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.

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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.

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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”.

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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.

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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. 

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Manitoba – attaching conditions to award of damages is an error of law – #430

In Broadband Communications North Inc. v. 6901001 Manitoba Ltd., 2021 MBQB 25, Mr. Justice James G. Edmond held that imposing conditions on an award of damages does not comply with principles of awarding damages in breach of contract cases.  Observing that the arbitrator ought to have awarded damages without conditions or required the parties to file additional evidence if the evidence was insufficient to grant the award of damages, the decision to grant a conditional award of damages resulted in the successful party receiving no compensation when it failed to satisfy the conditions. Edmond J. also expressly followed and applied the principles set in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 in choosing correctness as the standard of review in an appeal provided by statute.

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