Québec –Property Appraisal Process not Contrary to Public Order– #668

In Hypertech Real Estate Inc. v. Equinix Canada Ltd, 2022 QCCS 3368, Justice Corriveau dismissed an application to annul an arbitral award on the basis that a property appraisal process was “contrary to public order” pursuant to Article 646 of the Québec Code of Civil Procedure (“the CCP”). Under the terms of an option to purchase property (the “Property”), Hypertech Real Estate Inc. (“Hypertech”) and Equinix Canada Ltd. (“Equinix”) submitted appraisal valuations. Purchaser Equinix’s appraisal was some $60,000,000 lower than seller Hypertec’s. In arbitration, Hypertec maintained that Equinix’s appraisal was so flawed it should be excluded from consideration. The arbitral tribunal reviewed the appraisal in “Phase I” of the arbitration and rendered an award finding that the appraisal contained no fundamental flaws. Hypertec unsuccessfully argued before Justice Corriveau that the arbitral tribunal erred in two respects: (1) in its interpretation and application of rules of public order; and (2) that the award reasons were insufficient, which was contrary to public order.  

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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”.

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B.C. – Arbitrator’s Analysis Must not let Factual Matrix Overwhelm Text of Contract – #588

In Grewal v. Mann, 2022 BCCA 30, the British Columbia Court of Appeal dismissed an appeal of an order granting leave to appeal an arbitral award. In doing so, the Court of Appeal confirmed the bounds of contractual interpretation, including the principle that the analysis must remain grounded in the text of the contract. 

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Québec – Statutory tribunal chair disqualified for bias for comments made in presence of witness during hearing break – #582

In Terrebonne Police Brotherhood Inc. v Truchon, 2022 QCCS 34, Justice Poulin granted, in part, the plaintiff union’s application for judicial review of a decision rendered by a three-person statutory tribunal. The tribunal had dismissed the union’s motion for an order disqualifying the entire tribunal based upon comments made by the chair, which were overheard by a witness and an observer during a break in the hearing. Justice Poulin set aside the tribunal’s ruling and found that those comments demonstrated both a lack of impartiality and a lack of open mind on the part of the chair, which warranted his disqualification. However, the other two members of the panel were not disqualified, even though they contributed to the unanimous decision dismissing the union’s motion. The chair’s comments could not be imputed to them.

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Ontario – It’s not cricket: Ontario court emphasizes arbitral awards must include reasons – #580

In Alberta Cricket Association v. Alberta Cricket Council, 2021 ONSC 8451, Justice Perell took the rare step of setting aside an arbitral award for failing to state the reasons on which it was based. Justice Perell found that the arbitrator of a sports-related dispute had failed to deliver adequate reasons and so he set aside the award and directed a new arbitration to be conducted before a different arbitrator.

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Saskatchewan – Waiver of arbitration in joint venture agreement read strictly – #576

In Beauchamp v Beauchamp, 2021 SKCA 148, the Saskatchewan Court of Appeal dismissed an appeal from a case management judge’s decision, which provided for how farming operations would be conducted for the following year, on an interim basis, until a dispute involving a Joint Venture Agreement (“JVA”) governing those operations was finally resolved. The appellant alleged that the judge misinterpreted his waiver of the right to arbitrate contained in the JVA. This waiver was provided on three occasions, in his agreement to put matters to the case management judge for the sake of expediency and urgency and in two written briefs, each using slightly different language. In these, the appellant agreed: 1) the case management judge could “make an order providing for how this grain farm is [to be] operated for the 2021 to 2022 crop year”; 2) he “will waive his reliance on the arbitration clause if” the judge was distributing the farming equipment or dividing the farming operation on an interim basis, but would not waive these rights if the judge were to order the entirety of the farming operation be divided exclusively among the only the other parties in the dispute; and 3) he “will waive his reliance on the arbitration clause if the Court’s authority to distribute the equipment of New Age Farms on an interim basis is an issue to the extent necessary to effect the dividing of the farm operation.” The Court of Appeal found that because the case management judge did not order the farming operation be exclusively undertaken by the other parties, and directed on an interim basis only how farming operations were to proceed, the judge did not violate the terms of the waiver. Indeed the case management judge had expressly held that the jurisdiction issue raised by the appellant needed to be resolved before the underlying litigation could proceed.

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