contracting Ltd. v. Condominium Corporation No. 012 5598 (Ravine Park), 2020 ABQB 106 and Ontario First Nations (2008) Limited Partnership v. Ontario Lottery and Gaming Corporation, 2020 ONSC 1516. Joyal C.J. observed “without deciding the issue, it need be acknowledged that it is anything but obvious that the Supreme Court of Canada intended Vavilov to apply to a statutory appeal of a commercial arbitration award and thereby overrule its own significant judgments in [Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 (CanLII), [2014] 2 SCR 633] and [Teal Cedar Products Ltd. v. British Columbia, 2017 SCC 32 (CanLII), [2017] 1 SCR 688] along with the long-standing legal principles which acknowledge the reasons for limited judicial intervention in commercial arbitration.”

March 9, 2021March 9, 2021

Manitoba – “balance of probabilities” is standard of proof in civil matters, “clear, convincing and cogent” is quality of evidence – #443

In Bannerman Lumber Ltd et al v Goodman, 2021 MBCA 13, Madam Justice Holly C. Beard explored statements by the Supreme Court which asserted “balance of probabilities” as the only standard of proof in civil matters and limited the recurring phrase “clear, convincing and cogent” to merely a statement of the quality of evidence. Beard J.A. also addressed the nature of inferences and the appellate courts’ limited intervention to the extent that the inferences are questions of fact and mixed fact and law. Beard J.A. determined that the applications judge made no palpable or overriding error by drawing inferences on findings made in an arbitration award and using those inferences to determine the viability of other claims.