Québec – partial award may determine scope of arbitration agreement for final award – #563

In Maïo v Lambert, 2021 QCCS 3884, Justice Castonguay denied an application to annul in part and modify a final award. He found that the arbitrator did not exceed the scope of his mandate, including in how he ruled on matters that had been circumscribed in a prior partial award, and that the applicant was essentially seeking an improper review of the merits of the dispute.

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Ontario – Historic arbitration decision is not probative evidence in interpretation of a Treaty – #556

In Restoule v. Canada (Attorney General), 2021 ONCA 779, the Ontario Court of Appeal discussed the evidentiary value of an arbitration record –  from an arbitration between Canada, Ontario and Quebec over responsibility for annuity payments under a Treaty with First Nations signed forty years before the arbitration –  in the context of present-day litigation between the Treaty beneficiaries and the Province of Ontario over increases in those annuities. Because of the lack of temporal proximity between the historic arbitration and Treaty formation, and the fact that the evidence at that arbitration was entirely given by potential payors under the Treaty, the arbitration record needed to be viewed with caution. It was not helpful post-Treaty evidence in interpreting the intentions of the parties at the time of Treaty formation.

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B.C. – Parties’ “expeditious” settlement process led to 2 arbitrations and multiple court proceedings over 7 years – #549

In Grewal v Mann, 2021 BCSC 1995, Justice MacNaughton denied the defendants’ motion to stay the plaintiff’s appeal of an arbitral award to the B.C Supreme Court, pending determination of their appeal of that Court’s leave decision to the Court of Appeal. She found that there was no prejudice to the defendants and that the lengthy history of the parties’ dispute and their acrimony made it likely that the decision on the appeal of the award (which was to be heard by the B. C. Supreme Court under s. 31 of the former B.C. Arbitration Act, RSBC 1996, c. 55) would be appealed to the Court of Appeal and that both appeals could be heard together.  She found that, “it would be more efficient to allow matters to proceed to conclusion in the BC Supreme Court and then, for the parties to decide what appeals they wish to take to the Court of Appeal”.  By this point, the parties were seven years away from their 2014 agreement to sever their business relationship “expeditiously”. They agreed to a three-stage mediation and arbitration process that led to a mediated settlement agreement (the terms of which were not memorialized and became contentious), two arbitrations (one which required no written reasons and one which resulted in one page of reasons), one stay of proceedings, and two appeals (so far).

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Alberta – Award was “abbreviated” to save time and costs – #544

In Alvarez v Alvarez, 2021 ABQB 717, Justice Malik denied leave to appeal an arbitrator’s award on a question of law pursuant to section 44(2) of the Arbitration Act, RSA 2000, c. A-43. He found that no question of law was raised. However, the case raises issues  concerning s. 44(1) of the Act, which allows a party to ask the tribunal to “correct typographical errors, errors of calculation and similar errors in the award”  and s. 40, which permits a party to ask the tribunal to “explain any matter” in the award. The arbitrator issued an Award, and later at the request of the applicant, a Corrected Award, which included a “nominal correction”. It also addressed the applicant’s requests for correction, but made no changes to the Award. Before Justice Malik, the applicant argued (unsuccessfully) that the Award and Corrected Award contained errors of law. Justice Malik noted that the, “[a]rbitrator acknowledged that the Award was abbreviated to save time and costs, that just because he had not set out every fact or argument did not mean he had not considered them, and that a party could request additional reasons should they wish to pay the additional cost.”  The applicant argued on the application for leave to appeal that the arbitrator had not explained his Award sufficiently. The decision does not indicate whether the parties requested an abbreviated award to save time and costs. The Award was issued 8 months after the close of hearings.

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B.C. – Statutory arbitrator’s award set aside on basis that it was “arbitrary and irrational” – #529

In Shahcheraghi v Divangahi, 2021 BCSC 1576, Justice Horsman set aside the award of an arbitrator of the Residential Tenancy Branch (“RTB”) and remitted the matter back to the RTB for a new hearing, either by the same arbitrator or someone else assigned by the RTB.  She found that the arbitrator’s reasons were inadequate for the parties to understand the rationale for the decision:

“[53]… I wish to be clear that my concern with the Arbitrator’s decision is the reasoning process, which in my view is insufficient to serve the basic function of reasons in allowing the parties to understand why the decision was reached…The point is that [certain] issues are unexplored in the Arbitrator’s decision. It is not the role of the reviewing court to re-write the Arbitrator’s reasons so as to arrive at a new rationale that might support the outcome.”

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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.

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B.C. – Whole award to be considered when examining for patent unreasonableness – #525

In Potherat v, Slobodian, 2021 BCSC 1536, Justice Crabtree of the British Columbia Supreme Court found that the decision of an arbitrator of the B.C. Residential Tenancy Branch was neither patently unreasonable nor wrong when read as a whole. In determining whether a decision is patently unreasonable, the court is required to examine both the reasons and the outcome. Justice Crabtree quoted extensively from the arbitrator’s reasons; while sentences or paragraphs are sometimes quoted by courts when reviewing arbitral awards, it is rare that large portions of the arbitrator’s reasons are quoted. Justice Crabtree followed Sherstobitoff v. British Columbia (Workers’ Compensation Appeal Tribunal), 2019 BCSC 1659, which held that that reasons “are to be read as an organic whole, not parsed or dissected in search of error”. Justice Crabtree found that the petitioner’s submissions were a parsing of the decision.

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B.C. – Court outlines reasoning process to be followed by arbitrator in interpreting agreement on re-hearing – #521

In Belmont Properties v. Swan, 2021 BCCA 265, the British Columbia Court of Appeal upheld a decision of the BC Supreme Court setting aside an arbitrator’s decision and remitting the dispute for a new hearing. In doing so, the Court of Appeal provided guidance as to the reasoning process to be followed by the arbitrator in interpreting the agreement at issue on the re-hearing.

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