New Brunswick Archives - Arbitration Matters

March 13, 2024March 7, 2024

New Brunswick – Party autonomy includes ability to contract out of award – #821

The decision in Purrestore Management Services Inc., Gordon Gamble and Jason Reis v. Doiron, 2023 NBCA 110 concerns whether an arbitration clause in a franchise agreement that allowed a party to seek a de novo court trial if an arbitration award exceeded $100,000, conflicted with the mandatory provisions of the New Brunswick Arbitration Act, LRN-B 2014, c 100 (“Arbitration Act”). The franchisor had obtained an arbitration award against the franchisees for over $100,000 (“Arbitral Award”). The franchisees then sought a de novo trial, while the franchisor applied for judgment to enforce the Arbitral Award under s. 50 of the Act. The application judge affirmed the franchisees’ right to a de novo trial and dismissed the application for judgment. The franchisor appealed, arguing that the Arbitration Act provided that s.50 could not be contracted out of and, therefore, in the absence of an appeal or an application to set aside the Arbitral Award the franchisor was entitled to judgment. The Court of Appeal dismissed the appeal, concluding that the arbitration clause was not contrary to the Act as the Act permitted parties to contract out of s. 37, which provides that “an award binds the parties, unless it is set aside or varied under section 45 (appeal) or 46 (set aside)”. To obtain a judgment to enforce an award under s. 50, a binding award under s. 37 was required but the parties had contracted out of 37 with their agreement.

August 16, 2023August 11, 2023

New Brunswick – Arbitration award not trigger for discoverability of related claim– #764

In Architecture 2000 Inc. v. Moncton, 2023 NBCA 50, a unanimous Court of Appeal summarily dismissed civil claims of breach of contract and negligence in the design and management of a building addition. While the appeal turned on New Brunswick’s limitations legislation, claims made in an earlier arbitration from the same construction project were crucial to this outcome, as explained below. The decision exemplifies problems that can arise in a dispute in which there are multiple contracts at issue, when some players are parties to some contracts but not others, and when an arbitration agreement covers only some of the disputes between the various contracting players.

May 10, 2023May 26, 2023

New Brunswick – When is an appeal not an appeal? – #736

In New Brunswick Highway Corporation v. MRDC Operations Corporation, 2023 NBCA 19, the Court of Appeal of New Brunswick (the “Court”) dismissed the appeal of a decision denying an appeal against an arbitral award. The Court found that the arbitration agreement did not grant the parties an automatic right of appeal, and denied leave to appeal pursuant to section 45 of the Arbitration Act, RSNB 2014, as no extricable questions of law were present. The Court cautioned against finding extricable errors of law in a case such as this involving contractual interpretation of the arbitration agreement. The decision turned on the interpretation of the arbitration agreement, which provided both for an appeal and for no appeal.

March 14, 2023March 10, 2023

New Brunswick – Awaiting response to arbitrate extends time for JR of decision – #719

In New Brunswick Lotteries and Gaming Corporation v Madawaska First Nation, 2023 NBCA 1, the Court of Appeal of New Brunswick (“NBCA”) per Justices Drapeau, French, and LeBlond, upheld the application judge’s decision that the appellant’s response that it would consider arbitration was not a decision that started the limitation period for bringing a judicial review application.

January 17, 2022May 4, 2022

New Brunswick – Arbitrator reading professional standards into valuation clause not extricable error of law – #573

In 619818 N.B. Inc. v. 656991 N.B. Inc., 2021 NBQB 269, Justice Ferguson of the New Brunswick Court of Queen’s Bench denied an application for leave to appeal an arbitral award. In so doing, he distinguished questions of mixed fact and law from pure questions of law arising from an arbitrator’s contract interpretation exercise.

June 20, 2020January 3, 2021

New Brunswick – detailed time summaries not a condition precedent to arbitrator’s ability to award costs – #340

In Jammin Rock Resources v. Dowd & Associates, et al., 2020 NBQB 102, Mr. Justice Daniel J. Stephenson denied leave to appeal a cost award which issued in favour of respondents further to their successful pre-hearing motion to determine that claimants’ arbitration was statute-barred. Stephenson J. refused to characterize the arbitrator’s discretion on costs as equivalent to a taxation. Despite objections to the summary evidence provided to and relied on by the arbitrator, Stephenson J. wrote that he was not aware of any jurisprudence mandating that arbitrators must have detailed time summaries as a condition precedent to their ability to award costs and that no provision of the Arbitration Act, RSNB 2014, c 100 mandates that an arbitrator must have detailed computer-generated time summaries prior to allocating costs. The facts also confirmed the arbitrator’s authority to make a determination with final effect prior to the merits hearing and on documentary evidence.

June 2, 2019January 3, 2021

New Brunswick – justice of the court serves as statutory arbitrator in land expropriation dispute – #197

In McMackin v. Village of Salisbury, 2019 NBQB 99, Mr. Justice George S. Rideout served as arbitrator under the provisions of the Expropriation Act, RSNB 1973, c E-14 to resolve a dispute between a landowner and a municipality in New Brunswick following the latter’s expropriation of part of the land. Despite its “arbitration” label, the process set out in the legislation and Rideout J.’s reasons appears indistinguishable from a court proceeding. Without more information, the “arbitration” set out in the legislation does not qualify as an ‘alternative’ to dispute resolution offered by the court.

November 4, 2018January 3, 2021

[:en]N.B. – court cannot order indefinite stay of application to refer parties to arbitration – #130[:]

[:en]In Toronto-Dominion Bank v. Andal Holdings (Moncton) Ltd., 2018 NBCA 68, the New Brunswick Court of Appeal reversed a motions judge’s decision to order an indefinite stay of two motions, including an application to refer the parties to arbitration. Though it agreed with the judge that a key third party ought to be added to the principal court litigation before the court adjudicated motions in that litigation affecting the third party, the Court held that an indefinite stay was unwarranted. The Court also considered that the motions judge could still have proceeded with the application to refer the parties to arbitration. In effect, the court rules of procedure applicable to completing the court litigation were not allowed to delay possible recourse to arbitration. Continue reading “[:en]N.B. – court cannot order indefinite stay of application to refer parties to arbitration – #130[:]”

October 21, 2018January 3, 2021

[:en]New Brunswick – “reasonable likelihood” applied as “minimal” standard for stay application – #127[:]

[:en]Using “reasonable likelihood” as the “minimal” standard an applicant must meet for a stay, Madam Justice Judy L. Clendening in Knowcharge v. NB Innovation et al., 2018 NBQB 181 stayed litigation involving shareholders, directors and corporations so that the arbitration tribunal could determine its own jurisdiction. Her analysis rested also on the wording of the parties’ agreement to arbitrate which provided that disputes “involving” shareholders and not just “between” shareholders would go to arbitration. That wording was sufficient to include litigation filed by the non-shareholder plaintiff corporation which had signed the arbitration agreement. Continue reading “[:en]New Brunswick – “reasonable likelihood” applied as “minimal” standard for stay application – #127[:]”