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.

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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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Saskatchewan – Arbitrator’s jurisdiction when one party alleged to have repudiated arbitration agreement – #536

In Saskatchewan v Capitol Steel Corporation, 2021 SKQB 224, Saskatchewan alleged that Capitol Steel Corporation (“CSC”) had repudiated the arbitration agreement in written submissions made just before the arbitration hearing. Saskatchewan’s position was that these submissions denied one of the recitals in the parties’ arbitration agreement that showed agreement on a matter which CSC then put in issue in the arbitration. Saskatchewan challenged the arbitrator’s jurisdiction as a result of CSC’s alleged repudiation of the arbitration agreement. The arbitrator dismissed the application and Saskatchewan then applied to the Court “to decide the matter” under s. 18(9) of The Arbitration Act, 1992, SS 1992, c A-24.1, which states that, “[i]f the arbitral tribunal rules on an objection as a preliminary question, a party may, within 30 days after receiving notice of the ruling, make an application to the court to decide the matter.” Justice Clackson found that the standard of review of an arbitrator’s preliminary decision on jurisdiction, where one party alleged the other repudiated the arbitration agreement, was correctness. He held that the arbitrator was correct in finding there was no repudiation because there was no anticipatory breach. The alleged breach did not deprive Saskatchewan of any of the rights that it had under the arbitration agreement.

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Saskatchewan – ‘only logical to modernize’ New York Convention ‘agreement in writing’ to include text/ e-mail exchange – #437

In Parrish & Heimbecker Ltd. v. TSM Winny AG Ltd., 2020 SKQB 348, Mr. Justice Richard W. Elson held that the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) mention of an “agreement in writing” in the definition of an agreement to arbitration was “inclusive” and imposed no formal requirement that an “agreement in writing” needed to be signed. “Given the absence of text and email messages in 1958, when the New York Convention was created, I think it only logical for the Court to modernize these words and find that the reference to “telegrams” should include other similar forms of electronic communication, such as facsimile, text and email messages”.  Though applicant’s submissions referred to but produced no certified copies of the agreement to arbitrate or award, Elson J. adjourned the application for recognition and enforcement to allow applicant to file the certified copies. When recognizing and enforcing the appellate arbitral tribunal’s award issuing from an administered arbitration, Elson J. further acknowledged there was “little doubt” that the appeal panel “premised its analysis on a basis that was not part of either the notice of appeal or the respective arguments it received” but concluded that doing so did not justify a dismissal of the application. “I accept that it was unfortunate for the Appeals Committee to have addressed the question in the manner it did, without giving the parties an opportunity to address the point” but that the appeal panel “clearly believed it was entitled to act as it did”.

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Saskatchewan – terms of reference “supersede” earlier agreement on leave to appeal question of law – #423

In Turpie Farms Ltd. v. 613168 Saskatchewan Ltd., 2020 SKQB 345, Mr. Justice Neil Robertson applied the last of four (4) agreements to arbitrate addressing the parties’ right to appeal on a question of law.  Robertson J. held that the last-signed terms of reference signed by parties’ counsel “superseded” the parties’ earlier agreement and allowed an appeal as of right on a question of law. Though respondent disputed whether the numerous grounds raised a question of law, Robertson J. deferred that issue to the judge hearing the appeal, reasoning that “since leave to appeal is not required, I am not called upon to decide whether the proposed grounds are proper questions of law”.

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Saskatchewan – appeal court endorses other appeal courts’ approach to stay application appeals where arbitration agreement does not apply – #391

In Abbey Resources Corp. v. Andjelic Land Inc., 2020 SKCA 125, Saskatchewan’s Court endorsed the Ontario Court of Appeal’s reasoning in Huras v. Primerica Financial Services Ltd., 2000 CanLII 16892 (ON CA) to determine that, under section 8(6) of its The Arbitration Act, 1992, SS 1992, c A-24.1, the Court of Appel did have jurisdiction to hear an appeal of a decision in first instance which refused a stay if the decision held that that arbitration agreement did not apply.  Identifying that case as the first in a “very solid line of authority” and a “significant body of case law from other provinces”, the Court held that it did have jurisdiction to hear the appeal.  On the merits, the Court held that the trial judge made no error in deciding the issue of the arbitrator’s jurisdiction because the case qualified as an exception to the “methodic referral of matters to arbitration” favoured by competence-competence. “The leases would seem to be standard form contracts, the interpretation of which is of precedential value, and there appears to be no meaningful factual matrix specific to [the parties] that can inform their interpretation”.

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