Newfoundland and Labrador – Labour Arbitrator’s Collective Agreement Interpretation Passes Vavilov Reasonableness Muster – #559

In Pennecon Maintenance Services Limited v. Fish, Food & Allied Workers, 2021 NLSC 141, Justice Knickle ruled that a labour arbitrator reasonably interpreted a collective agreement in light of the precepts laid down in both Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 [Vavilov] and Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 [Sattva]. Although arising from an application for judicial review, Justice Knickle’s analysis provides relevant insights applicable to private arbitration disputes as they relate to contract interpretation.

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NL – Pre-judgment attachment order granted re possible damages payable from arbitration -#548

In Sandford v Astaldi, 2021 NLSC 130, the plaintiffs sought a pre-judgment attachment order pursuant to s. 27 of the Newfoundland and Labrador Judgment Enforcement Act on the exigible property of defendant Astaldi Canada Inc. They also asked that defendants Muskrat Falls Corporation (“MFC”) and Nalcor Energy be prohibited from dealing with Astaldi property they hold in a manner that would be likely to hinder the plaintiffs in the enforcement of any judgment they may obtain against Astaldi in their litigation. The exigible property at issue was: (a) monetary damages which Astaldi hoped to receive as a result of a private commercial arbitration against MFC and Nalcor; and (b) proceeds held by MFC and Nalcor from the sale of equipment owned by Astaldi. The issue on the application was whether there were reasonable grounds to believe that Astaldi “is dealing” or “is likely to deal” with its exigible property otherwise than for the purpose of meeting its reasonable and ordinary business expenses; and, if so, whether the manner of it so dealing would likely seriously hinder the plaintiffs in enforcement of a judgment. Justice Thompson granted the pre-judgment attachment order on the ground that Astaldi was no longer conducting business at all in the province, which meant that it was not dealing with its exigible property at all, nor meeting its expenses.

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N.L. – court’s efforts to case manage procedure and focus dispute overlap with arbitration’s benefits – #417

To assist the parties to reach the merits and perhaps resolve related issues not squarely before the court,  Mr. Justice Glen L.C. Noel in Oleynik v. Kachanoski, 2021 NLSC 4 wielded four (4) different procedural tools when adjudicating a procedural dispute: (i) assume case management; (ii) encourage elimination of preliminary procedural initiatives; (iii) ‘direct’ alternative dispute resolution; and, (iv) caution costs.  Only (i) and (iv) were within Noel J.’s express jurisdiction to order. Lacking jurisdiction under (ii) to prevent Respondent altogether from presenting its preliminary application or (iii) to impose mediation, Noel J. did expressly urge or “direct” consideration of the options.  Noel J.’s efforts reflect the courts’ genuine interest in assisting parties to either reduce or focus their disputes and incur less time and cost.  Those efforts overlap with the benefits commonly expected in arbitration and expressly urge litigants to seek out those benefits.

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N.L. – agreement to arbitrate renewal option’s financial terms ensures lease is enforceable – #369

In Copper Stop Limited v. Parkland Fuel Corporation, 2020 NLSC 114, Madam Justice Kendra J. Goulding had to resolve a lease dispute which arose when the lessee sought to exercise an option to renew but for which the lease provided no specific term governing the method or time within which to exercise that option.  Despite lessor’s argument that the lease was enforceable, Goulding J. held that the option to renew was enforceable as the financial terms of the renewal option were capable of being made definite through imposition by the arbitrator.  The ability to arbitrate if negotiations failed made the lease’s renewal option more than just “an agreement to agree”.

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N.L. – city lacks authority to impose arbitration unrelated to legislation’s purpose/intent – #207

In St. John’s (City) v. 10718 Nfld. Inc., 2019 NLCA 41, Newfoundland and Labrador’s Court of Appeal upheld a first instance decision declaring that the City of St. John’s (the “City”) cannot require mandatory arbitration in an agreement as a term of approval of development as doing so is acting beyond its jurisdiction under its enabling legislation. See the earlier Arbitration Matters note “Newfoundland and Labrador court holds that a municipality has authority to agree to arbitration but not to impose it as a condition of regulatory approval

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N.L. – ‘legislative language to the contrary’ provides option of court proceedings or arbitration – #176

In Dewey v. Corner Brook Pulp and Paper Limited, 2019 NLCA 14, Newfoundland and Labrador’s Court f Appeal held that the applications judge had erred in ordering a stay of a proposed class action when he found that the dispute could only be resolved by mandatory arbitration.  Based on its interpretation of the legislation first introduced in 1915 and amended subsequently, the Court held that the legislation, from the onset and despite amendments, provided for the option of arbitration or court proceedings.  The Court identified the result as an exception, based on “legislative language to the contrary”, to courts enforcing mandatory arbitration.

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