Manitoba – facts raising claim subject to arbitration, but common to judicial review, disregarded – #366

Despite overlap in facts, Mr. Justice James G. Edmond in Ladco Company Limited v. The City of Winnipeg, 2020 MBQB 101 declined to include an alleged breach of contract issue as an issue ancillary to judicial review applications, observing only that, if valid, that alleged breach should be determined by another procedural mechanism such as arbitration provided in the parties’ agreements.  The facts in the record involved both (i) a 2016 exercise of a city’s statutory powers and the constitutionality of a by-law and resolution and (ii) a breach of contract issue arguably subject to an agreement to arbitrate.  Despite acknowledging that certain facts in the record overlapped with issues properly raised for judicial review, Edmond J. held that he would disregard those facts involving breach of contract and would “leave that issue to another day”.

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Manitoba – court uses provincial corporation legislation to order Canada/U.S. parties to arbitrate under domestic arbitration act – #359

In Silpit Industries Co. Ltd. v. Rady et al., 2020 MBQB 96, Mr. Justice Theodor Bock dismissed an attempt to appeal an award on a question of law under The Arbitration Act, CCSM c A120.  The award resulted from a court-ordered arbitration which another Manitoba court, in prior litigation, imposed and subjected to the Arbitration Act. Despite the parties being located in different countries, the court did not subject the arbitration to The International Commercial Arbitration Act, CCSM c C151.  The earlier court required the parties to arbitrate the value of shares which the court ordered be sold under sections 207 and 234 of The Corporations Act, CCSM c C225 to remedy a break down in the relationship between the two (2) groups of shareholders each holding a 50% interest.

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Manitoba – court relies on arbitral award to qualify award amount as debt surviving bankrupt’s discharge – #322

Relying on findings made in an arbitral award, Madam Justice Colleen Suche in Bannerman Lumber Ltd. et al. v. Goodman, 2020 MBQB 76 declared that a bankrupt’s debt disputed in arbitration survived his discharge because the debt resulted from “obtaining property or services by false pretences or fraudulent misrepresentation”.  Though the arbitration proceeded without pleadings and the issue of fraud was not advanced in the arbitration, the arbitrator’s findings permitted Suche J. to determine that the bankrupt “lacked an honest belief in the truth of his statements” which were reckless and qualified as false pretences under section 178(1)(e) of the Bankruptcy and Insolvency Act, RSC 1985, c B-3.

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Alberta & Manitoba – courts take different paths to different outcomes following same S.C.C. case – #276

In Cove Contracting Ltd v. Condominium Corporation No 012 5598 (Ravine Park), 2020 ABQB 106, Mr. Justice Grant S. Dunlop held that Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 had not changed the standard of review for commercial arbitrations from reasonableness to correctness and denied leave to appeal.  In Buffalo Point First Nation et al. v. Cottage Owners Association, 2020 MBQB 20, Mr. Justice Chris W. Martin held that Vavilov had changed the standard and granted leave to appeal.  Dunlop J. postponed his hearing to give the parties the opportunity to argue the role of Vavilov.  Martin J. issued his decision on leave to appeal without hearing from the parties but invited them to submit argument for the merits of the appeal.

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Manitoba – willingness to arbitrate must be reciprocated and not just “most efficient” – #216

In considering interim measures sought in shareholder oppression litigation, Madam Justice Candace Grammond in Gershkovich et al. v. Sapozhnik et al., 2019 MBQB 115 declined to order the parties to undertake arbitration.  Despite Respondents’ willingness to have the shareholder dispute decided in, what Respondents believed was, “the most efficient manner”, Grammond J. noted that Respondents did not allege the court lacked jurisdiction or the parties were bound by a pre-existing agreement to arbitrate.  Grammond J. did confirm that she would hear the oppression remedy unless the parties consented to arbitration and Respondents applied to compel arbitration.

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Manitoba – court refuses leave to appeal valid issues raised for first time on appeal or lacking evidence – #115

In SG Ceresco Inc. v. BroadGrain Commodities Inc., 2018 MBQB 120, Madam Justice Canace Grammond sent several, distinctive messages to parties applying for leave to appeal under section 44(2) of Manitoba’s The Arbitration Act, CCSM c A120.  The messages speak to parties who fail or forget to adjust the pre-established procedural rules they adopt, who do not raise valid arguments earlier before the arbitration tribunal or who apply to the court without sufficient evidence in support of issues raised. Her messages also address the proof and effect of standard form contracts, allegations of a reasonable apprehension of bias and the need to demonstrate the alleged importance to the parties of an issue. Continue reading “Manitoba – court refuses leave to appeal valid issues raised for first time on appeal or lacking evidence – #115”