N.W.T. – Court applies Vavilov to commercial arbitration awards subject to statutory right of appeal – #419

In Northland Utilities (NWT) Limited v. Hay River (Town of), 2021 NWTCA 1, N.W.T.’s Court of Appeal held that Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65’s revised framework applies to commercial arbitration awards reviewed as a result of a statutory right of appeal.  “It is difficult to follow the argument that the reliability of Canada as a forum for resolution of local and global business disputes, would be rendered less grounded in the rule of law in a rules-based system of law by employing an appellate review standard”. The Court distinguished appeal wording in the N.W.T.’s domestic arbitration legislation from the former B.C. domestic arbitration legislation considered 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. Vavilov’s omission of any mention of commercial arbitration did not argue for or against its extension. “Silence cuts both ways”. The Court did not comment on whether Vavilov applied to awards arising from contracts which contained no right of appeal and where no statute provided such right.  Note: the agreement to arbitrate in issue ought to qualify as a statutory arbitration and not a consensual arbitration as it was not negotiated but imposed under section 91(5) of the Cities, Towns and Villages Act, SNWT 2003, c 22, Sch B.

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N.W.T. – parties do not create standard form contract when their lawyers do not “reinvent the wheel” – #240

Mr. Justice Andrew M. Mahar in Northland Utilities (NWT) Ltd. v. Town of Hay River, 2019 NWTSC 31 remarked that parties do not hire lawyers to “reinvent the wheel” each time they engage in commercial activity and, in doing so, do not thereby make their contract a standard form contract.  Despite omitting to characterize the issues as questions of law, mixed fact and law or fact and despite holding that the standard of review was reasonableness, Mahar J. did determine that the arbitrator’s analyses were not only reasonable but correct. 

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Northwest Territories – Court of Appeal applies ‘pith and substance’ analysis to enforce original undertaking to arbitrate – #015

The Northwest Territories’ Court of Appeal in Miller Sales et al v. Metso Minerals et al, 2017 NWTCA 3 granted an application to stay under section of NWT’s International Commercial Arbitration Act, RSNWT 1988, c I-6 (“ICAA”) .  In doing so, it upheld the reasoning and result in the chambers judge’s decision, reported in Miller Sales & Engineering Inc. et al. v. Metso Minerals Industries Inc. et al., 2016 NWTSC 23,  which looked past the terms of a settlement and assignment agreement and enforced the parties’ initial undertaking to arbitrate. Continue reading “Northwest Territories – Court of Appeal applies ‘pith and substance’ analysis to enforce original undertaking to arbitrate – #015”