Procedural fairness Archives - Page 3 of 3

June 6, 2022May 27, 2022

Alberta – Appeal process under s. 44(2) of the Arbitration Act clarified – #623

In Esfahani v. Samimi, 2022 ABCA 178, the Court of Appeal for Alberta set out the procedure to be undertaken by the Court of Queen’s Bench when an arbitral award is appealed under s. 44(2) of the Arbitration Act, RSA 2000, c A-43. It states that if the arbitration agreement does not provide that the parties may appeal an award to the court on a question of law, a party may, with the permission of the court, appeal an award to the court on a question of law. The Court of Appeal held that the procedure is as follows: (a) an appeal does not exist unless permission to appeal is granted; (b) if parties do not make the required election in their arbitration agreement, permission to appeal is required and will be granted on questions of law only, subject to s 44(3) of the Arbitration Act (which provides that a party may not appeal an award to the court on a question of law that the parties expressly referred to the arbitral tribunal for decision); and (c) an application for permission to appeal must be heard and decided first, and separately, not contemporaneously with the appeal of the arbitral award.

May 12, 2022May 10, 2022

Ontario – Set- aside application failed; dispute covered by arbitration agreement, no objection to jurisdiction – #616

In Baffinland v Tower-EBC, 2022 ONSC 1900, Justice Pattillo dismissed both: (1) an application to set aside an award from a majority of an arbitral tribunal (the “Majority Award”) under section 46 of the Arbitration Act, 1991, S.O. 1991, c. 17 (the “Act”); and (2) an application for an order granting leave to appeal the Majority Award and Costs Award under section 45(1) of the Act. Justice Pattillo found there were no grounds upon which to set aside the Majority Award; there was no lack of jurisdiction or failure to be treated equally and fairly. Nor could leave to appeal be granted under section 45(1) of the Act because the arbitration agreement precluded an appeal.

May 11, 2022May 10, 2022

British Columbia – Court sets aside arbitrator’s decision for breach of procedural fairness – #615

In Bedwell Bay Construction v. Ball, 2022 BCSC 559, Justice Giaschi granted a judicial review application to set aside an interim decision of an arbitrator (the “Arbitrator”) of the Residential Tenancy Branch (the “RTB”) and to remit the matter back to the RTB for redetermination de novo before a different arbitrator. In doing so, the Court accepted the petitioner’s argument that the arbitrator did not act fairly when it required the petitioner to present its case first (even though it did not have the burden of proof), and denied it the right to cross-examine and to provide reply evidence and submissions. The Court held that this amounted to breaches of the rules of natural justice and procedural fairness. These findings have relevance to commercial arbitrations.

March 17, 2022May 4, 2022

Ontario – Standard of review: set aside for applicant’s “inability to present his case” – #596

In Nelson v The Government of the United Mexican States, 2022 ONSC 1193, Justice Penny dismissed Nelson’s application to set aside the award of a three-member tribunal constituted under Chapter 11 of the North American Free Trade Agreement (“NAFTA”). Nelson relied upon Article 34(2)(a)(ii) of the Model Law, which allows the court to set aside an award on the basis that the applicant was, “otherwise unable to present his case”. Justice Penny relied upon the Ontario Court of Appeal’s decision of Consolidated Contractors Group S.A.L. (Offshore) v. Ambatovy Minerals S.A., 2017 ONCA 939, at para. 65, leave to appeal refused, 2018 CarswellOnt 17927 (S.C.C), which held that the standard of review for setting aside an award under Article 34(2)(a)(ii) is whether the tribunal’s conduct is “sufficiently serious to offend our most basic notions of morality and justice” and “that it cannot be condoned under the law of the enforcing State”.

March 15, 2022May 4, 2022

Saskatchewan – Judicial review available only when arbitration agreement provides – #594

In Ministry of Highways for the Province of Saskatchewan v. West-Can Seal Coating Inc. et al, 2022 SKQB 43, Justice Currie heard, and rejected, all grounds pursued by the applicant, Ministry of Highways (the “Ministry”), to set aside a decision arising from an arbitration conducted pursuant to the New West Partnership Trade Agreement (“NWPTA”), a trade agreement among the four western Canadian provinces. Justice Currie confirmed that, unless contracted for by the parties, there is no role for judicial review of an arbitration award. The options are appeal (if applicable) and set aside. Set aside applications are also limited to issues of procedural fairness, and not whether the decision is correct on its merits.

January 19, 2022May 4, 2022

BC – Arbitrator’s decision set aside for lack of procedural fairness – #575

In Cyrenne v YWCA Metro Vancouver, 2021 BCSC 2406, Justice Baird of the British Columbia Supreme Court set aside a statutory arbitrator’s decision to grant an Order of Possession in a residential tenancies dispute under the Residential Tenancy Act, SBC 2002, c 78 (the “RTA”). He found that the hearing lacked procedural fairness because the arbitrator failed: (i) to judicially consider an adjournment request (dismissing it out of hand); and (ii) to give the tenant a reasonable opportunity to fully present her case (e.g. cutting her off in the middle of her submissions after a “time limit” had expired). Although the Arbitration Act, SBC 2020, c 2 does not apply to RTA disputes, it is illustrative of what procedural fairness dictates in relation to fair hearings.

January 12, 2022May 4, 2022

Ontario – Fresh evidence test the same on set aside applications on fairness grounds and judicial review applications – #572

In Vento Motorcycles Inc. v United Mexican States, 2021 ONSC 7913, Justice Vermette set out the test for when fresh evidence may be adduced to support a set aside application on lack of fairness or natural justice grounds. The test is the same as that which applies on a judicial review; the record is restricted to what was before the decision-maker, except where there are natural justice or fairness issues raised that cannot be proven by reference to the existing record and that could not have been raised before the decision-maker.

January 6, 2022May 4, 2022

Liz’s 2021 Top Pick: Ontario – CUSO International v. Pan American Development Foundation 2021 ONSC 3101 – #570

This case is my top pick as the facts and issues between the parties serve to highlight the value of the arbitration process, including characteristics related to enforceability, neutral forum, party autonomy, confidentiality and arbitrator selection. It also shows how these matters can deliver tangible benefits to parties.

November 12, 2021May 4, 2022

Québec – Stay of arbitrator’s decision to add third parties, force them to meet timetable, and refusal to hear them without payment – #553

In Mullen v Nakisa inc., 2021 QCCS 4388, Justice Granosik granted applications to stay an arbitration as against parties who were added as cross-respondents, even though they were not parties to the arbitration agreement, pending judicial review of the arbitrator’s decision to add them. Justice Granosik was concerned that the applicants could be deprived of their right to have a matter determined by a court, and even risked having the arbitration take place in their absence.

September 1, 2021May 4, 2022

Ontario – “Cumulative series of events” complaint does not extend deadline for raising arbitrator bias – #527

In Spivak v. Hirsch, 2021 ONSC 5464, Justice Jarvis heard a motion to remove an arbitrator pursuant to sections 13 and 15(1) of the Arbitration Act, 1991, S.O. 1991, c. 17 on the basis that the arbitrator demonstrated a reasonable apprehension of bias, actual bias and had not treated the applicant fairly and equally. The applicant raised concerns which she said, cumulatively, constituted bias. Essentially, the applicant argued bias on the basis of awards issued against her and that she was not being afforded the same litigation latitude as the respondent. The court dismissed the application. A reasonable person, when considering the applicant’s concerns in the context of the entirety of the arbitration proceedings, would not think this amounted to bias. In any event, the applicant was out of time. Section 13 of the Arbitration Act makes it mandatory that a person who wishes to challenge an arbitrator must do so within 15 days of becoming aware of the grounds for challenge. There is no discretion to extend the time to take into account earlier incidents of alleged bias.